Topic 8 – Privilege
Evidence and Civil Procedure
Notes
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Contents
Topic 3 – Evidence from Documents and Other Sources ............................................ 21
Topic 4 – Character, Credibility, Opinion and Identification Evidence ................... 25
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Topic 5 – Hearsay, Confessions/Admissions/Statements Against Interest and
Topic 6 – Admissions, Presumptions, Inferences from Lack of Evidence, Right to
Silence, Tendency, Coincidence and Similar Fact Evidence, and Prior Sexual
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Topic 9 – The Rules of Civil Procedure – Introduction, Alternative Dispute
Resolution, Early Moves: Services, Process and Interim Measures .......................... 49
Topic 10 – Parties and Causes of Action, Estoppel, Joinder, Counter-Claims ......... 58
Topic 12 – Summary Disposition, Discovery and Gathering Evidence ..................... 73
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Note to Chapter 3
Outline of this Chapter This Chapter is about whether evidence adduced in a proceeding is admissible.
Part 3.1 sets out the general inclusionary rule that relevant evidence is admissible.
Part 3.2 is about the exclusion of hearsay evidence, and exceptions to the hearsay rule.
Part 3.3 is about exclusion of opinion evidence, and exceptions to the opinion rule.
Part 3.4 is about admissions and the extent to which they are admissible as exceptions to the hearsay rule and the opinion rule.
Part 3.5 is about exclusion of certain evidence of judgments and convictions.
Part 3.6 is about exclusion of evidence of tendency or coincidence, and exceptions to the tendency rule and the coincidence rule.
Part 3.7 is about exclusion of evidence relevant only to credibility, and exceptions to the credibility rule.
Part 3.8 is about character evidence and the extent to which it is admissible as exceptions to the hearsay rule, the opinion rule, the tendency rule and the credibility rule.
Part 3.9 is about the requirements that must be satisfied before identification evidence is admissible.
Part 3.10 is about the various categories of privilege that may prevent evidence being adduced.
Part 3.11 gives courts discretions to exclude evidence even if it would otherwise be admissible.
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The following diagram shows how this Chapter applies to particular evidence:
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Topic 1
– Introduction
Common Law Development
[The law of evidence is] founded on the propositions that all jurymen are deaf to reason, that all witnesses are presumptively liars and that all documents are presumptively forgeries. It has been added to, subtracted from and tinkered with, for two centuries until it has become less a structure than a pile of builders’ debris.
Harvey, CAP (1958) The Advocate’s Devil, London, Stevens & Sons.
Uniform evidence law: the Evidence Acts 1995-2001
The introduction of the Uniform Evidence Acts meant that the principles of evidence developed at common law became subject to statutory modification. Each jurisdiction in
Australia has its own Evidence Act, as well as various other statutes containing specific provisions affecting the laws of evidence.
The Commonwealth passed its Evidence Act in February 1995. In June 1995, the NSW
Parliament enacted its own almost identical version of the Act.
Definitions
What is Evidence?
The evidence of a fact is that which tends to prove it.
The law of evidence consists of the rules and principles governing the proof of the facts in issue in civil or criminal proceedings.
The ‘facts in issue’
The facts in issue in a given case are determined by:
the substantive law,
the pleadings, and
the way the case is conducted.
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Civil Proceedings
The facts in issue in a civil proceeding are those facts which the plaintiff or defendant must prove in order to be successful.
Criminal Proceedings
The facts in issue in a criminal proceeding are those facts that the prosecution (the
Crown) must prove to the standard beyond reasonable doubt to obtain a verdict of guilty.
Relevance
The basic principle of the law of evidence is that, to be admissible, the evidence must be either directly or indirectly relevant to a fact in issue.
Exclusionary Principles
In many circumstances, relevant evidence may not be admitted, perhaps because it is regarded as unreliable, or its admission may be unfair. Thus the general rule is subject to numerous exclusionary principles developed at common law and now embodied in the
EA (NSW) . These include the direct exclusions like hearsay or opinion, as well as a general judicial discretion to exclude evidence on various grounds.
Objections
Timing
There are only two points to make as to timing. In relation to questions from your opposing counsel that appear to you to be calling for inadmissible evidence: object after the question is asked and before the answer (ie the evidence) is given. In relation to the trial judge’s summing-up to the jury: make your objections at the conclusion of the summing-up and (preferably) in the absence of the jury.
Purpose of Objections
As to the purpose of objections:
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In relation to the giving of evidence, the purpose is to prevent the admission of inadmissible evidence. Having said that, sometimes you will choose not to object because you anticipate the evidence will be favourable to your party.
In relation to the trial judge’s summing-up, the purpose is to have the judge amend any misquoting of the evidence to the jury, and to prevent any misdirection’s and/or non-directions to the jury.
In general, the purpose of objections is to provide ‘points of law’ as possible grounds for an appeal – if you need to appeal! It is also important to be aware that, if you fail to object on a particular point of law at the initial hearing, you may be precluded from arguing that point of law at any subsequent appeal.
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Topic 2
– Evidence from Witnesses
The general rule is that a witness can only give evidence of facts of which the witness has personal knowledge, something which the witness has perceived with one of the five senses. The only exception to the general rule is the expert witness testifying to matters calling for expertise.
Part 2.1 of Chapter 2 of the EA (NSW) deals specifically with adducing evidence from witnesses.
Competence & Compellability
A witness is said to be ‘competent’ if the witness can lawfully be called to give evidence. s12 EA
A person may lack the capacity to be considered a competent witness. The act sets out these exceptions. s13 EA
A witness is said to be ‘compellable’ if the witness can lawfully be obliged to give evidence. Generally, if a witness is competent, he or she will be compellable. s12 EA
There are isolated exceptions to this rule, the most obvious being that accused persons cannot be compelled to give evidence at their own trial. ss14, 15, 16, 17, 18, 19 EA
Questions as to the competence and compellability of a witness are usually determined before the witness begins to give evidence. A competent and compellable witness who refuses to give evidence can be charged with contempt of court.
Privilege
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Sworn & Unsworn Evidence
A witness in a proceeding must take an oath/affirmation before giving evidence, unless they are given unsworn evidence or are merely producing a document or thing. s21 EA
Interpreters must also take an oath. s22 EA
A person who is incapable of understanding that, in giving evidence, he or she is under an obligation to give truthful evidence is not competent to give sworn evidence. s13(1) EA
A person may be able to give ‘unsworn evidence’ if: s13(2) EA
the court is satisfied that the person understands the difference between the truth and a lie, and
the court tells the person that it is important to tell the truth; and
the person indicates that he or she will not tell lies in the proceeding.
Children
A child can give evidence, either sworn or unsworn, depending on the child’s level of maturity and/or understanding. The Evidence (Children) Act 1997 (NSW) applies to children under 16 years of age who are called to give evidence.
The Act allows children to give their evidence in chief by way of tape recording or video recording.
Generally, the child may then be cross-examined and re-examined in the usual way in the witness box. However, if a child is giving evidence in a proceeding where it is alleged that the defendant has committed a ‘personal assault offence’, or an apprehended domestic violence offence, the child (other than the defendant) has the right to give her/his evidence by closed circuit television.
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Calling witnesses
Order
The court has a general power to control proceedings. s11 EA
However, at common law, it is the counsel that decides the witnesses who are called and the order which they are called, and the court will normally defer to this.
Briscoe v Briscoe [1968]
It is normally desirable to have the accused to give evidence before other witnesses, but it is not a rule of law. R v Lister [1981]
Exclusion from the Court
The general rule is that witnesses should remain outside the court until called to give evidence, though this is not a rule of law. R v Tait [1963]
The Judge has a discretionary power to exclude people from the court. s26(d) EA
Who may call a witness?
The counsel determines the witnesses to be called.
At common law, the court as the power to call a witness, though it is not to be exercised in a criminal case in calling a prosecution witness, and “save in the most exceptional circumstances, the trail judge should not call a person to give evidence”.
R v Apostilides (1984)
To ensure fairness, the prosecution must make a witness ‘available’ even if it does not intend to ask the witness any questions. This is to ensure that no important evidence will be left out of the trial due to the prosecution failing to call a witness. The judge will typically question the prosecution as to why an important witness was not called if the issue arises during the case. R v Kneebone (1999)
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Examination in Chief
Questions put to a witness by the party who called the witness to give evidence are referred to as the ‘examination in chief’.
The questions must be in a non-leading form, giving the witness the opportunity to ‘tell her/his own story’. s37 EA
A leading question is one that ‘directly or indirectly suggests to a witness the answer to be given’. There are however where leading questions can be used in evidence in chief or ss37-38 EA re-examination.
Witnesses don’t have to give their evidence in Q&A form. s29 EA
Unfavourable/Hostile Witnesses
With leave of the court, a party way question their own witness if they are found to be unfavourable. s38 EA
A party can then cross-examine the witness about:
evidence given by the witness that is unfavourable to the party,
matters the witness may reasonably be supposed to know about but is not making a genuine attempt to give evidence, and
a prior inconsistent statement.
An unfavourable witness is one which says anything that goes against the caller’s case.
TB p1071
Refreshing (Reviving) Memory
The court must grant leave before a witness can revive memory from a document while giving evidence. In granting leave, the court takes into account: s32 EA
whether the witness will be able to recall the fact or opinion adequately without using the document; and
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whether the document was written or made by the witness when the events were fresh in the witness’s memory or was, at such a time, found by the witness to be accurate.
As to a witness reviving her or his memory from a document before giving evidence, this can be done at any time and in any manner chosen by the witness. However, on the application of an opposing party, the court may require the witness to produce the document. If, without reasonable excuse, the witness refuses to produce the document, the evidence may be excluded. s34 EA
Calling for a Document
When a document is admitted into evidence because it is ‘relevant’, the document ‘speaks for itself’. However, when a witness revives her/his memory in court by using a document that has not been admitted into evidence, the document itself does not become evidence.
Where a witness has revived her/his memory in court, the opposing party may ‘call for’ the document to be produced in order to inspect its contents and, possibly, to crossexamine the witness on it.
Prior Consistent Statements
Parties may not ‘buttress’ or ‘bolster’ their witnesses’ credibility by adducing evidence that a witness made a statement on a prior occasion, consistent with the evidence given in court.
The two exceptions to this prohibition are:
in prosecutions for sexual offences, evidence of timely complaint by the victim is admissible (known as ‘complaint evidence’); and
to rebut a suggestion by counsel that the witness’ evidence is a recent invention.
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Cross-examination
Cross-examination need not be confined to matters raised in evidence in chief, but the court may regard it as unfair to raise entirely new matters in cross-examination. Leading questions can be asked, unless the court disallows them. The court may disallow questions that are misleading, or unduly annoying, harassing, intimidating, offensive, oppressive or repetitive. If a cross examiner fails to challenge a witness at all, or on a particular point, this usually amounts to accepting the witness’s version of events given in evidence in chief. Division 5 (ss40-46) EA
Browne v Dunn
Where the party intends to contradict or challenge the testimony of an opposing party’s witness, the party should put the witness on notice that his or her account will be challenged and give notice of the substance of that challenge.
In other words, the cross-examiner must ‘put’ to the witness in cross-examination the substance of the evidence that will later be adduced.
There are three possible ‘penalties’ at common law for breaching this rule. They are:
allowing the aggrieved party to recall the witness,
directing the jury to take the failure to cross-examine into account in relation to the witness’s credit when determining which party’s version of events to accept, or
prohibiting the party in breach from presenting any evidence on the matter.
Prior Inconsistent Statements
A cross-examiner has the right to put a prior inconsistent statement to a witness. If the witness does not admit making the prior inconsistent statement, the cross-examiner can independently adduce evidence of the statement provided: s43 EA
sufficient information was given to the witness to enable the witness to identify the statement; and
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the witness’s attention was drawn to so much of the statement as is inconsistent with the witness’s evidence.
Ordinarily, the existence of a prior inconsistent statement only goes to a witness’s credit.
It does not, of itself, prove the truth of the statement.
Evidence which proved that a witness had made an oral prior inconsistent statement is admissible once the witness had given evidence contradicting the prior statement and, further, denying making the prior statement. R v Daren and Tange [1971]
If the prior statement is in a document, the court may require the production of this document, or evidence as to the contents of the document. s45 EA
The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation. s60 EA
Re-examination
A party who called a witness can re-examine the witness in order to explain or qualify any ambiguities appearing to result from the cross-examination of the witness.
Generally, re-examination must be confined to matters arising out of cross-examination.
An exception is when a party, having omitted to adduce important evidence from a witness in examination in chief, seeks leave to re-examine the witness for the purpose of adducing that evidence. Provided the court is convinced that the omission was inadvertent, leave will be granted. s39 EA
Such leave will only be granted on condition that the witness may be cross-examined on the further evidence.
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Usually, unless the court gives leave, leading questions cannot be asked during reexamination. s37(1) EA
Evidence after close of case
The general rule is that a party is not permitted to ‘split’ its case by presenting further evidence by way of re-opening or rebuttal. However, there are some exceptions to this rule. Evidence may be given after the close of a party’s case in situations where:
the evidence is about a purely formal matter and the party could not have foreseen that the evidence would be relevant, or
the accused has the onus of proof (eg insanity or diminished responsibility), or
the evidence is fresh (ie it was not able to be adduced at the usual time).
Unless there are exceptional circumstances, the prosecution should not be allowed to reopen its case. R v Chin (1985)
Summary
Briefly, the important issues covered in this topic were:
1.
The presumption is that every person is both competent and compellable to give evidence. A person may be legally entitled to refuse to answer a question or produce a document because of privilege.
2.
Counsel decides the witnesses to be called, and the order in which they are called.
In criminal cases, the prosecutor has a discretion whether to call a witness to give evidence for the prosecution. In exceptional circumstances, the court has the power to call a witness.
3.
The prosecution and the plaintiff are required to present their cases first.
Questions put by a party to the party’s own witnesses are referred to as the
‘examination in chief’.
4.
The general rule is that leading questions are not permitted in examination in chief. However, there are exceptions to this rule.
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5.
A witness may be granted leave to use a document for the purpose of reviving memory while giving evidence in court. Distinguish a witness reviving memory while giving evidence and a witness reviving memory before giving evidence: in the latter situation, no leave is required. A document used for the purpose of reviving a witness’s memory, and inspected by the opposing party, need not be tendered in evidence.
6.
When a witness called by a party has completed her/his evidence in chief, an opposing party has a right to cross-examine the witness. Cross-examination can include leading questions.
7.
The rule in Browne v Dunn imposes a duty on a cross-examiner to give a witness an opportunity in cross-examination to explain evidence that the cross-examining party intends to adduce to contradict the witness’s evidence or attack the witness’s credibility.
8.
A cross-examiner has the right to put a prior inconsistent statement to a witness. If the witness does not admit making the prior inconsistent statement, the crossexamining party may later independently prove the statement.
9.
A party who called a witness will be permitted to re-examine the witness in certain circumstances. The general rule is that a party is not permitted to ‘split’ its case by presenting further evidence by way of re-opening or rebuttal. However, there are exceptions to this rule.
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Topic 3
– Evidence from Documents and Other Sources
Documents
The common law ‘best evidence’ or ‘original document’ rule has been abolished. s51
EA
Document means any record of information, and includes:
anything on which there is writing, or
anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or
anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or
a map, plan, drawing or photograph.
The original document can be tendered in order it adduce the contents of that document. s48 EA
The contents of a document may be adduced by a variety of other methods. s48(1) EA
These alternative methods are:
adducing evidence of an admission made by another party to the proceeding as to contents of the document in question;
tendering a document that is or purports to be a copy of the document in question;
tendering a transcript of a tape or other recording; tendering a print-out of an email;
tendering a document that forms part of the records of or kept by a business;
tendering a document that is or purports to be a copy of a public document printed by the Government Printer.
Where a document is not available to a party, its contents can be adduced by tendering a copy of it, a summary of it, or oral evidence of it’s contents. s48(4) EA
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Just because a document has been tendered under s48 does not mean that it is from then on considered authentic. NAB v Rusu [1999]
Presumptions relating to Documents
There are presumptions that:
a document more than 20 years old produced from proper custody is the document it purports to be.
a document bearing a particular date was executed on that date. s152 EA
Dillon v Gag e (1941)
an alteration or erasure in a document was made after the execution of the document. D oe v Catomore (1851) 117 ER 1066.
The traditional and general approach of the common law is that a document is conclusive evidence of its contents, and that no evidence may be admitted to contradict or vary what it states. This is known as the ‘parol evidence rule’.
Codelfa Constructions v State Rail (NSW)
The document has to be tied someway to the person it deals with - you can 'adopt' a document by signing or someway indicating you agree with it, or taking it into your possession.
There is also a presumption (rebuttable) that a document in your possession is yours - if you have a document, you don't need to prove possession, though it's ownership may be rebutted by the other party.
Other Evidence
Real Evidence
Items admitted as exhibits in proceedings, whether they are ‘documents,’ or what common law calls ‘real evidence’ (a knife, a brick, or a shirt), go with the jury into the jury room. During their deliberations, jurors are free to use or examine them ‘in any reasonable manner.’
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Views
A judge may, on application, order that a demonstration, experiment or inspection be held. s53(1) EA
An ‘inspection’ occurs when the court visits and observes a relevant place: it is a static event. By contrast, as the name implies, a ‘demonstration’ is an active event. It may consist of an attempt to reconstruct an incident relevant to the proceedings before the court.
Summary
Documents
Section 51 of the EA (NSW) has abolished the ‘best evidence’ or ‘original document’ rule. Section 48 of the EA (NSW) governs the methods by which parties may adduce evidence of the contents of documents. Under the EA (NSW)
, a ‘document’ is ‘any record of information.’ A party may, where appropriate, use any of the methods outlined in s
48(1) and s 48(4) to prove the contents of a ‘document in question.’
It appears that the basic common law rule regarding documentary evidence that, before a document is admissible, it has to be proved that it was executed or adopted by, or is in some way connected with, a relevant person, is still applicable.
Other Evidence
‘Other evidence’ comprises common law ‘real evidence’ and ‘views.’
‘Real evidence’ consists of objects such as a knife, a brick, or a shirt: there must be proper authentication before the item can be tendered as an exhibit.
As to ‘views,’ s 53 of the
EA (NSW) provides that a judge may, on application, order that a demonstration, experiment or inspection be held. An ‘inspection’ occurs when the court visits and observes a relevant place: it is a static event. A ‘demonstration’ is an active event. It may consist of an attempt to reconstruct an incident relevant to the
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Section 54 of the EA (NSW) permits the court to draw any reasonable inferences from what it sees, hears or otherwise notices during a demonstration, experiment or inspection.
Importantly, for any ‘document’ or ‘other evidence’ to be admissible, the contents of the document or the item of other evidence must be relevant , and must not be caught by some exclusionary rule .
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Topic 4
– Character, Credibility, Opinion and
Identification Evidence
Character
At common law:
A person’s ‘character’ means the person’s ‘reputation’; and
A person’s ‘reputation’ means ‘the general opinion held of the person by members of her/his circle’.
At common law, important to character evidence is that it is both significantly probative in relation to the accused propensity to commit the crime charged and the accused’s credibility. Melbourne v R (1999)
The rules of evidence as to character contained in the EA only apply to criminal proceedings. s109 EA
For the Accused
An accused person has a right to adduce evidence of their good character.
The hearsay rule does not apply to this sort of evidence. s110 EA
In cross-examination, it may be shown that the accused is not a person of good character, though leave of the court must be obtained first. ss110, 112 EA
For Co-defendants
A co-defendant can tender evidence as to the character of their co-accused if that evidence is from a person whose opinion is based on specialized knowledge from their training, study or experience. s111 EA
In cross-examination, it may be shown that the accused is a person of good character, though leave of the court must be obtained first. ss111, 112 EA
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For the Victim
It is important to note that for evidence of the sexual experience or lack of sexual experience of the complainant (ie victim) to be admissible, it is necessary not only that the criteria in s 293(4)(a), (b), (c), (d), (e) or (f) (of the Criminal Procedure Act ) be satisfied, but also that ‘the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission’. TB p1223
Credibility
Evidence that is relevant only to a witness’ credibility is not admissible. s102 EA
If evidence is relevant to both credibility, and another purpose, then it is admissible. Once it has been admitted, it can be used in relation to the witness’ credibility. Adam v R
Exceptions to s102 EA
You may, with leave of the court, attack your own unfavourable witness’s credibility. s38(3) EA
You can adduce evidence to attack a witness’s credibility during cross-examination if the evidence has substantial probative value. s103 EA
You can adduce evidence of a prior consistent statement to re-establish the credibility of a witness if it has been attacked in cross-examination. s108 EA
If a witness has denied evidence adduced, it is possible (with certain classes of evidence) so attack the credibility of that witness if you have evidence which tends to prove the witness’s denial to be false. s106 EA
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The Effect of Hearsay (s60 EA)
Evidence of a prior consistent or inconsistent statement is not only admissible to support or destroy a witness’s credibility, but also as evidence of the facts contained in the statement.
Opinion
Evidence of an opinion is not admissible to prove the existence of a fact about which the opinion was expressed. s76 EA
The Exception of Lay Opinions
A lay witness is any witness not recognised by the court as an expert witness.
Evidence of an opinion to be expressed by a person if the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and the evidence is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event, will be admitted by the court. s78 EA
Classic examples include approximate age, emotional state, condition of things, speed of motor vehicles.
Also if the person was under the influence of alcohol (possibly intoxication in general).
R v Whitby (1957)
The Exception of Expert Opinions
If a person has specialized knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. s79 EA
Identification Evidence
Identification evidence consists of the assertion that the accused is the person who was witnessed committing the crime charged. Normally an accused will be identified by face or sometimes voice, but theoretically an accused could be identified through other personal characteristics, for example smell. Such evidence of recognition is to be
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At common law, as identification evidence goes to weight rather than it’s admissibility, the judge must warn the jury on the risks of convicting based on such identification evidence, if it represents any significant part of the proof of guilt. Domican v R (1992)
The rules of identification evidence in the EA only apply to criminal proceedings. s113 EA
If the identification evidence is based wholly or partly on what the witness saw, then there are several rules which apply. s114 EA
If adduced by the prosecutor, it is not admissible unless:
An identification including the defendant was held before the identification was made
It would not have been reasonable to have such a parade
The defendant refused to take part in such a parade
There are also a variety of rules for picture identification evidence; where an identification has been made wholly or partly by the person who made the identification examining pictures kept for the use of police officers. s115 EA
A judge must give directions to the jury about identification evidence if any such evidence is admitted. s116 EA
A judge may also provide a warning for any unreliable evidence, if a party requests so, and if there are no good reasons not to do so. s165 EA
As aural identification evidence is not covered by the EA , the common law still applies, so the judge must warn the jury as to it’s dangers. Festa v R (2001)
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Summary
In this Topic, we first learned about the admissibility of evidence as to ‘character’. We began by studying the admissibility of evidence as to character in relation to an accused
(ss 110, 111 EA (NSW) ), and then learned the circumstances in which cross-examination of an accused as to character (s 112 EA (NSW) ) and credibility (s 104, EA (NSW) ) will be permitted.
We moved on to consider the admissibility of evidence of character in relation to a victim . We thus examined s 293 of the Criminal Procedure Act 1986 (NSW) regarding the admissibility of evidence relating to the sexual reputation or sexual experience of the victim of a prescribed sexual assault.
In this topic we first studied the credibility rule in s 102 EA (NSW) , and then examined the four exceptions to the rule in ss 108, 38, 103 and 106. Finally, we examined the impact of s 60 EA (NSW) on each of the four exceptions.
When deciding whether evidence as to a witness’s credibility is admissible, consider:
1.
Is the evidence relevant within the meaning of that term in s 55 EA (NSW) ? As you are well aware, that is always the first question.
2.
If it is relevant, does the s 102 EA (NSW) credibility rule apply?
3.
If the credibility rule does apply, does the evidence come within one of the exceptions to the rule (s 108, s 38, s 103, or s 106)?
4.
If it does come within one of the exceptions, remember the effect of s 60 EA
(NSW) . The evidence will be admissible not only to support (Exception (1) – prior consistent statement) or attack (Exceptions (2) (3) and (4) – prior inconsistent statement) the witness’s credibility, but also as evidence of the facts contained in the statement.
By virtue of s 137, in a criminal proceeding the court ‘must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant’.
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We learned that, although an opinion is not usually admissible as evidence (s 76), there are two major exceptions – lay opinions (s 78) and opinions based on specialised knowledge (s 79) where the person has specialised knowledge based on the person’s training, study or experience, and the opinion is wholly or substantially based on that knowledge.
Section 80 states opinion evidence is not inadmissible only because it is about (a) a fact in issue or an ultimate issue, or (b) a matter of common knowledge.
We then examined the admissibility of identification evidence, and the warnings/directions to be given by a trial judge to a jury with respect to such evidence.
We examined the common law as to admissibility and warnings, noting particularly the
High Court decision in Domican v R.
We then studied the sections in the EA (NSW) governing the admissibility of ‘visual identification evidence’ (s 114) and ‘picture identification evidence’ (s 115) in criminal proceedings. We noted that as these provisions do not cover wholly aural identification , the common law principles apply.
As to directions/warnings under the EA (NSW) , we learned that s 116 provides for mandatory directions by a judge to a jury ‘if identification evidence has been admitted’.
We also learned that identification evidence is ‘evidence of a kind that may be unreliable’ within s 165, and that a judge, if requested, is to warn the jury unless ‘there are good reasons for not doing so’.
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Topic 5
– Hearsay, Confessions/Admissions/Statements
Against Interest and Corroboration
Hearsay at Common Law
When confronted with hearsay evidence you should always ask yourself: ‘What is the purpose of the evidence?’ If the purpose of the evidence is to prove the existence of a fact or facts (eg how the collision occurred), the evidence will be inadmissible unless it comes within one of the (many) exceptions to the rule against hearsay and the hearsay rule. If the purpose of the evidence is only to prove what another person said (eg what the eyewitness said as to how the accident occurred), the evidence will be admissible for that purpose.
At common law, a hearsay statement that has the purpose of proving a fact is not allowed, but a statement proving what that person heard or read is allowed.
Subramaniam v Public Prosecutor
The principal common law exceptions to the rule against hearsay are:
Dying declarations by deceased persons
Statements in public documents
Admissions in civil cases
Statements by accomplices in crime
Confessions in criminal cases
Res gestae .
The doctrine of res gestae , an exception to the rule against hearsay, permits witnesses to give evidence of statements made to them when those statements are ‘part of the story, the event, the transaction’.
Hearsay in the EA
The hearsay rule, and many exceptions to it, are included in the EA.
s59 EA
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Implied assertions, that is, assertions that are implied from what was overheard, rather then directly stated (like implying that Bob was present by hearing someone say “Hi
Bob”) are not blocked by the hearsay rule in the
EA . s59 EA
A person, who made a representation, cannot use that representation to prove the existence of a fact (so if A told B that he saw how it happened, neither A or B can use that statement to prove how it happened). Lee v R (1998)
Exceptions to s59 EA
Hearsay evidence as to prior consistent or inconsistent statements made by a witness can be used to prove the existence of a fact as well as attack that witnesses credibility. s60 EA
In a civil case, the hearsay rule does not apply to first hand hearsay if that person is not available to give evidence about the asserted fact. s63 EA
The hearsay rule will also not apply in civil cases where calling the person who made the representation to give evidence would cause undue expense or delay, or it would not be reasonable practicable to call them. It will also not apply if when the person made the representation, the asserted facts were fresh in their memory. s64 EA
There are expansive rules for when first hand hearsay is admissible in criminal cases. ss65, 66 EA
The doctrine of res gestae is also embodied for criminal proceedings in the EA.
ss65(1), 65(2) EA
The hearsay rule does not apply to business records (that is, records made in the course of business by persons with no other interest than to record matters as accurately as possible). s69 EA
The hearsay rule does not apply to identifying tag or label on an item (eg. Price tags, licence plates). s70 EA
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The hearsay rule does not apply to telecommunications if the representation in those documents applies to the identification of person’s who sent, or for whom it was sent, the date and time when it was sent, or the destination or identity of the persons to whom it was addressed. s71 EA
The hearsay rule does not apply to evidence of a representation made by a person that was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind. s72 EA
The hearsay rule does not apply to representations about relationships or age, except in a criminal case, where the defendant can’t admit evidence of this sort unless it is to evidence that has already been admitted. s73 EA
Admissions
Hearsay does not apply to a first hand admission. ss81, 82 EA
Corroborations
Common law requires certain types of evidence, for example, the evidence of an accomplice or the evidence of a prison informer, to be ‘corroborated’. In particular, confessions were usually required to be corroborated, as a safeguard against the police simply forging them, or procuring the suspect’s signature by means of force, threats or pressure behind closed doors.
Under the EA :
The corroboration requirement is abolished, except for the offence of perjury or similar or related offence. s164 EA
A judge may give general warnings that may be unreliable (including corroborations). s165 EA
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Summary
We began our study of this topic by noting that a fundamental common law exclusionary rule of evidence is the ‘rule against hearsay’, and that in the EA (NSW) the rule is called
‘the hearsay rule’ (s 59).
We first examined the meaning and effect of the common law rule against hearsay, the distinction between ‘express assertions’ and ‘implied assertions’, and the exceptions to the rule.
Keeping in mind our recently learned knowledge of the common law on this topic, we then examined the meaning and effect of the EA (NSW) s59 hearsay rule, noting particularly that s 59 does not render ‘implied assertions’ inadmissible.
We then studied the many exceptions to the s 59 hearsay rule specified in the EA (NSW), noting particularly (1) the alteration to the common law effected by s 60 (evidence relevant for a non-hearsay purpose) (2) the provisions of ss 62-66 (‘first-hand’ hearsay), a concept unknown at common law, and (3) the provisions of ss 81-82, which embody the common law’s long-established exception in relation to ‘admissions’, an exception of great practical importance in the day-to-day conduct of both criminal and civil proceedings.
Finally, we examined the risks of one particular type of hearsay – evidence of confessions and other admissions – when these are uncorroborated; and we saw how the legal system has sought to guard against this danger – formerly by a rule of exclusion, but now by judicial warnings.
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Topic 6
– Admissions, Presumptions, Inferences from
Lack of Evidence, Right to Silence, Tendency,
Coincidence and Similar Fact Evidence, and Prior
Sexual Conduct.
Formal Admissions
Formal admissions are those made by the parties for the purpose of dispensing with proof at the trial. If the parties choose to make such formal admissions then the proof of a certain fact or certain facts will be facilitated.
At common law, no formal admission in a criminal matter, short of a full plea of guilty, has any effect.
R v O’Sullivan and Mackie
(1975)
Evidence is not required to prove, and may not be produced to prove (without leave) the existence of an agreed fact. ss184 (criminal), 191 (civil) EA
Judicial Notice
Judicial notice allows the court to accept certain facts without proving them.
Proof is not required for knowledge that is not reasonable open to question and is either common knowledge in the locality, or verifiable by a document the authority of which cannot be reasonably questioned. s144 EA
Proof is not required about the provisions and the coming into operation of any piece of law. s143 EA
Inferences from Silence/Absence of Evidence
At common law, an inference can be drawn from an absence of evidence.
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In civil proceedings, the common law still applies.
Jones v Dunkel (1959)
In a criminal proceeding for an indictable offence, the judge or any party other then the prosecutor may comment on a failure of the defendant to give evidence, though only comments by another defendant may say that by not giving evidence the defendant is showing they are guilty of the offence.
They may also comment on a failure to give evidence by the defendants spouse, parent or child, though again only a co-defendant may infer guilt.
Any comment made by a co-defendant may in turn, be commented on by the judge. s20 EA
In some cases, where the facts are particularly within the knowledge of the defendant, the prosecution or plaintiff may still adduce some, very slight, evidence of these facts. This evidence can be sufficient if the defendant does nothing to explain it away.
De Gioia v Darling Island Stevedoring (1941)
Similar Fact Evidence at Common Law
Common law uses the terms ‘similar fact evidence’ and ‘propensity evidence’ interchangeably. The expressions… refer to all evidence which shows that on some other occasion the accused acted in a way more or less similar to the way in which the prosecution alleges the accused acted on the occasion the subject of the present charge.
Similar fact evidence can relate to an occasion before or after the occasion subject to the charge. Pfennig v R
The events in question must be substantially and relevantly similar, and the circumstances in which they occurred are substantially similar.
Similar fact evidence may be considered unfair to the accused and be excluded under the common law discretion to exclude unfairly prejudicial evidence.
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Similar Fact Evidence in EA
The tendency and coincidence rules don’t just apply to the credibility of a witness, nor do they apply in bail or sentencing. s94 EA
They also do not apply to evidence of character, reputation, conduct or tendency if they are a fact in issue. This means they will be relevant and admissible. s94(3) EA
Tendency Rule
The tendency rule applies to evidence relating to a persons character, reputation, conduct, or tendencies.
The effect of ‘the tendency rule’ is that unless reasonable notice has been given, or, much more importantly, unless such evidence has significant probative value, it is not admissible. s97 EA
Coincidence Rule
2 or more events must be substantially and relevantly similar, and the circumstances in which they occurred must be substantially similar for them to be admissible under the coincidence rule. The evidence must also be of substantive probative value for the court to allow it. s98 EA
Notice must be given of coincidence evidence, but the court may dispense with this requirement at will. s100 EA
Further Restrictions for the Prosecution
In addition to the above rules, the prosecution also has some additional restrictions on tendency and coincidence rules. Any tendency or coincidence evidence adduced by the prosecution about the defendant will not be admissible unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. s101 EA
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Summary
In this topic, we consider the various ways by which proof may be facilitated or made easier, as well as attractive but legally suspect avenues of reaching conclusions. We examined formal admissions, judicial notice, and presumptions, and how far inferences may be drawn from an absence of evidence in both civil and criminal proceedings.
We considered the admissibility of what common law refers to as evidence of a person’s
‘propensity’ or ‘disposition’: often referred to as ‘propensity evidence’, ‘evidence of disposition’ or ‘similar fact evidence’. We began by examining the common law, with special focus on the principles laid down by the Privy Council in its 1894 decision in
Makin v Attorney-General (NSW) . We then moved on to examine the provisions of the
EA (NSW) governing the admissibility of this kind of evidence. We learned that s 97 establishes ‘the tendency rule’, and s 98 ‘the coincidence rule’. We noted these sections provided that the test for the admissibility of tendency evidence or coincidence evidence is ‘significant probative value’. We particularly examined the meaning of the phrase ‘2 or more related events’ in s 98, and used the facts of
Pfennig v R as an example.
In relation to tendency evidence or coincidence evidence about a defendant adduced by the prosecution in a criminal proceeding, we learned that s 101 provides a stricter test:
‘the probative value of the evidence [must] substantially outweigh any prejudicial effect it may have on the defendant’. It is important to appreciate that, in relation to the adducing of tendency or coincidence evidence about a defendant by the prosecution, the s
101 test applies in addition to the requirements of ss 97 and 98. Thus, applying the provisions of the EA (NSW) to the facts of Pfennig , the s 101 test would need to be satisfied in addition to the requirements of ss 97 and 98.
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Topic 7
– Judicial Discretions to Exclude Evidence
Relevance
A good definition (though with no legal backing) is that relevance is ‘a logical connection between the evidence and facts’; and:
‘The requirement that the matter on which the evidence ultimately bears is a matter in issue in the trial. Whether or not a matter is in issue is a question of law, determined by substantive law and pleadings.’
In the EA
All evidence that is relevant is admissible (unless subject to one of the exclusionary principles). s56 EA
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. s55 EA
Evidence that is not currently relevant may be admitted subject to more evidence being admitted at a later date making it relevant. s57 EA
If a question as to relevance arises, the court may examine the document or thing and draw any reasonable inferences from it (such as identity and authenticity). s58 EA
At Common Law
There is no one definition of relevance at common law, but before evidence is deemed relevant, it must at the very least tend to prove or disprove a fact in issue.
Unfair Prejudice
By risk of unfair prejudice it is meant the danger that the fact finder may use the evidence to make a decision on an improper, perhaps emotional, basis. That is, it may be used in a manner that goes beyond the probative value it may be properly given.
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At common law, in criminal cases, the trial judge has a general discretion to exclude legally admissible evidence if its reception would be unfair to the accused in that in might place the accused at risk of being improperly convicted. R v Christie [1914]
The court may refuse to admit evidence if it’s probative value is substantially outweighed by the danger that it may be unfairly prejudicial to a party, or misleading or confusing, or cause an undue waste of time. s135 EA s135 EA does not apply to procedural unfairness (like the plaintiff serving evidence after the trail has commenced). Papakosmas v R (1999)
The court may also limit the use of evidence if there is a danger that a particular use may be unfairly prejudicial to a party, or be misleading or confusing. s136 EA
In a criminal proceeding, the court must refuse to admit evidence if it’s probative value is outweighed by the danger of unfair prejudice to the defendant. s137 EA
Evidence Obtained Improperly or Illegally
The common law recognizes that the court has a discretion to exclude evidence that has been unlawfully or unfairly obtained. R v Ireland (1970)
This applies to all forms of evidence.
At common law, the party seeking to have the evidence excluded has the onus of proving that the evidence was obtained unlawfully or unfairly, as well as that the undesirability of the evidence outweighs its desirability.
Common law regarded evidence as unlawfully or unfairly obtained if it was obtained by:
1.
committing a crime (eg a police officer purchasing cannabis), or
2.
committing a tort (eg a police officer trespassing on property), or
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3.
breaching a contract (eg a security guard searching premises while employed to guard them), or
4.
breaching an official regulation (eg a police officer questioning a suspect without first cautioning her/him).
The EA also prohibits improperly or illegally obtained, this applies to all forms of evidence. It may still be admitted if the desirability of the evidence outweighs the undesirability of allowing it because of the way it was obtained. s138 EA
There are several factors that must be taken into account in determining this. s138(3) EA
Under the EA , the party seeking to have the evidence excluded must prove that it was obtained illegally or improperly, and once that has been done, it is up to the party seeking to adduce the evidence to prove that the desirability outweighs the undesirability.
Confessions/Admissions
Confessions at Common Law
The fundamental common law principle in relation to the admissibility of evidence of a confession is that the confession mist have been made voluntarily, it must be made in the exercise of the accused’s free will. McDermott v The King
At common law, although a court is satisfied that a confession was made ‘voluntarily,’ it has a discretion specifically in relation to confessions to exclude a confession when it would be unfair to the accused to admit it (eg. If the confession was obtained illegally or improperly, this would apply as well as that discretion). R v Lee (1950)
Currently there is a three-step approach to the admissibility of evidence of confessions, involving (1) the question of voluntariness (2) a discretion to exclude based on considerations of reliability, and (3) an overall or broad discretion to exclude based on considerations of fairness, public policy and ‘the protection of the rights and privileges of the accused.’
R v Swaffield (1998)
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Admissions under the EA
Admissions gained under violence, or threat of violence, will not be admitted as evidence. s84 EA
In criminal proceedings, an admission may be excluded if the reliability of the admission is in question (eg. The defendant is mentally disable, or threats or inducements were made in exchange for the admission). s85 EA
In a criminal proceeding, a record of official oral questioning of a defendant will only be admitted if the defendant acknowledges that the document is a true record of the questioning. This does not apply to sound and video recordings, or transcripts of sounds from either. s86 EA
In criminal proceedings, unfavourable inferences cannot be drawn from a defendants refusal to answer questions or respond to representations in questioning, and evidence is not admissible if it can only be used to draw such an inference. s89 EA
Admissions made during the course of questioning will activate s138(1) EA if the person conducting the question did, or omitted to do an act that they knew, or should have known would likely impair the ability of the person being questioned to respond rationally. s138(2) EA
Evidence of an admission made during questioning will activate s138(1) if the person was under arrest at the time of questioning and the questioning was being conducted by an official empowered to arrest the person and the official did not caution the person. s139(1) EA
The same will happen if an official who does not have the power to arrest the person also does not caution them before questioning. s139(2) EA
The common law discretion to exclude admissions that would be unfair to the accused is now embodied in s90 EA . s90 EA
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Further Relevant Provisions
Unless there is a reasonable excuse, evidence of an admission is not admissible unless it is tape recorded. s281 Criminal Procedure Act 1986 (NSW)
An admission made by a child is no admissible unless a person responsible for the child was present, or an adult (not a police officer) was present with the consent of a person responsible for the child, or in the case of a child at or above 16, an adult of their choosing (not a police officer), or a barrister/solicitor of their choosing. s13 Children (Criminal Proceedings) Act 1987 (NSW)
Summary
In this topic, we saw that only evidence that is relevant is admissible (s 56). Relevant evidence ‘is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’ (s 55). If evidence is relevant it is admissible, unless it is excluded by the operation of an exclusionary rule, or by the exercise of a judicial discretion.
We examined three areas where the court has discretion to exclude (or limit the use of) certain types of otherwise relevant and admissible evidence:
if that evidence is ‘more prejudicial than probative’ (
EA ss 135- 37), especially in criminal proceedings
if that evidence was obtained unlawfully or unfairly ( EA ss 138)
if that evidence is a ‘confession’ (the common law term) of ‘admission’ (the
EA term) that was not obtained lawfully, fairly and voluntarily ( EA ss 84-86 and 89).
Specifically in relation to the admissibility of admissions, we also noted three further statutory provisions – s 281 of the Criminal Procedure Act 1986 (NSW); s 13 of the
Children (Criminal Proceedings) Act 1987 (NSW); and ss 164-65 of the EA which
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Topic 8
– Privilege
Privilege at Common Law
In New South Wales there were six situations where privilege could be claimed. Four of those privileges came from common law and two from statute. Of those six situations, one has been abolished and the remainder are covered by the EA (NSW). The six preEA
(NSW) situations of privilege and their sources were:
1.
self-incrimination: common law – now s 128 EA (NSW)
2.
legal professional privilege: common law – now ss 117-126 EA (NSW)
3.
settlement negotiations: common law – now s 131 EA (NSW)
4.
marital privilege: s 11 Evidence Act 1898 (NSW) – now abolished
5.
religious confessions: s 10 Evidence Act 1898 (NSW) – now s 127 EA (NSW)
6.
public interest: common law – now s 130 EA (NSW).
Privileges in the EA
Client Legal Privilege
A client includes a non-lawyer employer of a lawyer, an employee or agent of a client, an employer of a lawyer if the employer is the commonwealth of a state/territory government, or a body established by a law of the commonwealth or a state/territory, amongst others. s117 EA
Evidence cannot be adduced if the court finds adducing that evidence would result in a disclosure of a confidential communication between the lawyer and client, or between lawyers about the client, or the contents of a confidential document, if that communication related to legal advice. s118 EA
Evidence cannot be adduced if it would result in the disclosure of a confidential communication between the client and another person, or between a lawyer acting for the client and another person, or the contents of a confidential document, if the communication was for the purpose of the client being provided with professional legal
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This privilege does not apply to any evidence that has to be provided by a court order. s121(2) EA
The party or client may also give consent to the evidence being adduced, and waive the privilege. s121 EA
The privilege does not apply to evidence that is relevant to assessing costs, such as
Calderbank letters. s131(2)(h) EA
The privilege does not apply to any evidence that a client or party has knowingly and voluntarily disclosed to another party as long as that discloser was not made in another confidential communication, as a result of duress or deception, under a compulsion of law, or if the client is a body established by, or a person holding an office under and
Australian law. s122(2) EA
The privilege also does not apple to a communication or contents of a document made that the client or lawyer know, or should have known, was made for a deliberate abuse of power. s125(1)(b) EA
Where there is the potential or actuality of committing a criminal offence, this is not privileged. s125(1)(a) EA
Professional Confidential Relationship Privilege
This privilege is not included in the Commonwealth EA , only in the NSW version.
A court ‘may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose… a protected confidence, or… protected identity information. s126B EA
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Sexual Assault Communications Privilege
A court can exclude evidence that would disclose confidential sexual assault counselling communications. ss295 – 298 Criminal Procedure Act 1986 (NSW)
This privilege only exists in NSW (not the commonwealth), and may also come under s126B EA .
Religious Confessions
A person who is a member of the clergy of any faith can refuse to divulge the contents of a religious confessions, or that one even took place, unless that confession was made for a criminal purpose. s127 EA
Clergy is likely to include any religious figure (such as Imams or elders).
Self-incrimination
A witness may object to giving evidence about matters which would cause the witness to incriminate themselves, whether it by a criminal offence, or make them liable to a civil penalty. If the court is satisfied that the interests of justice require that the witness give evidence, the privilege may be revoked. s128 EA s128 does not apply to a defendant in a criminal proceeding if the evidence the defendant is giving relates to the actus reus or mens rea of a fact in issue. s128(8) EA
Other Privileges
The reasons for the decisions of judges, arbitrators and jurors.
Matters of state.
Settlement negotiations. s129 EA s130 EA s131 EA
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Summary
In this topic we studied the various kinds of privilege whereby relevant and otherwise admissible evidence is excluded . We began by briefly noting the kinds of privilege that, by virtue of common law and statute, existed prior to the EA (NSW) .
Our major focus was on the provisions of the EA (NSW) relating to privilege. As you discovered, there are many such provisions. You are again assured that a general understanding and appreciation of the purpose and effect of the EA (NSW) provisions relating to privileges is sufficient for your studies in this Unit.
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Topic 9
– The Rules of Civil Procedure – Introduction,
Alternative Dispute Resolution, Early Moves: Services,
Process and Interim Measures
In our system, civil law in particular follows the adversarial system of courtroom justice, where the judge is a neutral umpire and passive observer rather than an active participant
(like in Continental European courts which are ‘inquisitorial’ or ‘investigative’ in nature).
The opposing parties (usually two: the system works much less smoothly with three or more parties) decide which factual issues and legal arguments they wish to raise. After any undisputed common ground between the parties is filtered out, the judge’s2 only role is to cast a tiebreaking vote, so to speak, on those matters where the parties still disagree.
Parties are expected to assertively promote their own side of the dispute, within the limits of the law. (Criminal law is less ‘adversarial’ in certain respects, in so far as the judge may be expected to intervene in favour of the defendant to avoid an unlawful or unfair conviction.)
Lawyers often distinguish between substantive and procedural rights (or rules). A right to damages is a substantive right, and the rules governing how one goes about getting that
(such as application and assessment) are procedural rules.
Supreme court rules can often be challenged as ultra vires if they go beyond regulating procedure (that is, impact on substantive rights).
State Bank of South Australian v Hellaby (1992)
Courts will typically presume that a Parliament means for the new procedural rules to take effect immediately after their enactment. This means they will affect cases already commenced. Substantive rules however are not so retrospective (as per the common law presumption on the matter), so they will only affect new actions.
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Sometimes procedural adjustments will go too far, effectively limiting the substantial right, for example, limiting the timeframe for action to be taken so much as to render the substantial right next to useless. Plaintiff S157 v Commonwealth of Australia [2003]
Case Management
Case management has the trial judge being more proactive in moving the case towards a final hearing and decision, rather than simply relying on the parties to do the right thing.
This is normally achieved by granting or refusing extensions on certain procedural requirements.
However, case management and expedience should not come at the cost of the attainment of justice. Queensland v JL Holdings Pty Ltd (1997)
Terminology
See pages 4-5 TB for a glossary of some terms found in the UCPR. TB pp4-5
Payments into Court: Calderbank Letters
The Calderbank letter allows one party to make payments into court, before a decision is reached, as a sort of ‘deposit’ showing its good faith. A party may make an offer to settle, for a specified amount, stating that the offer is ‘without prejudice except as to costs’ – that is, so that the party is not later bound by its own admissions of law or fact made in the offer, and remains free to argue otherwise at trial.
The judge is not made aware of any such deposit until the time comes to apportion costs among parties, so that it does not sway the judges decision.
This device was suggested by the English Court of Appeal decision in Calderbank v
Calderbank [1975] 1 All ER 333. In its obiter dicta , the Court held that if one party wrote the other party a letter that explicitly: a) makes an offer of settlement ‘without prejudice’ as to damages, but b) reserves the right to refer to the letter if the question of costs later arises,
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This method has also been adopted by non-judicial tribunals.
Hronopoulos and Telstra Corp Ltd [2002]
The letters are often used as a ground for arguing that the offeree should pay the offerors costs from the date of the rejection of the offer if the offeree did not do better then the offer in the final judgment.
Alternative Dispute Resolution
A court procedure with Judge (and maybe jury) dispensing justice is the most coercive form of settlement, forcing the defendant against they will if they are found guilty or liable.
Negotiation
A less coercive form of settlement is the negotiation – sometimes parties will do this voluntarily, other times the court will require that the parties attempt to negotiate (in good faith) before litigation can commence.
Case Appraisal
There is also case appraisal, where a court appointed appraiser gives an estimation as to how the matter would be resolved if it went to trial, allowing parties to better choose and assess their options before going to trail.
Mediation
The least coercive form of ADR is mediation. Mediation is a voluntary process, though the court sometimes may force parties to go through it (eg. In family law) before trail.
Mediation is designed to help the parties come to a mutual agreement, with a neutral mediator overseeing the correct conduct of them, though sometimes a mediator will have an evalutory role, suggesting solutions, outcomes and courses of action.
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Evalutory mediation has come under criticism for being beyond the goal of mediation, trying to impose something, rather then getting the parties to mutually agree.
Tapoohi v Lewenberg (2003)
Mediators typically enjoy statutory protection from liability in the course of their actions.
Arbitration
Arbitration involves a binding decision, but it is made by an arbitrator chosen by both parties. So while the decision may be imposed, they can choose an umpire who they have confidence in to deliver a fair and impartial decision.
Often legislation seeks to protect decisions with ouster clauses that make their decisions non-reviewable by the courts, though they disregard such clauses if an arbiter exceeded its legal jurisdiction.
Jurisdiction
Subject-matter
The supreme courts in any state or territory are superior courts with unlimited jurisdiction, that is, they can hear any justiciable dispute. As the unlimited nature is at common law, it can otherwise be limited by statute.
Lower courts tend to be limited by monetary amounts in dispute (for civil cases) or the nature of the offence (for criminal cases).
Savage cost penalties apply to anyone seeking money or cost damages if the recover less then half what the court can award. Also, the supreme court can transfer smaller claims to a more appropriate court.
The family and federal courts are also superior courts, but they are not unlimited in jurisdiction, so they are limited to what is set out in statute.
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However they can bring in other matters by accrued jurisdiction, that is, a matter which is related to another matter that they have jurisdiction over, but itself does not fall under any such jurisdiction. Phillip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981)
Territorial Venue/Forum
Since 1987 cross-vesting rules have applied that have meant that:
corresponding laws of each State and Territory likewise vested that State’s courts’ jurisdiction in the courts of every other State and Territory (‘horizontal’ crossvesting);
it became a matter of the court’s discretion, rather than of binding legal rules, as to whether that court would accept or decline jurisdiction; and
judgements were largely immunised from subsequent challenge on the ground that they had been given by the ‘wrong court’.
For a time, vertical cross-vesting also existed, but it was found to be unconstitutional.
Re Wakim; Ex Parte McNally (1999)
State courts retain the discretion whether to transfer matters among each other. There are no hard and fast rules for this, it is a matter of the interests of justice, and the more appropriate forum. s5(2)(b) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)
However, 9 rough, nonbinding, non-endorsed (but not outright rejected) guidelines have been developed:
Personal circumstances of the plaintiff – Age, health, etc.
Plaintiff had regularly invoked the first-choice tribunal’s jurisdiction – A choice between an appropriate forum, and a more appropriate forum. But this has been dismissed as not relevant by the high court.
Delay by defendants in seeking removal to second tribunal – The defendant should apply to have the case moved ASAP, and not doing so may appear as if it is a delay tactic more then a true concern.
First forum’s special expertise in those matters
The place where the wrongs occurred (lex loci delicti)
Comparative advantage of a faster hearing
– Which forum would be able to provide a faster hearing on the matter?
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Comparative savings of costs
Comparative advantages in taking evidence
– Some forums have special powers in taking evidence or certain types, which may be important to the case at hand.
If possible, all else being equal, deter forum-shopping –
Don’t allow the parties to choose their forum based on perceived notions of that forum, like the outcomes or awards they give.
Also, remain weary of laws that are extra-territorial in nature, state or territory governments cannot pass laws that are not connected to their territory, though the connection may be remote. Union Steamship Co v King (1998)
Originating Process
Once the correct forum and venue has been decided, the plaintiff can commence it’s action. This is normally done by lodging a document with the court.
Some jurisdictions have only one type of form (SA, Federal Court, ACT) or two types
(NSW, QLD, Vic, NT).
Serving the Originating Process
As a matter of procedural justice, the defendant must be ‘served with’ (ie, given a copy of) the originating process, so that the defendant can know that he/she is being sued, when the court hearing(s) will take place, the grounds on which he/she is being sued, and so on. This must be served to the defendant themselves, though subsequent documents can go to the lawyers representing the defendant.
However, a lawyer may be able to accept service if they have agreed to accept service for their client on that case. Australian Securities Commission v Skase (1993)
The common law holds that ‘service defines jurisdiction’ – ie, the fact that the defendant has been served is necessary, but also sufficient to give the court jurisdiction. This applies even if the person served is transient (eg, vacationing), although the court may decline
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Evidence & Civil Procedure Notes – S2/2005 55/82 jurisdiction in such cases. So a defendant can’t simply ignore the summons to avoid court hearing the matter.
The Court will not act until the plaintiff has either successfully served the defendant, or has exhausted all reasonable avenues of doing so.
The common-law had a strict rule: the plaintiff (or another process-server acting for the plaintiff) had to (a) physically touch the defendant (b) leave the document with the defendant, and (c) explain to the defendant what the document was. This ensured the plaintiff was in close proximity to the defendant, and that there were no misunderstandings about the nature of the papers left.
At common law, a defendant who made an unconditional appearance in court was deemed to thereby waive any procedural objections as to process, service, etc. At the same time, a defendant was allowed to enter a conditional appearance in court, at which he/she is permitted to argue ‘I have not been properly served’.
The various Supreme Court Rules are slightly more lenient now. The server must still explain what the document is, and must (in the usual wording) ‘leave the document with’ the defendant. On the other hand, the defendant can’t evade the courts’ jurisdiction by running away from, or ignoring, the server.
In both common law and statute, the courts have accepted that leaving the documents with some servant or agent of the defendant may suffice. Particularly, this works for the
Director of the DPP, whereas you can leave the documents with his/her secretary.
Ditford v Temby
Substituted service is allowed if (a) it is likely to bring the document to the defendant’s attention, and (b) ordinary personal service is impracticable (which in turn depends on urgency). Service in accordance with the substituted service order will be deemed sufficient.
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Orders to Preserve the Litigation’s Subject Matter
These orders can be granted ex parte , that is, on the application of one side only, without the other party having to be present. This is because speed is of the essence, and if the other party were aware of the application, it might act even more speedily to hide, destroy or compromise the evidence or the potential winnings.
Anton Piller Orders
These orders are designed to prevent a defendant hiding, destroying or tampering with evidence.
They allow, in effect, ‘surprise raids’ by the plaintiff to catch the defendant off-guard.
Anton Piller KG v Manufacturing Process Ltd [1976]
A defendant who refuses to ‘voluntarily’ let the plaintiff enter and inspect is liable to (a) contempt of court, and (b) adverse inferences at trial (‘what did the defendant have to hide?’).
An appellant who does not comply with the instructions in a Anton Piller Order is also liable for contempt of court. Long v Specifier Publications Pty Ltd (1998)
Mareva Orders
These orders restrict how the defendant may deal with its assets. They forbid any suspicious transactions that appear to be intended to ‘artificially’ squander those assets, so as to cheat a victorious plaintiff of his/her rightful judgement.
Mareva Compania Naviera SA v International Bulk Carriers Sa [1975]
They are not supposed to stop the defendant from conducting ordinary business operations, or living an ordinary life, while the litigation is pending. However, it can be difficult for courts to detect whether a particular disposition of property had an innocuous motive or was a device to try to get around a Mareva injunction.
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For example, in 1994, a US federal court granted a Mareva injunction restraining ousted
Philippines dictator Ferdinand Marcos and his wife Imelda from transferring real estate they owned in New York, until the claims of the new Philippine government to those properties could be properly adjudicated.
In Re Estate of Ferdinand Marcos, Human Rights Litigation (1994) (USA)
A mareva order may be used against a 3 rd party if it has (or will have) power over assets/money that may be awarded to the plaintiff if it succeeds, and some enforceable process exists that the money/assets may be retrievable from the third party if the appellant succeeds (eg. Through bankruptcy, winding up of a company).
Cardile v LED Builders Pty Ltd (1999)
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Topic 10
– Parties and Causes of Action, Estoppel,
Joinder, Counter-Claims
Parties to the Proceedings and Representation
A court’s judgement is binding only on named parties, not on the world at large. (When the interests of the public at large are represented in litigation, as plaintiff or defendant, it is usually by the Attorney-General representing the Government, acting as a normal party.) In some exceptional cases, when the existence but not the identity of an identifiable defendant is known, courts (especially in the USA, in customs cases) will employ the useful legal fiction of an action in rem, ie, against the object in dispute: hence such quaint case names as US v 12,200-Foot Reels of Film, 413 US 123 (1973) and US v
One White Truck (1925) 4 F (2d) 413. In tort cases, where someone is injured or killed by person(s) unknown, the government’s office of Nominal Defendant serves to put the counter-argument to the plaintiff’s case. However, even in these cases, there is still meant to be a definite individual (or small set of individuals) who are the defendant, even if their actual identity is left as ‘name: blank (TBA later)’, in effect.
Of course, in practice most parties will be represented by lawyers, unless the matter involves a very small sum of money; or one party is too poor to afford his/her own lawyer but not poor enough to qualify for Legal Aid; or if one party insists on representing him/herself.
Multiple Causes of Action
The basic approach in all jurisdictions is to one, allow joinder of more then one cause of action at the plaintiff’s choice, and two, to provide that the court has a discretion to order separate trials on the ground of convenience either to itself or one or other parties.
In NSW and WA there is a general rule that causes of action cannot be joined unless plaintiff and defendant are suing, and being sued, in the same capacity. The exceptions to
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Evidence & Civil Procedure Notes – S2/2005 59/82 this rule are if a party is allowed to act as a representative of a deceased’s estate and suing in that capacity, and second, the court may grant leave to waive this rule. TB p98
Mistakes and Amendments
Courts have, and use, power to let the party amend and correct a pleading, especially if no fraud is involved and the party can show that extra damages, or an adjournment would adequately compensate the opposing side for any disadvantage caused to them as a result.
The purpose of this dispensing power is not to ‘discipline’ or ‘punish’ parties for the errors – even the carelessness – of their lawyers, but to do substantial justice: a party who has a good substantial claim should not forfeit it just because its lawyer makes a procedural misstep.
Traditionally, the courts distinguished between minor ‘irregularities’ and major ‘nullities’ in a pleading, and held that their power could only ‘cure’ the first type. ‘Irregularities’ typically included ‘mere misnomers’, misdescriptions, and clerical errors; but beyond that, the dividing line was not clear.
A common error arises when the ‘wrong party’ is suing or being sued – ie, when there is a mistake in the party’s name, or when he/she is identified in the wrong role or capacity.
For instance, a title of a person may be passed on to someone else when they retire, so suing the title would mean suing the wrong person. Even if that title is a statutory title
(like that of Archbishop), the liability does not carry over to the new title holder.
Archbishop of Perth v ‘AA’ to ‘JC’ Inclusive
(1995)
However statutory amendments (in at least NSW, Victoria and New Zealand) have abolished the position that mistakes in naming parties terminates the entire action.
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Res Judicata and Issue Estoppel
Res judicata (or cause of action estoppel ) causes the very right or cause of action claimed to ‘pass into’ the judgement given, so that it is subsumed and no longer has an independent existence, and cannot be sued upon in any subsequent proceeding.
Issue estoppel , bars a party from alleging or denying – in a later proceeding between the same parties
– any state of facts or proposition of law that was, as a matter of necessity, determined by a prior judgement or order in an earlier proceeding between those parties.
Blair v Curran (1939)
The purpose of these two types of estoppel is to prevent the same issue being tried again, allowing the loosing party to try its luck with a new judge.
Issue estoppel also prevents a party from raising any contentions (state of facts or proposition of law) that could have been raised in an earlier proceeding.
Port of Melbourne Authority v Anshun Pty (1981)
This does not apply if it was reasonable, in all the circumstances, for the party not to have raised the matter in the earlier proceeding.
Paliflex Pty Ltd & Anor v Chief Commissioner of State Revenue [2004]
For example, if the matter was then statute-barred. Gibbs v Kinna (1999)
In determining whether or not either of these estoppels apply, the court will take into account:
a party should not be able to improve its position by bringing separate actions
Trawl Industries of Australia Pty Ltd (In Liquidation) v Effem Foods Pty Ltd (1992)
so closely connected with the subject matter of the action that it was to be expected that the owner would raise it as a defence
risk of two or more inconsistent judgements from different courts is sufficient, but not necessary, to bar a later claim.
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In NSW and WA, an action is usually deemed ‘already litigated’ only if the plaintiff is suing, and the defendant is being sued in the same capacity as in the previous proceedings.
Joinder of Causes of Action and of Parties
The law has long allowed two or more legal persons with multiple, but sufficiently similar, causes of action to be grouped together and treated, for convenience, as one single party. At common-law, this was termed ‘joinder’ if they were grouped before the originating process had issued, and ‘addition’ if they were grouped afterwards. Joinder was easy to obtain, but addition was harder.
(1) In any originating process, the plaintiff may claim relief against the defendant in respect of more than one cause of action in any of the following circumstances:
(a) if the plaintiff sues in the same capacity, and claims the defendant to be liable in the same capacity, in respect of each cause of action,
(b) if the plaintiff sues:
(i) in his or her capacity as executor of the will of a deceased person, or administrator of the estate of a deceased person, in respect of one or more of the causes of action, and
(ii) in his or her personal capacity, but with reference to the estate of the same deceased person, in respect of the remaining causes of action,
(c) if the plaintiff claims the defendant to be liable:
(i) in his or her capacity as executor of the will of a deceased person, or administrator of the estate of a deceased person, in respect of one or more of the causes of action, and
(ii) in his or her personal capacity, and in relation to the estate of the same deceased person, in respect of the remaining causes of action,
(d) if the court grants leave for all of the causes of action to be dealt with in the same proceedings.
(2) Leave under subrule (1) may be granted before or after the originating process is filed.
UCPR Regulation 6.18
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The court has a discretion to balance a number of factors, for example, do the parties’ claims arise out of substantially the same facts? Would joinder let the same party use up more than its fair share of court time? Was it ‘unreasonable’ not to litigate the relevant issues in the same case the first time? Should the court grant parties leave to be represented by separate counsel? At what date is a newly-added party deemed to have become part of the case? Bendir v Anson
Birtles v Commonwealth
Payne v Young
The same conditions apply if the joinder is agreed upon by the parties, or if the court has to force the joinder. The court still retains the discretion to refuse a right of joinder however. UCPR Regulation 6.20
A Common Question of Law or Fact
The test for allowing joinder/addition of parties is usually whether those parties’ claims share some ‘common question of law or fact’ and ‘arise from the same transaction(s)’. It is not enough merely that the parties share a ‘common enemy’:
TB p107
(1) Two or more persons may be joined as plaintiffs or defendants in any originating process if:
(a) separate proceedings by or against each of them would give rise to a common question of law or fact, and
(b) all rights of relief claimed in the originating process are in respect of, or arise out of, the same transaction or series of transactions, or if the court gives leave for them to be joined.
(2) Leave under subrule (1) may be granted before or after the originating process is filed.
UCPR Regulation 6.19
Some examples of this in practice are:
In Bendir v Anson (pp 107-08), where the defendant’s building blocked the light to the two plaintiffs’ non-adjacent buildings, it was held that their complaints had
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In Payne v Young (pp 109-10), six WA abattoirs challenged particular inspection fees as unconstitutional excises. But because each owner paid a different fee scale, the court deemed their payments six different ‘transactions’, even though they were challenging the same Regulation.
In Marino v Esanda (p 111), joinder was denied because the plaintiffs were seeking relief on separate consumer-credit contracts, even though these were a standard series issued by the same lender.
Note the contrast in Bishop v Bridgelands Securities (pp 111, 119-20), where various investors sued a dealer for shonky advice. Although they lacked sufficient common interest for joinder by right , the judge still allowed joinder at the court’s discretion .
Costs with Multiple Parties
Cases with multiple parties raise the question of how to apportion costs if one defendant wins but the other(s) lose. The courts have devised two types of orders to meet this common problem:
Bullock orders require the plaintiff to pay the winning defendant’s costs, and in turn the losing defendant must pay the plaintiff’s costs, the plaintiff is allowed to include these payments in its overall costs recoverable from the unsuccessful defendant.
Bullock v London General Omnibus Co [1907]
Sanderson orders compel an unsuccessful defendant to pay the successful defendant’s costs directly, bypassing the plaintiff
Sanderson v Blythe Theatre Company [1903]
Bullock orders are preferred when a Sanderson order would make the other defendants to poor.
However, the Sanderson order should be viewed as the more ‘modern form of order’, and thus should probably be used in the stead of a Bullock order.
Walker v Corporation of the City of Adelaide [2004] per Perry J
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However, such orders can be vacated on appeal if the trial court’s discretion miscarried in giving one of these orders (for example, if the party’s conduct did not influence others to commence or continue the litigation). Tyco v Optus [2004]
Cross Claims
It often occurs that, just as the plaintiff is seeking to recover moneys from the defendant, so to the defendant is claiming moneys from the plaintiff. Such cases are an obvious candidate to be consolidated into one single action, since they involve the same parties and (usually) the same transactions. Traditionally, three devices were available to accomplish this consolidation:
1.
Set-off is purely ‘defensive’: all it does is reduce the amount the plaintiff can win from the defendant (ie, the plaintiff’s net ‘balance’ cannot fall below zero dollars).
2.
Counterclaims allow the defendant to recover moneys back from the plaintiff.
There are two awards, one for the plaintiff and one for the defendant, and the larger is reduced by the amount of the smaller. Counterclaims are usually allowed only in cases presenting a ‘common question/same transaction’ (the same criterion as for joinder/addition of parties).
3.
The plaintiff may seek to issue a third party or contribution notice , to someone other than the defendant. If allowed, such a notice means the third party will be bound by judgement: thus, it is only allowed where the issues between the plaintiff and the third party are closely related to those between the plaintiff and the defendant. If the notice is allowed, the third party can in turn issue a ‘fourth party’ notice, and so on.
Summary
The courts consider a number of factors when deciding whether to allow joinder, counterclaims, set-offs, cross-claims and third party contribution notices
Australian Tape Manufacturers Association Ltd v Commonwealth (1993)
For example:
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Joinder by right is granted or withheld according to the principle that ‘[a]n order which directly affects a third person’s rights against, or liabilities to, a party should not be made unless that person is also joined as a party’.
News Ltd v Australian Rugby Football League Ltd
TB pp 115-18
Joinder by leave remains at the court’s discretion:
Bishop v Bridgelands Securities
(pp 111, 119-20): note the criteria listed. For example, joinder should be allowed if otherwise the defendant might be unfairly subjected to huge number of factual claims.
Cheque One
TB pp 120-22
The court must take account of different ‘permutations’ as to which party can sue which others – eg, if P1 can sue D1 and D2, but P2 can only sue D2 and D3, while P3 can sue only D1, and so on – and also what other alternatives are open to the plaintiffs.
Newman v Hold Pty
TB pp 123-25
Representative Proceedings
Similar to, but distinct from, joinder is a representative action, where a single party runs the case, as a representative of other parties in a named list. These others do not directly control the litigation, but they benefit from, and are bound by, the result.
The Rules in various Australian jurisdictions now authorize representative actions for
(usually) ‘numerous’ or ‘seven or more’ parties, who have common legal interests. The conditions for this type of pseudo-joinder is the same as that for a joinder, that is a common question of law or fact, or a common transaction, or judicial discretion. The same examples above also apply.
Australian lawyers have customarily distinguished representative actions from the
‘class actions’ so famous (or notorious) in the USA. However, the Federal Court (since 1992), and Victoria (since 1986), have allowed
‘group proceedings’
, which are even more
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Evidence & Civil Procedure Notes – S2/2005 66/82 open-ended – ie, the list of litigants can be expanded to include even persons whose causes of action arose after the litigation began (p 130). These are commonly referred to in the media (even by legally literate reporters) as ‘class actions’.12 Arguably, this erases any real differences remaining from the US model. Group proceedings are supposed to be allowed only where each plaintiff has a claim against each defendant: Philip Morris v
Nixon (pp 139-41), although the courts are not always strict on this point: Bray v
Hoffman-La Roche (pp 142-45). Plaintiffs may opt out before a deadline set by the court
( Federal Court of Australia Act 1976 , s 33J(2)).
Bright v FemCare (pp 133-37) lays down the factors for Australian courts to consider before allowing a grouped proceeding in the Federal Court. The ‘common’ issue must also be ‘substantial’:
Wong v Silkfield (p 137-39). Attempted representative actions often fail because the pleadings are inadequate to cover the disparate individual circumstances:
Philip Morris v Nixon (pp 139-41). Members of the represented class are usually – but not always – immune from any order to pay costs: Bray v Hoffman-La Roche (p 145).
As noted, courts also have the discretion to hear an interested person or organization as an amicus curiæ (‘friend of the court’). An amicus is not a party, nor asserting its own interests. This means an amicus has no control over the proceedings: unlike a party its role is merely to ‘assist the court’ by providing extra information and perspectives that might otherwise be overlooked (p 151).
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Topic 11
– Pleadings and Admissions
Pleadings
Pleadings are formal documents, exchanged by the parties, setting out their claims/defences with supporting facts. In an adversarial system, parties use pleadings to define the issues – to ‘whittle down’ what is disputed, so that the judge can focus on deciding only the matters that are relevant and controverted between them. TB p152
The Rules specify a set order, with distinct terminology, for this ‘ritual combat’:
1.
The plaintiff sends the defendant the plaintiff’s statement of claim
2.
The defendant sends the plaintiff the defendant’s defence (which may include a counter-claim)
3.
The plaintiff sends the defendant the plaintiff’s reply (which must include a defence to any counter-claims)
(These steps are taken by parties by right. The steps after this point require the court’s leave)
4.
The defendant sends the plaintiff the defendant’s rejoinder
5.
The plaintiff sends the defendant the plaintiff’s surrejoinder
6.
The defendant sends the plaintiff the defendant’s rebutter
7.
The plaintiff sends the defendant the plaintiff’s surrebutter
The defendant is deemed to admit the plaintiff’s statement of claim if the defendant doesn’t specifically deny it – whereas the plaintiff is deemed to deny the defendant’s defence if the plaintiff doesn’t specifically admit it.
A failure to deliver a reply or subsequent pleading is deemed to be a denial of the last, unanswered, pleading. TB p152
Pleadings must include not only the bare claim (that is, the cause of action) that is being made, but also the facts supporting that claim.
Truth About Motorways v Macquarie Infrastructure Investment
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The pleading must not also be to vague as to facts or law.
Courts take a lenient view on inaccurate or exaggerated pleadings, they are not gospel truth. The plaintiff will not be liable for false representation just because the pleadings were not entirely correct. Banque Commerciale SA (In Liq) v Ankil Holdings
If a party is not sufficiently clear on a matter in a pleading, (for example, the defendant does not outright deny the plaintiffs claim, but rather ‘does not admit’) the court will order that the party provides further particulars on what is meant, so as to remove any vague or surprise elements in a pleading. Fieldturf v Balsam Pacific
Pleading may also contain arguments in the alternative (even if they are mutually exclusive!), although the court will only allow those with a real hope of success. If a part and it’s lawyer takes alternative arguments to the extreme, they could end up censured.
Particulars and Material Facts
The law of civil procedure distinguishes ‘material facts’ from ‘evidence’ on the one hand, and ‘conclusions’ on the other. Pleadings must plead ‘material facts’ only. They do not
(yet) need to include the ‘evidence’ proper to establish such facts.
At the same time, it is not enough that they simply jump to ‘conclusions’ (whether factual or legal) without any stating supporting facts. Charlie Carter Pty Ltd v AEA
Some jurisdictions still distinguish ‘material facts’ from ‘particulars’, while others have merged the two. What matters is that both are a stage separate from, and subsequent to, the delivery of pleadings. A court has reserve power to exclude any evidence later adduced at trial that was not foreshadowed by the pleadings and particulars. TB p173
How far does a general pleading encompass a specific particular? This depends on the circumstances:
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A defendant pleading that a skating rink was ‘reasonably safe’ was held not specific enough to foreshadow the defendant later citing, at trial, a ‘skate at your own risk’ sign as evidence of this safety: Bright v Sampson & Duncan
It was held not enough to plead ‘not guilty’ by referring generally to a particular
Act, which had 160 sections – ‘under the plea, it might be anything’ in that statute. Pilato v Metropolitan WSD Board
Evidence eventually tendered at trial may depart from the details of the particulars , but not from the main outlines of the pleadings. Dare v Pulham (1982)
Amending Particulars
To avoid ‘trial by surprise’, and to define the ‘real issues’, the court may grant a party leave to amend its particulars. If requested, such leave is usually granted, unless it would cause the other side some prejudice that an adjournment and/or award of costs could not cure.
The judge is allowed to take into account the fact that, if the court refuses leave to amend, the party requesting leave could simply recommence proceedings with a new trial; therefore, the court may and should avoid such a rigmarole. Wendt v Northwood
This has gone as far as to allow a trail judge to suggest, late in proceedings, that one side raise a favourable implied term in a contract. Etna v Arif
As such an amendment may actually prolong the litigation more then is desired, the court may refuse leave to amend. The court should take account of ‘strain… on litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes…’.
Ketteman v Hansel Properties
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In taking account of how long an adjournment for amending particulars (or any adjournment for that matter) any previous reasons for parties agreeing to, or disagreeing to a previous adjournments are not relevant. s66 Civil Procedure Act 2005 (NSW)
Penalties for Breach of the Rules
A party who refuses or neglects to follow the Rules makes itself liable to one or several of the following sanctions, which the court may impose:
1.
The party may be charged with perjury (for false affidavits)
2.
The party may be held to be in contempt of court.
3.
Evidence presented at trial may be excluded as inadmissible. If it departs materially from the pleadings (as amended, if leave to amend was granted), unless the opposing party chose to ignore (ie, waive) the departure. A judge should not give judgment in a party’s favour on a basis not properly pleaded by that party.
Commonwealth Securities
But if the departure is only minor, not material, the court will allow leave to amend the pleadings. Either way, the evidence and the pleadings must be substantially congruent in the end. In Leotta v Public Transport Commission , the court granted leave to amend, holding that the departure was only minor since the amended pleadings did not ‘raise a fresh issue based on a different duty of care’, nor entitle that party to obtain ‘judgement on an unpleaded cause of action’. As mentioned above, evidence may depart from the details of the particulars , but not from the main outlines of the pleadings (as amended), unless (again) the parties choose to ignore the departure: Dare v Pulham (p 181).
4.
The court may give judgement immediately for the opposing side.
5.
The court may grant an adjournment.
6.
The court may order a new trial. This ‘nuclear option’ is only used when necessary to avoid some substantial injustice. This requires, inter alia , satisfying the court that the complaining party would have conducted the trial differently.
NSW v Thomas
In deciding whether to use one or some of these sanctions, and if so which one(s), the judge faces the problem of balancing two goals: (1) ensuring closure, without
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Ideally, the judge should ‘not… punish [parties] for mistakes they make in the conduct of their case by deciding otherwise than in according to their rights’. Cropper v Smith
See also case management, appellate courts are traditionally reluctant to interfere with a trial judge’s discretion; but here, the High Court held, Kiefel J could and should have ordered any extra pre-trial procedures to be completed in time to enable the trial to commence, as planned, on its original set date. Queensland v JL holdings (1997) c/f:
In Custom Credit v Dallas DC (p 189), amendment was allowed . The amendment merely corrected the time-line for certain alleged events (so that the pleadings would match evidence already given in a trial already underway), and did not change any of the causes of action.
But in Hall Chadwick v Axiom (p 191), amendment was refused . The judge, after noting that ‘[t]he duty of counsel is to ensure that only genuine points of defence are raised’, added rather caustically that ‘I might be forgiven for gaining the impression that counsel now conducting the case is looking closely at the case for the first time and that it has occurred to him that there may be a number of possible defences worth considering’ (pp 191-92, Pullin J).
Challenging Pleadings
If a pleading is defective, the opposing party can challenge it by requesting the court to strike out the whole, or specified parts, of that pleading. Striking out is a remedy of last resort only, and judges prefer to let the party amend or replace the pleading, as long as this can correct the defect.
A pleading may be defective for various reasons: if, for example, it ‘discloses no reasonable cause of action’, it ‘causes prejudice, embarrassment or delay’, is ‘frivolous or vexatious’, or in some other way it constitutes an ‘abuse of process’.
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‘No reasonable cause of action disclosed’ can include a case where a once-live cause of action has now become statute-barred, so that litigation on it is no longer possible, even
‘assuming the facts to be at their most favourable for the plaintiffs’.
Hillebrand v Penrith Council
‘Reasonable’ means that the action would have some, prima facie chance of success if the court looked only at the claimant’s arguments stated in the pleading (without considering the opposing side’s counter-arguments). But a pleading will fall below even this minimal threshold if, for example, it contains, for example, several glaring instances where material facts weren’t pleaded.
Nation Mutial PS v Citibank
Formal Admissions: ‘Notices to Admit’
To move proceedings along, and remove any incentive to gain an advantage in litigation from obstruction, all jurisdictions allow one party to serve the other with a ‘notice to admit’
. A failure or neglect to meet such a notice with a timely and specific denial is deemed to be an admission of the contents of the notice.
However, such admissions may later be withdrawn if the court grants leave.
Judges have stated that they will not ‘act indulgently’, nor be ‘unduly yielding’, in allowing parties to lightly withdraw their (deemed) admissions. For example, permission to withdraw was refused:
when the only ground for seeking permission was that the party was now represented by different (and more alert) solicitors. Rigato Farms v Ridolfi
when an experienced businessman, acting with legal advice, wanted to withdraw an admission three days into the hearing, giving no adequate explanation.
Jeans v CBA
The court may give a judgement based on admissions alone, provided that doing so does not contravene common sense, nor condone collusion.
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Topic 12
– Summary Disposition, Discovery and
Gathering Evidence
Summary Judgment
The plaintiff may ask the court to dismiss the defendant’s claim, and likewise the defendant may ask the court to dismiss the plaintiff’s claim, on the ground that it has no reasonable hope of success.
The power is to be used sparingly – only if ‘there is no real question to be tried’.
Fancourt v Merchantile Credits (1983)
Gray v Morris (2004)
Essentially, the court needs to see if there is a real, as opposed to fanciful, prospect of success. It is important that everyone (especially the party in question) learns promptly that it cannot win. Smain v Hillman
A claim or defence that has ‘no real prospect of succeeding’ is one which is ‘hopeless’ or one which is ‘bound to fail’. Gray v Morris (2004)
The court should not award a summary judgement based on the character of a party (even if that character is clearly devious or a rogue). Pico Holdings Inc v Voss (2002)
If a transaction or goings on between parties has been somewhat bizarre, then it should get a full trial (due to the bizarre nature of the transaction, a summary judgement would not suit). Pico Holdings Inc v Voss (2002)
Default Judgements
In extreme cases, the court will give a default judgement in favour of one party so as to prevent the other party gaining some advantage simply by avoiding a court appearance or otherwise ignoring time limits. If the defendant does not turn up on the appointed day (or obtain an adjournment), the plaintiff can then either:
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if the plaintiff claimed a liquidated (specific monetary or property) amount – seek a final default judgement (this can be had through an administrative process, which does not require a judge); or
if the plaintiff claimed an unliquidated amount – seek an interlocutory default judgement for damages to be assessed later: once they are assessed, it becomes a final judgement.
However, even if the court does grant a default judgement, the defendant can easily get it set aside, either by leave or by right:
To obtain leave for a fresh trial, the threshold is low. The defendant needs only a
‘real’ (even if weak) defence. For example, in Cook v DA Manufacturing , a fresh trial was granted – even though the plaintiff argued that memories were now fading, and evidence disappearing, in the interim – because the defendant’s solicitors had not told the defendant about the default judgement.
Moreover, a default judgement will be set aside as of right (ie, regardless of the defence case’s merits) if it was obtained irregularly, ie, not in (strict, or at least substantial) compliance with the law, the triviality of the defendant’s complaint
(for example, ‘sorry, but the plaintiff did not specify that it was suing us in our capacity as trustees
’) may be ignored by the courts, because the default judgement was obtained in a still substantially regular manner. Westpac v Garrett
Other Types of Summary Disposition
Dismissal for want of Prosecution
The courts can dismiss a plaintiff’s claim for want of prosecution where there has been intentional delay, or where there has been inordinate and inexcusable delay, the limitation period has expired and the delay creates a substantial risk that it is not possible for the defendant to have a fair trail or is likely to cause serious prejudice to the defendant.
Masel v Transport Insurance Company [1995]
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Dismissal for want of prosecution is not recognized in the Federal Court, the main reason being that case management has made it essentially irrelevant.
Lenijamar Pty Ltd v AGC (Advances) Ltd (1990)
Discovery
There are two kinds of discovery:
General discovery, which is very broad
Specific discover, which is meant to focus on particular documents and information
A traditional discovery notice requires its recipient to tell their opponent what relevant documents they have.
General discovery presents the risk of ‘fishing expeditions’ (ie, trawling the other side’s papers to look for causes of actions you did not already know of or suspect), so the courts will normally only allow specific discovery.
The Federal Court (via Practice Note) has warned lawyers not to expect the Court to grant general discovery, and to request specific discovery only where no less-intrusive alternative is available. TB pp218-19
(Also, an order for discovery will not be made for the benefit of a defendant against a prosecutor in a criminal matter).
Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1994)
However, while general discovery is certainly a burden on the other party, a large number of requests for specific discovery may be no less so, meaning sometimes it’s a de facto general discovery.
MHG Plastic Industries Pty Ltd v Quality Assurance Services Pty Ltd [2004]
Notice to Produce
NSW also allows a party to ask the court for a ‘Notice to Produce,’ alongside the process for discovery.
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A Notice to Produce only binds parties (not outsiders) to the litigation, no leave of the
Court is required to obtain one, and such a Notice only works if you already know what
(types of) documents your opponent has.
A Notice to Produce allows a party to demand an unlimited number of specific nonprivileged documents that they already know of.
Limits on Discovery
Discovery is limited to documents which are relevant to the factual issues in dispute.
A relevant document is one that may fairly lead to a train of inquiry that could enable the party seeking the document to advance its own case, or to damage its opponent’s, which means it includes indirect relevance. Compagnie Financiere v Peruvian Guano
For example, in Microsoft v Adelong Electronics , the court held that a single proven copyright infringement was presumably not an isolated event, so it was reasonable for the plaintiff to hypothesise that other infringements had also occurred, and therefore to seek discovery of documents that might confirm or refute that suspicion.
However, there remains some limitations on the scope of ‘relevance’:
documents are not ‘relevant’ merely because they touch on a party’s credibility, unless that is a fact in issue (like in defamation)
the courts still watch out for parties ‘fishing,’ ie, making purely speculative claims just to see what incriminating secrets might be hidden in the opponent’s files.
WA Pines v Bannerman
In TPC v CC
, Lindgren J held that ‘discovery must not be used for the purpose of ascertaining whether a case exists, as distinct from… compelling the production of documents when there is already some evidence that a case exists’
As well as relevance, discovery is limited by it having to be necessary, and (in NSW only) require minimal intrusion.
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A request for a very large number of documents, for instance, is more likely to be refused, as it one that could reveal valuable commercial secrets.
Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996]
The various Rules require that a document is only subject to discovery if it is ‘in’ or
‘under’ the ‘possession,’ or ‘custody,’ or ‘control,’ or ‘power’ of a party. There is no duty to create new documents.
‘Possession’ means a lawful right to possess it
‘power’ means a unilateral, presently-enforceable right to inspect it (such as tax returns which the ATO has the only copy of) (see also Continuing Discovery below)
‘custody’ means corporeal (physical) possession, even if you have no legal right to possess it, or if you are bound by contract not to deal with the document
Roux v Australian Broadcasting Commission (1992)
If it is in your power to give the discovery, you must give it; if not, you must sh[o]w that you have done your best to procure the means of giving it. Taylor v Rundell (1841)
However, a company is not expected to have ‘power’ over documents in the possession of one of its wholly-owned subsidiaries, because of the ‘veil of incorporation’.
Taylor v Santos Ltd
What is a ‘Document’?
Discovery (or disclosure) allows access to ‘documents,’ rather than to ‘information’ as such. That is, the other party has no duty to take the effort to put the information it knows into the form of a document: its only duty is not to unreasonably withhold documents it has already created or acquired.
The Rules now make it clear that the term includes computer backups, emails, and other electronic means. This is given by most Acts Interpretation Acts (including in s25 of the
Cth form). However, this definition only covers statutes, not Rules of Court, though it is likely that courts will follow a similar line anyway.
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Non-privileged Confidential Information
Privileged here is the same as in evidence.
The parties may agree, or the Court may order, that certain information – information which, although not privileged, is nonetheless sensitive or confidential – will be subject to special restrictions. The party that wants to see this information, supposedly for the purposes of litigation, may be permitted to do so, but directed not to make any extraneous use of it.
Duty to Inquire, and Continuing Discovery
A party has a duty to conduct all reasonable searches and inquiries for documents that are within not only its immediate ‘possession’ but also its potential ‘power’ or ‘control’.
Unless the Rules say otherwise, a party has no continuing duty to disclose fresh documents if, and as soon as, they come to hand.
However, note two new developments:
In England, where the Rules were silent on the question, the court construed those
Rules to require continuing discovery of new documents the party created or obtained: Vernon v Bosley (No 2) [1997] 1 All ER 614. The court therefore held that a lawyer whose client refuses to disclose such documents then comes under a duty either to inform the opposing side or the judge, or else to withdraw from the case.
The Rules of the Federal Court (O 15, R 7A) and of the Victorian, Queensland,
WA and SA courts all require ongoing discovery. This applies even when the duty to keep your opponent updated might be ‘onerous’:
Trade Practices Commission v Santos Ltd (1993) 42 FCR 203.
Discovery against Non-parties
A party may seek discovery against a non-party to the litigation – someone who would not be bound by the judgement, or required to pay costs, but who nonetheless has a duty
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someone who is obviously not (or who is not obviously) the right defendant, but who can help you identify the right defendant
someone who is the right defendant, but against whom your cause of action is dubious (the courts, remember, are wary of parties ‘fishing’), or
a non-party, who has documents relevant to the matter.
However, discovery against non-parties is only allowed if you already have reasonable grounds to believe that a cause of action exists, and if ‘reasonable inquiries’ have failed to resolve the answer. FAI Home Security v Price
In Norwich Pharmacal , the plaintiff company wanted UK Customs officials to disclose who had imported certain patent-violating drugs. The Customs officers themselves had committed no crime or tort; they had only been doing their job collecting revenue.
However, the Court allowed discovery against them on the basis of necessity; even though innocent, they had become inextricably mixed up in someone else’s wrongdoing.
Subpoenas
A subpoena (from the Latin for ‘under penalty of…’) is a formal order issued by a court, at the request of one party, requiring a person to attend the court and provide either testimony as a witness ( subpoena ad testificandum ), or documents or other things as evidence ( subpoena duces tecum ).
Care should be taken in issuing subpoenas, as the should not be used to bypass the processes prescribed in this Court’s rules for obtaining discovery, to allow a subpoena to circumvent these rules would be an abuse of power. Pasini v Vanstone
Subpoenas, unlike discovery, are very particular to what is sought (be it person or documents).
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A court will set a subpoena aside as oppressive in certain circumstances.
For example, if the subpoena is so drafted that it would require its addressee to know the legal issues in the case; or if it is too vague about what it demands; or if it demands too many documents, becoming an abuse of power. Yunghanns v Condoora No 19
Interrogatories
Before trial, each party may put interrogatories – written questions, to be answered on oath (or affirmation) – to the other party. These answers are admissible as evidence, but are not binding (unlike formal admissions, which are), so the party can explain away these answer later.
The threshold for interrogatories is relevance, however, they are falling out of use, mostly because it is very easy for one party to produce a huge number of questions, much to the disadvantage of another party.
Medical Examinations
Because of the common law’s high regard for bodily integrity, the courts have normally lacked power to directly compel adults to undergo a medical examination: that is, it was not contempt to refuse such an examination.
The courts could however, use indirect means to encourage someone to submit
‘voluntarily’. For example, the court might treat a refusal to take a blood test as evidence of paternity: S v S (pp 266-67), or hold that such refusal allows an adverse inference to be drawn: G v H (p 267).
Even indirect means, however, cannot be used by the court on a party who has some valid reason for refusing: for example, if the examination would be conducted by a doctor of the opposite sex ( Starr v NCB , p 268), or would involve lengthy, uncomfortable or invasive procedures ( Stace v Commonwealth , p 268). In other words, the reason must be something other than simply that ‘you know or suspect that a medical examination will
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Inspecting and Testing Property
All jurisdiction allow for the inspection and testing of property.
In drawing the precise boundaries of the right to inspect and test property, judges have disagreed over such issues as: –
whether a party may inspect or test a non-party’s property;
whether a party may inspect or test property that is not the subject matter of the case; and
how far testing can go (if it threatens to damage, destroy or deface the property – eg, an autopsy).
Courts usually demand an undertaking that the requesting party will not (on pain of contempt) use the property for collateral purposes, other than the present litigation.
However, again, it is not clear how enforceable such undertakings will be in practice, given that once it is received in evidence, the material is on the public record.
Collateral use of Material
The law has long implied that any material obtained on discovery, interrogatories, subpoenas and property inspections be used only for the case at hand. Breaching this is contempt.
In Hamersley Iron v Lovell
, for example, a union’s industrial advocate publicised (in print and on the radio) the contents of an employer’s documents, which the advocate had gotten to see in the course of litigation over an industrial dispute (p 271). This implied undertaking ‘caps’ or limits the degree of intrusion that discovery, subpoenas, interrogatories, inspection and testing impose.
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Courts disagree over when this undertaking ‘expires’ and ceases to bind the party.
Springfield Nominees v Bridgelands Securities held that it expires when the documents are actually tendered and received as evidence – not merely when they are read out in open court (p 273). But other judgements disagree.
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