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77 Pages Complete Study Notes Year Uploaded: 2022

Lecture 1 – Overview of Civil Procedure What is civil procedure? • The term “procedure” is used to describe the formal steps taken in court proceedings and a distinction is usually drawn between substantive law on the one hand and procedural law on the other’ (Fiocco, Civil Procedure in WA, UWA: Perth 1987) Procedural and substantive law – differences ❖ Civil procedure is procedural law as opposed to substantive law ❖ Procedural law is the law which governs “the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right” Poyser v Minors (1881) LR 7 QBD 329 at 333 per Lush J ❖ So, whereas substantive law creates rights, procedural law expresses how those rights are to be exercised or enforced Sources of Civil Procedural Law ❖ Common law - in the form of a (superior) court’s inherent jurisdiction to ensure the proper administration of justice – usually reduced in writing in the Court’s Practice Directions or Practice Notes but doesn’t have to be – so it is possible for procedural rules to be unwritten (which is how such ingenious “nuclear” procedural creatures like Norwich Orders, Mareva injunctions and Anton Piller Orders were born) ❖ Norwich orders – about discovery, entitlement to have access to documents. Case was about intellectual property ❖ Freezing Orders – freeze a parties assets to maintain the status quo, so if you win then they can pay the ordered $ ❖ Anton piller orders – property preservation orders, if reasonable prospect that property may dissipate then, can enter, search and even secure the property.


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