CIVIL PROCEDURE SEMINAR
ONE
LAURA MARIE CLARE
SEMESTER 2, 2011
17 OCTOBER 2011
BRIEF OVERVIEW

I covered most of the course up until pleadings in
the first few tutorials so I will only go through those
briefly now
RELEVANT LEGISLATION







Supreme Court (General Civil Procedure) Rules 2005
(Vic)
Supreme Court Act 1986 (Vic)
Federal Court Act 1976 (Cth)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic)
Constitution
Service and Execution of Process Act 1992 (Vic)
Limitation of Actions Act 1958 (Vic)
JURISDICTION

Jurisdiction
 Subject
matter/territorial
 Accrued jurisdiction (use this for the Fed Crt)
 Cross-vesting jurisdiction (invalid as far as it attempts to
confer state jurisdiction on the Fed Crt, Re Wakim)
 Transfer of proceedings (within Aust)
 Is
another court “more appropriate”
 Forum
non conveniens (international v Aust)
 Clearly
inappropriate forum
TRANSFER V FORUM NON CONVENIENS
TRANSFERRING PROCEEDINGS
International
Within Australia
From Melbourne to Another
Country
From England to Melbourne
See, s 5 of the Jurisdiction of
Courts (Cross-Vesting) Act
Forum Non Coveniens, consider
the Supreme Court (General Civil
Procedure) Rules 2005 (Vic) and
Voth & Spiliada
Forum Non Conveniens Spiliada factors - do not talk
about Australian law
go through the relevant
legislation --remember the
factors here are almos the same
as Spilada but were adopted
by BHP - reference BHP
with all of these GO TO THE
COURT THAT THE
PROCEEDING HAS ALREADY
BEEN LODGED IN - NOT THE
COURT YOU WANT IT MOVED
TO
INSTITUTING PROCEEDINGS

Letter of demand: plaintiff



Standing: Plaintiff
Capacity: both parties


2 letters – Demand & “without prejudice” offer
Relevant if you have a corporation/company/child/person suffering mental
incapacity. Must outline why you are able to sue (this should have been your
first two paragraphs in the statement of claim)
Originating process

Writ v Originating Motion



Writ is more common, this is Form 5A and must be accompanied by a special or
general indorsement. A special indorsement is the full statement of claim – this is more
common
See order 5 for more details
Note: a failure to comply with this is an irregularity – therefore – if you have a
question where there is a problem with the writ, this is not grounds to have the entire
action struck out
CAUSES OF ACTION AND LIMITATIONS OF ACTIONS


McHugh J in Brisbane South Regional Health
Authority v Taylor outlined the policy behind
limitations of actions
Contract – 6 years from time of breach even if
unaware (s 5(1)(a))
LIMITATIONS OF ACTIONS

Torts
General – 6 years (s 5(1)(a))
 Personal injury

Defined in s 3 (broad) Any disease and any impairment of a
person’s physical or mental condition
 S 27D – 3 years from date on which the cause of action is
discoverable by P or 12 years from the date the act/omission
alleged to have resulted in the death or personal injury –
whichever elapses first


S27F – defines discoverable – P ought to have known all of the
facts that the
 Death/personal injury has occurred, death/personal injury was
caused by D and that the personal injury was sufficiently serious
to justify bringing the action
LIMITATIONS OF ACTIONS


BUT – s 27D does not apply to dust
related/tobacco/certain state comp schemes in s
27B. Need to use s 5(1A) if this is the case
s 5(1A)
3
years from the day on which the person first knows
that
S
5(1A)(1)(a) they have suffered personal injury AND
 S 5(1A)(1)(b) those personal injuries were caused by the
act/omission of someone
This section is interpreted broadly, Stingel v Clark – also been
extended to cover all intentional torts
LIMITATIONS OF ACTIONS

Can extend the limitation period by considering the
factors in s 27L or 23A.
If you used s 27D – use s 27L (and s 23M)
If you used s 5(1A) – use s 23A

THESE TESTS ARE EXACTLY THE SAME


JOINDER/ADDING/AMENDMENT






Amendment = order 36
Joinder = order 9
Adding = order 9
Consolidation = order 9
JOINDER = BEFORE PROCEEDINGS COMMENCED
ADDING = AFTER PROCEEDINGS COMMENCED
PERMISSIVE JOINDER

9.02. Permissive joinder of parties Two or more
persons may be joined as plaintiffs or defendants in
any proceeding- (a) where- (i) if separate
proceedings were brought by or against each of
them, some common question of law or fact would
arise in all the proceedings; and (ii) all rights to
relief claimed in the proceeding (whether they are
joint, several or alternative) are in respect of or
arise out of the same transaction or series of
transactions;
DISCRETIONARY JOINDER


9.02 (b) where the Court, before or after the
joinder, gives leave to do so.
Usually used when you have satisfied one limb
under 9.02(a)
COMPULSORY JOINDER

9.03. Joinder of necessary parties (1) Except by order of the Court
or as provided by or under any Act, where the plaintiff claims any
relief to which any other person is entitled jointly with the plaintiff(a) all persons so entitled shall be parties to the proceeding; and (b)
any person who does not consent to being joined as a plaintiff shall
be made a defendant. (2) Where the plaintiff claims relief against
a defendant who is liable jointly with some other person and also
liable severally, that other person need not be made a defendant to
the proceeding. (3) Where persons are liable jointly, but not
severally, under a contract, and the plaintiff in respect of that
contract claims against some but not all of those persons, the Court
may stay the proceeding until the other persons so liable are added
as defendants. (4) The Court may make an order under paragraph
(1) before or after the non-joinder.
JOINDER INCONVENIENT

9.04. Joinder inconvenient Notwithstanding Rules 9.01
and 9.02, where any joinder of claims or of parties
may embarrass or delay the trial of the proceeding or
cause prejudice to any party or is otherwise
inconvenient, the Court may order that- (a) there be
separate trials; (b) any claim be excluded; (c) any
party be compensated by an award of costs or
otherwise for being required to attend, or be relieved
from attending, any part of a trial in which that party
has no interest; (d) any person made a party cease to
be a party on condition that that party be bound by
the determination of the questions in the proceeding or
without any such condition.
ADDING



Adding uses exactly the same tests as joinder
9.06 (a) any person who is not a proper or necessary
party, whether or not that person was one originally,
cease to be a party;
9.06 (b) any of the following persons be added as a
party, namely- (i) a person who ought to have been
joined as a party or whose presence before the Court
is necessary to ensure that all questions in the
proceeding are effectually and completely determined
and adjudicated upon; or

Consider this rule & then consider 9.03
ADDING
•
9.06(b)(ii) a person between whom and any party to the
proceeding there may exist a question arising out of, or
relating to, or connected with, any claim in the proceeding
which it is just and convenient to determine as between
that person and that party as well as between the parties
to the proceeding;



Consider what this means for the other parties
Consider 9.02
Consider 9.04
JOINDER OF CLAIMS


Plaintiff can join any number of claims
Defendant can join by counterclaim or TP notice –
see O 10.
REPRESENTATIVE
PROCEEDINGS/CLASS ACTIONS



If Fed, start by considering jurisdiction
Opt out proceeding – consider the implications and
preliminary rules in s 33, namely s 33X(1)
Can we commence proceedings?


A representative proceeding may be commenced:


S 33C(2)
The action must be commenced via writ


S 33C(1)(a)-(c)
S 33H(1)(a)-(c)
Defining the class

Need to be able to identify who is in and out of the group
REPRESENTATIVE
PROCEEDINGS/CLASS ACTIONS


Must discontinue if it drops below 7, costs are
excessive, interests of justice require it, but cannot
settle without court approval
Costs – can be ordered against the representative
party or respondent but not against a group
member
SERVICE





Personal service – r 6.01
Ordinary service – r 6.07
Substituted service – r 6.10
Special parties (see notes)
Affidavit of service – r 6.17 (very important
document!)
SERVICE

Outside Australia
 Must
meet the nexus requirements, s 7.01
 Can be served according to the rules of the country it
will be served in

Outside Victoria
S
5 SEPA
APPEARANCE


This is how the defendant lets the court (and
plaintiff) know that they are aware of the
proceedings
Can be done in two ways
 Unconditional
(Form 8A)
 Conditional (Form 8B)
DISCOVERY



Very important If you’re going to write about
McCabe!
Notice for discovery, is it a document?
Affidavit of documents – Form 29B
 Schedule
1 = documents in possession that you have
 Part
1 – willing to show
 Part 2 – privileged (will not be shown)
 Schedule
2 = documents not in possession
DISCOVERY

When is something relevant to the proceeding?


When is something in possession/power/custody?




Compagnie Financiere et Commerciale de Pacifique v Peruvian Guano Co – if it
advances/damages/leads to a train of inquiry that might advance or damage the case
Possession = r 29.01(2) means the right to have it meaning the physical holding resulting
from the right to possession
custody means they have the right to ownership and power means an enforceable right to
obtain
possession or control of the document
Types of discovery





Restricted discovery
Confidential documents can only be seen by solicitors
Particular discovery
Further discovery
Supplementary discovery
DISCOVERY


Note the Crimes (Document Destruction) Act 2006
(Vic), s 254(1) and Evidence Document Unavailability
Act 2006 (Vic)
Can also have discovery to identify a defendant,
from a prospective defendant and from a nonparty
INTERROGATORIES


Serving interrogatories
Answering interrogatories (r 30.05)





Objections to answer (r 30.07)






State whether answering from knowledge/belief
Must make reasonable inquiries
Reasonable grounds for believing whether something is true
If no knowledge, must answer from belief
Doesn’t relate to a Q between the parties
Unclear/vague/too wide
Oppressive/abuse of process (can strike them out)
Requires them to express an opinion they are not qualified to give
Privilege
Default
NOTICES TO ADMIT




R 35.03
Notice for admission of facts
Notice for admission of documents
Cost consequences
SUBPOENA



Must be served personally
Could be used to summon documents or to summon
someone to come to court as a witness
All the relevant rules are in r 42.02
INTERLOCUTORY PROCEDURES &
SERVICE


Notices to admit/interrogatories etc can be served
using ordinary service because the D already knows
they are being sued
Process for starting interlocutory proceedings is
Order 46.
AFFIDAVIT




See O 43.
Must be in first person and confined to knowledge
that they have
Must be filed and served
Different from pleadings because you can’t
anticipate defences, name counsel and don’t need
to address all issues in contention
INJUNCTIONS

Order 38
 Mandatory/prohibitory/interim/ex
parte (same
meanings as you learn in equity)
 Must establish that there is a serious question to be
tried (prima facie case) AND that the balance of
convenience favours granting an interlocutory injunction
 P must give the usual undertaking as to damages
ANTON PILLER ORDERS





A.k.a search orders
Ex parte
Can only take specific things and you cannot keep it
– e.g., it allows you only to photocopy documents
See r 37B.02(1) = when the court can order a
search order
Must file an affidavit in support of the order
FREEZING ORDER



R 37A.02
To stop the D disposing of assets or making
themselves “judgment proof”
Must file an affidavit in support of a freezing order
as per r 37A.02(5).
 Must
include type of asset and why you think you need
this order
SECURITY FOR COSTS




O 62
D can apply to have P give security for costs where
there is a risk that D might not be able to recover
their costs if they are successful
Can be ordered in numerous circumstances (see
notes)
At r 62.04 – if P fails to give security when they are
ordered to, the trial will be dismissed
DIPOSITION WITHOUT TRIAL


Court has the power to do this! (See McCabe)
Setting aside an order for default judgment –


Summary disposition


Discuss how the defence would have been struck out (r 24.02(b)),
need a summons to have the matter heard and an affidavit to
provide the evidence needed for the order. Court then has wide
discretion to grant this and they would need to consider the
entirety of the problem (e.g., including prejudice/delay)
Default judgment, default on defence, default on counterclaim
Summary judgment

Summons supported by affidavit, defendant to show cause, D
doesn’t file an appearance, D has no defence, judgment on
counterclaim (e.g., P has no defence to whole or part of the
claim)
ABUSE OF PROCESS/VEXATIOUS


S 21 SCA – vexatious litigations
Abuse of process
DISMISSAL FOR WANT OF
PROSECUTION

If P doesn’t set a date for trial – there will be
dismissal for want of prosecution r 24.06(a)
SETTLEMENT




Formal settlement (order 26 and without prejudice)
Procedure for offers of compromise
Serving an offer
Cost consequences


Accept an offer r 26.03(7) (P entitled to costs on a party/party basis up
to the date of service)
P’s offer of compromise is rejected r 26.08(2)

If they don’t get a better offer



Death/bodily injury – indemnity basis (r 26.08(2)(a))
P gets costs up to including the day of the offer on party party and then
indemnity basis after that (b)
D’s offer of compromise is rejected r 26.08(3)(a)

If P doesn’t get a better offer but is successful, D pays parties costs on party
party basis up until the day it was served and then P pays D’s costs after that
on a party party basis
ABANDONMENT/TRIAL

See page 32-33 of my sketch notes
COSTS

Bases of taxation

Party/party costs r 63.29


Solicitor/client costs r 63.30


All costs reasonable incurred – can be awarded against a successful D on the grounds
they prolonged the trial or could have revealed to P a meritorious ground for refusing
their earlier claim (Verna)
Indemnity costs r 63.30.1


In order to go beyond this default position, must have some evidence of malicious or
unreasonable behaviour (Gunns, Bongiorno J)
All costs
Notes



Power and discretion of the court as to costs under s 24 SCR
Can make costs orders for particular parts of the trial (e.g., denying something
in a notice to admit that was proven true) r 63.04
Cost indemnity rule – absolute and unfettered discretion Byrns v Davey

Generally that an unsuccessful person recovers from a successful one
COSTS

Exceptions to the cost indemnity rule







Party wins in the wrong court
Party ultimately wins but loses on some issues
Public interest litigation
Costs in mega-litigation
Multiple party order
P succeeds on claim, D succeeds on counterclaim
Where claim succeeds against one D and fails against another


Sanderson order, bullock order
See also; Verna

P is expected to behave better because they have chosen to sue – D
is always the unwilling party
COSTS



Taxing – if parties cannot agree – goes to taxing
master r 63.38
Costs against lawyers – r 63.23
Costs for interlocutory proceedings
 Check
if the question says costs are being reserved
otherwise you should mention costs when you are
discussing a particular interlocutory proceeding
CIVIL PROCEDURE SEMINAR
TWO
Laura Marie Clare
Civil Procedure 2011 Semester 2
20 October 2011
Why Study Civil?

Well…what’s the use of knowing the law if you
don’t know how to bring it to court
Things to Keep in Mind

What is the main aim of civil procedure?
 Efficiency
– e.g. summary/default judgment –
remember “dismissal for want of prosecution”
Things to Keep in Mind


Who are we advising? – don’t get caught up – most
past exams ask you to advise the PLAINTIFF but….
Semester 1, 2010 – this exam looked at the
defendant’s point of view
Things to Keep in Mind

What are we up to?
 The
facts are always in chronological order! Gives you
a hint of what the examiner might be looking for (but
not always….)
 ALWAYS read the first line carefully – maybe make a
timeline

They will tell you if you are to assume something or not (e.g.
assume your answer to the question above was that H cannot
transfer proceedings)
What Topics Are Covered?











Jurisdiction
Transferring proceedings
Instituting proceedings
Capacity
Originating processes
Limitations of actions
Multiple parties & causes of
action
Representative proceedings
(class actions)
Service
Appearance
Pleadings










Discovery
Interrogatories
Notices to admit
Subpoenas
Interlocutory procedures
Disposition without trial
Settlement
Trial
Costs
(enforcement)
CAREFUL!

My notes DO NOT cover
 the
new Civil Procedure Act 2010 (Vic)

OR
 Enforcement/Appeals
Now - Some Revision

I have put together a list of past exam question and
some original questions. I have not reproduced any
ENTIRE exam in these slides
Revision Question #1 Semester 1,
2010

Can we move the proceeding to Victoria?
Revision Question #2, Semester 2,
2007




What is a stale writ?
What is the difference between Form 8A and 8B?
What are party/party costs and how do they differ
from indemnity costs?
In light of Re Wakim – is the Federal Court able to
hear matters that ordinarily fall within the State SC
jurisdiction?
Revision Question #3, 2000
Revision Question #3, cont
Revision Question #5, original


X wants to sue Y for negligence. They get their
lawyers to prepare a Form 5A and SOC. They get
a process server to go to Y’s house but he isn’t
home. Instead, his friend Sally is home. They give
the form 5A and SOC to Sally and explain that this
is valid service of Y.
Is this effective personal service?
Revision Question #5(a)



Would the answer be different if instead Y was
home but refused to unlock the door and let the
process server actually hand him the documents – is
it enough for the process server to
(a) slip it under the door?
(b) put it in the letter box?
Revision Question #5(b)

What else does the process server need to do?
Revision Question #7

If costs are NOT reserved until the end – when
should you raise the issue of costs for interlocutory
procedures?
Revision Question #8


The D realises that they might not win against P and
decide to quickly try and settle the matter. They go
to P and offer him $100,000 in accordance with
Order 26. The P ignores the letter and does not
accept within 14 days.
The matter goes to trial and P gets $90,000 in
damages and costs.
Revision Question #8 cont




What is the significance of “in accordance with
Order 26?”
When can the contents of the settlement be
disclosed in court?
What cost orders might D ask for?
What if it was P who asks the D for $100,000 –
what costs orders might P ask for?
Revision Question #9

P believes D has some really important DVD’s that
are relevant in evidence. If D shows these tapes, P
is 100% sure the judge will find in his favour
because they are VERY damaging to D’s case. P
also believes that D might try and find ANY excuse
he can not to disclose the fact that these DVD’s exist
and might even try and throw them out or give them
to his friend C to hold onto until the trial is over.
Revision Question #9



If D gives them to C – what could P try and do?
Because P is worried D might throw them out – what
order might P try and get?
If D disposed of the evidence – what sort of
offence could he be guilty of? What would P need
to prove? Is he likely to succeed?
Revision Question #10


P believes D pushed him down the stairs at work
(Edward’s Funeral Parlour) because he was worried
P would finish all the lovely black tea in the work
tea room if D didn’t get there first. P severely hurt
his head and now suffers from neglect syndrome.
Assume you are D - answer the following
Interrogatory written by P
Revision Question #10
1.
2.
3.
4.
5.
Why didn’t you give me back my DVD of Being
Human Season I?
How long have you worked at Edward’s Funeral
Parlour?
How did you come to work at Edward’s Funeral
Parlour?
Who do Edward’s Funeral Parlour receive their tea
supplies from?
How do the other staff at Edward’s Funeral Parlour
treat you?
Any questions?