Dispute Resolution and Ethics Table of Contents

Court Process ................................ ................................ ................................ ................................ .... 4 Parties & Process- Joinder ................................ ................................ ................................ ............. 7 Jurisdiction ................................ ................................ ................................ ................................ ..... 10 DISPUTE RESOLUTION OPTIONS ................................ ................................ ................................ ..... 12 Pleadings & Process- Initiating Proceedings ................................ ................................ ................... 19 Week 4 Pleadings & Process- Defendant s Response ................................ ................................ ..... 24 Failure to file a notice for address for service/appearance/defence................................ ............. 25 Options in Response................................ ................................ ................................ .................... 25 CONTRIB NEG AND FAILURE TO MITIGATE ................................ ................................ ................... 27 Interpleader- SCR 202................................ ................................ ................................ .................. 28 Pl s Responses to Defence ................................ ................................ ................................ ........... 29 AMENDMENT OF PLEADINGS ................................ ................................ ................................ ...... 29 Striking out & further particular ................................ ................................ ................................ .. 30 Failure to Comply with Rules ................................ ................................ ................................ ....... 31 Abuse of Process ................................ ................................ ................................ ......................... 32 STAY:................................ ................................ ................................ ................................ ........... 32 Striking OUT 117 ................................ ................................ ................................ ......................... 33 Disclosure of Documents ................................ ................................ ................................ ................ 34 Which Documents Must be Disclosed? ................................ ................................ ........................ 36 Direct Relevant ................................ ................................ ................................ ............................ 36 Fishing................................ ................................ ................................ ................................ ......... 41 Privilege & Immunity ................................ ................................ ................................ ...................... 45 Legal professional privilege ................................ ................................ ................................ ......... 46 Litigation Privilege ................................ ................................ ................................ ....................... 48 Advice Privilege ................................ ................................ ................................ ........................... 48 Communication with 3rd Party ................................ ................................ ................................ ..... 49 Onus of privilege ................................ ................................ ................................ ......................... 49 Disclosure to 3rd Parties ................................ ................................ ................................ ............... 50 Common legal interest-i.e 2 ppl suing same Def. ................................ ................................ ......... 51 Application for Return of Privilege ................................ ................................ ............................... 51 Confidential Information ................................ ................................ ................................ ............. 54 Other Pre-trial measure................................ ................................ ................................ .................. 56

Investigation Pre-trial Methods ................................ ................................ ................................ ... 57 Examination by written Qns (INTERROGATION) ................................ ................................ ........... 57 Answers to written questions ................................ ................................ ................................ ...... 59 Requirement for leave of crt- ................................ ................................ ................................ ...... 60 MEDICAL EXAMINIAON OF PERSONS ................................ ................................ ........................... 63 JOINDER of Parties ................................ ................................ ................................ ...................... 66 INJUNCITION-Protective Process ................................ ................................ ................................ .... 66 Interim Injunction................................ ................................ ................................ ........................ 66 COST ................................ ................................ ................................ ................................ ............... 70 Quatum of cost ................................ ................................ ................................ ........................... 71 Party/Party Costs 264(2)................................ ................................ ................................ .............. 71 Solicitor Client ................................ ................................ ................................ ............................. 72 Discontinuance................................ ................................ ................................ ............................ 75 Bullock Orders ................................ ................................ ................................ ............................. 76 Costs against 3rd party ................................ ................................ ................................ ................. 76 Comparative Jurisdictions the Magistrate and Federal Court................................ ......................... 80 Federal Court ................................ ................................ ................................ .............................. 82 Case Management ................................ ................................ ................................ ...................... 83 Discovery ................................ ................................ ................................ ................................ .... 83 Interlocutory Processes ................................ ................................ ................................ ............... 84 Why Use F.C? ................................ ................................ ................................ .............................. 85 SEEKING LEAVE TO AMEND ................................ ................................ ................................ ......... 87 Original Associated & Accrued Jurisdiction ................................ ................................ .................. 87 Accrued Jurisdiction ................................ ................................ ................................ .................... 88 Federal Jurisdiction to State Courts ................................ ................................ ............................. 88 Cross Vesting................................ ................................ ................................ ............................... 89 Maintaining Status Quo................................ ................................ ................................ .................. 92 Criteria for granting interim injunction ................................ ................................ ........................ 93 Damages in lieu of injunction?................................ ................................ ................................ ..... 94 Obligations of disclosure in ex parte applications ................................ ................................ ........ 94 Security for costs ................................ ................................ ................................ ......................... 95 Mandatory injunctions ................................ ................................ ................................ ................ 95 Anton Piller Orders ................................ ................................ ................................ ...................... 96 Appeals & Judicial Review, Judgment & enforcement, Res Judicata & issue Estopel ..................... 98 Appeal by way of re-hearing ................................ ................................ ................................ ....... 98 Appeal de novo ................................ ................................ ................................ ........................... 99 Appeals involving interlocutory matters ................................ ................................ ...................... 99 Judgment (Appeal/Enforcement)................................ ................................ ............................... 101

Default Judgments ................................ ................................ ................................ .................... 101 Setting aside a Default Judgment................................ ................................ ............................... 101 Summary Judgment (hopeless)................................ ................................ ................................ .. 102 Non-judgmental determinations (admin action)................................ ................................ ........ 103 Res Judicata ................................ ................................ ................................ .............................. 104 Anshun estoppels ................................ ................................ ................................ ...................... 104 Enforcement of Judgment ................................ ................................ ................................ ......... 106 Ethics ................................ ................................ ................................ ................................ ............ 108 Duty to obey the Law ................................ ................................ ................................ ................ 108 Duty to the Court ................................ ................................ ................................ ...................... 108 Duty Not to Abuse the Process ................................ ................................ ................................ .. 109 Client intending to disobey court order ................................ ................................ ..................... 110 Dealing with witnesses ................................ ................................ ................................ .............. 110 Contacting opposing party................................ ................................ ................................ ......... 110 Communications with judge ................................ ................................ ................................ ...... 110 Duty to conduct cases efficiently and expeditiously................................ ................................ ... 110 Duty to other Practitioners and to the Community ................................ ................................ .... 111 Duties to other Members in the Community ................................ ................................ ............. 111 The importance of professional independence................................ ................................ .......... 112 Duty not to abuse court................................ ................................ ................................ ............. 112 Confidentiality................................ ................................ ................................ ........................... 113

Court Process
Objective to ensure that court based DR is Fair, efficient, accessible, affordable, effective:SA SCR 3:

(a) (b)

to establish orderly procedures for the just resolution of civil disputes; and facilitate and encourage the resolution of civil disputes by agreement between the parties; and avoid all unnecessary delay in the resolution of civil disputes; and to promote efficiency; and to minimise the cost of civil litigation to the litigants and to the State.

(c) (d) (e)

SCR 10 : gives the Court power to vary the application of the rules if necessary in the interests of fairness SCR12- gives Court the power to dismiss an action or set aside any step in an action if a procedural irregularity occurs in the conduct of the case by a party SCR13- gives Court power to punish a party by awarding costs against the party or against their solicitor. Objective of Procedural law: Is that party do not take each other by surprise, conceal relevant info, or mislead each other about the basis for their case. Ensures parties are not suddenly presented with material that they are not aware of and have not been able to prepare for.

Case Management In Magistrate Court in SA- hearing process, which invites parties to consider resolution options right at the start of proceedings.
y

Delays in progressing cases means that every litigant must wait far too long for their case to be resolved, which is a form of denial of justice. Failure to follow the rules can result in case being struck out, or significant costs penalties to the party or the lawyer If solicitor don t follow rules or directions of crt- client will suffer detriment, and solicitor may be in contempt of court, or disciplined for unprofessional conduct. Might be sued by client.

Outline of Process- SA SC is NOT the most common venue for D.R & is mainly used for commercial or high value civil cases. In SA most litigation occurs in Mag or D.C, however, for a complete understanding of the principles of civil procedure, we look to the SCR. IN SA rules of SC and DC are consolidated, with most rules applying to both courts. Steps in litigious dispute. These are:

y y y y y y y y y y y y

Pre action communication b/w parties Initiating proceedings (choice of jurisdiction, cause of action, parties) Pleading the case or defence Disclosure of documents Access to Info Investigation, expert reports, witnesses Preserving the status quo Case management D.R Costs Enforcements Appeals

Steps in Proceedings

 Notice of Claim R 33
Formal notice of claim to other party (usually letter, outlining case in detail), & formal response by other party. Letter and response MUST contain an offer of Settlement. This process may occur 3 or 6 yrs after events occurred, depending upon time limit for type of action. Purpose of R33 letter: encourage parties to explain & talk about their case early, before they get litigious and adversarial.  Pleadings RR92-97
y y

If case not settled at step 1, Pl issues and serves Summons (R34) and Statement of Claim (SOC)(R21). y y D files and serves a Defence in response to SOC (R92). The Defence may include a counter claim against Pl PL may file & serve a Reply to the Defence. The reply may include a defence to any counterclaim by the Def.

(these steps are called Pleadings- they are issues b.w parties. Parties are limited to what they have said in their pleadings, and cannot bring up additional allegations of facts later on if they are n ot in pleadings.

 Status Hearing R 125 A conference b/w Judge & parities is held 7 wks after the filing of the Defence to determine if a Settlement Conference should be held to try & resolve the matter.
Purpose: is to see if there is any point in trying to negotiate a settlement before the parties get too entrenched and adversarial.

 Settlement Conference R 126

A settlement conference will be convened if crt or parties feel there is prospect of resolutio n if the parties can negotiate. May also take the form of a mediation.

 Disclosure & Production of docs R 136, 140 and 141 21 days after the settlement conference (or after the close of pleadings, if no Settlement conference held) parties must provide each other with a list of all the documents that they have that are directly relevant to the case. y Each party must then allow the other to have access to and to inspect those docs.
Parties will get to see each other s documents. These documents will often su pport a party s allegation (in which case other side might admit them) but might also show weaknesses in a party s case. Process of discovery is dependent upon honesty of party and ethics of their lawyer. Some of the docs may become evidence in any trial.

 Gathering of Evidentiary Material by parties RR 146-186 provide for the gathering & exchanging of evidence by parties by various means, including questioning parties pre trial, examining witnesses, medical testing, scientific testing of things, & other investigatory processes.
Finding & testing evidence of a trial is a hugely time consuming process. Witnesses have to be found & proofed , docs & real evidence have to be tracked down & evaluated, experts might need to examine docs, ppl, or things , and provide reports and there r processes to get info from the parties by pre trial qns of the parties or subpoenaing of witnesses or documents. All of this info has to be found, evaluated, recorded, discussed w/ counsel, & ordered for use at trial.

y Any docs (such as experts reports have to be provided to the other party.  Listing Conference RR 120 When the crt is satisfied that the case is ready for trial, the parties attend before the Court to a fix suitable date. Parties must provide a certificate certifying that they are ready to proceed to trial (R120) Pl must provide a Trial Book (R121) to the Court & to all other parties 7 days before the Listing Conference. Litigation- 1st Step y y y Find out what dispute is all about & what client wants to achieve. Ensure they understand their options and the implications of choices. Inform client about ADR options & discuss them carefully w/ the client. This is an ethical requirement. Failure to advise possibilities for resolution, to the client s detriment is a bre ach of duty of care & may lead to negligence claim against lawyer.

Preliminary issues- Parties, jurisdiction, cause of action y y y y Who is client, who is other party? What is the cause of action? Is it within time? What is the remedy sought? Is it avail? In what Jurisdiction can the proceeding be issued?

Parties & Process- Joinder

May be more than 1 pl, and more than 1 Def. Pl & Def Pl can only be included in litigation by consent - Pl cannot put names of other person that might have an interest on summons w/out express consent. In some circumstances crt can order that a person be added to a matter as a Pl w/out consent. y y y It is the Pl/s who chooses D/s. Pl may elect to join a no. of D, or limit its claim to 1 or 2. There are significant cots implications of joining Ds- if pl joins D that turns out not to be liable, Pl is likely have to pay D s cost.

Pl files a summon and a SOC which sets out its legal claims against the D/s. y The Ds file a Defence to the Claim, explaining y they are not liable, & may also fi le a Set Off or a Cross Claim, arguing that Pl is also indebted to them for some reason.

Third (Other or additional Parties) Named D will consider that another person is partly or wholly responsible for the Pl s loss. Def can initiate action to join the other person as a 3 rd party. 3rd party then joins the action alongside the Def & is treated as a Def (except for costs).

Cross Claim
y y y y y

D can file a cross claim against P. The Cross claim is part of the Def s defence, but it is also a separate cause of action against the pl. The Def thus becomes the Pl by Crossclaim, and Pl becomes the Def. crts allow matters to proceed together to avoid a multiplicity of similar claims b/w the same parties. SCR 73-79 Procedures for JOINDER of PARTIES

Ethics 3 Fundamental duties that a lawyer must observe:

y y y

Duty to client- Zeal, confidence, competence( no conflict) Duty to the profession- Courtesy, not to bring profession into disrepute Duty to the Crt(sometimes described as duty to justice) duty to the administrative of justice; duty not to mislead the crt.  Every practitioner has a positive obligation, as a member of the profession, to conduct themselves ethically.

Duty to client
 Lawyer s duty to use their utmost skill & ability to assist the client to achieve their legitimate goals.  Layer must represent client s interests & act on their instructions, & not be guided or influence by the interests of any other parties or person.

 Ability of lawyer o best represent the client s interest is only achievable if client has complete confidence in the lawyer, and is prepared to trust the lawyer with all relevant info.

Confidentiality Communication b/w lawyer & client are always confidential, and is breach of lawyer s ethical obligations to divulge info arising by virtue of the lawyer client relationship to any 3 rd person w/out the client s express permission. Protection applies to info obtained During the relationship,. It continues after the lawyer has ceased representing the client, for ever. Exceptions of confidentiality:
y y y y y

Where client consents Info is in public domain Law requires disclosure To other members of the firm- where client sees a member of a firm of solicitors, the relationship is with the firm not the individual practitioner & all members of firm must observer the same duties tot he client. TO avoid a probable commission or concealment of a felony

Perjury in a civil matter, the most a lawyer can do is withdraw from the case (ie cease to act) to avoid being in a position of further deceit of the crt or abuse of process. Conflict of interest: will not then act for B against A, if pervious acted for A for a completely different matter b/c lawyer knws about A s affairs & interests by virtue of the relationship that he had with A, and so would be in breach of their obligation of loyalty to A if they acted fro B. Only exception is if A consents. Mills V Dan Dawn v Black Gold Mining Co Ltd: Solicitor had investigated Mill s claim against a co, and had conferred w/ Mills. Solicitor then moved to another town & accepted retainer to act for the Def Day Dawn Bloc in the SAME LITIGATION against Mills. Crt : Clear conflict. Despite his best efforts to respect confidence there was too great a risk that he would let sth slip that would compromise the previous client s confidence.

Carindale Country Club v Astill: Crt suggested that only in most exceptional circumstances can lawyers act against a client they have previously represented. Fact: Solicitor Astil previously acted for Carindale, being involved in the mkting of a housing estate developed & offered for sale by Carindale. Astill had been a s/h in the Co. & director of it. Subsequently Mr & Mrs S sued Carindale. They retained Astill to act for them. He told them his position & role in the co. in the past, but they still agreed he should act for them, and realised him from any liability to them that might arise from his prior involvement. Carindale sought an injunction against Astill s firm restraining them from acting as Astill had knowledge of confidential info that was relevant to the litigation. Crt made clear: that if a reasonable observer would think that there was a real as opposed to theoretical possibility that confidential info given by the client in the 1st case might be passed on or used by the solicitor to advance the interests of the 2nd client, then he could not act. It was clear that this risk of passing on or using info can be innocent & inadvertent rather than deliberate. Crt placed great weight on nature of fiduciary duty of lawyer to client, and on adverse public perception and impact on public confidence in administration of justice that might arise, if Astill was allowed to apparently change sides in this manner.

Mallesons v KPMG: qn is , is there a real sensible possibility that the interests of the solicitor in advancing the new client s case might conflict with his duty to keep info given to him by the former client confidential, or to refrain from using that info to the detriment of a former client. Crt indicated where there is a real likelihood of confidential info obtained from the 1st client least subconsciously influencing the conduct of the case for the 2nd, than the risk is too great. PCR R 4 prevent a practitioner acting for a person against a client whom the practitioner has previously represented, & has thereby obtained confidential info material to the current matter, & were the former client might reasonably conclude that there is a real possibility that the confidential info might be used to the former client s detriment NM V Sentry: crt the mere fact that there were offices in different countries did not make them separate or distinct entities. There are circumstances when Chinese walls or info barrier s might be put in place in a firm to enable different solicitors to act for different clients. Conflict b/w Solicitor & Client
 i.e a solicitor asked to sue a co. which solicitor has shareholdings.  The PCR 9.11 make it clear that such personal conflicts of interest are not permitted.  The duties of loyalty honesty, fairness, & diligence owed by a lawyer to their client (PCR1)- should not represent client, if does not feel they can give client their best.  If lawyer were of the view that there was such a degree of conflict b/w lawyer and client that the lawyer could not give the client the best representation possible, then the lawyer should not take the case. 

Duty to communicate & to act on instructions

 Lawyers are agent of their clients  Must only do what their client instructs them to do.  Offers of settlement, admission about conduct or intention, disclosure of documents or info, can only be done on the client s instructions.   PCR 12- practitioner has a series of obligations to the client: y TO seek to assist client to understand the issue in the case & client s possible rights and obligations, sufficient to permit the client to 5 proper instructions y To advise about the reasonably available alternatives to litigation.  Instructions that would require lawyer to act in a way contrary to the duty to the crt, or the law, cannot be acted upon. PCR 13- practitioner is not mouthpiece of client, but must exercise forensic judgment in managing the litigation.

Duty to the profession

 It is unethical to approach directly or indirectly another lawyer s client- i.e your client s opponent.  If you are approaching other parties witnesses that u let them know, but that is not an obligation.

Duty to the Court

 In pleadings/discovery, we have an obligation not to deceive the crt, to waste its time, or to use it for a purpose other than the bona fide & timely resolution of a disputed matter.

Examples of duty to crt:

y

y y

Not mislead by deliberately or by omission PCR 14: specifies tha a solicitor must not knowing make a false statement to a crt, & must take all necessary steps to correct any misleading or false statement as soon as possible. In seeking an ex parte orders1, to advise ct of any matter that may auger against the orders u are seeking. Behave in a manner consistent with interests of justice e.g not participating or turning a blind eye to a client or witness committing perjury in affidavit or evidence.

Jurisdiction
y y y y

y y

A def must have been served with the Summons and SOC by prosecutor or pl for crt to have jurisdiction over the Def. State crts are limited by the power of State Constitutions and Parliaments- to matters or person within the geographic bounds of each state. FC have jurisdiction only over matters conferred by statue FC adopts a simpler pre trial process (pleadings can be by affidavit, and judges take a more active role in directing case preparation_ than may State crts, & this can be an attractive option to parties wishing to minimise cost. Statues of limitations also vary from state to state, so the advantage for a party whose time limit has expired in 1 jurisdiction if he can issue process in a jurisdiction w/ a longer time limit is obvious. It is generally the case that damages award are higher in Eastern States of Aus than in S.A

SA & Fed Jurisdiction

An ex parte application is where one party appears in the absence of the other, who therefore is not heard.

S.C SCA ss 17-18 Writs/Equity Federal Jurisdiction (by statue e.g s86 TPA, and Cross Vesting) y Probate, Winding up, Matrimonial, Admiralty, Companies y NB_ The SC also has power to transfer matters from te SC down to the DC, or from the DC up to the SC. District Court y DCA s 8 y Writs/Equity y No upper limit, Appeals on law & process lie from the DC to the SC
y y y

Fed Crt y FCA s 19 y Judiciary Act (CTH) s 39 y Conferred by Fed statute y Accrued & associated jurisdiction- see Felton v Mulligan y Arnhen Land Trust v Minister for Mines Fed Magistrates Court y FMCA s10 y S86(1A), 86AA TPA Family Court Cross Vesting- The cooperative State/Cth cross vesting arrangements eable cases to be transferred from FC and Family Crt to State S.C, and from 1 State S.C to another, in certain circumstances.

Magistrates Court y MCAs 8 y General $40k y Motor Vehicle Accident $80k y Real Property $80k y Equity only if monetary relief also claimed y Statutory MCA s 10 Minor Civil (MAG. Crt) y MCA s10,10A, 10AB y Up to $6000 y No legal representation Appeals from Mag crt (civil jurisdiction) lie to the D.C. Numerous State Created tribunals & other review bodies that have appeal or review rights to the District or S.C

Numerous Federal Created tribunals & other decision making bodies that have appeal or review rights to the FC

State Crts CAN exercise Fed. Jurisdiction pursuant to s 77)ii) Constitution; s 39 Judiciary Act FC can exercise Jurisdiction over state matters by way of: y Associated jurisdiction- s 32 Fed Crt Act; Petrotimor Companhia de Petroleso SARL v CTH of Aus y Accrued jurisdiction; Petrotimor Companhia de Petroleos SARL v Cth of Ausralia Supra

Forum Shopping- Finding most favourable Jurisdiction

y y y

y -

State Parl are permitted to grant State crts judicial power which may be exercised over extraterritorial matters: Mobil Oil Australia Pty Ltd v State of Victoria Although a relevant connection b/w the law & State is required, the test of relevance is applied liberally. A remote & general connection w/ the State is sufficient. Thus, in the Mobil Oil case, a law empowering the Victorian S.C to hear grouped proceedings where the events affecting some members of the group arose outside the State of Vic was held valid. A State Crt will usually have jurisdiction over a matter if: The cause of action arose in the State OR The pl resides in the state; OR The Def resides in the state

 Sometimes, a Pl with a choice of jurisdiction (eg contract entered into in SA, Def lives in Perth, Pl has moved to Qld) may select jurisdiction that gives them the most advantage- e.g damages often higher in Eastern States, in same states there are advantageous statutory provisions, or procedural steps.  To avoid abuse of forum general rule : the law that will be applied is the law of the place where the cause of action.

DISPUTE RESOLUTION OPTIONS



ADR Options arise in 3 ways:

y

Parties may have entered into a contractual agreement that includes a requirement that they attempt ADR prior to litigation y Parties may attempt mediation or DR prior to initiating proceedings y Parties may be referred mediation or arbitration (or some other process) by the c rt pursuant to crt rules after litigation is commenced.  Contracts that include pre litigation ADR Clause y Many commercial contracts include DR clauses that require contracting parties to attempt to resolve any disputes that arise b/w them in the performance of the contract via nominated DR processes, b4 they can go to court. known as a Scott v Avery Clause y General principle that a person cannot contract out of their right to seek crt adjudication on any disputes, however, if a party has agreed to a bindi ng contract to try DR before litigation, they are obliged to perform this contractual obligation before going to crt.  Enforceability of mediation clauses y DR agreement is intended to require the parties to engage in DR prior to and as a condition precedent to embarking on litigation. y If a party seeks to bypass the agreement to mediate and go Straight to crt, other party can seek a stay of crt proceedings until the initiating party has complied w/ its contractual obligation to mediate. y Contract law does not allow for an open ended or unclear clause to be enforced. y y A clause requiring parties to try to reach an agreement an issue is highly uncertain, & is not generally enforceable at contract law- Carr v Brisbane City Council. SO any agreements to attempt DR prior to litigation have to be v. Clearly set out, so it s clear what steps the parties have to take to meet their obligations to try & resolve the dispute.

Hooper Bailie Associated Ltd v Natcon Group Ltd : y y y The parties came to dispute on a no. of heads of a greement b/w them Agreement contained an arbitration clause. Arbitration proceeded. During interlocutory phase, parties entered a further agreement to submit some of the disputed matters to a conciliator. Parties agreed that this further agreement was legally binding, either as variation of the arbitration agreement, or standing independently, or pursuant to an estoppel. Their agreement- arbitration would not resume until the conciliation had concluded. It was implied term of this agreement that the partie s would take all reasonable steps to endeavour to resolve the conciliation issues ..by agreement Natcon Declined to continue with the conciliation & argued that conciliation concluded when it made this decision.

y y y

y y

Hooper contended that Natcon was required to take all reasonable steps to resolve the conciliation issues. Giles J concluded that there was sufficient evidence that Natcon had entered into a binding agreement. The conciliation was to be binding on certain but not all matters. There was exchange of info b/w the parties in accordance with that structure. Giles J found that in doing these things Natcon promised to participate in conciliation, and that its conduct was sufficient certain for its promise to be legally recognised. Giles J: went on to con sider that until Natcon s w/drawal from the process, the conciliation had been successful, & there was no reason to suggest that it would not continue to be so. His Honour therefore considered that the arbitration should be stayed until the conciliation wa s concluded.

y y

Elizabeth Bay Developments V Boral Building Services Pty Ltd : Parties had agreed upon a mediation clause to the effect that they would attempt to mediate any dispute under the auspices of the ACDC. y The ACDC has standard mediation agreements & processes which can be adopted in, or adapted for, any dispute, & parties were well aware that this structure existed. y However, the particular mediation clause did not resemble the ACDC s standard clause, either past or present, & it was not clear which party had drafted the mediation agreement referring to ACDC. y No agreement had been signed w/ the original agreement to mediate , but included a provision that if a dispute arose the parties would sign an agreement. y In refusing the stay the proceedings, Giles J stated that the enforcement of the DR clause in the agreements would require the Pl to either sign an unknown mediation appointment agreement s an important step in the mediation process, or commit itself to attempting to negotiation in g .f in an effort to resolve the dispute, when it had no such contemplation upon entering into the agreements. His honour felt the enforcement of the clause.. would require Pl to participate in conduct of unacceptable uncertainty  The requirement of certainty in mediation agreements has developed to require v. Strict certainty if an agreement is to be upheld. y Aiton Australia Pty Ltd v Transfield Pty Ltd : Einstein J considered a 4 page ADR clause which provided a 3 stage resolution process, firstly negotiation, then mediation, then expert determination or judicial resolution.

 In terms of intention, agreement was clear, providing the parties expressly agree upon the following process and ... agree that Mediation shall be compulsory b4 either party commence legal action.  Clause went on to make provision for notice to be given, for a summary of the dispute to be prepared for parties to exchange written statements of position, for selecting a mediator, ...28 days limit on the mediation process.  Despite significant detail on the contract, there was no specification as to responsibility for payment of the mediator. This alone was enough to create uncertainty about the structure to be adopted by the parties, & to result in the downfall of the claus e.

 Require extremely detailed provisions for any proposed ADR process, so that nothing at all is left to subsequent negotiation ( to be agreed ) between the parties.

Good Faith (G.F)

 Processes only work if both parties engage in them in g.f.  Where parties agree to engage in ADR, one basis upon which to seek a stay of crt proceedings, is not that a party did not participate at all in the ADR process, but that they did not take it seriously or engage in it in g.f  If a party wished to subvert an ADR clause, all need to do is attend the designated process, be obstructive & unhelpful, and then go to crt, which would defeat the pt of the agreement to try to negotiation pre litigation, & arguable amt to a breach of their contractual obligations to do so.  Aiton Australia Pty Ltd v Transfield Pty Ltd : determining g.f was initially best assisted by considering indicia of lack of g.f.
Einstein J listed the essential features of g.f in ADR: (1)to undertake to subject oneself to the process of negotiation or med iation (which must be sufficiently precisely defined by the agreement to be certain & hence enforceable) (2) to undertake in subjecting oneself to that process, to have an open mind in the sense of: (a) a willingness to consider such options for the resolution of the dispute as may be propounded by the opposing party or by the mediator. (b) a willingness to give consideration to putting forward options for the resolution of the dispute.

 This approach has been supported in Idaport Pty and Anor v NAB and O rs.  The decision stands for the proposition that a requirement of g.f does not stand in the way of certainty of obligation, & can be evaluated by a crt if necessary.  Aiton v Trasnsfield: crt was of the view that an implied duty of g.f does not restrict a party from taking actions making decision in their legitimate interest, & that an implied duty to act in g.f does not require a party to have the other party s interests at heart, nor to compromise its own interests. What is required is willingness to part icipate in a process.This reinforces Einstein J s idea that it is participation in process that is the key issue.
Capolingua v Phyllum :

 The parties commenced litigation concerning the terms of 2 leases for commercial properties.  Ipp J noted that several key issues in dispute would have been suitable for determination pre trial.  Def did not reveal the real issues central to their defence in pleadings This case is often refereed to in discussion of costs penalties for failure to participate in g.f in mediation processes.  D asked for an adjournment which was granted, as D indicated that he did not consider the conference should continue b/c he felt prejudiced.

 The matter as a whole was not nearing resolution, the Principal registrar had been attempting to resolve unnecessary issues by way of the mediation process, & D had refused to participate in this process.  D was ordered to bear its own costs of action, despite substantial success.  Case is often referred to in discussion of costs penalties for failure to participate in g.f in mediation process, but judgment indicates that whilst the crt expressed great displeasure at the conduction of the Pl, it was the impact of the conduct on the crt s case management processes, not the failure of the party to engage in mediation in g.f, that was the basis for the cost penalty.  Crts are beginning to consider the conduct of parties, and particularly the offers they make & reject during pre trial process (often include ADR processes) in determining final costs awards.

Remedies for breach of mediation clauses

 Commonly parties will seek a stay of any proposed or instituted legal process until the party has complied w/ the mediation or ADR clause - that is, has engaged in the process in g.f.  A stay of proceedings pendin g mediation of a dispute will be permitted ONLY where the court so orders (SCR 76)
Court Referral to Mediation

 S 65 SCA empowers the crt to refer a matter for mediation or conciliation w/ or w/out the consent of the parties.  SCR 76: provision for the condu ct & regulation of mediation.
Disclosure of Documents for Mediation?

 No power in the Crt to order discovery for the purposes of mediation  Up to parities to decide what they will disclose during a mediation  Beneficial Finance Corp Ltd v Price Watehouse : court allowed a discovery of documents that went beyond the ambit of discoverable documents, but would be of value in attempts to mediate the matter pre trial.  Crt could only make such order when matter referred to mediation is already before the crt as a civil dispute.  Belby J reasoned that having ordered the mediation, the crt had an obligation to ensure that it was facilitated. He considered the effect of s 65, together w/ the powers available to the crt under R76.03, authorised an order that the doc in qn be produced not as part of discovery, but in aid of mediation process  His Honour: disclosure of doc did not render it compellable for the remainder of the proceedings, & that negotiation privilege would prevent its later use in proceedings. See Addsteam Pty Limited& Ors v Simmons & Ors (No 2)
Finality & Enforceability of Mediated Agreements

 Parties to a successful mediation should ensure agreement is reduced to writing & signed by both parties.

 In case of mediations conducted during litigation processes, the common pr actices is for the parties to reach agreement & then have crt record judgment in terms of the agreement reached, or for part of the agreement to be that the action is discontinued.  By ensuring outcome recorded by crt and matter discontinued, the matter is finalised, & neither party can re open it or pursue the same remedy again.  The same process adopted where a negotiated settlement is achieved.

Arbitration Clauses

 Utilised by commercial & business disputants, and often preferred option for DR.  The Commercial Arbitration Acts applies where parties signed an arbitration agreement which is taken to be an agreement in writing to refer present of future disputes to arbitration.  S 66 provides for referral of a matter for trial by an arbitrator, or the appo intment of a referee.  Unlike, mediation, arbitration proceedings are not confidential.  Docs produced r subject to same implied obligations of confidential as attach to docs used in litigation (known as negotiation privilege)
Nature of arbitration agreements:  Scott v Avery: referred to as scott v Aver clauses . Generally held that an agreement to mediate/arbitrate must be in the form of a Scott v Avery Clause.

Example of Scott v Avery Clauses Example 1: The relevant clause in the contract in the present case... so far as is relevant is in these terms: 1) Except as otherwise specifically provided in the Contract all disputes arising out of the Contract during the progress of the works or after completion or as to any breach or alleged breach thereof shall be decided by the Commissioner. 4) submission to arbitration shall be deemed to be a submission to arbitration.. 5) No action or suit shall be brought or maintained by the Contractor or the Example 2 Clause 23.05 contains a Scott v Avery clause in the following terms: no party shall in respect to any matter referred to in clause 23 02 (a) -(e) inclusive hereof take any dispute to any Court until after an arbitration award has been made. The a rbitration award or decision shall be a condition precedent to any legal proceedings which shall be limited to enforcement of an arbitration award or decision. Arbitration agreements have been est ablished where: y Only 1 party to the agreement was able to initiate referral to arbitration (Tran Aust Constructions Pty Ltd v NT)

Where arbitration is not the only possible method or DR agreed upon ( PMT partners Pty Ltd v Austin National Parks Service)

 HOWEVER, an agreement which only gives a party a right to elect to go to arbitration is not an arbitration clause  Existence of a dispute will depend on the facts of the particular case, but may include circumstances where a claim is made & ignored, where the nature of terms is not agreed, or where the manner of interpretation or application of terms is in issue.  S 53 Arbitration Act provides for a party to seek a stay of any civil proceeding pending the pursuit of arbitration.  S 55 of Commercial Arbitration Act provides that a Scott V Avery Clause cannot operate to prevent the initiation of litigation. However a stay can still be sought & obtained at the discretion of the court .  Arbitration under the act is supported by SC, the Cts power to issue subpoenas to compel witnesses to attend or direct certain other interlocutory processes may be utilised (s17, s47).

Finality of Awards
 Awards made by arbitrators are final.  S 29 provides than an arbitration award shall be in writing, signed by the parties, and contain a statement of reasons.  An award may be enforced in the same manner as an award made by the Crt (s33)

Cost of Arbitration
 Costs of the arbitration are at the discretion of the arbitrator  Implicit provision for cost penalisation of parties that fail to enga ge in the process in g.f or waste time (s 37- which specifies duty of the parties to at all times do all things with the arbitrator...requires to enable a just award to be made and no party shall wilfully do or cause to be done any act to delay or prevent an award being made

Appeal against arbitration awards

   
Appeal against arbitration award is only permitted on a Question of law. S 38 precludes appeal on a finding of fact. Appeal may be by consent of the parties, or by application. Other than appeal brought by consent of the parties, an appeal only allowed where: (a) Having regard to the circumstances the determining of the qn of law concerned could substantially affect the rights of one or more parties to the arbitration agreement; and (b) There is (i) Manifest error of law on the face of the award; or (ii) Strong evidence that arbitrator made an error of law & that the determination of the qn may add, or may likely to add, substantially to the certainty of commercial law.

Other Powers
 Crt also has the power to set aside an arbitration award, where there has been misconduct on the part of the arbitrator, or an arbitration or award has been improperly procured.  Crt may set aside part of an award, e.g , if arbitrator has purported to make an award on matters that were not covered by the arbitration agreement (s 42)  Crt May remove arbitrator on grounds of misconduct, when arbitration has been influenced by parties, or incompetence to deal w/ dispute.

Arbitration under the SCR

 SCR 76.05 provides for the referral of matters to arbitration.  Crt: powers to direct the course & conduct of the arbitration, including making directions as to pleadings, discovery, witnesses, & evidence.  Significant discretion on part of crt or arbitrator to tailor the processes for the particular dispute. Pleadings, discovery, use of witness es & experts, can all b abandoned truncated or varied to meet the exigencies of the case in issue. reason for popularity of arbitration in commercial community.  SCR 76: provides for the trial of a matter or part of a matter by an arbitrator. This may only be ordered if both parties consent.

Confidentiality & Privilege of Communications & documents in ADR

 Fundament precept of procedural law that communications for the purpose of negotiating a dispute are w/out prejudice  Arbitration: The applicable legislation and Crt Rules will usually specify privilege that attaches to docs and other matters raised in an arbitration process. If fails to do so, protection can be drawn from C.L doctrine of negotiation privilege.  Mediation-In many cases, mediation will fall within the C.L negotiation privilege, but due to the extensive use of mediation, this will not always be the case.  Few mediators would consent to mediate a dispute if parties did not sign a mediation agreement that included a confidentiality clause.  In Adel magistrates crt- standard practice to destroy mediators notes after completion of the process, & for parties to also agree to destr oy any material.

Pleadings & Process- Initiating Proceedings

 Once decision to sue someone is made, & parties and jurisdiction are established, Pl must issue proceedings to bring the dispute within jurisdiction of the chosen crt, & commence the process of pleading their case.  S.A: SC And DC, Crt require pl to notify D of their claim prior to issuing proceedings.  The process encourages parties to engage in negotiation early in the process, in hope to facilitate early resolution of the claim w/out recourse to litigation.  Parties who fail to provide notice will suffer costs penalties.  Mag Crt does not make prior notice of claim compulsory, but provides for discretionary cost penalties if prior notice is not given.
Time Limits for Instituting Proceedings

 Limitation of Actions Act 1936 SA: species time limit within which a Pl is entitle to issue proceedings in relation to different causes of action.  Claim in Negligence or Tort resulting in PERSONAL INJURY 3 yrs  Breach of Contract or torts 6 years  Time limit for personal injury action under TPA is generally 3 yrs, and Fair Trading Act.  Whenever an action is based upon a statutory provision- check the statue to establish the time limit for the action in question.
Extension of Time to bring Proceedings

 The effect of the expiration of the limitation period is to give Def(s) immunity against the grant of a remedy.  If time for initiation of an action has expired, there is provision for the crt to allow an extension of time.  s48 Limitation of Actions Act provides for an extension of the limitation period at the discretion of the judge.  Extension of time may be granted where: y The justice of the case requires y Facts material to the Pl s case were not ascertained until the yr before the expiration of the limitation period, or after if expired y Pl s failure to take action within limitation period was due to representations or conduct of Def  Pl who has gone over time limit can apply to crt for an extension of time to bring proceedings. By pleading reasons for wanting an extension of time in SOC, or by an affidavit attached to the Summons.  an extension is also endorsed on the summons.  Crt may decide to hear entire case as well as reasons for the extension of time at the trial, & determine both issues at once.  Upon receipt of a summons for an action that is out of time, whether or not extension of time is sought, D must specifically plead the expiration of the limitation in its defence(ie The Pl s claim is statue barred by operation of s X of the Y Act ). SCR 100(1)(d) & (3)  If D fails to plead that limitation period has expired in its defence, D is taken to have waived time limit, and the action can proceed.

Step 1 Notice of intended claim (SCR 33 applies to monetary claim)

 SCR 33 requires Pl to provide D w/ a detailed outline of the claim 90 days b4 pl issues proceedings.  Notice must include copies of any expert reports on which pl intends to rely 2, as well as an offer to settle mater for nominated sum or remedy.  Notice is commonly given in the form of a letter which complies with requirements of Rule 33.  Def must respond to the notice within 60 days, & include c opies of any documents which D intends to rely on.  Def must accept the claim, make a counter offer, or deny the claim with reasons.  In awarding costs, crt has discretion not to award costs to parties who have not complied w/ thee directives.  summons issued in SC must have special endorsement indicating whether a R 33 letter has been sent, and if not, why not. Failure to issue a R33 Notice may have costs implications.
Step 2- Originating Process/Summons: SCR 34,39

 If R33 process not successful in resolving dispute, next stip Pl to issue proceedings in appropriate court.  Originating process (OP) form containing info about the parties & the action.  OP drawn up by Pl.  IT is submitted to the crt for endorsement, after which it becomes a doc issued by the crt, & can be served on the Def.
OP must include endorsements where: y y y y y Proceedings are instituted in a representative capacity Summary judgment is sought The party seeks a trial otherwise than in Adelaide There is an application for extension of time under s 48 of the Statue of Limitations Act R 33 has (or has not) been complied with

Step 2 (continued)- SOC R91 y y y y y SOC must be filed along w/ summons. SOC is the first pleading that is filed in the case. SOC is the primary means by which the P sets out their case. It contains allegations of fact made against D, legal cause of action, damage alleged, and relief sought In SA summons & SOC are filed & served together, unless special leave is sought to the contrary 3

Step 3- Service y Once endorsed by Crt, the OP together w/ a SOC 4must be served on the other party before any further steps are taken.

The parties are not required at this stage to embark upon disclosure of doc, only to provided expert reports that support their case 3 E.g when a party is running out of time to commence proceedings, but for some gd reasonis not able to articulate their claim in sufficient detail. 4 P may apply for exemption from the requirement of filing a SOC in certain circumstances SCR91(2)

Crt only has jurisdiction over a case if the proceedings have been properly served on the D.

Time for Service/Renewal of Summons y y y y y In SC &DC, a PL has 6 months from date of issu e of summons to serve it. After this time, Summon goes STALE & cannot be served SCR39 Pl may apply to have time for service extended if there are GD reasons-SCR39 Extension of time for service- at discretion of crt, & reasons for non-service, together w/ the balancing of the interests of the parties & of justice, form the basis for exercise of the discretion. Crt will usually renew summons where good reason for delay, where reasonable attempts to serve have been undertaken, or if conduct of D is reasons for failure to serve. If D is out of the jurisdiction, & 6 months is not sufficient to effect service, an extension will usually be given.

STEPS 4,5,6 D s Response-Notice of address for Service, Defence & Reply

When D served with OP, it has 14 days within which to lodge a notice of address for service of doc. It has a further 14 days within which to file a Defence to the OP. These 2 docs indicate that D has received the summons, & intends to participate in the action. If D fails to file these docs, judgment can be signed against D by the Pl. P may then file a REPLY to the DEFENCE. Reply can only respond to new issues that are raised in the Defence. Pl cannot use Reply to bring up additional issues that is omitted to plead in its SOC.  Pleadings can be AMENDED, so that if addition info or allegations, causes of action or parties, come to light, a party can amend their SOC or their Defence to add in new info.  Parities may apply to outline their cases by affidavit rather than by pleadings in certain circumstanc es R96.  In State Crts cases usually proceed by pleadings, But in FC more usual for parties to use affidavits.

    

Pleadings SCR 90-106

 Each party must set out the facts & allegations which it says are relevant to determin ing issue of liability.  Pleadings doesn t contain legal principle or argument.  Contains a statement of the alleged CoA & a recitation of the facts that the party says will support a legal finding that the cause of action has been made out in its favour.  Pleadings are primarily about FACTS- they do not contain law (legal argument) or evidence that may support a party s case.  Pl starts by making a range of allegation of fact against D (SOC).  D will usually respond by admitting some of the allegation made, and denying some (DEFENCE). D may also produce some counter allegations against the Pl (Defence & counterclaim)  Pl has a chance to admit & refute any counter allegations made by D in its Reply.  Specific rules for SOC SCR 99

Establishing a cause of action

 First step est legal cause/s of action. Proceedings will be struck out w/out a cause of action  To prove a cause of action is to demonstrate the FACTS that the party alleges will support the elements of the cause of action.  It can help to break the pleading process i nto 2 steps:  Preparation for pleading: y Identify cause of action identify elements of cause of action identify FACTS to support each element.  Drafting pleading: y Name the cause of action set out facts that support each element
E.g If Breach of Contract. Must establish the elements of contract: Offer Acceptance Consideration for value

They must plead the facts that will prove these elements : -Date & circumstances of offer -Date & circumstance of acceptance -The persons involved in transactions -Amt of money paid, the promises offered, or the arrangements for payment (oral or written) They must prove that D has breached the contract. To do this will need to set out: -Relevant terms of the contract - How the party alleged to have breached the contract Must prove that they have suffered some form of damage which entitles them to some form of relief, so they will plead: Nature & amt of loss suffered as a consequence of the breach.

Negl a duty of care, foresee ability, breach of duty, damage Lutze v Westpac- did not explain whether or how the Bank had a duty of care to the Pl. To make the claim for breach of duty, the pl had to articulate the facts which they say gave rise to a fiduciary relationship. b/c such facts were not pleaded, SOC was not adequate and did not disclose a complete cause of action. Crt : SOC by P was so vague and badly pleaded and disorganised, that they did not grant leave to amend. Which facts are relevant depends entirely upon context.

Failure to plead relevant facts

 Failure to raise substantive allegations or material facts in pleadings may preclude a party from referring to or calling evidence on those matters at trial.  In Jones v Nuske and Prolift v Pronto- the SA Supreme gave stern warnings to parties to the effect that failing to plead facts may well result in evidence of those matters not being permitted at the tri
Concept of materiality

 All facts pleaded must be material to the matters in dispute.  Must have a direct connection to the matters disputed. Or Directly relevant, or necessary to tell the story of the case.  Materiality requires the articulation of all facts that are relevant to the cause of action.  Sometimes these material facts need supporting explanation, which are described as particulars (eg details of the primary facts).  R102- crts will only make order for further particulars if satisfied that(a) The pleadings do not give fair notice of the party s case; and (b) The order is necessary to avoid substantial prejudice to the party in whose favour the orders is to be made.
Inconsistencies & Pleading in the alternative

 SCR 98(6) &(7)- u cannot plead inconsistent facts.  Alternatively, a party may not know exactly what happened, and wish to present alternative version of events.
It is not permissible to abuse the processes of the crt for a collateral purpose. Legal Practitioners Conduct Board v Kerin- legal practitioner was struck off for, amongst other things, filing baseless counterclaim, in order to scare off the pl in a civil claim.

Week 4 Pleadings & Process- Defendant s Response

What does D do when they receive a SOC? *Always check summons, COA, date the COA arose, & legislation pleaded, upon receipt of summons. If there are procedural or substantive defects, these need to be pleaded (or argued) immediately.

Right parties? Has it been served? Is it in time? Is there any preliminary issue? IS there a CAUSE OF ACTION? Are there adequate MATERIAL FACTS to support a cause of action? Are there enough DETAILS (particulars) to support the material facts IS there DAMAGE alleged?  IF any of these are lacking you ll be considering pre emptive strike out or remedial action before filing defence. If not, proceed to defence.  S of C is not necessarily a mirror image of the R 33 letter. More info may have arisen as the Pl does further investigation prior to issue of S of C.
1 File Notice for Address for Service (14 days) when acknowledge receipt of summons & wishes to become involved in proceedings.

  

SCR 59: have 14 days from the date of service of the summons, to file a notice for address for service. Even if D intends to concede the claim & either pay amt sought or negotiate w/ Pl, it must file a notice of address for service. If D represented by solicitor, a notice of acting will also be filed by so licitor-a advise crt & other party that solicitor is acting for D, & authorising the service of docs on the solicitor.

File Defence (28 Days) to the SOC

  

Objection to jurisdiction, substantive or procedural is set out in the defence will be brought on for urgent consideration of the disputed point. Rules of pleading (SCR 98) apply to all pleadings including defences. SCR 100 contains directions for pleading.
pre emptive strike

 However, Def may wish to take pre emptive action

 Any preliminary issue (jurisdiction, service, content, time)

 Prelim issue you are challenging court s jurisdiction or plaintiff s standing. This must be raised at the start. If not raised at the start, you have acquiesced and can t raise it later except with leave.  Note that this sort of issue is usually highlighted on the Summons in the form of special endorsements, but may not already be.
ANY prelim procedural issue wrong name of party, for example, must be raised

Failure to file a notice for address for service/appearance/defence

 Failure to file- entitles Pl to sign judgment against Def.5 means Pl wins their claim with no further involvement by Def.  Def can Have judgment that has been signed against them set aside, if there s good reason for failure to respond.
Process to have judgment set aside

 Process: make an interlocutory hearing application, with affidavit attached explaining reasons for failure to respond to summons  Heard by Registrar, Master or Judge of the crt.  If reasons are convincing, and there is a legitimate defence to the claim, & Pl is not unduly prejudiced, judgment may be set aside & leave to file a defence given.
Admit/Deny, Don t challenge, Tell o wn story

 Admit facts a fact once admitted, -> Pl does not need to call evidence to prove these facts. 
Admission in pleadings cannot be later withdrawn w/out leave of Court.

 Identify facts that won t be challenged  Special (any) defence (factual or legal)  Material facts that support special defence  Counter claim, set off, contributory negligence, failure to mitigate  D must put own version of events if it wants to call evidence (SCR98)

Options in Response
Denying Facts

 If different view, defence should set out material facts that D asserts to support its version of events.
Failure to admit facts

 Unreasonable failure to admit a fact will result in D paying the Pl s cost of proving that fact.

Where claim is for liquidated sum judgment is signed for the amt claimed. If unliquidated sum, Pl must have damages assessed by way of ex parte (ie the Def is not present) crt hearing.

 At discretion of judge impose costs penalty for any party that unreasonably fails to admit a fact that is later proven at trial: SCR 263(2)(e).
Presumption of Denial

 SCR 100(5)0 if D does not specifically admit a fact, or specify that it does not propose to challenge it, then the fact is presumptively denied. means if Defence does not say anything about an allegation in a SOC, it is presumed to deny it.  Silence may amt to unreasonable failure to admit and incur a cost penalty.  Silence in which case it deemed to deny the fact by operation of R100(5)
Bare Denial

 If D denies what P asserts, but does not put forward any facts to explain= bare denial  Effect of Bare Denial D cannot call evidence to rebut if pl comes up to proof the fact at trial ( Cf Jones v Nuske)  Oppose to a denial + alternative version of events enables D to call own evidence of what happened.
Put forward its defence of the allegation

 i.e D denies that it failed to warn the Pl of defect, and says..  Consequence of this is that D has put the Pl on notice as to its version of events, and can call evidence to rebut the claim--> called pleading an alternative version of events D telling its side of the story in pleading.
Does not Propose to challenge

 Permits this: SCR 100(1)(b)  D is not able to admit a fact, it will accept the fact if P comes up to proof on the fact.  D may still suffer costs penalty if, it should have admitted the fact & saved the expense of the Pl proving it
Legal or Statutory Defences

 SCR 100- D must plead the material facts of any legal defences/defences that arise under law including statue & C.L  So, if D is relying upon Contributory negligence or volenti non fit injuria , the material facts giving rise to the defence must be set out clearly.  D must set out any statutory defences available to it.

OTHER PROCESSES THAT GO IN THE DEFENCE

Cross claim/set off (against plaintiff) Contributory negligence Failure to Mitigate Set off

 Third party notice against another wrongdoer (separate process, but usually name and mention liability of third party in defence) Contribution Notice (between existing defendants/Third Parties)

OTHER RESPONSES AVAILABLE TO DEF. Cross Action & Set off Initiate separate legal claims against Plaintiff:

 Cross Action (counterclaim) SCR 35:  An assertion against a Pl that the Def also has a claim against them.  The claim may arise from same facts or circumstances as the Pl s statement of claim, or it may be unrelated.  D will file a Defence & Counterclaim/Cross action.  Defence & Counterclaim action is a single doc. Which D sets out its defence to Pl s claim, and then pleads its own case, in the form of a SOC, against the Pl .  Counterclaim effect of a new & independent claim - must be pleaded and particularized as for a SOC (ultimately proven in crt) and the Pl must file a defence to it.  A Counterclaim survives resolution of the Pl s claim.  Set off-SCA s 23: SCR 100(4)  Where D asserts P owes it money, to reduce any damages that may be owed to the Pl by the Def but does not survive action  Need not arise from same cause of action relied upon by Pl.  Case of one debt being set off against another.

CONTRIB NEG AND FAILURE TO MITIGATE

 Limit Defendant s liability by arguing:
y Contributory negligence y Failure to mitigate

 These are not separate claims, but serve to reduce the Plfs claim vs the Def by putting blame for what happened (contribution) or for effect of what happened (failure to mitigation) on Plf.  Contributory Negligence- Asserts Pl was somehow to blame for part or all of their own injury damage.  If successful, it will operate to reduce D s liability to the extent t hat the Pl contributed to their own misfortune.  If crt makes such finding, it will either find Def not liabl e (if Pl was 100% at fault) or apportion liability.
E.G The Plaintiff fell down the stairs due to the Defendants negligent maintenance of the Stairs The Plaintiff CONTRIBUTED to his own fall by failing to look where he was going .

 E.g 12. The Pl was wholly or partly responsible for his own injuries. Particulars of Pl s negligence: 1.

 Failure to Mitigate Def considers that Pl has failed to take action to mitigate their loss, after the occurrence of the action complained of.  Relates solely to the extent of damage & capacity of the Pl to minimise damage consequential upon the alleged wrongdoing.  E.G Pl who suffered financial loss due to breach of contract could be said to have failed to mitigate if they have not taken steps to pursue other contracts after the failure of the contract the subject of dispute.  E.g The Plaintiff suffered a broken leg as a consequence of the fall and could not work for 8 months The Plaintiff failed to mitigate his loss and damage by failing to Seek timely medical treatment

Interpleader- SCR 202

believes they are about to be sued, or is sued, in relation to a property in their possession, but does not know who the property rightly belongs to.

 Can apply to crt to determine who the property belongs to .  Interpleader only available where the applicant claims no personal interest in the question.  E.G Real Estate Agent holding a deposit made by a purchaser who later backs out of the sale may bring an action in interpleader to determine who the $ should be paid to, the house owner or purchaser.  SCR 89 For NON-Parties to apply to become parties to proceedings if they can show an interest in proceedings.
3rd Party Notice/Contribution Notice  D also has the option of including other person in the dispute. Achieved by a new Originating Process (OP) which is directed at 3 rd party to proceedings.  A 3rd party OP can only be issued against a party who is alleged to have contributed to P s loss & damages as well  Usually arise when there s a dispute b/w 2 parties (def) as to who is responsible for the P s loss.  Pl can settle their claim against a D, leaving D & 3 rd party to resolve liability or quantum b/w them.  If D issues a OP 3rd party notice to a 3 rd party it has the effect of a summons, & 3 rd party should file a Defence to the 3rd Party Notice. #rd party is then treated as a Def in the proceedings.  D has 28 days from the service of the summons to include a 3 rd party in proceedings, although leave of the crt to issue a 3rd party notice later on is always an option if new info comes to light. AFTER THE DEFENCE IS FILED

Reply to newly raised issues only Reply and Defence to Counter claim (or set off) Subsequent pleadings, only with leave of court. These three documents form the basis of the case define the ambit; limit the facts and legal issues; give the parties notice of what they have to prepare for; Discovery is based upon the issues raised in these documents .

Pl s Responses to Defence
R EPLY SCR 101 Gives pl opportunity to respond to matters raised in the Defence. Pl must specify which allegations in the Defence it admits, or does not propose to challenge at trial. Pl must also provide notice of its own version of events in response to allegation made by the Def Pl responds to any new facts or allegations or version of events put forward by Def. A reply is important if a defence such as contributory negligence, a counter claim or set -off are asserted by the Defence.  Failure to plead to any of these amts to bare denial to natters set out in Defence  If Pl does not respond to any of these pleas, the Pl will not be able to cross -examine or lead evidence to the contrary at trial.  A reply may only respond directly to issues raised in the Defence. It cannot include new allegations of facts that Pl omitted in SOC, or that have subsequently came to light  Way to include such material by amendment of the deficient pleading.  Pl who fails to file a Reply is not entitled to later seek to defen d matters raised in a Defence by amendment of the SOC  Reply & Defence to Counterclaim  If D has made a counterclaim (which has the status of a separate claim) in the Defence, the Pl must file a Reply & Defence to Counterclaim. (b/c Counterclaim is a separate action)  Failure to do so means Pl has not put forward any defence to the Counterclaim, & judgment on that counterclaim can be sough.  Subsequent Pleadings  Other than a Reply or a Defence to Counterclaim, no further pleadings may be filed w/out leave of the Court.  With leave of Crt, parities may go onto file rebutters, rejoinders..

    

AMENDMENT OF PLEADINGS
The S of C, Defence and Reply form the pleadings in the case. When they are completed, it is known as the Close of Pleadings . These pleadings can still be amended. They must be amended if new information arises that you want to raise at trial. Amend by RIGHT once up until 28 days after discovery completed (so you can amend pleadings to include new allegations of fact, law, new causes of actio n, based upon any new information found) WITH LEAVE any time up until trial WITH LEAVE at trial, or even after trial and before judgment. STRICT LIMITS on granting leave to amend. Must have good reasons. Leave is discretionary and the conduct of the parties, the prejudice to either, party, the cost and impact of any associated delays, will be relevant factors

RESPONSE TO A DEFECTIVE PLEADING

Defendant can challenge a S of C on procedural grounds before pleading to content. HOWEVER objection to S of C does NOT waive time limits. If you object to S of C on the following grounds, you MUST file Notice for Address for service to be heard on your objections. And you MUST file Defence pending resolution of your objections. You may seek LEAVE to delay the filing of a defence until your objections are determined = (AFD + affidavit).
Common defects

No cause of action No facts to support C of A No damage claimed No remedy legally available Failure to comply with rules* Badly drawn and unintelligible*

Striking out & further particular

 Sometimes difficult for D to plead to a SOC because:  SOC badly drafted & does not make sense  SOC does not contain enough detail to infor m D about the case alleged  SOC lacks some essential component- i.e COA, or a claim for damage  In determining a defect, court will have regard to SCR 98, & specific rules that relate to the types of pleading in question.  The Defendant can APPLY to have the S of C struck out. This is done by an application for directions (Form 16, authorised by R 131) + an Affidavit*  Option 1 Application for further particulars  If pleading does not contain enough info to put other party on notice.  Often D who seeks further particular from P.  P may seek further particulars of a Defence, 3 rd party may seek further particulars from a D  D may seek further particular of a reply  Marini v MLH Insurance Brokers Pty Ltd and Morgan V Roberts Makes it clear that courts takes a pragmatic approach to requiring detailed particulars from parties, looking to the end result of the litigation process to determine just how much particularity is needed to enable the issues to be determined.  Lack of CORE or MATERIAL facts strike out Lack of particulars further particulars ordered OR evidence limited at trial  Practical approach:

  

Failure to give dates of alleged actions over 4 year period, makes it impossible for person alleged to have taken the actions to prepare to respond But it is not unreasonable to expect party to have personal knowledge of what they did do. SCR 102 when can court order a party to provide further particulars . Only if: Pleading does not give fair notice of case AND other party is substantially prejudiced

 Option 2- Application to strike out pleadings  SOC that has defects CAN be struck out in whole or in part.  Where it fails to comply w/ rules, or where it constitutes an abuse of process. Crt has inherent power to strike out all or part of a pleading ( SCR 104)

 Option 3- Application to strike out for failure to plead a COA  A COA described as the essential facts which will give rise to a right to sue . A reasonable COA means 1 with some chance of success when the allegations in the pleadings are considered on their face  A case that is merely weak will not be struck out. Only a case that has no chance of success & would waste time & resources.
WHAT CAN THE DEFENDANT DO IF PLEADING IS DEFECTIVE?

Nothing- get judgment signed vs you

Do nothing = acquiescence and you won t be able to change your mind later.

Nothing, and file defence Apply to DISMISS entire claim cause of action
R 193 frivolous vexatious or an abuse of process/no reasonable

Apply to strike out pleading or part of pleading

R 104 R102 R 192

Seek FURTHER PARTICULARS to fill gaps or inadequacies

Seek STAY of proceedings while party brings pleadings into line

Striking out pleadings or entirety of claim (or defence) or seeking stay can be used by either party against the other. Usually on grounds similar to application to DISMISS abuse of process, discloses no C of A or Defence. So the Deft has to analyse the S of C and consider what if any action it can take in relation to it.

Failure to Comply with Rules

 Pleading so defective that it could not be salvaged Lutze v Westpac:  P seeking to prove breach of fiduciary duty drafted their SOC, but did not set out the facts to demonstrate a fiduciary relationship b/w themselves & D  In the absence of that fact, which was essential to any finding of fiduciary duty, no cause of action was disclosed.  Pleading contained numerous errors & inconsistencies, so serious that the pleadings could not be salvaged or recast to produce a comprehensible document.

Abuse of Process
 Struck out if person takes action or files a defence that is not bona fide, & intended to misuse the court.  The Crts right to do so is based on its inherent power to prevent abuse of court process. SCR 117.
Scandalous or embarrassing pleading

 Scandalous material is material pleaded simply to embarrass or prejudice the other party  Allegation about personality, lifestyle, political perception, religious belief , would seldom be relevant in a pleading  Embarrassing pleading usually described as vague, ambiguous, or unintelligible.  The pleading criticised & ultimately struck out in Lutze v Westpac were an embarrassing pleadings.  The embarrassing character of such a pleading relates to the reputation and pride and practical inability of the party that must respond to the pleading.  Crt will endeavour to direct parties to fix up their pleadings, rather than strike out a claim or defence.

STAY:SCR 12Crt has power to stay an action.

 Stay proceedings means- the open ended suspension of proceedings.  Usually obtained when a party must take some action to rectify irregularities in process- the case will be suspended from any action until the necessary steps are taken.  If necessary steps not taken, case my be dismissed.  What is the test for crt granting a stay which is set out in R192  Examples of when a stay might be ordered when:  a party fail has failed to attend to a step in proceedings ordered by crt  party refuses or fails to attend medical examination  proceedings that deal w/ the same subject matter are already afoot  there are concurrent criminal or disciplinary proceedings involving a party  where an inappropriate forum has been selected  where there is an appeal  where arbitration or mediation is ordered or required  A party may apply for a stay, or a stay ordered at crt s own instigation. TO lift a stay an application is usually made under SCR 131-135
Power to Control Proceedings: SCR 12

 SCRs empower crt to dismiss an action or set aside a step in an action because of procedural irregularity  Example of procedural irregularity (defined in R4) would include:  Misjoinder or non joinder of parties (ie joining wrong party or failing to join a party)  The Death of a party prior to action commencing  Where proceedings are a nullity( ie b/c P does not have stan ding by virtue or c.l, or statutory provision  Where a procedural irregularity is noted by a party, they have 28 days to take action to have the Crt dismiss the action or proceeding.

 Failure to take action with that time limit may amt to acquiescence to the irregularity, & preclude later action to attack the problem(Waller V FMC(1))

Striking OUT 117


Under sub heading power to control litigation , SCR 117(2)(e) empowers crt to take a range of discretionary actions including the striking out of a document or an entire proceeding. (where doc is frivolous, vexations, or abuse of process) SCR 117 can be applied to any document or step in proceedings, or to any party.

Dismissal of action: SCR 193

 S193 empowers crt to dismiss an action where there is NO COA or if abuse of process  Crt may dismiss proceedings by application or of its own motion, where pleadings disclose no reasonable COA, or where proceedings are frivolous, vexation or abuse of process of the crt.  Most common reason for dismissal where action is res judicata, or where doctrine of Anshun estoppel applies.  Can avert abuse of process by preventing a party from re litigating a matter that has already been disposed of.

Summary of Crt powers to Stay/dismiss Proceedings Rule SCR 192 Action Stay

SCR 12 SCR 117

Dismiss or set aside action or step in action Strike out

SCR 193

Dismissal

Proceedings suspended whilst party complies with orders, or whilst other case or matter runs its course & is resolved Only where procedural irregularity (defined in SCR4) Entire case, or doc/step in case, where abuse of process apparent No COA or abuse of process

Disclosure of Documents
 Disclosure occurs after settlement conference or after the close of pleadings: SCR 136(4)
Disclosure is:

A process of exchange of documentary material before trial

y Identifying documents that are amenable to disclosure y Providing a list of those documents to other parties to the litigation y Providing access to those documents to the other parties 136 Obligation to disclose documents (1) and (a) (b) Each party must disclose the documents that are, or have been, in the party's possession

are directly relevant to any issue raised in the pleadings; or are to be disclosed by order of the Court.

What is a document -Defined SCR 4 : document anything that records information is a document; Examples 1 2 3 4 Material in written or symbolic form. A visual image, such as a map, graph, drawing or picture. A photographic plate, film or microfilm from which writing or visual images can be reproduced. A disc, tape, or other medium from which writing, visual images or sounds can be produced.

 Process of disclosure:  1.Identifying doc that are amenable to disclosure  2.Providing a list of those doc to other parties to the litigation.  3. Providing access to those documents to the other parties  Some doc will be discoverable, but will be protected from production. existence of docs, but will claim privilege in relation to them.

means party will disclose

 Why disclose?  Realise weakness in their case & settle, rather than going to court.  Encourage more accurate decisions when the trial is held, through parties having more equal access to information  Ensures that findings at trial are not 'inaccurate' because parties have been taken by surpr ise by evidence at trial and cannot effectively challenge and test it  Encourage parties to settle their differences without the need for trial

Key Elements of Disclosure

All documents Which are directly relevant To the matters in issue in the case And are in power, possession or control Must be disclosed to the other parties And non-privileged documents Must be produced

 Possible to obtain disclosure against non -parties- SCR 146

Disclosure before commencing an action

   

SCR permit pre-action investigation under SCR 32 1) To find the name of wrong-doer 2) To decide whether to initiate proceedings 3) Anton Piller Orders

When are documents disclosed? Exchange is now only required after the settlement conference unless the court orders otherwise y R136(4) Early exchange might be ordered if it would assist in mediation/settlement y Lamson P/L v Ahden Engineering [1999] 2 Qd R 252 Exceptional Disclosure

Against non-parties
y SCR 146 y SCR 148

Before commencing action

y SCR 32

Acquiring names pre-action

Norwich Pharmacal v Customs and Excise Commissioners [1974] 1 AC 133 per Lord Reid
y to obtain the name of a wrongdoer so proceedings may be commenced y only against the wrongdoer y or someone implicated in the wrongdoing

145 Non-compliance with obligations of disclosure and production of documents

 The Court may make orders the Court considers appropriate to ensure that the obligations have been fully complied with For example, may:
y require the party, or another person who may be in a position to provide releva nt information, to appear before the Court for examination; or y require the party to answer written questions relevant to ascertaining whether the party has made full disclosure.

Which Documents Must be Disclosed?

Two tests:
y Line of inquiry y Direct relevance

After 4 Sept 2006 SCR 136(1): disclosure of documents that are directly relevant to any issue raised in the pleadings Before 3 June 2000 line of inquiry discovery
Line of Inquiry (slow, detailed & expensive process)

 Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano :

y All documents which are relevant to the matters in issue, or y which might lead to a line of inquiry by the other party might advance their case or damage the opponent s case y Reveal all doc. Whether or not they we re favourable to the party & if they were relevant.

Direct Relevant
136-Obligation to disclose documents Each party must disclose docs that are, or have been, in party s possession

 SCR 136(1)

(a) are directly relevant to any issue raised in the pleadings'

 SCR 136 demands disclosure of d.r documents. Therefore need to determine whether doc is d.r.  SCR 136 applies to all matters commenced after 4 September 2006  disclosure of documents that are directly relevant to any issue in the proceedings.  Before 3 June 2000 line of inquiry disclosure  RELEVANCE - Is a document (or all the documents within a certain class: Rehn) relevant to making the proof of an issue raised on the pleadings more or less probable ?
1) Line of inquiry Test  Requires a party to discover all documents which are either:

 Themselves relevant to the matters in issue, whether or not they are favourable to the party discovering, or  Which might lead to a line of inquiry by the other party to the dispute which might advance that party s case or damage the opponent s case  (slow, detailed and expensive process) 2) Direct Relevance test:  Limits discovery to documents that are directly relevant to any issue in the proceedings.
How to identify directly relevant documents?

 Look at pleading, see what issues arise on the pleading and determine whether a particular doc (or all documents within a certain class: Rehn) is relevant to making the proof of that is more or less probable.  Harris Scarfe Pty Ltd v Shoe Source Group Importing Pty Ltd: held that documents relevant to a circumstantial case are only directly relevant where there are discernible (apparent) pieces of other evidence to complete the circumstantial case.

 Board v Thomas Hedley & Co Ltd:  P alleged that he had contracted dermatitis from D s washing powder.  Applied discovery of docs re complain/other letters from clients both before and after pl contracted dermatitis  Would docs which set out complaints made by other customers about the washing powder need to be disclosed?  Under inquiry test? Yes, the docs could lead to a line of inquiry about problems with the problems.  Under direct relevance test? Docs only need to be disclosed if the other documentary complaints (abt the washing powder) contain info that would be relevant at trial to prove the particular issues in the case- that is, whether P s dermatitis was caused by the washing powder.  Lord Denning held: these docs would be relevant to whether the product was dangerous at all, and would therefore satisfy the indirect relevance test and should be discovered.  Rehn v AFL: Pl was injured when he slipped on a concrete disk set in the centre of Football Park . What earnings had he lost?  Doyle CJ: view that the docs that the AFL must produce are not D.R to the issue of loss of earnings capacity. The AFL is required to produce the contracts of a fairly large group of players. He acknowledge that within the gp of players there will be players who could be regarded as having earning capacity closely comparable to that of Rehn. However, does not make class of docs to be produced D.R. Merely means within class are some docs that might be or will be d.r to an issue on the pleadings.  Doyle CJ refused automatic disclosure of the contracts showing the earnings of other AFL footballers on basis that documents showing earnings of people in similar jobs are indirectly relevant  Order for disclosure for those documents then made in interests of justice  He applied for & succeed, should be disclosed

 Crt has said work out how much income u ve lost  Crt asked to determine are these direct relevant- Mr Rehn was directly relevant but other contracts were not. Payment to other footballers were indirectly relevance. Crt said these contracts were relevant- est. working environment would have earnt but doesn t prove what mr Rehn earn.  Might be contract players have similar skills or equivalent experience. The only person going to be directly relevant is his own contract, therefore party only need to disclose directly relevant.  Crt- they were only indirectly relevant cos entire class. However, they re not auto disclosed, but going to give access to them.

Quenchy v Logitech

 Pl. had problems with computers, Sharp said suitable for mobile use, subsequently turned not to be true.  Pl. applied for further claims other users were making. In the class were relevant, there might be some doc.  Argument that documents relating to warranty claims by other purchasers of Sharp Notebooks should be discovered  Doyle CJ held that these documents were not directly relevant to why the notebooks supplied to the plaintiff for broke down  Crt held: s58 a (old rule) would required computer were just faulty not the way they were used, some doc. In the class were relevant, there might be some doc.that demonstrate that particular laptop were not suitable for laptop use- so not directly relevance in the circumstance.  However, SHARP had produced an expert report - so they ve actually put in evidence & try to draw conclusion in those circumstance, if other side going to rely on that evidence, think other side should have access although does not satisfy s 58 test now 136 test, otherwise how are they going to pull apart the expert report.  Crt concluded under the current rule not automatic to disclosure, but got access to these case for different reasons reason- access to doc. Cos use expert report re lying on this info.--> try to ensure fairness in context not taken by surprise.  Doyle CJ: a doc is not directly relevant if it is merely a piece of circumstantial evidence.  Robson v REB Engineering Pty Ltd Demack J: found that direct relevant :
should not be taken to mean that which constitutes direct evidence as distinction from circumstantial evidence. Rather, d.r means sth which tends to prove or disprove an allegation in issue.

Harris Scarfe Ltd v Ernst & Young (No 4) 2005

 Pl claim of damage- negligence, misleading & deceptive conduct- alleging accountants for HS overstated of gp s assets and an understatement of Liabilities.  Bal. sheet showed that better financial position than they are.  Doc. Related to receivership were relevant  If prove/disprove a matter-looks like D.R  Or if merely chance may not be D.R, class was too broad therefore, no auto disclosure  Def claimed further & better discovery of all documents in relation to the receivership of the companies.
Held:

Directly relevant is to be given a relatively narrow meaning - governed by the pleadings.

A document will be directly relevant if it tends to prove or disprove a matter which is in issue. It is not directly relevant if it merely tends to prove or disprove something that may be relevant to a matter in issue, or if there is merely a chance that the document will prove or disprove a matter in issue.
Further Disclosure

Court can order disclosure of documents which are indirectly relevant to issues in dispute
y SCR 139(1)(a) 2006 y SCR 136 (1)(b) 2006

When will the court consider this?

y Rehn v AFL (2003) 227 LSJS 378; [2003] SASC 159 y Channel Seven v Lane and Hurley [2004] SASC 177 Confidential Documents

SCR 140 - Obligation to produce documents for inspection

(6) The Court may, on application by a party, relieve the party from the obligation to produce a particular document under this rule

SCR 144 - Orders to protect confidentiality of documents

The Court may make orders to protect the confidentiality of documents that are to be disclosed or produced under this Part.

Mobil Oil Australia v Guina Developments [1996] 2 VR 34

Possession possession a person is taken to be in possession of a document or object if (a) the document or object is in the person's custody or control; or

(b) it lies within the person's power to obtain immediate possession of the document or object or to control its disposition (whether or not the power is one that would be recognised at law or in equity);

 Terms possession , custody and power were considered in Roux v ABC and Palmdale Insurance v Grollo  Possession extends to docs that u are entitled to obtain (in hands of servants, agents, gov department etc.)  As obligation can extend to docs which have never been in the cu stody or possession of the partyparties to litigation must make full inquiries of all employees , agents and former agents about the relevant documents those ppl have in their custody, possession or power.  Roux v Australian Broadcasting Commission  Episode of 7.30 report involved discussion of the Accident Compensation Commission.  A claim in defamation was brought by Roux (the managing director of the commission).  The ABC made an application for discovery of docs created by the Commission and in its posse ssion after Mr Roux left the commission & was unable to access them.  Held: application for discovery refused. These documents were no longer in Roux s possession.
Form of Disclosure

List of all relevant documents in the possession  Each document must be briefly described so it can be identified by the other party to proceedings. .  The list of documents is completed on SC Form 20, accompanied by affidavit.

Description of documents :

 SCR 137 requires list of docs contain a concise description of each doc and a means of identifying it so later it is practicable to identify the doc w/ certainty & precision.  A crt may order further description on application, but there must be some reason to challenge a lawyer s claim to privilege.

Ongoing Disclosure obligations

 Parties are required to disclose directly relevant documents as they become available throughout the pre trial process, & up to & including the trial of the matter, & the handing down of judgment (SCR 136 (3)(b))  SCR 136(8)  Ongoing obligation  Parties are required to discover directly relevant documents as they become available  This obligation continues until judgment
Order for further disclosure

 SCR 139(1)(a)-(b): provide for disclosure of additional documents on the order of the Crt  Full crt of SC on has stated that the interests of justice test also applies to the grant of orders of discovery pursuant to SCR 136(1)(b). FWV Stanke Holdings Pty Ltd v O Meara

 58A.04 SCR 1987 The meaning of interests of justice was considered in Rehn v AfL; Channel Seven v Lane & Hurley- where crt might be prepared to order further discovery.  The requirement of interests of justice does not appear in the 2006SCR.
Citicorp Australia v Cirillo : Crillo sought further discovery of docs over which Pl had claimed LPP. Application was denied b/c of costs involved, & apparent unlikelihood of document of type D particularly wanted being identified. Documents which do not need to be disclosed

SCR 136(6):
(a) (b) (c) an investigative film made for the purposes of the action; documents that have been filed in the action; communications between the parties' lawyers or notes of such communications; (d) correspondence between a party and the party's lawyer or notes of oral communications between a party and the party's lawyer; (e) (f) opinions of counsel; copies of docu ments that have been disclosed or are not required to be disclosed.

Fishing
 Is making an application to see whether anything might turn up in the documents disclosed which may give rise to a new ground of claim or defence  Party does not know whether anything exists and is speculating as to its possible existence.
Moss v Frontier Holdings Pty Ltd [2005] SASC 144

Application for disclosure between institution of proceedings and close of pleadings HELD Broad categories of documents amounted to a fishing expedition. Discretion to order disclosure before the close of pleadings should be confined to documents which the plaintiff can reasonable particularise, but which he cannot properly plead without disclosure of documents relevant to those issues.
Southern Equities Corporation Ltd v Arthur Anderson Production of documents

 Court can make orders to protect the confidentiality of documents.  A party can refuse to produce for inspection a discovered document on the ground that the document is privileged SCR 136(7)  Privileged just means that it does not need to be described in terms which disclose its contents in form 20 list.  SCR 140(7) establishes that privileged documents do not have to be produced for inspection.

Other disclosure obligations

Expert witnesses

 Expert reports must be disclosed before the expert testifies SCR 160  This obligation does not exten d to other non-expert witnesses

Use of disclosed documents

 Documents disclosed & produced are produced only for the purposes of the proceedings before the court.  Not for production to the press for political or other purposes  Home Office v Harman and British American Tobacco Australian Services Ltd v Cowell - to find contempt where docs were leaked to the press even thought the docs in question had been read out in open court.  A court may override this obligation & order disclosure e.g where the documen ts are of importance in closely related proceedings- Springfield v Bridgelands.
Anton Pillar orders

 Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55 per Lord Denning

o Pre-trial order enabling the plaintiff to approach the defendant without notice and demand it hand up evidence which would likely otherwise disappear o Applicable where defendant might destroy evidence of its wrongdoing

 NB SCR 148

Ethics of Disclosure

 Parties required to disclose all documents, even those that are not favourable to their case  Penalties for failing to make proper search for & disclosure of documents.  Solicitors is under an ethical obligation to ensure that their clients attend to disclosure of all relevant documents full discovery is made.  Penalties:
o costs against the party or its lawyer, o proceedings to strike out particular claims or the whole proceeding, o proceedings for contempt where there is a failure to comply with a court order, o proceedings for perverting the course of justice (where documents have been intentio nally destroyed) o solicitor s misconduct may be brought before the legal practitioners tribunal.

Problems with disclosure - Destruction of documents

 British American Tobacco Australian Services Ltd v Cowell (representing the Estate of Rolah McCabe, deceased) [2002] VSCA 197
o McCabe sued the tobacco company and sought disclosure of documents o Company had destroyed the documents pursuant to document retention policy o VCA held action was only unlawful if done with the intention of defeating anticipated clai ms

 Channel Seven Adelaide Pty Ltd v Land and Hurley :  Def in a defamation case required to compensate victims- qn of determining his assets accurately.  Application for further & better discovery of certain classes of docs, and non -party discovery (super, bank, credit card statements) held that were not D.R.  Held that financial statements which might have shown whether Liddy was in possession of certain assets, were not discoverable under old SCR as they could not be shown, without other evidence, to be relevant even circumstantially to establishing Liddy s possession of the certain assets at the time in question.  Does not matter whether the document is strictly admissible at tria l  Modbury Hospital v o Loughlin  Applicant had radiotherapy which caused his lungs to adhere to his ribs. Subsequently had lung removed, which also require 6 ribs removed.  Sought pre-action discovery of medical records in order to determine whether he had a COA. Grant of pre-action discovery under R60SCR 1987.  Held: R60 allowed for a fairly broad form of discovery in comparison to previous rules. Was some possibility that he could begin claim against hospital - & should be sufficient for grant of discovery.  Southern Equities Corporation Ltd v Arthur Anderson  Facts: Application for discovery of documents from a non-party (PWC) in relation to a previous audit of the SECL companies. Application opposed by Pl in proceedings.  Held: Test of relevance under r60 the same as under general discovery r58A - must establish D.R on the pleadings. In this case some classes of documents (ie all audit documents for particular yrs) were too broad & could not satisfy this test.  Held Opening argument & expert reports cannot be used as the basis for establishing relevance-must be obvious on the pleadings.  Discovery cannot be used as a fishing exercise & no evidence that documents of the type sought actually existed.  Supposition that fishing expediti on strong- as extensive discovery already made including discovery from several non-parties.  Non-party discovery:  Williams Aviation Pty Ltd v Santos  Application for non-party discovery pre-action  Non-party discovery should usually only be ordered where  There have the only copy of documents ;and  The party seeking discovery has exhausted its rights of discovery against the existing parties.

 Hall v Alice Springs Vetinary Clinic Pty Ltd: O Leary J discussed requirement of NT rules for non party discovery, & formulated the following principles: 1. Cannot be for a class of documents. 2. Docs requested must be specifically described. 3. Is necessary to show it s likely, non-party has the docs in their possession, custody or power. 4. Necessary to show docs are relevant

Privilege & Immunity

Privilege/Immunity

 All docs that are D.R must be identified & described in the List of Documents.  Some documents will be privileged from production i.e party must disclose existence , but not required to allow other party see them. o Baker v Campbell (1983) 49 ALR 385 at 393 o Esso Australian Resources Ltd v FCT (1999) 201 CLR 49 at 64 -5 o Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (No.2) [2007] FCA 1445 at [19]  Immunity does not belong to govt determined by the court and can be raised independently of claim/waiver:Adelaide Brighton Cement v SA (1999) 75 SASR 209. y Immunity attaches to class of doc b.c what s contained within them. They either exist or don t. y Immunity belongs to the public, protection of the doc b/c there s a public interest in maintaining confidentiality , not owed by gov and gov can t waive it bc in public inter est therefore no way to waive immunity. y Owed by the public, whether in public inter est is sth crt will determine.
DPP (WA) v Bennett & Co y Where documents subject to public interest immunity have been inadvertently disclosed to solicitors acting for another party the court may injunct the solicitors from using the information and from continuing to act in the matter.

Public Interest y y y Immunity from production on the grounds of public interest. Party seeking production must show material necessary for dispos ing fairly of the action Onus on the party resisting production to establish public interests against disclosure which outweigh the interests of justice.

 Privilege can be waived by the person whose benefit it exists (eg the client in LPP) y Privilege can be waived by that person expressly or by implication. --> certain actions by the holder of the privilege, where those actions are inconsistent with maintaining privilege over the doc in question, can result in privilege being waived( means doc is no longer privileged & must be produced to other party) y Waiver occur through disclosure of the privileged material beyond the confidential lawyer -client relationship. y Many of principles abt attachment & waiver of privilege in doc are clearly applied by the court in the recent case of :Cadbury Schweppes Pty Ltd v Amcor Limited.  Immunity to access exists irrespective of the views of any individual & applies once the crt determines that in the public interest immunity must be granted : Sankey v Whitlam

 A party can refuse to produce for inspection a disclosed document on the ground that the document is privileged
o privilege against self-incrimination, o legal professional privilege, o privilege protecting settlement negotiations

 Or is subject to public interest immunity

Grounds of privilege: y y y y y y y y y Legal Professional Privilege Litigation privilege Advice privilege Public interest immunity or crown privilege Privilege against self-incrimination Parliamentary privilege Negotiation privilege Marital privilege Statutory privilege

 A party claiming privilege for documents must explain the basis for the claim of privilege in the Form 20 List of Documents.  Privilege belongs to individual and can be waived. Scope of Legal Professional Privilege At common law, LPP prevents access to information, but once access is obtained privilege is lost: R v Tompkin Nonetheless other doctrines eg equitable doctrine of confidence or court s discretion to exclude evidence illegally obtained can prevent use.  If doc loss confidentiality, then often loss privilege. E.g Tompkins- (criminal case) - charge w/ handling stolen goods including stereo with loose button. Denied he had stolen gds,. during the course o f the trial to his counsel - he said he glued the button back on. He or his counsel dropped the Note that he written and was found on the crt room s floor,. So opposing counsel present T written note when he was on the stand, stating that he glued the button back on after he has denied ever having the st ereo. Crt determined that note was privilege, at the point where it was found on the floor, it was no longer a confidential communication and opponent was entitled to use it at that point. how it was obtained is irrelevant

Legal professional privilege

Its purpose is to encourage full and frank disclosure of information between clients and lawyers, and to facilitate the conduct of litigation o Baker v Campbell (1983) 49 ALR 385 at 393 o Esso Australian Resources Ltd v FCT (1999) 201 CLR 49 at 64 -5

o Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (No.2) [2007] FCA 1445 at [19]

Scope: At C.L, LPP prevents access to information, but once access is obtained privilege is lost: R v Tompkins (1977) 67 Cr App R 181. Nonetheless other doctrines eg equitable doctrine of confidence or court s discretion to exclude evidence illegally obtained can prevent use.
Two Limb of LPP:

Legal professional privilege applies to a confidential communication involving a lawyer and client, the dominant purpose of which is either:
(a) to provide or obtain legal ad vice; or (a) (b) for use in litigation. --> Communication b/w client & lawyer for use in litigation is known as litigation privilege

These are commonly known as advice privilege and litigation privilege.

Common Principles

The privilege applies when the dominant purpose of the communication was to provide or obtain legal advice or for use in anticipated of exiting legal proceedings
y Esso Australia Resources v Commr of Tax (1999) 201 CLR 49

A document created for a the purpose of a privileged communication can be privileged even if it was never used for that purpose
y McEacharn Operations Ltd v CE Health Underwriting (No 2) (1995) 1 QD R 363

A document dopes not lose its privileged status just because it also contains non privileged material  e.g a letter of advice that s written by a lawyer to a client could be subject to pri vilege even though never sent. (so he wrote it for a privilege purpose, was going to be confidential b/w lawyer n client for dominant purpose of giving legal advice)
if doc created for a privilege purpose then its privilege , even if there s no privilege material within that doc. How do u deal with it? In terms of disclosure and production ? Can disclose non-privilege section and hide privilege section  If you have a non-privilege doc and u take it for a privilege purpose then the doc can attract p  -it s the purpose for which the doc. Or copy of the doc that s made which is t he critical factor , have to look at purpose of doc. Made and has to be a dominant purpose of getting legal advice or the conduct of litigation.  Pratt the FC held that confidential report which a client commissions from its acctatns in order for the client then to seek informed advice from its lawyers may be privileged, even though the acctants are neither the client s agents nor ever communicate directly w/ the client s lawyers. y

 Crt held that similar communications made b/w lawyer & a 3 rd party could not be privileged under the advice privilege  Dalleagles v ASC: ASC sought discovery of various documents. Dalleagles claimed privilege applied to the documents. Held: where communication b/w a lawyer & client is of a professional nature it is prima facie privileged. y Privilege extend to written material that (if disclosed) would tend to reveal the privileged communication. y Written material must have been created for the purpose of fulfilli ng the solicitors engagement & be confidential y Any communication which is part of criminal or fraudulent activity is not protected by privilege
The privilege applies when the dominant purpose of the communication was to provide or obtain legal advice or for use in anticipated of exiting legal proceedings o Esso Australia Resources v Commr of Tax (1999) 201 CLR 49 y A document created for a the purpose of a privileged communication can be privileged even if it was never used for that purpose o McEacharn Operations Ltd v CE Health Underwriting (No 2) (1995) 1 QD R 363 y A document dopes not lose its privileged status just because it also contains non privileged material

Litigation Privilege
 How likely does litigation have to be? There have to be some objective, some reason, a likely outcome, reasonably anticipated. May not be that obvious, depend on factual context.  Apply when there s proceeding on foot.  Applies when proceedings are underway Or when proceedings are reasonably anticipated requires an objective assessment that there is a reasonable likelihood that litigation will be initiated i.e form 33, about to be sued, starting preparation, that doc arise from it, done for dominant purpose, can be covered by litigation privilege. y ACCC v Aust Safeway Stores (1997) 153 ALR 393 Cannot be a vague anticipation or a mere possibility y Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 322
Docs covered by litigation privilege include: y Draft pleadings y Statements from potential witnesses y Surveillance film taken for potential use in litigation

Advice Privilege
Applies when the communication was made for the purpose of giving or seeking legal advice The lawyer must be acting in their capacity as a lawyer Creates potential problems for in-house counsel and government lawyers

y Seven Network v News Ltd

Examples of documents covered by advice privilege include:

y Instructions and briefs to counsel y Opinions of counsel y File notes made by lawyers during meetings at which advice was sought or provided y Letters between lawyers and client seeking or giving advice

Communication with 3 rd Party

Litigation privilege extends to third party communications whereas legal advice privilege is confined to communications between lawyer and client. Third party communication made when litigation not anticipated are not privileged
y Wheeler v Le Marchant: crt said when a lawyer seeking to give advice to his client consulted with an architecture, to find out whether they can sue someone, that advice is not covered by advice privilege. WAS lawyer asking architecture

However Pratt Holdings v Commissioner of Taxation held : document created by a third party on instructions from a client and for the purpose of enabling the client to fully instruct its legal counsel could be privileged if communicated to the client rather than the lawyers
At what stage can privilege be invoked?

At common law, privilege extends to any process aimed at obtaining access to information: Baker v Campbell (1983) 153 CLR 52 Under Commonwealth Evidence Act, statutory privileges only apply when evidence adduced at trial. Otherwise common law continues to apply.

Onus of privilege
Onus is on the party seeking to resist access on grounds of privilege. However, where automatic discovery is made and privilege is claimed the bona fides of this claim will be accepted. Evidential burden upon the opponent to rebut this prima facie presumption. Once there is some credible evidence which raises doubts about the claim to privilege then the party claiming the privilege must establish grounds for the claim on the balance of probabilities Southern Equities v Arthur Anderson (No 6) [2001] SASC 398 U bear persuasive burden, if it is challenged by your opponent , then they bear the evidential burden to rebut that presumption that your claim is legitimate , so assuming you re doing the right thing, they want to challenge- so they bear evidential burden of proving that it s not a legitimate claim if they can satisfy that outcome, then it s you to convince the court that s ...

 that s only evidentiary burden, once there is credible evidence that raises doubt about t he claim of P that u made then u as the party that s claiming bear the persuasive burden of establishing to the crt that it is in fact a P doc. (bona fide of your claim is assumed, if it is challenged by opponent they have to produce some evidence raising doubt as to your Privilege claim.) then u have to establish on bal of probably that it is in fact a legitimate P claim. Mann v Carnell: crt was asked to determine whether info has been disclose beyond client and lawyer relationship. if hand to everyone in the world, why say it is important now. It was a piece of legal advice, from a lawyer to a client, the problem was how fa r has it been distributed, Mc Hugh said hasn t been disclosed beyond relationship, it has been a legal advice to the government. The client was body politic, wasn t distribution beyond, wasn t waiver for that reason. Had to understand the client more broadly.
y y crt- it s not as important doc has gone beyond client and lawyer. . A test of unfairness, Disclosure was outside the scope, rest of crt said. Let s work out how they ve behave in a way that s maintained privilege.

Disclosure to 3 rd Parties
Disclosure beyond the confidential lawyer client relationship often gives rise to arguments for waiver of privilege Mann v Carnell (1999) 168 ALR 86
y Per McHugh J - whether the material has been disclosed beyond the solicitor/client relationship. Not whether there is unfairness between the parties.

What might be a Privilege doc to a 3 rd party. When we once had what was a P doc and now handed it out beyond the client lawyer relationship , u ve given it to a 3 rd party - whether that effects the P status of the document. As tompkin pointed out if you don t have c onfidentiality then it s very difficult to have a claim of privilege. A P claim is there s sth about this document that s sufficiently important that it should not be required to disclose even thought party to litigation has an interest. Mann v carnell concerns distribution of a no. of do c distributed by minister to a no. of parliament. It had been a P document, covered by advice p,
y the problem was, how far has it been distributed, has it been so far beyond the lawyer client relationship that it was no longer privilege that u can no longer justify and prevent access context of the case. y Mchugh J said it haven t been disclosed beyond the lawyer client relationship b/c u have to interpret to the client correctly, it has been a piece of legal advice to the gov, and they say that the client was a body politic and the distribution between the body politic wasn t distribution beyond the client , so there wasn t waiver for that reason he said it wasn t the particular letter that was addressed to , u had to client more broadly . y Crt said it s not as important whether the doc has gone beyond lawyer client what is important is a test of unfairness , a test of whether or not there has been behaviour in relation to a particular doc that was once p. That would be inconsistence with the maintenance of that P. Some of the decision

making was based on whether the doc was disclosed beyond the lawyer & client relationship . Principle they applied- whether or not u loss ur privilege depends on what u ve done with the doc ., and the test is have u behaved in a way that maintenance of the privilege claim is inappropriate, have u behave in a manner that s inconsistent with the maintenance of a P claim. y McHugh was in dissent, he said there wasn t an issue w fairn ess, the only problem was disclosure beyond lawyer/client relationship to a 3rd party, privilege is loss . He said in this case P was outside , y Rest of the crt said let s look at who the client is , let s work out if it has gone beyond it, but ultimately let s work out, in relation that s its inconsiste nt to now maintain p.

Common legal interest-i.e 2 ppl suing same Def.

However if parties have a common legal interest it may be inappropriate to hold that disclosure amount to waiver of privilege y Bulk Materials v Coal and Allied Ops (1988) 13 NSWLR 689. If u have a common legal interest- ie2 pl. Suing the same def. Person A and person b was both injured, suing car person c. Person a and b have a Common interest, even though they may have separate legal counsel ,exchange of doc. Between them are unlikely to be a behaviour that s inconsistent with a legal claim of p b/c they re both suing person c and the same facts, common legal interest, they both going to be running the same kind of claim. If u do sth that s inconsistent with a priv. claim . i.e mr tompkin drop note on the floor or accidently attached to a fact and send it to someone

Application for Return of Privilege

When access has been obtained & focus turns to the qn of whether in equity a party can apply to get the doc back again.

Equitable doctrine apply balancing test looking at: y Manner in which document obtained y Relevance of document y Would document be disclosed anyway y Has opponent innocently relied on document? Webster v James Chapman & Co : shows that return will be ordered if it can be shown that fairness so demands. If Mistaken disclosure is obvious & no action has been taken upon it then generally return will be ordered (Citicorp v Cirillo) Equitable doctrine- suggest if party has loss confidentiality in the doc, can try to prevent their use. This is an equitable claim, general principle that if you re going to seek an equitable claim from the crt u have to approach the court with clean hand .- sort of things crt will consider Whether to grant u this equitable remedy, to give u back your privilege despite the fact u did sth with ur doc, it was inconsistent w/ ur p claim.. Wat crt will consider Basic rule is fairness. Webster v James-demonstrates that^. An expert report was accidently sent to other side by Pl. Crt was asked to determine what has happened to this, however, it was beyond the lawyer and client relationship, held, yes, it was behaviour inconsistent , and privilege claim has been loss.

 Crt held: p in that privilege in the draft expert report was prima facie lost. However the party which had accidentally distributed the report could apply for the return of the confidential document. - crt should bal interest of the parties & consider he circumstances of disclosure. On facts of case, it was held: no injustice to the Pl, IF the dr aft report was in evidence as well as the final copy. Since the conduct of D s case would be significantly embarrassed if the report could not now be used, & it had come into their possession through no fault of their own , the confidential doc would not be returned in this case. Party could apply for return of confidential ity in that.. In WEBSTER court held no injustice to the pl, they said it was accidently provided to other side, not purposely, and it was a doc they wouldn t get anyway, maybe should give confidentially back, would have given final version of expert report. Crt said why should give u equitable remedy when there s not really disadvantage to you. Crt said, conduct of case was other side. If crt was going to grant.. Their whole preparati on would be for nothing. And they ll be sent back.. They didn t know , they have innocent have relied on it and prepared their case based on it. Crt to determine fairness- if was to balance party. That idea of fairne ss.
Fairness Test Goldberg v Ng (1995) 185 CLR 83

HC held proceedings before the Law Society and the court were essentially the same matter So that disclosure by the client (even though limited and confidential) in the Law Society proceeding to the party's benefit made it unfair to assert privilege when the material might operate to the party's disadvantage in the other court proceeding.
y y Operative question whether conduct of the client can be regarded as inconsistent with continued maintenance of the privilege Deane, Gaudron J said, they were considering whether there was a wavier .. Should cease, regardless of intention of party. Fairness required that the party should cease What happen if u accidently disclose a doc - an equitable application- it s about fairness, if ur going to convince the crt, u need to est that u were not at fault , if doc was disclosed by accident, it was attached to the back of the facts it was put in the production folder, it wasn t a deliber ate, crt is more likely to give confident back. Where the has been inadvertent disclosure- haven t intended to give them, does that amt to waiver ? Crt has consider all circumstance of the case.

Mistake or Involuntary Disclosure Where disclosure is mistaken or involuntary courts seem reluctant to imply any waiver and a party may use the equitable doctrine of confidence to seek return of the material. This may not be available if the material has been acted upon or it is otherwise too late to restore the status quo: y State Bank v Smoothdale (No 2) (1995) 64 SASR 224,

Hooker Corp v Darling Harbour Auth realised what happened really quickly, b4 they can used it (other side). Was it done inadvertently or detrimentally. y Has the party approached the crt, done everything that they possibly the could? Yes.If it s partial disclosure

Partial or Limited disclosure In what circumstances will partial or limited disclosure amount to waiver? See : y AG (NT) v Maurice (1986) 161 CLR 475 y Mancorp v Baulderstone (1991) 57 SASR 87 y SAFA v Bank of NZ (No 2) [2002] SASC 10 Disclosure required by Law

Where a party makes partial disclosure of privileged material because it is required by law there may be an imputive waiver of the privilege over other parts of the material where fairness requires that the court or the other party should b e able to check that proper disclosure as required by law has been made o R v Haydon (No 5) [2005] SASC 19 : o Gov department- where u have to exchange document. Discussed in Haydon, was charged with 2 murder, haydon applied to the DDP , o Does DDP have to give def. or accused access to document of this kind, should they be required to.. Legal obligation to disclose this inform ation, was that information privilege, the DDP is a lawyer. Undertaken legal role. But should it be disclosed. Yes, the obligation of disclosure overruled the privileged, was to overrule. If it s not clearly phrased to do so. Here it was sufficient clear that it was an obligation , Use in Evidence

If the info is disclosed in the statement, or revealed on the stand, then it s no longer att ract LPP, there would be an implied waiver,

R v Haydon (No 5) [2005] SASC 19

 Privilege against self-incrimination A party who is not a corporation may refuse to disclose material where the exposure would increase the risk of prosecution for a criminal offence or of action for the enforcement of a civil penalty.
The privilege in aid of settlement

Arise during settlement negotiations, parties have disclosed materials. Applies to concessions and/or admissions Which are made in the course of settlement negotiations.

 The C.L privilege applies only to admissions made during settlement negotiations & Does not extend generally to all disclosures made during negotiations
y Field v Commissioner for Railways for NSW (1957) 99 CLR 285

A rule of admissibility is enacted in s 67C SA Evidence Act and s 131 UEAs as well as other legislation encouraging ADR (eg s 65(6) Supreme Court Act).

Confidential Information
SCR 140 - Obligation to produce documents for inspection
(6) The Court may, on application by a party, relieve the party from the obligation to produce a particular document under this rule

SCR 144 - Orders to protect confidentiality of documents

The Court may make orders to protect the confidentiality of docu ments that are to be disclosed or produced under this Part.

Mobil Oil Australia v Guina Developments [1996] 2 VR 34

Enforcement Discovery Obligations 145 Non-compliance with obligations of disclosure and production of documents . Court may make orders the Court considers appropriate to ensure that the obligations have been fully complied with

For example, may:

y require the party, or another person who may be in a position to provide relevant information, to appear before the Court for examination; or y require the party to answer written questions relevant to ascertaining whether the party has made full disclosure. Ethical Duties

Penalties:
y costs against the party or its lawyer, y proceedings to strike out particular claims or the whol e proceeding, y proceedings for contempt where there is a failure to comply with a court order, y proceedings for perverting the course of justice (where documents have been intentionally destroyed) y solicitor s misconduct may be brought before the legal practitioners tribunal.

Evidence Act 1995-(Cth) Privilege regime

 the Act provides a statutory regime in relation to client legal privilege in proceedings before Fed or ACT courts.  Advice provided by in-house counsel y Where the in-house counsel involved did not hold a practising certificate. The Act makes it clear that such advice will be privileged so long as advice is sufficiently independent, regardless of whether or not the in-house counsel holds a practising certi ficate.  Confirmation that privilege belongs to the organisation y When a co. obtains legal advice, it is the company that can maintain a claim for privilege.  Advice provided by foreign lawyers y Generally communications w/ foreign lawyers where the dominant purpose of the communication is to provide legal service
Ritz Hotel v Charles of the Ritz In course of cross examination- D asked qns of an expert regarding instructions they were given by Pl. whether those communications (b/w representative of pl & expert) are privileged? Held: LPP covers communications b/w party (or its representative) & a 3 rd person if they are made w/ reference to pending litigation. Ie preparing evidence for trial y y LPP excludes witness providing info re the preparation of evidence only if they owe a duty of confidentiality to the party. This could be a contractual term regarding confidentiality in an expert contract etc. So interview of a potential witness is unlikely to be covered by privilege b/c such an obligation of confidence is unlikely to exist.

J-Corp Ltd v ABLF Claim of a secondary boycott in contravention of the TPA, including that picket lines were established in front of building sites to hinder the delivery of gds etc. Applicant sought discovery of video of a picket l ine which was taken in anticipation of legal proceedings. Held- video was not privilege b/c it was not confidential in public. Wheeler v Le Marchant i.e it was real evidence of events which occurred

 Letters b/w a solicitor & surveyors in a building dispute were held not to be privileged if obtained by solicitors prior to them having any reasonable expectation of legal proceedings.
Hooker Corp v Darling Harbour Inadvertent disclosure in the course of an accelerate discovery may not amount to waiver. The crt must consider whether, in all the circumstances, it is fair to allow the claim of privilege to be maintained. Privilege in disclosed documents could still exist if an action begun for their return. In this case the notes accidentally discovered had not been used, so privilege could still be recovered.

Mancorp v Baulderstone Witness refreshed memory from proof of evidence & opposing counsel sought to examining the proof. Held: if the doc used to refresh memory is privileged then the privilege is lost once the relevant evidence is given. If the doc. Which is used to refresh memory is not privileged, then opposing counsel is entitled to call for it & inspect it. Hamdan v Minister for Immigration Gov notice to a solicitor to obtain the mobile no. of his client who was an unlawful non -citizen . Gov argued that the no. was a mere collateral fact to which privilege did not attach, or that privilege does not extend to facilitating client s evasion of the processes of the law. HeldCase law establishes client s name is not privileged. Address would be privileged if was part of communication for purpose of seeking legal advice. Is not privileged if mere collateral fact . In this case mobile no. is provided in confid ence in connection w/ requires for legal advice & for purpose of obtaining that advice, & in circumstances where revealing it would act as a real deterrent fro seeking advice. Liberty Funding Pty Ltd v Phoenix Capital Ltd Facts: Application by Liberty to use an affidavit (a discovery affidavit) filed in a previous proceedings. Argument that the affidavit was subject to LPP. Held: An affidavit drafted for proceedings is confidential & subject to LPP until it s filed/served. At that pt it loses its confidentiality & is no longer covered by LPP

Other Pre-trial measure

 Circumstance where further pre-trial steps are needed to protect the parties interests or enhance disclosure processes normally available.  Usually only permitted by order of the court. Means pa rty seeking to utilise the particular measure must persuade the crt that it would be in the interests of justice to allow them to do so.
Pre-trial you need to determine what evidence you want to prove your case and go out and find it How to use Pre-trial Process

These pre-trial processes can be used in 2 different ways: y Investigatory to get information y Protective to preserve position pre-trial or protect information or evidence

Investigation Pre-trial Methods

Notice to admit require the other party to admit or deny specific facts or documents Interrogate ask the other side questions about what happened Subpoenas get access to documents Non party discovery get documents from other people Inspection
get access to and test things

Medical reports examine parties

Examination by written Qns (INTERROGATION)

A party can issue a series of qns to opposing party view of determining additional facts than those disclosed by way of disclosure. Pre-trial examination by written questions SCR 150 152 2006 y Previously known as interrogatories Must relate y to a question in issue (ie same test for discovery) y not to credit Can only be used as a last resort
Who can u question

CAN ONLY BE USED AGAINST A PARTY TO PROCEEDINGS. This may include an employee of a party or a member of a party in the case of corporation or organization or government authority.
What questions can be asked?

 Written questions may only seek disclosure of any facts that are relevant to the issues in dispute in case.  Relevance is determined by reference to the pleading.  Qns can be on d.r facts and upon indirectly relevant facts where those indirect facts provide necessary links in the chain of evidence to est the case disclosed on pleadings by the interrogating party.  Abuse of process may be shown where facts sought are not sufficiently material, or constitute a fishing expedition.
Basic rules: (a) Qns on the content of documents Qns may be issued to est the contents of lost documents, but not on discovered docs : M&S Constructions Pty Ltd v Skewes. (b) Qns on conversation Qns may be permitted as to the effect of conversations - Kadlunga v ETSA (c) Qns as to state of mind A party may be qned as to its state of mind or knowledge at the relevant time-Aspar Autobarn Cooperative society & others v Dovala pty Ltd (d) Obtaining the name of witnesses Qns will not be allowed which seek to simply obtain names of witnesses

(e) Asking qns where the answer is already known Qns may be allowed on matters which are known to the party submitting the qns - objective to obtain admissions on those matters: S.A v White Situation to use questions 1. To develop a chain of facts (Barbarian v Koithan) 2. To establish matters peculiarly in the knowledge of a party and not available by other means (Aspar Autobarn) 3. To establish the content of lost or destroyed documents (MS v Skewes) Barbarian v Koithan: Is an example of the use of written questions / interrogatories establishing steps in the chain of facts 1. Were the premises occupied by tenants? 2. If yes, state the names of each tenant and the periods of occupation. 3. State whether any of the said tenants were office bearers or members of the Barbarian MC club. 4. If yes, state the duration of tenancy of each such member or office bearer. Aspar Autobarn:Facts peculiarly in the mind or knowledg e of a party

Alleged taking of and use of a business name Relevant breach required KNOWLEDGE that another person had imminent intention of using the business name Peculiarly in the knowledge of the respondents
18 Did you, on or before [date]

(a) become aware (b) believe (c) suspect (d) hear, or (e) read that the applicants herein or any one of more of them (and if so which of them) or any director of partner of or in any one or more of them (and if so who) (i) was using (ii) proposed to use (iii) was contemplating using [the relevant business name].

19 If yes to any parts of interrogatory 18, (a) when (b) and how did you first come to become aware, believe, suspect, hear or read of the said matter inquired of?

Answers to written questions

 Party must answer based upon actual knowledge and upon belief inferred from knowledge or circumstance- Sharp v smail.  A party is under obligation to make inquiries in answering the qns - eg, officer authorised to answer interrogatories on behalf of corporation must m ake inquiries of persons within the organisation likely to know the answer to qns posed. Agents & employees must also be consulted if appropriate Sharpe v Smail.  Party should not be interrogated on a qn which can onl y be answer by consulting an expert and repeating the experts opinion- Rofe v Kevorkian  Kadlunga v ETSA (No2): issue whether employees of ETSA, who had expert qualification & knowledge, could answer written qns seeking expression of expert knowledge. can decline to answer the qn b/c he lacks expert knowledge required to give proper answer.  A party may not administer interrogatories that call for expression of expert opinion, rather than statement of fact. 
If a party is interrogated on a subject and it is clear that the answer requires a factual answer based on expert knowledge, then may decline. But if sum total of organisational knowledge enables answer to be given, then it should be, even if it has the c haracter of expert opinion

 Even an expert cannot be compelled to state an opinion in answer to written qns.  Where experts are interrogated they can only be questioned as to their knowledge, not their opinions- Kadlunga v ETSA
Knowledge of party Includes:

Corporate knowledge Organisational knowledge Organisation or company has obligation to locate and question employees etc who have knowledge of the matters asked
Knowledge of what?

Of FACTS Not OPINION;CONJECTURE(guesses) or CONCLUSIONS FACTS that were known and ascertained by the person

Requirement for leave of crtParty may only issue questions with the leave of the court, and leave is given only where significant prejudice(unfairness) would otherwise result & it is in the interests of justice. y It is precondition to any order that all other avenues for obtaining the info sought have been exhausted (Pearce v Hall) Permission should be refused where the proposed questions are fishing & speculative ( Lane v Channel Seven Adelaide pty Ltd )

Objection to answering questions May object answering written qns on following grounds : y That the questions posed are based on an assumption y That the questions relate to facts that have already been admitted y That the questions are about law y That the questions are framed too widely y Seeking further particularisation of the case y When they not bone fide purposes e.g, are issued with a view to gathering info for commercial

y Where there is a real and reasonable apprehension of prosecution if the party answers truthfully y Where interrogatories are oppressive or vexatious by virtue of vagueness, consistent error or poor drafting, overly long. Answers

 Answers to written qns under SCR 150 are sworn on oath, and can be tendered at trial where answers contradictory to qns given in evidence.
SCR 152 Answers may be tendered at trial

The Court may receive a respondent's response to an interrogatory, or part of it, in evidence at the trial.

NOTICE TO ADMIT facts or documents

SCR 156 - 158 Several purposes
To avoid tedious proving of documents at trial To avoid tedious proving of non controversial facts at trial To obtain admissions to facts upon which you wish to build your case

 SCR 156 A party may give notice to another party (a notice to admit) asking the other party to admit a particular assertion that the party makes for the purposes of the action.
(2)The assertion may be (a) a statement purporting to be a statement of fact; or (b) an assertion of the authenticity of a particular document; or (c) an assertion that a particular document is, for stated reasons, relevant to the subject matter of the action; or (d) an assertion that a particular document is, for stated reasons, admissible in evidence at the trial of the action. SCR 156 A party may give notice to another party (a notice to admit) asking the other party to admit a particular assertion that the party makes for the purposes of the action. (2) The assertion may be

(a) a statement purporting to be a statement of fact; or (b) an assertion of th e authenticity of a particular document; or (c) an assertion that a particular document is, for stated reasons, relevant to the subject matter of the action; or (d) an assertion that a particular document is, for stated reasons, admissible in evidence at the trial of the action.

MICRO facts: eg the steps in Kadlunga, or the step by step progress of reasoning in Kadlunga MACRO facts: the ultimate fact that it WAS Barbarians driving up and down the street, that it WAS stupid to put copper wires in hot areas
Notice to admit facts- Steps 1. Party requests admission of a fact or authenticity of document: 2. Other party either ADMITS the fact or authenticity of doc OR Denies the fact or authenticity of doc and PROVIDES REASONS for denial OR Says they cannot admit or deny and explains why

 Notice to admit may address facts or documents.  (a) Documents:  A notice to admit can be used to require other party to admit the authenticity & admissibility of docs. Only relevant docs may be referred to.  Copies of all docs referred to must be annexed to the notice to admit.  If party decides not to admit the authenticity and admissibility of a doc, they must provide cogent reasons for the same, or incur a cost penalty commensurate w/ the cost to the opposing party of proving the docs.

 (b)Facts  Similar rules apply to admission of facts. Provided a fact is relevant to the matters pleaded it can be subject of a notice to admit.  (c)Proofs of witnesses  A party may serve a notice which exhibit proofs of witnesses on either fact OR opinion,
Response to notice to admit May object to respond to a Notice to Admit a fact on the basis that it is: y Law y Opinion y Vexatious y Irrelevant to matters in issue on the pleadings Special rules on admissions

Admissions are binding on the party making them and cannot be withdrawn or amended without leave of the court
ADMISSIONS can be made in:

Pleadings (defence/reply) Response to notice to admit Interrogatories Can also make admissions by letter or via agents  Example (Kadlunga)  Admit that the def was informed by its Chief Engineer in June 96 that copper wire transformers posed a risk in hot weather as they had a melting point of 73 degrees Celsius  Denied the defendant was advised that the transformers had a m elting point of 73 degrees but was also advised that this did not pose an appreciable risk  Thomson Brindal Ltd v McLachlan Lander J:suggest that the only grounds for refusal to admit a doc were those contain in SCR 54.02(1)(a) and (b) which do not allow a party to refuse to admit the authenticity of a doc b/c the party does not know whether the doc is authentic. The party must make a genuine assessment of whether the doc is authentic or not. could rely upon the ground improper.  Southern Equities Corp Ltd (in liq) v Bond (No 2):
Effect of admissions  SCR 157: An admission is binding on the party making it. Is confined to proceedings. Withdrawal of admissions  Admissions made as part of pleadings, in response to a Notice a Notice toAdmit, , can be withdr awn only with the leav of the crt:SCR158

 In determining whether to permit w/drawal of admission the crt will consider the justice b/w the parties, particularly consequence and extent of the other party s reliance on the admission Hamilton v ATC
Costs of unreasonable failure to admit SCR 156(10) requires a party unreasonably failing to admit facts to bear the costs to the other party in proving them.

MEDICAL EXAMINIAON OF PERSONS (a) Blood Tests SCR empowers the crt to require a person who is a party to paternity proceedings to undergo blood testing for DNA analysis. (b) Medical Examination
A party in which their medical condition/health is an issue to submit him to medical examination to give reasonable notice.  Examination can only relate to issues raised in pleadings.  Parties objection to undergo examination must be balanced against the reasonableness & value of the examination: Stace v Cth  Nature of examination may include testing injections & psychiatric evaluation: Perpetual Trustees Ltd v Naso:  possibility of damage to frontal lobes of the brain & mentions that drainage of hydrocephalus was necessary in the early stages of the respondent s treatment. Also noted, computerised tomography had revealed some loss of brain substance in the from of the brain. It was the psychiatrist s view that at least computerised tomography and magnetic imaging should be utilised to check that possibility at an imaging level and neuro -phsychological testing would be a good idea.  Stace v The CTH, that examination is to be understood in light of normal medical practice & may involve tests & injections. The procedures contemplated by the psychiatrist prima facie appear to be within such an understanding of examination.

Witness Statements SCR 106:All reports of expert witnes ses must be discovered Other ways of obtaining information about and access to evidence

SCR 248 preservation and testing of property the subject of or connected with proceedings by court order

Gathering Evidence SCR 147

Taking samples Recording observations Photos or films Tests analysis or experiments

 Power to enter premises and seize Preservation of property (subsumes Anton Pillar Orders; SCR 148)
SUBPOENAS

     

Are docs issued by the Crt at request of 1 or the other party, & are used to compel witnesses to attend at crt to give evidence, or to produce documents at trial of matter Requires party served to produce documents or things to court OR to give evidence May be issued pre trial to bring property (usually documents) into court jurisdiction so parties can inspect them. E.g medical notes, documents held by a 3rd party 172: sets out procedures for use of subpoenas in trial SCR171 -183 E.g Crt might issue a subpoena for purposes of arbitration proceedings under the Commercial Arbitration Act on application by a party to the proceedings, supported by an affidavit setting out the reasons justifying its issue. A party may also use a subpoena pre-trial- to compel production of docs from a non party. If subpoena is granted, crt will order non party will be ordered to produce the docs to the Judge issuing the subpoena, or the Court Registry, and then orders enabling both parties to have access to the docs.

Exchange of witness Statements SCR 117 general power to order proceedings order affidavits of witnesses outlining evidence in chief to be filed pre trial In some jurisdictions exchange of witness statements is mandatory. In others it is commonplace by consent or order of the court. AMENDMENT OF PLEADINGS Pleadings filed by parties be amended to reflect the parties changing understanding of the case. SCR 54- identify Circumstances that parties may amend pleadings Why can t a party amend? A party can t exercise right to amend pleadings as to: Withdraw an admission already made in a pleading -once admission is made, opponent will reply on it and prepare its case. If party w/draw an admission w/out gd reason, opponent may be seriously prejudiced. Add a COA that is statue barred(ie that are out of time to initiate) may have an adverse impact on a Def, who is entitled to assume that once a limitation period has passed, he will not be challenged on that particular issue: Weldon v Neal To Introduce a new Def against whom action is statue barred ((same reason as above) An application must be made to the crt to amend pleadings in any of these circumstances. Consequential Amendments SRC55 : when a party amends a pleading, whether by right or leave, other party may make consequential amendments to its own pleadings within 14 days. A longer or short period may be set by crt.

Amendments& case flow management

 Amendments to pleading at any time will extend the time to complete an action  If Pl amends the SOC, Def will need to amend the defence, The reply may also need to be amended.  Amendment to a Defence may have similar impact on 3rd parties & Pl.  Parties may need to engage in further discovery & collection of evidence.  Inclusion of new info late in proceedings can be very prejudicial to an opponent.  SCR 103- party may not intro evidence of facts, or new issu es, which should have been but were not raised in pleadings. crt retains discretion to allow such evidence or issues to be introduced, but will not do so where failure to raise them in pleadings b/c of the default of the party seeking to raise the evidence, or will be so prejudicial or embarrassing to the other party that permission should be refused in the interest of justice.  In exercising discretion to give leave to amend a pleading crt will regard to the interests & conduct of the parties, the interests of justice, & impact of any amendment sought on Cash flow management principles.  Amendment of pleadings early in the process - facilitates the objects of timely cost effective dispute resolution.  Amendment later on likely result in delay of proceedings & additional cost.  Applications for amendment not permitted in SA after the matter has been listed as ready for trial, except in special circumstance. (ensure parties plead all rele. Material facts, & do not come up with surprising new info at hearing, when its 2 late for other party to prepare to respond).  Even if parties consent to amendment, crt has power to refuse it in the interests of case flow management: United Motors Retail Ltd V AGC GIO v Ali and Sali v SPC Ltd and anor: stand for the proposition that only a genuine &  unforeseeable reason for the need to amend will justify leave begin granted, and if real reason is the conduct or incompetence of the party or their representatives will not be granted.  Qld v J L Holdings Pty Ltd (supra) and Elliot v Elliot Enterprises SA : crts have suggests that the nature of the interests of the parties, & detriment to them, are more important than court timetables or policies. Majority in QLd v JL holdings Pty Ltd: said the ultimate aim of a court is the attainment of  justice & no principle of case management can be allowed to supplant that aim.
Criteria for allowing amendments  In considering allowance of amendment: Crt will consider interest of justice, the implications for the parties, cost, reasons why the amendment is sought ( & why matter raised were not included in party s orig. Docs)  If appropriate, crt may allow amendment to include a COA or type of damage to the date of issue of process, or some other date. As inter est on damages only runs from the date that the amendment was made. Court s inherent power to amend pleadings  Crt has power to amend any pleading of its own motion or at the application of a party, on such terms as it thinks fit. But happens rare usually it invite parities to make necessary amendments.

JOINDER of Parties
 SCR 73- process for joinder of parties  If Joins 3rd party will join by 3 rd party notice  IF def Joins 2 nd def provide Contribution notice  PL can only be included in litigation by consent- a pl cannot put the names of other person he thinks might have an interest in the matter on the summons w/put express consent.  Crt can order that a person be added to a matter as a P w/out person s consent.  It is the Pl/s who chooses the Def(s).  A Pl may elect to join a no. of Defs, or may elec t to limit it claim to 1 or 2.  There are significant costs implications of joining Defs - if a Pl joins a Def that turns out not to be liable, the Pl will in all likelihood have to pay that Defs cost.  Often Def will consider that another person is partly or wholly responsible for the Pl s Loss.  Def can initate action to join the other person as a 3 rd party  3rd party then joins action alongside the Def & treated as a Def (except cost)  Often D will have claim against a Pl. And files a counter claim which is part of the Def s defence. It must be a separate COA visible against the Pl. Pl must file a Defence to the Counterclaim, does so in Reply.  A single action can have multiple parties & multiple actions.  Pl will wrongly identify a Def or will fail to join a Def to proceedings. Crt has broad power to sort out such difficulties SCR 74 est. How crt can resolve issues of joinder  SCR 80 : provision for class or representative actions.  SCR 89: Possible for person or entity who is not joined to proceeding to intervene in the proceedings

INJUNCITION-Protective Process
Mareva injunctions Interim injunctions Interlocutory injunctions

Interim Injunction
To preserve status quo pre final determination of issues Intrusive process directs party s conduct before legal right to do so established Therefore benchmark is high Often ex parte
Injunction Test

Must show a serious question to be tried (on final relief sought) Balance of convenience who will be more inconvenienced if it is granted? Will award of damages compensate

Castlemaine Tooheys Plf sought injunction against SA to prevent restriction of sale of beer not in deposit return bottles Testing the law on restraint of trade between states Considerations y Public Interest in pollution preventive measures y Significant loss of market share even in short period of time y Undue advantage on Plf y battle for beer market in SA Undertaking/order for damages/security for costs

Party seeking injunction will usually be ordered to pay damages if they fail in the application. They are usually required to UNDERTAKE to pay damages in the event that they lose. Damages not limited to legal costs but to overall cost of loss of income/inconvenience/market share as consequence of interim injunction May have to offer security for costs (pay money into court) Mareva orders Solely to keep Def s assets within the jurisdiction pending resolution of the case
Duties of solicitors

Injunctions are intrusive and inter fere with rights Applications are often ex parte Solicitors must disclose ALL relevant information known to them on ex parte applications, even if it is against their application (cannot mislead by silence ) (Lawyer = officer of court)
Medical Testing

Orders from court to submit to reasonable medical examination and testing of people
Barbarian Motor Cycle Club V Koithan: Facts: action for nuisance by noise against Motorcycle club. Pl sought interrogatories details of the identity of tenants of the Defs and office bearers of the club, & info abt whether any member of the club had driven certain vehicles (specified by their registration no.s) Pl were trying to prove that office bearers of the Club were on the premises at the times that it was noisy. They had to prove this via the argument that the persons in control of the club permitted the noise etc. Held: That sort of qns asked were relevant and proper b/c they tended to fill in the minute facts that would lead to an overall conclusion of fact - that certain persons were IN AUTHORITY & CONTROL and were present at the times that matters complained of occurred, therefore leading to the inference that they were responsible at law. Interrogatories must be relevant- crt applied equivalent of D.R test.

Can help prove or disprove a matter in issue OR provide a link in the chain of evidence necessary to prove the case.

 

Must be necessary Interrogatories directed to finding out opponents evidence or names of witness will not allowedhowever, not permitted to o bject just b/c answer might disclose name of witness or COA against some person when is ALSO bona fides & relevant for present action.  Fishing through interrogatories is not to be allowed.  Issue whether they were relevant- curt turned to issues raised on the pleadings

Aspar Autobarn v Davora: Per Woodward J. Facts: S52TPA case arguing conspiracy b/w 3 parties to steal a business name that the Apples were about to use. The issue was whether the Respondents knew this, & whether there was a conspiracy to harm them by pre empting use of the name. Objection to answering particular interrogatories : -Re knowledge of parties re use of name -Whether parties involved in any discussion, consultation which lead to 1 st respondent using name Held: in certain types of case interrogatories administered w/ care & discretion & answered responsibly can play a very useful part in preparing a case for trial. Question must be asked clearly & precisely Must clearly relate to matters in issue Should NOT rely on precedents Should not take pt with typos etc. Argument interrogatory 18 was oppressively wide & ambiguous: (did u, on or before, become aware, believe, suspect, hear or read..) were held to be permissible as they all refer to matters of facts or events that go to make up the chain of evidence that will establish (or not) state of mind and intent.

Kadlunga v ETSA Facts: Claim in negligence against Electricity Trust for damage caused to property by fires started by power lines on Ash Weds. Issue whether technical nature of qns in fact begged expert report. Failed to install devices to stop lines arcing if they did clout, failed to separate and insulate the conductors. Pl wanted to prove that ETSA knew that the material they had used were not good enough to prevent clouting in hot, windy weather. HELD: - RE Interrogatories-

 If party has expert knowledge can be called upon to use it in answering interrogatories , however, should be sure the party r eceiving the interrogatory has relevant expertise b4 asking the qn.  When asking qns of electricity trust is open to assume they have expertise on electricity within the organisation.  Interrogatories should not call for expression of expert opinion (as distinct from knowledge)  if a party is interrogated on a subject & it is clear that that the answer requires a factual answer based on expert knowledge, then may decline. But if sum total of organisation knowledge enables answer to be given, then it should be ..

Pearce v Hall Facts: Application to issue interrogatories in a personal injuries matter after car accident. Matter heard in LC and leave was sought under R127 LCR which required leave for interrogatories in person injuries matter Held: Leave was denied b/c applicant had not show that their case would be embarrassed for lack of opportunity to interrogate. Crt held that interrogatories should only be allowed when all other avenues for gaining info had been exhausted . Rak v Coles Myer Ltd Facts: Pl (sml Child) swallowed a war toy bought for him by his mother. Pl files a notice to admit docs & facts. Def filed a response, & pl argued the response was inadequate on various grounds. Held: Re Notices to admit: Notices to admit are intend to aid a party to prove their case by:

   

establish authenticity of doc. Be confident the do is admissible w/out further proof of authenticity Establish a fact w/out calling witnesses etc. In relation to qn22 The qns asked were: pl agreed to purchase toys for pl on 25 jan., , the Def responded that it did not know and could not admit the fact alleged. Court held this response was not sufficient.  Re 25-26 that the nose cone could fit into the throat of a five yr old child. And capable of fitting into throat of pl.-->Def argued qn too general. Court held: questions ware not too general.

Thomson Brindal Ltd V McLachlan Per Lander J: The only grounds for refusal to admit a doc were those contained in SCR 54 which do not allow a party to refuse to admit the authenticity of a doc b/c the party does not know whether the doc is authentic. The party must make a genuine assessment of whether the doc is authentic or not. Only other ground can rely on is improper. It follows that f a party successful refuse to admit the authenticity of a document then the doc would not be admissible.

COST
 Accurate advice on the anticipated costs of steps in the proceedings is essential, as is advice on cheaper alternative (ADR)  *SCR 262: requires partitioners to keep a running record of costs so that a bill can be rendered within 28 days of the finalisation of a case.  Provide their clients with detailed advice concerning the anticipated costs of various steps in proceedings failure to communicate can amount to misconduct.  Cannot commence legal proceedings for unpaid fees until they have given a bill of costs to the client: s42 Legal Practitioners Act 1981 (SA)  Communication with a client about costs should be timely, clear and comprehensive: PCR 41.1  Costs of litigation: in discretion of crt S 40 Supreme Crt Act  Purpose of a costs order is to: compensate person whose favour is made & not punish other party: Advance Resources services Pty Ltd v Charlton  Cost cover reimbursement to a practitioner for work done or expense incurred by practitioner but don not extend to other losses suffered by the client: Burford v Allan  A successful party in litigation is always left to pay some of their costs.  In most cases, party/party costs will be awarded, leaving winning party to pay the difference b/w party/party costs & whatever rate their solicitor charged.
Court orders for costs

Costs awards can be made at different stages of proceedings, including y the conclusion of a particular application y at the conclusion of a trial
265 Time for making and enforcing orders for costs (1) The Court may deal with costs at any stage of proceedings (before or after final judgment has been given). (2) However, subject to any order of the Court to the contrary

(a) a Schedule of costs is not to be adjudicated upon until after the principal proceedings have been concluded; and (b) an order for costs is not to be enforced until after the principal proceedings have been concluded
Exceptions to the presumption that costs follow the event
 The normal course in liti. Is that costs will follow the event. Thus a successful pl will have its costs of the action paid at party/party scale by unsuccessful def(s).likewise for successful Def. .  Award of costs is always matter for the discretion of crt.  Crt have varied costs orders based on circumstances of case and conduct of parties

 E.G can order successful party pay the unsuccessful party pay the unsuccessful parties costs.  Successful Def can be ordered to pay unsuccessful pl s cost: Cretazzo v Lombardi (rare circum)  Crt can order a successful pl to pay , in whole or in part, an unsuccessful def s costs: Cretazzo v Lombardi.

SCR 263(2) (2) The general rule is, however, subject to the following exceptions (a) the costs of an amendment are to be awarded against the party making the amendment; (b) the costs of an application to extend time fixed by or under these rules are to be awarded against the applicant; (c)the costs of an application that should have been (but was not) made at an earlier stage of the proceedings are to be awarded against the applicant; (d) the costs of an adjournment arising from a party's default are to be awarded against the party in default; (e) the costs of proving a fact or document that a party has unreasonably failed to admit are to be awarded against that party;

Quatum of cost
Costs orders shift different amounts of the costs burden of the proceedings Can be calculated on different basis: y y y

Party / party Solicitor /client Indemnity

Party/Party Costs 264(2)

Party/party costs are costs that parties pay each other.

 A party unsuccessful in entire litigation or a step in litigation (ie an interlocutory application) is ordered by the crt to pay the successful party s cost. Known as Costs following the event.  Costs auto follow the event by virtue of SCR263  General rule: SCR263 for award of costs it that the successful party s costs are paid by the unsuccessful party. 263 Court's discretion as to costs
(1) y As a general rule, costs follow the event.

But not necessarily the whole event; may be awarded in relation to part y For example, costs for an interlocutory application; Cretazzo v Lombardi: - allegation that pl exaggerated her injuries, and try to disprove and call expert evidence to see what extent injury pl were.. At end of day pl won, got some damages, however, court said they haven t succeed in est. Prolong proceeding. Even though the p won event, in relation to extent of their injuries, they loss.. Was less extensive. Event is broken down. Don t assume crt will order costs to winner- Always Prudent to seek a formal order on costs when the step or matter is completed, and always in case of negotiated settlement

264 Basis for awarding costs

(2) As a general rule, however, costs are awarded as between party and party (that is, on the basis that the party entitled to the costs will be reimbursed for costs reasonably incurred by the party in the conduct of the litigation to an extent determined by reference to the scale of costs in force, under these rules or the previous rules, when the costs were incurred). Calculation of Party/Party costs
Covers costs for work relating to conduct of litigation only: SCR 264(2) Not actual solicitor/client costs - only costs calculated according to the Court Scale Includes all costs necessary and proper for the attainment of justice, or defending the right of a part. Party/party costs DO NOT include unnecessary costs Party/Party costs not full indemnity (covered) (70% if lucky) unless court orders otherwise

Solicitor Client
 Award of party/party costs in litigation- a successful party will only be awarded those solicitor costs which are work incurs in conduct of litigation & calculated on the basis of the Court Scale.  Party/party costs are not designed to fully reimburse the successful party.  Crt discretion award a full indemnity for solicitor & client costs where conduct of unsuccessful party makes it unfair that the successful party should bear any costs . in such case it awards solicitor/client costs to the successful party.  Normally A successful party will pay its own socilitor/client costs to its legal pracitiotners, an then recoup its party/party costs from the unsuccessful  Orders for solicitor client costs as against an opposing party are only made in exceptional circumstances, most commonly when a party has been unduly difficult obstructive or oppressive, putting the other party to unnecessary legal expense.  Packer v Meagher: Pl deliberately took action & ran it for as long as possible to cause inconvenience to Def, fully intending to discontinue the claim at the last possible moment depriving D of costs award. Solicitor client costs were ordered to compensate the Def for time & $ wasted for no purpose.  Hurstville Municipal Council V Connor: pursuing a case where no real prospects of success, or pursing aspects of a case that have no prospects, may give rise to awards of solicitor client costs.
Are higher than party party cost, more generous quatum than party/ party cost. Costs assessed on a solicitor/client basis include all reasonable costs and disbursements reasonably incurred. This is a more generous basis of assessment than party - party and may be used where the unsuccessful litigant has behaved inappropriately in the conduct of the matter.

Cost assessed on Indemnity Basis

In special circumstances, costs may be awarded on a third basis which is even more generous. This is called an indemnity basis and includes all costs of and incidental to proceedings except costs which are unreasonable in amount or unreasonably incurred. This is virtually the same as an assessment between a practitioner and their own client (called solicitor/own client costs). In special circumstances, costs may be awarded on a third basis which is even more generous.

 This is called an indemnity basis and includes all costs of and incidental to proceedings except costs which are unreasonable in amount or unreasonably incurred. This is virtually the same as an assessment between a practitioner and their own client (called solicitor/own client costs). E.g of Indemnity cost: y y

Packer v Meagher [1984] 3 NSWLR 486 Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited & Ors [2006] NSWSC 583

 Packer v Meagher: Crt ordered indemnity costs- the discontinued has also been an abuse of

process
Costs for all or part of proceedings
 Costs are incurred at all stages of proceedings.  Costs may be awarded for parts of proceedings (eg an application for directions) or in relation to aspects of proceedings ( a party who proves negligence but not damage may obtain costs for former but not latter)  Scr 265 provides for costs orders to be made along the way.  E,g where party make application & is unsuccessful they will be ordered to pay the other party s costs of the application. If successful then awarded against them.

Second meaning of Cost

Costs also refers to payments ordered to parties by the court

These costs cover: y y y

reimbursement to legal practitioners for work done expenses incurred by practitioners but do not extend to other losses suffered by the client Burford v Allan [1998] SASC 6693.

Charging your client

Time based charging under a costs agreement- cost can be recovered; or Billing according to scale of cost. Each court has a scale of cost. At c.l cost agreement has to be fair and reasonable. : itemise the amt that can be charged for particular types of legal work.  Solicitor under no obligation to charge scale fees, if i ntends to charge more than scale, he is obliged to advise client, of the hourly rate or other scale used, and obtained client s agreement in writing: s42(6) Legal Practitioners Act.
Other types: No win no fee agreements (also known as conditional costs agreements) are permitted

Contingency fees (fees based on the percentage of damages recovered) are prohibited: PCR 42. Costs agreements in family law matters are governed by the Family Law Act, and the Family Court can determine any question as to the validi ty or effect of a family law costs agreement.

Common Costs Orders Costs in any event: The party receiving costs will receive costs no matter what the final result of the action: Howe V Winterton. However costs are not payable until the event has occurred which is usually final judgment in the action: Bull Nominees Pty Ltd v McElwee Costs in the cause: If a party gets costs in an action this will include any costs that have been made costs in the cause : Coosen v Rose Costs follow the event: Party who on the whole succeeds in the case gets the general costs of the action: Reid Hewitt & Co v Joseph Costs reserved: No order for cost made & no cost are payable until an order is made. But c SCR 268. Cost thrown away: costs incurred in response to the a ctions of one party which were effectively wasted. E.g preparing to defend an interlocutory application which is w/drawn at the last minute. This can include all costs reasonably incurred in enforcing the judgment , but not the costs of bankruptcy proceedi ngs which are outside of the action: Andromeda handelsaktieselskav v Holme No order as to costs: Means that each party must bear their own costs: Re Hodgkinson Costs on indemnity basis: Means the same as costs b/w solicitor & client. Means all costs of a party except those which have been unreasonably incurred or are unreasonable in amt: Singleton v Macquarie Broadcasting Ltd Disbursements

 Costs of litigation include Disbursements (out of pocket expenses). Includes: crt or agency filing fees, administrative costs, experts  S fees, transcript, counsel s fees, etc. Client is liable to pay all such expense.  Such costs may only incurred w/ the client s instructions, otherwise they r not liable to pay & solicitors will be left w/ the expense.
Jennings v Zilahi-Kiss(HOUSE/AGENT)

Z-K added kitchens to rooms in a boarding house . They misrep the property. Sold premises through Agent (C), told C to advertised and sold as large home plus 5 modern flats to J C told purchaser (J) did not need own solicito r, and T (Z-K s solicitor) could draw up the documents When J realised problem sued Z-K and joined T Joined agents as 2nd def- agent not found liable, on basis they were not party to the fraud. But had to pay t s cost as T was successful against J. Crt found J was entitled to damages based on fraudulent conduct, & breach of warranty of Z -K T successfully defended the claim, but only received costs on certain issues because had brought the action on itself because acted for two parties with conflicting interests & engaged in ambiguous behavior.

 Was also an consideration whether unsuccessful def (Z) should have to pay costs of the successful (T) directly (Sanderson order) or indirectly (bullock order - if it was reasonable to join the party_ Z was ordered to pay J s costs but not T s. General rule mean that J would have to pay successful party, solic itor its cost. Crt said although solicitor succeed, only certain action, given cost part that has no prospect of success. Agent- failing to make clear their innocence of the allegations - & they were therefore not entitled to their costs against the pl.

Capolingua v Phylum Pty Ltd

Successful party was deliberately uncooperative in pre trial process Resulting in the issues being obscured and the evidence taking four days rather than two The Court made no order as to costs, even thought the Defendant was successful.
Offers of compromise and costs

A party may file in crt an offer to consent to judgment that say s they are prepared to consent to a certain sum of $, or a %tage of liability . MUST be filed at least 21 days before trial is set to start, & CANNOT be accepted within 7 days prior to the commencement of the tria l. Offer may be accompanied by a payment into crt. SCR 187 Offers of settlement
(1) A party may, before the relevant date, file an offer of settlement in the Court (a formal offer of settlement). 188 Consequences of filing offer of settlement in Court (6) If a formal offer of settlement is not accepted by the party to whom the offer is made and the Court determines the relevant action or claim on terms that are no more favourable to the party than the terms of the offer, then, subject to the Court's order to the contrary (a) the party to whom the offer was made is not to be entitled to costs referable to the period falling after the relevant date; and (b) the party that made the offer (i) if a defendant is entitled to costs referable to the period fall ing after the relevant date; and

(ii) if a plaintiff is entitled to the whole of the party's costs of action on a solicitor/client basis and the defendant is not entitled to any costs not otherwise ordered .

Discontinuance
A pl can DISCONTINUE the action at any time, w/out court s consent b4 the court has ordered that the action proceed to trial. ( would have effect of no costs orders being made, as can w/draw w/out leave & def would not have any way of getting costs) SCR 107(4): the party against whom the action is discontinued is generally to costs up to the time of receiving the notice of discontinuance. This does not affect the crts discretion to order otherwise: Pentroth Pty Ltd v Kirschild Pty Ltd

Bullock Orders
Where 2 Def, and the pl is successful against 1 but not another - Pl seeks a Bullock orderBullock v LGO: where 2 or more Defs are joined, Pl is successful against one only, the Pl may seek a variation of the normal rule that costs follow the event, & re quest that the unsuccessful def pay the successful def s costs. Zachariah v Ajay Investment: Z & C practiced as doctors in premises lease from A. When their partnership dissolved, Z sued A & C claiming that he alone had an option to renew the lease, & se eking orders restraining A from entering a lease w/ C . Trial judge found Z had a valid claim against C arising from the terms of their partnership agreement, but did not have a valid claim against A. Z applied for a bullock order (ie that C should pay A s costs, rather than Z paying them) Held: This was not a case of a genuine dilemma. No agreement b/w A&Z, only argument was his agreement with C, so there was no validity in his claim against A. Therefore the reasoning in Bullock ( that there be a genuine dilemma) did not apply & there was no basis for that order. Sanderson Orders Apply b/w Defs, and provide for unsuccessful def to pay costs directly to a successful def at Discretion of crt. Cost is paid directly from 1 def to the other, rather than paid by the Pl, and can be recovered from the unsuccessful def by the Pl.

Costs against 3 rd party

Costs are usually only b/w parties to litigation, but in some exceptional circumstances the crt will order non party to pay part or all of successful party s cost: SCR 266 Knight v FP Special Assetts Ltd: costs were awarded against receiver of Co. that had no standing in the action. If costs had not been awarded against the receiver, the winning party would not have been able to recover their costs against the impecunious loser. The court will determine 3 principles: where party is insolvent/made of straw, non party has played active role in conduct of litigation, where non party has interest in the subject of the litigation.

Costs against practitioners personally

 13 Power to deal with procedural irregularity by order for costs
(2) If the Court is satisfied that a lawyer is responsible for a procedural irregularity, the Court may (a) disallow costs between the lawyer and the client; or (b) order the lawyer to indemnify the client for costs (including costs the client is liable to pay to another party) to an extent determined by the Court; or

(c) order the lawyer to indemnify a person other than the lawyer's client for costs to an extent determined by the Court.

 Costs against practitioners where their conduct or negligence has resulted in other party incurring costs or pursuing litigation unnecessarily .  SCR13(2)-(4) and 214(3) empower crt to do this  A party may not obtain costs incurred by it as a consequence of another practitioner s conduct for work undertaken or steps taken pre litigation: Bailey v Manos Breeder Farms Pty Ltd
Security for Costs

 Where a party believes the other party will not be able to pay costs if they are unsuccessful, they may seek security for costs.  Such application is made by a def against a Pl.  A def will not normally be required to give security cost, except where De pleads a counter claim against Pl.  Security may be required where pl is: y Brining action in a representative capacity & is insolvent/unable to pay costs; y Ordinarily resident outside Aust; y Reasonably suspected of having brought an action for an ulterior(unknown) purpose; Pl may be asked to provide security but SCR 194 specifies situations: Representative P with insufficient resources to cover costs; P resident outside Australia; suspect action for ulterior purpose. But general interests of justice discretion.
194 Security for costs (1) The Court may order a plaintiff to provide security for costs if

(a) the action is brought in a representative capacity and the pl is insolvent or would have insufficient resources to meet an order for costs if the action were to prove to be unsuccessful; or (b) the plaintiff is ordinarily resident outside Australia; or (c) there are reasonable grounds to suspect that the action may have been brought for an ulterior purpose; or (d) the order is authorised by statute; or (e)the order is necessary in the interests of justice.

Case management
To enforce jurisdictional limits (SCR 263 (f), (g) & (h)) To encourage settlements (offers to consent: SCR 187, 188) To encourage narrowing issues (Capolingua v Phyllum ) To discourage parties and lawyers who prolong litigation (costs against lawyers; SCR 13).

Public Interest Litigation

Altruistic plaintiff seeking to uphold a public interests - can be taken into account in determining costs eg Stein J in Olshack v Richmond River Council (1998) 152 ALR 83 and Fox J in Kent v Cavenagh (1973) 1 ACTR 43 cf Qantas Airways v Cameron (No 3) (1996) 68 FCR 367. But not as a matter of rule, only as a matter of discretion: Olshack; SW Forest Defence Foundation v Dept of Envir (No 2) (1998) 154 ALR 411. Australian federation of Consumer Organisations v Tobacco Institute : AFCO, a public interest gp took actions against Tobacco institute to stop it making misleading statements regarding the risks of passive smoking, in the interest of public health.
AFCO was successful, & solicitor client costs were awarded against Tobacco Institute..Recognise in public interest case, Pl don t make any personal gains, but suffer financial losses, and should not be required to bear that loss b/c their action is in for the public gd.

Special Circumstances
Where the winning party has conducted the case in such as way to protract the c ase or incur extra expense unnecessarily Capolingua v Phylum Pty Ltd: successful party was deliberately uncooperative in pre trial process, failed to be ready for mediation conference, resulting in the issue being obscured & evidence taking 4 days rather than 2, causing both parties to incur more co sts. Court made no order as to costs, even though Def was successful. Where no proper demand has been made on other party Re Lupus: Pl failed to make clear the precise or real nature of their claim , then aspect of the claim that they are successful on, but of which the Def had no proper notice, will not attract a costs order.

Where the successful party is supernumery to the litigation -ie where its interest are adequately protected by another party to the action. AFC v Forestry Commission: ACF & other 2 conservation bodies taking action, unsuccessfully, against Tasmanian forestry. It was argued that ACF need not have incurred costs in relation to a no. of aspects argued in case b/c another party, the cth was able to conduct the case on those points. Crt observe that: A party w/ genuine interest in a case should not be deprived of the right to present that case simply b/c there were other parities who may also canvass the same issues. Nonetheless, where there are identical issues, the crt has the discr etion to award costs only to the party that took the lead in the case. In this case AFC got its costs of the action but did not get its costs in re to a day s hearing where the case was essentially put by the cth, & there was no need for ACF to have presen ted the same arguments. Where Defs could have joined defence but have been separately represented, they may not get all their costs;SCR269 Potential for conflict of interest if defs are jointly represented.

Costs & Jurisdictional Limits In SC there is no presumption that a successful pl will receive ANY of his costs if the amt of the final award is less than $105k in a personal injury claim:SCR263(2)(f) DC prohibits costs awards in cases where the total amts of damages awarded is less than specified monetary limits for the Magistrates Court set out in it rule: DCR 263 Role of costs in Case Management Costs penalties are invoked when parties have failed to attend to discovery in a timely manner, have made late amendments to pleadings, make application for directions that are unnecessary, .

To enforce jurisdictional limits (SCR 263 (f), (g) & (h)) To encourage settlements (offers to consent: SCR 187, 188) To encourage narrowing issues (Capolingua v Phyllum ) To discourage parties and lawyers who prolong litigation (costs against lawyers; SCR 13).
Cost Orders

Costs in any event - No matter what the outcome, u get the cost. Costs in the cause - Whoever wins, will get the cost of that application Costs reserved - No particular cost made , no decision Costs thrown away - Cost of preparation.

Comparative Jurisdictions the Magistrate and Federal Court Jurisdiction of Magistrates Court: s 8 MCA
 civil action at law or in equity up to $40,000  If motor Vehicle Accident (MVA)/ action to obtain or retrieve title to real or personal property Damages-$80 000  MC also has a Minor civil- up to $6k no lawyer permitted y Litigants can obtain legal advice during pre trial processes, but not represented at trial, except in special circumstances
MC Process

Pre action notice of claim (21 days) Pre Action discovery Pleadings Discovery not automatic, at request of parties Interrogatories and other investigations at request of parties No lawyers in Minor Civil Trials <$6k Simplified procedure with processes on as needs basis minimises costs Also need parties and representatives to understand that the process becomes uneconomic if restraint in use of processes is not used. Mindset = quick and effective resolution, overcomplicating l egal disputes not effective
MC Practice

Magistrates are focused on pragmatic solutions and will often talk sense to parties to avoid expensive trial or pre trial processes Mediation is offered free of charge Minor Civil trials are inquisitorial not adversarial Court Experts encouraged Complex law and fact still arises and is no easier to deal with than in any other jurisdiction. But you have to be aware of the costs to your client.
Debt Recovery (court) Where litigants end up when judgment debt has been awarded, but unsuccessful party does not pay up. Process known; investigation summons enables creditors to examine debtors as to their capacity to pay the debt, & will result in an order for periodic payments over a period of time. Pre action notice of claim

Crt has pre lodgement process where potential litigants can make a formal claim before issuing proceedings. Made via court in the form of an official demand, & very often results in settlement of claim. Known as pre lodgement process und er R20A, and only requires the Pl to wait for 21 days before issuing proceedings. Pleadings

 Short form of pleading- disclose date, place & general circumstances of the COA is sufficient R24(1)(a)  But more complex cases will be directed to follow SCR 2006 o n pleadings.  R24 sets out types of matters & material facts that a Pl must refer to in SOC when taking action under various statutory COA that the crt has jurisdiction over  Def may plead a counter claim & a set off, & may join third parties or defs to the action.  Parties may seek further particulars of pleadings from each other by letter, and if requires not complied within 7 days, party may apply to crt to order provision of the particulars.
Disclosure

 

Personal injury automatic disclosure by Pl is provided (R68 & R69) In other cases, parties may request discovery for each other in writing, & if complied with may seek order from crt for discovery.  Rule regarding privilege are generally same as SC (MCR71)  Procedure for pre claim discovery to be ordered (R20) Other Procedures MCA empowers the court to order a no. of other pre trial processes to be undertaken by parties. 25. Interim injunction etc 26. Restraining orders 27. Mediation & conciliation 28. Trial of issues by arbitrator 29. Expert reports

And grants various powers it to dispose make orders in disposing of cases: 30. Law & equity. 31. Alternative forms of relief. 32. Declaratory judgments. 33. Interim awards of damages. 33A. Consent orders for structured settleme nts.

 The process for seeking orders is much the same as in the SC- an application for directions supported by an affidavit is filed at the court registry & a date for hearing of the application is set (R63 & 64)  To encourage early resolution, 1st event for parties in a claim is a directions hearing at which a Court registrar will discuss the possibility of settlement with the parties, encourage them to use free mediation service offered by the crt

Initiatives of MC in SA Parities who have lodged a Pre Lodgement notice (notice of claim) can request free volunteer mediation services, & parties who are involved in crt proceedings can access free mediator services in the court. Court also has a Directions Hearing process that has a focus on ADR- once proceedings are lodged & a defence is filed, both parties are required to attend a direction hearing at which ADR & settlement options are actively encouraged. Court also has its own experts- in building matters particularly, who can undertake neutral inspection of disputed building work, & assist magistrates forming a view on factual disputes as well as encourage parties to settle based on independent expert opinion.

Federal Court
 Primarily its work load is Judicial Review.  Federal Court does not have jurisdiction over State manners per se, but many commercial (and other) cases involve some element of Federal law as well as common/civil law, and many cases that have this dual legal content are pursued in Federal Court b/c of the particular Constitution provisions that enable FC to exercise jurisdiction over matters with mixed Federal/State content.  Judicial review of Commonwealth Administrative Decisions  Jurisdiction over Commonwealth matters  Jurisdictions over matters including: Trade Practices Act, Native Title, Migration, AD(JR), Admiralty Act, Corporations, Tax, Patents, Copyright, Bankruptcy Act  Hears appeal from AAT, other Federal tribunals, Federal Magistrate court  Increased sophistication and diversification of commercial law and practice, means many more cases have Commonwealth aspects as part of dispute  Federal Court has growing and important commercial jurisdiction
FC powers & process In FC the normal process of pleadings (or affi davits), discovery (tailored to the case at hand), interrogatories, inspection or preservation of property, expert report, applications for directions (notices of motion), admissions, pre trial preparation, subpoenas, trial & judgment occ ur much as they would in SA SC

 IN FC the rules are called orders . So order 15 (r 1-18) deals with discovery inspection & privilege, Order 16 (R 1-11) deals with interrogation.  Crt has power to order interrogatories, to issue interim & final injunctions, to order pre acti on discovery for the same purposes as permitted in the SC, and same sort of pre trial processes.  Can order Testing, or observation of property or processes.  similar procedures for notices to admit, including provision that admissions can only be withdraw n with the leave of the court.  provisions for pre action discovery to identify a potential party (15A.3) or to determine if there is a viable COA against a known party (15A.6) Same principles of fairness, justice efficiency, dispute resolution

 Often use affidavits instead of pleadings Individual judges manage cases ( docket system ) Discovery is not automatic will be ordered on as needs basis and may be limited or in stages Limits use of experts where possible, requires experts to collaborate to assist court to understand issues. Fast Track available
Commencement of proceedings - pleadings or affidavits (order4)

 Commencement in FC is commenced by an application.  Parties known as Applicant and Respondent.  An application can be supported by pleadings, or affidavit which -outline nature of the Applicant s (pl) claim and set out material facts which application relies to justify their claim.  Respondent will defend the claim- A Defence if the Applicant has filed a SOC, An affidavit if t the Applicant has filed an Affidavit.

Case Management
Docket system: every case that is commenced in the crt is allocated to a particular judge, who will manage the case & hear the trial.

Works effectively- always same judge, court take the case from it s inception, the judge knows what happened in the pass access parties argument. Well placed to make decision whether need discovery, or what expert. effective way for judge and parties to work together - involvement of 3rd party, parties are almost forced to be more cooperative , and productively getting ready for trial. It is assumed that the judge who has managed the case will also hear the trial Enables procedures to be tailored more specifically to the needs of partic ular cases.

Discovery
 In FC Discovery Is not an automatic process (as in SC). There is a presumption against formal disclosure, unless parties can show that it is necessary.  in f.c u have to ask .. As the crt deemed necessary .  Before disclosure is ordered, parties must answer the following question (order 15) i) Is discovery necessary at all, and if so for what purpose? ii) Can those purposes be achieved: y By a means less expensive than discovery? y By discovery only in relation to particular issues? y By discovery (at least in the first instance- see (iii) only of defined categories of documents? iii) Particularly in cases where there are many documents, should discovery be given in stages? iv) Should discovery be giving in the list of documents by general description rather than by identification of individual documents?

In determining whether to order discovery , crt will have regard to the issues in the case & the order in which they are likely to be resolved, the resources & circumstances of the parties, the likely costs o f discovery and its likely benefit. To prevent orders for discovery requiring production of more documents than are necessary for the fair conduct of the case, orders for discovery will ordinarily be limited to the docs required to be disclosed by Order 15 rule 2(3) 6. Expert Witnesses y It s common , in FC for parties to agree on 1 or more expert witnesses, or for crt to direct expert witnesses to consult together before advising the crt of their opinions hot tubbing Get expert together to get an coherent view. Order 34A provides judges with a range of means for taking expert evidence to enhance quality & content and limit the volume of such evidence in proceedings. It includes power to conduct a concurrent examination of expert witnesses (hot-tubbing) Hot tubbing: The experts for opposing sides submit written statements, which they may modify or supplement at the hearing. Experts sworn in a t the same time & each in turn provides oral exposition of their expert opinion on the issues arising from the eviden ce and comments upon the opinions expressed by other expert (s). During the process the judge acts as a monitor to ensure exchange is professional & useful, and directed to identify the real issues b/w the experts & the areas of contention b/w them & their arguments in support of their particular conclusions. Only at conclusion of that process that counsel cross -examined the experts one after the other, including, if appropriate, qns to all or any of the experts in respect of a particular issue. Re -examination is then conducted on the same basis.

Interlocutory Processes
In FC an application is known as a motion. If a party wants to bring a matter before the court for decision , it files a notice of motion, accompanied by an affidavit setting fort the facts relied upon for the motion. Application then listed for hearing & heard by the judge allocated to that case. FC has a commitment to ADR, particularly mediation, as part of its process. Parties may be r eferred to mediation whether or not they consent. Most cases in FC are administrative in nature, and usually involve an individual application (refugee a taxpayer, a cth employee). Mediation is commonly proposed in such cases. Crt can also order arbitrati on, or other process it considers useful.

(a) documents on which the party relies; and (b) documents that adversely affect the party s own case; and (c)Documents that adversely affect another party s case; and (d) docs that support another party s case

Why Use F.C?

 Many litigants prefer to use the FC for commercial or civil litigious claims.  Reason: process in FC can be streamlined, there is option of a Fast Track process, judicial case management (the docket system) can speed up case progress, processes can be tailored to suit the particular litigation rather than having to be followed automatically, & much more of the process is achieved on the papers- eg by time FC matter goes to trial, a great deal of the prospective evidence will have be reduced to affidavit form, & witnesses will not need to be called.  Commercial matters in FC tend to be a bit more complex, b/c most will involve both statutory claims under Fed statue, as well as C.L claims (for e.g breach of TPA, breach of patent Act, and Breach of Contract).
Jurisdiction of FC over otherwise State (C.L) Matters Jurisdiction of FC originate in Aust Constitution (ss75&76) and are manifested in cth legislation (Judiciary Act s38B)

Over Federal matters

y Judiciary Act y Federal Court Act y Specific legislation y Associated jurisdiction (over Commonwealth or Federal matters outside Fed Court jurisdiction, that are related to matters within Fed Court jurisdiction)

Over State matter

y State Courts cannot confer jurisdiction to Federal Court y Federal Court may have ACCRUED jurisdiction over state matters that are closely related to matter that Fed Court does have jurisdiction over STATE COURTS EXERCISING FEDERAL JURISDICTION

Conferral by Statute (ie Trade Practices Act, Judiciary Act) State courts cannot exercise accrued jurisdiction over Federal matters conferred by Federal Statute.
MUST BE expressly

When exercising jurisdiction over mixed State and Federal matters, the State court is exercising Federal Jurisdiction in the entire matter Felton v Mulligan (1971) 124 CLR 367 Appeal from State Court on Federal matter may go to Federal Court IF the legislation giving jurisdiction to the state court over the matter allows
INDIVIDUAL RIGHTS V COURT EFFICIENCY

Usually arises in the context of one or both parties seeking to prolongue the pre trial process OR adjourn the trial date (before or during trial)

 Can arise in a number of ways:

y Delay process (ie discovery) y Seek extra process (ie interrogs) y Amend pleadings before or during pleadings to raise new issues y Join new parties y Get new witnesses/experts reports AMENDMENT OF PLEADINGS SCR 54 Amend ANY document (including pleading): 1. ONCE up until 14 days after the date for disclosure of documents (no consent from Court o r other party required) 2. Amendment to withdraw admission or add cause of action that is statute barred or add statute barred party ONLY with consent of other party OR court order

Amendment may be to add a new cause of action

OR

Amendment can be to ADD A NEW DEFENDANT

However if the time limit for the new C of A has EXPIRED, or the time limit for action against the NEW DEFENDANT has expired, special provisions apply to limit plaintiff s right: Any day after 14, need to apply by way of an interloc application and argue why u need to amend, and court will grant leave or not. If that leave is granted, will also grant leave to def, to file a new defence, for pl to file a reply. So grant leave- repeat process . (double cost & time) AMENDMENT AND STATUTE OF LIMITATIONS (a)the Court may only grant permission for the addition or substitution of a cause of action that is statute barred if the new cause of action arises out of substantially the same facts as the original cause of action; (b)the Court may only grant permission for the introduction of a defendant against whom a fresh action would be statute barred if satisfied that the plaintiff's failure to joint the defendant arose from a genuine mistake. DISALLOWANCE OF AMENDMENTS

Court can disallow amendment made outside of these rules of its own motion or on application of other party (R56) Court may order amendment or amend document itself. Amendment may be conditional
usually on COSTS being borne by party amending

SEEKING LEAVE TO AMEND

Once 14 days past discovery, you have to get Court s permission to amend. If amendment is purely factual/legal cause of action that is not statute barred, consent of parties required. Consent of Court also required parties cannot override the operation of CFM by agreeing to amendments that have the effect of delaying court process (by operation of R 55) United motors v AGC- the claim for personal injuries, insurer defended that claim, said it wasn t their fault. Just b4 trail, D noticed expert report years b4, that there was no evidence that P was wearing a seat belt. Couldn t get more than 110K in pain in suffering. Pl sought leave to amend, just b4 trial to allege guy wasn t wearing a seat belt, and the other side agreed. Consequence of amendment was re plead it. Parties agreed to a mendment, and trial would be delayed. And court said not only them 2 who has an interest i n this...make them go to trial on the basis of what they pleaded . Idea of crt, if u leave it too long, won t get it, cost interest of others. Case management and Efficiency is v important, so don t shut others out of litigation. They do look at the conduct of the parties. Parties have been strategic, will not allowed leave to amend, compared to cases who has done its best - sully v spc Question of balancing, and delay that it will be caused. Aon v ANU- reinforce.. ANU and Aon were in litigation w other parties, wanted to amend its pleading, ANU wanted to change basis of its case, French CJ - issue here, from start ANU has conducted its case in narrow , limited approach, and it persisted. If it has made a stra tegic approach, the majority said ANU should have been aler ted to this new cause of action , well b4, the trial. Based on Aon pleading, sh ould have realised potential cause of action. Crt- said case flow management should limit, would never shut a party off cos of inefficiency

Original Associated & Accrued Jurisdiction

Original Jurisdiction The FC has jurisdiction over specific cth matters by operation of s 39B of the judiciary Act. In many cases, State law will apply even though the matter is initiated in the FC.

 S 39B and s79 of Judiciary Act interact with each other to extend the FC s power to apply State law.  S 79 means that in a matter where FC has original jurisdiction b/c of s 39B, applicable State laws are binding on FC despite the decision in Re Wakim  Where qn depending on State law are sufficiently intertwined with matters of federal jurisdiction so as to constitute a single matter, s 39B of the Judiciary Act gives FC original Jurisdiction.
Associated Jurisdiction

 32(1) Federal Court of Australia Act 1976 To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked.

 On a party involving the FC s jurisdiction under the TPA then s 32 of the Federal Court of Australia Act extends the court s jurisdiction to associated matters which arise under other laws made by Federal Parliament.  FC has jurisdiction t o hear any matter that are associated with matters already within federal jurisdiction s 32  IF FC has conferred jurisdiction over a TPA matter, bu t does not have conferred jurisdiction over a Copyright Act matter, it may claim jurisdiction over the associated matter & determine both matters, provided the matters related.

Accrued Jurisdiction
 S 22 Fed Crt of Australia Act. The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim proper ly brought forward by him in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.  The FC has an accrued jurisdiction which permits it to hear other claims, for e.g c.l claims, which are inextricable related to those matter which are expressed as within its federal jurisdiction.  Necessary to show that the non Federal matter is part of the Federal matter
E.g of Accrued Jurisdictions

Companies Act + contract Patents Act + intellectual property dispute Trade Practices + common law misrepresentation
TEST FOR ACCRUED JURIS?

Fed Court MUST have juris over principal (Federal) matter Non Fed matter must be inextricably linked to Fed matter Same substratum of facts or legal controversy Fencott v Muller; 1.60 Cairns

Federal Jurisdiction to State Courts

Much Federal jurisdiction is conferred upon State courts by virtue of s 77(iii) of the Austn Constitution , s 39 Judiciary Act and other legislation (eg TPA 1974 (cth s 86)

FORUM NON CONVENIENS

Pre cross vesting common law doctrine Def could seek stay of process in Plaintiff s chosen forum on basis that the forum not convenient Similar factors to Cross Vesting/interests of justice factors Forum chosen clearly inappropriate (= forum shopping)

 Other forum more appropriate than one chosen (SA test) Now only relates to competition between Australian and foreign forum.

Cross Vesting (usually utilised by Def)

Intent of cross vesting arrangements is the facilitation of the transfer of matters from one Australian court or jurisdiction to another , or to join actions that would otherwise be heard in separate jurisdictions. To authorise the transfer of matters from 1 Austn court to another, across state boundaries , and across federal/state boundaries. Re Wakim; Ex Parte McNally: HC held that the cross-vesting scheme was invalid insofar as it purported to vest state jurisdiction in feder al courts. While s 77(iii) of the Constitution permitted transfer of federal jurisdiction to state crts, the failure of the Constitution to provide for the reverse . Cross-vesting remains valid b/w states & from the federal court to state courts. The Cross Vesting legislation does 2 things: a. The scheme cross-vests the subject matter jurisdiction of participating courts b. The scheme provides for transfer b/w participating courts  s 4, the jurisdiction of each state & territory SC is cross -vested in all the other state and territory SC.  S 4 also vests subject matter jurisdiction over Federal & Family matters in each state & territory SC. Transfer b/w Participating Courts The principles to apply in considering an application to transfer b/w participating courts ar e set out in s 5 of the various Cross Vesting Acts, and are applied in BHP Biliton Limited v Schultz S 5: (2) Where (a) a proceeding (in this subsection referred to as the "relevant proceeding ) in the Supreme Court (in this subsection referred to as the "first court"); and is pending

(b) (i) it appears to the first court that the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or of a Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or (B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questio ns as to the application, interpretation or validity of a law of the State or Territory referred to in subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and C) the interests of justice , it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or

(iii) it appears to the first court that it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory, the first court shall transfer the relevant proceeding to that other Supreme Court. Simplified steps Cross -vesting 1. Proceeding legitimately in original court (ie origi nal court MUST have jurisdiction) 2. Proceeding relates to a proceeding in another court and it is MORE APPROPRIATE that the proceedings be heard together in the other court 3. AND it is in the interests of justice that the matter be heard in the other court Questions for the court will then be WHY is it more appropriate to go to the other court, and WHY is it in the interests of justice (to the party and to the efficiency of court process) to transfer. - If 3 tests are met, the crt must transf er it, it s mandatory not question of discretion. Party don t have much to say. S 5 places an obligation on crt to transfer a pending matter to another participating court where it would be more appropriate for the other court to hear the matter, having regard to a no. of factors. The factors relevant to exercise of discretion include:

The existence of related proceedings in another court ; Whether the chosen forum would have had jurisdiction in the absence of the cross -vesting scheme; The interests of justice Whether the interpretation of a cth law or state law of another jurisdiction is in issue

1. Related Proceedings: Proceedings are related provided the issues to be determined in each case arise out of the same factual matrix. The parties need not be the same. 2. Matters falling outside of the transfer court s jurisdiction: The courts should generally only determine those disputes falling within their ordinary jurisdiction. Where it appears that the receiving crt is more natural forum, transfer will be justified unless the re are compelling reasons such as costs and inconvenience otherwise . 3. Interests of Justice: BHP Billiton Limited v Schultz Pl Shultz an SA resident suffering from dust disease took proceedings in the NSW Dust Diseases Tribunal for damages in the DDT causation need not be proven if u can demonstrate that you worked in certain industries BHP argued that this was NOT the most appropriate forum and that it was NOT in the interests of justice to hear the case in the DTT but that it should be uplifted to the SC of NSW and Cross Vested to SASC. Processes in DDT were streamlined in the interests of dying claimants Connection with jurisdiction (cause of action arose, witnesses etc present) considered -Cost relevant S argued in the interest of justice, that tribunal was only jurisdiction that enable him to fast track his case. If u don t allow , th en can t allow him to pursue his claim at all.

 H.C found SA SC can equally fast track the case, and offer streamline processes(although would still need to prove casual link) and that the connection with jurisdiction is v significant. On balance, decided to cross vest the case to s.a, Criteria: Cost Witnesses Speed of hearing (ie if Plaintiff is dying) Right of Plaintiff to choose most convenient jurisdiction Connection to competing jurisdictions (witnesses, viewings by court, access to legal advice, lawye rs offices, documents) Residence of parties Cost of transport, accommodation, witnesses for trial Substantive law that will govern case
4. Onus of Proof Where s 5 criteria are satisfied the court MUST transfer the proceeding, irrespective of the wishes of t he parties: Bourke v State Bank of NSW. S8 of the Act also enables a case in a lower court or tribunal to be uplifted to a superior court for the purpose of cross vesting. i.e DC or Environmental and Resources Development crt can be transferred to interstate Crts It would be rare for a Pl invoke the cross vesting legislation, as Pl would have chosen their preferred jurisdiction in the first instance. Legislation normally utilised by Def. But immediate payment of costs may be ordered against an unsuccessful applicant to cross-vest : Alstom Power v Yokagawa AUstralia

Maintaining Status Quo

Parties may seek preserve their position, or, rarely, to force another party to take specified action, pending the determination of the substantive claim.

 If a party believe opponent is in the process of disposing of or diverting assets prior to judgment, with a view of depriving winning party of damages.  where some item of evidence needs to be protected from damage or interference, or simply preserved so that it can be used in the trial of the matter.  Request for permanent injunction, and the pl will seek an interim injunction pending determination of the substantive application.
Protective processes

We also introduced the concept that there are a range of other types of pre-trial processed. These processes are designed to offer parties protection Include:
y Mareva injunctions y Interim injunctions y Interlocutory injunctions y Anton pillar orders Interim Injunction (provide party with urgent protection)

 To preserve status quo during/pending the outcome of litigious proceedings Intrusive process directs party s conduct before legal right to do so established  Therefore benchmark is high  Cos of urgent nature Often sought ex parte applications SCR 246(2) : if urgent application may be made
Without notice to other party that you re seeking the court.  Sometimes this occur b/c seeking party does not want to alert Def to their action until a protective order is in place.  SCR 246 Court s power to grant injunct ion

Note the following provisions of the SCR: o SCR 246 o SCR 247 o SCR 148 general power to grant injunctions and to hear applications ex parte power to grant freezing orders (Mareva injunctions) search orders

 E.g pl may seek a mandatory injunction requiring a Def to continue to provide road access to the Pl s property pending determination of the existence of a right of way  E.G pl claiming that a Def is passing off by using pl s business name, may seek injunction to prevent Def using that name until substantive passing off claim is determined,  AN injunction left to the last minute, that could have been sought & argued inter partes earlier, may not be granted.  Conduct of the seeking party will be taken into acct: Carlton United Breweries NSW Ltd v Bond Brewing NSW Ltd

 Where urgency of case requires, an application may be made orally (i.eif Def states intention to close access road during an interlocutory application, the Pl could ask for interim injunction then & there)  Interim injunction must be directed at identified persons, not at world at large: Maritime Union of Australia v Patrick Stevedores

Criteria for granting interim injunction

Must show a serious question to be tried (on final relief sought) Balance of convenience justice)
who will be more inconvenienced if it is granted? (in the interest of

Will award of damages compensate Crt will only grant injunction only if incredible important.
(a) Serious question to be tried Challender v Royle: Crt considered that this test would be satisfied if the Pl was able to show a prima facie case, on the facts as presented, that there was a fair probability that he would be successful at trial. American Cyanimid v Ethicon Ltd: Unless the material to the crt at the hearing of the application for an interlocutory inju nction fails to disclose that the Pl has any real prospect of succeeding in his claim for a permanent injunction at trial, crt should go on to consider whether the balance of convenience lies in favour of granting or reusing the interlocutory relieve that is sought. In Australia Rem Constructions Ltd v Allco Newsteel Pty Ltd: crt suggest that it would look at qns of law in determining whether there was a serious ca se to be tried, but that the balance of convenience would be the deciding factor. (b) Balance of convenience  In determining balance of convenience crt will be guided by the justice of the case & will consider the relative benefit & detriment to the parties .  Where imposition of an interlocutory injunction is likely to have serious adverse consequences, this will be a factor. Castlemaine Tooheys Ltd v SA:Pl sought injunction against SA to prevent restriction of sale of beer not in deposit return bottles

Testing the law on restraint of trade between states Considerations

y Public Interest in pollution preventive measures y Significant loss of market share even in short period of time y Undue advantage on Pl in the battle for beer market in SA

Damages in lieu of injunction?

Crt may also decide to award Pl damages in lieu of interim injunctive relief. Crt will only do so if balance of convenience requires - ie it will not order damages in lieu of injunction relief simply b/c that is an option that is available, only if it s the fairest way to bal. The interests of parties :STA v Apex Quarries Ltd (not same test as America Cyanimid) In awarding damages in lieu of injunctive relief, crt is deciding that it s more convenient to the def to pay the pl damages and continue the conduct complained of, rather than impose an inju nction. In this way the prejudice to D is minimised, and P is not disadvantaged, pending final determination of the issue. y If crt award damages in lieu of injunction crt consider More convenient to the def

Obligations of disclosure in ex parte applications

y y y y y y Frequently applications for interlocutory injunctions are made on ex parte basis - ie party seeking the injunction does so w/out notice to other side. Crt hears that party only and op portunity for abuse if only 1 party is informing the crt as to the facts & reasons supporting the application. Ethical obligation on legal practitioner, that a party seeking an injunction has a positive obligation to advise the crt of any matter that MIGHT be have been raised by the Def if they were present Party seeking injunction must consider & raise any matters known to it that might cast a different light on the case. Disclosure is limited to material facts, not to arguments or proposition that the other side might present in support of their case- Thomas A Edison v Bullock * Failure to disclose a material fact will lead to discharge of the injunction

Undertakings as to damages/security for costs B/c interlocutory injunction is granted before substantive right to the relief sought is determ ined, and b/c the seeking party may not be successful in the substantive claim, it has potential to impose detriment on the party against whom the injunction is sou ght. Thus interlocutory injunction will seldom be granted unless the seeking party undertakes to pay any costs or damages suffered by the other party in the event that the case against them fails- Graham v Campbell

Party seeking injunction will usually be ordered to pay costs if they fail in the application. They are usually required to UNDERTAKE to pay damages in the event that they lose final case. Damages not limited to legal costs but to overall cost of loss of income/inconvenience/market share as consequence of interim injunction. May have to offer security for costs (pay money into court b4 it makes order)
Crt always has discretion in this area,-where the injunction for a short time, or other gd reasons not to seek such an undertaking, it may not require one- National Trust v Minister for Lands

Security for costs

Potential damage for the party so significant that some protection in addition to an undertaking for damages is required. Crt will order that seeking party provide security cost. Requires party to provide a nominated sum, usually by payment into court, to ensure that if they are not successful, there is no doubt about their ability to compensate the party against whom the injunction is sought. Security for costs must be sought before the injunction is granted , as it s a factor to be taken into acct in determining the bal. Of convenience, and may not be sought after an injunction has been obtained.

Are other circumstances in which the court can order parties provide security for cos ts:
y Plaintiff ordinarily resident outside Australia y Action brought in a representative capacity y Insolvent Plaintiff y There are reasonable grounds to suspect the action has been brought for an ulterior purpose y Security for costs in necessary in the interests of justice

SCR 194 If security is orders matter may be stayed until the security is provided

Mandatory injunctions
Courts will require seeking party to satisfy a higher probability of success in the substantive action b4 imposing an injunction that goes beyond preservation of the status quo & requires the party against whom the injunction is sought to take some +ve step or action: ANA vCth Appeal against injunctions Mareva injunctions To prevent a party (usually Def) from removing assets from the jurisdiction, or disposing of them, so as to deprive a pl of damages awarded against D. May also be sought where a dispute is being arbitrated, but no proceedings have been issued.

Solely to keep Defendant s assets within the jurisdiction pending resol ution of the case

Mitchelle v Saengjan -FC considered that it did not require proof of intention to remove assets, but that a feeling of unease on the part of the crt that the Def might deal with assets as to deprive the Pl of damage was sufficient.It also clear that Def s proposed actions do not have to be motivated by an intention to deprive the pl of damage- any action proposed by the Def that will have that effect, however innocent, may give rise to a Mareva Injunction: Hayden v Teplitzky

Facts: D has defrauded him, paid for mother s medical expense, he initiated a claim to get his $ back. He said whatever remaining A, application to discharge a Mareva, the arguments made b4 the court, no serious qn was established, no basis that she was going to move any asset out of the jurisdiction. Crt- said how convinced do we need to be that she s going to move them . As to whether she has her asset, was not an issue. Crt said there s a range of factual issue, - pl has strong connection overseas, nature of the fraud that she has engaged in, the fact that she hasn t disclosed all her asset, unexplained deposit in cheque account. And that was sufficient for crt to grant injunction. Feeling of unease

 May extend to a non party, only where non party holds, or is abo ut to take possession of, property of the Def: Cardile v Led Builders Pty Ltd . y If non party fail to comply with terms of Mareva Injunction is in contempt of crt;; but may apply to the court for variation of the terms of a Mareva Injunction.
Duty of disclosure on ex parte application for mareva injuction Is the same as for an interlocutory or interim inju nction. If a Mareva injunction is discharged on the basis of failure to disclose a material fact it cannot be immediately reimposed, as is the case with interlocutory injunctions. Search Orders

Court can also make a search order under which allows people to enter premises and secure evidence: SCR 148

Anton Piller Orders

Avail limited circumstances, to enable a party to seek ex pare orders to enter premises & search for & Seize docs and items that infringe the pl s I.P rights. An order can extend to requiring a Def to disclose the names & address of persons with whom the Def has had dealings in relation to the pl s i.p Anton Piller KG v Manufacturing P rocesses Ltd - Lord Denning describes, applies ex parte, ask crt to intervene, was a copy right case, party seeking anton piller order, thought that there was confidential document, that would breach the copy right. (afraid other side will destroy it if aware) . At the time that was permissibleCrt recognised this is an extreme order- w/out the other side, infringement of a parties right. This type of order can only be granted ex parte, where there s a grave danger if notice was given, where inspection would do no harm. Upon execution of party, a solicitor has to be presen t and acting as an officer of a crt to assist party to whom the party is being executed. Orders to preserve Property

 Crt rules provide a mechanism for preservation, repair, and inspection and testing , of property or material that is the subject matter of the action.  Property includes any land, chattel, or other corporeal property . Does not include a right to test or impose medical treatment on a person.

 Right to inspection extends only to things, right to test may include running of machinery, or the medical or scientific testing of material or parts of material, even if effect of test will be the destruction of the material.  Property may be inspected, photographed, detained or preserved.
Samples may be taken, property may be observed, and experimentation (provided does not result in the destruction of the property or disfigurement of a work of art) is permitt ed. Duties of Solicitors

Injunctions are intrusive and interfere with rights Applications are often ex parte Solicitors must disclose ALL relevant information known to them on ex parte applications, even if it is against their application (cannot mislead by silence ) Lawyer = officer of court

Appeals & Judicial Review, Judgment & enforcement, Res Judicata & issue Estopel Enforcement & Appeal= general principles
Enforcement: Enforcement of Judgments Act 1991. Appeal: at common law there was no appeal so appeal must seek justification in statute. Basically appeals in SA cts go to Supreme Court (Full Court or single judge): s 50 SCA; s 40 MCA (cf s 38 minor matters reviewed by DCt); s 43 DCA (decisions of Masters to DCt judge). Generally no appeals from interloc matters only final determination of rights: Carr v FCA

Administration Review
Note DC given appellate jurisdiction re various administrative/discipline bodies (Pt 6 Div 2 DCA). Also Supreme Court exercises administrative and judicial review by means of prerogative writs: SCR 199.Certiorari, Mandamus, Injunction, Prohibition, Habeas Corpus

Appeals
 Is a right given by statue Permits a party to an action to seek to set aside a judgment, findi ng or order of a court or tribunal.  Building Licensing Board v Sperway Constructions  The legislation governing the particular matter (e.g TPA or the AAT act)

Types of Appeal
An appeal Stricto sensu

 [looking at material that the 1 st crt had b4 it, reviewing it & deciding whether 1 st crt has made the right decision based on the evidence avail at the time]  Confined to the question of whether the judgment, at the time it was delivered, was correct. There s no question of introducing fre sh evidence in the appeal court.  All that is decided is whether the crt below came to the right decision on the material that was before it at the time of the decision.

Appeal by way of re-hearing (most common type of appeals to SC)

 Involves a rehearing on the documents.  In addition to reviewing the transcript & other material before the first crt the appeal court has the power to hear fresh evidence & to draw inferences of fact.  Rehearing does not mean whole case can be re-litigated. (the evidence is not re presented), but there is power to receive further evidence (at discretion of the crt) and the rights of parties are determined as they exists at the date of appeal, not date of original judgment.  Can substitute version of fact and law  Court reluctant to interfere with decisions of fact Onus to show decisions clearly wrong: Edwards v Noble.  Also reluctant to interfere with decisions about the credibility of witnesses: Warren v Coombes  Discretion will only be interfered with if can be shown decision wro ng or did not take a required matter into account: House v R eg Olshack.

Appeal de novo
 [Crt hears al the evidence again , go through all the process as an appeal process]  appeal crt hears the entire matter afresh. There is a completely new hearing where evidence is led from the beginning and the court hears all witnesses relevant to the proceedings. (This is distinct from an order by the Appeal crt that the case be remitted to the original crt for rehearing)

Hybrid appeals
May create any type of appeal that it wishes. The legislature may create a hybrid that exhibits features common to more than one of those categories. Deciding the type of appeal Relevant factors may include:

   

nature of the body appealed (crt or administrative tribunal) Whether there is provision for a hearing at first instance Whether a record is kept of proceedings Whether the body below is bound to apply the rules of evidence

Appeal by way of rehearing?

    

Appeals will be limited to qn of law, with appeal crt correcting errors of law o n appeal The qn is whether appeal court should substitute its own view of the facts. It will only do so if the view of the facts by crt below is clearly wrong. It will interfere only if the finding is not reasonably open on the evidence [although can argue previous crt got the facts wrong, u have to have an extraordinary strong case that that is the case- decision so wrong that no sane person would have made it. Or original crt did no take into acct some important factual matter or grossly over emphasised on some unimportant info can argue they deal with evidence wrongly]

Appeals involving interlocutory matters

Appeal on an interlocutory matter (a matter which is not a final judgment) will require leave, either from the crt appealed from or the court appealed to. The test of whether a judgment or order is final or interlocutory is whether the judgment or order appealed from finally determines the rights of the parties.

 Hall v Nominal Def: illustrates, an interlocutory order may have the effect of preventing a litigant from ever again re-opening litigation.  Only orders which deal directly with the rights in contest in the action will be classified as final
Appeals from Magistrates Court S40-44 set out the rights of appeal to SC from decision s of Magistrates.

 A magistrate may refer a qn of law to the SC for determination  Appeals against Minor Civil Actions are in the form of a review by the DC  S 38 of MC Act sets out the formalities & bases for rev iew. The determination of the DC is final.

Appeals from District and SC

 District Court- Section 43 of the DC Act sets out the provisions for appeal against DC judges or Masters
Judicial Review (the prerogative writ) JR is available where the prerogative remedies of certiorari, prohibition or mandamus would previously have been available. (no longer avail by those names SCR 199) The power of SC to review decision of inferior courts, public authorities and th like is inherent power derived from the C.L.

 SC is superior court of unlimited jurisdiction. It is not itself subject to judicial review: Re Gray Ex P Marsh
(1) What bodies are subject to judicial review?  Bodies that exercise public functions are subject to administrative law- giving the SC an extremely wide jurisdiction: e.g  Bodies or person established or empowered by statue  Bodies or persons exercising the Crown s personal powers  Bodies or person empowered by contract to exercise public pow ers  Bodies or persons exercising public powers of their own volition, such as self regulating organisation.  All activities of the Crown will be susceptible to Judicial review. SC is excluded. (2) What is judicial review concerned? JR will lie for any one or m ore of the following.  (A) Illegality involving errors of law by a decision maker decision maker is acting beyond power.  (b) irrationality- so absurd, no reasonable decision maker could make  (c) procedural impropriety- involving decisions that deny natural justice or the right to a fair hearing. (3) Judicial review is a discretionary remedy SC having power to grant relief by way of JR may decline, its discretion to do so. E.g in criminal proceedings it may (4) How is judicial review initiated?  JR is initiated by summons, & leave of the crt is required to serve the summons (SCR 200)  An affidavit by the pl in support of the summons is required: SCR 200  The summons is required to be issued as soon as practicable after the date upon which the grounds arise & no longer than 6 months after the grounds of review arise (SCR 200).  Extension of time can be granted in the discretion of the court. (5) Cth judicial & administrative decision The SC has no jurisdiction to review such actions. JR of such decision must be sou ght in FC pursuant to Administrative Decision (Judicial review) Act

Judgment (Appeal/Enforcement)
Formal resolution of the causes of action litigated between the parties: action merges with judgment.
(1) Given by court following the hearing of the action. (2) Default judgment. (3) Summary judgment. (4) Consent judgment: SCR 227

Default Judgments
 Is a crt order not sth that happens auto. (party fail to file a pleading or conssinstey fails to follow to do what crt order it to do)  SCR 228 provides where a Def fails to file a defence within prescribed time, the pl may, w/out permission from the Crt, enter judgment by default.  IF def fail to file a def with time period to a SOC then pl can apply to have judgment default signed against them simply an application that goes to crt and say such affidavit we failed claim, there has been no defence- we request crt sign judgment against the def and that would be an administrative action that is taken within the registry. It s liquated or known - so e.g breach contract- owe me $450, crt will sign default judgment for that. If unliquidated claim (damage)(amt to be assessed by the crt) e.g injury pl claim damage- but have access to damage, then judgment is signed on liability. Def loss but pl has to come back to satisfy h ow much they should get- sign fault judgment against D.  SCR 12 empowers crt on its own initiative or on application (under SCR 228) to make an order dismissing proceedings eg where a party disobeys an order to perform a procedural step in a certain time.  Does not involve determination on the merits (not a judgment on a merit , whether pl deserves to win- simply saying cos they didn t engage, u win what u ve asked for)
1. Court ordered: fails to file pleading or procedural irregularity seriously prejudices the proper and expeditious conduct of the action; SCR 12, 228. 2. Automatic : failure to file a defence: SCR 229. Interlocutory (cf final) judgment where unliquidated claim.

3. Failure to appear: SCR 234.

Setting aside a Default Judgment

Court may set aside: SCR 230 by application of party concerned court
generally at discretion of the

cf NAB v Singh - if arguable defence.--> need to provide legitimate reasons why they defaulted and arguable case.  
b/c didn t think have to, wasn t served, in hospital.. have to say why didn t, or I was advised by my lawyer I have a good case or defence. Is not on the merits of case , crt will set aside judgment when a Def can demonstrate a good ground of defence: NAB v Singh

 The longer u leave it to set aside, the less likely to successful to set aside judgment. Process for setting aside judgment in default: file application for directions seeking the order, together w/ affidavit explaining reason for non appearance in the first instance, and stating the fa ct that an arguable defence is available.

Summary Judgment (hopeless)

 Involves some consideration of the merit of the case judge forming opinion whether u should win or lose)  Granted when case of other party is hopeless - has no reasonable chance of succeeding. (so seek summary judgment to save cost)  If D is given a summon that doesn t give rise to a ll. They will seek judgment signed against the pl. And Pl can have judgment signed against Def, if for e.g a defence is file & does not disclose a proper defence i.e that defence is never gonna win. So instead of saying it s a weak case say it s hopeless and should not proceed at all and that s when party seek summary judgment  If the facts of the case show there is a reasonable basis for a claim - application will fail  SCR 232 governs application for summary judgment on the basis there is no reasonable basis for defending or bringing a claim. ( can be made when issuing proceedings, summary judgment sought must be endorsed on the summons(pl). Alternative may be made by either party after issuing of summons. Judgment where claim or defence has no reasonable basis: SCR 232. Made on application (power to apply should not be abused). JT Nominees v Macks : Bleby suggests words of new rule should be given their nat ural interpretation having regard to the reasons for such a rule cf Cubillo v Cth clear no real question to be tried . HC in Cubillo v CTh - suggests the power to order summary judgment should be exercised with exceptional caution. Should never be exercised unless it s clear that there is no real qn to be tried. Cubillo: (stolen generation)FC: one of the response of the def, cabillo, was asser ting entitle to damage for stolen child. The respondent (def) sought summary judgment signed on the basis that it was a wild shot, that there was a duty of care that has not been breached. But what crt said in that case was not that u have a weak case, that u have real qn to be tried. So distinguishing b/w a case that might not be successful- there s really not a qn to be tried here. Look at a case that doesn t really raise an issue, that can be determine or raise in issue that s inapplicable, that it s n ot gonna lead anywhere. If def fails to appear at the hearing , then, provided the pl would have been entitled to judgment if the def had failed to file a defence, then the crt may enter judgment in default of the def s attendance:SCR 234(2). If pl fails to appear when an action is called on for trial the crt may enter judgment dismissing the action SCR 234(1)

Non-judgmental determinations (admin action) 1. Discontinuance: SCR 107, 108 (unless court orders otherwise) :
Any1 can discontinue an action, u need le ave of crt to discontinue an action- can discontinue w/out crt considering whether u should pay cost (packer v mar - pl was to initiate and w/draw in last minute preposition for can t discontinue unless crt gives other side opportunity to get their cost, can discontinue that doesn t involve judgment on merits.)

2. Dismissal for want of prosecution: SCR 123 : if a pl just let a case lapse and doesn t pursue it
then crt can just chuck it out, if pl can t be found or hear & doesn t respond to any of the orders; doesn t make discovery, can t can say.. look this is not working I m dismissing the pl s claim just a procedural matter. Pl can come back with leave and try to ta ke that matter again.

3. Struck out as disclosing no cause of action: SCR 193 : (SOC did not disclose a COA - crt threw it out, striking out is an admin action not a judgment) Def might apply to struck out the claim say can do better to disclose a COA. 4. Stay of proceedings: SCR 192: Doesn t end the case, doesn t prevent a case from coming back
from a new SC simply a freezing of proceedings to dismissing for want of prosecution or punishing a pl for failure to comply w a rule. Is to order a stay or freezing of pr oceedings. Stay is always detrimental to the pl & to the benefit of the Def. follow 2-3 none of these require a judgment on liability. Effect of Judgment

Can be formally enforced cf agreement Cause of action merges into jud gment and cannot be relitigated -->means COA r adjudicated by crt & judge gives a judgment on each COA. They become joined for all time. Those causes of action they become joined for all time. Those COA can t exist independently of the judgment ever again meas once u got your judgment on a COA it s over gives raise to res judicata- means facts has been decided all COA stopped. The facts relating to that COA has been determined by crt, u can t go back there again & look at them again. Policy reason u need finality of litigation the crt would be a mockery if u keep trying over & over again. TO protect individual from repetitive or unwarranted litigation. Plea of Res Judicata or cause of action estoppel Reasons:
(1) finality of litigation (2) protects individual from vexatious litigati on.

Finality of judgments - Res Judicata & issue estoppels

(1) Res Judicata (1st doctrine): Applies b/w same parities. So if A or B is involved in litigation & judgment is give on a dispute b/w A& B that resolves that matter once and for all. But doesn t

prevent A from suing C on exactly same COA. Always b/w the parties, the parties are privity. Res juicata arise b/w the same party it does not catch a non-party principle is that where an action has been brought & judgment has been entered no other proceedings can afterwards by be brought w/ regard to the same subject matter b/w same parties. (2) Must be a judgment and not a determination by other means (3) Rogers v Legal Services Commission: action struck out - no res judicata.

Res Judicata: Scope

Same parties Plea extends to matters judgment necessarily establishes as the legal foundation or justification of its conclusion : Dixon J in Blair v Curran at 531. Cause of action estoppel: look to record. : also called res judicata depends v heavily on the pleading when they look to the record. That s y what u plead is so important, cos if establish future parties/future litigant- what was decided in that case. Brunsden v Humphrey (1884) 14 QBD 141. negligence actions re injury and damage to car separate actions.--> 1 COA and another later. Not same action SOC in 1 st 1 talked about personal claim, resulted in injury that was COA. 2 nd 1 talked about someone negligence act result in damage different COA.

Anshun estoppels (2nd Doctrine)

 Is when it s unreasonable to have a 2nd go for sth u should have bought up 1 st time (could be facts or COA- that could be dealt together).--> if only sue on 1 of them; can come back & sue o the other 1. Very common to sue for damage of car 1 st cos urgent for work & 3 yrs later sue for injury. Common event. Need to be aware that if u take action for property damage & settle it, need to be settle w/out prejudice to any other claim arising from that accident.  Problem - causes of action not pleaded eg plead only neglige nce and now wish to sue for breach of statutory duty?  Port of Melbourne v Anshun Pty Ltd - indemnity not raised as defence to contribution proceedings.  Pl raised a no. of series of COA pleading negligence and then got a decision & then wanted to sue same party for breach of statutory duty. Also raised a qn of indemnity which was part of a relationship b/w pl & def and that has not been a defence that has been raised by the defence, so number of issues that hasn t be raised in the first instance, that shoul d have been raised.  Crt found: technical u r allowed to bring another matter up in a separate proceeding later; if on a careful assessment of the case u should have included that the first time round, then u can bring it up later u r responsible to raise things that r relevant & obvious. So if u forget it s obvious it could be soughted out at the same time as original, u can t raise them again later. It s more of administrative and policy decision.  Estoppel re every issue so relevant that unreasonable not to raise it: eg Gibbs v Kinna.  Problem - subsequent action against different parties:  Rippon v Chilcotin .--> A party took action against Def, then sought action to take against another party for the same damage. Also permissible out in this particular case, crt found that it will not permit that & subject to Ashun estoppels. Pl sued a partner in an unsatisfactory business adventure & judgment

was obtained. Pl then sued accountants (3rd party) who given advice- that made representation that has influenced them to enter into unsatisfactory venture. Stranger to 1 st proceeding & judge said although no prejudice to the accountants , if they were sued in the 2 nd action, the relevance of the accountants were they were so closely related to the issue b/w pl & def . The issue presumable being why pl enter the arrangement , what advice did they reply on etc.the relevance of the accatns action was so closely related to the issue b/w pl & def. that it would be against the interest of administration of justice to drop these proceedings out or re-issue similar proceedings & might be against admin cos crt might result in conflict judgment judgment might be used in 2 nd and result in different outcome. V important public consideration, so they apply the principle of anshun a cross to a non-party or a new party. U can argue that it should apply more broadly & crts may decide if u should be applied more broadly. Issue Estoppel

Relates to determination of facts in a crt process but does not necessary relate to judgment so if a factual issue has be decided by crt; u can t go back to crt & argue the contrary of that issue, can t go to crt say i.e you re not ill cos that has already been decided in the previous crt just a finding of facts. No res judicata ( cause of action estoppel ) but issue estoppel may arise in relation to matters of fact or law determined by a judgment in proceedings between the same parties. Eg Brunsden v Humphrey. No res judicata but might argue issue estoppel re findings of negligence.

Jackson v Goldsmith:

W (Bike rider) sued J (driver) who claimed contribution from G (driver of other car) G had sued J and found not to be negligent J responded with plea of res judicata No res judicata as c of a different
No issue estoppel as no findings re negligence of G re W J claimed contributory of another car.  J has previous sued G, co J car was damaged.  G theory was car damaged cos J was driving like a maniac. IN that prior finding crt found G was not neg. In relation with his action with J  2nd case J responded w a plea res judicata. Crt found cos the COA was different (G & J was neg b/w the two) the COA b/w G was contribution to J as a 3 rd party.  Crt said nature of the action was different 1 was direct negli, 2 nd was contribution neg claim for 1 against another, crt found not re judicata, they were different COA & did not result in an issue of estoppels. Reason y issue estoppels isn t raised cos case of G v G when G found not be neg, u think that might be same issue but wasn t.  GVJ did not estpp that same issue; did not estopp a finding that Gold had been Negl to Watson.

Issue Estoppel: Exception

Plea of issue estoppel may be met by argument of special circumstances Arnold v Nat Westminster Bank: further material that could not with reasonable diligence have been put forward.:( material wouldn t be found and put forward in time for orig. claim. Crt looked at conduct & said nothing u could really have done to anticipated that issue earlier so we would not estopp u from raising it Cf Res Judicata: Chamberlain v Dep Comr of Tax : Consent judgment for mistaken amount. Cause of action merged with judgment. No cause of action to later assert. Only remedy to set aside earlier judgment. (COA merged w/ judgment. Crt found commission of tax could not sue him for remaining $)

Enforcement of Judgment
 What if other side doesn t pay. If def. has trouble paying crt can give orders as to how payment should be paid.  If pl reqires to pay- u request payment on a set time. in to my trust acct by x if doesn t happen u lodge the judgment in the crt & make an application to get your $ back and ask for a crt order that the def/pl pays it back in installment.
Step 1 getting to court Step 2 Winning Step 3 getting your money back! Enforcement of judgments: Once you have judgment, given by the court (whether that be consent, by default, by judgment). If the other party does not pay?? 1 2 3 Request payment (within a set time, if none set by the court) Lodge the judgment in the court Ask the court to order that the Defendant (or plaintiff) order it to repay.

Enforcement of Judgments Act 1991 SA

Authorises MC, DC, SC to:  Investigation Summons i.e if def hasn t paid; next step is to call them up b4 the c rt & the crt will qn them as to y they haven t paid & whether they can afford to pay and that s called an investigatory summons. After that pl. say got no $ and can t afford, so after that investigation crt might say u pay $100p/w or 3 installment of x.  Investigate circumstances of defaulting party (Pl if represented can qn party y haven t paid. i.e can u get a loan- investigate def as to how to pay.)

 Garnishee of wages (or bank accounts or incoming funds etc) (i.e order 20% of their wage paid over to pl)  Warrant for sale of property ( if worse comes to worse- sell it & give $ to pl)  Warrant for arrest for contempt of court (failure to attend or pay as ordered) *not common

Enforcement Process

Creditor applies to have debt enforced Lodges proof of judgment Attests that not paid (or not all paid ) provide an affidavit saying I haven t received any $ or they ve only paid half, and haven t paid the rest Court calls Debtor to explain (investigation hearing) Makes orders for partial or delayed or full payment, or associated orders.

Ethics
Duty to obey the Law
Practitioners have obligations in relation to the law and its institutions which extend beyond their obligations as ordinary citizens to obey the law. Being privileged participants in the administration of justice, practitioners also have a responsibility to foster respect for the law and its administration NSW Court of Appeal in the Wendy Bacon case.

1a Professional conduct rule- to act honestly, or likely to diminish legal prof.

If a client engages in unlawful conduct the practitioner should counsel the client against it and avoid any personal involvement A practitioner may advise a client to engage in conduct the lawfulness of which is uncertain, provided:

1. the advice is given in good faith to test the validity or scope of the law 2. the client is informed before advice is given of the likelihood and consequences of the conduct being found to be illegal 3. the client has freedom of choice on what action to take
A practitioner must not advise a client of ways in which an unlawful purpose may be achieved, or suggest or propose methods of breaking the law. (cant turn a blind eye if your client is inappropriate) Barrister s Rule 6.6

Duty to the Court

There is a duty at C.L to act with honesty and candour in all dealings with courts and tribunals: RPC&P 2003 rule 1.1. This duty means that a practitioner must not knowingly mislead a court on any matter: RPC&P 2003 Rule 14.1.

(Can t knowingly mislead a court on any matter. A duty of honesty overrides any- duty to the client. )

The duty of honesty and candour to the court overrides, in the event of conflict, duties owed to the client Rondel v Worsley [1969] 1 AC 191 and Giannarelli v Wraith (1988)165 CLR 543.

The sole exception is where the duty of confidentiality owed to the client arises by reason of a client s legal professional privilege - R v Derby Magistrates Court; Grant v Downs

Practitioners must be in a position to exercise a degree of independence and objective judgment

Components of Duty to the Court The duty to the administration of justice has four components:
Duty of candour (to disclose the applicable law and not to mislead about the facts) Not to abuse the court process

 Not to corrupt the administration of justice To conduct cases efficiently and expeditiously SCR3

Candour in disclosing the law

y

Practitioners must not mislead the court as to the law and must ensure that the law is correctly applied by the court. (Duty to crt to prepare properly. Research, Reveal it to crt, not relying on secondary source w/out making sure primary source was right. ) Practitioners must not withhold authorities which are directly in point against their client s case-See RPC&P 2003 rule 14.6 and Barristers Rule 8.7

Candour in presenting the facts

Practitioners must not present to the court any evidence that to their knowledge is false or misleading. Nor must practitioners mislead the court by concealing a material fact

Meek v Fleming: prior to case , deceiving crt, found guilty of perjury. Nothing was done to correct that misapprehension, should be set aside, substantial misleading court in silence.)
An innocent misstatement must be corrected by an advocate as soon as possible after becoming aware of it (RPC&P Rule 14.2 and Barristers Rules 8.2 and In re Foster ) A practitioner does not make a misleading statement merely by failing to correct an error of fact made by another party (RPC&P Rule 14.3 and Barristers Rules 8.3 contrast with Meek v Fleming ) Practitioners must not be party to the presentation of evidence, or making of allegations, that lack sufficient evidentiary foundation - see RPC&P Rule 16.1 16.7 and Barristers Rules 8.11-8.17. Practitioners must take reasonable steps to verify a client s contentions, especially where serious allegations (such as fraud or child abuse) are made - Y v M [1994] (Have to believe it s a possibility, need some evidence that s something has happen, have to take reasonable step. ) The duty of candour is subject to some qualifications arising from requirements of the adversary system. While practitioners are obliged to act honestly in all positive statements made to the court, they are not required to: disclose the identity of a witness they propose to call who will give evidence adverse to the other side call every witness able to give relevant testimony correct errors of fact made by another party Ex parte applications are not by nature adversarial so there is a duty to make full disclosure to the court RPC &P rules 14.4 and 14.5 and Barristers Rules 8.4 and 8.5, which set out special rules in ex-parte applications Advocates who knowingly mislead the court are guilty of unsatisfactory or unprofessional conduct.

Duty Not to Abuse the Process

A court has inherent power to prevent abuse of its procedure. y

can order costs personally against a practitioner responsible for the abuse

 Abuse of process y

using court process for an ulterior motive

Other types of abuse of process include: y

Making baseless allegations of criminality, fraud or other misconduct on the part of the other party, witnesses or third parties (Wentworth v NSW Bar Asssociation) Instituting appeals where there is no genuine argument to advance - Saragas v Martinis

Duty not to corrupt the administration of justice Client perjury

If, before judgment, a practitioner is informed that the client or their witness has lied to the court in a material particular, or falsified documentary evidence, the practitioner must not inform the court without the client s consent, but must refuse to take any further part in the case unless the client authorises disclosure - see RPC&P Rule 15.1 and Barristers Rule 8.27.

Conniving at improper conduct

A practitioner must not condone or connive(plot)at perjury or fraud, whether in or out of court.

Client intending to disobey court order

If a practitioner learns that a client intends to disobey a court order, s/he must advise the client against that course, but must not inform the court without the client s authority RPC&P Rule 15.3 and Barristers Rule 8.28.

Dealing with witnesses

A practitioner s role as a participant in the administration of justice carries responsibilities concerning the integrity of evidence presented to the court. Reflecting this duty are various rules concerning conduct in relation to witnesses see RPC&P rules17.1-17.4 and Barristers Rules 8.21-8.26

Contacting opposing party

Practitioners must not confer or deal directly with the opposed party unless the party is unrepresented and consents to the contact - - RPC&P 2003 rule 18.4 and Barristers Rule 7.9

Communications with judge

Practitioners must not without consent communicate to the judge a matter of substance in the absence of their opponent RPC&P 2003 rule 18.4 and Barristers Rules 7.6-7.8

Duty to conduct cases efficiently and expeditiously

The traditional view was that the role of counsel was not to judge the validity of arguments advanced in support of the client s case, but to pursue every fair argument and put such matters in evidence as they think will be most to the advantage of the client - Tombling v Universal Bulb Co Ltd Today it is accepted that practitioners have a gatekeeper role in screening out unreasonable or hopeless arguments and cases A practitioner s duty to the court involves exercise of independent judgment in the conduct and management of a case in which s/he must have an eye, not only on the client s success, but also the speedy and efficient administration of justice - Giannarelli v Wraith

 An advocate s immunity has been justified on the basis that counsel is sometimes required, against the client s wishes, to prune the case of irrelevancies - Rondel v Worsley Part of the responsibility of counsel in any trial (criminal or civil) is to cooperate with the court and each other to ensure that the system of justice is not betrayed. Counsel are entitled and obliged to deploy such skill and discretion as the proper protection of their clients interests demand but they must bear in mind that they are exercising a privilege as well as fulfilling a duty in appearing in a court of law - R v Wilson and Grimwade

Duty to other Practitioners and to the Community

RPC&P 2003 preambles establish an expectation that practitioners will conduct dealings with other practitioners and members of the community with honesty, fairness and courtesy and in a manner conducive to advancing the public interest. This reflects the public service responsibilities of practitioners as members of a profession. Practitioners must be able to rely on the representations and assurances of other practitioners, hence the strict rules regarding personal undertakings [Note however that undertakings are risky when you do not know the other practitioner and their oral acceptance may even constitute negligence]. RPC&P Rule 22 requires solicitors to comply with any personal undertaking given (including undertakings given by an employee) in connection with engaging in legal practice and with personal undertakings given (whether or not in connection with legal practice). Practitioners should not disclose communications with other practitioners or parties that are expressed to be without prejudice or are otherwise privileged - BR 7.4 Practitioners should avoid making disparaging or derogatory remarks about other practitioners (RPC&P 2003 R 21 avoid offensive or provocative language or conduct ) Avoid taping conversations with another practitioner without their consent it is an invasion of privacy Avoid Notify another practitioner before giving a second opinion on a matter, at the request of their client, or lodging a complaint against them, or attempting to contact their client! - see RPC&P Rule R 25* It is improper to induce an opponent to make a mistake by means of a deliberate misrepresentation. It may also be inconsistent with a practitioner s duties to the profession, the community and the court to foster or induce a mistake which may involve the other practitioner s client in unnecessary expense or delay - Chamberlain v Law Society of ACT

Duties to other Members in the Community

The general principles of professional conduct also cover communications with other members of the community, including, for example, undertakings given to third parties The duties are substantially the same as those owed to other practitioners. This means avoiding insulting, acrimonious or offensive correspondence or correspondence designed to intimidate the other party. Resist pressure from clients to put the other side down - clients must know that you act first in the public interest, and that that requires some distance on your part from their animosity. It also means a practitioner must not state as true something they believe to be untrue, make statements calculated to mislead the other party, or threaten criminal action if a civil matter is not settled. - RPC&P Rule R28*

 A practitioner should not communicate directly with a person known to be represented by another practitioner in the matter without the other practitioner s consent: RPC&P Rule R25.1.1. The prohibition does not apply in exceptional circumstances, such as where the practitioner has been trying to get a response from the other party s practitioner and there has been no response after repeated attempts: RPC&P Rule R 25.1.2

The duty of honesty and candour to the court overrides, in the event of conflict, duties owed to the client Rondel v Worsley [1969] 1 AC 191 and Giannarelli v Wraith (1988)165 CLR 543. The sole exception is where the duty of confidentiality owed to the client arises by reason of a client s legal professional privilege - R v Derby Magistrates Court; Grant v Downs

The importance of professional independence

Because the duty to the administration of justice overrides duties to the client, practitioners must be in a position to exercise a degree of independence and objective judgement saying No to a client

This means practitioners should not handle cases in which they have a potential conflict of interest or where, by reason of their relationship with the client, their professional independence may be compromised Practitioners must not mislead the court as to the law and must ensure that the law is correctly applied by the court. Practitioners must not withhold authorities which are directly in point against their client s case


See RPC&P 2003 rule 14.6 and Barristers Rule 8.7

A more stringent duty of disclosure has been enunciated by the English Court of Appeal in Vernon v Bosley (No 2) [1997] 3 WLR 683:

A litigant has a duty not to mislead the court or the opponent. Where there is a danger the court will be misled, counsel must advise the client that disclosure should be made.

Duty not to abuse court

In White Industries v Flower & Hart, Goldberg J found that a solicitor had initiated proceedings with no substantial prospects of success. The solicitor s purpose was not to vindicate a right of the client, but to postpone payments by his client under a building contract By seeking to effect an object beyond what the legal process offered the solicitor s action was an abuse of process. There were three grounds of appeal to the Full Federal Court from Goldberg J s decision:

1. The finding that the solicitor had an improper purpose depended on findings against CallinanJ which relied on material not put to Callinan J in cross-examination. 2. Goldberg J erred in concluding the proceedings had been instituted for an improper purpose since he had not made a positive finding that there was no arguable case. 3. Proceedings for the purpose of delaying, or compromising, a claim were not an abuse of process. The Full Court affirmed Goldberg J s decision and found against the appellant on all grounds: 1. The finding that the solicitor had instituted proceedings for an improper purpose was madeindependently of the findings regarding Callinan s purpose. The solicitor was bound to turn his own mind to the prospects of success and to the purpose of the proceedings. Recent English cases indicate that it will be unusual for a court to find an abuse of process merely because a hopeless case was pursued. A practitioner does not act improperly simply because they act for a party in a case doomed to failure. Practitioners must advise clients of weaknesses in their case but clients are free to reject this advice and insist that the case be litigated - Ridehalgh v Horsefield

Confidentiality

Rules of Professional Conduct and Practice, Rule 3:

A practitioner must never disclose to any person any information which is confidential to a client unless

3.1.3 the practitioner discloses information in circumstances in which the law would probably compel its disclosure, despite a client s claim of legal professional privilege, and for the sole purpose of avoiding the commission or concealment of a serious criminal offence

Rules of Professional Conduct and Practice, Rule 30 30.1 a practitioner must not engage in conduct, whether in the course of practice or otherwise, which is 30.1.2 calculated, or likely to a material degree, to : (a) be prejudicial to the administration of justice (b) Diminish public confidence in the administration of justice Rules of Professional Conduct and Practice: Confidentiality

3.1 A practitioner must never disclose to any person, who is not a partner, director or employee of the practitioner's firm any information, which is confidential to a client and acquired by the practitioner or by the practitioner's firm during the client's engagement, unless: 3.1.1 the client authorises disclosure; 3.1.2 the practitioner is permitted or compelled by law to disclose; 3.1.3 the practitioner discloses information in circumstances in which the law

would probably compel its disclosure, despite a client's claim of legal

professional privilege, and for the sole purpose of avoiding the probable commission or concealment of a serious criminal offence; 3.1.4 the information has lost its confidentiality; or 3.1.5 the practitioner obtains the information from another person who is not

bound by the confidentiality owed by the practitioner to the client and who does not give the information confidentially to the practitioner. 3.1.6 In the practitioner's opinion the disclosure of the information is required to prevent imminent serious physical harm to the client or to a third party.

The cab rank rule:

Requires barristers to take on any client that requires their services provided that they have time/expertise/no conflict of interest

See South Australian Barristers Rules, Rules 4.3-4.6