LAWS5215 CIVIL EXAM NOTES

Table of ContentsLAWS5215 CIVIL EXAM NOTES12JURISDICTION23COMMENCEMENT of Court Proceedings84SERVICE of an originating process125Defendants Response176JOINDER OF PARTIES AND CAUSES OF ACTION197PLEADINGS/AMENDMENT218CASE MANAGEMENT259DISCLOSURE2810 SETTLEMENT AND NEGOTIATION3511 COSTS40

JURISDICTIONWhat is jurisdiction? Jurisdiction is the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision: Wardley Australia ltd v Western Australia(1992) per Toohey J.Steps to Solve Jurisdiction Question A courts jurisdiction may be limited in terms of: the subject matter of the dispute; and the geography/territory; and/or monetary limit.

STEP 1: Federal or State Jurisdiction?1. The claim will fall under federal jurisdiction if it is: (Ch III Cth Constitution; Capital TV Appliances Pty Ltd v Falconer per Menzies J)a. A matter; and (set out in ss75, 76 Cth Constitution)i. Subject matter for determination in a legal proceeding: Re McBain; ii. Involves determination of a legal right, duty or liability: Re McBain; and Not simply an advisory opinion or abstract question of law: AG v Alintaiii. There is a controversy between the parties the quelling of which requires the judicial power of the Commonwealth must be invoked: Re McBain Re McBain: There was no matter before the court, because the court would be determining an abstract question. AG v Alinta: There was a matter before the court. The Cth Attorney General was granted leave to the High Court, seeking a declaration that certain provisions of the Corporations Act were valid. The other parties dropped out of the application, and the AG appointed an amicus curiae as a contradictor to the AGs arguments. iv. Extends to resolution of the whole matter: Fencott v Mullerv. Not including advisory opinions: re Judiciary and Navigation Actsb. Concerning certain subjects: Philip Morris Inc v Adam Brown (Gibbs J); ori. Subjects set out in s 75 of the Constitution; or(i) Arising under any treaty;(ii) Affecting consuls or other representatives of other countries;(iii) In which the Cth, or a person suing or being sued on behalf of the Cth, is a party;(iv) Between states, or between residents of different states, or between a state and a resident of another state;a. Corporations do not fall within resident; resident means natural persons: Australian Temperance v Howe(v) Writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.ii. Subjects set out in s 76 of the Constitution:(i) Arising under the Constitution, or involving its interpretation; (ii) Arising under any laws made by the Commonwealth Parliament;(iii) Of Admiralty and maritime jurisdiction;(iv) Relating to the same subject matter claimed under the laws of different states.iii. Matters arising under the constitution and its interpretation (High Court - s30 JA) (Federal Court - s39B(1A)(b) JA); iv. Original jurisdiction conferred on High Court by parliament under s76(i) of the Constitution: GO TO STEP 1(a)2. If not mentioned in s 51 of Constitution it will be State Jurisdiction (Go to STEP 1(b))3. If both Go to STEP 1(c).

STEP 1(a): Matters Concerning Federal Jurisdiction?Federal jurisdiction is the authority to adjudicate derived from the Cth Constitution and laws: Baxter v Commissioners of Taxation1. High Courta. Exclusive jurisdiction i. The High Court has exclusive jurisdiction under s38 JA as to matters listed in s75 Constitution, subject to s39B and s 44 JA (conferred by parliament under s 77(ii))b. Original jurisdiction i. Matters arising under the Constitution or involving its interpretation: s30(a) JA.c. Appellate Jurisdiction i. Jurisdiction to determine appeals against any judgment, decree, order or sentence of any justice exercising the jurisdiction of the High Court, Federal Court, Court exercising Federal Jurisdiction or Supreme Court of a State: s73 Constitution. 2. Federal Court a. No inherent jurisdiction i. Federal Court has a wide implied jurisdiction to carry out its duties, including to prevent abuse of process: Jackson v Sterling industriesb. Original Jurisdiction: limited to matters which the parliament invests in the Federal Court under s77(i) of Constitution and s19 FCA Act 1976 (Cth); and can only be in relation to matters within ss 75 and 76 of Constitution:i. Mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth: 39B(1) of JAii. Commonwealth is seeking an injunction or a declaration; 39B(1A)(a) of JAiii. Arising under the Constitution, or involving its interpretation; 39B(1A)(b) of JAiv. Arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter; 39B(1A)(c) of JAc. Associated Jurisdiction: Matters of federal jurisdiction associated with s 39(1) under s32(1) and (2) of JA - NO LONGER USED due to s 39B(1A)3. State Courtsa. Under s 39(2) JA (conferred under s 77(iii)); Fenton v Mulligan i. All matters within original jurisdiction of HCA (under ss75 and 76)ii. Except for matters under s38 JA: s 39(1) JA (conferred under s 77(ii))a. Matters arising directly under any treaty;b. Suits between states, or between persons suing or being sued on behalf of different states, or between a state and a person suing or being sued on behalf of another state;c. Suits between the Cth, or any person suing on behalf of the Cth, against a state, or any person being sued on behalf of a state;d. Suits by a state, or any person suing on behalf of a State, against the Commonwealth or any person being sued on behalf of the Commonwealth;e. Matters in which a writ of mandamus or prohibition is sought against an officer of the Cth or a federal court.b. Under the actual statute, giving rise to the cause of action: eg. s138B, Competition and Consumer Act (see Legislation)c. Cross vesting legislation: s4(1)(c) Jurisdiction of Courts (Cross Vesting) Act 1987

STEP 1 (b): Matters concerning State Jurisdiction in QLDState jurisdiction is the authority which State Courts possess to adjudicate under the State Constitution and laws: Baxter v Commissioners of Taxation 1. Supreme Court:a. Original Jurisdictioni. All jurisdiction that is necessary for the administration of justice in Queensland: s58(1) Constitution of Queensland 1991.ii. Ability to right any wrong that may occur in the administration of justice: Kelly v Appsiii. There is a presumption that the Supreme Court has jurisdiction. b. Inherent jurisdiction i. Derives from its status as a superior court of record;ii. Inherent jurisdiction to properly exercise its powers, perform its functions and control abuse of process: Riley McKay v McKay2. District Courta. Established by the Constitution of Queensland: s57b. Court of record with such civil jurisdiction prescribed by the Act: s8, District Court of Queensland Actc. Inferior Court: Startune v Ultra Tune Systems i. No presumption that the DC has acted within its jurisdiction d. Civil Jurisdiction of District Court: see s68(1)(a)(i)-(iv), DCOQ Act; Matelot Holdings Pty Ltd v Gold Coast City Councili. any equitable claim or demand for recovery of money or damages, whether liquidated or unliquidated; ii. any claim for detention of chattels; iii. any claim for rent or mesne profits; iv. any claim for any debt, damages or compensation arising under any Act; and e. Jurisdiction over specific actions and matters: s68(1)(b), DCOQ Act (see legislation)f. Civil jurisdiction limited to $750 000 for personal actions: s 68(2), DCOQ Actg. Same powers of the Supreme Court in respect of the matters where the District Court has jurisdiction: s69, DCOQ Act3. Magistrates Courta. Created under s22 Justices Act 1886b. Inferior Court of record, subject to appeal: s44 Magistrates Court Actc. Personal actions up to $150 000: s 4 Magistrates Court Acti. Or more including interest: Johns v Johnsd. Limited equitable jurisdiction, must be a monetary amount: s4(c) MCA

STEP 1(c): Both Federal and State Jurisdiction?1. Ask which courts have jurisdiction to hear each separate claim.2. Can the claims be joined as one proceeding?: r 603. Which courts have jurisdiction to hear both claims?a. State Courts under s 39(2)i. Note, even though s79(1) JA requires court exercising federal jurisdiction in state to apply state law, this is still an exercise of Federal Jurisdiction: Felton v Mulligan b. Federal Court of Australiai. Accrued Jurisdiction 1. Derived under ss19 and 22, Federal Court of Australia Act (conferred by s76(ii) and 77(i) of the constitution) 2. Permits federal court to determine issues arising entirely under state law, when non-federal aspect forms part of a single controversy of which federal issues forms an integral part.a. Where the actions: (a) fall under a common substratum of facts based on same transactions and facts; (b) a common claim for relief (relief is for same damage); or (c) the resolution of one claim is essential to the resolution of another claim: Re Wakim (confirming test in Philip Morris)i. Philip Morris: Non-federal aspect of case must be so linked to the federal aspect that it cannot be severed. The matter in this case involved a claim about whether or not the plaintiffs could protect trademarks (this was one matter). Thus, a claim for misleading and deceptive conduct and common law passing off was one matter. ii. Re Wakim: The Federal Court had accrued jurisdiction where there was a claim against the trustee in bankruptcy under the Bankruptcy Act, and a claim against the solicitors for negligence.b. Even though s79(1) JA requires the court exercising federal jurisdiction in the state to apply state law, this is still an exercise of Federal Jurisdiction: Fencott v Muller i. Since the whole matter becomes part of the Federal jurisdiction, the state law is picked up by the Federal Court and becomes part of Federal Jurisdiction c. Federal court has discretion to hear non-federal matter;d. Where primary claim untenable, there is no jurisdiction: NSW Land Council; cf Johnson Tiles

STEP 2: Territorial Jurisdiction1. Capacity to serve the originating process:a. Under the common law, presence in the jurisdiction enlivens territorial jurisdiction: Laurie v C (1958)b. Jurisdiction is extended by legislation that enables service within Australia or internationally: Gunns Ltd & Ors v Marr & Ors 2. Submission to jurisdiction:a. Filing an unconditional notice of intention to defend under r 135 (or conditional notice becoming an unconditional notice due to lapse in time r 144(5)): Perkins v Williams (1900), b. Express agreement in contract that a particular court will have jurisdiction: Vogel v Kohnstamm(1973); mere choice of law does not amount to submission: Dunbee v Gilman & Co (1968)Transfer of proceedings - cross vested jurisdiction

1. Preliminary pointsa. A party who seeks to invoke the cross vesting laws must endorse the pleadings with a statement identifying each claim or defence in respect of which the cross vesting laws are invoked: r 53b. The party invoking the cross vesting laws must apply for directions and any consideration of whether the matter should be transferred: r 562. Related proceedings: s5, Jurisdiction of Courts (Cross Vesting) Act a. The first court must transfer proceedings to the second court if:i. The proceedings before the first court arise out of, or are related to, another proceeding already commenced in the second court; andii. The first court believes:1. The second court is the more appropriate forum: World Firefighters Games following Spiliada Maritime Corporation; ora. the application of the substantive law, if it is peculiar to a particular jurisdiction;b. forensic advantages or disadvantages conferred by the competing procedural laws;c. the plaintiff's choice of forum and the reasons for that choice;d. substantive connections with the forum (eg. residence, domicile, place of occurrence and choice of law);e. balance of convenience to parties and witnesses;f. comparative cost and delay;g. convenience of the court system.2. It is otherwise in the interests of justice: BHP Billiton Ltd v Schultz a. Convenience and expense of each forum;b. Availability of witnesses;c. Location of the parties;d. Procedural advantages of each forum; ande. The substantive law to be applied to determine the case.3. Court only has cross vested jurisdiction: s5, JoC Acta. A court must transfer the proceedings before it to another court if it appears to the court that:i. The court only has cross-vested jurisdiction for the proceeding or a substantial part of the proceeding is cross-vested jurisdiction; andii. Either:1. In the interests of justice it is more appropriate to determine the proceeding in another court; or 2. It is otherwise in the interests of justice.

COMMENCEMENT of Court ProceedingsDuties regarding commencement

Duty to Client: advise to use ADR (see topic on Settlement)1. ADRa. Advantages settlement through ADR saves time and costs; helps define the issues (whether or not settlement occurs); more flexible process; maintains relations b. Disadvantages difficult to have a good idea about the other sides case before going into ADR; may not be helpful if the case is complex; issues if the parties have a history of disagreement 2. Litigationa. Advantages binding and final determination; make sure statutory limitation is not an issue once claim is issued by registrar; tactical move to make a point to the other side b. Disadvantages takes time; expensive; adversarial process; does not take into account broader interests of parties; rights based; litigation risk; public process; reputation at risk.3. Factors to consider when advising to go to ADRa. Complexity of case i. If case is complex, use arbitration b. Conflict history between the partiesi. If there is a history of conflict between the parties, use conciliation c. Clients priorities and the reason for those priorities; i. True issue may be disappointment about bad contractual relations; might be better to use conciliation and mediationd. Attitudes and capacity of the partiesi. If parties incapable of negotiating reasonably, it might be the case that ADR is not worthwhile

Duties to the court1. The solicitors paramount duty to the court trumps its duties to the client; the following duties are relevant:a. The solicitor must not commence proceedings for an ulterior purpose: White Industries v Flower & Harti. White Industries v Flower & Hart: FACTS: White Industries was building a shopping centre for a developer. White Industries was to be entitled to payment at stages during the building of the shopping centre. White Industries had put in a number of claims about progress payments. The developer wanted to minimise its payments and so went to their law firm, Flower & Hart. Flower & Hart advised its client to commence proceedings against White Industries, alleging fraud as a tactical advantage against White Industries. The trial went for 154 days. White Industries were successful and the developer was insolvent. White Industries sued Flower and Hart, wanting to recover their costs. HELD: Court made a costs order against Flower and Hart. The jurisdiction to order costs against an unsuccessful partys solicitors is enlivened when they have unreasonably initiated or continued an action when it had no or substantially no prospects of success.ii. Steindle Nominees: A barrister had made an application to extend time. The successful party wanted to obtain costs from the barrister. HELD: The court found that the barrister had not acted on insufficient evidence. It is counsels duty to decide whether there is any point which can be argued. There is a difference between presenting a case that is barely arguable (but arguable nevertheless) versus a case that is plainly unarguable. iii. Levitt v Commissioner of Taxation: The barrister made an argument about the constitutionality of a certain provision of an act to delay his clients bankruptcy. The Federal Court made an order against the barrister. HELD: The court may make a costs order against the lawyer if the conduct amounts to a serious dereliction of their duty or is commenced for an ulterior purpose.b. The solicitor must not initiate a case which is bound to fail or unarguable: Ashby v Cth (No 4)i. Williams v Spautz (1992): Where commence proceeding with no legal foundation, the proceedings may constitute abuse of process and may be struck out/stayed.

Pre-proceeding procedural requirements Consider: Pre-proceedings protocols: eg. Personal Injuries Proceedings Act 2002 (Qld) Pre-proceedings resolution obligations: eg. Civil Disputes Resolution Act 2011 (Cth) Solicitors must attest in documents that they have made reasonable attempts to settle: s4 Civil Disputes Resolution Act 2011 Ensure compliance with obligation in relation to disclosing estimate of costs of legal work to client and costs estimate: (see topic on Costs)

Limitation Periods

Objectives Promote diligent prosecution of claims; Fairness; and Interests of the civil justice system.

Sources Legislation creating the cause of action Limitation of Actions Act 1974 (Qld): ss 5, 10, 10AA, 11, 13, 27, 31, and 35-38. s10 LAA 6 years for: breach of contract, most torts, and negligence. 3 years: personal injuries

Time of Accrual After all elements of that cause of action have been completed. at the time when that damage is sustained that the cause of action first accrues: Commonwealth of Australia v Cornwell

Originating process

Objectives Justice should be done in public; Gives parties a reasonable opportunity to present their case; Party must know the case made against them; Need for efficiency of court process: r 5

Types of originating process in Qld 1. Claim; 2. Application; 3. Notice of Appeal; 4. Notice of Appeal requiring leave.

Steps to answer claim questionSTEP 1: Commencement by Claim or Application1. Must be started by Claim unless the UCPR requires or permits the proceedings to be started by application: r 9 a. There are a number of procedural requirements: r 17-19, r 23b. Must attach a statement of claim: Form 16, r 22(2)(c), 146c. Must be filed and served on each defendant: r 22(3)i. If not served on defendant within 12 months, go to STEP 3

2. Must be started by Application if Act or rules require or permit application for order/relief and: (a) do not state the type of originating process to be used; or (b) type of originating process (other than claim or application) is required: r10a. May be started by application if: r 11(a)-(c)i. Only or main issue is an issue of law and a substantial dispute of fact is unlikely; orii. No opposing party to proceedings; oriii. Insufficient time to prepare a claim (because of the urgent nature of relief sought).b. Mode of application:i. An oral application is permitted in certain circumstances: r 12 ii. Otherwise, application must be made by Form 5: r 26(1)c. An application must list the affidavits to be relied on: r 26(4) i. If there is no affidavit at hearing, it is likely to be adjourned to give the defendant time to review.ii. Must clearly identify that damages are within the courts jurisdiction: r26(5)d. Must be filed and served 3 days before the hearing: r 27(1)3. Ex parte applications (without defendant):a. Extension of originating process/ substituted service/ matter of urgency

STEP 2: If wrong process has been selected:1. Failure to comply with rules is irregularity not nullity: r 371(1) 2. Court can change a claim to application: r 13, 14; Phelts v Denny3. Registrar must accept the originating process unless it appears to be an abuse of process: r 15

STEP 3: Renewal of Stale Claims Claim remains in force for service for 1 year, starting on the date it is filed: r 24(1) A stale claim may be renewed (See Topic 4 Service)

Describing the parties Need adequate description of parties on originating process: r 17; Cameron v National Mutual Life Association of Australasia Ltd (No 2) Exceptions: Incapacitated party; or Child Anonymity not granted: J v L & A Services Pty Ltd (No 2): An application was made against their employer, alleging that they had both contracted AIDS. The couple was concerned about the effect that publicity would have on their family and children. HELD: Court held that they had to be identified in the interests of justice. Loss of privacy, distress, financial harm or collateral disadvantages are not sufficient reasons for anonymity.

SERVICE of an originating processPurpose of service1. In actions in personam, service founds the courts jurisdiction: Laurie v Carrol2. Provides notice to the defendant: Ainsworth v Redd (Kirby J)3. Instigates the steps in a civil proceedingGeneral Rules relating to Service

General Rules relating to Service A claim is an originating process: r 8(2) If served after 4pm, deemed to serve on next day: r 103 Cannot serve on Christmas or Good Friday, unless the court orders otherwise: r 101

Renewal of Claim1. Claim not effective until filed and served: r 22(3) (See Topic 3 Commencement)a. Claim must be served within 12 months of filing in court: r 24(1)b. Register may renew the claim for a maximum 1 year period if: r 24(2)i. reasonable efforts have been made to serve the defendant; or ii. there is another good reason to renew the claim: Gillies v Dibbetts Consider: Muirhead v Uniting Church length of delay; reasons for delay;i. attempts to serve other party ii. disability of client conduct of other parties;i. whether defendant has been actively evading service prejudice caused to plaintiff by refusing renewal;i. whether limitation period has expired prejudice caused to defendant by granting renewal. There is a tendency to relax rigid time limits where that is legally possible and where it can be done without prejudice or injustice to other parties: Muirhead v Uniting Church The discretion may be exercised although the statutory limitation period has expired: Muirhead v Uniting Church There is a wide and unfettered discretion and there is no better reason for granting relief than to see that justice is done: Muirhead v Uniting Churchc. If not served within 12 months, the Claim is stale d. Courts leave must be obtained if the plaintiff is seeking to renew a stale claim 5 years from when it was originally filed: r 24(4). e. If claim renewed it will be effective 1 yr from date it was supposed to be served: r24(6)Service of originating process (inside Queensland)1. Originating process (except a Mag Court originating process) must be served personally on person intended to be served: r 105(1) (note: counter claim, notice of non party disclosure must also be served personally)a. Service is effected by giving the document or a copy of the document to the individual: r106(1)i. Leaving the document with someone else to give to the defendant is not personal service: Scalpelli v Maguireb. If the person: (1) refuses service; and (2) service complies with r106(1), the document may be served by putting it down in the persons presence and telling them what it is: r 106(2)i. It is not a refusal if: (1) the service is provided after hours (8pm); (2) the person does not know about the proceedings or who the person they are speaking to is; and (3) the server does not actually try to give the documents to them (documents placed in the middle of the driveway): Major v Australian Sports Commission2. If service is not effected as per STEP 1:a. Irregular service is an irregularity not a nullity, unless an exception applies: r 371(1)b. Defendant may file:i. unconditional notice of intention to defend, thus waiving the irregularity: r 144(7)ii. conditional notice of intention to defend and apply within 14 days to set aside the originating process: r144(5)c. Service of a stale claim:i. The court may declare steps taken to be effectual (thus, waiving the irregularity): r371(2)(d) Court will apply the same tests as it applies for determining whether to renew the claim under r 24 (see above): Gillies v Dibbetts.d. Failure to effect personal service:i. Whether the defendant is prejudiced by the manner in which they became aware of the proceedings and the fact that the defendant has the claim: Major v Australian Sports Commission 3. Exceptions to general rule:a. Where solicitor agrees to accept service, service is duly effected unless the solicitor lacked instructions to accept service for the party under r 115(3): r 115(1) b. If service is informal but the document or a copy came into the possession of a person to be served, service is effected on the date it came into possession or another date stated in the order: r 117; Taylor v Marmarasc. Agent can agree to accept service if the principal is outside the jurisdiction (usually court must give leave before agents authority is decided): r 118; Cth Bank v Whited. Where service is in accordance with an agreement: r 119(2); Samarinin v Williams (NSW)4. Personal service is not necessary in the following cases:a. Defendant is a Corporation: r 107i. Service in accordance with Corporations Act 2001 (Cth) s109X Can serve by delivering the document to a director of the company: s109X, Corporations Act 2001 ii. Can leave the process personally or by posting with registered post to companies registered office: Watkins v Imperial Tobaccob. Young people (under 18): r 108c. Person with a disability: r 109d. Prisoners: r110e. Partnerships: r114i. On one or more of the partners: r114(1)(a); orii. Person at the principal place of business of the partnership in QLD who appears to have control or management of the business: r114 (1)(b); Barnett Bros Timber v Delany Metals; oriii. For a partnership registered under the Partnership Act at the registered office of the partnership: r114 (1)(c).f. Business: r113g. Recovery of land court may agree to service document being left on landh. Documents in a Magistrates court proceeding may, unless the court otherwise orders, be served under ordinary service: r 111(1)

Substituted Service (r116)1. The court may make order allowing service in another way if: r 116(1)a. At the date of the application for substituted service, it is impracticable to effect personal service - impossibility of actual service: r116(1); Porter v Freudenbergi. Reasonable effort has been made to effect personal service; andii. Proposed mode of substituted service has a reasonable possibility of bringing the proceeding to the defendants attention: Foxe v Brown; Miscamble v Phillips; b. NOTE: It is unlikely that the court will allow substituted service of a stale claim before the claim is renewed by the registrar: Bernstein v Jackson (WA)2. Type of substituted servicea. Preferred service to persons who know, or should know, the location of the party: i. Solicitor: Dymond v Croft ii. Agent, may be given authority to accept service: Montgomery Jones & Co v Liebenthal (QLD)b. Where no person who can accept service - post to last known postal address of defendant: Bradvicac. Public advertisements in newspaper in the region where the particular person allegedly resides: Cook v Dey d. Service by social media where plaintiff can bring proof that this will be effective in bringing the document to the attention of the defendant: Citgroup v Weerakooni. Judges have expressed uncertainty over service by social media: Uncertainty of facebook pages, the fact that anyone can create an identity that could mimic the true identity and indeed some of the information that is provided there does not show with any real force that the person who created the facebook page might indeed be the defendant, even though practically speaking it may well indeed be the person who is the defendant: Citgroup v Weerakoonii. Must prove that the message will reach the real defendant: Defendants had failed to make loan agreements, MKM had obtained default judgment and needed to personally serve the judgment. MKM attempted to personally serve the judgment and applied to the court for substituted service via facebook. MKM produced evidence that they had two profiles matching the names of the defendant, the date of birth and email addresses matched those of the defendant, the defendants were mutual friends, and there was regular access to the sites by the defendant. The court ordered service by social media: MKM Capital v Corsoiii. Service of an injunction via twitter: Blaneys Blarney order

Service of documents other than originating process (within and outside Queensland) Applies to other interlocutory processes (eg. defence, reply, request for trial date) Ordinary service generally means sending or delivering the document to the partys address for service: r 112 (see UCPR)Service of originating process (outside Queensland but within Australia) Service outside Queensland must be in accordance with the Service and Execution of Process Act 1992 (Cth) (SEPA): r 123 An originating process issued in a State can be served in another state: s 15(1) SEPA Service on an individual must be effected in the same way as service of such an originating process in the place of issue: s15(2) SEPA. Other issues: There is no longer a need to show a connection between the proceeding and the state in which the proceeding is brought, before process can be served interstate under SEPA: s21 SEPA, s5 Jurisdiction of court (Cross Vesting) Act 1987) Initiating process includes claim and application: s3 SEPA Proof of service is essentially the same as the Queensland rules: s11 SEPA Service on Individuals is the same as required under r 105/106: s15 SEPA Service on Corporations is the same as required under s109X of Corporations Act: s9 SEPA Must attach a Form 1 notice under the SEPA rules: s16 SEPA A failure to do so is merely an irregularity Court can order substituted service on the defendant outside of Queensland : r 116(4)Service of originating process (outside Australia) An originating process may be served on a person outside Australia without leave if: Must meet procedural requirements, otherwise service is not effective and can be set aside: R126 UCPR; Carroll v Laurie The cause of action arose in Queensland (requirement of a connection): r 124(1)(a) (see UCPR for other grounds) Property located inside jurisdiction: r 124(1)(b)(i); BHP Petroleum Pty Ltd v Oil Basins Ltd Documents affecting property located in the jurisdiction: r 124(1)(c); BHP Petroleum Pty Ltd v Oil Basins Ltd Defendant domiciled or ordinarily resident within jurisdiction: r 124(1)(d) Administration of estates: r 124(1)(e) Execution of trusts: r 124(1)(f) Contract: rr 124(1)(g)-(i) Meaning of contract: Earthworks & Quarries Ltd v F T Eastment & Sons Pty Ltd; Nominal Defendant v Motor Vehicle Insurance Trust of Western Australia Contract made within the jurisdiction: r 124(1)(g)(i); Entores Ltd v Miles Far East Corporation Contract made by agent in the forum: rr 124(1)(g)(iii), 118; BHP Petroleum Pty Ltd v Oil Basins Ltd Contract subject to law of forum: r 124(g)(iv); BHP Petroleum Pty Ltd v Oil Basins Ltd Breach of contract inside jurisdiction: r 124(1)(h); Safran v Chani; Deer Park Engineering Pty Ltd v Townsville Harbour Board Agreement to submit to jurisdiction: r 124(1)(i) Tort committed within jurisdiction: rr124(1)(k)-(l); Acama Pty Ltd v Frost; Distillers Co (Bio-chemicals) Ltd v Thompson; Dow Jones & Co Inc v Gutnick Injunction: r 124(1)(o) Necessary or proper party: r 124(1)(p) Cause of action inside jurisdiction: r 124(1)(a) Breach of statute: rr 124(1)(t)-(u) Contribution or indemnity: r 124(1)(n) Civil Aviation (Carriers Liability) Act 1959 (Cth): r 124(1)(q) Membership of corporations: r 124(1)(m) Arbitration awards: r 124(1)(v) Infants: r 124(1)(w) Interlocutory processes and statutory applications: r 127 Counter-claim and third party notices: r 128

Defendants Response

Reasons to file Notice of Intention to Defend1. Prevents default judgment;2. Notifies court and plaintiff of intention to defend claim;3. Notifies court of position on jurisdiction;4. Except with the courts leave, a defendant may not take a step in the proceeding without first filing a notice of intention to defend: r 135(1)

Time for entering Notice of intention to defend must be filed in the registry: r 141. Notice of intention to defend must be filed within 28 days of service after the date the claim is served: r 137(1). During this 28-day period, the plaintiff cannot get default judgment. If notice of intention to defend is not filed within the 28-day time limit, the defendant can still file and serve a notice to defend at any time before judgment: r 138. late intention to defend cannot be ignored (it prevents default judgment); time for pleadings still runs from date that the notice should be entered. The pleadings close 14 days after defence is filed: r 169(2); Harrison Timber Service under the SEPA Act: A person will have: (1) 21 days from receiving a claim to file an appearance in court; or (2) any longer period required in the place of issue (28 days in Queensland): s 17(1)(a), SEPA Act Meaning of appearance where defendant served interstate: s14, SEPA Act

Types of Notices (for proceedings started by claim only): r 1351. Conditional notice of intention to defend: (Form 7)a. Where the defendant puts in an appearance: r 144(2)i. Asserts an irregularity; orii. Challenges the jurisdiction of the court b. Must apply within 14 days to set aside the originating process; if this does not occur, the notice becomes unconditional: r144(5); c. Must file a defence within 7 days of a conditional notice of intention to defend to stop it becoming an unconditional notice: r 144(6).2. Unconditional notice of intention to defend: attach a defence and use Form 6: r 139;a. Waives procedural irregularities regarding service and objections to jurisdiction: Sheldon v Brown: r 144(7)b. The defendant submits to jurisdiction: Caltex Oil (Aust) v The Drege Willemstadc. But does not confer subject matter jurisdiction on a court, which does not possess it: Thomson Australian Holdings v TP Commission; Coe v Qld Mines Ltd3. Note: for Applicationa. Do not file a notice of intention to defend;b. May file a notice of address for service: (Form 8); r 29

Possible responses by defendant to irregular service1. If aware of claim, but it has: (1) not been served; and (2) claim is stale:a. Take no action because the plaintiff cannot request a default judgment 2. If there has been (1) personal service; but (2) claim is stale: a. Cannot ignore the claim; the claim is valid except for service: Brearleyb. Apply to court to set aside service because of irregularity under r371(2)(b)i. No need to enter conditional notice: Carroll v Lauriec. Accept service and enter unconditional notice of intention to defend, thus waiving irregularity: r 136/r144(6)i. If filing an unconditional notice of intention to defend, the claim is taken to have been served on the defendant on the day the notice is filed, or, if a plaintiff proves that the claim was served earlier, on an earlier day: r105(2)d. Enter conditional notice and state issues with service: r 144(2)

JOINDER OF PARTIES AND CAUSES OF ACTIONJoinder of Parties

Policy Objectives1. Efficiency;2. Consistency;3. To promote finality.

Joinder of Plaintiffs/ Defendants1. Necessary: r 62(1)a. Rule 62(1): Each person whose presence is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in a proceeding must be included as a party to the proceeding.b. Where another person is jointly entitled with the plaintiff, they must be made a party to the proceeding: r 63(1) i. If the other party does not agree to be a plaintiff, they must be made a defendant: r 63(2)ii. Payne v Young: seven plaintiffs were joined in an action for the repayment of slaughter fees and for a declaration that the regulations for the fees were invalid. It was held they had been improperly joined. Each plaintiff had a separate and unrelated contract with the defendant.iii. North Pine Pty Ltd v Jezer Construction Group Pty Ltd: two plaintiffs (electrician, plumber) were sub-contractors to the same contractor. They both claimed they were owed money and wanted to commence joint proceedings. It was held this was not necessary for the due administration of justice. They had separate claims to be heard separately. 2. Discretionary joindera. Where a third party is:i. jointly and severally liable with the defendant, that third party does not need to be made a defendant to the proceeding: r 64(1) ii. jointly, but not severally liable under a contract, then the proceeding may be stayed until that person is included as a defendant: r 64(2)b. Two or more people may be joined as plaintiff (application) or defendant (respondent) if:i. there is a common question of law or fact; or : r 65(1)(a)ii. the relief sought arises out of the same transaction(s) or (series of) event(s): r 65(1)(b)

Reconstitution of Proceedingsa. A party may be included in a proceeding, even if it causes inconvenience: r 68b. The court may remove a person as a party who has been improperly or unnecessarily included: r 69(1)(a)c. The court may include a person as a party, where:i. Their presence is necessary to enable the court to adjudicate effectually and completely on all matters in dispute: r 69(1)(a)(i)ii. Their presence would be desirable, just and convenient: r 69(1)(a)(ii)d. Test: Will the persons right in against all liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which ay be made in the action?: News Ltd v Australian Rugby League Football Ltd, adopted in Pegang Mining Co Ltd v Choong Same. Outside limitation period: not allowed, unless by exception found in r 69(2)

Joinder of Causes of Action

a. All causes of action against the defendant may be brought in one proceeding, if: r 60i. There is a common question of law or fact;ii. All right to relief arise out of the same transaction(s) or (series of) event(s);iii. The court gives leave, before or after the start of the proceeding. R 60(2)Other Issues

Third party/ contribution noticesa. A third party may be joined when the defendant joins against the third party:i. A contribution or indemnity;ii. Relief or remedy;iii. That any question related to the original matter should be determined involving this third party. R 192b. There must be a connection/ nexus to the original proceeding.

Representative actionsa. Where a representative plaintiff or defendant takes proceedings on behalf of a group with the same interests as the person representing them, where all persons in the group could have been parties in the proceeding: r 75i. same interest = common interest; common grievance; and the relief must be beneficial to all parties: Markt & Co Ltd v Knight Steamship Co Ltd, following Duke of Bedford v Ellis (Lord MacNagten)ii. Must be: a significant question common to all members of the class and they must be equally affected by the relief being sought: Carnie v Esanda Finance Corp Ltdb. The court may order one person to be a representative of a group: r 76

PLEADINGS/AMENDMENT

Function of Pleadings3. To define the issues in dispute between the parties;4. Gives notice of the issues to the Court and the other party;5. Makes the case sufficiently clear to allow other parties a fair opportunity to meet it: Dare v Pulham6. Binds parties: Banque Commerciale SA v Akhil Holdings (failed to allege fraud)7. Limited to disputes about questions of fact.

Course of Pleadings1. Proceedings commence when the originating process is sealed and issued by the Registrar: r 8; Williams v Shaptz (unless registrar redirects to court: r 15)2. The sequence of pleading:a. the plaintiffs statement of claim; b. the defendants defence; c. the plaintiffs reply to the defence. 3. The course of pleading on a counter-claim is:a. the defendants counter-claim against the plaintiff; b. plaintiffs defence to the defendants counter-claim; c. defendants reply to the defence to counter-claim. d. A pleading subsequent to the reply cannot be delivered without the leave of the court. 4. Pleadings close on the end of the last pleadings.

Responses by Defendant to Plaintiffs action1. File notice of intention to defend (r 136 (1)) and Defence (r139(1)(b)) where started by claim: a. Conditional - allow a dispute over service, while preventing default judgmentb. Unconditional waives irregularities, but does not give the court jurisdiction: r 144(7)2. Inaction may be acceptable if service is invalid3. Counter Claim this is not a defence, but a separate cause of action a. Against the Plaintiff must be connected to the initial claim by the plaintiff (use form 18): r 177 b. Against a third party: r 178i. only if plaintiff is also made party to counter claim: r 178(1)(a); andii. other person is liable with plaintiff for subject matter of counter claim: r 178(1)(b)(i); oriii. relief against the other person is related to or connected with original subject matter: r 178(1)(b)(ii)iv. Relief claimed is sufficiently connected with original subject matter of proceedings, even if there are two separate contracts in issue; e.g. one with a builder and the other with an architect: DG Madden c. Other orders: at any time, the court has the power to exclude the counter claim or order it be separately determined: r 1824. Set off a defence to all or part of the plaintiffs claim: r 173a. Legal set off two parties owe each other money, and defendant ask that the money owed to them set offs the money owed to plaintiff: e.g. s 20 Civil Proceedings Act re mutual debtsb. Equitable set off : i. A solicitor sued his former client to recover outstanding fees, the client claimed an equitable set off on the basis that the fees were incurred by the solicitors negligence: Piggott v Williamsc. Notei. Every set off should be pleaded as a counterclaim, but not vice versa.

Difference between set off and counter claim:1. If defendant claims set off, if the plaintiff drops their claim, then the set off has no life: Gathercole v Smith 2. If defendant counter claims, this stands as an independent cause of action such that, if the plaintiff drops their claim for debt and the defendant counter claimed, the defendants proceedings continue.

Aim of rules regarding set off and counter claim to enable court to give a single judgment in respect of competing claims of plaintiff and defendant, where money claims are made and the competing claim can be categorised as set off, cross claim or counter claim in order to do justice, the court may need to make separate orders for costs against the plaintiff and the defendant where the defendants claim is truly in the nature of a counterclaim: Chell Engineering

Close of pleadings1. The pleadings in a proceeding close: r 169a. On service of the pleadings (if pleading is served after the defence or answer to a counter claim); orb. 14 days after service of the defence (in other cases).Amendment of documents Party who amends must pay costs of amendment to other party, unless court orders otherwise (r692) or the amendment was due to other partys default (r692(2))

Amendment of originating process1. To change a claim or application: r 377(1)a. Need leave of the registrar if filed but not served, (r377(1)(b)) or court, if served and amendment is not merely technical (r377(1)).

Amending pleadings1. Amending before request for trial date filed: r 378 a. Can amend without leave of court, by serving other party with amendment: r 378b. Other party can disallow amendment: r379i. Other party has 8 days within which to apply to the court for all or part of the amendment to be disallowed: r 379(1)ii. If an application to disallow the amendment is made, the court will assess whether the amendment is appropriate: r 379(2) Consider: Where one claim was not maintainable and one claim was not adequately particularised, the amendment was disallowed: Re Carrington Cotton Corp If the amendment requires the other party to investigate matters of fact and question of law, different from the causes of action raised and for which no fair warning had been given, the amendment was disallowed: Central Sawmilling v Queenslandi. Cannot be a substantially new case2. Amending after request for trial date: a. Must apply for leave of court to amend: r 380b. Court has discretion to allow amendment: r 375(1)i. Traditional approach was that parties have a right to justice on the merits of their cases; court was lenient in allowing amendments: State of Qld v JL Holdings (1997)ii. Parties do not have a right to amend; the court will look at the public interest in the efficiency of the court process, and the interests of other litigants: Aon Risk v ANU (2009)c. If there is a misnomer of a party, court must allow amendment: r375(3)

Adding new cause of action1. Before limitation period has expired:a. There is a broad power to amend, include amendment to add a new cause of action - r375(2) b. See Amending Pleadings Part 12. After limitation period has expired a. Traditionally, at common law, there was no ability to add the cause of action: Weldon v Neal (1887)b. State Courts are now given a broad power to add cause of action, even though limitation period has expired under the Limitation of Actions Act: s16(2)(c), Civil Proceedings Act 2011 (Qld)c. The power to add the cause of action applies only if the cause of action was current at the commencement of the proceedings (ie. the date the claim was sealed and issued by the registrar under r 8): r 376(1)i. Court must be satisfied that: (a) it is appropriate to include new cause of action; and (b) the new cause of action arises out of the same (or substantially the same) facts as the cause of action in the original proceedings: r376(4)(a),(b)

Striking out pleadings and particulars (see also Summary dismissal) The court has an inherent jurisdiction to strike out pleadings and particulars that are frivolous, vexatious or an abuse of process: Kelly v Apps; r 389A

Striking out Particulars 1. The court may strike out particulars where: r 162(1)a. Tendency to prejudice or delay a fair trial; b. Unnecessary or scandalous;c. Frivolous or vexatious;d. Otherwise an abuse of the process of the court.2. Court may order the costs of the application to be paid on the indemnity basis: r 162(2)

Striking out Pleadings 1. The court may strike out pleading or part of a pleading: r171(1)a. Discloses no reasonable cause of action or defence; orb. Tendency to prejudice or delay the fair trial of the proceeding; or c. Unnecessary or scandalous; d. Frivolous or vexatious; or e. Otherwise an abuse of the process of the court.2. Court may order the costs of the application to be paid on the indemnity basis: r 171(2)3. If the whole pleading is struck out, likely that court will also order summary dismissala. The court may not dismiss the proceeding, if the cause of action or defence can be ascertained by circumstantial evidence: Royalene Pty Ltd v Registrar of Titles

CASE MANAGEMENTIntroductory matters

Rationale1. Case Management:a. Rationale is to:i. Reduce cost and delay; andii. Ensure avenues for resolution before trial. b. To introduce the court role in determining the pace of litigation.c. Parties still control the issues and evidence. 2. Controlled by various practice directions and court rules.

The Adversarial system1. Features of the system:a. Controlled by the parties;b. Juries act principally as finders of fact;c. The role of the court and the judge is passive and non-interventionist;d. Procedural requirements are subservient to the determination of the substantive legal dispute between the parties.2. Criticisms of the systema. Expensive;b. Slow;c. Lack of equality between well-resourced litigants and under resourced litigants;d. Too adversarial;e. Rules of the court are too often ignored. 3. Key reforms to the adversarial system in Queenslanda. Mechanisms to minimise the use of court adjudication to finalise cases;b. Time lines for taking certain steps in a proceeding in the UCPR;c. Reducing court involvement in certain steps in a proceeding;d. Narrowing scope of disclosure;e. Mechanisms to narrow the issues in a proceeding (e.g. Notices to Admit, the effect of a plea of do not admit in a defence);f. Case flow management;g. Near removal of jury trials; andh. Additional professional obligations on lawyers.

Effectiveness of Case Management1. Reduction of time;2. But potential increase in costs. Case Management in Queensland

Case Management Rules1. Rule 5 UCPR Philosophy: overriding obligations of parties and court(1) The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.(2) Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.(3) In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.(4) The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.ExampleThe court may dismiss a proceeding or impose a sanction as to costs, if, in breach of the implied undertaking, a plaintiff fails to proceed as required by these rules or an order of the court.a. Case flow management gives a practical effect to Rule 5. b. Parties do not have an inalienable right to a hearing on all issues on the merits: Ridolfi v Rigato Farms Pty Ltd (per Jersey CJ) 2. General practices/ requirementsa. Directions: either party can apply for, or a court may make, at any stage of the proceedings, a direction on the case: rr 366, 367b. Alternative Dispute Resolution: parties may consent to participation, or it may be ordered by the court. c. Dispensing with signature: court may dispense with one partys signature who ha been served with a rule 467(2) request (for a trial date) and has not signed or returned it within 21 days: r 4693. Practice Directions a. Supreme Courti. Practice Direction 17 of 2012 Case Flow Management Civil Jurisdiction Applies to: (a) civil proceedings instituted by claim (including renewal of a claim) in the Brisbane Registry; (b) such other registries as may be directed; and (c) such other proceedings as the court or a judge may direct. Expectation that most proceedings will be ready for trail or otherwise resolved within 180 days of the filing of the defence. Otherwise there may be sanctions for non-compliance. ii. Practice Direction 11 of 2012 Supervised Case List Applies when: A party estimates that the trial or hearing will take more than five days; or A case (or group of cases) is identified as imposing a greater than normal demand on resources because of considerations such as length of time, complexity of issues, or multiplicity of parties. A party may apply, or a judge may order, that a case be placed on the supervised case list at any time. Supervised by one judge.iii. Practice Direction 3 of 2002 Commercial List (as amended by Practice Direction 2 of 2008) Purpose: to establish a Commercial List to effect the expeditious resolution of commercial matters. May be conducted by one or ore judges Application, where: The issues involved are, or are likely to be, of a general commercial character, or arise out of trade and commerce in general; and The estimated trial time is 5 days of less, although a case on the Supervised Case List may be assigned by the Judge responsible for that List to a Commercial List Judge, and will then be regarded as included on the Commercial List. Judge has discretion, and may give priority to urgent matters. b. District Courti. Practice Direction 3 of 2010 Commercial List: District Court Purpose: to establish a commercial list in the District Court. Application: A Commercial List Judge considers that it ought to be placed on the commercial list. Ordinarily that will apply to defended matter of a general commercial character or arising out of trade and commerce in general.

Failure to Comply1. Balance between:a. Justiceb. Efficiencyc. Costd. Time2. The ultimate aim of the court is the attainment of justice and no principle of case management can be allowed to supplant that aim: State of Qld v JL Holdings Pty Ltda. it should not be allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence.3. Justice does not just involve the needs of the parties, but the needs of the public at large and the whole of the civil justice system: Aon Risk v ANUa. Speed and efficiency are important and limits must be placed upon re-pleadingb. The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment. Aon4. the weight to be given to these factors may vary depending on the facts in the individual case: Cement Australia Pty Ltd v Australian Competition and Consumer CommissionDISCLOSURE Purpose of Disclosure1. Important from parties perspectivea. Provides an insight into the case of other parties and it assists in advising the client about strategies and settlementPolicy Rationale 1. Procedural fairness and equalitya. Parties should know about the case they have to answer; this prevents ambush or surprise at trialb. Giving access to other documents; this provides a chance for parties to put their best argument forwardc. Prevent situation where one party holds back a document that is detrimental to their case2. Efficiency: r 5a. Rules are to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expenseb. Disclosure assists to narrow the issues before the course; this promotes the expeditious resolution of the issues3. Promotion of resolution other than by triala. Having access to the documents allows lawyers to better assess the real issues in dispute and the merits of each sides caseb. May also help with negotiation, and narrowing of issuesDuties of Lawyer1. Duty to the client - advise the client about their disclosure obligations:a. Not destroying documents when litigation is anticipated; andb. Purposes and uses for which disclosed documents can be used:i. Central Qld v Hardy: implied undertaking not to use for ulterior purpose (purpose other than for which it was discovered) - court can issue injunction to restrain use of document ii. McCabe - undertaking continues beyond end of proceedings2. Duty to the courta. Solicitor must sign a certificate addressed to the court stating that the duty of disclosure has been explained fully to the party: r 226.i. Must file before trial: Myersb. Duty to take steps to ensure client is complying with disclosure obligationsc. Competing oaths - not to make a document look like a disclosable document so that it can be admitted as described: City Hall Albury Wodonga v Chicago investments:i. Court may order a party to file and serve an affidavit swearing a document or class of documents does not exist or has never existed: r 223Equitable disclosure (pre-preceding) The UCPR does not restrict any equitable rights to disclosure: r 209(3)

1. The Supreme Court has an inherent equitable jurisdiction to order disclosure of the identity of a wrongdoer:a. Norwich order: the person from whom disclosure is sought must have some involvement, even if innocent, in the commission of the wrong: Norwich Pharmacal v Customs:i. Norwich Pharmacal v Customs: A court could give an order to a person to disclose the identity of a wrongdoer so that a proceeding could be commenced. A person had been innocently involved in the wrongdoing. That person was required to give the person who had been harmed with information.ii. Re Pyne: A publisher of a circular that contained defamatory comments was required to disclose the authority of the article. The publisher had not been involved in creating the content of the allegedly defamatory article. The court made an order for the publisher to give information to the person who had been defamed about the identity of the wrongdoer.iii. Note: in Norwich and Re Pyne, the party did facilitate the commission of the wrong.2. After commencement but before the close of pleadings:a. It is questionable whether a Norwich order can be made after the commencement of proceedings but before the close of pleadings, because the UCPR provides that such an order can be made: r 214(2)(a). However, the Norwich Order may apply for non-parties.i. Computer Share: The court gave a Norwich Order before the pleadings had been closed to compel the defendant to give discovery of other documents.ii. Owens v Radio 2UE: The court made an order for discovery before the close of pleadings, because the other party could not plead without discovery. This was a defamation case.Disclosure and inspection between the parties under UCPR Part 1, Chapter 7 The obligations of Part 1, Chapter 7 apply to: Proceedings commenced by claim: r 209(1)(a); Any proceedings commenced by application that the court: Treats as started by claim under r 14: r 209 (1)(b); or Court orders that disclosure is required: r 209(1)(c) All parties in a proceeding have a duty of disclosure: r 211 The duty of disclosure is ongoing: The duty of disclosure continues until the proceeding is decided: r 211(2)

STEP 1: When is disclosure required?1. If an order has been made, disclosure is required at the time stated in the order: r 214(2)(a)2. If an application for a summary decision is made, 28 days after the decision: r 214(2)(b)3. If there is a further pleading or amended pleading, within 28 days after delivery of further or amended pleading: r 214(2)(c)4. If a document comes into the possession of the parties after disclosure, must disclose within 7 days (practically, within 7 days of the lawyers becoming aware of the document): r 214(2)(d)5. There is an automatic obligation of disclosure within 28 days after the close of pleadings: r 214(2)(e)

STEP 2: What must be disclosed without request? r 2111. All documents: s 36, Acts Interpretation Act 1954 (Qld); r 211(1)a. Any paper or other material on which there is writing; andb. Any paper or other material on which there are marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; andc. Any disc or tape or other article of any material from which sounds, images, writings or messages are capable of being produced or reproduced (with or without the aid of another article or device);i. Including computer data base (inspection): Poteri v Clarke (1998)2. Directly relevant to an allegation in issue in the pleadings: r 211(2)a. Matter in issuei. A material fact that is denied or not admitted: r211(3) b. Directly relevant i. Directly relevant: means something which tends to prove or disprove the allegation in issue: Robson v REB Engineering ii. Directly: should not be taken to mean that which constitutes direct evidence as distinct from circumstantial evidence: Robson v REB Engineering iii. Do not include documents that only lead to a chain of inquiry: Mercantile Mutual v Village 3. In the possession or under the control of the party: r 211(3)a. Possession:i. An enforceable right to obtain possession from another: Turner v Davies b. Control:i. Control is a more stringent requirement than power; it means to exercise direction over[or have] command over a document: Erskine v McDowall;1. Erskine v McDowall: party was asking plaintiff for applications made to Commonwealth agencies. Plaintiff did not have copies of the documents in her possession. Plaintiff could not direct or command those agencies to provide her with copies of the document, but she could make a freedom of information application. HELD: the plaintiff could not direct the agency to give a copy of the application and thus, she did not have control over the document; the department could reject the freedom of information application. The judge ordered the plaintiff to make a freedom of information application, pursuant to r 367, 223.2. Linfa v Citibank: A parent company may have the power to compel a wholly owned subsidiary to provide it with documents if the subsidiary is acting on behalf of the parent company.3. It is questionable whether a parent company has control over documents held by a subsidiary under the UCPR.

STEP 3: How must disclosure be done?1. List of documentsa. Produce a list of documents for inspection, including privileged documents: r 214(1)(a) (form 19)2. Produce documents for inspectiona. At the partys request, must deliver a copy of the document to the other party: r214(1)b. May require the other party to produce for inspection the original documents: r 215c. If it is impractical to produce a list of documents (due to the number, size, quantity or volume of documents), must notify the other party of a convenient place and time to inspect: r 216 d. There are a number of procedures for producing documents: r 217 (see legislation) 3. By court order otherwise, which can be made at any stage: r 223 (see legislation)a. This only applies if there are special circumstances and the interests of justice require it; or there is an objective likelihood that disclosure has not been complied with: r 223 (4)i. If an order is made because there are special circumstances and the interests of justice require it, the documents sought do not have to be directly relevant to an allegation in issue: Lampson (Australia) Pty Ltd v Ahden Engineering.STEP 4: Exceptions to disclosure 1. Documents not required to be disclosed automatically, but at the other partys request:a. Documents relating to damages: r221b. Disclosed in pleadings: r2222. Documents which are exempted despite meeting r 211 requirement: r212(1)a. Privileged documents: r 212(1)(a) b. Documents relevant only to credit: r 212(1)(b) c. Copies of documents already disclosed: r 212(1)(c)3. Must include a reference to these documents: r 214(1)4. The court may provide relief from disclosure: r 224a. The court will consider: r224 (2)i. Likely time, cost and inconvenience of disclosure;ii. Relative importance of the question;iii. Probable effect on outcome of disclosure;iv. Other relevant considerations.

STEP 5: Consequences of nondisclosure (failing to disclose on time) Must obtained leave to tender the document or adduce evidence of its contents: r225(1)(a)1. Party is liable for contempt of court: r225(1)(b) 2. Party may be ordered to pay the costs or a part of the costs of the proceedings: r225(1)(c)

Use of disclosed documents1. Use of disclosed documentsa. Central Queensland cement v Hardy: Parties make an undertaking to the court that they will only use the documents for the purposes of the proceeding. The court may issue an injunction to restrain a party from using disclosed documents for an ulterior purpose.b. McCabe v British American Tabacco: The obligations endure, even after the proceedings have ended.c. Queensland case in textbook: A party may apply to the court to use the document for alternative purposes.2. Extensive costs associated with disclosureConcerns about disclosure1. Scope of disclosure a. Central Queensland Mining Supplies v Columbia Steel: Even with the aid of judicial interpretation of the term directly relevant, there often remain scope for legitimate argument about whether a particular document or category of document tends to prove or disprove an allegation and is therefore directly relevant.2. Cost issues

Addressing Concerns1. Rule 5 implied undertaking to the court to proceed in an expeditious way;2. Rule 224: Court may relieve the parties from disclosure obligations;3. Rule 241: If the cost of complying with this part would be oppressive to a party, the court may order another party to pay or contribute to the cost of compliance or provide security for the cost;4. Supreme Court Practice Direction 11 of 2012: Supervised case lista. If the case is on the Supervised Case List, there is no requirement to provide automatic disclosure. Orders relating to disclosure will be in accordance with the document management guidelines annexed to the Practice Direction.5. Supreme Court Practice direction 10 of 2012: Technology

Interrogatories under the UCPR1. Interrogatories are a series of questions, which have to be answered on oath or affirmation: r 229,230.a. Must have the leave of the court: r 229(1)b. Can be made at any time: r 229(1)c. Limited to 30 interrogatories: r 229(2)2. The court will only give leave if there is not likely to be available to the application at the trial another reasonably simple and inexpensive way of proving the matter sought to be elicited by interrogatory: r 230(1)(b) 3. Objections to answering interrogatories: r 233(1)(a)-(e)a. Does not relate to a matter in question;b. Not reasonably necessary;c. Alternatives are available of proving the matter that are reasonably simple and inexpensive;d. Interrogatory is vexatious or oppressive;e. Privilege.

Legal professional privilege 1. Communication between legal practitioner and client for the dominant purpose of existing or anticipated litigation: Esso Resources Australia v Commissioner of Taxationa. Dominant meaning ruling, prevailing, most influential or paramount purpose.i. Examples:1. Written advice from lawyer to client;2. Information sent by client seeking legal advice; or3. Notes taken by lawyer in relation to communications with client. b. Existing or anticipated litigationi. Examples1. Communication between lawyers and third parties2. Communication between third parties and clients2. However, a document consisting of an expert report or statement is not privileged: r212(2) a. Disclosable:i. Expert reports and draft written reports; ii. Emails and written letters setting out expert opinion; iii. Documents that expert has prepared but never provided to solicitors: Interchase v Grosvenor Hill;iv. Data from the expert.b. Privileged:i. Instructions from a lawyer to an expert: Interchase v Grosvenor Hillii. Notes of oral communication between expert and lawyer.iii. Communications between client and lawyer regarding expert opinion.

Without prejudice privilege The content of without prejudice communications cannot be used in proceedings and are off the record. They may, however, have cost implications.

Self incrimination privilege There is no obligation to disclose documents that expose the person in question to a civil or criminal penalty.

Parliamentary privilegePublic interest privilege: r 239Third party disclosure1. Equitable discovery from a non-party; and2. Non-party disclosure under UCPR (probably more likely to use this)a. Process:i. File and serve a notice of non-party disclosure: r 242.ii. Service must be same as for an originating process; (see topic 7)iii. Third party must produce relevant documents within 7-14 days of service r 242(1), (3);iv. Third party has 7 days from service to object to disclosure (or longer with the courts leave): r 245v. Other notes:1. If a notice of non-party disclosure is served, the documents are provided to the other party;2. If a subpoena is served, the documents are provided to courtb. Scope of disclosure: r 242(1)(a)-(c)i. Documents (see above);ii. Directly relevant to an allegation in issue on the pleadings (see above);iii. In the possession or under the control of the third party (see above);iv. The third party could reasonably be required to produce the documents at trial.

SETTLEMENT AND NEGOTIATIONReforms addressing adversarial system1. Includes:a. Greater court control over the conduct of litigation (for example, case management);b. Movement towards minimising the use of courts and adjudication to finalise cases; c. Near removal of jury trials.2. Despite reforms, for many clients, litigation is:a. Expensive;b. Unpredictable outcome;c. Time consuming;d. Adversarial; e. Physically and emotionally distressing; f. Only provides for adjudication of the legal issues.Policy objectives: Morgan v Johnson1. Private interests of individual litigantsa. Reduces costs;b. Ensures parties are accurately informed about the strength of each side;c. Imposes costs on excessive greed;d. Negative - not aware settling for less than the objective worth of case.2. Public interest of the prompt and economical disposal of litigationa. Less time spent in courts regarding matters which can be determined between parties;b. Social costs with high settlement rates lack of information about going rates/ greater inconsistency with characteristic decision-making (as decisions are basically unreviewable).Mechanisms for achieving settlement

Alternative dispute resolution1. Court annexed alternative dispute resolution by party request or court order: Pt 6 of the Civil Proceeding Act 2011 (Qld)a. Mediation process where a third party facilitator, a mediator, helps the parties decide their dispute by negotiated agreement without adjudication.i. Decision of mediator is filed and sealed in courtb. Case appraisal process where a case appraiser make a provisional determination of a dispute.i. In reality, case appraisal is rarely used.ii. QLS suggested that case appraisal be removed as a form of ADR.iii. Decision of appraiser is filed and sealed in courtiv. Decision is final, unless one of the parties elect to proceed to trialv. there can be cost consequences of proceeding to trial.c. Advantages of court annexed ADR:i. Court may make sanctions if the parties do not comply with the order (full and frank participation)ii. Proceedings are stayed until the mediation is completed2. Other ADR process - agreement between parties to attenda. Mediation - Third party assists parties to identify issues, develop options, consider alternatives and try to reach agreement; purely facilitative role (not advisory role)b. Conciliation - Third party assists parties to identify issues, develop options, consider alternatives and try to reach agreement; an advisory (not adjudicative) as well as a facilitative role.c. Arbitration - Parties present arguments and evidence to independent expert who makes a determination; most commonly used in commercial, construction, labour and international trade disputes. d. Direct negotiatione. Advantages of other ADR processi. Not limited to issues raised in pleadings interests of parties consideredOffers of settlement

Objects of offers to settle generally: Maitland Hospital v Fisher1. To save private costs and the avoidance of the risks of litigation by promoting early offers of compromise.2. To save public costs, which are necessarily incurred in litigation, which events demonstrate to have been unnecessary, having regard to an earlier reasonable offer of compromise.3. To indemnify the plaintiff who has made an offer of compromise.

Advantages of Formal Offer v Calderbank offer1. Rules reverse onus as to costs the offeror is prima facie entitled to costs on an indemnity basis unless the offeree can show that another order is more appropriate: r360-361a. With Calderbank Offers, there is a discretion regarding costs on an indemnity basis: Baulderstone; Miwa

Justifying ordering costs on indemnity basis Provides parties with an incentive to make a moderate offer to settle early in the proceedings. If an offer is made and not accepted, the offeror is indemnified against costs which are later incurred: Morgan v Johnson Provides an incentive for the defendant to accept the offer and not incur the expenses of litigation. However, it is counterbalanced by the fact that, early in the proceedings, there is less information available to determine whether the offer is favourable or not.

Formal offers of settlement (Chapter 9, Part 5) An offer to settle is made without prejudice: r 356; not disclosable to the court until costs declaration: r357(3) Any statement of fact made in an offer cannot be disclosed in a pleading or affidavit: r 357(1); Cannot withdraw the offer before it expires without leave of the court: r 355. Offer lapses only at the end of the period stated, even if the other party makes a counter offer: r 357(2). May include offer to pay assessed costs, assessed on the filing notice of acceptance: r358(5) Court may incorporate all or part of offer in the judgment: r 358(4)

STEP 1: Has a formal offer been made and accepted according to rules? (note: if requirements are not met, it may be a Calderbank Offer)1. Requirements of an offer:a. Must serve on the other party before the final relief is granted: r354(1)(b)b. Offer to settle must be in writing: r 353(3);c. Contain a statement that it is made under Chapter 9, Part 5 of UCPR: r353(3); andd. Must set out a period the offer will remain open and that period must be for at least 14 days: r 355(1).e. Contain real and genuine element of compromise: Miwa 2. Requirements of acceptance: a. Must be in writing: r 358

STEP 2: Prima facie costs consequences if offer is rejected and proceeds to trial?1. Court will disregard the interest relating to the period after the offer has been served: r362(2)2. If Plaintiff made an offer to settle and Defendant did not accept: r 360(1) anda. Plaintiff obtains a judgment no less favourable than the offer to settle; andb. Plaintiff was willing and able to carry out what was proposed in the offer: then(1) Prima facie entitled to costs on indemnity basis for entire proceedings.(2) Where there are multiple offers by the plaintiff, the first offer counts for rule 360 purposes: r 360(2)3. If Defendant makes offer and Plaintiff rejects it: r361a. Plaintiff obtains a judgment that is not more favourable to the plaintiff than the offer to settle; andb. Defendant was willing and able to carry out what was proposed in the offer; then(1) Prima Facie defendant pays plaintiffs pre-offer costs (before date of service of offer), plaintiff pays defendants post-offer costs(2) Where there are multiple offers by the defendant, the first offer counts for rule 360 purposes: Hilliar v Sheather

STEP 3: Is another order more appropriate?1. The rules in relation to a formal offer of settlement do not displace the courts discretion over costs: Davies v Fay2. Factors (consider circumstances at time offer is made):a. Was the offer a genuine offer of compromise? Davies v Fayb. Was it unreasonable for the offeree not to accept the offer? Castro v Hilleryc. Did offeree have an informed opportunity to assess the likelihood of either party doing better than the offer?d. What material was available to the offeree at the time the offer was made?e. Are there developments after the date of the offer and the trial, which indicate that indemnity costs to the successful plaintiff are inappropriate?STEP 4: Failure to comply with accepted offer? r3651. Apply to the court for a judgment on the conditions of the offer: r365(a)2. Continue proceedings as if an offer to settle had not been accepted: r365(b)

Contractual offer of settlement Role of informal offer (limited in Aust due to formal offer rules) When rules inapplicable / no formal regime for making offer: R v Murfett (No 2)

STEP 1: Have requirements been met/ accepted1. Be marked without prejudice save as to costs or contain words to that effect;2. Set time period that offer will remain open for; and3. Contain a clear and precise offer.4. Offer of real/genuine compromise?

STEP 2: Costs consequences of non-acceptance?1. Serving Calderbank offer alters general rule that costs follow the event and provides the court with basis to exercise discretion under act to order costs on indemnity basisa. proceedings are settled assumption that this refers to the particular proceedings on foot- not extended to settlement on appeal: Miwa2. No prima facie assumption of indemnity costs order: cf. Naomi Marble [1999] rather court exercises discretion to order indemnity costs and considers: a. Whether genuine offer was made: Hobartsville Studb. Whether offeree unreasonably failed to accept the offer: Haxeldenes Chickenc. Offeror (claiming indemnity costs) bears onus to prove these questions: Miwa3. Generally, costs from reasonable time from date of offer not for whole of action as in formal offer: supported by Full SC of SA in Pirotta v Citibank Pty Ltd (not conclusive)

Courts jurisdiction to award costs after offer: r680 party only get costs under rules/ court order1. Consent order (r666) ask registrar to invert informal offer into consent2. Inherent jurisdiction regarding Calderbank offer, frivolous or vexatious litigation

STEP 3: Ideally want to convert informal offer into consent order under r 6661. Requirements for consent order: r 666a. Parties consent in writing;b. Registrar considers it appropriate;c. Consent filed in the registry;d. Judgment or order stating that it is given or made by consent.2. The effect of the consent order is to render the settlement enforceable by imposing positive obligations on the parties:a. Creates estoppel as to matters finalised by it and can be enforced by all execution procedures provided for the enforcement of judgment: eg. Chapter 19 enforcement of money orders, contempt3. Grounds to set aside consent order:a. Consent given by mistake or parties were taken by surprise in consenting to judgment: Deputy Commissioner for Taxation v Chamberlain (1991)i. Not enough that consent offer was entered reluctantly after being persuaded by counsel: Harvey v Phillipsb. Where judgment not formally entered, there is the inherent jurisdiction to reconsider if there are grounds that would render a simple contract void or entitle a party to equitable relief against it: Tresize v NAB (1994): i. Terms of settlement entered into under duress, mistake, undue influence, with misrepresentation, non-disclosure of material fact, absence of confidence etcc. Law of compromise by infant /legally disabled person must be sanctioned by the court or public trustee: s 59, Public Trustee Act 1978; Fowler v Gray

STEP 5: Enforcement of compromise of action (where no intervention by court requested)1. Generally, a compromise of action that takes effect without the intervention of the court must be valid as an enforceable contract: Green v Rozen2. If the parties want to enforce the contract in court where it is has not been complied with: a. Must get the contract in writing b. Are the proceedings on foot?i. If yes: the party can apply for a motion of judgment in the proceeding compromised.1. The agreement must coincide with the original pleadings.2. If the agreement goes beyond the scope of action, it may only be enforceable in separate proceedings: Crisp and Gunn Co-operative3. However, in simple cases, the compromise may be enforceable, provided the court is satisfied that justice can be done under the summary procedure: Roberts v Gippsland Agriculture:c. Conditions for enforcement of compromise by motion of judgment: General Credits (Finance) Pty Ltd v Fenton Lake Pty Ltd (qld)i. Proceeding must be on foot;ii. Stay of proceeding must be lifted;iii. Claim for payment of money on common count (debt, money for work and labour);iv. Compromise on terms that the Defendant pay the Plaintiff an agreed amount on an agreed date; andv. Defendant must have agreed to submit to judgment in default of payment. Lawyers Obligations1. Must disclose an estimate of legal costs and the contributions towards costs likely to be received from the other party (on settlement): s 312, LPA 2007 (qld) 2. A solicitor must not knowingly make a false statement to an opponent in relation to the case: R 22.1, Australian Solicitors Conduct Rule

COSTS Introduction

Types of costs1. Solicitor and own client costs - must pay lawyer pursuant to the costs agreementa. The amount includes GST: r 691(7)2. Costs of the proceeding - subject of costs ordera. Costs ordered to be costs of the proceeding;b. Costs of complying with steps necessary before starting proceeding;c. Costs incurred before or after proceeding for negotiations of settlement;d. Does not include the costs of an application: r 693

Costs Agreement between solicitor and client4 The costs agreement must be in writing or evidenced in writing: s322(2) Legal Professional Act 2007 (Qld) (LPA). Conditional costs agreement: s 300, LPA A cost agreement that provides that the payment of some or all of the legal costs is conditional on the successful outcome of the matter to which those costs relate. Conditional costs agreement cannot relate to criminal law matters or family matters Uplift fee Additional legal costs, excluding disbursements, payable under a costs agreement on the successful outcomes of the matter to which the agreement relates: s300 Cannot be for more than 25% of the legal costs: s324(4), LPA Cannot charge a contingency fee A costs agreement where the amount payable is calculated by the amount of the award or settlement or the value of any property: s325(1), LPA Certain costs agreements are void: s327 LPA Client can apply to have the costs agreement set aside if it is not fair and reasonable: s328(1) LPA

Courts Jurisdiction to award costs A party to a proceeding cannot recover any costs of the proceeding from another party other than under these rules or an order of the court: r 680

Policy objective of costs order The purpose of the costs order is to compensate the successful party for their costs, rather than to punish an unsuccessful party: Oshlack v Richmond River Council.

Timing of costs order Costs may be awarded at any stage of a proceeding: r 682

Steps for awarding costs

STEP 1: Who should get costs?1. Generally the costs of a proceeding, including an application in a proceeding, follow the event, unless the court orders otherwise: r681(1)a. Event: includes a consent judgment, an interlocutory application, or a discontinuance of proceedings.2. When a successful party may be deprived of costs:a. Court exercises a discretion (success does not give the successful party an automatic right to costs): r 681(1) Requires disentitling conduct or special or exceptional circumstances Successful party rejects an offer of settlement (See Settlement above) Successful party conduct in bringing an untenable claim: Verna Trading Pty Ltd v New India Assurance Co Ltd [1991]: FACTS: Verna took out a policy of marine insurance with New India Assurance. The policy covered goods from the time they left the warehouse to their place of storage. The goods arrived in Melbourne but Verna did not take immediate delivery. They were stored by a stevedoring company. When Verna finally took possession of the container, goods had been stolen. New India did not respond to Vernas request for payment of goods lost in transit under the policy. New India denied that the goods were insured, Verna suffered loss, that the alleged loss was covered by the insurance policy. First day of trial, New India was given leave to amend the defence that even if the facts were conceded, the policy did not cover the loss. On the last day of trial, New India made a new defence. HELD: Because of New Indias conduct, they were ordered to pay Vernas costs up to the first day of trial of the proceeding.

STEP 2: How should costs be assessed?1. Party entitled to be paid costs must serve a costs statement on the party liable to pay the costs: r 705(1)2. Costs assessor must assess costs on the standard basis: r702(1); see schedule at back of UCPRa. Includes costs proper for the attainment of justice; ori. Costs are proper if it is reasonable for a competent solicitor to have incurred the costs in carrying out the litigation: Hennessey Glass and Aluminum Pty Ltdb. Includes costs necessary for the attainment for justice i. Costs are necessary if litigation could not have been carried on reasonably without incurring the costs: Hennessey Glass and Aluminum Pty Ltd3. Court may order costs to be assessed on the indemnity bias: r703(1)a. Includes costs reasonably incurred and of a reasonable amount, having regard to: r 703(3)(a)-(c)i. Scale of fees prescribed for the court;ii. Any costs agreement between the client and solicitor; iii. Chargers ordinarily payable by a client for the work.b. Examples:i. Offers to settle:1. Where (1) formal offer is rejected by defendant, (2) plaintiff obtains judgement no less favourable than the offer to settle, (3) plaintiff was wiling and able to carry out order: r 360ii. Misconduct:1. Where there has been misconduct in the litigation2. The proceedings were commenced for an ulterior purpose3. Course of conduct tended to prolong the proceedings: Verna Trading Pty Ltd v New India Assurance Co Ltd4. Dishonest in giving evidence5. The claims were baseless 4. Court has discretion to make any other costs order: r 687(2)(a)-(d)a. Specified part or percentage of assessed costs;b. Assessed costs from a specified period of proceedings;c. Amount fixed by the court;d. Amount to be decided by the court.5. Court may order a lawyer to repay lawyers client all or part of any costs ordered to be paid by the client: r690a. Where costs were incurred because of the lawyers delay, misconduct or negligence: r690.

Procedure for assessing costs 1. A Costs may be assessed without an order for assessment: r 6862. Costs on a standard basis (for an Australian lawyer) are assessed in accordance with Court scales: r 691.3. Procedure for assessing costs:a. An order for costs is made.b. A cost statement in the approved form has to be served on the parties paying the costs: r 705.c. Within 21 days after being served, the party may object to any item in the statement by serving a notice of objection: r 706(1)d. After (c), would go to judge or registrar;e. After (d) sent to costs assessor;f. After (e) there may be an appeal;g. After (g), the amount is a liquidated demand.

Other costs matters1. Where proceedings commenced in the wrong court:a. The court must assess costs as if the proceedings had been started in a lower court where proceedings were brought in the wrong court, unless the court orders otherwise: r 6972. Where there are multiple issues:a. The court may make an order for costs in relation to a particular part of the proceeding: r 684 (Plaintiff pays costs of some issues, but receives costs for others)3. Where there are multiple parties:a. Bullock order: (1) Plaintiff ordered to pay the successful Defendants costs; (2) those costs become a disbursement, part of the Plaintiffs costs of proceeding; (3) Plaintiff then recovers from unsuccessful Defendant as part of the costs of the proceeding (not advantageous for the plaintiff because they have to recover costs from another defendant; this protects the successful defendant)b. Sanderson order: Unsuccessful defendant ordered to pay the successful defendants costs and the plaintiffs costs (more advantageous for plaintiffs)i. This turns on whether it was reasonable for the plaintiff to join the successful defendant: Gould v Vaggelas (1984)ii. Sanderson orders successful where the defendant displays bad conduct4. Recovery against non-parties:a. A party may, exceptionally, recover costs against non-parties: (not expressly mentioned in the UCPR, however, note r 681)b. Solicitors acting on behalf of an unsuccessful party where the claim is pursued for an ulterior purpose.i. Knight v FP Special Assets Ltd: Even though an order for costs against a non-party is extraordinary, there should not be an arbitrary limitation on such a power. ii. Commissioner of Stamp Duties v Westleigh: Joinder is not a pre-requisite of an order for costs. However in this case, the solicitor was not joined and a cost order was not made against them.

1