Académique Documents
Professionnel Documents
Culture Documents
Procedural law is the laws of the court and how to bring about a claim, as
opposed to substantive law, which includes actual rights, duties, powers and
liabilities.
Case Management
Case management is the idea that judges manage cases in order to increase
efficiency and give effect to the overriding purpose. The judges have the power
to give directions to fulfil this duty:
r 2.1 - the court may give directions and make such orders for
the conduct of any proceedings as appear convenient for the
just, quick and cheap disposal of the proceedings
o r 2.3 - directions and orders may relate to and of the listed court
processes for the purposes of case management
Application:
o Courts balance the dictates of justice (allowing parties to
make amendments etc) against the need to
keep proportionate costs and eliminating delay
o Court is required to give weight to all three
considerations: Dennis v Australian Broadcasting Corp
o The powers of the court to issue directions and so on under the
CPA and the UCPR mean that the process of justice is overlaid
with the consideration of delay and costs: Aon Risk Services
Australia v ANU
o There is no right to an indulgence (eg, amendments of pleadings
or adjournments), costs order not always sufficient to
compensate injustice: Aon Risk Services Australia v ANU
o
Interim injunction
o Supreme Court can issue whenever just or convenient by
virtue of its inherent jurisdiction and s 66 (4) of the Supreme
Court Act 1970
o Federal Court has power under: Federal Court of Australia
1976 (Cth), s 23
o District Court has limited power to grant temporary injunctions
for a period not exceeding 14 days or exceeding that period if
necessary to enable Supreme Court proceedings to be
commenced or heard: District Court Act 1973, (NSW) s 14
Applicant must show that there is a prima facie case
and that the balance of convenience favours the order
being made. Usually continue for a short period of time
(measured in days)
Freezing orders (Mareva injunction) - restricts disposal of assets
when there is a danger that the party will abscond/not be able to pay:
25.11, r 25.14
o Delivery of assets as security goes well beyond a freezing
order: Jackson v Sterling Industries
o Can be ordered against third parties if (Cardile v LED Builders):
1. That party holds power of disposition over assets of potential
judgment debtor, or
2. When some process enforceable by courts may be available
to judgment creditor pursuant to which third party may be
obliged to contribute funds to help satisfy judgment debt (for
example, a guarantor)
Search orders (Anton Piller Orders) - seizure of documents and
other evidence obtained on an ex parte basis: r 25.19 UCPR. Test for
search orders is (r 25.20 UCPR):
1. That an applicant seeking the order has a strong prima facie
case on an accrued cause of action; and
2. The potential or actual loss or damage to the applicant will be
serious if the search order is not made; and
3. There is sufficient evidence in relation to the respondent that:
Preliminary Discovery
Preliminary discovery is a form of discovery applied for before the proceedings
even start. A party may apply for preliminary discovery for one of the following
purposes:
the court should not refuse to exercise its discretion: Panasonic Australia v
Ngage.
Court-annexed Mediation
Court-annexed mediation is mediation that is forced upon the parties by orders
of the court. The discretion to refer (unwilling) parties to mediation arises under s
26 of the CPA.
The discretion is very wide, the only bar being if the court believes
mediation would be pointless: Higgins v Higgins. Mediation is
appropriate:
o When litigation is complex and protracted
o When the court thinks that the parties' approach to the
proceedings is being unduly influenced by subjective
considerations and might benefit from a skilled conciliator
Parties must participate in mediation in good faith: s 27
The court can give effect to any agreement made during mediation
proceedings: s 29
Statements made during mediation are protected (can't give rise to
defamation): s 30
Mediator cannot disclose any of the information obtained in the
mediation unless in one of the cases mentioned in the CPA: s 31
A mediator has the same protection and immunity as a judicial officer:
s 33
ADR clauses in contracts are enforceable by courts: United Group Rail Services v
Rail Corporation NSW
o
o
Causes of Action
The broad principle of res judicata (claim preclusion) means that previous
matters already decided cannot be brought up again. It is operated through
various forms of estoppel:
Pleadings
Pleadings are formal claims, defences and replies stated in documents in a trial
scenario.
Discovery
An order for discovery means that one (or multiple) parties have to make all
documents of a certain class available to the other parties for inspection: r
21.2.
All documents within the class specified by the court must be made
discoverable, regardless of whether the party considers them
relevant: Priest v NSW
o Class of documents should not be too general (otherwise the
order is oppressive): r 21.2 (2)
No discovery for personal injury unless there are special reasons: r 21.8
o Special reasons in this context: unusual or different to take the
matter the subject of the discretion out of the ordinary
course: Priest v NSW
Discovery should only be made after the parties served their
evidence, unless there are exceptional circumstances: Practice Note
No. SC Eq 11
o Special circumstances in this context: out of the ordinary - not
"exceptional" at large but "exceptional" because they
necessitate disclosure: In the matter of Mempoll, Anakin and
Gold Kings (Australia)
o A situation where highly relevant information is largely in
the possession of one party constitutes exceptional
circumstances for this purpose: In the matter of Mempoll, Anakin
and Gold Kings (Australia)
Implied Undertaking
The doctrine of implied undertaking prevents parties received documents under
court entitlements (such as discovery or subpoenas from using them for other
purposes: Hearne v Street. Such documents can only be used for other purposes
or 'released' if:
1. The documents were admitted as evidence and thus became
public (subject to an order to the contrary)
2. The party was released from the undertaking by the court. The
court will release a party if (Premier Travel v Satellite Centres of
Australia):
o Such use will result in injustice to the person who produced
the documents under subpoena; and
o There are special circumstances. The special circumstances
test involves considering the following factors:
The particular nature of the material produced
The policy underlying implied undertaking
Whether the needs of justice are better served by
relieving from or maintaining the undertaking; and
Any other relevant factors
pleadings has been (or may be) difficult or expensive: Lang v Australian Coastal
Shipping Commission.
Parties may be ordered to answer questions, and will have to provide affidavits
verifying the answers: r 22.3.
Concluding Proceedings
Some proceedings are concluded through summary disposal procedures as
opposed to trials or settlements. Summary disposal procedures is where a party
applies to the court to dispose of the claim summarily (there are a number of
ways) because of a deficiency in the opposing party's case. Summary disposal
procedures and their relevant principles include:
When proceedings have been summarily dismissed in one way or another (lack
of due dispatch, summary disposal etc) before a hearing on the merits of
the claim, the plaintiff is not usually prevented from instituting fresh
proceedings: CPA, s 91 (1).