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CONTENTS
WEEK 1: INTRO, COSTS, COMMENCING PROCEEDINGS....................................................................51. Stages of an action.............................................................................................................................5
1.1 Alternative outcomes (disposition without trial).........................................................................52. Overriding obligation of parties........................................................................................................53. Costs disclosure.................................................................................................................................54. Commencing proceedings.................................................................................................................7
4.1 Which court?.............................................................................................................................74.2 Which registry?..........................................................................................................................7
4.3 Which type of commencing proceeding?..................................................................................74.4 Which type of application?........................................................................................................7
4.5 What information must be included?.........................................................................................84.5 Wrong form................................................................................................................................8
4.6 Other rules re commencing proceedings..................................................................................8
WEEK 2: JURISDICTION, TRANSFER & CROSS-VESTING...................................................................9Jurisdiction – Service in same state, interstate and overseas..........................................................9
1. Proceedings where def in same state.........................................................................................9
2. Proceedings where def in different state.....................................................................................93. Proceedings where def overseas SEPA NOT RELEVANT!!!...................................................9
High Court and Federal Court.............................................................................................................10Transfer of proceedings.......................................................................................................................11
WEEK 3: LIMITATION OF ACTIONS, JOINDER.....................................................................................131. Limitation of Actions........................................................................................................................132. Joinder of Parties.............................................................................................................................13
2.1 Joinder of plaintiffs..................................................................................................................14
2.2 Joinder of defendants..............................................................................................................142.3 Joint and several liability.........................................................................................................15
3. Joinder of Causes of Action............................................................................................................154. Addition, Substitution and Removal of Parties.............................................................................155. Particular Parties..............................................................................................................................166. Consolidation....................................................................................................................................177. Representative Proceedings...........................................................................................................178. Third Party Proceedings..................................................................................................................17
WEEK 4: SERVICE OF PROCESS AND DOCUMENTS.........................................................................191. Service of Process............................................................................................................................19
1.1 Personal service - service of originating process (OP) in Qld.............................................191.2 Special parties – personal service of OP.............................................................................19
1.3 Ordinary service...................................................................................................................211.4 Proof of service....................................................................................................................22
2. Substituted Service and Interstate Service....................................................................................232.1 Substituted service (SS)......................................................................................................23
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2.2 Informal service.......................................................................................................................23
2.3 Interstate service – SEPA....................................................................................................233. International Service........................................................................................................................25
3.1 s 124........................................................................................................................................253.2 Procedure for international service..........................................................................................26
3.3 Service in Hague Convention countries..................................................................................263.4 Trans-Tasman proceedings....................................................................................................26
WEEK 5/6 – NOITD & PLEADINGS.........................................................................................................271. NOITD27
1.1 What is a NOITD?...................................................................................................................271.2 Why file a NOITD?..................................................................................................................27
1.3 Who may file a NOITD?..........................................................................................................271.4 Special Parties – Corporate defendants..................................................................................27
1.5 Time limits...............................................................................................................................281.6 Procedure................................................................................................................................28
1.7 Unconditional vs conditional....................................................................................................291.8 Responding to an application [Cannot respond to app with NOITD!]..................................30
2. Pleadings...........................................................................................................................................31Which court?.................................................................................................................................31
Which registry?..............................................................................................................................31Which type of commencing proceeding?......................................................................................31
Which type of application?............................................................................................................31What information must be included?.............................................................................................32
Wrong form....................................................................................................................................32Other rules re commencing proceedings......................................................................................32
2.1 What are pleadings..............................................................................................................322.2 Content of pleadings............................................................................................................33
2.3 What should pleadings look like? (r 146)................................................................................352.4 Specific pleadings...................................................................................................................37
2.5 Challenges to pleadings..........................................................................................................45
WEEK 7: DISCLOSURE...........................................................................................................................471. Disclosure by Parties.......................................................................................................................472. Non-Party Disclosure.......................................................................................................................493. Exemptions.......................................................................................................................................50
3.1 Privilege...................................................................................................................................50
WEEK 8: DRAFTING / COURT APPS / AFFIDAVITS / SUBPOENAS...................................................511. Applications......................................................................................................................................51
Originating Applications (OA)........................................................................................................51Interlocutory Application (IA).........................................................................................................51
Listing applications for hearing (Ch 13, Part 1 UCPR)..................................................................51How is evidence given?.................................................................................................................52
2. Expert Evidence / Court Experts.....................................................................................................53
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3. Subpoenas........................................................................................................................................53Power to issue subpoena:.............................................................................................................53Forms for subpoena......................................................................................................................53
Formal requirements.....................................................................................................................53Request for subpoena: Form 44....................................................................................................54
Subpoena not available for production of docs pre-trial................................................................54Subpoena to employer, company..................................................................................................54
Payment to witness.......................................................................................................................54Setting aside subpoena.................................................................................................................54
Service of subpoena......................................................................................................................55Admitting into evidence docs produced on subpoena...................................................................55
Production.....................................................................................................................................56Failing to attend on a subpoena....................................................................................................56
Notice to produce (originals).........................................................................................................56
WEEK 9: DISPOSITION WITHOUT TRIAL – ADR..................................................................................571. ADR under the UCPR.......................................................................................................................57
Mediation.......................................................................................................................................57
Case Appraisal (CA)......................................................................................................................59
WEEK 9 DISPOSITION WITHOUT TRIAL: DISMISSAL / DEFAULT JUDGMENT...............................612. Dismissal for Want of Prosecution.................................................................................................613. Default Judgment (DJ).....................................................................................................................61
WEEK 10: DISPOSITION WITHOUT TRIAL – SUMMARY JUDGMENT................................................634. Summary Judgment (SJ).................................................................................................................63
Features etc..................................................................................................................................63Application by plaintiff....................................................................................................................63
Application by defendant...............................................................................................................64Test for summary judgment...........................................................................................................64
Costs / Stay...................................................................................................................................64Setting aside SJ............................................................................................................................64
WEEK 10: DISPOSITION WITHOUT TRIAL – DISCONTINUANCE & WITHDRAWAL........................655. Discontinuance and Withdrawal [Form 27].................................................................................65
WEEK 10: DISPOSITION WITHOUT TRIAL – OFFERS TO SETTLE....................................................676. Offers to Settle..................................................................................................................................67
Costs when there is an offer to settle............................................................................................69
WEEK 11: ENFORCEMENT.....................................................................................................................711. Preliminary Issues............................................................................................................................712. Application for Leave to Enforce (where 6+ years).......................................................................713. Costs and Interest............................................................................................................................724. Equitable and Common Law Remedies.........................................................................................725. Debt Collecting.................................................................................................................................726. Pre-Judgment Steps.........................................................................................................................73
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6.1 Attachment of person..............................................................................................................73
6.2 Freezing orders (Mareva order)..............................................................................................736.3 Search orders (Anton Piller orders).........................................................................................74
7. Enforcement Hearing.......................................................................................................................757.1 Application for stay of enforcement.........................................................................................75
8. Where to Enforce..............................................................................................................................759. Applying for a Warrant.....................................................................................................................77
9.1 Warrant for seize and sale......................................................................................................779.2 General warrant for redirection of debts..................................................................................78
9.3 Warrant for redirection of debts from financial institution........................................................799.4 Warrant for redirection of earnings..........................................................................................80
9.5 Order for payment by instalment.............................................................................................80
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WEEK 1: INTRO, COSTS, COMMENCING PROCEEDINGS
*** All rules refer to Uniform Civil Procedure Rules 1999 (Qld) ***
1. STAGES OF AN ACTION
Pleadingso Claim + SoC – claim = what you want; SoC = why you should get ito NOITD (the what); defence (the why)o Defence / Counterclaimo Reply / Answer
Fact Findingo Disclosureo Trial
Judgment Enforcement Costs
o Assessment of costs
1.1 Alternative outcomes (disposition without trial)
Settlement Summary judgment Default judgement ADR
2. OVERRIDING OBLIGATION OF PARTIES
r 5 UCPR: Philosophy – overriding obligation of parties(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.
3. COSTS DISCLOSURE
Legal Profession Act 2007 (Qld) (LPA) Part 3.4 regulates costs disclosure and assessment
o Disclosure of costs to clients (s 308 LPA): law practice must disclose certain things to client [see below for full section]
o How and when disclosure must be made (s 310 LPA): disclosure under s 308 must be made in writing and before or as soon as practicable after being retained
o Exceptions to disclosure requirement (s 311 LPA): exceptions include: Total legal costs less than $1,500 Client a “sophisticated client” (clients who are law firms / large p/ships / liquidators) Costs agreed through tender process Costs not to be recovered by law practice If the law practice acts pro bono
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o Additional disclosures - settlement of litigious matters (s 312): before the settlement is executed, firm must disclose:
Reasonable estimate of amount of costs payable if the matter is settled, including costs of another party the client is to pay
Reasonable estimate of any contribution towards those costs likely to be received from another party
o Contingency fees prohibited (s 325): firm cannot charge fees calculated by reference to the amount of any award / settlement that may be recovered in proceedings
o Particular costs agreements void (s 327)
308 Disclosure of costs to clients
(1) A law practice must disclose to a client under this division--(a) the basis on which legal costs will be calculated, including whether a scale of costs applies to any of the legal costs; and(b) the client's right to--
(i) negotiate a costs agreement with the law practice; and(ii) receive a bill from the law practice; and(iii) request an itemised bill after receipt of a lump sum bill; and(iv) be notified under section 315 of any substantial change to the matters disclosed under this section; and
(c) an estimate of the total legal costs if reasonably practicable or, if that is not reasonably practicable, a range of estimates of the total legal costs and an explanation of the major variables that will affect the calculation of those costs; and(d) details of the intervals, if any, at which the client will be billed; and(e) the rate of interest, if any, that the law practice charges on overdue legal costs, whether that rate is a stated rate of interest or is a benchmark rate of interest as mentioned in subsection (2); and(f) if the matter is a litigious matter, an estimate of--
(i) the range of costs that may be recovered if the client is successful in the litigation; and(ii) the range of costs the client may be ordered to pay if the client is unsuccessful; and
(g) the client's right to progress reports under section 317; and(h) details of the person whom the client may contact to discuss the legal costs; and(i) the following avenues that are open under this Act to the client in the event of a dispute in relation to legal costs--
(i) costs assessment under division 7;(ii) the setting aside of a costs agreement under section 328; and
(j) any time limits that apply to the taking of any action mentioned in paragraph (i); and(k) that the law of this jurisdiction applies to legal costs in relation to the matter; and(l) information about the client's right--
(i) to accept under a corresponding law a written offer to enter into an agreement with the law practice that the corresponding provisions of the corresponding law apply to the matter; or(ii) to notify under a corresponding law, and within the time allowed by the corresponding law, the law practice in writing that the client requires the corresponding provisions of the corresponding law to apply to the matter.
Note for paragraph (l)--The client's right to enter into an agreement or give a notification as mentioned in paragraph (l) will be under provisions of the law of the other jurisdiction that correspond to section 303.
(2) For subsection (1)(e), a benchmark rate of interest is a rate of interest for the time being equal to or calculated by reference to a rate of interest that is stated or decided from time to time by an ADI or another body or organisation, or by or under other legislation, and that is publicly available.
(3) A regulation may make provision for the use of benchmark rates of interest, and in particular in relation to permitting, regulating or preventing the use of particular benchmark rates or particular kinds of benchmark rates.
(4) For subsection (1)(f), the disclosure must include--(a) a statement that an order by a court for the payment of costs in favour of the client will not necessarily cover the whole of the client's legal costs; and(b) if applicable, a statement that disbursements may be payable by the client even if the client enters a conditional costs agreement.
(5) A law practice may disclose any or all of the details mentioned in subsection (1)(b)(i), (ii) and (iii), (g), (i), (j) and (l) in or to the effect of a form approved by the chief executive for this subsection, and if it does so the practice is taken to have complied with this section in relation to the details so disclosed.
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4. COMMENCING PROCEEDINGS
4.1 Which court? Under $150k – Magistrates Court
$150k - $750k – District Court
$750k + - Supreme Court
NB. SC and DC have jurisdiction to hear below $ amounts, but possible adverse costs order
4.2 Which registry?
A proceeding may be started in any central registry (r 33)
A person must start a proceeding in (r 35(1)):a) The district where the def/resp lives or carries on businessb) If more than 1 def, the district in which 1 or more lives or carries on businessc) A district to which the defs/resp have agreed to in writingd) A district in which def/resp has undertaken in writing to pay a debt e) The district in which all or part of the claim / cause of action arosef) If proceeding for recover of land, the district in which the land is located
4.3 Which type of commencing proceeding? Claim: for factual disputes
o Claim compulsory : a proceeding must be started by claim unless the rules require/permit it to be started by application (r 9)
o Approved form : must be in approved form 2 (r 22(1))
Originating application (OA): disputes as to the law
o Application compulsory : a proceeding must be started by application if an Act or the rules require/permit person to apply to court for an order or another kind of relief and:
The Act or rules do not state the type of originating process to be used; or A type of originating process (other than claim/application) is required/permitted (r
10)
o Application permitted : a proceeding may be started by application if: The only / main issue is an issue of law and substantial dispute of fact unlikely; No opposing party or not intended to serve OA; or Urgent relief sought (and insufficient time to prepare claim) (r 11)
o Approved form : must be in approved form 5 (r 26(1))
Oral application: a court may allow a proceeding to be started by oral application if:
o Urgent relief sought; and
o Undertaking to file application within time directed; and
o Court considers it appropriate (r 12)
4.4 Which type of application? OA: commences proceedings – form 5 (rr 9-12)
Application in the proceeding: for interlocutory matters – form 9
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4.5 What information must be included?
Names: o All names to be included on (r 6(1)):
Originating process; Document served on non-party; and Final order
o Other documents may abbreviate this (r 6(2))
o If parties change, names of parties on subsequent document must reflect change (r 6(3))
4.5 Wrong form Use claim instead of application: Court may order proceeding incorrectly commenced by claim to
be continued as if commenced by application (r 13)
Use application instead of claim: Court may order proceeding incorrectly commenced by application to be continued as if commenced by claim (r 14)
4.6 Other rules re commencing proceedings
Contract details and address for service (r 17) Signature (r 19): signed by applicant / solicitor
Copy for court file (r 20) Other requirements for claim (r 22): approved form, attached SoC, if in DC or MC, show court
has jurisdiction
Statement about filing NOITD (r 23) Duration and renewal of claim (r 24): claim remains in force for 1 year starting day filed
Paper size, colour and type (r 961): A4 etc
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Cross-Vesting Act 1987 (Qld) = QVCAService and Execution of Process Act 1992 (Cth) = SEPA
WEEK 2: JURISDICTION, TRANSFER & CROSS-VESTING
There are two types of jurisdiction:
Territorial jurisdiction : also known as in personam, the basis for this jurisdiction is:
o The def’s presence in the jurisdiction (Laurie v Carroll); or
Note: action for damages for personal injuries = in personam (Laurie v Carroll)
o Submission by the def to the court’s jurisdiction: By filing an unconditional NOITD; or By express agreement By statutory extensions
Subject matter jurisdiction :
JURISDICTION – SERVICE IN SAME STATE, INTERSTATE AND OVERSEAS
1. Proceedings where def in same state
Will the [X court] have jurisdiction to hear the matter if [def] served in [X state]?
The [relevant] court will have jurisdiction because of the presence of the def in [that state] at the time of service (Laurie v Carroll)
o NB. SEPA is not relevant – only becomes relevant if service effected outside that state!
o Laurie v Carroll
It does not matter if the defendant is a foreigner or subject of the Crown; It does not matter how temporary the presence in the jurisdiction is; It does not matter why the defendant is in the jurisdiction unless the defendant has
been fraudulently enticed there to effect service; Jurisdiction will not be lost if the defendant leaves jurisdiction after being served
2. Proceedings where def in different state
Will the [X Court] have jurisdiction to hear the matter if [def] served in [Y state]?
The [X court] will have jurisdiction because the action is in personam (Laurie v Carroll) and the Service and Execution of Process Act 1992 (Cth) (SEPA) applies, enabling [X Court] to assume jurisdiction over [def], without having to satisfy a territorial nexus (Kontis v Barlin).
o Nexus: However, if there is a nexus, worth noting that because, eg, the wrong occurred in that state there would be a sufficient connection were it necessary to satisfy a nexus requirement.
o Qld court issuing: rule 123(2) expressly recognises that originating processes to be served outside of Qld be served in accordance with SEPA.
o District Court: SEPA applies to District and Supreme Courts (s 15(1) SEPA).
3. Proceedings where def overseas SEPA NOT RELEVANT!!!
Will the [X Court] have jurisdiction to hear the matter if [def] served overseas?
If Qld, start with: The WCS has all jurisdiction necessary for the administration of justice in Qld (s 58 Const of Qld Act 2001 (Qld) ) – and then continue as follows
SEPA is not relevant because service is effected overseas. The [X Court] will only have jurisdiction if there is some nexus with [X State] sufficient to enable service pursuant to r 124 (or equivalent in other state – Part 11 for UCPR NSW)
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Cross-Vesting Act 1987 (Qld) = QVCAService and Execution of Process Act 1992 (Cth) = SEPA
o There will be a sufficient nexus if (common examples – see full section for all):
based on a cause of action arising in Qld (r 124(1)(a)) related to a contract made in Qld (r 124(1)(g)(i)) or made by one or more parties
carrying on business or residing in Qld (r 124(1)(g)(ii)) based on a breach of contract committed in Qld (r 124(1)(h)) based on a tort committed in Qld (r 124(1)(k)) for damage all or part of which was suffered in Qld, caused by a tortious act or
omission wherever happening: (r 124(1)(l)) Darrell Lea Case: Damage includes any disadvantage or detriment, has a much wider meaning
than “injury” The rule is intended to facilitate access to the courts re foreign torts where
there’s a good arguable case for service outside jurisdiction The rule is concerned with damage to the plaintiff
Has [def] submitted to the [X Court’s] jurisdiction?
If [def] files an unconditional NOITD they will have voluntarily submitted to the jurisdiction of [X Court].
Is [def] likely to succeed in a challenge to the juris of the [X Court] [if no nexus]
[X Court] will not have original juris if there is an insouciant nexus with [state] to permit overseas service (r 124). SEPA does not apply because service is effected overseas.
In personam jurisdiction Is not vested by the cross-vesting scheme (David Syme v Grey)
HIGH COURT AND FEDERAL COURTWill the High Court (HCA) have jurisdiction?
The HCA has original jurisdiction where an action is between residents of different states (s 75(iv) Cth Constitution )
Jurisdiction cannot be cross-vested on the HC because it is not part of the cross-vesting scheme.
Will the Federal Court (FCA) have jurisdiction?
The FCA has no original jurisdiction and no state jurisdiction is conferred on the FCA
s 19(1) FCA Act 1976 (Cth) provides the FCA has original jurisdiction as is vested in it by laws made by Parliament and the original juris of the court under s 77(i) of the Cth Constitution and s 19 of the FCA Act is limited to matter which Parliament has specifically invested the court with jurisdiction to hear.
o s 39B(1A)(c) of the Judiciary Act 1903 (Cth) gives juris in any matter “arising under any laws made by Parliament other than… a criminal matter”
This provision has been expansively interpreted as a general conferral of juris ( Transport Workers Union ) but, it is essential the relief sought only be granted if some right exists by force of a federal law (Elders v Swinbank)
Where common law claim in tort there is no suggestion of any right existing by force of a federal law and therefore no basis on which the FCA would have original jurisdiction (or accrued/associated juris)
There is no cross-vested juris as the provisions originally enacted to give FCA juris over “state matters” (s 4(1) QCVA; s 9(2) Cth CVA) have been declared invalid (Re Wakim).
o In most state the offending provisions have been omitted by amending legislation
NB. However, if the FCA has jurisdiction over part of the matter (ie. CCA issue and also common law misrepresentation issue), the FCA can hear the whole matter, because it’s related to the same acts (ss 76(2) and 77(1) Cth Constitution; ss 19, 22 FCA Act; Re Wakim; Fencott v Muller )
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Cross-Vesting Act 1987 (Qld) = QVCAService and Execution of Process Act 1992 (Cth) = SEPA
TRANSFER OF PROCEEDINGS
Can proceedings in [Qld District Court] be transferred to [Y Supreme Court]?
Yes, by application to the [Qld Supreme Court]. Under s 8(1)(b)(ii) of the Cross-Vesting Act 1987 (Qld) (QCVA), the QSC may make an order removing the proceeding to the QSC so consideration can be given whether it should be transferred to [Y Court].
Once in QSC, the QCVA applies as if the matter were pending in the SC and an application may be made pursuant to s 5 QCVA for transfer to [Y Supreme Court].
Can proceedings in [Qld Supreme Court] be transferred to [Y Supreme Court]?
Yes, by an application made pursuant to s 5 QCVA for transfer to [Y Supreme Court].
Is there a procedure to prevent proceedings continuing in the QDC?
Yes, the court may stay its own proceedings if it is satisfied another state court has jurisdiction and is more appropriate (s 20(3) SEPA). In making this decision, the court must consider (s 20(4) SEPA):
o the place of residence of the parties and of the witnesses likely to be called in the proceeding;
o the place where the subject matter of the proceeding is situated;o the financial circumstances of the parties so far as the court is aware of them;o any agreement between the parties about the court or the place in which the proceeding
should be instituted;o the law that would be most appropriate to apply in the proceeding; ando whether a related or similar proceeding has been commenced against the person served or
another person but not the fact that the proceeding was commenced in the place of issue.
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WEEK 3: LIMITATION OF ACTIONS, JOINDER
1. LIMITATION OF ACTIONS
Limitation period
Period of time within which an action must be brought
Limitation periods in LAA
Contract: 6 years from time cause of action accrues (s 10 LAA)o Starts accruing at time of breach, not when damage has been suffered, ie. can get nominal
damages for breach even if no damage suffered
Tort: 6 years from time cause of action accrues (s 10 LAA)o Starts accruing when actual damage sustained (not when person knew it was sustained)o NB. A claim in contract might have expired but claim in tort might still be available (Babcock
v Brown)
Defamation: 1 year from date of publication (s 10AA LAA)
Personal injury: 3 years (s 11 LAA)
Action on judgment: 12 years (from date judgment becomes enforceable) (s 10 LAA)
Wrongful detention of chattel: 6 years (s 12 LAA)
Recovery of land: 12 years (from date right of action accrued) (s 13 LAA)
Exception where disability
A limitation period will not commence until a disability ceases (s 29 LAA). Ie. the period won’t start to run until, eg, child turns 18 years old. Includes infants and persons of unsound mind
Effect of expiry
On expiry of limitation period the cause of action remains, but there will be bar to proceedings continuing if raised by the def.
Extension
In some circumstances extensions may be granted where pls were unaware of their cause of action, but tardy or careless pls will not be assisted (Part 3 LAA)
2. JOINDER OF PARTIES
Necessary parties
Always start with: All parties who are necessary and proper for the resolution of a dispute must be brought before the court (r 62)
Res Judicata
The plea of res judicata applies where a court has given judgment in relation to matters that are the subject of litigation. It precludes the relitigation of claims made in earlier proceedings, and claims that could have been made in an earlier proceeding (Anshun)
Where same parties, same cause of action, same subject matter
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Issue Estoppel
Occurs where a particular issue has been litigated and a party seeks to open the same issue in subsequent proceedings involving a different cause of action (Arnold v Nat Westminster)
o Issues arise where common issue of liability arises (eg. MVA) but, if each proceeding tried separately, mutually inconsistent decisions might be reached
2.1 Joinder of plaintiffs
Joint entitlement
All parties entitled must be joined in the proceeding (r 63(1))
A party jointly entitled who refuses joinder must be added as a def (r 63(2))
o Ie. If you need them to sue and they refuse, must be added as def
r 65(1): Inclusion of multiple parties [same rules for pls and defs]
Same transaction or event or series of transactions or events: interpreted “series” to be limited by “same”, ie. must be the same (one) series of transactions (Payne v Young)
o Payne v Young : each pl operated a different abattoir, there were a number of transactions which were similar but each series was peculiar to each particular plaintiff
65 Inclusion of multiple parties in a proceeding(1) In a proceeding, 2 or more persons may be plaintiffs or defendants or applicants or respondents if:
(a) separate proceedings were brought by or against each of them and a common question of law or fact may arise in all the proceedings; or(b) all rights to relief sought in the proceeding (whether joint, several, or alternative) arise out of the same transaction or event or series of transactions or events.
2.2 Joinder of defendants
Inclusion of multiple parties (r 65(1)) [as above]
Same transaction or event or series of transactions or events:o Birtles v Cth :
Facts: pl claimed damages for PI, defs maintained pl’s action was statute barred, pl sought to add original solicitors as defs alleging negligence
Held: “transaction” encompassed the accident and injury sustained and further matters of relevant of the action against the defs and application of the time limitation
Adam J: by litigating against solicitors separately, pl could fall between two stools (where eg. won the negligence action, but statute barred in other action) so should be joined
o Bendir v Anson : the word “event” appears to give a wider scope to the word “transaction”
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Inclusion of multiple parties (r 65(2))
Doubt as to the person from whom entitled to relief: eg, building contract where architect, builder, engineer etc.
If there is doubt, the party should be joined and the court can decide who is liable, however, if it becomes clear that a party is not liable, it is important to release them from the proceeding at that point to avoid adverse costs orders
65 Inclusion of multiple parties in a proceeding(2) Also, in a proceeding, 2 or more persons may be defendants or respondents if:
(a) there is doubt as to:(i) the person from whom the plaintiff or applicant is entitled to relief; or(ii) the respective amounts for which each may be liable; or
(b) damage or loss has been caused to the plaintiff or applicant by more than 1 person, whether or not there is a factual connection between the claims apart from the involvement of the plaintiff or applicant.
2.3 Joint and several liability
Persons liable jointly and severally: need not be joined (r 64(1)) (ie. pl can bring proceedings against one party and if do not get payment after getting judgment, can then sue the others)
Persons liable jointly but not severally: court may stay proceedings until both parties are joined (r 64(2)) (similar to s 63 – all parties jointly liable should be brought in)
NB. s 54 Property Law Act 1974 (Qld): a promise may by 2+ persons is construed as a promise made jointly and severally
64 Joint or several liability(1) If a plaintiff or applicant seeks relief against a defendant or respondent who is liable jointly with another person and also liable severally, the other person need not be made a defendant or respondent to the proceeding.(2) If persons are liable jointly, but not severally, under a contract, and a plaintiff or applicant seeks relief in relation to the contract against some but not all of the persons, the court may stay the proceeding until the other persons liable under the contract are included as defendants or respondents.
3. JOINDER OF CAUSES OF ACTION
Inclusion of several causes of action in a proceeding (r 60)
Permitted where 1 of the following is satisfied (r 60(2)):
o Common question of law or fact may arise in all the proceedings
o The same transaction or event or series of transactions or events
o The court gives leave
4. ADDITION, SUBSTITUTION AND REMOVAL OF PARTIES
Wide powers: the court has wide powers to remove, include or substitute parties at any stage (r 69(1))
Incorrect parties: the court can decide a proceeding even if a party is incorrectly included or not included, and can deal with the proceeding as it affects the rights of the parties before it (r 67)
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Stay / separate trials: the court may order separate trials or stay the proceedings until a trial between other parties is decided (on condition def bound by findings of fact against other def) (r 68(2))
5. PARTICULAR PARTIES
Crown
A claim by / against the Crown should be made under “State of Queensland” (s 8(1) Crown Proceedings Act 1980 (Qld) )
o Eg. if want to sue Education Department – name as “State of Queensland”
Person under legal incapacity
A person under legal incapacity may start or defend a proceeding only by their litigation guardian (r 93(1))
Litigation guardian (r 94):
o must not be under a legal incapacity (r 94(1)(a)); and
o Must not have any interest in the proceeding adverse to the interest of the person under the incapacity) (r 94(1)(b))
Partnership
Proceeding may be started by / against p/ship name, and will continue in p/ship name except for NOITD which must be in partner’s own name (rr 83, 85)
o Because until you know who is behind p/ship, hard to make decision whether to sue – when they file in own name can check assets etc
Business Name
Where business name registered Business Names Act 1962 (Qld) (r 89)o A proceeding may be started against a registered business name (r 89)
o The NOITD must be in [person’s] name, not [business name’s] name (r 91)
Where business name not registered under Business Names Act 1962 (Qld) and name of business not person’s own name (r 90)
o Where a proceeding is brought against a person in relation to an unregistered business name, that is not the person’s own name:
the proceeding may be started in the name/style under which the person carries on business; and
the name/style is sufficient designation in documents filed; and an order may be enforced against the person (r 90)
o [Plaintiff/app] must, as soon as practicable take all reasonable steps to find out the name of person carrying on the business, and amend the proceedings accordingly (r 92)
o The NOITD must be in [person’s] name, not [business name’s] name (r 91)
Executors, administrators and trustees
If a person becomes bankrupt, impaired or dies during proceeding, a person may take further steps for or against the party only if the court gives leave and the person follows the court’s directions (r 72)
Estate: where cause of action survives person’s death, the originating process must name def/resp as “Estate of [name] deceased” (r 71)
Corporations
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Must have ACN on documents (unless ACN is in business’ name) (s 153(2) Corps Act 2001 (Cth))
Insolvency: if company being wound up in insolvency by the court or provisional liquidator is acting, a person cannot begin or proceed with a proceeding in a court against the company or an enforcement process in relation to company property except with leave of the court (s 471B CA)
6. CONSOLIDATION
The court may order consolidation of proceedings if:
o The same question is involved; or
o The decision in one will decide / affect the other (r 78)
7. REPRESENTATIVE PROCEEDINGS
A person is permitted to represent a group of pls / defs having the same interest in litigation (rr 75-77)
o Esanda : took a liberal view regarding what constituted the “same interest” – despite the fact the claims were made under separate contracts, because the borrowers had the same interest regarding the determination of whether the contracts contravened legislation
View prior to Esanda was that people who had different contracts could not sure together (Markt & Co)
An order made against a representative party may be enforced against a person not named as party only with the court’s leave (r 77)
8. THIRD PARTY PROCEEDINGS
Use: where a def seeks to lay the responsibility for the pl’s claim on a third party or where there are several defendants and one seeks to claim against another
NB. Unless pl joins third party as def, pl has no rights against that third party (Palmer v Finnigan)
Reason for third party procedure
A def may filed a 3rd party notice if they want to:
o Claim a contribution or indemnity; or
o Claim relief:
Relating to or connected with the original subject matter of the proceeding; and
Substantially the same relief as claimed by the pl; or
o Require a question/issue connected with the original subject matter to be decided not only as between the pl and def, but also as between either of them and a person not already a party to the proceeding
Time for filing
A 3rd party notice may not be filed by [def] until they file a defence (r 194(1)(a))
A 3rd party notice must be filed within 28 days after the time limited for the filing of the defence (or, if pl agrees to an extension, the agreed period) (r 194(1)(b))
Claim by 3rd party against another party
A party who receives a 3rd party notice can claim against another relief under r 192 (ie. 3rd party files another 3rd party notice etc) (r 206)
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Pl Def
3rd
Pl Pl Pl Pl Pl Pl Pl DefDefDefDefDefDefDef
3rd 3rd 3rd 3rd 3rd 3rd 3rd
Where def seeks to claim against another
3rd party notice can be used between defs, except where the only relief claimed in a contribution under s 6 Law Reform Act 1995 (Qld) (r 208)
o Ie. Def may file and serve a notice claiming contribution without further pleading (r 208)
Law Reform Act 1995 (Qld)6 Proceedings against, and contribution between, joint and several tortfeasorsWhere damage is suffered by any person as a result of a tort (whether a crime or not) the following apply:
(a) judgment recovered against any tortfeasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tortfeasor in respect of the same damage;
(b) if more than 1 action is brought in respect of that damage by or on behalf of the person by whom it was suffered, or for the benefit of the estate, or of the spouse, parent, or child of that person, against tortfeasors liable in respect of the damage (whether as joint tortfeasors or otherwise)--the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given; and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is of opinion that there was reasonable ground for bringing the action;
(c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by the person in respect of the liability in respect of which the contribution is sought.
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Service and Execution of Process Act 1992 (Cth) = SEPA
WEEK 4: SERVICE OF PROCESS AND DOCUMENTS
1. SERVICE OF PROCESS
1.1 Personal service - service of originating process (OP) in Qld
How must OP be served?
As the [OP] is an OP it must be served personally on [def/lawyer] (r 105(1)). OPs include:
o Claim / Application / Notice of appeal (r 8(2))
o Added def/resp (r 70); third party (r 195); counterclaim on new party (r 178)
o Not an interlocutory application (r 8(3))
If [def/lawyer] filed an unconditional NOITD the claim is taken to have been served on [def/lawyer] the day the NOTID is filed, or if a party proves the claim served earlier, on that earlier day (r 105(2))
How is personal service performed?
The person service must give the doc (OP) or a copy to [def/lawyer] (r 106(1))
If [def/lawyer] won’t accept the OP or copy, the server may serve it by putting it down in [def’s/lawyer’s] presence and telling him/her what it is (r 106(2))
o NB. Only apples if they won’t accept service – where process server says “these docs are for you” and lawyer took them thinking for a different matter it satisfied r 106(1) (NSW equivalent) because (2) only needed it lawyer didn’t accept doc, and they did (Ainsworth v Rudd)
It is not necessary to show person being served the original of the doc (r 106(3))
Service on solicitor:
Personal service is not required if def’s solicitor accepts service (r 115(1))
The solicitor must make a note on copy of doc stating they accept service for [def] (r 115(2))
The doc is deemed to have been served on [def] unless [def] proves solicitor did not have authority to accept service (r 115(3)) (solicitor must have instructions in writing)
Rule applies whether or not personal service required (r 115(4))
Service under contract:
A doc may be served in accordance with an agreed upon contract (r 119)
Time Requirements:
Claim stays in force for 1 year (r 24) – if renewed must be stamped and show period for which renewed (r 24)
Good Friday / Xmas Day: a doc cannot be served on Good Friday or Xmas (r 101)
Service after 4pm: a doc served after 4pm has been served the next day (r 103)
1.2 Special parties – personal service of OP
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Service and Execution of Process Act 1992 (Cth) = SEPA
Corporations:
If in same state as issue: OP (“docs to be served personally”) must be served in accordance with Corporations Act 2001 (Cth) (“CA”) or other applicable law (r 107), so must left at / posted to comp’s registered office, or delivered personally to a director who resides in Aus or overseas (s 109X(1) CA).
If outside state of issue: ss 109X (1), (2) do not apply to service on a corp in another state of docs that may be served under s 9 of SEPA (s 109(3) CA)
109X Service of documents (1) For the purposes of any law, a document may be served on a company by: (a) leaving it at, or posting it to, the company’s registered office; or (b) delivering a copy of the document personally to a director of the company who resides in Aus or in an external Territory; or (c) if a liquidator of the company has been appointed—leaving it at, or posting it to, the address of the liquidator’s office in the most recent notice of that address lodged with ASIC; or (d) if an administrator of the company has been appointed—leaving it at, or posting it to, the address of the administrator in the most recent notice of that address lodged with ASIC. (2) For the purposes of any law, a document may be served on a director or company secretary by leaving it at, or posting it to, the alternative address notified to ASIC under subsection 5H(2), 117(2), 205B(1) or (4) or 601BC(2). However, this only applies to service on the director or company secretary: (a) in their capacity as a director or company secretary; or (b) for the purposes of a proceeding in respect of conduct they engaged in as a director or company secretary. (3) Subsections (1) and (2) do not apply to a process, order or document that may be served under section 9 of the Service and Execution of Process Act 1992 . (6) This section does not affect: (a) any other provision of this Act, or any provision of another law, that permits; or (b) the power of a court to authorise; a document to be served in a different way. (7) This section applies to provisions of a law dealing with service whether it uses the expression “serve” or uses any other similar expression such as “give” or “send”.
Partners:
OP against p/ship must be served (r 114(1)):
o On one or more partners;
o On person at principal place of business of p/ship in Qld, who appears to have control/management of business;
o For p/ship registered under P/ship Act 1891 (Qld), at the registered office of p/ship
If OP served under sub(1), each patterns who was partner where OP was issued, including partners outside Qld at the time, is taken to have been served (r 114(2))
Service on non-partner: OP must also be served on any person [pl] seeks to make liable as a partner but who was not a partner when OP was issued (r 114(3))
Unregistered business names:
If proceeding brought against person in relation to an unregistered business name that is not the person’s own name, the proceeding may be started in the name/style under which the person carries on the business (r 113(1))
Service of OP effected by leaving a copy at place of business with person who appears to have control/management of the business (r 113(2))
Spouses / young people:
Spouses: both spouses must be served
Young people: OP (doc to be served personally) must be served on (r 108): o Litigation guardian (r 108(1));
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Service and Execution of Process Act 1992 (Cth) = SEPA
o If no litigation guardian : parent/guardian or adult who has care of the young person or with whom young person lives (r 108(2))
Persons with impaired capacity
OP (doc to be served personally) must be served on litigation guardian or, if no litigation guardian, person entitled under r 94(2) or adult who has care of impaired person (r 109)
Agent for a principal outside jurisdiction
The court may give leave to serve OP on agent located in Qld, without deciding agent’s authority (r 118(1))
The order must include the time in which principal must file NOITD (r 118(2))
[Pl – party serving] must immediately send the principal a copy of the order and OP by prepaid post (r 118(3),(4))
Crown
State of Qld: Service on the Crown effected by leaving OP at the office of Crown Solicitor with a reasonable person (s 19 Crown Proceedings Act 1980 (Qld) )
Cth: Service on the Cth effected by serving the AG (s 63 Judiciary Act 1903 (Cth ))
1.3 Ordinary service
Ordinary service (r 112)
When personal service is not required [ie. for interlocutory service], service is effected by (r 112(1)):a) Leaving doc with someone who is apparently an adult at the relevant addressb) If no one at the address, leaving doc where reasonably likely to come to person’s attentionc) If denied access, leaving doc where reasonably likely to come to person’s attentiond) Posting doc to the relevant addresse) (i) if person given fax number, by faxing; (ii) if given email, by emailf) If solicitor has: (i) an exchange box; (ii) fax; (ii) emailg) Electronic means prescribed by a PD (practice direction)
Relevant address: means (r 112(3)):
o person’s address for service;
o if no address for service, individual’s last known place of business or residence or last known place of business of partnership (if being sued in name of p/ship)
o for corporation, its registered office
Doc exchange under r 112(1)(f)(i): taken to be served day after left in exchange box (r 112(2))
Fax: must include (r 122(1)): a) the sender’s name and address;b) the name of the person to be served;c) the date and time of transmission;d) the total number of pages, including the cover page, transmitted;e) the telephone number from which the document is transmitted;f) the name and telephone number of a person to contact if there is a problem with the
transmission;g) that the transmission is for service under a stated rule.
o Affidavit of service of doc by fax must include, as exhibit, successful transmission advice (r 122(2))
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Service and Execution of Process Act 1992 (Cth) = SEPA
Post: service effected by properly addressing, prepaying and posting doc as a letter, taken to be effected at the time the letter would be delivered in ordinary course of post, unless contrary proven (s 39A(1) AIA 1954 (Qld) )
o If returned undelivered: inference of service will be displaced (Fancourt v Mercantile)
1.4 Proof of service
Affidavit of service: if an affidavit is required under the rules:
o An affidavit of personal service must be made by the server and include (r 120(1)(a)):i. Person’s full nameii. Time, date and date of serviceiii. Place of serviceiv. Name of person served and how they were identified
o Otherwise (r 120(1)(b)), i. Must state the relevant dates and facts showing service; andii. May be made on info given to, or the belief of, the person causing the service; andiii. If made on info given to the person, must state the source
Exhibits etc: An affidavit of service must (r 120(2)):
o have the doc filed with it as an exhibit or be written on the doc, or
o if the doc has been filed, mention the doc in a way sufficient to enable the doc to be identified (r 120(2)) [to avoid having multiple copies of a doc on the court file]
Identity of person served: a statement by a person of identity or as to holding of an office is evidence of that matter (r 121)
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Service and Execution of Process Act 1992 (Cth) = SEPA
2. SUBSTITUTED SERVICE AND INTERSTATE SERVICE
2.1 Substituted service (SS)
Order for SS: If it is impracticable to personally serve an OP, the court may order SS (r 116(1))
o To order SS, the court must have jurisdiction to prescribe personal service (Laurie v Carroll – def left juris and cause of action alleged didn’t come within rules for service outside juris)
o [Pl] must apply for leave of the court (r 116(1)), and it is an application (Form 9) brought ex parte which must be supported by an affidavit setting out grounds
Grounds: It must be shown there exists (r 116; Porter v Freudenberg ):
1. Practical impossibility of actual service; and Eg. frequent attempts Amos Removals : SS allowed - cost of service, geographical spread AND short time
for service made personal service impractical
Munkarra v Fischer : SS refused – pl must show extensive efforts made to effect personal service
2. Method of service proposed likely to bring proceedings to the knowledge of [def] Ie. SS won’t be ordered where no belief that the steps taken will bring the
proceedings to the knowledge or [def] or anyone representing their interest (Miscamble – refused SS, def’s whereabouts unknown for 45 years).
Order should only be made if likely to come to notice of attention of person to be served (Chappell v Coyle - refused SS, attempt to serve insurer when def could not be located not likely to bring to notice of def)
Next steps (r 116): o The court may specify the steps to be taken or that the doc will have been served on the
happening of an event/end of specified time (r 116(2), (3))
o Court may make an order even though [def] not in Qld or was not in Qld when proceeding started (r 116(4))
2.2 Informal service
If service is not effected as required but the doc has come into possession of [def], the court may order that possession is service (on the day of possession/another day) (r 117; Symes v Saunders )
2.3 Interstate service – SEPA
Start with: If OP to be served outside Qld but in Aus, must be served in accordance with SEPA (r 123)
Parties
Individual: OP may be served anywhere in Aus, and in the same way as service in the place of issue (s 15 SEPA)
Company / Reg body: service must be as per s 9 (s 15(3) SEPA) which requires leaving doc at, or sending by post, to registered office, or by delivering personally to a director of comp who resides in Aus
Other body corporate: service must be as per s 10 (s 15(4) SEPA) which requires leaving doc at, or sending by post, to place which a law requires it be served, or if no required place, leaving at/ sending to the registered pace of business
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Service and Execution of Process Act 1992 (Cth) = SEPA
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Service and Execution of Process Act 1992 (Cth) = SEPA
Prescribed notice
The prescribed notice must be attached (s 16 SEPA)
o Form 1 – Notice to Def
o Form 4 – Notice to Resp
Time for appearance and power to stay proceedings
Time for appearance: in effect 28 days as it is the longer of 21 days or the period in which it would have been required if served in Qld, which is 28 days (s 17(1) SEPA)
Stay of proceedings: The [def / person served] may apply to the court of issue for an order staying the proceeding and the court may order a stay if satisfied the court of another state that has juris to determine all matters is the appropriate court (s 20 SEPA)
o Does not apply to Supreme Court-issued proceedings! (s 20(1) SEPA)
o Court is to take into account (s 20(4) SEPA):a) the places of residence of the parties and of the witnesses likely to be called in the
proceeding; andb) the place where the subject matter of the proceeding is situated; andc) the financial circumstances of the parties, so far as the court is aware of them; andd) any agreement between the parties about the court or place in which the proceeding
should be instituted; ande) the law that would be most appropriate to apply in the proceeding; andf) whether a related or similar proceeding has been commenced against the person
served or another person;
but do not the fact that the proceeding was commenced in the place of issue.
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Service and Execution of Process Act 1992 (Cth) = SEPA
3. INTERNATIONAL SERVICE
3.1 s 124
Start with: An OP may be served outsider Australia without leave of the court if for (r 124) [all involve some sort of nexus with Qld]:
(a) a proceeding based on a cause of action arising in Queensland;(b) a proceeding about
(i) property situated in Queensland; or(ii) obtaining evidence for a future claim relating to property in Queensland;
(c) a proceeding in which an Act, deed, will, contract, obligation or liability affecting property in Queensland is sought to be interpreted, rectified, set aside or enforced;(d) a proceeding for relief against a person domiciled or ordinarily resident in Queensland;(e) a proceeding for
(i) the administration of the estate of a person who died domiciled in Queensland; or(ii) relief that might be obtained in a proceeding for the administration of the estate of a person who died domiciled in Queensland;
(f) a proceeding for the execution of a trust if(i) the trust is created or declared by an instrument; and
(ii) the person is a trustee; and(iii) the execution relates to trust property in Queensland; and(iv) the trust ought to be executed under the law of Queensland;
(g) a proceeding relating to a contract(i) made in Queensland; or(ii) made by 1 or more parties carrying on business or residing in Queensland; or(iii) made by or through an agent carrying on business or residing in Queensland on behalf of a principal carrying on business or residing outside Queensland; or(iv) governed by the law of Queensland;
(h) a proceeding based on a breach of contract committed in Queensland, regardless of where the contract was made and whether or not the breach was preceded or accompanied by a breach (wherever occurring), rendering impossible the performance of a part of the contract that ought to be performed in Queensland;(i) a proceeding based on a contract containing a condition by which the parties agree to submit to the jurisdiction of the court;(j) a proceeding for the recovery of an amount payable under an Act to an entity in Queensland;Note: Entity includes a person and an unincorporated body Acts Interpretation Act 1954, section 36.(k) a proceeding based on a tort committed in Queensland;(l) a proceeding for damage
(i) all or part of which was suffered in Queensland; and(ii) caused by a tortious act or omission (wherever happening);
(m) a proceeding affecting a person in relation to the person's membership of(i) a corporation incorporated in Queensland; or(ii) a partnership, association or other entity formed, or carrying on any part of its affairs, in Queensland;
(n) a proceeding for a contribution or indemnity for a liability enforceable in the court;(o) a proceeding for an injunction ordering a defendant or respondent to do, or refrain from doing, anything in Queensland (whether or not damages are also claimed);(p) a proceeding properly brought in Queensland against a person in which another person outside Queensland is a necessary or proper party to the proceeding;(q) a proceeding brought under the Civil Aviation (Carriers' Liability) Act 1959 (Cwlth)
(i) by a resident of Queensland; or(ii) in relation to damage that happened in Queensland;
(r) a proceeding in which a person has submitted to the jurisdiction of the court;(s) a proceeding in which the subject matter of the proceeding, so far as it concerns the person, is property in Queensland;(t) a proceeding concerning the interpretation, effect or enforcement of
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Service and Execution of Process Act 1992 (Cth) = SEPA
(i) an Act; or(ii) an Imperial or Commonwealth Act affecting property in Queensland;
(u) a proceeding concerning the effect or enforcement of an executive, ministerial or administrative act done, or purported to have been done, under an Act;(v) a proceeding relating to an arbitration held in Queensland;(w) a proceeding about a person under a legal incapacity who is domiciled or present in, or a resident of, Queensland;(x) a proceeding, so far as it concerns the person, falling partly within 1 or more of paragraphs (a) to (w).
Breach of r 124: if OP served in breach of r 124, the court must, on application, set aside service (r 126)
Specific examples:
“proceeding for damage (i) all or part of which was suffered in Queensland; and (ii) caused by a tortious act or omission (wherever happening)” (r 124(1)(h))
o Damage includes disadvantage or detriment suffered as a result of an act (Darrell Lea – because purchaser and insurer were Qld residents, effectively carried the loss here = in Qld)
o Damage includes bodily injury and loss AND consequential damage – whether by way of bodily injury or financial loss, incurring medical expenses etc (Challenor v Douglas)
3.2 Procedure for international service
The procedure for service is generally the same as if serving in Qld (r 129(1))
Nothing may be done in a country which is contrary to the law of that country (r 129(2))
3.3 Service in Hague Convention countries
Std procedures for service of docs through central authority established by country where service to be effected (see UCPR Ch 4, Part 7, Div 3)
Process Person may apply to registrar for request for service abroad (r 130D)
On receipt of application, if Registrar satisfied with application, must sign the request and forward 2 copies to a nominated authority, if requested, or otherwise to the central authority for the country in which service to be effected ((r 130E)
Procedure on receipt of certificate of service ((r 130F)
Payment of costs ((r 130G)
Evidence of service ((r 130H)
3.4 Trans-Tasman proceedings
The Act is yet to commence but will simplify service and resolution of civil proceedings involving parties in NZ
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WEEK 5/6 – NOITD & PLEADINGS
1. NOITD
Ch 5 UCPR
1.1 What is a NOITD?
A NOITD is a statement by [def] that they are going to contest the claim or take some party in the proceedings
Filing is necessary to avoid default judgment (r 280)
Only applies to proceedings commenced by claim (r 134)
o A NOITD cannot be filed in proceedings commenced by application (r 29(1))
1.2 Why file a NOITD?
[Def] cannot do anything of legal importance without filing a NOITD (r 135)
135 No step without notice of intention to defend(1) Except with the court's leave, a defendant may take a step in a proceeding only if the defendant has first filed a notice of intention to defend.(2) In this rule notice of intention to defend includes a conditional notice of intention to defend.
Court’s leave: Court’s leave will be granted where, for example, proceedings to be moved to a more appropriate court (eg. SC to Family Court) (Foley v Farquharson)
1.3 Who may file a NOITD?
[Def] may defend a proceeding by a solicitor or in person or, in a minor debt claim by an agent (r 136(1); Caltex Oil v Dredge – only def may enter an appearance (in person / through solicitor))
o Defend includes filing a NOITD (r 136(3))
If def under legal incapacity: [def] may defend the proceeding only by the litigation guardian who may only act by solicitor (r 136(2))
1.4 Special Parties – Corporate defendants
Business Name
If a proceeding brought against a business name/style, whether or not registered, a NOITD must be in the name of person carrying on the business, not in the business name (r 91(1),(2))
o Unless business being carried on under person’s own name (r 91(1))
o Applies whether business name/style registered under Business Names Act 1962 (r 91(1))
A person who files a NOITD must file/serve with it a statement of names and places of residence of all persons who were carrying on business under the name/style at the day the proceeding started (r 91(3))
o Court may set aside NOITD if r 91(3) not complied with ^^ (r 91(4))
Partnership
Despite an OP being against a p/ship, a NOITD must not be filed in p/ship name (r 85(1))
A partner served with an OP against a p/ship may only file a NOITD in their own name (r 85(2))
However, the proceeding continues in the name of the p/ship
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Third parties
Third parties are required to enter a NOITD (r 197) – or could face default judgment
1.5 Time limits
Time for filing
A NOITD must be filed within 28 days after the claim is served (r 137)
o 28 days does not include the day of service itself (Botha v Carter)
If interstate
If SEPA applies, a NOITD must be filed within the time limited by that Act (r 137(2)) which is 21 days or the time allowed in the place the OP was issued (s 17(1) SEPA).
Therefore, as the [OP] was issued in Qld, [def] must file a NOITD must be filed within 28 days.
If outside 28 days
[Def] may file and serve a NOITD at any time before judgment, even if [def] in breach of r 137 (r 138(1))
If [def] files a NOITD after the time limited for doing so (ie. after 28 days), [def] is not, unless the court orders otherwise, entitled to further time for anything else (r 138(2))
o Ie. Other time limits will not be adjusted accordingly (likely to still be linked to original service)
Default judgment
Default judgment applied for before NOITD period expires: o The DJ would be ineffective (Botha v Carter)
Default judgment applied for before NOITD filed: o The NOITD can be lodged any time before default judgment is granted (Cossack v
Wagner) (ie. not about when application made, but when actually granted)
o In Cossack v Wagner default judgment was applied for. Cossack attempted to file a NOITD which the registrar refused to accept. Held: there is nothing depriving the right to file a NOITD after the request but prior to judgment of an app for DJ. The registrar should accept the NOITD
1.6 Procedure
Form: A NOITD must (r 139):o Be in the approved form (Form 6);o Attach [def’s] defence; ando Be signed and dated.
Filing: A NOITD must be filed in the registry from which the claim was issued (r 141), but [def] may object:
o Mag’s Court (r 39); District Court (r 44); Supreme Court (r 48)
Service: a sealed copy of the NOITD must be served at [pl’s] address for service on the day on which it is filed or as soon as practicable after it is filed (r 142)
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1.7 Unconditional vs conditional
Unconditional
Filing an unconditional NOITD (Form 6) means [def] is waiving (r 144(6)):o Objections to the juris of the court; o Irregularities in the OP that were known to [def]o Irregularities as to commencemento Irregularities in service
Conditional
To avoid waivers as to juris/irregularities, [def] must file a conditional NOITD (Form 7) (r 144(1))
o There is no need to file a defence at the same time (r 144(2))
o Must file an application for an order under r 16 within 14 days or the conditional NOITD becomes an unconditional one (r 144(3), (4))
o On conditional NOITD becoming unconditional, [def] must file a defence within 7 days (r 144(5))
o If fail to file: court merely needs to be alerted (Hooper v Robinson) (ie. don’t necessarily have to file conditional NOITD)
When would [def] apply for a r 16 order?
Reasons to object:o Forum non conveniens: court can exercise discretion that the justice and convenience of
parties better suited in another court
o Service: eg. pl served on solicitor but solicitor doesn’t have instructions to accept service
o Contract: terms of contract specify a different juris for contractual disputes
Technicalities: If object on a technicality (eg. way claim filed / served), you have to go to the trouble of filing an application when [pl] can just file again anyway, so best to only use if there’s a jurisdictional issue
Grounds other than those in conditional NOITD: in applying for a r 16 order, [def] is not limited to the grounds in the specified in the conditional NOITD (Capewell v Seltino)
If conditional NOITD goes beyond simply challenging jurisdiction: [def] may be deemed to have submitted to court’s juris (Laurie v Carroll)
16 Setting aside originating processThe court may (a) declare that a proceeding for which an originating process has been issued has not, for want of jurisdiction,
been properly started; or (b) declare that an originating process has not been properly served; or (c) set aside an order for service of an originating process; or (d) set aside an order extending the period for service of an originating process; or (e) set aside an originating process; or (f) set aside service of an originating process; or (g) stay a proceeding; or (h) set aside or amend an order made under rule 127; or (i) make another order the court considers appropriate. Note: See also rule 373 (Incorrect originating process).
Withdrawal
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[Def] may withdraw NOITD at any time with the court’s leave or consent of other parties (r 306)
1.8 Responding to an application [Cannot respond to app with NOITD!]
r 29
A resp may not file and serve a NOITD to defend an application (r 29(1)) However, resp may file and serve a notice of address for service in the approved form (Form 8) (r
29(2)) The court may require a respondent to file and serve a notice of address for service in the
approved form (r 29(3)) Rule 17 (Contact details and address for service) applies in relation to a notice of address for
service as if the notice were an originating process and the respondent were an applicant (r 29(4)) Despite rule 17, an address for service stated under the Service and Execution of Process Act
1992 (Cwlth) is the address for service of the respondent (r 29(5)) Failure to file or serve notice of an address for service does not affect the respondent's right to be
heard on the hearing of the application (r 29(6))
Example
Bob files claim Tom filed unconditional NOITD Tom files an application pursuant to r 11 (Application permitted) using Form 5, to get proceedings
transferred to Brisbane Bob files a notice of address for service using Form 8
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2. PLEADINGS
NB COMMENCING PROCEEDINGS (WK 1)Which court? Under $150k – Magistrates Court
$150k - $750k – District Court
$750k + - Supreme Court
NB. SC and DC have jurisdiction to hear below $ amounts, but possible adverse costs order
Which registry?
A proceeding may be started in any central registry (r 33)
A person must start a proceeding in (r 35(1)):g) The district where the def/resp lives or carries on businessh) If more than 1 def, the district in which 1 or more lives or carries on businessi) A district to which the defs/resp have agreed to in writingj) A district in which def/resp has undertaken in writing to pay a debt k) The district in which all or part of the claim / cause of action arosel) If proceeding for recover of land, the district in which the land is located
Which type of commencing proceeding? Claim: for factual disputes
o Claim compulsory : a proceeding must be started by claim unless the rules require/permit it to be started by application (r 9)
o Approved form : must be in approved form 2 (r 22(1))
Originating application (OA): disputes as to the law
o Application compulsory : a proceeding must be started by application if an Act or the rules require/permit person to apply to court for an order or another kind of relief and:
The Act or rules do not state the type of originating process to be used; or A type of originating process (other than claim/application) is required/permitted (r
10)
o Application permitted : a proceeding may be started by application if: The only / main issue is an issue of law and substantial dispute of fact unlikely; No opposing party or not intended to serve OA; or Urgent relief sought (and insufficient time to prepare claim) (r 11)
o Approved form : must be in approved form 5 (r 26(1))
Oral application: a court may allow a proceeding to be started by oral application if:
o Urgent relief sought; and
o Undertaking to file application within time directed; and
o Court considers it appropriate (r 12)
Which type of application?
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OA: commences proceedings – form 5 (rr 9-12) Application in the proceeding: for interlocutory matters – form 9
What information must be included?
Names: o All names to be included on (r 6(1)):
Originating process; Document served on non-party; and Final order
o Other documents may abbreviate this (r 6(2))
o If parties change, names of parties on subsequent document must reflect change (r 6(3))
File number: must start with a S, D or M (r 964)
Wrong form
Use claim instead of application: Court may order proceeding incorrectly commenced by claim to be continued as if commenced by application (r 13)
Use application instead of claim: Court may order proceeding incorrectly commenced by application to be continued as if commenced by claim (r 14)
Other rules re commencing proceedings Contract details and address for service (r 17) Signature (r 19): signed by applicant / solicitor
Copy for court file (r 20) Other requirements for claim (r 22): approved form, attached SoC, if in DC or MC, show court
has jurisdiction
Statement about filing NOITD (r 23) Duration and renewal of claim (r 24): claim remains in force for 1 year starting day filed
Paper size, colour and type (r 961): A4 etc
2.1 What are pleadings
The docs which parties to litigation (pl and def) exchange with each other to establish the material facts they believe support their case
Pleadings also:o Act as a guide to disclosure : what docs and other evidence needs to be provided to the
other side
o Serve as a record of what matters have been pursued within a particular dispute so parties don’t end up re-litigating
o May facilitate settlement once the parties are aware of the strength or weakness of the other side’s case
Basic rule: the court is only going to adjudicate on matters outlined by pleadings unless the parties agree otherwise and the court permits such a departure from the pleadings (Banque Commerciale)
o Agreement cannot be inferred by a party’s failure to participate (Bank Commerciale)
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2.2 Content of pleadings
Fundamental rules (r 149(1))
[Need to identify all elements and include facts to support each element]
(1) Each pleading must (r 149(1)) --
a) be as brief as the nature of the case permits; and Extreme repetition can prejudice the fair trial of a proceeding (Robinson v Laws) However, some cases result in a SoC that is long and involved (Midland Milk)
b) contain a statement of all the material facts on which the party relies but not the evidence by which the facts are to be proved; and Each fact necessary to constitute the claim/defence is material (Phillips v Phillips)
Kirby v Sanderson :
“Material” means material to the claim (ie. the cause of action) – can’t talk about wife-beater in a breach of contract claim
Does not exclude the allegation of legal categories (eg. fiduciary/duty of care)
Eg. breach of contract, would allege oral agreement / conditions / date / that meeting took place etc – not going to plead that he has a diary entry / witness at a meeting because = evidence - plead the facts, not the proof
c) state specifically any matter that if not stated specifically may take another party by surprise; and Material facts must be stated in such a way that [def] can understand the materiality of the
facts that is, how they are material to a cause of action (Kirby v Sanderson)
d) subject to rule 156, state specifically any relief the party claims; and If damages claimed, must state the exact nature and amount (incl the exact circumstances
in which the loss or damage was incurred) (r 155)
court may grant relief not specified in the pleadings (r 156)
e) if a claim/defence under an Act is relied on, identify the specific provision under the Act Eg. s 18, Sch 2 (ACL) Competition and Consume Act 2011 (Cth)
(2) In a pleading, a party may plead a conclusion of law or raise a point of law if the party also pleads the material facts in support of the conclusion or point (r 149(2))
A conclusion of law is not essential though, provided all the “essential ingredients” are pleaded and the SoC discloses a cause of action (Creedon v Measey)
o Creedon v Measey : the only thing in support of the 4th def being liable was that he was the owner of the truck – pl clearly had vicarious liability in mind, no other cause of action presents itself
Cf. Phillips v Phillips: the SoC in no way enabled the defs to know what case they had to meet at trial
o Eg. negligence, would need to disclose info relevant to duty, breach, damages
Matters to be specifically pleaded (r 150)
(1) Without limiting rule 149, the following matters must be specifically pleaded --(a) breach of contract or trust;(b) every type of damage claimed including, but not limited to, special and exemplary damages;
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Note: See also rule 155 (Damages).
155 Damages(1) If damages are claimed in a pleading, the pleading must state the nature and amount of the damages claimed.(2) Without limiting rule 150(1)(b), a party claiming general damages must include the following particulars in the party's pleading (a) the nature of the loss or damage suffered; (b) the exact circumstances in which the loss or damage was suffered; (c) the basis on which the amount claimed has been worked out or estimated.(3) If practicable, the party must also plead each type of general damages and state the nature of the damages claimed for each type.(4) In addition, a party claiming damages must specifically plead any matter relating to the assessment of damages that, if not pleaded, may take an opposing party by surprise.547 Pl’s statement of loss and damage
Compliance is mandatory (Meredith v Palmcam – can’t say particulars given prior to trial)(c) defence under the Limitation of Actions Act 1974;
(d) duress;
(e) estoppel;
(f) fraud; Need to expressly state allegation and facts that constitute fraud (Millhouse – SOGs, seller
sold at lesser value than contract price, held: didn’t necessarily have to state contract price and real value but if known, you should)
If you allege misleading conduct you have to plead it (Zipside)
(g) illegality;
(h) interest (including the rate of interest and method of calculation) claimed;
(i) malice or ill will;
(j) misrepresentation;(k) motive, intention or other condition of mind, including knowledge or notice;
(l) negligence or contributory negligence;(m) payment;
(n) performance;
(o) part performance;
(p) release;
(q) undue influence;
(r) voluntary assumption of risk;
(s) waiver;(t) want of capacity, including disorder or disability of mind;
(u) that a testator did not know and approve of the contents of a will;
(v) that a will was not properly made;
(w) wilful default;
(x) anything else required by an approved form or practice direction to be specifically pleaded.
CONTINUED
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(2) Also, any fact from which any of the matters mentioned in subrule (1) is claimed to be an inference must be specifically pleaded.
Eg. If claiming other party received written notice, allegation of fact that letter was sent, to establish an element of cause of action
(3) If the plaintiff's claim is for a debt or liquidated demand only (with or without a claim for interest), the plaintiff must state the following details in the statement of claim
(a) particulars of the debt or liquidated demand;(b) if interest is claimed particulars as required by rule 159;
(c) the amount claimed for the costs of issuing the claim and attached statement of claim;
(d) a statement that the proceeding ends if the defendant pays the debt or liquidated demand and interest and costs claimed before the time for filing notice of intention to defend ends;
(e) a statement of the additional costs of obtaining judgment in default of notice of intention to defend.
See Form 16 at end for relevant info re r 150(3) ^^
(4) In a defence or a pleading after a defence, a party must specifically plead a matter that
(a) the party alleges makes a claim or defence of the opposite party not maintainable; or
(b) shows a transaction is void or voidable; or
(c) if not specifically pleaded might take the opposite parties by surprise; or
(d) raises a question of fact not arising out of a previous pleading.
2.3 What should pleadings look like? (r 146)
(1) A pleading must --(a) state the number of the proceeding; and
(b) state the description of the pleading; and
(c) be filed and state the date on which it is filed; and
(d) be signed by the solicitor for the party filing it or, if the party appears or defends in person, the party; and
(e) be consecutively numbered on each page; and
(f) be divided into consecutively numbered paragraphs and, if necessary, subparagraphs, each containing, as far as practicable, a separate allegation; and
(g) if it is settled by counsel state the counsel's name.
(2) In addition, a pleading (other than a reply) must have on it a notice to the party on whom the pleading is served under rule 164 informing the party about the time for serving pleadings in response under rule 164.
164 Time for serving answer to counterclaim and reply(1) Unless the court orders otherwise, any answer to counterclaim must be filed and served within” (a) 14 days after the day the counterclaim is served; or (b) if the defendant to the counterclaim is not a party to the original proceeding, 28 days after the day the
counterclaim is served.(2) Unless the court orders otherwise, any reply must be filed and served within 14 days after the day of the service of the defence or answer to counterclaim.Note: See chapter 9 (Ending proceedings early), part 1 (Default) for the consequence of default.
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2.4 Specific pleadings
Summary of sequence of pleadings
Pl serves Claim and SoC
Def serves NOITD and Defence
o Def may also want to serve a Counterclaim
o Pl must serve an Answer to Counterclaim
Pl serves Reply to NOITD/Defence
Specific pleadings:
Statement of Claim (Form 16) P 38
Defence (Form 17) or Defence and Counterclaim (Form 18) P 39
Counterclaim (Form 18 – Defence and Counterclaim) P 41
Reply P 42
Answer P 43
Particulars P 44
Challenges to pleadings P 45
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Statement of Claim (Form 16) Cause of action: Must disclose a cause of action eg
o Defamation : identification of the pl, defamatory statement, publication, damage (Ron Hodgson – def sought to strike out particular pleadings but court said had to include actual words which were defamatory!)
NB. Have info that’s not relevant (surplusage) is not fatal, but poor form
o Negligence : facts constituting duty, breach, damage (McCauley)
Introductory statements: Convenient to have introductory statements eg.
o The first def is and was at all material times a company duly inc in Qld.
o The second def was at all material times a director of the first def.
Facts: Contains the facts which support the relief and remedy sought
Should not anticipate the defence
o If more particulars are needed to rebut something alleged in Defence, should be done in the Reply – exceptions?
Where want to say def estopped, or have waived a defence (before def raises it)
Liquidated claim r 150(3) (see 2.2) – specifically plead the details
Trial by jury: unless trial by jury excluded by an Act, pl in SoC or def in Defence, may elect a trial by jury (r 472)
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Defence (Form 17) or Defence and Counterclaim (Form 18)
Admissions : A defence must answer every allegation of fact in the SoC or it is deemed admitted!
o Admissions should be made in the first para, eg “The def admits the allegations contained in paras 1 and 3 of the SoC”
Wouldn’t challenge eg, that def was a company unless material
Content (r 150(4)): (4) In a defence or a pleading after a defence, a party must specifically plead a matter that
(a) the party alleges makes a claim or defence of the opposite party not maintainable; or(b) shows a transaction is void or voidable; or(c) if not specifically pleaded might take the opposite parties by surprise; or(d) raises a question of fact not arising out of a previous pleading.
Answering pleadings (r 165(1)): (1) A party may, in response to a pleading, plead a denial, a non-admission, an admission or another matter.o Ie. Every allegation of fact made in numbered paras of SoC must be responded to in one
of three ways:
“The Def denies the allegation in paragraph X”
“The Def admits the allegation in paragraph X”
“The Def, having made reasonable inquiries, does not admit the allegation contained in para x”
Denials and non-admissions
Denials and non-admissions (r 166(3)): (3) A party may plead a non-admission only if:
(a) the party has made inquiries to find out whether the allegation is true or untrue; and
(b) the inquiries for an allegation are reasonable having regard to the time limited for filing and serving the defence or other pleading in which the denial or non-admission of the allegation is contained; and
(c) the party remains uncertain as to the truth or falsity of the allegation.
o So the defence should state “the def, having made reasonable inquiries, does not admit the allegation contained in para x”
o Reasonable inquiry: making inquiries of a commonly represented co-def (King v Ivanovic)
NB. r 165(2); r 168(1):
165 Answering pleadings(1) A party may, in response to a pleading, plead a denial, a non-admission, an admission or another matter.(2) A party who pleads a non-admission may not give or call evidence in relation to a fact not admitted, unless the evidence relates to another part of the party's pleading.
168 Implied non-admission(1) Every allegation of fact made in the last pleading filed and served before the pleadings close is taken to be the subject of a non-admission and rule 165(2) then applies.
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(2) However, nothing in these rules prevents a party at any time admitting an allegation contained in a pleading.
Denials and non-admissions (r 166(4)): (4) A party's denial or non-admission of an allegation of fact must be accompanied by a direct explanation for the party's belief that the allegation is untrue or can not be admitted.
o Ie. [Def] has different recollection of the events of that meeting – cannot use general and global denials!
If no explanation provided (r 166(5)): (5) If a party's denial or non-admission of an allegation does not comply with subrule (4), the party is taken to have admitted the allegation.
o NB. AAS v G&D Elliott: pl denied allegations and pleaded in reply that they couldn’t give facts to support denial until def provided particulars; held: r 166(5) cannot be used to turn a positive denial into a deemed admission (if could, unjust), instead ruled the pl should have filed for an order for further and better particulars before making denial
Requirement to keep inquiring re non-admission (r 166(6)) : (6) A party making a non-admission remains obliged to make any further inquiries that may become reasonable and, if the results of the inquiries make possible the admission or denial of an allegation, to amend the pleading appropriately.
Evidentiary implications for non-admissions (r 165(2)) : 2) A party who pleads a nonadmission may not give or call evidence in relation to a fact not admitted, unless the evidence relates to another part of the party's pleading
Cost implications if unreasonable denial / non-admission (r 167): If the court considers an allegation of fact denied or not admitted should have been admitted, the court may order the party who denied or did not admit the allegation to pay additional costs caused by the denial or nonadmission.
Miscellaneous
Special care if denying a negative proposition made by other side o If pl pleads a negative proposition and def denies it, the double negative may be
construed as an affirmative assertion.
o If a positive assertion can arise in that way, def should make that intention clear and provide adequate particulars re the affirmative allegation
o Johnson v Sewell – pl was an employee who sued for negligence re injuries sustained while working on a ship. In his Claim he alleged that he had been leaving the ship via a particular ladder which was “the only available means of egress from the said ship provided for the defendant by the plaintiff”. Def denied that allegation. Judge noted that this denial was pregnant with a positive allegation - that there were other means of egress from the ship - and clearly the details of other means of egress should have been particularised in the pleading. Pl could then have addressed why those means of egress were not available to him in the circumstances.
Time limits
NOITD must be filed 28 days after Claim filed (r 137) NOITD must have Defence attached to it (r 139(1)(b))
o This does not apply to conditional NOITD (r 144(2))
Inconsistent pleadings
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A party may make inconsistent allegations in a pleading only if they are pleaded as alternatives (r 154(1)) - Eg. Can plead that no contract existed, but if one did then no breach
A party must not make an allegation that is inconsistent with an allegation made in another pleading without amending that pleading (r 154(2))
Counterclaim (Form 18 – Defence and Counterclaim)
Essentially an action in its own right – the rules try to facilitate the joint trial of 2 claims
Def generally has to follow same pleading rules as SoC, ie. disclose complete cuase of action, identify all elements and include facts to support each element (ie. comply with r 149)
Only used when want to make pl solely liable, or jointly liable with another party
o If just want to sue a 3rd party – need to use a third party notice (see below; r 192)
Exclusion of counter-claim : the court may exclude a counterclaim and give directions it considers appropriate (r 182)
o Will happen if the nature of the trial wouldn’t suit a combined hearing, eg. A sues B for negligence, B counterclaims for breach of contract executed 2 years earlier – UCPR allows for the matters to be heard together because it involves the same parties but likely to invoke s 182 and court will order pleading struck out pursuant to r 171
Counterclaim against additional party (r 178(1) )(1) A defendant may make a counterclaim against a person other than the plaintiff (whether or not already a party to the proceeding) if --
(a) the plaintiff is also made a party to the counterclaim; and
(b) either (NB also s 244(3) SC Act)--(i) the defendant alleges that the other person is liable with the plaintiff for the subject matter of the counterclaim; or
(ii) the defendant claims against the other person relief relating to or connected with the original subject matter of the proceeding.
o Counterclaim where do NOT want to make PL a party to that issue : need to issue a third party notice and come within criteria of r 192 (Reason for third party procedure):
A defendant may file a third party notice if the defendant wants to (a) claim against a person who is not already a party to the proceeding a contribution or
indemnity; or (b) claim against a person who is not already a party to the proceeding relief (i) relating to or connected with the original subject matter of the proceeding; and (ii) substantially the same as some relief claimed by the plaintiff; or (c) require a question or issue relating to or connected with the original subject matter of the
proceeding to be decided not only as between the plaintiff and the defendant but also as between either of them and a person not already a party to the proceeding.
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Reply
A pl may reply to a Defence, but only necessary if Defence raises a new allegation of fact that requires some response more than a mere denial (ie. often pleadings may stop with filing of Defence)
Rule 164(2) Unless the court orders otherwise, any reply must be filed and served within 14 days after the day of the service of the defence or answer to counterclaim.
Davie v New Merton Board MillsFacts: Plaintiff claimed negligence to provide a safe method of work when injured with a hammer (splintered and got in eye) whilst working at a mill. Defendant argued – if tool was unsafe they weren’;t negligent because it purchased the hammer from a reputable manufacturer. Held: This went beyond a simple denial – i.e. it alleged that the manufacturer was reputable.
Johnson v SewellFacts: Person injured on ship in dock. If plaintiff just denied that there were other ladders, no need to reply; but if said there were other ladders (but they were blocked at the time) that would need a reply.
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Answer
Pl MUST answer a counterclaim (as a matter of practice) – if not answered, def can get judgment (NB. r 180 only states a def may plead to counterclaim)
r 180 Answer to counterclaimA defendant to a counterclaim may plead to the counterclaim by serving an answer to the counterclaim under these rules.
Time Limits : The answer to the counterclaim must be filed and served within 14 days of receipt of the counterclaim (r 164(1)(a))
o NB. If counterclaim served on someone other than Pl, they have 28 days (r 164(1)(b))
Close of pleadings (r 169) : The pleadings in a proceeding close:
(a) if a pleading is served after the defence or answer to a counterclaim -- on service of the pleading; or
(b) otherwise -- 14 days after service of the defence.
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Particulars
Particulars in a pleading :R 157 Particulars in pleadingA party must include in a pleading particulars necessary to --
(a) define the issues for, and prevent surprise at, the trial; and(b) enable the opposite party to plead; and(c) support a matter specifically pleaded under rule 150.
o R v Associated Northern Collieries : “..where I am in any doubt as to the sufficiency of the particulars I resolve it in the favour of the defendants, so as to ensure their being in a position to fully understand and prepare for the case alleged against them”
So: when making an allegation in pleading, cannot be so broad that the other party is in doubt as to what you are specifically seeking to prove – eg. Unpaid Mortgage, dates and amount would need to be specified
o Bailey v FCT : circumstances in which party may be ordered to provide better and further particulars (this order is usually obtained by filing an interlocutory application – r 161)
Particulars in a negligence action :o Doonan v Beecham : Pl hit by a motor vehicle driven by def. SoC set out a number of
particulars re alleged negligence - e.g. excessive speed, driving on wrong side of road, failure to look etc, failure to slow down when danger arose, failing to apply brakes.
Trial judge held could not be inferred on the evidence that the accident was due to any particular one of the causes particularised above and therefore directed the jury to find for defendant.
HC held trial judge took the wrong approach. As long as it could be reasonably inferred from all the evidence available within the pleadings and particulars that the accident was due to the negligence of the defendant, then it was permissible to find for the plaintiff. So in a negligence action you need to include enough particulars to ground negligence rather than only very specific claims.
Particulars of damage / Interest (see also previous week r 155) :155 Damages(1) If damages are claimed in a pleading, the pleading must state the nature and amount of the damages claimed.(2) Without limiting rule 150(1)(b), a party claiming general damages must include the following particulars in the party's pleading
(a) the nature of the loss or damage suffered;(b) the exact circumstances in which the loss or damage was suffered;(c) the basis on which the amount claimed has been worked out or estimated.
(3) If practicable, the party must also plead each type of general damages and state the nature of the damages claimed for each type.(4) In addition, a party claiming damages must specifically plead any matter relating to the assessment of damages that, if not pleaded, may take an opposing party by surprise.
159 Interest(1) This rule applies if a party intends to apply to the court for an award of interest, whether under the Supreme Court Act 1995, section 47 or otherwise.(2) This rule does not apply to a proceeding for damages for personal injury or death.(3) The party must allege in the party's pleading particulars of
(a) the amount or amounts on which the interest is claimed; and(b) the interest rate or rates claimed; and(c) the day or days from which interest is claimed; and(d) the method of calculation.
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(4) However, the rate or rates of interest need not be separately specified if the party is claiming at the rate or rates specified in a practice direction.
2.5 Challenges to pleadings
Where you believe the other side has not properly complies with the rules to the extent you cannot reply sensibly, apply to strike out proceedings (under r 171) and argue inherent jurisdiction
171 Striking out pleadings(1) This rule applies if a pleading or part of a pleading
(a) discloses no reasonable cause of action or defence; or(b) has a tendency to prejudice or delay the fair trial of the proceeding; or(c) is unnecessary or scandalous; or
Statements as to the character of a defendant are unnecessary and scandalous: Brooking v MandslayPleading that husband assaulted a girl in action for rectification of marriage settlement: Coyle v CumingPleading that party usually conducted business dishonestly: Blake v Albion
(d) is frivolous or vexatious; or(e) is otherwise an abuse of the process of the court.
Where there is a real question of law or fact to be determined then won’t be frivolous or vexatious or an abuse of process: General Steel v Commissioner for Railways
(2) The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis.(3) On the hearing of an application under subrule (2), the court is not limited to receiving evidence about the pleading.
Lack of cause of action: General Steel Industries v CSR fro Railways: jurisdiction is to be sparingly employed and not to be used except in a clear case where the lack of a cause of action is clearly demonstrated
Elements not made out: Drummond-Jackson v British Medical Association: Not all elements of defamation action but court said plaintiff shouldn’t be lightly denied access to the court (in this case) – pleadings only defective, not struck out – strong public interest
Complex question of law: Inglis v CBA: If involving complex questions of law, then application might be better process. But in this case only complex facts – so pleadings allowed
If particulars are set aside then the party will be in fault of either r 155 r 157 or r 159. Thus bring with an order under r 161 for further and better particulars. Any further breach will allow the court to make an appropriate order or give judgment: r163.
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WEEK 7: DISCLOSURE
1. DISCLOSURE BY PARTIES
Disclosure is the delivery or production of documents in accordance with Ch 7 UCPR
Duty of disclosure:
Parties to a proceeding have a duty to disclosure to each other documents (r 211(1)):
a) in their possession or control;
b) directly relevant [see below] to an allegation in issues; andc) if there are no pleadings, directly relevant to a matter in issue
Is [thing] a document?
Includes (s 36 AIA 1954 (Qld)):
a) any paper or other material on which there is writing; and
b) any paper or other material on which there are marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; and
c) any disc, tape or other article or 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).
Is [doc] directly relevant?
The test in Qld is not the “chain of enquiry” test as established in Compagnie Fianciere, but rather “directly relevant” means something which tends to prove or disprove the allegation in issue (Robson v Reb)
Timing
The duty continues until the proceeding is decided (r 211(2)) and an allegation remains in issue until it is admitted, withdrawn, struck out or otherwise disposed of (r 211(3))
Here …, so disclosure must be made in [time] (r 214…..)
Description Provision Time for Disclosureif disclosure is ordered before the close of pleadings
r214(2)(a) at the time specified in the order
if an application for a summary decision is made within 28 days after the close of pleadings and the proceeding is not entirely disposed of when the application is decided
r214(2)(b) within 28 days after the decision
when any further / amended pleading is delivered r214(2)(c) within 28 days after the further/amended pleading delivered
if the first occasion on which a document comes into the possession or under the control of the party, or is located by the party, happens after a time mentioned in paragraph (a) to (c)
r214(2)(d) within 7 days after the occasionhappens
if the party is asked by another party todeliver a copy of a document
r214(3) within 14 days after therequest
otherwise r214(2)(e) within 28 days after the close of pleadings
Non-party r242(1) 14 days after service of notice
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214 Disclosure by delivery of list of documents and copies(1) Subject to rules 216 and 223, a party to a proceeding performs the duty of disclosure by
(a) delivering to the other parties in accordance with this part a list of the documents to which the duty relates and the documents in relation to which privilege from disclosure is claimed (the list of documents);and(b) at a party's request, delivering to the party copies of the documents mentioned in the list of documents, other than the documents in relation to which privilege from disclosure is claimed.
(2) The times for the delivery of lists under subrule (1)(a) are as follows (a) if an order for disclosure is made before the close of pleadings the times stated in the order;(b) if an application for a summary decision is made within 28 days after the close of pleadings and the proceeding is not entirely disposed of when the application is decided within 28 days after the decision;(c) if, as a result of a further pleading or amended pleading, additional documents are subject to disclosure within 28 days after the further pleading or amended pleading is delivered;(d) if the first occasion on which a document comes into the possession or under the control of the party, or is located by the party, happens after a time mentioned in paragraph (a) to (c) within 7 days after the occasion happens;(e) otherwise within 28 days after the close of pleadings.
(3) A copy of a document requested under subrule (1)(b) must be delivered within 14 days after the request.
List of documents (as per r 214(1)(a))
Form 19
Deferral of disclosure
A party may give to another party a written notice stating that docs related to a specified question/class are not to be disclosed until the first party asks for them at a reasonable time (r 220(1))
The other party may disclose to the first party a doc to which the notice relates only if the first party asks for it (r 220(2))
Defective disclosure and further disclosure
r 223 Court orders relating to disclosure(1) The court may order a party to a proceeding to disclose to another party a document or class of documents by
(a) delivering to the other party in accordance with this part a copy of the document, or of each document in the class; or(b) producing for the inspection of the other party in accordance with this part the document, or each document in the class.
(2) The court may order a party to a proceeding (the first party) to file and serve on another party an affidavit stating (a) that a specified document or class of documents does not exist or has never existed; or(b) the circumstances in which a specified document or class of documents ceased to exist or passed out of the possession or control of the first party.
(3) The court may order that delivery, production or inspection of a document or class of documents for disclosure (a) be provided; or(b) not be provided; or(c) be deferred.
(4) An order mentioned in subrule (1) or (2) may be made only if (a) there are special circumstances and the interests of justice require it; or(b) it appears there is an objective likelihood
(i) the duty to disclose has not been complied with; or(ii) a specified document or class of documents exists or existed and has passed out of the
possession or control of a party.(5) If, on an application for an order under this rule, objection is made to the disclosure of a document (whether on the ground of privilege or another ground), the court may inspect the document to decide the objection.
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r 225 Consequences of nondisclosure(1) If a party does not disclose a document under this part, the party
(a) must not tender the document, or adduce evidence of its contents, at the trial without the court's leave; and(b) is liable to contempt for not disclosing the document; and(c) may be ordered to pay the costs or a part of the costs of the proceeding.
(2) If a document is not disclosed to a party under this part, the party may apply on notice to the court for (a) an order staying or dismissing all or part of the proceeding; or(b) a judgment or other order against the party required to disclose the document; or(c) an order that the document be disclosed in the way and within the time stated in the order.
(3) The court may, in an order under subrule (2)(c), specify consequences for failing to comply with the order.
E-Discovery
PD No 10 of 2011 (Use of technology for the efficient management of documents in litigation) operates in conjunction with the following:
o Pre-trial checklisto Glossaryo UCPR Form 19o Guidelines to Form 19o Doc Checklist
Duty of solicitor
r 226 Certificate by solicitor(1) The solicitor having conduct of a proceeding for a party must give to the court at the trial, a certificate addressed to the court and signed by the solicitor
(a) stating the duty of disclosure has been explained fully to the party; and(b) if the party is a corporation identifying the individual to whom the duty was explained.
(2) The certificate must be prepared and signed at or immediately before the trial.
NB. The rule is consistent with the obligation of solicitors as officers of the court to not only inform their
clients of the duty in relation to disclosure, but to take steps to ensure the clients comply with their obligations in that regard: Ferguson v Mackness Produce
If a solicitor believes the client is refusing to fully comply with its obligations in relation to disclosure, the solicitor should withdraw – ie thinks that the client is destroying documents or that the list of document produced is misleading: Myers v Ellman
Permitted use of disclosed documents
Purpose of litigation only: disclosed documents are only to be used for the purpose of litigation. Any other use is an abuse of process and can give rise to a contempt proceeding. Therefore, you cannot use the documents for another litigation or to gain commercial advantage.
Undertaking not to misuse: Where documents are disclosed/exchanged, there is an undertaking not to misuse those documents in any way for any other purpose, other than the litigation for which they were disclosed, particularly not released to the media: Central Queensland Cement
2. NON-PARTY DISCLOSURE Similar to a subpoena but only for specific documents, not oral testimony etc
A non-party can be compelled to disclose a doc (r 242(1)):a) directly relevant to an allegation in issue; andb) in non-party’s possession / control; andc) that is a doc the non-party could be required to produce at a trial of the mattero This is not an ongoing duty (r 242(4))o Docs must be produced within 14 days (r 242(1))
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3. EXEMPTIONS
212 Documents to which disclosure does not apply(1) The duty of disclosure does not apply to the following documents
(a) a document in relation to which there is a valid claim to privilege from disclosure;(b) a document relevant only to credit;(c) an additional copy of a document already disclosed, if it is reasonable to suppose the additional copy contains no change, obliteration or other mark or feature likely to affect the outcome of the proceeding.
(2) A document consisting of a statement or report of an expert is not privileged from disclosure.
3.1 Privilege
The duty of disclosure does not apply to privileged documents (r 212(1)(a))
Legal professional privilege (LPP):
LPP is privilege accorded to communications between a client and legal advisor:
o for the dominant purpose of obtaining or giving confidential legal advice (Esso v CT; cf Grant v Downs); or
o for the confidential use of legal advisors in existing or pending litigation (Packer v DCT)
Litigation need not have commenced, but there must be a real prospect of it, not just a mere possibility (Mitsubishi Electric)
Copies of unprivileged docs: LPP extends to copies of unprivileged docs in the possession a lawyer if the copies were made solely for the purpose of giving/receiving legal advice, or for use in existing or contemplated litigation (Comm AFP v Propend)
Expert reports: not privileged (r 212(2))
List of docs: must include privileged docs in the list (r 214(1)(a))
Challenge to privilege: r 213 Privilege claim(1) This rule applies if
(a) a party claims privilege from disclosure of a document; and(b) another party challenges the claim.
(2) The party making the claim must, within 7 days after the challenge, file and serve on the other party an affidavit stating the claim.(3) The affidavit must be made by an individual who knows the facts giving rise to the claim.
Self-incrimination
A party is not obliged to produce an incriminating document for inspection (Reid v Howard)
IF corporation: this privilege is not available to a body corporate (EPA v Caltex Refining Co)
IF disclosure is sought: Here, other party seeks an order for disclosure of the document (r 223(1)), the court will make its own determination as to whether there are reasonable grounds to conclude that the disclosure or production of the document would tend to expose the party to a criminal prosecution or civil penalty (Rio Tinto v Westinghouse)
o The Court may inspect the document in order to make its determination (r 223(5)).
Abrogation by statute: the privilege may be abrogated by statute. For example, the privilege against exposing oneself to civil liability for a penalty is not available to a person required to answer questions or produce documents under s 155 TPA (Pyneboard v TPC )
IF waived: privilege can be waived
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WEEK 8: DRAFTING / COURT APPS / AFFIDAVITS / SUBPOENAS
1. APPLICATIONS
Originating Applications (OA)
Content
An OA must (r 26):
o Be in the approved form (Form 5) (r 26(1))
o Name as resps all persons directly affected by the relief sought in the OA (r 26(2))
o List affidavits to be relied upon during the hearing (r 26(4))
o Specify the order/other relief sought (r 26(5))
o If made under an Act, state the name and section number of the Act (r 26(6))
o Specify the date set for hearing the application (r 26(7))
o If filed in the District / Mags Court, the OA or material filed with it must show court has jurisdiction (r 26(8))
Time for filing and service
An OA and affidavit to be relief on must be filed and then served on each resp at least 3 business days before the day set for the hearing (rr 27(1), 28(1) – NB. there are exceptions)
Interlocutory Application (IA)
Content
An IA must (r 31):
o Be in the approved form (Form 9) (r 31(2))
o Be signed, by person making application or solicitor, and filed (r 31(1))
o Name any party whose interests may be affected as resp (r 31(3))
o If made by a non-party, provide contact details and an address for service (r 31(4); r 17)
Time for filing and service
An IA must be filed and served on each resp at least 2 business days before day set for the hearing (r 31(5))
Listing applications for hearing (Ch 13, Part 1 UCPR)
Application: applies to both OAs and IAs (r 461)
Return date: On filing of an app, the registrar must record a return date for the matter to come before the court (r 462)
Estimate of time: the party bringing the application must write on it an estimate of the duration of the hearing (r 463)
Outline of argument: Written outlines of arguments must be provided (PD 6/2004)o An outline should (PD 6/2004):
provide a concise summary of the argument, in point form; identify relevant authorities and legislative provisions; usually not exceed four pages; and attach a chronology where appropriate.
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How is evidence given?
Evidence in a proceeding started by application may only be given by affidavit (r 390(b))
o Cf. Evidence at a trial of a proceeding started by claim may only be given orally (r 390(a))
Affidavit evidence (rr 430-441): o Aff must be confined to evidence the person making could give orally (r 430(1))
BUT an aff in an application (other than for final relief) may contain statements based on info and belief if the person making it states the sources of the info and grounds for belief (r 430(2))
o All or part of the costs of an affidavit not complying with these rules or unnecessarily including copies of or extracts from documents may be disallowed (r 430(3))
431 Form of affidavit(1) An affidavit must be in the approved form (Form 46)(2) A note must be written on an affidavit stating the name of the person making it and the name of the party on whose behalf it is filed.(3) An affidavit must be made in the first person.(4) An affidavit must describe the person making it and state the person's residential or business address or place of employment.(5) The body of an affidavit must be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject.(6) Each page of an affidavit must be numbered.
o Also [see p 108 SG]:
r 430. Contents of affidavit r 431. Form of affidavit r 432. Swearing or affirming r 433. Certificate of reading or
signature for person making affidavit r 434. Alterations r 435. Exhibits
r 436. Irregularity r 437. Filing r 438. Service r 439. Examination of person
making affidavit r 440. Scandal and oppression
Use of affidavits: o Must be filed, but that doesn’t “get” them into evidence, must be “read” by the judge and
then become evidenceo Can be used in the same action for another purpose – can also use an aff filed by
opponent even if not yet “read”
Solicitor’s obligation: to ensure an aff accurately and truthfully presents a statement of the relevant facts for the info of the court
Irregular aff: may only be filed with leave of the court (r 436 – other requirements see r)
Cross-examination: procedural requirements if person seeks to cross-examine person who has made an aff to be relief on at a hearing (r 439)
Oppressive / Scandalous matters:440 Scandal and oppressionIf there is scandalous or oppressive matter in an affidavit, the court may order that
(a) the affidavit be removed from the file; or(b) the affidavit be removed from the file and destroyed; or(c) the scandalous or oppressive matter in the affidavit be struck out.
Exhibits
Exhibits must have certificates: (r 435(b))
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Document already filed: should not be exhibited, but should be referred to in the aff in a way sufficient to enable it to be identified (r 435(12))
2. EXPERT EVIDENCE / COURT EXPERTS
UCPR Ch 11, Part 5: disclosure of expert evidence, appointment of experts etc
UCPR Ch 11, Part 8: Exchange of correspondent instead of affidavit evidence
3. SUBPOENAS Process by which a person may be compelled to attend court to deliver oral testimony or product
docs
Qld has not adopted harmonised rules (Subpoenas – Ch 11, Part 4)
Practical considerations: o What witnesses/docs should be produced – is it necessary to issue subpoenas to obtain
this evidenceo Experts providing reports will not normally need to be subpoenaed because they assume
their evidence will be tested in courto Police officers / public officials need to be subpoenaedo Subpoena often required in order for employee to gain permission of employero When in doubt, issue subpoenao May be necessary to subpoena a partyo Arranging and schedule witnesses – counsel will usually determine ordero Advise witnesses on appropriate attire
Power to issue subpoena:
The court may on its own initiative or at the request of a party issue a subpoena (s 414(2))
Registrar may issue a subpoena if a party files a request for a subpoena (r 414(4)) – Registrar unlikely to exercise discretion to decline to issue subpoena unless very unusual circumstances
Forms for subpoena
Three types of subpoenas (r 414(1)):
a) subpoenas for production;b) subpoenas to give evidence;c) subpoenas for production and to give evidence.
Formal requirements Must be in the approved form for that type of subpoena (r 415(1)):
o Subpoenas for production (Form 41) Must bear notice in approved form advising of right to apply to court to set aside
subpoena (r 415(2))
o Subpoenas to give evidence (Form 42)
May be addressed to more than one person (r 414(6))
o Subpoenas for production and to give evidence (Form 43)
Name or designation by office of person to whom subpoena directed must appear on subpoena before it is issued (r 414(7)))
Subpoena requiring production of doc/thing must include adequate description of doc/thing (r 414(8))
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Request for subpoena: Form 44
Request must be filed (r 414(3)(b))
Request to specify name or designation by office of person to whom subpoena directed, unless register otherwise directs/court otherwise orders (r 414(3)(a))
A subpoena must not be filed (r 414(5))
Subpoena not available for production of docs pre-trial Historically, only appropriate for the gathering of evidence for the trial
Court has power to order return of docs prior to the commencement of the trial (Khanna v Lovell)
Qld view: non-party disclosure is exclusive procedure to use to access docs before trial, not subpoena for production (Leighton v Western Metals)
Subpoena to employer, company
Usually addressed to the entity in control of the doc (employer usually) (Rochfort v TPC)
Subpoena to corporation: oath or affirmation not possible so subpoena to give evidence cannot be served on company (McDonald v ASC)
o Can be required to produce docs, address subpoena to the corp itself, requiring it by its “proper office” to produce the docs (Rochfort v TPC)
Subpoena to unincorporated ass: should be directed to executive officer (Rochfort v TPC)
Payment to witness
Must tender “conduct money” when serving subpoena or within reasonable time before attendance required (r 419 – covers expenses witness will incur in coming to court)
Court order for costs: Non-party served with subpoena can obtain court order for recovery of additional costs incurred in complying with the subpoena, including legal costs (r 418(2))
General powers: Court has general power to, on application, order payment for loss and expense incurred in complying with subpoena (r 417)
NB. Previously, costs incurred prior to person coming to court were not recoverable (Bank of NSW v Withers), however, rr 417, 418 overcome this by enabling the court to order payment of any reasonable loss or expense incurred in complying with the subpoena
Setting aside subpoena
Court may make an order setting aside all or part of a subpoena (r 416)
Grounds: Ground include (r 415(2)):a) Want of relevanceb) Privilegec) Oppressiveness (incl being substantial expenses may not be reimbursed) (Pasini)d) Non-compliance with the rules
Court has inherent juris to intervene to prevent an abuse of its process by setting aside subpoena
Witness seeking to set aside subpoena needs to apply to the court for the appropriate order
Comm for Railways v Small : subpoena must state with reasonable particularity what documents need to be produced; subpoena was set aside as serious abuse of process
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Service of subpoena
Within Qld
Subpoena to be served under Ch 4, Parts 2, 3, 4 and 5 (r 421(1)) – ie Personal service / ordinary service / other service
It must be proved the subpoena was received to get an enforcement order regarding compliance (r 421(2))
421 Service(2) Compliance with a subpoena may be enforced, and a proceeding may be taken for noncompliance with a subpoena, only if it is proved that the subpoena has been received by the person to whom it is addressed or the person has actual knowledge of it.
Service to be effect reasonable time before trial / hearing
Interstate
Interstate service is effected under s 29 SEPA 1992 (Cth), ie. in the same manner as in the place of issue
Special requirements under SEPA:o Must contain address for service (s 29(3))
o Service at least 14 days before compliance required unless court orders otherwise under s 30(2) (s 30(1))
If order allows less than 14 days notice, copy order to be attached (s 31(b) ) o Prescribed notice must be attached (Form 2) (s 31)
o Entitlement to expenses (ss 32, 35)
Relief from subpoena: Additional modes for making an application to set aside or obtain other relief in respect of subpoena (s 33 – Application for relief from subpoena )
Production of docs only: Relaxed requirements for compliance with subpoenas requiring only production of docs – subpoena may be complied with by delivering the doc/thing to the registrar or clerk of the court, without any attendance by receiving party (s 34)
Overseas
No power in the rules of the court / inherent juris to issue subpoenas for service internationally
Generally, cannot subpoena witnesses outside Australia
New Zealand: provisions under the Evidence and Procedure (New Zealand) Act 1994 (Cth) to issue subpoenas in NZ (to be replaced by Trans-Tasman Proceedings Act 2010 (Cth) when it commences)
Admitting into evidence docs produced on subpoena
Service of a subpoena for production of docs does not necessarily get the docs into evidence. Rather, admission into evidence is a 3 step process (Nat Employers v Waind):
1. Obeying the subpoena by bringing the docs to the court and handing to the judge Application may be put to the court to set aside subpoena as improperly issued and
abuse of power to compel production of the docs
2. Decision of the judge as to the inspection of the docs Witness may object at this stage to the handing of the docs to the parties for
inspection Crucial question is whether the docs have apparent relevance to the issues
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3. Admission into evidence of the doc
Production Early production of docs for non-parties (r 420)
o Unless court orders otherwise, subpoena must permit production at the registry by the day before the first day on which attendance is required; court officer to issue receipt and produce docs as court directs; may be satisfied by agent of person names in subpoena
Failing to attend on a subpoena Person to whom subpoena directed must comply (r 414(9))
Contempt: Witness failing to attend / produce docs on a properly served subpoena may be dealt with for contempt of court (r 422)
Warrant: court may issue warrant to enforcement officer to arrest and detail individual (r 901) / officer of corp (r 902) failing to comply with subpoena and produce them for the purpose of the proceeding,
o Court may order indiv (r 901) / corp (r 902) pay costs and expenses resulting from failure to comply
Notice to produce (originals) Procedure by which a party may give a notice to produce to a party who disclosed a doc (r 227(1))
Party who disclosed then obliged to produce doc if asked for it at trial (r 227(1))
Doc tendered at trial is admissible in evidence against disclosing party as relevant and as being what is purports to be (r 227(2))
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WEEK 9: DISPOSITION WITHOUT TRIAL – ADR
Early resolution of legal proceedings is possible where:
1. Resolution by an ADR process;
2. An application to have the proceeding dismissed for want of prosecution;
3. An application for default judgment, if defendant hasn’t filed a NOITD;
4. An application for summary judgment;5. Discontinuance or withdrawal of the proceeding; and
6. The making and acceptance of an offer to settle the proceeding;
1. ADR UNDER THE UCPR
Two processes:
o Mediation (rr 323-333)
o Case appraisal (rr 334-345)
Mediation
A process under the rules where the parties use a mediator to help them resolve their dispute by negotiated agreement without adjudication (s 91 DC of Qld Act 1967 (Qld))
Process Mediator’s intro – ground rules Opening statements Determine issues to be discussed (agenda) Generate and consider options for settlement Implement agreements
Reaching mediation under the UCPR: 2 ways:
By consent order (file Form 34 consent)
Referral by court: on application by one party where a matter is otherwise before the court
Where it is referred – opportunity to object (r 319)Criteria for referral (Barrett v Qld Newspapers): Prospects of success Length of trial (if long and expensive, maybe better to mediate) Willingness to participate (if participants willing, mediation) Offer to share ADR costs Role of 3rd party Stage of action Risks of litigation Success rate of mediation
After referral:
Claims are stayed until 6 days after report (certifying finish of ADR process) of ADR convenor filed with registrar (r 321)
Referring order must specify extensive details (r 323)
Party will be found to impede process if it fails to (r 322):
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o Attendo Participate; oro Pay amounts specified in referring orderCourts can order sanctions for this incl costs, staying claim etc
Mediation rules:
Mediator has wide discretion - r 326
Must start ASAP and try to finish within 28 days of appointment - r 324
Parties must act reasonably, genuinely & expeditiously - r 325
Mediator may abandon only where:o informs parties of intention; ando gives them opportunity to reconsider positions
Mediator can seek advice from 3rd parties provided:o where parties agree to pay extra costs (if are any) or court gives leave - r 328
Mediator must file certificate (Form 35)
Where successful - settlement agreement – r 329
Where unsuccessful - proceed to trial in ordinary way & ADR costs just become costs in the dispute - r 351
When and when not to mediate
When to mediate When NOT to mediate History of cooperation Limited no. of disputants Limited Issues Moderate to low hostility Ongoing relationship desired Desire for settlement External pressure Leverage Mediation can be:
o catalyst for settlemento fishing expedition
Protection? Parties must act reasonably & genuinely -
r325 Keep in mind philosophies - r 5
Legal precedent required Fraud Illegal activity Power Imbalance likely to be reflected in
resolution
Mediator’s and lawyer’s role
Mediator’s role Lawyer’s role Control process Enhance communication Facilitate problem solving Reality test
Explain process Advise on strategy Encourage client to participate genuinely Watchdog on disclosure Watchdog over mediator’s performance
Case Appraisal (CA)
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A process under the rules under which a case appraiser provisionally decides a dispute (s 92(1) DC of Qld Act 1967 (Qld))
CA is evaluative (cf mediation) – ie, who is likely to win on the law/evidence
Parties present to evaluator, not each other
Appraiser can only give decision that could be given by a court (r 335)
Reasons for CA
Need for early realistic analysis of the case Encourage parties at outset to confront and analyse own situation Allow litigants and lawyers to hear the other side Isolate centre of dispute, identify non-contested issues
CA under the UCPR: 2 ways Consent order Referral by court: on application by one party where a matter is otherwise before the courtWhere referred, opportunity to object (r 319)
Mediation vs CA
If legal issue refer to case appraisal
If factual issue refer to mediation
Witcombe v Jordin : two areas in contention. The first was whether the first defendant (the niece) had any physical control of the house (as a matter of law) at the relevant time; the second was whether she had engaged in any negligent conduct. The plaintiffs wanted those matters to go to case appraisal and the insurer wanted them to go to mediation; held: facts = mediation (as above)
After referral
Claims are stayed until 6 days after report (certifying finish of ADR process) of ADR convenor filed with registrar (r 321)
Referring order must specify extensive details (rr 323, 334)
Party will be found to impede process if it fails to (r 322):o Attendo Participate; oro Pay amounts specified in referring orderCourts can order sanctions for this incl costs, staying claim etc
Wide discretion re: procedure
Appraiser may seek information from 3rd parties provided:o where extra cost, parties consent to pay cost or court gives leave (r 337)
Appraiser must file certificate (r 342) (Form 36)
Failed CA:o Dissatisfied party may elect to go to trial by filing notice of election within 28 days (r343)
o If court’s decision not ultimately more favourable overall - costs sanction (r 344; VG v OM)
o Each party’s costs of failed appraisals are each party’s costs in the dispute (r 351)
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WEEK 9 DISPOSITION WITHOUT TRIAL: DISMISSAL / DEFAULT JUDGMENT
2. DISMISSAL FOR WANT OF PROSECUTION
Defendant/respondent can bring application for dismissal where plaintiff doesn’t comply with rules or order of the court – r 280.
12 criteria for the exercise of the discretion to dismiss (Tyler v Custom Credit Corp – Atkinson J)
1. How long ago events alleged in the SoC occurred and what delay before litigation was commenced2. How long ago the litigation was commenced or causes of action were added; 3. What prospects the plaintiff has of success in the action; 4. Whether or not there has been disobedience of Court orders or directions; 5. Whether or not the litigation has been characterised by periods of delay; 6. Whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the def;7. Whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation
and whether the defendant is responsible for the plaintiff’s impecuniosity; 8. Whether the litigation between the parties would be concluded by the striking out of the pl’s claim;9. How far the litigation has progressed; 10. Whether or not the delay has been caused by the plaintiff’s lawyers being dilatory11. Whether there is a satisfactory explanation for the delay; 12. Whether or not delay has resulted in prejudice to the def leading to an inability to ensure a fair trial.
The court's discretion is, however, not fettered by rigid rules but should take into account all of the relevant circumstances of the particular case (Witten v Lombard Aus)
3. DEFAULT JUDGMENT (DJ)
Rationale
The mechanism of the DJ is based on the rationale that the def has indicated by its actions that it is unable or unwilling to contest the proceedings in a trial on the merits. In those circumstances, the rules of court assume that a fair result can be achieved at a substantially reduced cost without a full trial
o Traditionally easy to set aside as not given on merits
5 types of proceedings
There are specific rules entitling a pl to DJ in 5 types of proceedings:o liquidated debts r 283o unliquidated damages r 284o detention of goods r 285o recovery of possession of land r 286o other claims r 288
There is also a specific rule governing DJ in mixed claims (r 287)Pre-requisites:
Service of claim must be proven (r 282) (and Form 25 refers to an affidavit of service)
Def has not filed a NOITD within the prescribed time (r 281)
o Unconditional: 28 days after day served (r 137)
o Conditional: must apply for r 16 order within 14 days or becomes unconditional, must then file a defence within 7 days (r 144)
Application to court constituted by registrar; a DJ given by a registrar has effect as a judgment given by the court (s 84 SC of Qld Act)
Documents required:
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Request for DJ (Form 25) Affidavit of service (Form 46) Affidavit of debt (Form 46) Draft DJ (Form 26)
Liquidated debts (r 283):
A claim is liquidated when it is for a specific sum or sum capable of being calculated by reference to a scale or formula (Spain v Union Steampship)
Needed for a r 283 claim for DJ
Assessment of damages: [still no NOITD filed, but don’t know $ of damages]
For a r 284 claim (unliquidated damages)
Damages assessed by:
o The court;
o Registrar; or
o A lower court (r 507)
Assessment conducted as nearly as possible to a trial
Court may give directions about conduct of assessment including use of disclosure and pleadings
Certificate of damages issued (r 511(1))
Setting aside DJ:
Court has a wide discretion to set aside (r 290)
Criteria for setting aside: Unique v Bortek per Shanahan DCJ:
o A satisfactory explanation as to why def did not file a NOITD
o Explanation for delay;
o Def’s conduct in the action before and after judgment;
o Def’s good faith;
o Prima facie defence; and
o Whether pl irreparably prejudiced if set aside which cannot be adequately compensated by a suitable award of costs
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WEEK 10: DISPOSITION WITHOUT TRIAL – SUMMARY JUDGMENT
4. SUMMARY JUDGMENT (SJ)
Process of obtaining judgment without a trial where the claim or defence is without merit
Features etc
Features
Rules apply to any proceeding (r 291)
Applies to pls and defs, but NOITD must be filed before application for SJ (rr 292, 293)
o Pl: can apply any time after def serves NOITD (r 292)
o Def: may apply any time after filing a NOITD (r 293)
o If no NOITD: apply for default judgment
May be ordered on all or part of the a claim (rr 292, 293
If no judgment is given, or judgment given on only part of a claim, the claim, or remaining part, continues (rr 294(1), 298)
o Eg. only specific issues raised in the defence to be determined at trial
Made by way of application (Form 9) (r 31)
More than one application may be made if the court gives leave (r 294(2))
There is no need for a trial of the claim (r 292(2)(b); r 293(2)(b); NAB v Block )
Affidavit evidence
Evidence supporting the app is given by aff unless the court gives leave for oral evidence (r 295(1))
Aff may contain statements of info and belief if the sources of the info and the reasons for the belief are stated (r 295(2))
Docs relied on in the aff must be exhibited (r 295(3))
Deponent cannot be cross-examined unless the court gives leave (r 295(4))
Service / Time limits
The applicant must file and serve the application and supporting affidavit at least 8 business days before the hearing date (r 296(1))
The respondent must file and serve its affidavit in reply at least 4 business days before the hearing date (r 296(2))
The applicant’s affidavit in reply must be filed and served at least 2 business days before the date for hearing (r 296(3))
o Reply is not mandatory
Application by plaintiff [Pl] must show (r 292(2)):
a) that def has no real prospect of successfully defending all or part of the claim; andb) that there is no need for a trial of all or part of the claim
Plaintiff has legal burden of proof to establish entitlement to judgment
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Evidentiary onus shifts to def to show evidence of a defence or need for trial if pl establishes prima facie entitlement to summary judgment (Elderslie Property)
Application by defendant
[Def] must show (r 293(2)): a) that pl has no real prospect of successfully defending all or part of the claim; andb) that there is no need for a trial of all or part of the claim
The court has a broad discretion to make any orders it sees fit (Brypat – court can shift onus)
Test for summary judgment Court balances competing interests of pl and def
o QUT v Project Constructions : Great care must be taken to ensure that under the guise of achieving expeditious
finality, a pl is not improperly deprived of his opportunity for the trial of his case; R 293(2) enables SJ to be given for the def if the court is satisfied that the pl has
“no real prospect of succeeding” on its claim, and that there is no need for a trial of the claim
Not as high a test as Barwick stated in General Steel
Previous approaches
Grey v Morris : cannot possibly succeed, manifestly groundless/faulty, bound to fail, hopeless
New approach
If a real prospect of success is established the matter must go to trial (DCT v Salcedo)
There has been a significant change brought about by the implementation of r 292 and r 293; the test for SJ is different, and the court must apply the words of the rules (DCT v Salcedo)
Costs / Stay Costs: If an applicant for SJ was, or ought to have been, aware that the resp relied on a point that
would entitle the application to be dismissed, the Court may dismiss the application with costs (r 299(1); Guilfoyle - arguable defence, pl paid def’s costs)
Stay: the court may order a stay of enforcement of a SJ for a time, or on terms, it considers appropriate (r 300)
Setting aside SJ Court may set aside or vary a SJ against a party who did not appear on the hearing of the
application (r 302):
o Requires an application to the court
o Discretionary - reasonable explanation or injustice for not appearing: Eg. monetary circumstances preventing legal representation or not aware of SJ
made against them Robertson v Sea Slip : any delay in bringing the app to set aside the SJ; and
whether the successful party has acted in reliance of the SJ However, not fatal to setting SJ aside (Robertson v Sea Slip – def’s solicitor
ceased practice, but still delayed after became aware of this, pl had acted in reliance on judgment)
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WEEK 10: DISPOSITION WITHOUT TRIAL – DISCONTINUANCE & WITHDRAWAL
5. DISCONTINUANCE AND WITHDRAWAL [FORM 27]
Generally, if pl or applicant wishes to stop litigating, they will be entitled to discontinue or withdraw the proceeding
Costs: That entitlement is subject to them satisfying the other parties’ costs to that point (r 307)
Discontinue: stopping the action completely
Withdrawal: stopping part of the action only
Parties who want to withdraw or discontinue:
o A party representing another
o Pl-app
o Def-resp
(rr 303-312)D or W by plaintiff / applicant
Pl can discontinue a counterclaim or withdraw part of it by (r 304):
o Filing notice before the first defence / affidavit in reply (to claim/OA) is served (r 304(1); or
o If defence/aff has been served: with the leave of the court or consent of the other parties (r 304(2)
If more than 1 pl/app OR counterclaim: may only discontinue with leave or the court or consent of parties (r 304(3))
Multiple defs / resps: Pl may discontinue against one def/resp without discontinuing against others (r 304(4)-(5))
D or W by defendant / respondent
Def can discontinue a counterclaim or withdraw part of it by (r 305):
o Filing a notice before being served with pl’s answer to counterclaim (r 305(a)); or
o If def has received answer to counterclaim, with the leave of the court or consent of parties (r 305(b))
NOITD by def: can be withdrawn at any time with the court’s leave or with consent of the other party (r 306)
D or W in representative actions
Parties representing another person in a proceeding may only discontinue/withdraw with the Court’s leave (r 303(1))
The notice of discontinuance or withdrawal must certify that the party discontinuing/withdrawing does not represent another person in the proceeding (r 303(2))
Withdrawal of other pleadings / affidavits
A party may withdraw (r 308):
o all or part of an answer to counterclaim;
o all or part of a defence; and
o all or part of an affidavit.
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But admissions or other matters operating for the benefit of another party may only be withdrawn with the court’s leave or consent of the other party (r 308)
Costs
A party who discontinues or withdraws is liable to pay the costs of the other party up to the time of D or W and the costs of another party caused by the D or W (r 307(1))
o NB. If the party D/W with the court’s leave, the court can make orders it deems appropriate – ie. can order the non-discontinuing party to pay (r 307(2); ASIC v Jorgenson )
o ASIC v Jorgensen: ASIC was justified in bringing and continuing the action against him until it was pointless to continue due to Jorgensen’s financial position) De Jersey CJ allowed where reasonable in the matter (i.e. justified to bring and continue until stage).
Notice of D or W
If the Court’s leave is not required (or the parties have consented) a notice may be filed and served as soon as practicable and this effects the discontinuance/withdrawal (r 309(1))
Notice not required: If the Court’s leave is required, the order giving leave effects the D/W and the notice is not required (r 309(2))
Consolidated proceedings and counterclaim
If the proceedings are consolidated, or if there is a counterclaim, a plaintiff’s discontinuance does not affect them (r 311)
Subsequent proceedings
Subject to any conditions or previous leave given, D / W is not a defence to another proceeding on the same or substantially the same ground (r 310(1))
A party served with another party’s notice of withdrawal may continue with the proceeding as if the other party’s NOITD had not been filed (r 310(2))
A discontinuance does not destroy a right of action, so despite the discontinuance, it is possible for a party to sue again (Cormie v Orchard)
Costs outstanding: However, if a previous D or W attracted liability to pay costs, a fresh proceeding can be stayed until costs are paid (r 312)
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WEEK 10: DISPOSITION WITHOUT TRIAL – OFFERS TO SETTLE
6. OFFERS TO SETTLE
Mechanisms available under the UCPR (Ch 9, Part 5) and at common law to facilitate settlement
The rules have incentives for parties to make and accept genuine offers to settle
Common law settlements
A settlement is an enforceable contract between the parties; the consideration is forbearance to sue
A common law offer to settle that is made without prejudice (except in relation to costs) is a “Calderbank offer” (Calderbank v Calderbank)
Need to be able to advise clients on procedure and likely quantum to allow informed decisions
Calderbank offers
A letter marked “without prejudice” that makes an offer of settlement and warns that the letter will be relied upon on the question of costs if that issue arises (Elite v Salmon)
o Costs: ie. if the party to whom the offer was mad wins in court and gets a judgment less favourable that the offer, should have to pay for not settling
The policy of privilege is to encourage settlement by frank communications, but to attract protection; the communications must be fairly incidental to the purpose of negotiation (Field v Comm Railways)
‘Without prejudice’ means “without prejudice to the position of the writer…if the terms he proposes are not accepted” (Rush & Tomkins)
Formalising an offer at common law : Settlements are typically formalised in writing. A major consideration is how the settlement will be enforced if one party fails to carry it into effect
o Green v Rozen listed 5 ways to formalise an offer (how it would be carried into effect),
o General Credits v Fenton Lake however preferred a wider view for Aus, holding that an agreement compromising the action may be summarily enforced by application, provided that the court is clearly satisfied that justice can be done under the summary procedure. This is a question of degree and includes:
Extent to which extraneous matters are involved; How substantial are the questions to be determined; To what extent questions of credibility are likely to arise; and Whether pleadings and discovery may be desirable.
Who may make an offer to settle?
A party to a proceeding may serve on another party to the proceeding an offer to settle 1 or more of the claims in the proceeding on the conditions specified in the offer to settle (r 353(1))
A party may serve more than 1 offer to settle (r 353(2))
An offer to settle must be in writing and must contain a statement that it is made under this part (ie. under Ch 9, Part 5) (r 353(3))
When can an offer me made?
An offer to settle may be served (r 354(1)):
a) for a jury trial of a proceeding started by claim, at any time before a verdict is returned;
b) otherwise, at any time before final relief is granted
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However, if an account is claimed in the first instance, or if a claim involves taking an account, an offer to settle may be served at any time before a certificate under r 540 (becomes final and binding (r 354(2))
Further, if there is a judgment conditional on the assessment of damages, an offer to settle may be served at any time before the damages are assessed (r 354(3))
Disclosure of the offer
Subject to r 365 (Failure to comply with offer), no statement of the fact that an offer to settle has been made may be contained in any pleading or affidavit (r 357(1))
An offer to settle must not be filed (r 357(2))
If an offer to settle is not accepted, no communication about the offer may be made to the court at the trial/hearing until all questions of liability and the life to be given, other than costs, have been decided (r 357(3))
When does the offer expire?
The offeror must specify a period for which it is open, must be at least 14 days. It cannot be withdrawn during that period without the Court’s leave (r 355(1), (3))
o If less than 14 days: it will be an irregularity, not a nullity (r 371)
Lapse: At the end of the period, the offer automatically lapses (r 355(2))
Acceptance: The offer can be accepted before an application to withdraw is decided, and the application can be made without notice to the other party (r 355(3), (4))
Without prejudice
An offer made under the UCPR is made without prejudice (r 356)
“Without prejudice” means “without prejudice to the position of the writer … if the terms he proposes are not accepted.” (Rush & Tomkins)
The policy of the privilege is to encourage settlement by frank communications, but to attract protection, the communications must be fairly incidental to the purpose of negotiation. The effect is that the communication is generally inadmissible (Field v Comm Railways)
Formalising settlement [and see above – common law]
Generally, settlements are formalised in writing between the parties. A major consideration is how the settlement will be enforced if one party fails to carry it into effect.
Depending on how the settlement is formalised, a party’s options to enforce the agreement may be limited.
Settlements formalised by consent judgment may be more readily enforceable than a Settlement Deed if it does not reserve a right to apply to the court in the event of non-compliance (r 666)
If no right is reserved, fresh proceedings for breach of the settlement agreement may be required.
How does [offeree] accept offer?
Written: Acceptance must be written (r 358(1))
Counteroffer: A counteroffer does not cause the original offer to lapse (r 358(2))
Offer rejected: Even if an offer is rejected or a counteroffer made, the offer can be subsequently accepted while it is still open (r 358(3))
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Costs when there is an offer to settle
Costs generally in litigation
Standard basis: Party and party costs which were necessary to run the litigation of the parties - usually worked out to about 60% costs you actually incurred
Indemnity basis: what is reasonable to running the case rather than what is just necessary - usually worked out to about 80% costs you actually incurred in running your case
The costs you will have to pay under rr 360 - 361 are only those incurred from the date the offer was made (Hadzi Georgiou)
If offer to settle by PLAINTIFF [punishing def for not accepting good offer]
If the plaintiff makes an offer to settle (r 360(1)):
o That is not accepted; and
o At trial obtains a judgment no less favourable than the offer (ie. obtains a judgment greater than the offer amount, so pl made def a good offer – def should have settled); and
Eg. Here, 21mil judgment amount is no less favourable than 20mil offer amount
o The court is satisfied the pl was willing and able to carry out the offer (receive it), then
the def must pay the pl’s costs on the indemnity basis unless the def can show another order as appropriate (r 360(1))
NB. If the pl makes more than one offer satisfying sub-rule (1), the first of those offers is taken to be the only offer for this rule (r 360(2))
If offer to settle by DEFENDANT [punishing pl for not accepting good offer]
If the def makes an offer to settle (r 361(1)):
o That is not accepted; and
o At trial, the pl obtains a judgment no more favourable than the offer (ie. pl obtains a judgment less than the offer amount, so def made good offer, pl should have settled); and
Eg. Here $15mil judgment amount is no more favourable than $20mil offer amount
o The court is satisfied the def was willing and able to carry out the offer; then
unless a party can show another order is more appropriate, the court must order (r 361(1), (2)):
o The def pay the pl’s costs on standard basis up to the day the offer was served; and
o The pl pay the def’s costs on standard basis after the day the offer was served
NB. If the def makes more than one offer satisfying sub-rule (1), the first of those offers is taken to be the only offer for this rule (r 361(4))
NB. 361 Costs if offer to settle by defendant(3) However, if the defendant's offer to settle is served on the first day or a later day of the trial or hearing of the proceeding then, unless the court otherwise orders(a) the plaintiff is entitled to costs on the standard basis to the opening of the court on the next day of the trial; and(b) the defendant is entitled to the defendant's costs incurred after the opening of the court on that day on the
indemnity basis.
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Person making
offerWinner
Judgment no less favourable ()
than offer
Plaintiff Plaintiff wins
Yes(pl receives greater amount than offer
amount, def should have accepted
offer)
Defendant pays plaintiff's costs on an indemnity basis - unless the defendant shows another order for costs is appropriate in the circumstances.(Defendant’s sanction for rejecting an offer to settle)
Plaintiff wins
No Defendant pays plaintiff's costs on standard basis.
Defendant wins
N/A Plaintiff pays defendant's costs on standard basis.
Person making
offerWinner
Judgment no more favourable ()
than offer
Defendant Defendant wins
N/A Plaintiff pays defendant's costs on standard basis.
Plaintiff wins
Yes(pl receives lesser amount that offer amount, pl should
have accepted def’s offer)
Plaintiff pays defendants costs on a standard basis after the day of service of the offer to settle, and the defendant pays the plaintiff's costs on a standard basis, up to and including the day of service of the offer to settle - unless a party shows another order for costs is appropriate in the circumstances.(Plaintiff sanction for rejecting an offer to settle)
Plaintiff wins
No Defendant pays plaintiff's costs on standard basis.
Effect of interest
S 58 Civil Proceedings Act 2011 allows the court to award interest
There are 2 forms on interest under the Supreme Court Act 1995 (Qld)o Interest from the date of the cause of action (s 47 interest);o Interest from the date of judgment until date the winner is paid (s 48 interest)
For the purposes of calculating whether the amount of judgment exceeds the amount of a settlement offer, the court will disregard interest relating to the period after the date of service of the offer
o It will only use that component of the interest accruing from the date the cause of action arose until the date the relevant offer was made
Example
Date of cause of action, publication for defamation, 1 May 2007
Def files claim on 1 July 2007
Def makes an offer to settle for $40,000 on 1 September 2007
Pl rejects offer, wins judgment for $68,000 on 1 March 2009
Effect of interest : interest at a rate of 10% from date cause of action arose until date the offer was made (1 year):
o = 10% x $68,000 = $6,800 x 4/12 (1/4 of year, 1 May to 1 Sep) = $2,266o Net judgment amount = $68,000 + $2,266 = $70,266
Because net judgment is greater than the offer of $40,000, so costs follow the event (there is no difference made to costs)
Consider Costs! Page 71
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WEEK 11: ENFORCEMENT
1. PRELIMINARY ISSUES
Definitions (r 793)
Enforcement warrant: warrant issued under Ch 19 to enforce a money order
Enforcement debtor: person required to pay money under an order
Enforcement money order: of a court, means a money order of the court, or a money order of another court filed/registered under an Act in the court for enforcement
Enforcement by non-parties:
A non-party granted a money order in a proceeding can enforce the order as if they were a party (r 795)
Conditional orders:
A money order subject to a condition may only be enforced if the condition is satisfied / court gives leave (r 796)
What is enforcement / execution
Method to ensure judgment is paid
Judgments are not self-executing, they need further steps to be enforced
Order must first be authenticated before enforcement and on order cannot be enforced until filed (r 661(4))
Time limits
Limitation period for judgment debt: 12 years from date it becomes enforceable (s 10 LAA)
Before 6 years: court’s leave to enforce not required (r 799(1))
After 6 years: court’s leave to enforce required (r 799(2)(a))
2. APPLICATION FOR LEAVE TO ENFORCE (WHERE 6+ YEARS)
Application without notice: don’t have to give notice you’re going to apply for leave to enforce the debt (r 799(3))
File: Application (Form 9) and supporting affidavit (Form 46)
Info to be provided to court (r 799(4)):o Amount owing (incl interest)o Reason for delaying more than 6 yearso If change in enforcement creditor/debtoro Entitlement to enforce ordero Def liable to satisfy order
Court: balances the interest of parties
o Pl show entitlement to enforce, def shows unfair to allow enforcement:
o World Square : court emphasised it has an unfettered discretion to grant leave to enforce once pl shows entitlement – court will look at all circumstances (unjust to allow leave?)
o Walkden v CCT : court denied leave, number of years had past, court though great prejudice to def if allowed leave, wasn’t fair for pl to come back and seek enforcement
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o CUA v McManus :
App for enforcement hearing made 6+ years after judgment, leave of court necessary before enforcement hearing could be ordered
“enforcement hearing” = old oral examination questioning about debts
Indication: r 799 has a wide meaning, includes processes associated with enforcement as well as issuing of warrants
3. COSTS AND INTEREST
Can cost of enforcement be added to the judgment debt? Yes, r 797(1)
Separate enforcement for costs? Person my enforce payment of costs separately (r 798)
o NB. Cannot issue enforcement of part of a debt where in one order – debt cannot be split to enforce (Forster v Baker)
o BUT: warrant can be issued for debt and later a separate warrant issued re costs (r 798)
Inclusion of interest (r 797(2)):o s 87 SCQA 91 – interest payable at the rate prescribed by the regulations (Reg 4, SC
Regs 2008) – 10%o Consistent with def of money order which can include interest
4. EQUITABLE AND COMMON LAW REMEDIES
Equitable remedies: to do or not do something by a specific date
Common law remedies: no time specified, more likely re judgment for recovery of damages/land – no specific date
The distinction has been abolished but the effects remain (ie. if no date specified, only common law remedies are available regarding enforcement of the order – vice versa for equitable)
5. DEBT COLLECTING
Demand for compliance: It is not necessary to demand compliance with an order before starting enforcement proceedings for the order (s 86(1) SCQA 91 )
o NB. An order may specify it must be served before it can be enforced (s 86(2) SCQA 91 )
Creditor’s incentives: recover as much as possible, recover quickly, easily and inexpensively
Debtor’s incentives: avoid judgment and enforcement and defer payment
NB. Debtors likely to abscond: can apply for arrest under Ch 20, Part 8 – must be imminent
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6. PRE-JUDGMENT STEPS
Locating def’s assets – NB. Exempt property not available
Ways of preserving def’s assets:o Security for costs, freezing orders, attachment of person, search orders
6.1 Attachment of person
Restrain person from leaving Australia, must prove (s 90 SCA 95 ):
o Cause of action against def
o Def moving or preparing to move from juris
o Action by def will defeat proceeding
QB Investments : must be clear and real grounds for belief that def is seeking to avoid jurisdiction and anticipated departure is imminent
6.2 Freezing orders (Mareva order)
Interlocutory order to restrain party from removing/dealing with assets – general court power to prevent abuse of process
Previously Mareva order (Mareva Compania v Int Bulkcarriers)
Jackson v Sterling Industries : court had juris to gran order even though not yet judgment to enforce
NB. Cannot be used to circumvent insolvency laws
Must establish: o Real risk of assets being disposed of – balance of convenience favours grant of order
(Cardile v LED Builders)
Procedures under UCPR Ch 8, Pt 2: Australia-wide codification of processes:
r 257 : not to impede development of the law
r 256 : no power in Mags court
r 260A : court may make a freezing order to prevent frustration / inhibition of the court’s process by seeking to meet a danger that judgment will be unsatisfied, 2 types of orders:
o after judgment madeo before judgment made
r 260B : court may also make ancillary orders
o Bax Global : order for cross-examination, disclosure of assets
Need to file application (Form 9) and supporting affidavit (Form 46) (Universal Music Aus)
r 259 : service required, but can be dispensed with for adequate reason
Aff must contain (SC PD 1/2007; Third Chandris v Urimarine):
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(a) information about the judgment or, if no judgment has been obtained, the following information about the cause of action:
(i) the basis of the claim for substantive relief;(ii) the amount of the claim; and(iii) if the application is made without notice to the respondent, the applicant’s knowledge of any possible defence;
(b) the nature and value of the respondent’s assets, so far as they are known to the applicant, within and outside Australia;(c) the matters referred to in rule 260D of the UCPR; and(d) the identity of any person, other than the respondent, who, the applicant believes, may be affected by the order, and how that person may be affected by it.Also: full and frank disclosure, grounds of risk of assets being disposed of etc (Third Chandris)
r 264 : Pl must give undertaking as to damages to compensate def should action fail
6.3 Search orders (Anton Piller orders) Previously Anton Piller order (Anton Piller v Manu Processes Ltd)
To preserve evidence def likely to conceal / destroy
Enter premises and seize or inspect – strict conditions and safeguards
First granted in Qld in Chrysalis Records v Vere
Procedures under UCPR Ch 8, Pt 2: Australia-wide codification of processes:
r 257 : not to impede development of the law
r 256 : no power in Mags court
r 259 : service required, but can be dispensed with for adequate reason
Aff must contain (SC PD 2/2007):(a) a description of the things to which the order is sought;(b) the address of premises and whether they are private or business premises;(c) why the order is sought, including why there is a real possibility that the things to be searched for will be destroyed or otherwise made unavailable for use in evidence before the court unless the order is made;(d) the prejudice, loss or damage likely to be suffered by the applicant if the order is not made;(e) the name, address, firm, and commercial litigation experience of an independent solicitor, who consents to being appointed to serve the order, supervise its execution, and do such other things as the Court considers appropriate; and(f) identification of any person likely to be on the premises at the time of the proposed search who could reasonably be considered to be in a position of vulnerability.
r 261B : basis for granting search order – strong case, potential seriously loss to applicant, sufficient evidence that:
o reps has important evidentiary materialo real possibility resp might destroy / make it unavailable
Balance of convenience favours grant or order
r 264 : Pl must give undertaking as to damages to compensate def should action fail
r 261D : steps to be set out in search order to prevent abuse of process:o direct named person to enter premises; o and take anything prescribed in the order; ando may include further conditions as necessary
r 261E : must be an independent solicitor to supervise
7. ENFORCEMENT HEARING
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To obtain info to facilitate enforcement (r 803) at:
o End of trial (r 804); or
o After money order made (r 804)
Procedure to apply:o End of trial (rr 805-806) – Application; affidavit not required, serve application
o After money order (r 808) – Application and affidavit, application not served, statement of financial position required
If court grants application: Form 70 – enforcement hearing summons (rr 806(2)(1); 805(6)), served on debtor (rr 806(3), 809(2))
When person served with enforcement hearing summons: must attend at court before registrar, give info, answer questions and produce docs/things (r 813(1))
Statement of financial position (r 807):o Creditor requests debtor to completeo Form 71 (indiv) / Form 71A (company)o Debtor must forward to creditor within 14 days of receiving black statement from creditoro Very detailed – complete on oath / affirmation o Creditor may then decide attendance at EH not required (r 813(2))o Failure to complete without lawful excuse: may be contempt of court (r 815)
Person with information: can be subpoenaed (r 812) – covers third parties
Failure to attend EH: arrest powers (r 816) – discretionary, eg. person might have been sick
Failure to co-operate: may be contempt (r 815)
Orders to be made: court may order enforcement warrant be issued, or make another order about the enforcement of the order, or stay the enforcement of the order, or award costs (r 814(1)) – unless court orders otherwise, costs of the EH are costs of enforcement of the order (r 814(2))
7.1 Application for stay of enforcement
Onus on debtor to convince court
Court has wide discretion – considers all circumstances, must be special circumstances (JC Scott v Mermaid Waters)
Procedure for stay (r 800): file application (Form 9), supporting affidavit (Form 46), personally serve 3 business days before hearing
8. WHERE TO ENFORCE
In appropriate monetary juris – otherwise possible costs penalty (r 801)
File money order in court want to enforce in (r 802)
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9. APPLYING FOR A WARRANT
Types of warrants
(see s 93A SCQA 91)
Seize and sell all personal property other than exempt property in which debtor has real/beneficial interest in
Redirection of money from third person Redirection of earnings of enforcement debtor Payment of money by instalments Delivery possession of land Seize and deliver specific goods
Seize and retain specific property
Set warrant aside
Person served with warrant may apply to set it aside (r 819 – wide discretion)
Priority of competing warrants / concurrent warrants across districts
When enforcement warrant issued, must write precise time of issue (r 823(3))
Important re priority of competing rights - enforcement officer must enforce in time order (r 823(4))
Only entitled to costs of one warrant – if issue warrant out of one District Court and has to be enforced in other district, court will send to other district (rr 825, 826)
9.1 Warrant for seize and sale
A court may issue an enforcement warrant authorizing an enforcement officer to seize and sell in satisfaction of a money order all real and personal property (other than exempt property) in which the enforcement debtor has a legal or beneficial interest (r 828(1))
o EO can only seize and sell as much property as covers the debt
o Seizure doesn’t necessarily mean physically seizure, must be some dominion – apparent to reasonable observer (Whim Creek v Colgan)
o Property never owned by creditor – only entitled to money that comes from property to extent covers money debt
o Both real and personal property can be seized but NOT exempt property
Warrant in Form 75 – authority to enforcement officer – has to mention property to be seized (info comes from EH process) – identification of assets
Real property: Where have interest against real property – land must be dealt with in compliance with land legislation – s 116 LTA – provides for registration of writs against titles/warrants
o Warrant binds land – need to keep provision in mind!
EOfficer determines order of sale: r 829 – 2 guiding principles:
o Best for prompt enforcement without undue expense;
o Minimise hardship
Debtor pays: enforcement ceases (r 830)
o Payment discharges person making payment to extent of payment (s 93 SCQA 91 )
EOfficer seizing property: must store in appropriate manner – costs of storage recoverable by the creditor as part of costs of enforcement (r 831)
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Public auction: unless court orders otherwise, EO must put up for sale by public auction all property liable to be sold under EW – as early as possible, at a place appearing suitable (r 832(1))
o Less than $500 value: at the best price obtainable (r 832(2)(a))
o If the reserve is reached: to the highest bidder (r 832(2)(b))
o Before a public auction a party / EO may apply to the court for an order that the property be sold privately (r 832(4))
Advertising: Failure to advertise at all/adequately won’t vitiate sale, but the failure may precipitate action against EO later, but sale remains valid (r 834)
Proceedings under warrant paid to registrar (r 836(1)), registrar pays out of those moneys in the following priority order (r 836(2)):
o EO’s costso Enforcing Creditor to extent of warranto Balance to Debtor
9.2 General warrant for redirection of debts
Governed by Ch 19, Part 5 UCPR
Where debt is owed to a debtor by third party – the warrant redirects payment to creditor
Form 76 warrant
Courts considers (r 840):o Can debtor satisfy the ordero Would redirection cause unreasonable hardshipo Supports efficient and expeditious enforcemento Most appropriate enforcement methodo Eg. if small debt, not worth the effort etc to set this up
Must be served on third party: to be effective (r 842) o Re Standhope : after attachment of order obtained and before serve, third person company
was ordered to be wound up – difficulty because order was to be served on third person but issue of warrant does not create any assignment of debt owed, doesn’t create debtor creditor r/ship between third person and creditor – just a lien over the debt
If third person acts inconsistently with EW: If after redirection 3rd party acts with reasonable diligence but acts with debt in a way inconsistent with – court can order debt satisfied (r 843)
o Eg. 3rd party pays debtor instead of Enforcement Creditor, court can say 3rd party doesn’t need to repay debt to creditor, mistake would mean 3rd party would pay debtor/creditor – double paying (r 843)
3rd party disputes liability: summary hearing of dispute, court should only issue warrant if satisfied 3rd party owed money to debtor, if do, can be redirected (r 844)
Claim to debt by others: hearing to decide entitlement (r 845)
Valid discharge: payment by 3rd party to creditor is a valid discharge of 3rd party’s liability to debtor (r 846)
Enforcement against 3rd party: for failure to pay in accordance with warrant – if don’t comply and haven’t filed notice of objection or disputed liability, creditor can enforce (s 93G SCQA 91):
o Court can make orders if other people have interest in o Trust money – not app to issue warranto Solicitor’s lien money may take priority
Joint funds: redirection of joint fund may be authorised to extent of debtor’s entitlement, presumed to be equal share with other fund owners unless proven otherwise (s 93C SCQA 91)
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9.3 Warrant for redirection of debts from financial institution
Warrant against bank account: where (r 847):
o Debtor has account with financial institution; and
o Fourth person regularly deposits earnings (eg. employer)
Form 77 Warrant; r 849 – content of EW – include eg, name of institution etc
Warrant continues until:o Full amount specified is paid; or
o Warrant is set aside, varied or expires
Warrant to be served personally or by post on: debtor and financial institution (r 850)o And is not effective for 7 days after service
Obligations of financial institutions (r 851):o Deduct amount specified in warranto May deduct admin charge (as set by PD or $ otherwise – Sch 4 Dictionary UCPR)o Must notify debtor
Obligations of debtor (r 852):o Have sufficient fundso Notify if regular deposit stopso Notify if account close / wages paid otherwise
Cannot have another enforcement of the money order at the same time (r 853)
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Supreme Court of Qld Act 1991 = SCQA 91Supreme Court Act 1995 = SCA 95 Civil Proceedings Act 2011 = CPA 11
9.4 Warrant for redirection of earnings
Warrant directed to employer to pay part of future earnings to creditor (r 855)
Considerations by court (r 856(3)):o Debtor employedo Employer identifiedo Debtor has sufficient meanso Whether redirection causses unreasonable hardshipo Consistent with public interest
Form 78 warrant – served on (r 859):
o Debtor and employer
Additional docs to be served on employer:o Form 79 – information
o Form 80 – disputes employer
After service warrant not effective for 7 days
Employer’s obligations on each pay day (r 860):o Deduct amount set in warrant & pay to creditoro Deduct administration chargeo Notice to debtor detailing deductions
Employer may apply for directions (r 867)
Protection from dismissal: employer may not dismiss employee because of warrant, attracts penalties if they do (ie. an offence) (s 93H SCQA 91)
No other enforcement re money order at same time (r 861)
Changes made to warrant: all parties must be notified (r 862)
Employer ceases being employer: employer must give notice in Form 81 (r 866) to registrar and creditor
If 1+ such warrant at the same time: employer complies according to dates of service (r 864)
9.5 Order for payment by instalment
“instalment order” (r 868); Form 82 – sets out frequency of payments, info re when order ceases
Prerequisites for making order: court considers (r 869):o Means of satisfying order and in timeo Necessary living expenses of debtoro Other liabilities o Where debtor applies for IO, court considers whether making of, consistent in public
interest of enforcing money orders efficiently
Overreaching consideration: whether the instalment order would impose unreasonable hardship on the debtor (r 870)
Order ceases: order ceases when satisfied, set aside or debtor fails to make payment (r 872)
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Supreme Court of Qld Act 1991 = SCQA 91Supreme Court Act 1995 = SCA 95 Civil Proceedings Act 2011 = CPA 11
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