SCHOOL OF LAW

LAWS2311

LITIGATION 1
Undergraduate Core
COURSE OUTLINE
SESSION 1, 2008
Convenor: civil procedure part of the course
Annette Marfording, Room 227/Phone 938 53721/a.marfording@unsw.edu.au

Convenor: criminal procedure part of the course

Dorne Boniface, Room 217/Phone 938 52753/d.boniface@unsw.edu.au

CONTENTS

Page
COURSE INFORMATION
Teaching staff and class allocations

Course details

Learning and teaching philosophy underpinning the course

Course aims and expected learning outcomes

ASSESSMENT
Assessment goals

Assessment requirements

ACADEMIC HONESTY AND PLAGIARISM

RESOURCES FOR STUDENTS

CONTINUAL COURSE IMPROVEMENT

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ADMINISTRATIVE MATTERS

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APPENDIX A (UNSW School of Law 5 key graduate attributes)

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COURSE INFORMATION
Teaching staff and class allocations
There are a number of class groups studying Litigation 1 this year. The convenor of
the civil procedure part of the course (1 st 11 classes) is Annette Marfording and the
convenor for the criminal procedure part of the course (2 nd 11 classes) is Dorne
Boniface.
The contact details of the convenors are:
Faculty of Law Building Lower Campus
a.marfording@unsw.edu.au Room 227/Phone 9385 3721
d.boniface@unsw.edu.au Room 217/ Phone 9385 2753
The convenors are available to answer questions from any student about their part of
the course. Before contacting the convenors, students should first discuss courserelated issues with their own teacher. Teachers in this subject are generally available
for discussion in the mid-class break. Otherwise, the appropriate method of contacting
your teacher is via email. If there is a need for face to face or telephone discussion,
this can be arranged via email.
The Litigation 1 teachers are:
Dorne Boniface: d.boniface@unsw.edu.au; room 217; ph 938 52753 (Criminal
procedure only)
Annette Marfording: a.marfording@unsw.edu.au; room 227; ph 938 53721(Civil
procedure only)
Annie Cossins: a.cossins@unsw.edu.au; room 333; ph 938 52246 (Civil and Criminal
procedure)
Rezana Karim: rezana.k@gmail.com; room 307; ph 938 59647 (Civil and Criminal
procedure)
Course details
8 units of credit
The times and places for classes are displayed on the Law School website:
www.law.unsw.edu.au and on Law School notice-boards at Level 2 in the Faculty of
Law building, lower campus.
Each class group will cover the same topics, although there may be differences in
emphasis from teacher to teacher. Each class group is assessed by its teacher. Students
are assessed by the same standards no matter in which class they are enrolled.
Teachers consult regularly on a large range of issues associated with teaching and
assessment. They cross-mark all fail papers.
In combination with Litigation 2, which deals with the laws of evidence, Litigation 1
gives a general introduction to the rules and practices governing the major courtsupervised processes which are typically involved in litigation, using the relevant
rules of NSW as primary example. Litigation 1 deals principally with the pre-trial
phase of both civil and criminal litigation. In the latter area it builds on knowledge
developed in Criminal Law. The course addresses the rules themselves, the social
policies which underlie them as well as their practical operation.
Specific areas covered in Litigation 1 include:

Civil Procedure:
Introduction to civil procedure, including the characteristics of the
Common Law and Civil Law systems;
Commencing a Case: considerations in beginning litigation; issue and
service or originating process and preliminary remedies;
Issues relating to joining multiple parties and causes of action; class (or
group) actions: note students will be expected to apply both NSW and
Federal law in this area;
The basic rules and practices of pleading;
The legal principles governing rectification of mistakes in litigation;
Procedures for gathering evidence before trial, including discovery and
interrogatories, and preliminary discovery before litigation.
Criminal Procedure
Discussion of the relevance of criminal justice issues to the pre-trial
process;
Police powers to question and investigate prior to and after arrest;
The legal principles governing arrest and the treatment of arrested persons
or suspects prior to trial;
The legal principles governing the issue of warrants, in particular search
warrants;
The legal principles governing the search of persons and premises;
The admissibility of confessional evidence;
Civil Procedure is covered in the first 11 classes of Session. The remainder of the
session will cover Criminal Procedure. These areas will be separately assessed.
Learning and teaching philosophy underpinning the course
The course is taught in seminar format so that students can be actively engaged in the
learning process through preparation for class and active participation in class.
Students will be expected to discuss the material read and demonstrate skills in
analysis, synthesis, and evaluation. Sharing one's own ideas and responding to others'
reactions sharpens thinking and deepens understanding.
Teachers will refer to their own research and practical work as far as it relates to the
material discussed since this demonstrably has a positive impact on students'
motivation to learn. Likewise, students prior experience and knowledge will be
recognised and built on to make all students learning more effective.
This is course is highly relevant to all students contemplating a future career in legal
practice. This should mean that students become more engaged in the learning
process.

Course aims and expected learning outcomes

The objectives of the course are to enable you to:

 identify the ways in which the law of civil and criminal procedure impacts
on individuals and the legal profession
think critically about different philosophical approaches to regulating civil
and criminal procedure
explain and discuss the impact of cultural, political, and economic factors
on the law of civil and criminal procedure
analyse and evaluate the law of civil and criminal procedure and its
effectiveness in practice
apply the rules of civil and criminal procedure to practical problems
communicate effectively, in speaking and in writing
Expected learning outcomes are the development of the above skills.
ASSESSMENT
Assessment goals
The assessment proposals are designed to test and develop the expected learning
outcomes listed above, by a variety of techniques tailored to acknowledge differences
in students temperament and interests.
Phrased in terms of UNSW Law School Graduate Attributes (LS GA) [see Appendix
A], the main assessment goals are:
to establish a basic knowledge of the doctrine, principles and rules relating to pretrial procedure in both civil and criminal litigation. Students will be provided with
structured opportunities to acquire a functioning and contextual knowledge of law
and legal institutions and intellectual skills of analysis, synthesis, critical
judgment, reflection and evaluation [see LS GA 1 & 2].;

to foster personal and professional values gained from an understanding and

sensitivity to a variety of related ethical, social, economic, political and justice
issues affecting the formal resolution of civil and criminal matters [see LS GA 2
& 5];

to foster students critical analytical skills and enhance their understanding from a
social justice orientation of pre-trial related practice issues: LS GA 1, 2, 4 & 5].

to provide students with the opportunity to actively engage in the learning

experience through classroom discussions. This enhances their ability to critically
evaluate trial processes from legal and social justice perspectives. It also enhances
challenging their assumptions and beliefs: LS GA 1, 2, 4 & 5].

Assessment requirements
To pass Litigation 1 a student must obtain at least 50% for each of the
components of Litigation 1 (Civil Procedure and Criminal Procedure).
Please note that the Law School has now introduced a requirement that marks in all
subjects fall within a prescribed profile. Adjustment to meet this requirement means
that the final mark in the subject may be either higher or lower than the exact sum of
marks actually gained.

1. Civil Procedure
Civil Procedure will be assessed in a take-home exam, which will be available on
web-CT on Tuesday 29 April 2008 from 4pm. It is to be returned by 9am on
Thursday 1 May via your teachers web-CT.
A signed Law School cover sheet for assignments should be lodged with the Student
Services Counter not later than 48 hours after submission of your assignment via your
teachers web ct. Student should keep a copy of their answer.
It is essential that all students who are enrolled in Litigation 1 plan ahead and
ensure that they are available during this period to complete this take-home exam.
This take-home exam will be worth 50% of the total course assessment. The exam
will require students to:i. answer one or several problem-based question/s, and
ii. answer an essay question that requires reflection and consideration of the
analytical and/or reform challenges relating to aspects of pre-trial process in
New South Wales or Australia.
The take-home exam will have a maximum word limit which will be identified in
the exam paper. Penalties will be imposed when the word limit is exceeded.
The essay question will be assessed according to students ability to display a good
understanding of the justice processes and to show skills of analysis, synthesis, critical
judgment, reflection and/or evaluation. Students will be assessed on the intellectual
and critical depth of their reflection. Simple regurgitation of views in the literature
will lead to a fail in that part of the exam. Procedural rules and law that has been
discussed in class or described in the text book should be connected with broader
themes and ideas relating to the justice system [LS GA 1, 2, 4 & 5]. This could be
done by referring to:
i. current issues in the media that raise policy, law reform development and
social justice issues;
ii. theoretical or cross-disciplinary perspectives; and
iii. (where appropriate) a specific case or cases.
Note: Your answers to all questions in the take-home exam must be your own
thoughts and ideas. Your ideas may be informed by the views of others, in which case
you must provide full acknowledgement of your source/s. Do not, under any
circumstances, collude with any other student in the take-home exam. This constitutes
plagiarism and will be addressed according to the Universitys plagiarism policy (see
below). Students should be aware that there is a program on web-CT that will show
up any collusion amongst students and similarity of work in the take-home.
Take-home exams submitted after 9am on Thursday 1 May will not be accepted.
Extensions cannot and will not be granted. Students who are affected by
illness/misadventure must lodge a special consideration request at UNSW Student
Central and may be considered for supplementary examination eligibility. If
considered eligible, students will sit for a supplementary civil procedure open book

examination during the examination period at the end of session in addition to a

separate Criminal Procedure exam (see below).
2. Criminal Procedure will be assessed during the examination period at the end of
the session. This exam will be a 2 hour open book examination worth 50% of the
total course assessment and will have a problem orientation.
3. Class Performance
Class performance will be assessed on an opt-in basis and will be worth 5% for civil
procedure and 5% for criminal procedure. However, these marks are maximisible i.e. class performance may improve, but cannot prejudice, your mark. To be eligible
for class performance students must opt-in during the first week of the respective
civil and criminal procedure parts of the course. This is done by notifying their
teacher via email or in person.
It should be noted that marks are not given on the basis of the quantity of
participation, but on its quality and the extent to which it contributes to the learning
experience of the class as a whole. As a general guide, marks will be allocated in
accordance with the scale below. However, please remember that the mark given
cannot prejudice marks otherwise earned.

Outstanding (5/5): Student is invariably well prepared and has thought

carefully about the issues for discussion. Regularly contributes to class
discussion in ways which advance the learning experience of all students
in the class. Is sensitive to the learning needs of other students.
Excellent (4/5): Student is invariably well prepared, and contributes
thoughtfully and constructively to class discussion.
Good (3.5/5): Student attends regularly and is generally prepared and able
to respond to appropriate questions from the teacher.
Acceptable (3/5): Attendance and/or class preparations irregular but
acceptable.
Poor (2.5/5): Attends regularly but does not participate or demonstrate a
willingness to answer appropriate questions.

The assessment of class performance always presents a challenge in large classes. All
teachers will do their best to be fair and systematic, and to ensure that all students
have an opportunity to demonstrate their performance. However, if there are
particular concerns you have about your ability to satisfy assessment criteria in this
area, please feel free to discuss these with your teacher.
Expectations on students: attendance & participation the 80% attendance rule
Students are expected to attend classes and to prepare for, and participate in
discussion, and to complete satisfactorily all components of assessment. A student
who does not attend 80% of classes may be refused the right to submit their
assessment unless they can provide adequate reasons to vouch for absences. In order
to develop critical thinking in relation to the course objectives, students are expected
to read course materials and other resources closely, and are encouraged to look at a
range of other material recommended from time to time in class or (when available)
on your teachers WebCT: www.webct.unsw.edu.au.

Cross-marking and re-marking policy

If total assessment for either Civil Procedure or Criminal Procedure achieves less than
50% it will be cross-marked by another Litigation teacher.
Where students achieve a mark over 50% and a student wishes to have a piece of
assessment re-marked, the student must first discuss the assessment with the
teacher concerned. Only after this discussion will a request for another teacher
to re-mark the assessment be considered. Note that marks may go up or down
due to re-marking.
ACADEMIC HONESTY AND PLAGIARISM
What is Plagiarism?
Plagiarism is the presentation of the thoughts or work of another as ones own.*
Examples include:
direct duplication of the thoughts or work of another, including by copying
material, ideas or concepts from a book, article, report or other written document
(whether published or unpublished), composition, artwork, design, drawing,
circuitry, computer program or software, web site, Internet, other electronic
resource, or another persons assignment (including reflective notes) without
appropriate acknowledgement;
paraphrasing another persons work with very minor changes keeping the
meaning, form and/or progression of ideas of the original;
piecing together sections of the work of others into a new whole;
presenting an assessment item as independent work when it has been produced in
whole or part in collusion with other people, for example, another student or a
tutor; and
claiming credit for a proportion a work contributed to a group assessment item
that is greater than that actually contributed.
Collusion in assessment: in addition to using the work of others, allowing
other students to use your written work amounts to collusion in assessment.
Collusion in assessment amounts to academic misconduct. Unless work is
specified to be group work, any work submitted for assessment must be
written by each student individually, and must not be shared, whether in
draft or completed form, with any other student. While it is understood that
it is often beneficial for students to study together and to discuss their work,
students who share, distribute, or show their written work to any other
student while enrolled in the course for which the work is to be submitted will
be deemed to be colluding in their work and thus guilty of academic
misconduct.
For the purposes of this policy, submitting an assessment item that has already been
submitted for academic credit elsewhere may be considered plagiarism.
Knowingly permitting your work to be copied by another student may also be
considered to be plagiarism.
Note that an assessment item produced in oral, not written, form, or involving live
presentation, may similarly contain plagiarised material.
The inclusion of the thoughts or work of another with attribution appropriate to the
academic discipline does not amount to plagiarism.
The Learning Centre website is main repository for resources for staff and students on
plagiarism and academic honesty. These resources can be located via:

www.lc.unsw.edu.au/plagiarism
The Learning Centre also provides substantial educational written materials,
workshops, and tutorials to aid students, for example, in:
correct referencing practices;
paraphrasing, summarising, essay writing, and time management;
appropriate use of, and attribution for, a range of materials including text, images,
formulae and concepts.
Individual assistance is available on request from The Learning Centre.
Students are also reminded that careful time management is an important part of study
and one of the identified causes of plagiarism is poor time management. Students
should allow sufficient time for research, drafting, and the proper referencing of
sources in preparing all assessment items.
* Based on that proposed to the University of Newcastle by the St James Ethics
Centre. Used with kind permission from the University of Newcastle
Adapted with kind permission from the University of Melbourne.
The University regards academic misconduct as a very serious matter.
Students found guilty of academic misconduct are usually excluded from the
University for two years. Contingent on the individual circumstances, however, the
period of exclusion can range from one session to permanent exclusion from the
University. Students should be aware that each year a number of complaints are made
relating to academic misconduct within the Law School, and that serious punishment,
including exclusion from the University, may result. Academic misconduct includes
plagiarism.
The following are some of the actions which have resulted in students being found
guilty of academic misconduct in recent years:
use of unauthorised aids in an examination;
submitting work for assessment knowing it to be the work of another person;
improperly obtaining prior knowledge of an examination paper and using that
knowledge in the examination;
failing to acknowledge the source of material in an assignment, or the extent
of indebtedness to others.
No take-home exam answers will be accepted without the student signing the
academic misconduct declaration that is included on the Law School assignment
cover sheet.
It is the responsibility of each student to use correct methods of acknowledging other
peoples ideas. In cases where students collaborate with other students, the extent of
collaboration should be included as well as the names of all students who contributed
to the piece of work. Anyone not already familiar with correct forms of
acknowledgement is strongly advised to consult the UNSW Learning Centre Web
Page on Avoiding Plagiarism (http://www.lc.unsw.edu.au/plagiarism/index.html )
RESOURCES FOR STUDENTS
Required texts
Students are expected to possess a copy of the course text as well as the respective
supplementary materials for Civil Procedure & Criminal Procedure.
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Course text:
For civil procedure: Hunter J., Cameron C. & Henning T. Litigation I: Civil
Procedure (7th ed) LexisNexis Bworths (2005)
For criminal procedure: Hunter J., Cameron C. & Henning T. Litigation II:
Evidence and Criminal Process (7th ed) LexisNexis Bworths (2005)
For both parts of the course these books are supplemented by materials which update
and expand on the texts and contain additional statutory material. These are available
for purchase through the UNSW bookshop. They can also be downloaded from the
respective teachers web site.
Recommended & prescribed texts
G Tillett & B French, Resolving Conflict a Practical Approach (3rd edition) Oxford
University Press 2006
Court Forms and Precedents and Pleading NSW
www.lexisnexis.com:80/au/legal/srcsel/sourceDirectory.do?origin=SRCDIR
Ritchies Uniform Civil Procedure NSW (also available online)
B.C Cairns, Australian Civil Procedure (7th edition) Lawbook Co 2007
Law Link Uniform Civil Procedure Rules
http://www.lawlink.nsw.gov.au/lawlink/spu/ll_ucpr.nsf/pages/ucpr_rules
Supreme Court New South Wales
http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_procedu
res
CONTINUAL COURSE IMPROVEMENT
The Litigation 1 teachers welcome student feedback on how this course may be
improved. Student feedback is very important to continual course improvement. This
is demonstrated within the School of Law by the implementation of the UNSW
Course and Teaching Evaluation and Improvement (CATEI) Process, which allows
students to evaluate their learning experiences in an anonymous way. The resulting
evaluations are ultimately returned to the course convenors, who will use the feedback
to make ongoing improvements to the course.
ADMINISTRATIVE MATTERS
Students seeking further information regarding administrative or other matters
relating to this course should go to:

www.law.unsw.edu.au,

Level 2, the Law School Administrative Office, Faculty of Law Building,

Lower Campus, email: Undergraduate@law.unsw.edu.au; office hours: 9.00 to
12.30, 1.30 to 5.00 (Monday, Tuesday, Thursday, Friday); 9.00 12.30
(Wednesday).

with respect to occupational health and safety policies and expectations:

www.riskman.unsw.edu.au/ohs/ohs.html

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with respect to equity and diversity matters relating to the needs of students
with disabilities, see
www.secretariate.unsw.edu.au/acboardcom/minutes/coe/disabilityguidelines.p
df

the Law Library, Law Building Lower Campus

http://info.library.unsw.edu.au/law/about/law.html.

and

also

see

Those students who have a disability that requires some adjustment in their teaching
or learning environment are encouraged to discuss their study needs with the course
convenor prior to, or at the commencement of, their course, or with the Equity Officer
(Disability) in the Equity and Diversity Unit (9385 4734 or
www.equity.unsw.edu.au/disabil.html). Issues to be discussed may include access to
materials, signers or note-takers, the provision of services and additional exam and
assessment arrangements. Early notification is essential to enable any necessary
adjustments to be made.
APPENDIX A
The following document contains a list and description of the 5 key graduate
attributes which the School of Law seeks to instil. These attributes build on and
contextualises the 12 generic UNSW graduate attributes.
The UNSW School of Law instils in students the understandings, values, skills and
qualities necessary to become highly qualified professionals with a strong sense of
citizenship, community and social justice. A legal education at the UNSW Law
School, therefore, develops graduates who have:
1. (Core disciplinary knowledge)** a functioning and contextual knowledge of law
and legal institutions;
2. (Transferable intellectual skills) excellent intellectual skills of analysis,
synthesis, critical judgment, reflection and evaluation;
3. (Research skills) the capacity to engage in practical and scholarly research;
4. (Communication skills) effective oral and written communication skills both
generally and in specific legal settings;
5. (Personal and professional values) a commitment to personal and professional
self-development, ethical practice and social responsibility.
** Thus, core disciplinary knowledge incorporate generic attributes 1, 2 and 9;
transferable intellectual skills, attributes 3, 4 and 6; research, attribute 5;
communication, attribute 12; key values, attributes 4, 7, 8, 9, 10 and 11.
WHAT DO THESE ATTRIBUTES MEAN?
A functioning and contextual knowledge of law and legal institutions means:
a comprehensive knowledge of the core principles of law, including a critical
understanding of the policy considerations informing the law;
an understanding of the principal institutions in the Australian and other legal
systems and their purpose and functions;
an appreciation of the contextual factors that influence the operation of the law
and the impact law has on society, politics, the economy and culture;
a general understanding of Australian law in international and comparative
perspective; and
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an engagement with the scholarship of law.

Excellent intellectual skills of analysis, synthesis, critical judgment, reflection

and evaluation incorporate the ability to:
collect and sort facts;
identify and analyse legal issues;
interpret legal texts;
apply the law to real legal problems;
invoke theory and inter-disciplinary knowledge to develop new and
creative solutions to legal problems;
critique law and policy to develop new ideas about the law and law reform;
participate effectively in debates about the law.
The capacity to engage in scholarly and empirical research involves the ability
to:
develop and plan an effective research strategy
collect, retrieve and collate relevant information
analyse, evaluate and interpret information
apply and report on empirical research
Effective oral and written communication skills both generally and in specific
legal settings includes the ability to:
articulate and defend arguments about what the law is and/or should be in
writing and orally.
work with a diverse range of people and communities
demonstrate effective listening skills and an ability to discern the legal issues
presented.
A commitment to personal and professional self-development, ethical practice
and social responsibility incorporates:
a willingness to engage in life-long learning, that is, retaining and extending
existing legal and other skills, and knowledge;
the capacity to work both independently and as a productive member of a
team;
an understanding of the ethical framework in which law is practised;
acceptance of personal and professional responsibility,
a sense of social responsibility and justice;
a commitment to values of equity, diversity and inclusiveness.

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