1. CIVIL PROCEDURE SEMINAR ONE
LAURA MARIE CLARE
SEMESTER 2, 2011
17 OCTOBER 2011

2. 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

3. RELEVANT LEGISLATION
Supreme Court (General Civil Procedure) Rules (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)

4. 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

5. TRANSFER V FORUM NON CONVENIENS
TRANSFERRING PROCEEDINGS
International
From Melbourne to Another Country
Forum Non Coveniens, consider the Supreme Court (General Civil Procedure) Rules 2005 (Vic) and Voth & Spiliada
From England to Melbourne
Forum Non Conveniens - Spiliada factors - do not talk about Australian law
Within Australia
See, s 5 of the Jurisdiction of Courts (Cross-Vesting) Act
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

6. INSTITUTING PROCEEDINGS
Letter of demand: plaintiff
2 letters – Demand & “without prejudice” offer
Standing: Plaintiff
Capacity: both parties
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

7. 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))

8. 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
Any disease and any impairment of a person’s physical or mental condition s 3(1)

9. 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

10. 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

11. JOINDER/ADDING/AMENDMENT
Amendment = order 36
Joinder = order 9
Adding = order 9
Consolidation = order 9
JOINDER = BEFORE PROCEEDINGS COMMENCED
ADDING = AFTER PROCEEDINGS COMMENCED

12. 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;
NOTE PROBLEMS WITH TRANSACTION V SERIES OF TRANSACTIONS

13. 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)

14. 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.

15. JOINDER INCONVENIENT
9.04. Joinder inconvenient Notwithstanding Rules 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.

16. 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

17. 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

18. JOINDER OF CLAIMS Plaintiff can join any number of claims
Defendant can join by counterclaim or TP notice – see O 10.

19. 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?
S 33C(1)(a)-(c)
A representative proceeding may be commenced:
S 33C(2)
The action must be commenced via writ
S 33H(1)(a)-(c)
Defining the class
Need to be able to identify who is in and out of the group

20. 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

21. 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!)

22. SERVICE Outside Australia Outside Victoria
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

23. 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)

24. 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

25. DISCOVERY When is something relevant to the proceeding?
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
When is something in possession/power/custody?
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

26. DISCOVERY
Note the Crimes (Document Destruction) Act (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 non- party

27. INTERROGATORIES Serving interrogatories
Answering interrogatories (r 30.05)
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
Objections to answer (r 30.07)
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

28. NOTICES TO ADMIT R 35.03 Notice for admission of facts
Notice for admission of documents
Cost consequences

29. 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

30. 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.

31. 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

32. 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

33. 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

34. 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

35. 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 – if P fails to give security when they are ordered to, the trial will be dismissed

36. DIPOSITION WITHOUT TRIAL
Court has the power to do this! (See McCabe)
Setting aside an order for default judgment –
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)
Summary disposition
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)

37. ABUSE OF PROCESS/VEXATIOUS
S 21 SCA – vexatious litigations
Abuse of process

38. 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)

39. 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

40. ABANDONMENT/TRIAL
See page of my sketch notes

41. COSTS Bases of taxation Notes Party/party costs r 63.29
In order to go beyond this default position, must have some evidence of malicious or unreasonable behaviour (Gunns, Bongiorno J)
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
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

42. 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

43. 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

44. Civil procedure Seminar two
Laura Marie Clare
Civil Procedure 2011 Semester 2
20 October 2011

45. Why Study Civil?
Well…what’s the use of knowing the law if you don’t know how to bring it to court

46. 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”

47. 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

48. 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)

49. What Topics Are Covered?
Jurisdiction
Discovery
Transferring proceedings
Interrogatories
Instituting proceedings
Notices to admit
Capacity
Subpoenas
Originating processes
Interlocutory procedures
Limitations of actions
Disposition without trial
Multiple parties & causes of action
Settlement
Trial
Representative proceedings (class actions)
Costs
(enforcement)
Service
Appearance
Pleadings

50. CAREFUL! My notes DO NOT cover the new Civil Procedure Act 2010 (Vic)OR
Enforcement/Appeals

51. 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

52. Revision Question #1 Semester 1, 2010
Can we move the proceeding to Victoria?
****remember – where are we applying to? What law are we using?

53. 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?

54. Revision Question #3, 2000

55. Revision Question #3, cont

56. 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?

57. 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?

58. Revision Question #5(b)
What else does the process server need to do?

59. Revision Question #7
If costs are NOT reserved until the end – when should you raise the issue of costs for interlocutory procedures?

60. 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.
Note: rules for serving an offer

61. 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?

62. 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.

63. 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?

64. 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

65. Revision Question #10
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?

66. Any questions?