DISPUTE RESOLUTION LAWS50027 JOANNA ABRAHAM

What is ADR? Owing to the fact that litigation is the dominant method of DR in western culture, ADR can be defined as the processes by which matters are resolved outside the usual court-based litigation model, with meditation being the primary mode of operation. Mediation wouldnt be effective if it isnt voluntary/has equal power on both sides, Success is different from litigation because the primary goal here is settlement. Mediation: far less intimidation for the disabled woman, has her sister with her, consumer affairs know their stuff, and the parties involved can have their say. Woman/her sister can have a chance to provide their view, whereas in court, they wouldnt get their chance to talk.

Genn: ADR
ADR: Voluntary process, conducted by neutral 3rd party, consensual solution & and focused on problem-solving Benefits: commercial realities, cheap & quick, repairs damaged relationships, less stressful, transformative & peace seeking. Dangers: Truth can be illusive, focuses on specific interests (even for mediators), cede degree of autonomy, power imbalances are emphasized, removes threat of litigation (sometime needed) Mediation Philosophy: 1. Satisfying human needs and reducing the suffering of parties 2. Transformative potential: creates self-respect, self-reliance and self-confidence 3. Organizes individuals around common interests/builds stronger community ties 4. Oppression: can create an increase in power of the strong over the weak. Mandated ADR: contrary to the usual voluntary and consensual process. Mediation (in relation to justice): all about settlement and not substantive justice.

What DR methods are available to you? - Lumping it, complain mechanism within formal structures, informally try sorting it out with the other party, negotiation, get advice from VCAT, mediation, dispute resolution center, formal mediation (independent)..etc - Main point in mediation is that its non-binding (mediator has no power to make anything happen/make orders). Arbitration, isnt used a lot, but has binding powers, and its harder to get out of a decision coming out of arbitration. - Depending on the nature of dispute, you might need legal counsel, civil list VCAT (no lawyers), letter of demand, issue proceedings (but even then, 95% of matters end up being settled, in mediation, in negotiation, or end up lumping it) - Access to justice issues, is it worth it to lose a days pay to take legal action?

DR Pyramid-Moore
From Bottom: - Private Decision-Making by Parties: Lumping it, Informal discussion & problem solving, Formal discussion: negotiation, mediation. - Private 3rd Party Decision-Making: Negotiations, mediation, Administrative decisions (tribunal), Arbitration. Along the way, people are steeping out cause theyre settling or lumping it. - Legal (Public), Authoritative 3rd Party Decision-Making: judicial decision (only 5%), Legislative Decision - Extralegal coerced Decision-Making: Non-Violent direct action, Violence. Types of Mediators: 1. Social network mediators:

o o o o o o

Connected to the disputants Their source of authority arises from their relationship with the parties and is the key for resolving the dispute Part of a continuing and common social network A person who the parties have an ongoing relationship with- sense of trust Personal obligation to assist the parties as a friend- therefore desire to restore the relationship between the parties Examples: personal friend, neighbour, co-worker, religious figure, community leader

2. Authoritative mediators: o In a superior or more powerful position than the parties o Potential or actual capacity to influence the outcome of a dispute o Try to influence the parties indirectly and persuade them to arrive at their own conclusions o Do not make the decision for the party, as a solution developed by the parties will result in greater commitment to their solutions 3. Benevolent authoritative mediator: o Values the agreement of the parties over his own role o A mutually satisfied settlement o Prevalent in non western cultures o Mediator does not have a substantive interest: only procedural interests 4. Administrative- managerial mediator: o Has an interest in the outcome o Has influence or authority by occupying a superior position o Interest in the organizational or legal parameters for decision making o Encourages parties to work within these parameters 5. Vested-interest mediator: o Also called third party advocacy o Both procedural and substantive interest in the outcome of the dispute o Pushes forward interests in all aspects of the dispute o Highly effective in certain circumstances- a common mediation practice o Examples in the international arena most common 6. Independent mediator: o Relationship that is neutral and stance that is impartial o Commonly based in societies with an independent judiciary o No personal interests in the outcome- outsiders of the dispute Concepts: Impartiality: - Absence of bias or preference in favour of one or more negotiators, their interests or the specific solutions that they are advocating - Not always separate from the parties - Involved with and concerned about how to help achieve satisfaction of all parties issues and interests Neutrality - Refers to the relationship or behaviour between the intervener and the disputants - Generally not tied to the ongoing social network of the parties **Impartiality and neutrality signify that the mediator can separate their personal opinion about the outcome of the dispute using the mediation process Mediator directiveness: Orchestrators: - focus on empowering parties to make their own decisions - offer procedural assistance

help in establishing or building relationships less directive only intervene when it is clear the parties are not capable of making a settlement on their own

Deal Makers: - highly directive to both the process and the substantive issues under discussion - more prescriptive and directive with respect to problem solving steps - involved in substantive discussions - voice their opinion on issues under discussion Ideal mediator: - reflective practitioner: such a person who can match mediation theory and the learnings of others with their own past experiences in resolving disputes - specialised negotiator: generally does not directly affect changes in the disputants by initiating moves, but is more of a catalyst for the moves of the parties - needs to be able to analyse and assess critical situations and design effective interventions to address the causes of conflict. **Costs are ALWAYS discretionary!! -Why dont people go to trial? - Inaccessibility of good quality legal advice, uncertainty about where to go for advice, feeling that advice isnt an option due to exorbitant costs, lack trust in the system. -Why DO they go to trial? - The amount to be claimed is substantial, public policy concern (when youre more concerned with justice and creating precedent), to enforce rights, tactics to scare other side Court Hierarchies From Top: HIGH COURT FEDERAL COURTS o Family Court o Federal Court (Appellate Jurisdiction) o Federal Magistrates Court o Family Division o STATE COURTS o o

Supreme Court

o o Magistrates Court Civil Lists (Childrens Court etc..)

o Court of Appeal Criminal/Civil Division County Court (Crim/Civil)

Use LISTS to get judges who know about certain matters Why do people go to fed instead of county? To set a precedent even though its more expensive, judges (forum shopping), you can cross-vest if you have both state and federal issues, issue in the one which tactically suits you best. Depends on what kind of outcome you want.

After you institute proceedings, what happens? -one party issues statement of claim, other side responds with a defence (if you dont respond to everything in the SOC, you are admitting to it), other side then has a right of reply, and if you dont, it means youre denying what the other side is saying, then negotiate a way (in above mentioned manners), discovery will take place (process of finding out the other sides case, the listing of every document involved in the proceeding, other side then has the opportunity to investigate..

Define the Civil Justice System: the combination of institutions and individuals authorized by the state to resolve disputes and in doing so, set and enforce standards of behavior for those belonging to the state. 2 Directions for Procedural Reform in Australia: 1. To increase control over conduct of litigation: Done with introduction of case management into the litigation process 2. Minimize use of courts and adjudication to finalize cases: Done through reforms, which actively encourage settlement of case before they reach trial. What is a resolution? - When both parties are satisfied with the outcome, when something is documented, entered into a deed, when theres a judgment So when is a dispute successfully resolved? - when you win/agree to end matter OR when both parties decide they cant keep going and both sign and walk away. IN GENERAL TERMS, YOU SIGN THE DEED, ITS DONE! Role/Obligations of a lawyer in DR? - First step is to figure out what your client wants, be it an apology, compensation..etc. You could ask that the company improve their internal systems, change their policy, or possibly get the company to donate to a similar cause..etc. - Thus, look closely at what the client wants, what you can achieve, what DR method can be used most effectively, and what outcome you can come to laterally because the company will never admit to liability. - LIV Professional Conduct and Practice Rules 2005 (S12.3): A practitioner must where appropriate inform the client about the reasonably available alternatives to fully contested adjudication of the case unless the practitioner believes on reasonable grounds that the client already has such an understanding of those alternatives as to permit the client to make decisions about the clients best interests in relations to the litigation. Singson v Whitamore -What options does Whitamore have? Negotiation is out of the question, mediation then? Think carefully about the desired outcome, and the outcome more likely to be achieved. Extralegal: violent/non-violent Potential build up of ill-feeling could cause further negative repercussions Classically right for negotiation! o Are the interests mutually exclusive?- here no. o Parties are interdependent (so you can come up with something to help both parties, both lose if the other loses) o Able to identify and agree on issues in dispute o Both agree that leaving the matter in its current state is impractical o Interests are not compatible o Depends on whether or not the relationship is ongoing, here yes because of existence of kids. -talk about the risks associated to the costs of litigation for your client -Australia: has an adversarial system, meaning that both sides of the dispute are allowed to present their arguments, and its not just a judge deciding. -Lord Woolfe:

Brought up issues of time and costs which all but obliterated justice from the courts and legal systems. Rolls-Royce system of justice, which meant that at the end of the day, the poor lose out Lack of equality between the parties when the justice system is supposed to be in favor of equality of parties Matters are run by parties/lawyers, not courts. Amount of claim being made outweighed by the costs of litigation (Proportionality) Woolfe talks about the endless tactical games bringing on a lack of equity, proportionality, and this hence makes the court system unjust.

-2 Reforms to this: 1. Case Management -Judge effectively takes control of the running of the case and giving the judge power from the outset. Power shifts from the parties to the judge. The process of discovery for instance, used to be employed as a tactical play to bury the other parties through time and costs. Now the judge is the one to decide which issues warrant discovery. Now, there are limitations on discovery. -HCA decision is 1997 Case: Queensland v JL Holdings Pty Ltd emphasized the paramount importance that cases should be determined on their merits and that case management considerations should not outweigh this in all but exceptional cases for the benefit of doing justice. In 2009 however, HCA decision in AON v ANU reversed the effect of JL Holdings, giving greater weight to the necessity for case management. 2. ADR/ Costs Sanctions (Offers of Compromise) --Given that the expense, delay and the stress on parties are the biggest hindrance to justice, there can thus be a non-judicial resolution. -ADR: Industry ombudsmen schemes, quasi-administrative schemes and development of tribunals. -Encourages transfer of information to promote early settlement, minimize the extent to which oral evidence is used in litigation, and almost complete transferal of fact finding in trials from juries to a single judge. -Case Study: FDR these services provided by Legal Aid Commissions are resulting in full settlement of nearly 55% of disputes and partial settlement of a further 25.9% of cases. Benefit-Cost ratio of spending has been found by KPMG study to be 1.48. Total applications for final court order reduced by 20% from 2006-2008. -Advantages of Non-Judicial Resolution: o No publicity, quicker, cheaper and more efficient for courts. Parties are empowered by making their own agreements, and not having one imposed on them by a judge; and thus they have more access to input. -Disadvantages: o It is essentially a compromise; you settle for less than youre legally entitled to, no precedent is established, might still be a legally inappropriate settlement, because success in mediation is defined/measured by whether or not the matter has been settled, but this does not necessarily mean that justice has been served. o Parties have no control over the outcomes; we dont even know what the ordinary standards/bar is. Youre not setting any precedent, so youre not making a difference to anyone but yourself. o Justice happens behind closed doors, fairness is not the main criteria, and with ADR, legally, does fairness even matter? o One of the fundamentals of the justice system is transparency! This is not met through ADR. o Mediation doesnt balance equality before the law Hence, why do matters settle when they do? - Costs are too high; chances of winning may be slim, time constraints applicable. - Matters will settle when they are ripe for negotiation, eg. When new info comes to light.

What happens to matters in VCAT? -low costs, user friendly, usually ends up being heard in one sitting (eg. Civil lists) -Lord Woolfe is the one who lead to this, couple with concern over the sudden explosion in numbers of matters going to litigation, and there was a legislative response to it. So historically, whats brought us to this point now? How does civil procedure work and where does the law come from? Comes from legislation, rules of court, practice notes; how do these 3 things fit together? Legislation is primary as its passed by parliament, drafted by lawyers, but approved by politicians. Rules of courts, written by judges, and enforceable unless in conflict with legislation. Practice notes, written by judges as well, but here we have specific lists which build up their own specialties, which are guides to practitioners on what do in in any particular circumstance (provides a bit more of a step by step guidance in procedure). Need for reform, Fed government put together their access to justice task force. The main aim was for people to be able to get to these reforms/methods. Structural reform, a massive push for plain English so that its more accessible and understandable to people. (Grassroots stuff) Push towards informal justice and ADR Theory of competition policy was all about reforming the rules to reduce costs to justice. Changes made to the way lawyers can build their client base. Came up with a new system with that they considered to be the major principles of access to justice. (Attorney general) Main principles (AGs lists of access of justice factors): - Accessibility (people understanding what their options are) ensuring that everyone has physical and financial access to justice - Appropriateness-justice system should have the capacity to direct attention to the real causes of problems that may manifest as legal issues. - Equity (affordability- deep pockets should not be allowed to dictate the outcome of the case; so what do we do about the lack of equity? Legal aid, but the problem is that you have to be extremely poor to qualify for legal aid because the budget has been slashed across the years). Also, for instance VCAT has decided to get rid of legal representation in certain lists, so this in a way reduces overall costs, and increase speed of resolving matter. - Efficiency (proportionality- and the achievement of fair outcomes in the most efficient way, does fair=just? In this way, wed have to look at the processes, so the process and thus the outcome might be fair, but at the end of the day, justice depends on whether or not its a legally acceptable outcome. Fairness=Legal process), - Effectiveness (should maintain and support the rule of law, should be aimed at arriving at fair and appropriate decisions, directed to the prevention and resolution of disputes, to help with the maintaining and supporting of the rule of law. Thus, youd need to balance your rights, and the transparency of the system/process) - Mentions resolving disputes at the appropriate level (so its efficient and cost effective) - These principles are thus based on pragmatism, meaning it focuses on the economics, politics, and community of the matter, to ensure that the fundamental issues are fairly dealt with. -What is meant by building resilience? It means that people should be equipped to deal with their own problems. For instance, community legal centers, neighborhood justice centers, are there to help people figure out which legal avenue would best solve their problem.

VLRC Report: Fundamental Requirements to Justice - Fairness: right to have proceedings carried out at a fair and public hearing. To ensure that not only is the outcome fair, but the procedures as well. Zuckerman talks about the rectitude the law; the correct application of the law to the true facts. But we cant always get perfect decisions because people, who are imperfect, make them. Thus, it is important to undergo just process: where all are equal before the law in the sense that rules of procedure will be applied in the correct way. - Openness: justice not only being done, but being seen to being done. Public confidence is important and is of constitutional importance. - Transparency: the decision is open and there for all to see, but the reasons for the decision and the process are made available to the public. - Substantive Law Application: be it common law or statute - Independence: from any external influences apart from the proceedings in front of it. Independence of judge from parties: in the old days, they got someone who they knew, but now we have impartial judges who dont have any personal or business working connections with the parties or lawyers. If the judges know the lawyer, they should make parties aware of this, and ask them to bring it up if they have any issues with it - Impartiality: coming in without any preconceptions, neutrality in various issues. - Accountability: they publish reasons for their decisions and these can be appealed against. And provision is made for removal of judges based on reasonable grounds for carrying out an investigation. Peer reviews are used as well. Desirable Goals: - Accessibility & Affordability - Equality of Arms: equal treatment of both parties; minimize the effects of recourse inequalities. - Proportionality: costs incurred should correspond quite equally with the matter in dispute. Delay tactics are used in discovery and interlocutory procedures/applications (happens along the way as part of the proceeding before you get to the final proceeding) where litigants purposely waste time to wait out the other party. So how do you achieve proportionality? In practical terms, you need to work out a way where you can get to a point where there arent going to be that many costs: case management. Limit discovery! Leave to Appeal: high costs are involved; courts can get hot-tubbing, where all the experts come together and discuss the case. - Timeliness: too much delay ends up being justice denied. What brings about delay? Availability of judges and courts, and of course tactical maneuvering. - Getting to the truth: - Reaching correct result: rights of appeal, jury.. - Consistency and Predictability Michael King article on Adversarial System: - Australias justice system has often been termed as adversarial; a successful set of procedures, practices and institutions that have underpinned a well-functioning democratic society by maintaining the rule of law and the separation of powers - Eg. Independent Judiciary, autonomy of parties, examination and cross-exam of witnesses. - Why pressure for change?: system accused of being expensive, out of date, complex, unfair, slow and lacking in regard for victims of crime and to the general public. - Neutrality, respect, participation, commonality..etc - What is procedural justice? o About ensuring as best as we can that open, transparent and fair process is available to the parties with the aim of providing a fair process (which will increase public confidence in DR processes) o Implies importance on the perception of just process o 4 elements: neutrality, respect, participation and trustworthiness. o 3 Aspects: (1) Voice providing an environment where a person can present their case to an attentive tribunal. (2) Validationacknowledgment that a case has been heard and taken into account. (3) Respect manner in which the judicial officer interacts with the person.

E.g. is Restorative Justice: usage of processes that seek to facilitate parties expressing and resolving emotions surrounding the commission of a wrong that may have caused dysfunction in both victim and perpetrator.

Who are the parties in any particular legal proceeding going to be? o Start by looking at who you have the right of action against, and who has the authority to contest this/go after. o Consider practical issues; what do you want out of the DR process; be it for compensation, principle, precedent; to achieve sense of justice; think about which party is going to be able to provide you with your desired outcome?, and then, consider which DR process is going to be able to help you achieve this outcome?

Jennifer Llewellyn: Residential School Abuse in Canada A. Problems with mainstream mediation: i. Settlement is not always the primary goal of the parties ii. Negotiation and mediation can still be adversarial in character iii. Power imbalances iv. Private process grievances are not made public v. Costs vi. Justice may be sacrificed for the keeping of peace B. Corrective justice material transfer to victim, wrongdoer worse off and victim simply compensated for wrong C. Restorative justice key focus is restoring relationships to the ideal of social equality SCR: 4.03 (Names of Parties), 6.08 (Identity of Persons Served)

Case Study 1: Canadian Residential School Abuse These residential schools came about as a result of the Canadian government wanting to get rid of them from being wards from the state, and the idea they came up with was assimilation; breeding them out. And this lead to abuse of many children; resulting in cultural genocide on a massive scale. These schools were designed as total institutions. So what did these people want? o Compensation, public record of events, opportunity to tell their story, apology. o What they were offered was the establishment of a $350 million healing fund to support community based healing strategies. So what DR methods do we have available to us? o Lobbying (enormous political power), class actions, mediation (which helps people to have their say, less costly, less time-consuming and flexible) o The government would like this as well because its private So who is part of the court proceeding? o Victim, perpetrator, but thats about it. Maybe witnesses, but thats limited; unless you can establish separate causes, the immediate parties are the only ones who can appear; no one else even if they might have been affected.

Outcome: $1.9 Billion settlement. But there was also a denial of liability Theories of Justice Corrective Justice - Seeks to remedy harm, correct inequalities created by interferences with victims rights, and it does this through the notion of material transfer from the wrongdoer to the victim Mostly about the transference of money Is a traditional concept of justice; being merely monetary About interference of the rights of the individual But it doesnt attend to intangible losses Restorative Justice Takes the starting point as the fact that there was already an existing inequality between the parties and thus seeks to rectify the inequality and restore the wronged party to a better position to when they were, when the inequality existed. Deals with underlying causes of the conflict About restoring a sense of social equality between the parties Contemporary concept of justice; where is more that just a payout. Must include all of the parties; recognize and address all of the harms Voluntary, centered around truth-telling Protection to disadvantaged groups to prevent power imbalances Outcomes must be capable of being evaluated

Advantages of Litigation: Legitimacy and authority (no sense of compromise) Protection for the powerless Feeling of familiarity as the proceedings are uniform The judge is the governing voice of reason Public process which allows for scrutiny and transparency Access to all Sets precedent

Disadvantages of Litigation: High costs Lengthy time process Precedent if established against you, could be potentially bad. Inflexible process (in contrast to the familiarity), process can be intimidating Makes you re-live the process (ordeal), and you are limited in the way you can tell your tale through examination and crossexamination (because of the adversarial nature of the process) Matters relate to the individual parties ONLY. All you can hope for is that all subsequent negotiations are going to take place in the shadow of that law/precedent. Parties might have access to unequal resources; if you have access to money, that gives you unlimited or greater access to resources No win-win outcomes, only win-lose outcomes

Limited outcomes: you can get money out of litigation, feel good about setting precedent, but nothing else which is tangible.

Advantages of Mediation: Faster, cheaper Flexible, no one gets locked into any settlement or be telling you what to do; you have to agree on your part Private, and thus youre more likely to get an apology You can get creative with outcomes arising out of mediation; youre not limited by the rules of the court. Not a win-lose; and thus you are in a better position to foster on-going relationships You are allowed to tell your story just as you want to tell it Mediation is confidential; so you can anything you want without fear of other people using that knowledge against you

Disadvantages of Mediation: No transparency Less consistent and unpredictable in relation to court proceedings where you know the decision is made on current law and precedent. In mediation, it might not be about the law at all Perceived lack of authority legitimacy. Risk of duress; which can be both subtle/overt Focused on settlement, and this thus leads to questionable outcomes

Cubillo v Commonwealth of Australia [2000] FCA 1084

A. Issue was of lawful removalplaintiffs argued they had been unlawfully removed during the Stolen Generation B. Court held: i. There was insufficient evidence with regards to Cubillo (knew she was removed but didnt know why, so court could not determine whether authority breached his statutory obligations; ii. With Gunner the evidence showed his mother wanted him removed, so the court could not provide the decision he sought. iii. The Cth relied on a limitation defence (dictated by statute) C. Court concluded that these issues had to be resolved by the legislature D. This case is a good example of how restorative justice would have provided a more satisfactory outcome for the plaintiffs. Further Info on Cubillo: - Claimed that they were forcibly removed from their families by CW employees, and from their perspective, they want compensation, acknowledgement that what they suffered was wrong, and an apology. - Now you need a cause of action/ claim at law: they relied on the section, which said that they were not removed from their families in their best interests. - What are the difficulties they faced? o It was hard to gather information (witnesses), due to the length of time which had passed, and the evidence had dried up/died. o The only witness they had was the guy who drove the truck, but he didnt know what the causes were; merely the driver.

10

Since obligation was on Cubillo to prove failure to act in accordance with provisions of s6. Thus, the judge said that in spite of the sympathy on his part, there was no claim made out. Thus, what is the next best move? o Look at processes other than litigation, that doesnt require as much tangible evidence. Theres only been one successful case of successful aboriginal compensation; because he was taken away from his mother without her ever knowing; half a million. One case was successfully settled; partial confidentiality clause, and he was given a public apology as part of the deal. On the whole, there arent very many compensation schemes in Australia. o

Aspects of Positional Negotiation: - Start with the most you want (more than youre going to get), and it usually settles way through because of time running out - Wastes time because no one backs down - Never agree to first offer - Feign reluctance - Keep more than one issue on the table - Refer to a higher authority - Use time as a tactic Interest-Based Negotiation: Fisher &Ury: - Separate the people from the problem - Focus on interests rather than positions - Generate options from mutual gain - Have some objective criteria on which to base your arguments: Precedent, expert advise, community standards - BATNA: Its what options are left to you if you dont negotiate an agreement. Different to a bottom line. Its the standard against which to measure any negotiated agreement; gives you the luxury of making better deals if youve got a strong BATNA - a strong BATNA is power, and you need to work out the opponents as well o 2 types of power in negotiation: 1. Negotiating power: other side being aware of power that you actually do have 2. Illusionary power: other side believing that you have power which you actually dont have - Negotiation Jujitsu: o In a sense, focusing on interests, and taking the heat out of arguments o Dont push back o Ask questions about their interests instead of making statements; makes it hard for them not to respond. o Dont attack their positions, look behind it; dont underestimate the power of face saving because thats usually incredibly important to both sides o Dont defend your ideas, instead, invite critique and advice (but dont do that in front of your client!) o Recast attacks on you as one on the problem o Ask questions and pause! Never underestimate the power of slience o One-text procedure: not all parties will behave wisely - Ask about their interests instead of their positions, this hence shifts the game away from positional bargaining and simplifies the process into one of jointly deciding on an options - Eg. Architect working with husband and wife on house plan 1. Ask questions rather than make statements 2. Work off the same sheet so both sides win

11

3. Separate people from the problem 4. Focus on the merits and articulate this in a manner which focuses on principle rather than confrontation - 2 main criticism of the Fisher and Ury problem: o Dont acknowledge the distributive bargaining element of the problem o too simplistic Interests based in negotiation Substantive interests - Needs that the individual has for particular goods such as money and time - Often the central focus of most negotiations Procedural interests - Preference of the negotiator in the ways in which the parties discuss their differences Psychological interests The emotion and relationship needs of the negotiator both during and as a result of negotiations

Define Mediation: NADRC (National Alternative Dispute Resolution Advisory Council) has defined mediation as a process in which the parties to a dispute, with the assistance of a neutral third party, identify the disputed issues, develop options, consider alternatives and endeavor to reach an agreement. 3 types of Mediation: 1. Social network mediators 2. Authoritative mediators 3. Independent mediators -Make sure mediator gets through to the other side -Importance of process: knowing what works and what doesnt -Importance of opening statements where each side get to put forth their case to the other side; and then the opportunity to caucus -Who signs the agreement then; make sure you know where the real authority lies -Importance of allowing people the time to absorb the facts of the other side -Keeping energy levels up or down with food Mediation -Private/confidential -Non-binding process -Has to be voluntary on the parts of the parties -Parties own the mediation process and the mediation achieved (although, this is debatable given that in the end, the lawyers are the ones who steer the course of the process, though the parties are allowed input) -Opening statements (crucial; because this sets the stage for the rest of the mediation process) -When an impasse is reached, then you can establish parallel seminars (caucus) -If an agreement is reached, it is importance who drafts the agreement (are the terms/ actual agreement actually enforceable) -Biggest concern in mediation: When you have one side which is immovable Power imbalance

12

Procedures in Mediation: 1. Establish confidentiality 2. Establish that theyre on the same page (common ground) 3. Identify separate agendas (stuff thats not on the page) Distinctions b/w Mediation & Litigation: The merits of mediation have been demarcated from that of litigation by focusing on problem solving as opposed to an accentuation of strict legal rights. It enhances the chances of both parties being satisfied with the outcome instead of the usual win-lose verdict adjudication brings, allows for a more flexible procedure capable of producing creative solutions not available through the courts and an increased focus on reparation of relationships through minimalizing conflict between parties. Court Recognition of Importance of Mediation Idoport Pty Ltd v National Australia Bank Ltd (NSWSC), where the summary judgment: There was a contrast drawn between fast and efficient win-win outcome, which is product of mediation; and the win-lose outcome, resulting from extended litigation processes. In addition, settlements are encouraged at an earlier stage of the process in mediation, which in effect, eradicates the substantial legal costs, which would otherwise emerge. The relationship between the parties is also allowed to remain undamaged following the settlement of the matter through mediation1. - 90% of all civil litigation is resolved without recourse to trial. What brings you power in situations of mediation (such as in the case of Columbia University)? -Strength in numbers -BATNA for University: can call the police, can suspend/expel students, it will still carry on with operations: but this will result in bad PR for Uni. -BATNA for students: could bring legal proceedings against Uni. -Both sides dont have a very strong BATNA, but university does have the upper hand, because people will go to Columbia anyways. -So how did the mediation start since its in the best interest of both parties to settle? -With opening statements, it can be done either by the lawyers or clients, but at the discretion of the situation -Talks about mediations as parallel seminars; each side learning about the difficulties of other side, so its more about a learning process than anything else. Start by basic clarifications of exactly what the parties intended by various actions or phrases. -With the university setting a time limit and threatening police action, the university made the situation worse, increasing hostility and decreasing trust between both parties.. -There was also a lack of authority on the students side, because the leader had no real authority and had to return to the cheerleaders each time an offer was proposed. -Another problem on the part of the students was that there was no reality testing; at the start, they didnt have a realistic idea about what could be achieved and how fast this could happen; and this was an impediment to actually reaching an agreement. - Difficulties for the mediators: there was no trust, and the student leadership had no legitimate authority, the mediators were excluded from the student caucus, and hence, they werent very sure of what the students standpoints were. -Agreement was finally concocted under very adverse circumstances; and it wasnt very well received. -University released a biased statement, which favored the universitys stance on holding strong and not giving in to student pressures. Said there were no concessions made, and that all they had given into were things, which were already underway in the University.

13

Points to Take out of Columbia: 1. Trust: - Perception of impartiality (she was married to the dean) - Importance of co-mediation (he was young and non-white; more acceptable) - Appropriateness (Race, gender, class, age) (she was white/middle-aged) 2. Stake in Outcome: - Difficult to stay neutral; she wanted a quick outcome (married to dean). 3. Information: - Includes training and sharing. - Explaining/coaching on mediation techniques, sharing info with the larger groups and each other. 4. Food: - Importance of energy levels in making good decisions. 5. Parallel Seminars: - Stories heard and not just told. - Concerns will be easier to digest coming from mediator rather than other group. Case: Tapoohi v Lewenberg (No 2) [2003] Facts: Mrs Tapoohi and Mrs Lewenberg were sisters who had fallen into disagreement regarding the division of their mothers assets following her death. The mediation went on into the evening, with Mr Golvan QC emphatic that the parties would remain until the terms of settlement had been drawn up and signed. No taxation specialists present and that it would be important to consider the tax ramifications of the terms of settlement prior to a final agreement being reached. Such a clause was not ultimately entered into the terms of settlement, however it was nevertheless signed by the parties. Upon discovering the tax implications of the settlement reached, Mrs Tapoohi sought to amend the settlement terms with Mrs Lewenberg. When this proved unsuccessful, she claimed damages against her solicitors for negligent failure to obtain tax advice and/or to include such a condition in the written terms of settlement. Mrs Tapoohis solicitors sought contribution from the mediator, Mr Golvan QC pursuant to s23B of the Wrongs Act 1958. Matters in Issue Mrs Tapoohis solicitors alleged that Mr Golvan QC had been negligent or was in breach of the express or implied terms of the mediators contract. It was alleged that by reason of his retainer, the mediator owed the parties various common law duties of care. These were said to have arisen from the agreement between Golvan QC and the parties that he should act for them and advise them as a mediator at the Mediation. It was submitted by Mrs Tapoohi that the experience of Mr Golvan as a senior barrister was relevant to the standard of care and skill expected of him when acting as a mediator, and that the alleged breaches could be said to arise out of his conduct, assumption of responsibility and the giving of advice. Decision2 The judge concluded that there was an arguable case against the mediator, warning that jurisdiction to give summary judgment against a claim is one which should be exercised sparingly and only in the clearest case, where the claim is evidently doomed to fail. Given the uncertainty surrounding this area of law, Habersberger J declined to strike out the pleading on the basis that the mediator owed no duty at all to the parties in the mediation. Similarly, his Honour

14

considered that in a case such as this one, where an unusual contract exists, it cannot be said that it is not arguable that duties similar to those implied in the contract are owed in tort by the mediator to the parties. Habersberger J also found it arguable that the breaches had arisen out of the conduct of Mr Golvan QC and his giving of advice. His Honour made it clear however, that in no sense could it be said that a mediator acts for a party in the sense that a lawyer acts for a client. Questions Arising from T v L: -Supreme Court Act gives mediators immunity against legal action, but this wasnt mandated mediation; as such the only way to avoid liability; mediators need to get parties to sign a declaration at the start of mediation process. -Who should do the drafting? In this case, the mediator did the drafting. But since its representative of the parties, they should be the ones doing it. -In the end, you ended up with a document headed terms of agreement signed by the lawyers; and this; coupled with their experience; you cant get out of it. -When does the mediator advise the parties? NEVER. During the caucus times, you can toss suggestions around, but no other time. -So how did this matter come into the court, because its usually not easy to appeal mediation decisions. She appealed on the basis that it wasnt the agreement that was reached. -In this case, what happened to boasted confidentiality of mediation? You learn, that this is not absolute; and being prepared to hear it, the court made a policy decision because it was regarding fraud and unconscionability. Relevant Rules to Promote ADR in Courts: Practice Note: Supreme Court of Vic, Practice Note 10 2011 Federal Court Rules Part 28 (ADR) CPA Chap 5

First obligation is to the court, Next is to your client

Commencing proceedings: Considerations: 1. What is your claim? Was there a duty owed by the defendant, damages or cost loss? a. Meet cause of action requirement for proper basis: Civil Procedure Act s 18 2. Who are the parties? a. Determine if more than one b. Will they be able to pay costs associated 3. Determine how much it will cost you a. Also factor adverse costs order against if lose 4. Which jurisdiction is more appropriate? a. Voth v Flowermill: clearly inappropriate forum test b. Supreme Court has unlimited jurisdiction 5. Timing of bringing the case- within Limitations of Action Act 1958 (Vic)- s 5 (1): general tort and

15

contractual claims is 6 years Procedure: 1. Issue a writ: Supreme Court rules r 5.04 a. Special writ: with a statement of claim b. General writ: only outline (used if time is an issue) 2. File writ to the court and serve it to the defendant: about natural justice! a. Supreme Court rules r 6.02- personal service b. R 6.09- can leave with lawyer if they have authority c. Corporations Act s 109X: service to the registered office for a corporation d. One year and one day to serve writ: r 5.12 e. Substituted service: r 6.10: if cannot serve personally i. Need to prove that personal service could not occur ii. Need to provide options of how plaintiff would serve if possible (other means) f. Outside Australia: need to serve in accordance with that country: r 7.03 3. Filing an appearance for the defendant r 8.02 a. If this doesnt occur: default judgment against defendant b. Time: Victoria 10 days (r 8.04 (a)) 4. Ability for defendant to file counter claim: r 10.02

Civil Procedures Act 2010: - (s21) -purpose of this is to increase access to justice -s7: overarching purpose: just, efficient, timely, cost-effective. -s16: paramount duty to the court -s17/18: obligation to act honestly and on a proper basis (not frivolous/ vexatious or abusive) -Hulls second reading speech: PM 218: is saying that its going to settle anyways, so its just a more straightforward process than going through the courts. Mediation, if you dont settle, you will be faced with the penalty of adjudication. CPA Requirements for Pre-Litigation: Although Ch 3 and Parts 3.1 and 3.2 of the CPA have been repealed, s 9(2)(b) still provides for the court to narrow the issues in dispute prior to trial, which is why these requirements are an important consideration 1. Purpose: to achieve understanding between both parties as to how litigation will proceed and to ensure no surprises arise in the course of litigating. 2. Relevant sections of the Civil Procedure Act: a. Section 41 overarching obligations certification by parties on commencement of civil proceeding i. Each person must personally certify that the party has read and understood these obligations (s 41(1)) b. Section 42 proper basis for certification c. Section 44 urgent filing of documents and certification d. Section 45 proceedings may be commenced despite failure to certify i. If parties fail to comply with certification the court cannot prevent commencement of proceeding e. Section 46 court may take failure to comply into account i. Allows court to determine costs (s 46(a)) ii. Allows court to make any order about the procedural obligations of parties (s 46(b)) SCR: Form 4A (Overarching Obligations Certificate), 4B (Proper Basis Certification) Federal court of Australia act 1976: Part VB (Case Management in Civil Proceedings)

16

-CPA: S19: Over-arching obligation -In a nutshell, what are these over-arching obligations about? That the obligation is firstly to the court, to make the procedures more efficient, Supreme Court had case management in place, imposing limits on time, setting boundaries on discovery. So, since we already had all this in place, why did we need the act? -to make it legally enforceable, it serves as a regulation of behavior across the board, makes practitioners stop and think about the rules before carrying out their action, and its gives judges the legitimacy to formally guide and enforce the rules, gives them a little more strength to whip the profession into more appropriate behavior. Because judges dont like being appealed, so having all these rules set out neatly, reduces the chances of that happening. -Obligations refer to all the parties, directly or indirectly, might even be the litigation funder or the insurer. Anyone who is fundamentally involved. (S10) -Repercussions of breach (S29) - Powers of Courts (S9) -Obligation not to mislead/deceive (s21) -Proportionality (S24) -s9 (1)(c)/(e), minimizing delay -s9(2)(b)-reasonable endeavors to resolve dispute -s18- proper basis -s13- paramount duties to the court and not to the client -What happens if youre a week out from trial, and come you find a new piece of legislation for proper basis?: S9: look at what it means for the case as a whole, if its in the benefit of the client/court in terms of timeliness, efficiency. -Look at jurisdiction (which court you want to go to), look at costs (will you need to pay other sides costs?), likelihood of wholl youll end up before on appeal is a major consideration (in deciding which court to go to), proper basis/how strong your claim is, what is it that youre suing for? Eg. If theres a tort, is there a duty owed any negligence? Make sure you can meet the requisite elements of your causes of action. Standing: -When a questions asks whether a party is legally able to bring a proceeding, this question is concerned with standing: Whether a party has standing was outlined in the case of EEG v VicForests. Key Quote: ACF: must be more than a mere emotional or intellectual concern. Jurisdiction: Legal place where a claim is brought. - State courts VIC: Magistrates/Local Court (claims up to $100,000), District/County Court (P.I claims: Unlimited, Other claims up to $200,000), Supreme Court (General Civil Jurisdiction) - Federal Courts: HCA is the ultimate Fed court, S75 Cth Const (treaty, reps of other countries, matter in which Cth is a party, b/w states or b/w states and residents, where writ of mandamus/ prohibition/ injunction against officer of Cth is required. Federal Court: any matters arising under any laws made by the Cth Parliament.

17

Territorial jurisdiction: this lies in the common law principal that territorial jurisdiction rests on the ability to serve the defendant. HCA BHP Billiton Ltd v Schultz 2004: the ordinary basis of jurisdiction of common law courts in person actions is the presence of the defendant within the courts territory, and the defendants resulting amenability to the courts process. Within Australia: s 15(1) Service and Execution of Process Act 1901 (Cth): an initiating process issued in a state may be served in another state. (state here includes territory) Cross vesting legislation passed in 1987: initially, it cross-vested jurisdiction between courts and created a mechanism for transferring proceeding to an appropriate court. Re Wakim case 1999: constitutional challenge which struck down the conferral of state jurisdiction on the federal court. The High Court however upheld the inter-state arrangements and the federal jurisdiction vested in the state supreme courts. Cross vesting also prevents forum shopping: through s 5 of each states legislation Challenge of jurisdiction: test to determine if the forum is clearly inappropriate: Voth v Manildra Flower Mills Pty Ltd. Outside Australia: all Australian courts have rules that permit a plaintiff to serve a defendant outside Australia in specified situations All require some nexus between the case and the jurisdiction: Agar v Hyde (2000) HCA: the statement of claim or affidavits should suffice to determine whether the nexus, on the allegations, existed Australian test for determining if a court is inappropriate: Oceanic Sun Line Special Shipping Co Ltd v Fay (1988) HCA: requires the defendant seeking a stay of proceedings to demonstrate that the local court is clearly an inappropriate court to hear the mater. Unless it can be shown the Australian court is clearly inappropriate, they will hear the matter despite there being a more appropriate court Extended Jurisdiction: Just meaning that Australia has the jurisdiction to convict someone of an offence no matter how short a period of time he was in the country.

How long do you have to serve your originating process? A year and one day from the date after youve been issued (5.12.1) Serving & Substituted Service: Supreme Court Rules O 5, r 5.12: writ or originating motion is valid for service one year and a day after it is filed. Personal service: Supreme Court Rules r 6.03: leaving a copy with them, or leaving it in their known presence. o Ainsworth v Redd (1990): good service by saying these documents are for you o ANZ Banking Group Ltd v Rostkier (1994): throwing the documents at the garage door whilst it was closing is good service o Primelife Corp Ltd v Andrejic (2003): if defendant does not accept or it cannot be left, good service by leaving it in the vicinity of the defendant and indicating the nature of the document. o Acceptance by solicitor: Supreme Court Rules r 6.09: recipients solicitors written undertaking to accept documents- endorsed on the served documents. o Informal service: Supreme Court Rules r 6.11: if the document has come to the notice of the person, even if the serving is not in compliance with rules, still constitutes a serve. Proof of service: plaintiff files an affidavit from the person who served the document outlining how service was effected. Supreme Court Rules r 6.17. Corporations: Corporations Act 2001 (Cth) s 109X: good service is leaving or posting a document to the companys registered office. Substituted service: when the defendant cannot be located or personal service is otherwise impractical: Supreme Court Rules r 6.10.

18

 Appearance: amounts to the first step in the ordinary process of litigation and defendants formal involvement Supreme Court Rules O 8. o A defendants failure to enter an appearance enables the plaintiff to proceed with the case, including signing judgment without notice to the defendant. If you cant serve it within the 12 month, you can possibly extend, but youd have to have really extenuating circumstances. And if you always need to get an affidavit of service to state that the other side has received it. If all this doesnt work, you can apply for a substituted service (court order), but youd have to be able to prove to the court that youve tried really hard (6.10), and you can then request for the court to allow you to serve by means of other process. This is because of reasons of natural service-the court just wants to make sure that both sides have been treated fairly/equally. Service outside jurisdiction- what happens if youre outside victoria? Same rules apply as long as youre serving within Australia. But what if youre outside Australia (7.03)- need not be serves personally as long as its in accordance with the laws of that country, and when will you seek to do so? (7.01)-for anything done, happened in victoria (Australia), so you just pretty much have to make the connection to victoria, and with this, you can serve non-personally without leave of the court. Generally, you have 10 days to file an appearance: which literally says that youre filing an appearance (1 line). Effect of filing an appearance is that your accepting the jurisdiction of the court, but if you dont accept, you can file a conditional appearance. If you dont file an appearance, the other side can get a default judgment against you. Time for appearance set out in 8.04-in vic 10 days, Aus., 21days, new Zealand, new gunea-28 days, outside Aus.- 42 TEST: Voth and Manildra- appropriate test for jurisdictional challenges is the most appropriate forum test. For us, under Voth, we have to consider whether this is a clearly inappropriate forum. File your defence within 30 days within the receiving of the writ/statement of claim, and the plaintiff, then needs to file a defence to the counterclaim. If its within Vic, you have to personally serve unless: Unless its a corporation, in which case you can serve under the corporations act, or you have a lawyer, and the lawyer is willing to accept service.

Capacity: - Important to ensure that a party has legal personality and has the ability to make decisions about litigation; and the most used categories are minors (only gain legal capacity at 18) and mental capacity (party must be able to understand the nature and consequences of decisions. Bankruptcy (Bankruptcy Act 1966 provides that proceedings cannot be commenced against a bankrupt creditor w/o leave of the court). Corporations (under the Corporations Act 2001 Cth), have legal personality and can be sued (but must be in their correct name). - In situations where a party is a minor or suffering mental incapacity, court rules require that an adult be appointed to make decisions on behalf of the person suffering the disability- Vic: Supreme Court (General Civil Procedure) Rules 2005 (Vic) O 15, r 15.02. - Unincorporated bodies: for example partnerships, community groups, sporting and social clubs. Partners are able to sue and be sued in the firms name: Supreme Court (General Civil Procedure) Rules 2005 (Vic) O 17. - An issue is public interest litigation (standing/locus standi), indi. Members of the public commence proceedings on behalf of public unless that member of the public has a special interest to protect (eg. Bolt Case). Interveners & Amicus Curiae - Interveners are not parties, but those whose legal interests are substantially affected by outcome of litigation. In Levy v Victoria 1997, Brennan CJ pointed out that the person seeking to intervene must show that there may be aspects of the case that may not be presented by the parties before they will be allowed to intervene. Interveners generally have the same rights as parties, but they dont have the right to raise issues not raised by the parties.

19

Amicus Curiae: is a person who acts as a friend of the court, assisting by providing information or argument that would not otherwise be presented. Their legal interests are less and not directly affected, hence why they have fewer rights than interveners.

JOINDER OF CLAIMS AND PARTIES: *ORDER 9 SCR -Joinder is a legal term, which refers to the process of joining two or more legal issues together to be heard in one hearing or trial. It is done when the issues or parties involved overlap sufficiently to make the process more efficient or fairer. It helps courts avoid hearing the same facts multiple times or seeing the same parties return to court separately for each of their legal disputes. -Under SCR S 9.02, theres permissive joinder So how do you go about making a joinder? - Prepare a writ, issue and serve it. And then theyre a part of it, and if they want to challenge being a part of the proceedings because theres no common law or fact. *The only way to get out of a joinder is to challenge on the basis that the joinder criteria dont apply to you. 3rd party writ is when someone outside gets joined by the defendant. *Danger of disallowing joinders? Not very efficient if everyone goes in individually, danger of inconsistent verdicts Thus in a nutshell, a joinder is to bring everyone in, to prevent courts from having to deal with separate issues. Always need to consider the timing of issuing proceedings, statute of limitations, you can only bring it up within the statutory period, which is generally 6 years, but that can vary.

Thought Process in Considering Joinder: 1. A proceeding should include all those involved in the dispute and all aspects of the dispute. 2. Court rules in each jurisdiction enable the bringing of separate causes of action within a proceeding or the joinder of more than one plaintiff or defendant within the proceeding: Supreme Court (General Civil Procedure) Rules 2005 (Vic) O 9, r 2. 3. Which jurisdiction you want to have it heard it 4. Timing 5. Joinder (rule 9.0.2) A and B-common issue of law or fact must be established. But even if the joint provisions have not been met, the courts let it proceed anyways. 6. (Pretty much asking court to use its discretion to go ahead even when all the criteria arent met) (Joinder, and joinder by leave) 7. Counter-claim, a separate claim by the defendant against the plaintiff- may be an entirely new dispute (SCR Order 10) 8. 3rd-party Claim: when a defendant argues that any default on its part was due to the conduct of other persons and when this person is not already a party to the dispute- The role of the third party is to defend the claim made by the original defendant against it. (SCR Order 11.1) 9. Anshun estoppel -With Anshun, your duties are contradicted because with the CPA 2010, youre meant to cut down to only whats essential in proceedings, but here, if you dont put in a claim at the start, youre not allowed to bring it in later. - Applies where you had your chance to bring in all your claims, and you didnt do it, but if you absolutely cant take it as a claim in the beginning, thats where the estoppel comes in. - TEST: is one of reasonableness. That is, a party cannot raise an issue in subsequent proceedings in circumstances in which it is unreasonable for them not to have raised them in the first proceedings.

20

If it is unreasonable, that party may be "estopped" (or prevented) from doing so, effectively losing the right to make that claim at all. 10. Bullock order: an order that allows a successful plaintiff to include the costs of the successful defendant in its claim for costs from the unsuccessful defendant. Implemented to attempt to create a fair outcome with respect to costs. o Gould v Vaggelas (1983) HCA: granted this order to the Goulds who had joined their accountants as defendants to a counterclaim they had brought against the plaintiff- justified here as the plaintiff, in defending the counterclaim, had argued that the Gould had relied on their accountants and not the plaintiff, and it was this assertion that had led to the Gould joining the accountants to the counterclaim. 11. Sanderson order: an order that requires the unsuccessful defendant to pay the successful defendants costs separately from payment of the successful plaintiffs costs- removes the liability to pay the successful defendants costs from the plaintiff. Criteria is the same for Bullock: consideration of whether it was reasonable for the plaintiff to have sued the successful defendant. 12. Representative proceedings: where a party takes proceedings not only on its own behalf but on the behalf of others. S 33C of the Federal Court of Australia Act 1976: enables a class action to be taken by seven or more persons who have a claim against the same person if the claims arise out of similar or related circumstances and give rise to a substantial common issue of law or fact- no need to have a common interest. So what are the steps taken to sue someone? 1. Issue an originating motion (which is basically an argument on the law, and can also be made when you want the court to make a declaration: but this is very rare) 2. Issue a Writ (Special Writ-comes with statement of claim (writ that has a statement of claims attached to it) or general writ (claim which has an outline generally of what your case it, and if you open your claim with this, you will have to file our statement of claim in 30 days)- when you have a statue of limitations issue, or when you have an injunction (4.06) 3. File this with the court 4. Serve it on the other side-through a process server (except for when you serving a writ, it has to be personally served)- 6.02 (personal process of serving), 6.03-sufficient to merely leave it in their presence, as long as theyre aware that youre there, and if they have a lawyer who has instruction to accept service: rule 6.09

21

SCR Order 18A (Group Proceedings)

Threshold Requirements: S 33 Federal Court Aus Act 1976

Cases: 1. Phillip Morris narrow interpretation, 2. Bray-Hoffman in obiter does not follow Phillip Morris (too restrictive)

3. McBride v Monzie held that Bray is the authority for determining class actions; only issue that requires resolution on s 33C(1)(a) is whether each applicant has a claim against each respondent, not the same claim

Figure 1: Class Action Summary When Do We Use CLASS ACTIONS? When they dont fit within the joinder purpose When there are 7 or more people in an action/suit (33C1A) and they are represented by one person Cost orders can only be made against the representative party, not against individual parties, and this is the fundamental difference with class actions. (S33ZD) What benefit is there for the representative? None, theyre just the ones willing to take the front line. Classes are defined within the writ, and its an opt out procedure as opposed to opt in, sometimes, you might not even know youre a part of a class. (S33, E 1), and you opt out by written notice. (so as long as you fit within the definition, youre part of the group) So what does it mean if the group of so large, if its not going to be possible to distribute any award thats made, the court can effectively disband the group (S33M)/dismiss the proceedings. And what does this mean for lawyers, means that you have to closely define the parameters of your class, because if its too big, you wont get anything accomplished. In Phillip Morris, everyone has to have a claim against the same person Bray and Hoffman effectively overruled Morris, saying that you DONT need all the parties to be claiming against one person. So Finklestein said no to Phillip Morris. Purpose of the Act is to reduce cost, improve access to justice, increase efficiency and to need them all to claim against one person would be to usurp the purposes of the legislation. So he says, what you would need to have is a representative party who related to every single one of the defendants, then theyd be able to do that, but if not, you should have more than one who can represent everyones interest. Bryan Alexander Johnson & HIH said that Morris was right and Bray was incorrect. But all that was obiter and not ratio and hence, we go back to Morris. Then we come to MONZIE: Got rid of Morris and went back to Bray.

TO SUMMARISE: Order 18A Supreme Court Rules Group Proceeding Order 18A.01 Application

22

Order 18A.03 Commencement of group proceeding

Supreme Court Practice Note 9: Conduct of Group Proceedings Threshold requirements: laid out by s 33 of the Federal Court of Australia Act 1976 (Cth): 7 or more persons have the claims against the same person Claims arise out of same, similar or related circumstances The claims of all those people give rise to a substantial common issue of law/fact, proceeding commenced by one or more representing some or all of them Cases: Phillip Morris narrow interpretation: o The effect of Phillip Morris is that s33C requirements for a group proceeding will not be satisfied unless all applicants have a claim against all respondents. Bray-Hoffman in obiter does not follow Phillip Morris (too restrictive) McBride v Monzie held that Bray is the authority for determining classactions. Steps to take in Class Actions: 1. Letter of demand 2. Issue proceedings against perpetrator(s) Costs Civil procedure act (need to certify in proceedings that the practitioner has to have proper basis) 3. Other side has issued third party proceedings Think about joinder provisions (supreme court rules 9.02) 4. File a special/general writ 5. Issue and file a statement of claim 6. Serve the writ (same one for each of the parties) Main person has to be served personally because opening pleadings (writ) has to be served personally (Supreme court rules) Can only not serve personally if its a corporation: s109 of corporations law 7. File appearances (10 days) 8. File and serves defence/ counter-claim 9. Main party then received the counter-claim, and has to file a defence to the counter-claim *NB: personal service (apply for substituted service to the court), have to provide the court with alternative in which you can get the writ to the other party; natural justice. 10. If other party doesnt serve in 10 days, there could be a default judgment. Relevant Cases: Federal Court of Australia Act 1979 (Cth) PART IVA - 7 or more persons have a claim against the same persons- s 33 c(1)(a) o Philip Morris Australia Pty Ltd v Nixon 2000 Applicants claimed they had contracted a smoking-related disease due to the companys conduct to start and continue to smoke cigarettes. Restrictive interpretation requiring all class members to have claims against all the respondents If there is one applicant suing multiple respondents on behalf of a class then the applicant and every group member must have a personal claim against each respondent o Bray v Hoffman-La Roche Ltd 2003 Claim with regards to international price fixing and market share arrangementsclaiming damages and other relief for people who had purchased vitamins in Australia over a seven year period Rejected the reasoning in Philip Morris All the plaintiffs dont need to make a claim against all of the respondents

23

The section would be satisfied by joining as an applicant a person who has a claim against the other respondent to represent other group members who have claims against that respondent Need to read the section in relation to the purpose of the act: reduction of legal costs, enhancement of access to justice, efficient use of court resources, consistency in the determination of common issues, making the law more enforceable and effective- interpret broadly so as not to undermine these Brian Alexander Johnstone v HIH Insurance Ltd 2004 Judge refused to follow Bray, and stated that he was instead bound by the decision in Philip Morris Court mentioned how in Bray, all the plaintiffs had a claim against all the defendants anyway, and their reasoning was made in obiter = not binding McBride v Monzie Pty Ltd 2007 Reasoning of Bray was in fact the ratio, not obiter Need to have representative parties who have a claim against all the defendants All the plaintiffs do not need to have a claim against all the defendants

Same, similar or related circumstances- s33 c(1)(b) Substantial common issue of law or fact- s33 c(1)(c) o Bright v Femcare Ltd 2002 Two different groups: one that used the contraception but got pregnant, and the other that tried it, went to try another contraception and couldnt get pregnant Court found on appeal that there was a common issue of law or fact as they used the same product- a lot in common although claim of loss will be different o McBride v Monzie Pty Ltd 2007 Broad picture two critical issues that were in common: 1. That the involvement in the fraud scheme was a bar to their claim, and 2. Whether they suffered any loss. The question of whether they are even allowed to bring a claim is enough to bring proceedings- doesnt have to have substance The class will be defined in the writ, and persons under that definition are automatically joined: consent is not required: s 33 e(1) o Opt out of the class with written notice: s 33 j(2) Too large a group: need a narrow parameter of the class as the court can disband if too big: s33M Interest of justice issues: s33N: provides for the discontinuance of a representative proceeding if it is in the interests of justice to make an order to that affect. **Today, would also look at the Civil Procedure Act ss 7 and 9- issues of time and cost savings for the applicants o McBride v Monzie Pty Ltd 2007 There are many smaller claims to be had by many individuals, and the potential gain from individual action would not justify incurring the risk of costs Due to the quantum of the individual damages claims, stopping the group proceedings would work a serious injustice o Bright v Femcare Ltd 2002 If the applicants and the group members were not permitted to bring a group claim it was likely that many of them would not pursue an individual claim because the potential gain would not justify the risk of costs Interlocutory applications: Finkelstein J was critical of their application in Bright v Femcare case. Here accused the respondents of doing whatever necessary to avoid trial, usually by causing the applicants to incur prohibitive costs. **Today would also look at Civil Procedure Act s 9 (1)(g) for proportionality and s 18 for proper basis. To attack validity of class action procedure: o s 33H: This would attack the pleadings

24

o -

s 33N: not in the interest of justice for the class action to run

Security for costs orders: s 33z(d): Costs can be awarded against the representative plaintiff but cannot claim against the members of the class o Bray v Hoffman-La Roche Ltd 2003 The characteristics of the group should be taken into consideration on an application for security for costs Also need to consider who is funding the proceedings, the merits of the claim, if either side has made an interlocutory application Thus the interpretation needs to be limited Settlement: when funded by a third party, they hold the right to settle at any stage in the proceedings- the court will look at the agreement between the two parties and must be satisfied the merits of the settlement are fair to the class: s 33v(1)

Costs-Orders in Class Actions: - Security for cost-orders: rule 62.02 Supreme Court rules; can only be made by the defendant against the representative party. Courts tool to ward off possibly impecunious (no money) or meritless plaintiffs, you can make an order that they make security for costs, so should you win/lose, you know you have your costs covered. - But Finklestein proposed the notion that in certain circumstances, the court would consider to extend to the costs sanctions against members of the class action; because it might be a cost action which forces the defended into settling; maybe theyve sent I a representative who is impecunious when there are actually a class members who have the finance; so its used as a tactic. - If claim is unmeritorious, at least if the plaintiff goes down, youre not cheated of your money. - So in the end, the court will take in consideration, even if the guy has no money, theyll look at public policy considerations in whether or not it was worth it to proceed. - Normally then, in a class action, costs only apply to rep. and the class is protected form costorders, and as such, should they also be protected from security costs- but Finklestien in Bray says that while that might be the case in most issues, in might not ALWAYS be the case, because if not, this would be stated implicitly in legislation, so maybe they shouldnt all be exempt for costs. - Could be applicable to a third party funding the litigation. Litigation Funding - If you dont have litigation funders, how can most matters see the light of day? And since we dont have contingency fees in Aus, client will just get billed, and lawyers get paid when their clients get their money. - if you use this avenue, you have to opt in, and they retain the right to decide when to settle, and they can also charge a percentage; and these are possible abuses of the process. - And that the courts have said that the participation of these people are good, and comes down to an access to justice issue, where, if they arent there, the matter might not even get to be heard. FINALLY: - Youve gone all the way, and youve settled with an agreement, the diff between class action and litigation, is that the courts are going to go over it (s33V1) and be satisfied that the settlement is fair and in the interest of the class. In other matter, court doesnt oversee these matters, and class actions are the exception to this possibly because they dont get to actually see many of the class along the way. Pleadings in Class Actions (Camille Cameron Chapter) S33.8: Bryan Alexander Johnson and HIH (cases). One of the challenges to pleadings here is that the group is so poorly defined that youre not even sure if youre part of the group, and it becomes an opt out as opposed to opt it system, embarrassing if you dont know who the group members are. This gives an opportunity for the court to strike out the claim, to put pressure on the other side

25

And this can also get the claims amended. And the likely outcome of this is that the court allows an amended claim. What are the alternatives to pleadings? Fast track, rocket-docket system in the federal court,

Purpose: to preserve the status quo pending trial. By granting an injunction, the court disallows an action until an agreement is formed between parties.

Order 38 Supreme Court Rules Injunction Order 38.02 interim injunction (required in an urgent case)

INJUCTIONS

Requirements: 1.Whether there is a serious question to be tried 2.strong prima facie case:

3.The balance of convenience favours granting the injunction: just and convenient to grant.

What is an Injunction? - Is a court order to that requires a party to refrain from undertaking certain acts. Preventing a further action of something, or preventing someone from doing something. - To protect the status quo, to give the court time to consider what the appropriate outcome should be; whether things should continue to be stopped to carry on. How to make an Injunction?

26

It its urgent, you can make an ex-parte application for an interim injunction: Where it is necessary or appropriate to obtain an injunction or other interim preservation order before the other party becomes aware of the application, or in other cases of extreme urgency, the application may be made ex parte If you do issue an ex parte injunction, you will have to undertake to issue a writ and serve it on the other side ASAP. Interlocutory injunctions take a couple of days, but this is brought on quickly as well, however, the other side needs to be informed, and takes place during the course of the proceedings. Interim injunctions, if done without informing the other side, and youll have to give an undertaking as to damages. Mandatory injunction: Supreme Court Rules r 38.03: when the court requires a part to carry out some action. Courts have held no additional or separate test for these: Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988)

Security for Costs: SCR: Order 38.03(2) the court may grant injunction on the condition that the party applying to give security for costs and expenses of any person affected: undertaking as to damages. This is to ensure that no money is lost to the person of whom the injunction is sought against that would mean they could not continue with the proceeding. - Most common basis in seeking this is where the plaintiff is impecunious, - Can also be ordered where the plaintiff is a corporation under the Corporations Act 2001 (Cth) - Foundational Rule: that a plaintiffs poverty shouldnt prevent litigation of a claim, faced with the premise that procedure should do what it can to ensure that a defendant who has successfully defended an unmeritorious claim is able to recover costs. Is the major check for weak claims. Case: EEG v VicForests: security for costs was not guaranteed for the defendant. However, because of the public interest in this case, the court decided ordering security for costs was not appropriate due to the status of the plaintiff. Steps to Take in Getting an Injunction: 1. You have to establish to the court that there is a serious question to be tried; and this applies to whether or not you actually have a valid legal claim. 2. Balance of convenience in favoring the granting of an injunction. The prejudice to the plaintiff if you dont grant the injunction, would be greater then the prejudice to the defendant if you do; so basically, weighing up the consequences. 3. Court will take into account if there is a risk or irreparable harm that cant be compensated for by way of damages. Eg, EEG forest case, you cant replace an entire forest and money. 4. That damages would not be an adequate remedy. 5. If youre the plaintiff, you will then have to give an undertaking as to (security for) damages to cover the loss brought about to the other side as a result of you getting the injunction. There is a little bit of case law where the courts say that you wont have to undertake damages as a part of policy consideration. And this simply means that should you prove to go through with your application, youd have to cover the costs of the other side. 6. In certain circumstances, the defendant will ask for more, saying they want security; and this is different from security for costs. This is for security for damages when it comes to subsequent days after an injunction; so the other side actually has to post security for damages. 7. The exception is, where in the normal course of events will have the plaintiff giving security for damages, and only in exceptional circumstances will the courts not impose security for damages or costs. To Deny an Injunction:

27

1. 2. 3. 4. 5.

Deny the strength of prima facie case Nature of damage P is seeking to prevent Apply for security for undertaking for damages if security for costs is of dubious value. Whether case is in large public importance. Could also apply for order for security for costs. (O62, court also has inherent jurisdiction to order security.) 6. If security for costs not given after being ordered to, the whole claim is thrown out.

Case study: Injunctions: Environment East Gippsland Inc v Vic Forests (2009)- proceeding one
Facts: application about stopping logging of the forest due to the presence of long footed potoroos in the area. The logging would thus be unlawful by the company due to their obligations under the Sustainable Forests (Timber) Act and Flora and Fauna Guarantee Act 1. Serious question to be tried: a. Question of standing: needs to be established that the EEG as an environmental group is able to bring forth a case against Vic Forests. i. Demonstrate a special interest in the issue, not just mere intellectual or emotional concern ii. Demonstrate the closeness of the relationship of EEG to the subject matter iii. Here, the EEG had standing as it was recognised by the government, appeared to be the only group directly interested in the preservation of the areas natural habitat and had regular communication with the government with regards to these issues b. Extent of obligation imposed by statute on Vic Forest: obliged to comply as it had a direct obligation which extended to include looking for the animals in the area- precautionary step. Look to the following for evidence of obligations: i. The plan ii. The code iii. The action statements c. Was there a breach of obligations? Evidence was brought through the photographs and witnesses that there were long tailed potoroos in the area= a breach by Vic Forests. d. There is a serious question to be tried on a substantial legal issue. 2. Balance of convenience/ damages inadequate remedy: a. EEG: i. costs if the injunction was not issued are less tangible, and would not be able to be awarded at a later date ii. Irrepairable harm would be done to the forest if injunction was not issued, bearing in mind that the potoroo is an endangered species b. Vic Forest: i. costs are more tangible are able to be awarded at a later date ii. Financial loss of Vic Forest due to its contractual obligations to other companies was not a significant disadvantage if injunction issued iii. Vic forest would be out of pocket as EEG has no ability to pay damages- but irrelevant due to public policy issues (related to impecunious party of EEG as even if Vic Forest wins they will be out of pocket regardless)

28

Anton Pillar Order (Search Order) If a question asks about preserving important evidence, discuss search orders: Order 37B (Anton Piller orders) Supreme Court Rules. Such orders are usually made without notice and compel the respondent to permit person specified in the order (search party) to enter premises and to search for, inspect, copy and remove the things described in the order. o Purpose: to preserve important evidence pending the hearing and determination of the applicants claim. o An extraordinary remedy that is intrusive, potentially disruptive and made without notice, prior to judgment.

Anton Pillar Made ex parte (therefore requires full disclosure to the court) and only in exceptional circumstances. Different to search warrant as they must consent to entry. Purpose is to protect evidence. Usually made under strong evidence something will be destroyed. Must give undertaking as to damages. Test: 1) must establish it is essential for justice to be done. 2) Must show there is a grave risk evidence will be destroyed. 3) Must show it is of no real harm to D.

Mareva: Made ex parte (requires full disclosure to the court) and rarely used. Must show real risk of dissipation of assets Test: : 1) P must establish a prima facie case, 2) D must have the assets, 3) P must show there is a real risk of the assets dissipating.

Anton pillars or search orders are about protecting the evidence. There needs to be a prima facie case, need to be able to show the court 2 things: they have it, and they theres a real risk that theyll destroy it. Supreme court rules 37B.02 (search Order): for the purpose of securing and preserving evidence. 37B.03: court can issue a search order if they believe the applicant has a strong prima facie case, potential or actual; loss will be serious if the action is not made. Requirements:

29

(a) An applicant seeking the order has a strong prima facie case on an accrued cause of action; (b) The potential or actual loss or damage to the applicant will be serious if the search order is not made; and (c) There is sufficient evidence in relation to a respondent that (i) The respondent possesses important evidentiary material; and (ii) There is a real possibility that the respondent might destroy such material or cause it to be unavailable for use in evidence in a proceeding or anticipated proceedings before the court. 37B.03 2F: Affidavit saying why you should be granted the search order: if they are residential premises: if its a female, child under 18 years and/or any other vulnerable person. Lord Denning talks about how these orders protect the evidence and the integrity of the court process. Supreme court Practice note 2: Search Orders

Mariva (Freezing Orders) If the question asks how someone can be prevented from moving assets from accounts within or outside of Australia, discuss Freezing Orders. Order 37A (Mareva orders or asset preservation orders) Purpose: to prevent frustration or abuse of the process of court, not to provide security in respect of a judgment or order. o An extraordinary interim remedy because it can restrict the right to deal with assets even before judgment and is commonly granted without notice. Anton pillars are about protecting evidence, Marevas are about protecting assets. (Order 37A, freezing of assets): and both are about protecting the court process. For the courts, its all about preventing abuse of process; so if it looks like the defendants are going to abscond with the assets, then it hinders the process of courts since it hinders the achievement of justice, which is why courts will then grant these orders, and can also be applied to 3rd parties. Order 37A.02.1-Freezing Orders, court may make one without notice to respondent for the purpose of protecting assets and allowing the court process to move along smoothly. 37.A.04: respondent does not need to be a party to the proceeding, where a substantive relief is sought from the party; so if they are the assets who are going to be targeted. So pretty much you can target a 3rd party 37.A.05: this applies of the judgment has been given in favor of the applicant, but you dont actually need to have judgment, but you need to have a good arguable case or prospective course of action. Practice note 3*: you have to leave enough money for the other party to live

TB: Orrity and Malprost Clothing (pg 155) Youd apply for both an injunction and a freezing order. They lost on the freezing order, and why it this? Because theyre not attempting to destroy the asset, merely selling it below cost. But in this case, you can put the money into trust and tie it up Not urgent enough to stop the sale, but we can protect the money from the moment the order is given. For both these orders, you be required to give security as with other injunctions.

Subpoenas 42.02: you subpoena a witness and/or witness and documents Sent to only one person, if more than one, youd have to send out individually. And these documents are sent to the court, not you. When you subpoena someone, you have to set out very clearly what the documents are, and youd have to give the experts conduct money; because you need to give doctors for instance some

30

compensation for their time (usually just enough to transport money)

Case study: Security for costs: Environment East Gippsland Inc v Vic Forests (2009)- proceeding
two In most cases it will be necessary for a plaintiff to provide the undertaking or security for the case (Air express v Ansett): involving private litigants Exceptional circumstances: (Blue Wedge v Port Melbourne): proceedings involving public interest issues which is strongly supported by the legislations clear intent to protect endangered species o here in Blue Wedge, the exceptional circumstances were not made o EEG they were able to not have an undertaking for security If order for security for costs made, it would seriously inhibit EEG from making a claim in the proceedings

Thus, inappropriate to order for EEG to provide security for costs

Exam questions concerned with case management will be asking you to consider the role of a judge in proceedings and the powers they have to direct them. 1. Relevant provisions of the Civil Procedure Act 2010 (Vic): S 47 S 49 S 50-53 2. Relevant Supreme Court Rule: Order 1.14 Exercise of power: endeavor that all questioned answered under case management principle: it is efficient; prompt; economically determined and ensures discretion of courts. 3. Relevant sections of the Federal Court of Australia Act 1976 (Cth): Section 37M contains an overarching purpose of the kind found in modern common law procedural rules. The Explanatory Memorandum stated that one of the aims of the legislation was to overcome the restrictive interpretation by the courts of what is in the interests of justice and to support judges so they can confidently employ case management powers. 4. 5. Relevant Case Law: Queensland v JL Holdings (1997) HCA. AON v ANU (1999) HCA. Relevant Secondary Source: Camille Cameron article How far does the court go? What happens if the other side wants to make a substantive change to their argument right before trial, then the court will have to postpone the case. Youd basically be arguing Anshun estoppel. What does Court take into account: What is the effect of this new claim? Is it a whole new claim or merely further evidence? Whats the practical impact of this application, will the other side need a few days or a few months to get on top of the new evidence

31

Queensland v JL Holdings: Fed court upheld trial judges view that justice was the paramount consideration in determining applications to amend a pleading. At first sentence, the original judge said no on case management ground because theyd brought it too late, and the other side would be at a disadvantage. Considered issues around procedural justice in a meritorious claim. Both instances said that justice and case management should not supplant that claim. Were looking at the grounds the other side had for bringing it in late. Procedural orders are the servants of justice and flexibility is the hallmark of justice, and continued to uphold the traditional view of justice in krofer and smith: courts should uphold the rights of justice and not to punish people if it can be done without injustice to the other parties. So individual justice outweighs justice and fairness. Responses to this were legislative, to pull the notion in and to support the process of case management.

AON v ANU Could be argued that they wee merely extending the definition of justice, and you have to look at the whole court process and all other litigants are waiting for the cases, if all these adjournments are allowed. So basically, when youre looking at what applicants before the court want to do, in this case an application to make pleadings really late, you cant just look at whether or not its a justifiable, meritorious claim, but include prejudice to the other side (because not everything can be fixed by costs, justice delayed, is justice denied), so this case rates strengthening of case management materials over individual claims. So basically that the court needed to look at the broader implications to the justice system. Adjournment was granted on the basis of JL Holdings for 7 days But by the time they actually came back, the whole time for trial ahs lapsed. Judgment was only delivered 6 months after the date in the court of Appeal. But at the end, court effectively overruled Queensland v JL Holdings. But the court spends a lot of time talking about case management procedures. Civil Procedure Act (Part 4.2) SC Rules Vic 36.01: gives court the power to amend rules, and for these days, well rely on AON and Rules. And this binds county and magistrates courts in Vic. Over-arching purposes: Part 4.2, Section 37: to ensure accordance with over-arching purpose, sets out what the court can do. Fed Court Rules s 37M: to facilitate the just resolution of disputes according to the law in a swift, efficient manner. S37N/P: sets out what the courts can do. 37P(5)

Fast-Track System (PM 449) - Fed court also has the docket system where the one judge sees ur proceedings all the way to the end. They also have the Fast-Track system, aka the rocket-docket system (Practice Note 1): cases which are deemed to be priority, they have an upper time limit of 5 days for cases, which means it must be done in this time. - Dont have writs/ SOC, essentially got rid of pleadings, and just sets out your claim, what ur proceedings are, what you want, and its much more informal than other pleadings processes. - Time frames are shortened, directions hearings are done within 45 days

32

Good faith proportionate search: done by a party in which the party makes a good faith effort to locate discoverable documents while bearing in mind that the cost of the search should not be excessive having regard to the nature and complexitivity of the issues raised.

Questions that ask you about particulars and the rules of court should consider defining the issues in particular, consider pleadings. 1. The relevant Supreme Court Rule is Order 13, 23. Pleadings: are formal written statements filed with a court by parties. They state claims and/or Defences. Purpose: to establish the issues to be decided by the court. 2.Relevant case law: Gunns v Ors Pleadings are the major procedural mechanism by which notice of a partys case is given, and the nature of the process leads to identification of the real issues in dispute. Function of Pleadings is to inform a party of each others case so that the issues in dispute are identified and both can be prepared to deal with the other sides case (no trial by ambush). Quote from Dare v Pulham (1982): Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial; and they give a defendant an understanding of the plaintiffs claim in aid of the defendants right to make a payment into court. Quote from Gunns: The pleading fails its fundamental purpose of informing each of the defendants of the case he or she has to meet Pleadings are to: - To let the court know what the case is all about, and also the other side. - Pleadings define the parameters of the dispute.**(because it is to the pleadings that the court will go to when it needs to determine relevance), so they really are the outline to the dispute. - Youre claim will go into the pleadings, material facts youre relying on, and your plea for relief (the outcome that you want) - You will not get anything other than the relief youre asked for in your pleadings. - Needs to state with clarity he case that must be met - Help other party to fairly respond to the case, and this makes the process fair Pleadings Contain: Must contain materials facts, but not the evidence by which they will be proved Cant plead bare conclusions of law Particulars (13.10.1)-which supports your material facts; inform the party and limit generality (FCR 16.41). Must also include conditions of the mind (including knowledge), damages, and fraud/ misrep. To enable opposite party to plead, to define the questions for trial and to avoid surprise at trial Criticisms of Pleadings: 1. Reveal little about actual dispute

33

2. Often technical and over formalistic: if parties cant properly understand the case against them, they cant effectively identify/narrow issues in dispute 3. Contentions of law not pleaded, so the basis for this isnt explained. 4. Rely on fine distinctions b/w matters of fact and that of law 5. Parties might not know enough at the start of proceedings and this might result in broad, ambiguous pleadings. 6. Adversarial in nature and used more as an opp to advance individual cases. So how do Pleadings actually happen? - Statement of claim is the document you use, and then a defence add counter-claim - And then you need to personally serve it on the other side - The they have to file an appearance - Also then need to file a defence. (Anything in the statement of claim which is not denied, is taken to be admitted), so if you dont bother to reply, youll end up getting a default judgment against you, SC Rules 13.12.1 - Could file a holding defence, lets say youve only just received the brief and the proceedings need to be filed the next day: then you should just file a counter-claim which states that we do not admit/or deny anything. - Finally you have a REPLY to a defence, and its not usually done, so youll need to get leave to apply for this. If you dont file a reply, youre taken to have denied everything in the statement of claim. Procedural Justice: No trial by ambush. So you need to lay all your cards on the table, you cant suddenly pull out your trump card without notice. Bank commerciale & Akhil Holdings: First filing was against 3 banks, and they, in their defence, all claimed statute of limitations (absolute defence save in limited circumstances unless theres an allegation of fraud) which is what Akhil claimed, and second one was against only 2 banks because the 3rd couldnt be contacted, and the court said that you cant actually do that. In the COA, it was said that there was fraudulent behavior on the part of all 3 banks, and even though the 3rd bank wasnt served, they knew about it, so found all 3 banks guilty HCA overturned this decision: cases are established by the pleadings, and this is what the court has to go to, and in the absence of that, it would be completely against notion of procedural justice to allow these orders against the bank to stand without pleadings, so they overturned decisions an didnt find the 3rd bank liable for fraud. Dawson was the only one dissenting saying that procedural rules should not be a cause for denying redress. What are your obligations for drafting as a lawyer? Proportionality of costs, Narrowing issues in dispute, Minimizing delay and Proper basis So basically you want there to be realistic claims made, hence why your pleading the material facts Technical responses to poor pleadings: Youd argue with them that its embarrassing Admissions: you admit everything you have in there unless specifically denied on your defence. At some point closer to trial, parties can file a 35.05 (notice to admit: document which one party asks other parties to agree to certain facts or the authenticity of documents), and the other side has to respond by either denying, or admitting it, and the purpose for this is to narrow the issues. 35.06: Inconsistent pleadings: you can have them within the pleading, ad the reason you would do that is because youre unsure of the specifics, so you put it in anyways, and in the course of the proceedings, that will be narrowed. Its there for you to use, but use it sparingly, because if used too often, youll look dumb, use only when youre really unsure.

GUNNS: - To challenge pleadings, you make an application to strike out.

34

33.02: does not enforce a claim, where it might prejudice/embarrassed the process (which means theres a pleading but no cause of action), and the court might order it to be stuck out. There was a writ by guns against 20 defendants. And there wanted to make a civil conspiracy claim. Statement of claim 1: is challenged and knocked out, Version 2: struck out, V3: struck out, plaintiff given another chance to re-plead. And they werent going to allow them to go ahead with V4: but court said they must be given an opportunity to bring their claims to the court properly, so it was filed, but various defendants were allowed to withdraw with GUNNS paying their costs.

Possible Reforms to Pleadings: - Adopt the Fast-Track system of FC (where SOC identifies issues by way of statements of facts and contentions and responses) - Advantage: forces parties and practitioners to focus on real factual and legal issues and engage with them. Results in costs savings and earlier settlements and trials. - Like in US, incorporate a pre-pleadings conference to provide each other notice of the dispute. - Recent introduction of pre-action requirements involving formulation of claims, exchange of expert reports, compulsory mediation or settlement conferences.

Relevant Rules: - SCR: Order 63 (13,15,15,23,29,30, 30.1) - CPA 2010: Part 2.4 An important aspect if ensuring equal access to justice is the applicant ability to pay the associated costs of litigation and the discriminatory effect this has on disadvantaged members of the community Costs are always discretionary. there is only 1 immutable rule in relation to costs, and that is that there are no immutable rules in costs Often, they are the only factor in whether proceedings are or arent issued 2 Types of Costs: 1. Institutional costs (court fees, filing fees..etc) 2. And Professional costs (lawyers fees, expert reports..etc) Effectively we have very little legal aid available, so how do people then access the court system: 1. Conditional Fee Agreements (No win, No fee) So they dont charge professional costs if they lose, so ideally they only take on cases theyre sure theyll win. Theyll produce bills along the way, and if you dont win, youll only pay the imbursements. Uplift fees (similar to contingency fees, but they dont attach to damages, and theres a cap at 25%, and if youre successful, you can charge, a further charge on the fee based on the total costs charged, so this is different to contingency fees) 2. Litigation funders So the costs are being put onto private funders instead of public sector. At the end of the proceedings, what happens in relation to costs? Costs follow the event; an award is made in favor of the party who just won.: party-party costs (costs as between both parties, defined in the relevant scale of whichever jurisdiction youre applying in.) Most practitioners contract out of scales, and just have written agreements/fee agreements, hourly rates. TB Pg 268 Test for party-party costs: all costs nec. or properly incurred. (s63.29), and you get back around 50-65%, but assessed on scale. Other types of cost orders: indemnity and solicitor-client costs (63.30: Test: reasonably incurred or of reasonable amount), and this happens when theres something wrong with the process, like fraud..etc. and with this, youll get 80-90% of costs back. Again, assessed on scale.

35

In Indemnity, youll get all of the costs back, unless it can be shown that these costs have not been reasonably properly incurred. (SC Rules 63.29), can be made against the losing party or the lawyers or against 3rd parties. 63.23: cost liability for lawyer: court may make an order that all cost b/w solicitor and client be disallowed. All this because you sign a document (proper basis certificate) What are the 2 ways that you could put pressure on the other side to settle with you when ur making a reasonable offer?: 1. Order 26: Offer of Compromise Made by either plaintiff or defendant An offer to settle a dispute may be made in accordance with Supreme Court Rules Vic O 26 by any party, in any proceeding, on any terms: Supreme Court Rules Vic r 26.02 Can sometimes be made as an offer of a percentage of the claim, not monetary value: Henderson v Simon Engineering Made without prejudice (Supreme Court Rules Vic r 26.04) and cannot be disclosed either at trial until all questions of liability and the relief to be granted have been determined (r 26.05(2)) or in any pleadings or affidavits (r 26.05(1)) Will always been considered by the court and generally follow the rules- no unfettered discretion o Otherwise, the rejecting party to the offer need to prove a good reason existed: Shaw v Jarldorn (very few cases which would apply- extreme cases) o Proving to the court there were special or exceptional circumstance, e.g.: The offeree had inadequate information at the time of the offer to make an informed decision on the offer (Shaw v Jarldon) The offer was made at such a late stage that there was inadequate time to consider the offer prior to trial (Elite Protective Personnel v Salmon) A partys case at the time of the offer was substantially different- law or factualto the case presented at trial (Morris v McEwen) There existed disentitling conduct by the offeror in the manner in which the litigation was conducted (Windbank v Bradley) BUT reasonableness of the offer is not considered (unlike Calderbank offer)

Requirements: Supreme Court Rules Vic r 26.02(3) Must be in writing Statement that it is a O 26 offer and made in accordance with the rules White v Director of Housing: the offer needs to be states with clarity and precision, so that the essential comparison between offer and judgment can be readily made by the courts o Unwise to include complex conditions within the terms of the offer- may cloud the courts perception of what was actually being offered Exclusive of cost and interest Must be open for a period not less than 14 days from service of the notice of the offer: Supreme Court Rules Vic r 26.03(3) If two or more defendants: plaintiff can only make the offer to all the defendants: Supreme Court Rules Vic r 26.09(a) The offer may be served at any time prior to the verdict or judgment being given: Supreme Court Rules Vic r 26.03(1) Offer cannot be withdrawn during the relevant open period for acceptance without leave of the court: Supreme Court Rules Vic r 26.03(5)

Acceptance: Supreme Court Rules Vic r 26.03(4) o o o Done by serving a notice of acceptance in writing Made before the 14 day expiration date OR Before judgment (whichever occurs first)

36

Costs: regardless of which party makes and accepts the offer, the defendant will usually pay the plaintiffs party-party costs, unless the court decides otherwise: Supreme Court Rules Vic r 26.03(7) Failure to comply with an accepted offer: Supreme Court Rules Vic r 26.07 o Aggrieved party can apply to the court to have the proceeding dismissed, o Defence struck out o And in either case judgment made o Rejection: courts determination process: Determine whether the offer was more or less favourable to the offeree than the subsequent judgment IF offer less favourable to offeree than judgment, offer did not comply with the rules: can still be considered an informal offer and may be considered by the courts: Grbavac v Hart (Vic) IF offer more favourable to offeree than judgment: cost orders should flow Exception: if quantum is agreed and only liability is in issue, then the costs implication do not flow unless the court is satisfied that the plaintiffs offer was a genuine compromise: Supreme Court Rules Vic r 26.08(8) o Cost implications will not flow unless the party making the offer was at all material times willing and able to carry out the offer: Supreme Court Rules Vic r 26.08(7) o Must be a genuine offer and represent some level of compromise: Castro v Hillery (prevents use of offer for tactical abuse if the offer is just a restatement of the claim- no compromise)

Costs: Plaintiff offer: if defendant fails to accept the offer and judgment is no better: Personal injury: costs on an indemnity basis: Supreme Court Rules Vic r 26.08 (2)(a) Other claim: party-party basis up to an including the day the offer was served, THEN indemnity costs thereafter Defendant offer: if the plaintiff fails to accept the offer and judgment is no better: Plaintiff: entitled to party-party costs up to and including the day the offer was served Defendant: entitled to party-party costs thereafter 2. Calderbank Offer Exception: Calderbank letter: An offer contained in a Calderbank letter reserves the right for the party making the offer to produce the offer to the court for consideration when the court is exercises discretion as to costs Calderbank v Calderbank: matrimonial dispute: Letters expressed that it is without prejudice save as to costs may be produced when the court is considering costs at the conclusion of the determination of substantive issues Cutts v Head extended this principle beyond matrimonial disputes The document is privileged and so do not need to show to the court in discovery Criteria: o The letter should be clearly marked without prejudice save as to costs, or words to that effect o The letter must state the time period in which the offer will remain open o The offer contained within the letter must be as clear and precise as is reasonably practicable so as to indicate the exact nature of the offer Cost implications: o Rejection of a Calderbank letter means costs may flow up to the courts discretion, but there are no presumptions as to these costs Court determination for costs in rejection of Calderbank: o Court will weigh up the reasonableness of the offer and the circumstances that existed at the time the offer was made o Reasonable reasons to reject an offer: There may be other issues more important in a particular matter Offer may only be a tiny percent better than judgment

37

Partys case may have been fundamentally different at the time offer was made and at end of trial Change in circumstances e.g. counterclaim not initiated at the time of the offer o Court will also consider whether the offer was genuine o Constitutes a genuine compromise and compromise connotes that a party gives something away Reason to choose Calderbank over O 26? o Rule for O 26 means the offer needs to be open for 14 days, Calderbank does not have the same time restrictions o A factor influencing the courts decision as to costs, whereas the O 26 must be followed

Other Costs: TB Chapter

Chapter 11: Litigation Costs - Australian courts possess statutory power to award costs (Supreme Court Act 1968 (vic) s 24) - Court rules in every jurisdiction contain rules on litigation costs (Supreme Court Rules Vic O 63) - Two types of costs: o Institutional (court, filing etc) o Professional (disbursements, legal fees) - Courts exercise an absolute and unfettered discretion with regard to determining costs in all circumstances o Exercised judiciously in the pursuit of overall justice o Not arbitrarily o Must be connected with the litigation in question - Cost awards are compensatory: cost awards are said to rely upon the principle that a successful party is entitled to compensation for at least some on the expense of litigation o Not conclusive to cover all costs incurred for the litigant o Included are legal costs (disbursements- payment to experts) o Not included- the disruption, distress and other financial costs associated with litgation - Costs follow the event: Garnett v Bradley (1878): when there is a decision on the merits of the case o Needs to be an event: if third parties are joined by the defendant- no event between the plaintiff and third parties Third party proceedings would be dismissed if the plaintiff fails against the defendant Plaintiff would then pay defendants costs, and defendant would pay third parties cost (unless the plaintiffs claim rendered third party proceedings inevitable- McCourt v Cranston) o Exceptions: in special circumstances Require the party to have not only been liable for misconduct relating to the litigation but also that the misconduct has affected the proceedings by e.g. delaying proceedings or canvassing unnecessary issues Examples: Successful parties may be deprived of their costs if proceedings have been brought in an inappropriate court (Supreme Court Rules Vic r63.24, 63.25) OR public interest plays a sufficient role in the determination of the issue (Ruddock v Vardalis) Remember: courts discretion is absolute Cost categories: - End of proceedings: winning side makes an application for costs Party-Party costs: - (Supreme Court Rules Vic r 63.29) - Costs arising from the cause of action and which the successful party is able to recover from the unsuccessful party - Compensate the successful litigant for some, but not all costs for which the litigant is liable as a client to its legal practitioner for legal services - Costs must arise: o Reasonably- bear a reasonable relationship to value and importance of the issue

38

o Necessarily to enforce or defend rights o Properly Assessing reasonableness: Amos v Monsour Legal Costs Pty Ltd o Retainer agreement (especially the costs agreement) Arranged between the legal practitioner and the client before commencement of legal action Must be in writing Cannot exclude any rights to assessment of costs o The scale of fees applied (costs for each activity) o The charges usually applicable to services supplied by solicitor to client Amount generally received: 50% Generally, come up with an agreement as to what the other side will pay o Without agreement: issue a billable costs to the cost court, judge will decide what was necessary based on scale

Solicitor-Client costs: - (Supreme Court Rules Vic r 63.30) - Include all costs arising as payment due by a client to a legal practitioner for any professional services rendered by that practitioner to the client - May include disbursements (payments made on behalf of the client e.g. to barristers and court fees) - Reasonably incurred and of a reasonable amount - Awarded through misconduct- may be against the party or the practitioner - Amount generally received: 80-90% - Courts entitled to issue without an application by the party Indemnity costs: - (Supreme Court Rules Vic r 63.30.1) - All costs incurred except shown that they have been improperly incurred or of an unreasonable amount - Requirements: o Delinquency in the conduct of the proceedings (Harrison v Schipp) o Manifests as improper or unreasonable conduct by the unsuccessful party o Demonstrated special circumstance When the party properly advised should have realised it had no chance of success (Murdaca v Maisano) Unfounded allegations (Rana v University of South Australia) Fraud (Ugly Tribe Co v Sikola) Commencing or conducting proceedings with an ulterior motive (Amos v Monsour) Overwhelming a party with large quantities of documents (Michael Wilson & Partners v Nicholls) - Purpose is to compensate the party for costs incurred due to the unreasonable conduct of the other party - Amount generally received: 100% Non-parties? - Up to courts discretion to determine who pays costs - Departure from the old rule that costs can only be made against parties - May be awarded is there exists a casual connection between the non-party and the issue of costs (Wentworth v Wentworth) - Only in special circumstances: o E.g. funding the proceedings o Benefiting from the cause of action o Abusing process - Interveners? Not generally awarded - Litigation representatives? Where person under disabilities are represented by volunteers, court may exercise its discretion not to award costs against them

39

Types of cost orders: - Costs in the cause: awards costs in accordance with the final award of costs in the action (i.e. costs following the event) - Costs in the event: awards costs regardless of the outcome of the cause of action - Costs thrown away: awarded to the party for work done but not relied upon, or wasted, as a result of another partys error or failure to comply with procedural requirements - Costs reserved: no costs awarded without further order by the court - No order as to costs: each party bears its own Costs imposed on legal practitioners - Supreme Court Rules Vic r 63.23 - Compensation for the party affected by the legal practitioners inappropriate behaviour - Lemoto v Able Technical: are only to be made with care and discretion and only in clear cases - Requirement: common law o Legal practitioner must commit a serious dereliction of duty o Fail to fulfil a duty owed to the court to promote the cause of justice o Akin to an abuse of process (Mateldire v Roskov) o Gross negligence (Mifsud v Chemples Australia) - Requirements: Supreme Court Rules Vic r 63.23 (2) o Failure to attend in person (a) o Failure to file or lodge a document which ought to have been filed or lodged. (b)/(c) o Failure to be prepared with proper evidence (d) o Not to be made without giving the solicitor reasonable opportunity to be heard (Supreme Court Rules Vic r 63.23 (3) - Flower and Hart v White Industries: costs against the solicitors on an indemnity basis as the solicitors made deliberate delay for an improper basis o Effect of CPA? Lawyers need to sign a proper basis certificate and need to comply with over arching obligations Enforcement of cost orders: - Enforced in the same manner as any other judgment of a court Appealing cost awards: - May be appealed but only by leave (Supreme Court Act 1986 (Vic) s 24) o Exception: when the appeal is made against a cost order of a magistrate- there is right of an appeal as the cost order is a judgment - Requirements: o Show a miscarriage of the exercise of discretion, either by error of law or through misapprehension of facts o Demonstrate unreasonable and unjust miscarriage - Unsuccessful respondent: will need to meet the costs of not only the appeal but also the costs of action in the inferior court (CSR v Eddy) - Unsuccessful appellant: will usually be order to pay costs

Relevant Rules: - CPA 2010: Part 4.4 - SCR: Orders 21-22, 24-25

40

Purpose of Summary Judgment: - About the merits or lack of merits in cases before they proceed all the way through the system. - Dont have a full hearing for these applications, and thus this impinges hugely on individual human rights, so the courts will treat lightly on these. - What happens with defective pleadings?: Court can dismiss proceedings, applications to strike out the pleadings or the right to amend Diff between old and new? Test is different, all the exceptions (seduction, slander..) there arent any exclusions for these anymore, same test applies to both sides, and the court has discretionary powers in whether it will allow matter to proceed to trial, and now, the defence need not be hopeless or bound to fail Lord Hope: hard to determine diff b/w bound to fail (old test) and new test, it is a semantic change and not much more. But when you consider the purpose of the CPA, and the over-arching obligations on the parties and lawyers (proper basis), its not merely semantic. Also, now that weve got AON v ANU leading to all these changes pertaining to case management. If youre signing proper basis certificate, it puts forward that summary judgment should be eradicated because everything youre putting forward is supposed to have merit. Btu we still need to be aware of the fact this is a process, which allows legal rights to be dealt with without pleadings, so we need to be cautious.

OLD RULES: -SC Rules 22.02-as a plaintiff, if youre applying for summary judgment, you can bring an application to the court that the defendant has no defence.; however, the chances of this is low. -22.06: but the court needs to be satisfied that there is a claim to be tried or theres some reason a matter should go ahead, then it would go ahead anyway. And they do this if its a public interest issue, or if its just a smelly issue. -Rules for defendant: rule 23.01: where a proceeding doesnt disclose cause of action, or its an abusive process; so the standard for the defendant is really high and if defendant has a good defence on the merits, the court can find for defendant.

NEW RULES: -S61: plaintiff applies against defendant, no real prospect of success, s62: defendant can apply that plaintiff has no real prospect of success. (same test for both sides), and application can be brought by either side of the courts. -So whats new about this rule is that it has been softened. -S63: Both sides can apply for a ruling that the claim has no real chance of success, but the court can bring it on by itself, for instance if theres a directions hearing, and the judge thinks that the claims are unmeritorious by its own motions. -S64: court may order that despite there being no prospect of success, it should go on because its not in the interest of justice, and the dispute of of such a nature that its in public interest to allow it to proceed; hence, court retains that discretion. This then comes back to case management.

Judgment by Default: Failure of the defendant to file documents in response to the originating process or their defence Plaintiff asks the court by way of an administrative procedure to enter judgment against the defendant: Supreme Court Rules r 21.01

41

Court will grant a default judgment on failure to file within the time specified: indicates that the defendant is not challenging the plaintiffs claim Default of appearance: Court will grant only if there has been proper notice of the claim, normally achieved by filing an affidavit of service: Supreme Court Rules r 21.01 (3)(b) o 10 days to file an appearance (Supreme Court Rules Vic r 21.01) Default of defence: no requirement to establish service as ordinarily the defendant will have entered an appearance or equivalent o a plaintiff is able to request judgment be entered for the plaintiff on expiry of the time for entering or filing a defence o 30 days after appearance need to file a defence (Supreme Court Rules Vic r 21.02) Default judgments limited if the remedy or relief sought requires a decision from a court o E.g. Liquidated damages: plaintiff seeking a specific sum as damages or damages to be ascertained by some rule or formula Default judgment is regarded as being a final judgment- enforced immediately Can include quantum meruit claims (McInerney v Esanda Finance Corp) o E.g. un-liquidated damages: requires a court to assess the appropriate damages (such as claim for pain and suffering in a personal injury case) Court will enter an interlocutory judgment for the plaintiff with damages to be assessed Question of liability has already been finalised Plaintiff: provide evidence Defendant: opportunity to be hear and lead evidence on the quantum of damages but is limited to that issue Interlocutory judgment converted into a final judgment Setting aside default judgments: Supreme Court Rules r 21.07 o Defendant entitled to have the judgment set aside ex debito justitiae (done as a matter of right) Interest of justice issues: in particular in light of Aon v ANU o Usually from departure from the requirements (irregularly submitted judgments): failure to effectively serve the defendant signing judgment early signing judgment for other than the relief claimed: Bishop (Thomas) v Helmville o If the default judgment has been regularly obtained then the defendant must persuade the court that in the interests of justice the default judgment should be set aside: Evans v Bartlam: whether he has merits to which the court should pay heed; the applicants explanation why he neglected to appear after being served (can be punished with costs or otherwise) Vacuum Oil Co Pty Ltd v Stockdale: need to establish a meritorious defence: must go beyond mere assertion and needs to be credible or have a real prospect of success Provide an affidavit outlining the basis of the defence: deposing to any relevant facts, explaining the reasons for the default, any delay in seeking to set aside o Likelihood of setting aside? VERY HIGH: due to Aon and new CPA Costs orders if it is set aside

Importance of default judgments: o Most common form of resolving cases within the civil justice system (over 90% of cases commenced in the magistrates court are concluded by a default judgment)

Defective pleadings: - Reluctance of the courts to do this - Supreme Court Rules Vic r 24.01: dismissed for want of prosecution o Consider the length and reason for delay - Cairns: failure to disclose a cause of action or defence (Supreme Court Rules r 23.02(a)) would be grounds for summary judgment which would foreclose any opportunity to attempt to correct the defect in the pleadings

42

With a strike out application the court assumes the allegations made in the pleadings are correct and then considers whether these would constitute a valid cause of action or defence

Discontinuance and Withdrawal: - When you decide not to go ahead with the proceedings you have brought, rule 25.02.2: can do this at any time. - 25.02.3: defendant can do the same with the leave of court..etc - Costs: outcome will be negotiated. Costs will be against plaintiff, party-party costs payable to the other side. There might be some circumstances where a defendant doesnt agree to a walkaway? Defendant might feel that there was abusive process, and want indemnity costs. - Effect on future proceedings: it cant be re-litigated later on, but if theres a cost order, you wont be allowed to re-litigate unless the cost order has been satisfied. Summary of Default Judgment Process: - Test in s61 (No real prospect of success), look at CPA 4.4 too- no case law on this, basic idea is that it will be applied more liberally than previously. - Also mention s47 court to exercise case management powers. State govt has obligation to conduct appropriately in litigation (not unduly delay course). Could put in an offer of compromise (O26) talk about ADR, court can order mediation even if parties dont want to. Hypothetical: When a client comes to you with a problem, you first ask: 1. What they want out of the claim so you can find the best process to get what theyre after. 2. So what are these processes: negotiation, mediation. All the ADR processes. Are there any circumstances where you skip ADR and go straight to mediation: human rights, damages, when you urgently need an injunction because its an urgent circumstance: freeze or search order? 3. If thats the case, how do you make an application for this: ex-parte injunction (extremely urgent) or interim injunction, or issue summons/writ. 4. Rare exception to proper basis is an urgent application 5. In relation to litigation, you consider: if you have a valid legal claim, can the court even do it, is the money there and can you get it through the court order. 6. Now thinking about writs: you look into defining the issues, you need to be able of limitation issues if youre being served with the writ. Need to have a cause of action, need to identify parties. If youre the plaintiff, you need to think about issues of joinder: are there people you should be adding to his action, what are the lists of actions youre going to be addressing. Look into joining enough people to form a class action (bring in requirements of class actions..eg 7 or more people), and if this is the case, you need to limit the class, and need to establish who the representative party is going to be. 7. Then you think about CAN you do it, and SHOULD you do it. Should you stick to joinder? Then look at the positives and negative of each side. 8. Is there a claim at law, sign proper basis certificate 9. Prepare writ, statement of claim (general or special writ) 10. What does SOC have to contain: material facts, and no evidence, particulars to support material facts 11. What do pleadings and SOC claim do: inform he court of whats taking place and inform the defendant of what theyre up against, and basically defined parameters of dispute, and determine whats relevant in light of evidence and discovery. Decide what kind of damages you want. 12. If youve drafted it badly, there might be a challenge to the proceedings, which might lead to dismissal, and you might get to amend, but youll get costs against you. 13. Consider issues of servings the writ: all the rules, substituted service. 14. What does other side have to do: file an appearance if in vic, 10 days, then have to file defence. If not, youll get a default judgment. And if they dont they are deemed to admit everything youve said against them. Thus, need to file counter-claim.

43

15. When will application for summary judgment be reasonable. 16. Then consider cost settlement offers: Order 26 (need to know the different types of cost orders14 days, specific wording..etc, but you are very likely to get your costs becayse costs are discretionary), Calderbank offer (w/o prejudice save as to cost-less likely, but still got good chances at recovering costs). 17. What cost options available? (Party-party, solicitor-client, indemnity) (and need to know the difference)!!

Questions about discovery will give you a list of documents, and asked whether these are discoverable or not, and whether Legal Professional Privilege attaches to the documents. General Discovery information: The purpose of discovery is: To avoid trial by ambush To assist parties in the trial it refines the case and the issues in dispute. It can assist in settling the matter before trial (more information, more realization of strengths/ weaknesses of the case) Relevant Supreme Court Rules: Order 29.01.1 Order 29.02 Order 29.04 Order 29.05 Order 29.13 Order 29.15 Order 32 Order 32.02 Order 32.03 Order 32.05

Relevant sections of the Civil Procedure Act: Section 54 Section 55 Section 56 Relevant case law: Waiver: AWB Ltd v Cole Confidentiality: State of Victoria v Seal Rocks Victoria: Method to answering Discovery type questions: 1. Is it a document? Look to s 38 definition of document in Interpretation of Legislation Act 1984 (Vic) 2. Is it relevant? The original test for relevance came from the case Peruvian Guano 1882 The test is now a broad relevance test. o Order29.02 of the Supreme Court Rules supports this broad approach However, the broad relevance test can be limited where is it necessary and relevant: o Order29.01.1 o Order29.05 o Case: Ammerlan v Distillers Co (1992) o Case: Mobil Oil v Guina Developments 1996 3. Does Legal Professional Privilege attach? Order 32.93 Case: Esso Australia Resources Ltd v Commissioner of Taxation Thus the test is whether the dominant purpose of documents was to provide advice on litigation or providing advice with reasonable prospect of litigation. NB: the test is the dominant purpose not the sole purpose. 4. Is it discoverable? Discovery is the gathering of information/disclosure. Letting each side know what the other side has.

44

Is started by notice of discovery (order 29.02) Is done by way of affidavit. What you have, what you can show, what you cant show, and what you dont have anymore. And these need to be sworn. Need to have accurate fact-finding, and thus want full disclosure. Need to consider privacy issues, but at the same time, we want efficiency, so limited disclosure could have problems, and we need to factor in access to justice- but this require limited disclosure if not if cuts down on privacy.

Why do we do it? - We do it to avoid trial by ambush, to allow the other side to prepare their case and vice versa, to narrow the parameters of dispute, to promote early settlement because it clarifies the strengths and weaknesses of case - Limit the issues in dispute, work out issues of joinder (if other parties should be involved as well), and assess credibility of witnesses. What is a Document? S38: document includes, in addition to a document in writing(a) any book, map, plan, graph or drawing; (b) any photograph; (c) any label, marking or other writing which identifies or describes anything of which it forms part, or to which it is attached by any means whatsoever; (d) any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; (e) any film (including microfilm), negative, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and (f) anything whatsoever on which is marked any words, figures, letters or symbols which are capable of carrying a definite meaning to persons conversant with them TESTS: Old Test: Relevant, non-privileged documents in their power (either directly or indirectly relevant), and the only restriction was the courts being able to dispense any docs they thought to be irrelevant. Peruvian Guano Test: Really broad, called the train of inquiry test. Lord Woolfe said the result of this was a really inefficient test, especially in larger cases. As such, were all in agreement of the inefficiency of this old test and it has since been rejected. In Fed Court, theres no discovery as a right, it needs to be applied for. In matter where discovery is big, they tend to have pre-discovery conferences where the parties come together to discuss what they need, and in what form theyll do it. So here they talk about blocking documents, and how that might work. If discovery is needed, the test in fed court is that which is directly relevant. New Test: SCR: now set out current requirements (Order 29.01.1.3): have to be after a reasonable search, documents on which the party relies, docs which adversely affects the parties old case, docs which adversely affect/support another partys case. Ss4A: if you reasonably believe that the other party already has a particular document, you dont have to discover the copies, which you have kept. Ss5: in making a reasonable search, party may take into account the nature of proceedings, the complexity: and its all about proportionality. Rule 29.02

McCabe v British American Tobacco: Pre-action obligation: Both are placed under an obligation as soon as litigation is contemplated, document destruction prior to trial- now covered by the Crimes (Document Destruction) Act 2006 (Vic) She wants lots of documents, which BAT dont have because theyre shredded them as thats their document retention policy; to get rid of it after some time. SC Justice says its abusive process and

45

makes a finding in favor of McCabe, solely on the basis on the process on not the facts of the case. This decision was later appealed. But in cases like these, the court make decisions based on assuming they were trying to evade the courts jurisdiction. Both of the higher courts said this wasnt fair because its perfectly reasonable for companies to have document retention policies such as BAT. But now with legislation like the documents destruction/unavailability Acts, courts have the power to throw out a cause of action if they believe its done through abusive process. Power held by courts is now increasing; CPA (s55-4.3) gives supreme court the powers to modify discovery, so the courts can now narrow documents to certain classes or samples of documents. Court can also relieve a party from having to provide discovery. They can also expand a partys requirement to provide documents. Basically enabling case management, trying to make the process as efficient as it possibly can be. Sanctions of CPA: may give any direction it considers appropriate, s56 (2): court can hold party in contempt of court, that indemnity costs be awarded if this is found..etc. Myriad of sanctions, which can be imposed by parties not complying with the directions of court.

So say youve received notice of discovery, what do you have to disclose? - Documents: which are defined as being anything, which has information on it in one form or another. Anything, which records information, constitutes a document for discovery purposes. - Evidence Act: just defines document really broadly. - SCR 29.01.1.5: reasonable search: requires nature and complexity of proceeding, number of documents required, cost & significance of document. - Possession, custody or power (I havent got it, but I can get it) - What happens if you dont do your affidavit of documents? - Sanctions for cost orders (s56) - To what extent do digital docs need to be looked at: how relevant it is, do you have the power to get it, and how much will it costs to retrieve this info: proportionality. - Notice to produce - But youre not permitted to disclose any of the information you find during discovery because you have an implied undertaking to do so; you can only do so if its connected with the proceedings. - You dont have to disclose if you can reasonably assume that the other side has the documents. S26: overarching obligation to hand over critical documents, rule 29.15:contuing obligation to disclose info (so even if you only get a doc later in the proceedings, you still have to hand it over) Rule 29.10: notice to Produce: a doc served on the other side.

Preliminary Discovery: - Firstly can be done if you know the cause of action, but dont know the name of defendant. Need to find out who the person you want to bring action against it (so you dont need to know who the person is) (Rule 32) - Another circumstance is when youre not really sure you have a cause of action Rule 32.05 (identity of defendant needs to be known). Requirements: reasonable cause to believe that the applicant has the right to relief, need to have made reasonable inquiries, and need to have reason to think that the other person will have the documents of the type you need. - Rule 32.07: Discovery from a non-party: must show that party is likely to have in possession a doc required for the proceeding, but this is sparingly granted. - Can arise in two contexts: 1. Arises before the proceedings have commenced to held the potential plaintiff identify potential defendants or to help ascertain whether a case should be commenced - Possibility of equitable discovery: o Norwich order: ability for discovery to take place in situations not covered by the rules

46

2. Arises after a proceeding has been commenced, when a party believes a person or corporate body has documents that are relevant to the case A party seeking discovery after proceedings must apply to the court for an order that the non-party provide discovery and the supporting affidavit must provide some evidentiary basis for believing the documents are relevant Courts have tried to restrict this with thresholds due to the expense and effect on nonparties: o The party seeking discovery must be able to identify the relevant documents o Show that they are likely to be in the non-partys possession o Show that no better means of obtaining the information exists

Non-discovery option (Subpoena (to give evidence/ produce documents): the requirements are much more relaxed then the methods for prelim discovery application to the court, but you need to be certain of which documents you want, if not its a better option to go through non-party discovery) - Supreme Court Rules O 42 - A means of compelling production of information from third parties - Traditionally only effective when a case got to trial - Two types: 1. Compels production of specified documents at trial (subpoena for production) 2. Requires a witness to attend the trial (subpoena to give evidence) - Returnable prior to trial: o if the subpoena is for the production of documents, the documents are to be posted or produced to the court prior to the trial and this become available for inspection - Tactical advantage to use subpoenas: o May put a witness offside or make them hostile - Conduct money is to be provided by the party requesting the issue of a subpoena: money to cover the costs of complying with the subpoena - Sanctions for non-compliance: amounts to a contempt of court o Subpoena therefore must clearly identify what is being sought and be addressed to the appropriate person Interrogatories: written questions put to the other side and they have to swear the answers. Used often, but the answers you get from this dont automatically go into evidence, but you can get them in if need be. Equitable, pre-trial processes by which a party can compulsorily acquire information from the other parties In the form of sworn written answers where the interrogating party draws up a list of questions (interrogatories) and the other party is required to answer the questions in writing on oath or affirmation Answers to interrogatories can be used as evidence (whereas pleadings cannot) Less available when cost and time issues for the litigation are prominent and more available when concerns about the accuracy of outcomes prevails Supreme Court Rules r 30.02: allow some interrogatories as of right the scope of the interrogatories is controlled by the pleadings and must go to proving material facts in disputes Adams v Dickeson: a party can only interrogate about the authenticity or authorship of documents and not the contents of documents Obligations on parties and lawyers are considerable Objection to interrogatories: o Disclosure of privileged information o It would be oppressive o It is unnecessary Parties may depart from the interrogatory answers, but credibility issues ensue: Mundy v Bridge Motors Pty Ltd

47

However the inconsistency was not seen as overtly detrimental to the plaintiffs case because the court accepted his explanation for the inconsistency: that he misunderstood the interrogatory

Purpose: promotes confidence in lawyers and aids in the legal process Enable a person to refuse to provide information or evidence when otherwise compelled to do so by court processes Does not only apply to discovery of documents Also applies to any requirement to provide information e.g. when giving oral evidence, answering interrogatories or when being interviewed by the police

1. Settlement Negotiations: - Purpose: in order to encourage negotiation for settlement - Privilege said to apply to communications made in the course of trying to settle a matter o Documents as well as oral communication - Exists not only at trial but also at pre-trial stages and against third parties - Promotes settlement by encouraging full and frank discussions between parties - Field v Commissioner for Railways: o Statements too far removed from the negotiations will not constitute privilege o Does not rely on the use of the words without prejudice - OBJECTIVE test: determine whether it was with regards to the negotiations EXCEPTIONS: - Evidence Act section 131A(2): requirements to give information via discovery - Fraud- evidence act section 125 Privilege: CASE STUDY: AWB v Terence Cole - Facts: scam involvement by AWB, government investigation into wheat market with Iraq - Determine if privilege applies to documents of AWB o Need to look at all the circumstances - Application of the dominant legal advice and confidential purpose 1. What does legal advice amount to? - Advice to give the apology was PR advice, not legal advice and were not able to claim privilege 2. What is the dominant purpose? - More than just being important, not a clear line but needs to be dominant - Waived? YES o Provided information that they had received legal advice (not waived) o BUT also said the legal advice proved their innocence (waived)- disclosure of substance 2. Legal Professional Privilege: Protects confidential information that passes between a client and their lawyer for the purposes of obtaining legal advice or assistance Common law right that can only be abrogated by statute Onus is on the person claiming privilege to prove WAIVING of Privilege: o The client waives it- express or implied o The client acts in a way inconsistent with the maintenance of the privilege o Evidence Act section 122 o Not about fairness, about inconsistency (Mann case)

48

o -

Mann: can waive portions of the document if applicable Cannot disclose the general gist of the legal advice given, such that it would be inconsistent with confidentiality of documents

Lawyer-Client (Advice) Privilege. TEST: Confidential information with the Dominant Purpose of communication being for the giving or receiving of legal advice. Litigation Privilege: which can apply to 3rd parties as well, and this can be used in connection in actual or anticipated litigation. In both cases, the intention of the parties has to be that the communication is confidential, and the objective test is used here again. Dominant purpose. Evidence Act s118: Legal advice: evidence is not to be used if the court finds that confidential information is not for the purpose of giving and/or receiving legal advice. Promotes public interest because it helps to build trust regarding legal proceedings and its confidentiality. This privilege can be waived if it facilitates a crime or fraud (S 125 Evidence act), or if disclosing the gist or substance of legal communication breaks the confidentiality clause. The legal practitioner must also be acting in his legal capacity. Test applied to determine the scope of any waiver of associated material (documents created for the purpose of creating the privileged document) is if the material that the party has chosen to release from privilege represent the whole of the material relevant to the same issue or subject matter. When can LPP apply? You have to look at the intention of the creation of the document of advice, and look at the dominant purpose for which it was created. So it doesnt extend to advice that is purely commercial or in a PR nature. Case Study AWB: general Principles of LPP: 1. Party claiming privilege has the onus of proving the communication was undertaken for the dominant purpose of giving or obtaining legal advice 2. Purpose for which a document came into existence must be determined objectively. 3. LPP cant be established merely by verbal formula, has to be established. 4. Proof of facts 5. Dominant purpose 6. Intended use of documents 7. Advice needs to be of a professional nature 8. LPP protects the communication rather than the documents; test is anchored against her reason for which the doc was brought into existence, and can be applied to copies of non-privileged docs if the purpose for bringing the copy into existence satisfies the test. 9. Court has power to examine docs over which LPP is claimed, and it shouldnt hesitate to use that power. Confidential, dominant, legal advice. So the issue here was that this advice wasnt not of a legal nature. Court will then look at the substance of the matter: nature of doc, .. What does legal advice amount to? Commissioner said that it was not merely factual, it was more than that, and hence, didnt fall under the purview. How could you unintentionally waive for privilege: overt or imputed waiver of priv. S121-22 Mere reference to legal advice is fine, but if you go to the substance of the advice, then you waive your privilege. Issue with waivers is the inconsistency (p137): made the move to advance its commercial interests. Would have been different if it had been done under legal compulsion; priv. will then not be waived. P140: is the conduct inconsistent with the maintenance of confidentiality. P167: a mere reference wont be regarded as a waiver of content. P178: overall, by means of disclosure, AWB leaked the substance/gist in their commercial interests, and this behavior is inconsistent with confidentiality.

Associated material: - Evidence Act section 126

49

Privilege extends to notes, memoranda or other documents made by officers or employees of the client that relate to the information sought by the clients legal advisor to enable him to advise Can attach to copies of non-privileged documents if the purpose of bringing the copy into existence satisfies the dominant purpose test TEST: whether the material that the party has chosen to release from privilege cannot be understood unless the associated materials are also released from privilege ASIC v South Port: if you can understand the main document without the associated materials, the associated materials may still be covered by privilege (unlikely..) Exceptions to LPP: primary one being, where in spite of the confidentiality, dominant purpose test, and in anticipation, the fraud exception applies. Evidence act s145. P214 & 215: fraud exception si based on public policy grounds, and based on whether or not this would be contrary to public interests. And thus, what AWB did amounted to a trickery of the UN.

3. Expert Reports: - You would look at the reason for creation as opposed to how they are used - TEST: dominance, confidential, legal advicebut in this case, it depend on the circumstances in determining if expert evidence is covered by priv. Was the expert report prepared solely for the purpose of the giving and receiving of legal advice. - But what happens if the report goes against your case, are you obligated to share this report? Youd have to disclose it since it goes against your case, and the information was for evidence, not for legal advice. All interaction with the client would be priv. only if its legal; anything else would have to be disclosed. - P168: all about whether copies of documents like working notes would have to be disclosed. And they need to be. - Supreme Court Rules O 44: require pre-trial disclosure of experts reports if the expert or his report is to be used at trial - TEST: why they were created? Need to fulfil similar to other documents: dominant purpose for legal advice o i.e. fulfilment of litigation test (objective) 4. Medical Reports: - Depends on whether or not the medical state of someone has a direct impact on the case. Has to be reasonable and related to the case as well. - So why was the report created, was in meant to be confidential. Same test: objective. - Ability to have another party medically examined (e.g. dealing with motor vehicles accidentsTransport Accident Act 1986 Vic s 71) - Cases involving the health or condition of a party- rules may provide for medical examination if statute doesnt 5. Priv. against Self-Incrimination: - We have it because we dont want people incriminating themselves in court without first obtaining legal advice. - Protects a person from having to provide information which may expose them to criminal punishment (e.g. where a person is at risk of civil penalty) - Part of the common law accusatory process and acts as a check on the investigatory and prosecutorial authorities and as such is seen as protecting personal privacy, personal liberty and human rights - Exists at both pre-trial and trial 6. Public Interest Immunity: Not a privilege as it does not belong to a party Protects high level government information from disclosure (e.g. national security) Often raised by governments, but can also be claimed by parties or raised by a court Requirements: o Involves balancing of public interests o In the effective and fair administration of justice

50

Other public interests such as national security or effective and fair administration of government o Each case decided on its merits by the court (Sankey v Whitlam) Sankey v Whitlam: court has a right to make the decision about whether information should be released Commonwealth v Northern Land Council: Cabinet documents on current and controversial matters are of a class that warrants protection from disclosure in all but exceptional circumstances o

Appeal vs Judicial Review: Appeal brings everything back before the court, which can then make a new decision. Largely serves private interest. Judicial Review is when a tribunal will merely look over the facts, which they had, and see if they made the right decision, or not. If they are found to be wrong, theyll go back and start over again. Serves public interests esp in seeing that statutory bodies and governments are involved as well.

Appeal Stricto Sensu (Strict Appeal) - Appeal Court only considers whether the process was correct at the same, Looks at judgment as made at the time. No new evidence, look at the law retrospectively. What you get from this is that it can and will substitute its own judgment. HCA takes appeals from fed, supreme courts with the exception of jury verdicts (which can only be dont of the decision is unreasonable: TB), which they cant overturn. To get to this however, you need to seek special leave. Judiciary Act s35A (TB pg. 298), whether or not the matter is of public importance, whether its required to resolves differences of opinion b/w other courts or within a court as to the state of the law and whether it requires clarification, and in the interest of an administration of justice. Hence, with the HCA, its not just about private interests. - Allesch v Maunz: if the judge at the first instance has made an error of law or an incorrect finding on fact then the appeal court will substitute its own judgement o No few facts or laws are considered o New evidence not submitted, although evidence from trial may be reviewed - If the appeal is unsuccessful, the initial judgement will be upheld even if the law may have changed in the appellants favour Ordinary rehearing - Must also show that a legal, factual or discretionary error has been made by the inferior court - The appeal court however applies the law as operative at the time of the rehearing - Any changes to the law after the date of the initial judgement may be considered o Fresh evidence can be received o Evidence from trial reviewed - Determination of the rights and liabilities of the parties - E.g. States Court of Appeal and Full Federal Court - Only need special leave for interlocutory, cost and consent orders- not automatic right - this is what youll get in the FC FED, and COA. Mostly you dont need appeal and have a right of appeal. Judgments which arent yet final, Interlocutory order/judgments, you dont have an automatic right to appeal, you need to seek leave. Consent/cost orders are not rights of appeal. Need to show that there has been an error of discretion on the part of the judge. - No automatic stay to appeal, but you can apply for one. In the end, the test for the judge lies in the balance of convenience. So itll be taken into account he merits of the appeal, the need of the parties (AON: not just about costs but about the broader concepts of justice) reasonable for them to wait?

51

Error of law, wrong finding of fact (must be manifestly wrong). And since only the trial judge the witnesses, they could possibly overturn a decision made by this judge. With fact, they must be satisfied that its manifestly wrong, put too much weight on aspect they shouldnt have, judgment must be show to be clearly wrong.

Rehearing De Novo - Appellant does not have to prove an error has been made by the inferior court (unless statutory provisions provide otherwise) - Allows the appeal court to hear the matter anew and exercise discretion without consideration of the judgement made by the inferior court - Not always clear the distinctions between this and ordinary hearing. - where everything is thrown out and you start all over again. New Evidence, consider new law as it is now, effectively a re-trial. Largely happen in criminal matters. New Trials - Ordered when the appeal court cannot itself made the order o Appeal court does not possess the jurisdiction o In the circumstances, the order is not practical- Supreme Court Rules (Vic) r 64.01, 64.23 - If judge at first instance has made an error of law - Or if the jurys errors of fact were unreasonable in the circumstances o E.g. reliance upon false evidence Johns v Cosgrove - Conditions: o error must have led to an injustice or unfairness o not inevitably lead to the same result Powers of the court of Appeal: - superior courts have supervisory jurisdictions to hear appeals for errors of judgement and against denials of natural justice o no inherent right of appeal under common law except for these - an appeal not under these two areas is a statutory right o nature and limits of an appeal are determined by the relevant statutory provisions o Supreme Court Act (Vic) 1986 s 11(4) - These rights are substantive, not procedural- do not operate retrospectively unless expressly stated in the statute - Appeals by third parties: only if the third party is directed to be bound by the judgement can they appeal against the judgement - Reason for no automatic right of appeal? o E.g. interlocutory judgements no automatic right o Lord Woolf, Finkelstein: case management issues: take time and money- special leave unlikely to be granted Time to Appeal - High Court: 21 days after the grant of special leave, of a certificate of appeal or the date of the judgement appealed, whichever is the latest - Federal Court: 21 days after the date of pronouncement of the judgement appealed, or after the date when leave to appeal was granted, or any other date fixed by court (Federal Court Rules Order 52, rules 10, 15) - Victoria:14 days after the date of the decision appealed or after the date leave granted (Supreme Court Rules Order 64.03) - Extension of time to appeal - Granted at the discretion of the appeal court - In light of the circumstances and merits of the case - May need to show special reasons, circumstances or circumstances out of the ordinary - If delay in bringing the appeal, will consider:

52

a. b. c. d. e.

Its length The reasons for the delay Whether it was intentional, contumelious, or caused by mistake Whether it was caused by the partys legal representative Any personal considerations affecting the partys ability to protect its interests

Judgments - Appeal only made when a court has made a formal decision capable of being reviewed in proceedings in a higher court - Only against final judgments- in the sense of finding a liability - Plaintiffs right of action is replaced by the judgment f. Finalisation of the parties rights re: these proceedings - Interim orders: Interlocutory orders and costs orders do not conclude with finality the rights of the parties g. Appeals against these requires the seeking of leave h. More likely to be granted for appeals relating to substantive rights i. Whether the judgment or order is made pursuant to statutes - Lawrence v Cth: distinction between final judgment and interim orders not always clear: j. Rulings about evidence was not a judgment k. Jefferson Ford v Ford Motor Company: a partial summary dismissal requires leave for an appeal l. BUT no satisfying definition - Consent orders: the appeal court must determine the existences of an appealable error as a condition precedent to the exercise of the power to make consent orders - Distinction between errors of law and points of law: m. Question or point of law has a wider scope than error of law n. No definitive Stay of proceedings: - Applications for appeals do no automatically stay the existing proceedings or affect any consequence of the judgement appealed - In practise: exercised with utmost caution o When money needs to be paid likely to be granted - Discretion of appeal courts to grant stays of proceedings, permanently and temporarily pending determination of appeals (Supreme Court Rules Order 64.25) - TEST Requirements: Appellant needs to show: o Balance of convenience o There exists an arguable case or reasonable prospects of success o Payment of a judgement debt may not be recoverable if the appeal succeeds o Appellant will suffer a disadvantage (e.g. appeal being thwarted) o The balance of convenience (advantages and disadvantages to each party) o Requirement for there to be special or exceptional circumstances *Then look back to Standing, Security for costs, and Indemnity. Enforcement & Execution of Judgment orders are not self-executing. Make application to the courts. - Enforcement: procedures adopted by the courts to compel compliance with orders and judgements - Execution: refers to the means by which the relevant procedure is carried out - No distinction between orders and judgements - Method for enforcement depends on: o Monetary compensation o Delivery or possession of real property o Delivery or possession of personal property o Compelling or restraining acts

53

Enforcement and execution of judgements through legislation and court rules: Supreme Court Act 1986 sections 114-129; Supreme Court Rules orders 66-76

Overview: Once a writ is issued, its valid for 1 year 1 day Personal service for issuing of writs. You try, doesnt work, you come up with various option for court to say this is how substituted service will take place EEG v Vic Forests: Arguments about standing: special relationship; and if they didnt have standing, no one else did because they had been the group monitoring this area and providing advice to government and were the recognized experts in the area 3 criteria for being a rep proceeding: 1. 7 or more people 2. common qns of law or fact 3. issues arising same/similar or related circumstances (s33 C (1)): Fed court rules P Morris, Bray and Monzies (which one set precedent for current times?) Recurring fears of class actions identified by murphy:

Complexity of issues which are hard to coordinate, costs (really expensive class actions), helps people who wouldnt otherwise have a way to claims and will then miss out, but if you have a lot of individual cases, its really costly, and theres a risk of inconsistent verdicts. Murphy and Cameron: difficulties for parties is finding representative because theyre the ones subject to costs. On one hand, theres an opportunity to bring the claim before court, but reality of financial situation is that theyre unlikely to have any real input with the outcome. Have to careful with defining the class, if its too big, case could be dismissed. Diff b/w interlocutory and final injunctions? Final closes off legal rights, where the former is based around protecting the status quo until we can get around to final judgment Test for interlocutory injunction: serious question to be tried, and Balance of convenience. Is damages an adequate remedy? Is there a risk of irreparable damage. So if ur successful and get this, then you have file an undertaking for damages. What 2 types of security can respondent seek? Security for costs and security for damages. What 3 legal means have been provided in the last few years to strengthen courts powers with case management, SC Rules, CPA (S 4.2), s7, s9 (Purposes). FC of Aust Act Part VB, AON v ANU. Pleadings: we have them to define the parameters of the dispute, avoid trial by ambush, and narrow the issues in dispute so as to promote early settlement. What is discoverable and whats not, all ties back to content of pleading. What must be contained: Particulars, statement of claim (cause of action), material facts (no evidence) supported by particulars, remedies sought. (of you dont plead for relief you wont get any). What factors taken into account when considering application for amendment of pleadings? Timing! (JL Holdings, AON) If you do it too late, court will only grant it provided the other side takes on the cost. Said costs will not meet every prejudice: to the actual party, which will delay justice (delayed is denied), and the broader concept of justice where everyone else is affected. So how big of a change is this amendment: wont actually require massive changes and more work to the other side. Of ur in a situation where you get close to trial and have just discovered another party who should have been joined to proceedings and you didnt do it because doc showed that they should be joined was left out. What are issues for both you and the court?:

54

Argument for you on anshun because if not, youll be locked out of it for good, and for the courts the main issue will be case management, They will take into account the knowledge you had at the time of drawing up initial pleadings and what you have now. What is embarrassment? When its so complex that it doesnt seem like the case will go through/make sense. When can you have a notice to admit and whats the advantage to you? Done at some point before trial and to protect the issues in dispute. If the other side doesnt accept it and it is later proven that they should have done so, so then the costs will go against the other side and youll have costs awarded in your favor. Can pleadings process be improved and how?

Overview 2: - Joinder and pleadings: SOC/Pleading gets sent to the defendants (if joining at the outset), then it has to be on the SOC and sent to all parties. If you need to join later, you can amend ur pleadings, if within the time limits, if not, you can seek leave from court to amend; and theyll look at how close you are to trial. - Pleadings: provide parameters of dispute, so when you look at that in relation to discovery, think along those lines, of narrowing the issues. - What steps can party take to bring about an outcome (within the trial): send a Calderbank Letter/Order 26, mediation, negotiation settlements (w/o prejudice), issue an injunction, notice to admit or APPLY FOR SUMMARY JUDGMENT! As a party youre constrained by the overarching obligations, but the flipside is the other party is as well, which means from the perspective of the practitioner, look at whether the other side have been in breach (tardy, etc). But with everyone being confined, so to some extent, you can use that. - How has the role of lawyer changed with CPA: judge more has more control over proceedings then the lawyer, duty to court is paramount, proper basis certification (s42 Form B), 4AObligations. Now, sanctions against lawyers are more plainly set out. - Role of judge is more powerful: case management. Along the way with interlocutory applications, they have the power of costs orders on their side. Exam: Know all the relevant tests and legislations. Look at DATES things happen in the hypothetical. Argument, analysis and authority. Makes sure its RELATED to the question. Critical analysis, and give reasons. Heading. KNOW ADR! AWB/EVIDENCE ACT Follow the steps (with discovery for instance): Is it a document, does it come within 29.0.1.1, have you got it, do they have it?, does priv apply (which kind, and what are the tests), has this priv then been waived? What does waiver amount to? And what does this mean about associated materials. Class actions s33C: 3 things!! If you dont have these 3, there might be an application from the other side about 33N: not in the interests of justice, better to try them separately (sets out ground on which you can make the application), S33H: pleadings (tactic to take it apart on the requirements for pleadings). If class action doesnt work (been knocked out), then you could possibly go on joinder (then look at requirements for joinder).

Hypothetical: Preliminary Questions Client: RMIT of those affected by tumor Objective of them: what do they want out of it, and what remedies are available to then, are there any time limit issues? (one of then is terminally ill!!), limitation period (which prob isnt going to be an issue) Possible defendants: RMIT, builders of the telephone company, anyone who might have been responsible.

55

Are you in need of more info: Yes, you can do preliminary discovery (Rule: 32.03, 04: to see if you have a cause of action, know TESTS!) if you think you might have cause to need info from a possible defendant. To identify defendant, you need to have made reasonable enquiries and the person you want info from is likely to have the info you want. 32.05. Reasonable belief that you have a right to enquire. 07: discovery from non-party. But here, that depends on circumstances. Before commencing proceedings: Any prospects of assets disappearing: antwon pillar and mariva (search/freeze orders): TEST: strong prima facie case, real risk that the assets will disappear if time is taken. Search TEST: strong prima facie case, some evidence that other side has the evidence you want, potential or actual loss of damage is the order isnt made, need to have some grounds for thinking that the evidence will be destroyed if not for this order. As plaintiffs, youll have to give the usual undertaking as to damages (relates not only to the above, but relates to injunctions (TEST: serious qns to be tried, balance of convenience) in general). So under what circumstances might this be waived: in times of public interest: TEST: under exceptional circumstances (EEG). This is set out n the second EEG case about cost issues. Think about whether the client has standing to bring the proceedings. Joinder: who are the defendents, can they be joined, what are the rules (9.02 (common qns of law or fact, arises out of the same series of questions, but again here, if knocked out, court still has discretion under 9.02 to keep it going), addition: 9.06). So now you know who the defendants are, then what, should you sue?: need to establish if you have a cause of action, and you do that through prelim discovery. Aside from that, decide if litigation will get you what you want, and with the overarching obligations, you need to see if theres any other way like mediation or negotiation. In some cases, this is the way to go, but when would these not be the sensible thing to do: if you need an urgent injunction. Marivas and anton pillars come in here because you need to have the protection of the court. Also, when the statute of limitations is about to run out, and you need to get ur writ in, but this can be done with an injunction too (if you can get it), then you sit down and discuss. CPA 9.2B, s29: right for negotiation, power imbalances..etc. Should proceedings then be commenced?: how will clients best interests be achieved, can it be a class action? (Requirements S33C: 7 or more ppl mention both cases (Morris and Bray), each case says blah blah, and weve ended up with Mcbride and Monzie which isnt really settled but thats the one we have, same similar circumstances, substantial common law or fact), Now, its assumed in the SC, writ or originating motion (Order 4) when you dont have a defendant, or when theres no issue as to fact (not a lot of detail). General or special Writ?: Special has SOC. You sue General when statute of limitations is about to run out, and when ur in a hurry. What does it include (Order 13)- cause of action, remedies, material facts and particulars (13.10.1) (which doesnt contain evidence). 13.07: all about no trial by ambush. No proceedings are issued, nest is service (order 6 & 7) point of this is just to enable natural justice, letting them know its against them, and then comes affidavit. If you cant effect service, you have substituted service (go to courts and show that youve taken reasonable steps to personally serve them..) Got them! Now they have to file an appearance (10 days), no appearance, you seek default judgment (order 21). If they file and serve, they might file counter claim, acknowledges jurisdiction of court, Now RMIT would be thinking about how they can respond to these claims, can counter sue, joinder (find others to push resp onto) Our response: ADR, 3rd party notice/notice of contribution (just saying its not just us liable, its ou too, hence were bringing you in) RMIT: defence: Order 14.04 (4). What does defence then need to say? Cant leave out matters, cant mislead/deceive, no trial by ambush. Now with plaintiffs, RMIT has served a defence, might put in a notice to admit if ur willing to concede, you can try to strike it out if its an EMBARRESING defence. But other aggressive attmptes would be a summary judgment application (requirements..), either side can apply, or court can do it itself. Test: , is it satisfied. Request for further particulars.

56

Gathering evidence: critical documents (O26 CPA: both parties are obliged to produce documents critical to the dispute at the earliest opportunity). The move to discovery, happens depending on jurisdiction, FC doesnt have the right to discovery, SC, you have to file a notice for discovery, then you have 42 days to file affidavit of document. (29.02) 42 days (03). Served now with notice for discovery, what is next, you need to gather discoverable documents (test: 29.02.2 (3), r29.15, is it priv? confidential? Last thing you need to consider is that theres a continued obligation to provide evidence (29.15) Priv: yes/no, which type, whats the test? Has it been waived? When does this happen, when you refer to the gist or substance such that it would be inconsistent in maintaining confidentiality. Associated materials are waived as well if needed to understand the matter, but if it can be severed, then it wont be waived. Now we have RMITs documents, read it, consider proper discovery, that you have all thats discoverable (s55/56), are claims for priv? Now with plaintiff: Offer of compromise, Calderbank, mediation? Get ready for trial evidence, expert reports), discovery from non-party (32.07) or subpoenas. Now trial: 1 week into trial, things arent going too well, application to amend pleadings but this will be able a prob because of AON, but, if on the basis that there was no way you could have done it earlier, or it depends on how big an impact is this going to have, how much evidence is being brought in, big change? (but if you argue its not that big and it was beyond your control..). But its abut the balancing act or natural justice as it affects you, and about how it affects others. Consequences: risk of Anshun

57