Complete Exam Notes for Civil Procedure and Evidence

3 Found helpful • 95 Pages • Complete Study Notes • Year: Pre-2021 • Previously uploaded under: LAWS5215 - Civil Procedure

Topic List: INTRODUCTORY ISSUES 7 STAGES OF AN ACTION 7 PHILOSOPHY OF THE UCPR (RULE 5) 7 COSTS DISCLOSURE 7 REGULATING COSTS DISCLOSURE AND ASSESSMENT UNDER THE LPA 7 Disclosure of settlement fees 8 COST AGREEMENTS 8 Particular costs agreements are void 8 Contingency fees prohibited 8 Not fair and reasonable 8 COMMENCING PROCEEDINGS 8 WHICH COURT? 8 WHICH REGISTRY? 8 CLAIM OR APPLICATION? 9 Application (Rules 10 -12) 9 Application compulsory 9 Application permitted 9 Oral application 9 Forms for applications (two types of applications) 9 Originating application – Form 5 9 Applications in the proceeding – Form 9 9 Applications 10 Claim (rule 9) – second way of orginating process 10 Forms for Claims 10 Use of incorrect forms 10 Names of parties to be included in court documents 10 JURISDICTION 10 TERRITORIAL JURISDICTION 10 Overseas jurisdiction 11 SUBJECT MATTER JURISDICTION 11 High Court 11 Federal Court 11 Incidental jurisdiction 12 Appellate jurisdiction 12 Reference jurisdiction 12 Associated Jurisdiction 12 Accrued Jurisdiction 12 Are the claims within the one matter? 13 Supreme Court 13 Original jurisdiction 13 Appellate jurisdiction 13 Federal jurisdiction 13 Inherent jurisdiction 13 District Court 13 Magistrates Court 13 Cross-Vesting of Jurisdiction 14 Purpose 14 Constitutional validity of Cross Vesting in-between Federal and State 14 Investment and conferral of jurisdiction 14 Exercise of conferred jurisdiction 14 Applicable law 14 Special federal matters 14 Inferior courts 15 Limitation on appeals 15 Procedure for Cross-Vesting 15 Unrelated proceedings 15 Related proceedings 15 Transferring from Queensland  Another State 15 Transferring from Another State  Qld 15 Transferring from Federal  QLD 15 Relevant factors in deciding the appropriate jurisdiction 15 LIMITATIONS OF ACTIONS 16 LIMITATION PERIODS FOR VARIOUS ACTIONS 16 Exceptions and extensions to limitation periods 16 Disability 16 Avoidance by contract 16 Fraud or mistake 16 Dust related diseases 16 Defamation 16 JOINDER 17 ESSENTIAL PRINCIPLES 17 Complete justice to be done in one suit, so far as possible 17 Res judicata 17 Issue Estoppel 17 JOINDER OF PARTIES 17 Joinder of Plaintiffs 17 Related proceedings (permissive joinder) 17 Joinder of Defendants 18 Joint or several liability 18 Extending Time to Add Defendants 18 Joinder of Actions 18 Property 19 Addition, substitution and removal of parties 19 SPECIAL PROVISIONS FOR PARTICULAR PARTIES 19 Partnerships 19 Businesses 19 Corporations 20 Executors, administrators and trustees 20 Death prior to proceeding 20 Appointment of representative during proceeding 20 Death, bankruptcy or incapacitation during proceeding 20 No substitution order made after death 20 Representative parties 20 THIRD PARTY PROCEEDINGS (NEED TO SATISFY S 65 AGAIN) 21 Third party proceedings generally 21 Third party notice – claiming contribution from co-guarantor 21 Time limitations 21 Claim against another party to the proceedings (attacking 4th party) 21 No third party notice required for claim of contribution against a joint and several tortfeasor 21 Content of third party notice 21 Service of third party notice 22 SERVICE 22 PERSONAL SERVICE 22 When is personal service required? (if other party fails, you get default judgment) 22 How is personal service effected (r 106)? 22 Examples of Personal Service 22 Exceptions to Personal Service 23 Magistrates Court proceedings 23 Unconditional notice of intention to defend 23 Personal service on a solicitor 23 Personal service under a contract 23 Special Parties 23 Corporations (r 107 UCPR): 23 Partnerships (r 114 UCPR) 23 Unregistered Businesses (r 113) 23 Spouses: 23 Young People (r 108) 23 People with Impaired Capacity 23 The Crown 23 Principal’s Agent (Will be on exam) 24 ORDINARY SERVICE (WHEN PERSONAL SERVICE NOT REQUIRED) 24 PROOF OF SERVICE 24 Proof of identity of person served (Are you the manager? Yes). 24 Affidavit of service (act will specify if required) 24 Personal service 24 Ordinary service 24 TIME REQUIREMENTS 24 SUBSTITUTED SERVICE ORDERS 24 Practical Impossibility of Actual Service 25 Method of Substituted Service effective 25 Service by prepaid post 25 Service on an associate of the defendant 25 Service by email 25 Service by text message 25 Service by Facebook 25 Service by advertisement 26 Attorneys under a power of attorney 26 Compulsory insurer 26 Circumstances in which substituted service will not be allowed 26 Powers of the court 26 Informal Service 26 Process for applying for Substituted Service 26 INTERSTATE SERVICE 26 Effect of Service 26 Time Requirements 27 Substituted service interstate 27 Section 20: Power to Stay Proceedings – similar to thought process on cross-vesting scheme 27 INTERNATIONAL SERVICE 27 Requirements of international service 27 New Zealand (Trans-Tasman proceedings act) 28 Section 9 - Service of initiating documents in New Zealand 28 Section 10 - Effect of service under section 9 28 NOTICE OF INTENTION TO DEFEND 28 PLEADINGS SUMMARY 28 Intro 28 Pleadings Process / Summary 28 OFFICER OF THE COURT 29 YOUR ROLE AS A LITIGATOR 29 ACCURATE AND ETHICAL 29 WHAT IS A NOTICE OF INTENTION TO DEFEND? 29 WHEN IS A NOTICE OF INTENTION TO DEFEND REQUIRED? 29 Responding to a Claim/Third Party Notice 29 Responding to an Application 29 WHO MAY FILE A NOTICE OF INTENTION TO DEFEND? 30 Exceptions to general rule 30 Solicitor 30 Person under a legal disability 30 Businesses 30 Partnerships 30 Third Parties 30 TIME LIMITATIONS 30 Service within Queensland 30 Interstate service 30 Service in New Zealand 30 Consequences of late filing 30 SERVICE AND FILING REQUIREMENTS 31 Withdrawal of NOITD 31 CONTENTS AND REQUIREMENTS (PROCEDURE) 31 Requirements of form 31 Contact details and address for service 31 Defendant acting personally 31 Solicitor acting for defendant 31 CONDITIONAL OR UNCONDITIONAL 31 Unconditional notice (Form 6) – most common 31 Amending an unconditional notice 32 Conditional notice (Form 7) 32 When Would You Apply for a Rule 16 Order? 32 Implications of Conditional NOITD: 32 HOW TO RESPOND TO AN ORIGINATING APPLICATION 32 Notice of address for service 32 INTRO TO PLEADINGS (GENERALLY) 33 PLEADINGS SUMMARY 33 DUTY TO THE COURT (PROBABLY NOT EXAMINABLE) 33 Accurate and Ethical Duties 33 IS THE COURT LIMITED TO THE PLEADINGS 34 CONTENTS OF PLEADINGS 34 Brevity 34 Material facts: not evidence (rule 149(1)(b)) 34 Claim for relief + facts and law 35 MATTERS TO BE SPECIFICALLY PLEADED (RULE 150) – STATE: 35 Further matters to be pleaded (debt/liquidated demand) 36 FORMAL REQUIREMENTS OF PLEADINGS (GENERALLY) 36 PROCEDURE 36 PARTICULAR PLEADINGS 36 MATTERS TO BE SPECIFICALLY PLEADED 36 1. CLAIM 37 2. STATEMENT OF CLAIM 37 Cause of action 37 Contents of a claim 38 Introductory statements 38 Body 38 Should not anticipate defence 38 Claims for relief and damages 38 Liquidated damages or debt 38 Interest claimed 38 Trial by jury 39 3. DEFENCE 39 Matters that are specifically pleaded/content 39 Answering Pleadings 39 Implied admission 39 Express admissions 39 Non-admissions of allegation of fact 39 When will inquiries be reasonable? 39 Effect of a non-admission 39 Duty to make reasonable inquiries 40 Unreasonable Non-Admissions 40 How to plead a non-admission? 40 Implied non-admission for final pleadings 40 Denials 40 How to plead a denial? 40 Special care taken when denying a negative proposition 40 Unreasonable Denial 41 Inconsistent allegations 41 Time limits 41 4. COUNTERCLAIM 41 Counterclaim against plaintiff 41 Exclusion of counterclaim 41 Counterclaim against third party 42 5. REPLY – FORM 17 USED FOR DEFENCE 42 6. ANSWER – FORM 17 USED FOR DEFENCE 42 7. CLOSE OF PLEADINGS 42 PARTICULARS OF PLEADINGS (GENERALLY) 42 Particulars and Evidence: Particulars in a Negligence Action 43 Challenges to Pleadings 43 Filing Application for Better Particulars – r 161 43 NOTICES TO ADMIT (NOT STRICTLY PART OF PLEADING PROCESS) 43 Withdrawal of Admissions – only with courts leave (Coopers Brewery Ltd) 43 DISCLOSURE 44 When Disclosure is required 44 DUTY OF DISCLOSURE 44 What is a “Document”? 44 What constitutes possession or control? 44 Is the document relevant? 44 DOCUMENTS EXEMPT FROM DISCLOSURE 45 Privilege 45 Legal Professional Privilege 45 Advice privilege 46 Litigation privilege 46 Reports of experts 46 Copies of unprivileged documents 46 Self-incrimination Privilege 46 Public interest and Crown privilege 47 Without prejudice communications (Settlement Negotiations) 47 Waiver of Privilege 47 For expert reports: 47 Need to make further enquiries when: 48 RELIEF FROM DISCLOSURE 48 PROCEDURAL REQUIREMENTS 48 List of documents 48 Time limitations for delivery of lists 48 Disclosure by delivery of documents 49 Time limitations for delivery of documents 49 Disclosure by inspection of documents 49 Time limitations for Inspection of documents 49 Procedure for disclosure by producing documents 49 Costs of inspection 49 Electronic disclosure 49 Deferral of disclosure 49 Solicitor’s certificate and obligations 50 DEFECTIVE DISCLOSURE 50 Court orders for disclosure 50 Order for delivery, production or inspection 50 Other orders 50 Consequences of non-disclosure 50 PERMITTED USE OF DISCLOSED DOCUMENTS 50 NON-PARTY DISCLOSURE 51 RULES PARTICULAR TO PERSONAL INJURIES 51 AFFIDAVITS 51 AFFIDAVIT EVIDENCE 51 CONTENT REQUIREMENTS 52 General content requirements 52 Prohibition on scandal and oppression 52 Affidavits for substituted service 52 Certificate of reading or signature 52 Certificate of reading 52 Certificate of signature 52 Failure to certify 53 USE OF AFFIDAVITS 53 Irregularities 53 Costs implications 53 Practical considerations 53 Solicitor’s obligations 53 SUBPOENAS 53 Practical considerations 53 Power to issue a subpoena 54 Types of subpoena 54 Formal requirements of subpoena 54 Form of request to court for Subpoena 54 Filing 54 Service 54 Interstate service 54 International Service 54 Serving a subpoena to an employer or company in control of documents 55 Payment of compensation to witnesses 55 Setting aside a Subpoena 55 Failing to attend on a subpoena 55 Admitting into evidence documents produced on subpoena 56 Early production of documents for non-parties 56 Notice to produce 56 Not available for production of documents pre-trial 56 ALTERNATIVE DISPUTE RESOLUTION 56 BY CONSENT 56 BY REFERRAL 56 Criteria for referral 56 After referral for Mediation and Case Appraisal 57 MEDIATION OR CASE APPRAISAL? 57 When is mediation appropriate? 57 Mediation is not appropriate when: 57 When is case appraisal appropriate? 57 CHOOSING: MEDIATION OR CASE APPRAISAL? 57 MEDIATION 58 The mediation process 58 Preliminary conference: 58 Mediator’s role 58 Lawyer’s role 58 Interest Based Negotiations (Considering the Subject Matter) 59 Contents of referral order 59 Duration of mediation 59 Parties must act genuinely 59 Mediator may seek advice 59 Replacement of mediator 59 End of mediation 59 Certificate of mediation 59 Abandonment of mediation 60 Unsuccessful mediation 60 Record of mediation resolution 60 Costs of mediation 60 Payment of mediation costs 60 Where a party impedes the mediation 60 CASE APPRAISAL 60 Contents of referral order 60 Jurisdiction of case appraiser 61 Legal representation 61 Replacement of case appraiser 61 Case appraiser may seek advice 61 Case appraisal may be recorded 61 End of case appraisal 61 Abandonment by case appraiser 61 Case appraiser’s decision 61 Case appraiser’s decisions on cost 61 Case appraiser to file certificate and decision 61 Effect of case appraiser’s decision 61 Costs of case appraisal 61 Costs of failed case appraisal are costs in dispute 62 Where case appraisal is challenged 62 Where a party impedes the case appraisal 62 DEFAULT JUDGMENT 62 DOCUMENTS REQUIRED FOR DEFAULT JUDGMENT 62 SPECIFIC RULES FOR EACH TYPE OF PROCEEDING 62 Debt or liquidated demand 62 Unliquidated damages (unascertained damages) 63 Assessment of damages 63 Detention of goods 63 Recovery of possession of land 63 Mixed claims 63 Other claims 64 SETTING ASIDE A DEFAULT JUDGMENT 64 Irregularly obtained 64 Properly obtained 64 Criteria for setting aside 64 Who Bears Costs where judgment set aside 64 DISMISSAL FOR WANT OF PROSECUTION 64 CRITERIA FOR DISMISSAL 64 DEFAULT OF APPEARANCE AT TRIAL 65 SUMMARY JUDGMENT 65 SERVICE 65 EVIDENCE IN APPLICATION (AFFIDAVIT) 65 SUMMARY JUDGEMENT FOR THE PLAINTIFF 65 Onus of proof 66 SUMMARY JUDGEMENT FOR THE DEFENDANT 66 Onus of proof 66 TEST FOR SUMMARY JUDGMENT 66 COSTS 66 SETTING ASIDE A SUMMARY JUDGMENT 66 DISCONTINUANCE AND WITHDRAWAL 67 DISCONTINUANCE BY PLAINTIFF OR APPLICANT 67 Prior to first defence/reply 67 After first defence/reply 67 Multiple parties 67 Discontinuance by defendant or respondent 67 Counterclaim 67 Notice of intention to defend 67 Discontinuance by a party representing another person 67 Withdrawal of defence or subsequent pleadings 68 Need Notice of discontinuance or withdrawal? 68 Without leave 68 With leave 68 Costs in discontinuance/Withdrawal 68 Discontinuance with leave 68 Stay pending payment of costs 68 Consolidated proceedings 68 Subsequent proceedings 68 SETTLEMENT OFFERS 68 COMMON LAW OFFERS TO SETTLE 68 Requirements of a Calderbank Offer 68 Form of Settlement 68 STATUTORY OFFERS TO SETTLE 69 Offer 69 1. Who may make an offer to settle? 69 2. When can an offer to settle be made? 69 3. Requirements of form 69 4. Duration of offer 69 5. Disclosure of the offer 69 6. Without prejudice 69 Formalising offer (Put in Writing) 69 Consent order 69 Settlement deed 70 Accepting the Offer 70 Costs 70 Offer by plaintiff 70 Offer by defendant 70 Effect of Interest 70 Example calculation of costs 71 Part A 71 Part B 71 ENFORCEMENTS OF MONEY ORDERS 72 GENERAL PRINCIPLES 72 Definitions 72 Enforcement by or against a non-party 72 LIMITATION PERIODS 72 APPLICATION FOR LEAVE TO ENFORCE 72 When is leave required? 72 Outside limitation period 72 Change of parties 72 Conditional order 72 Requirements of application for leave 73 Court’s discretion to grant leave 73 COSTS OF ENFORCEMENT 73 DEBT COLLECTION 73 Letter of demand 73 PRE-JUDGMENT STEPS TO PRESERVE DEFENDANTS ASSETS 74 Attachment of the person 74 Freezing orders 74 Requirements 74 The plaintiff must prove: 74 Application 74 Search orders 75 Requirements 75 Safeguards 75 Application 75 ENFORCEMENT HEARINGS 75 End of trial enforcement hearing 75 After Money order Made 76 When can the application be made? 76 What must the application contain? 76 Service of enforcement hearing summons 76 Statement of financial position (r 807) 76 Subpoena 76 Failure to comply 76 Orders to be made 77 Costs 77 ENFORCEMENT WARRANTS 77 Applying for an enforcement warrant 77 Requirements for application 77 Requirements for warrant 77 Types of Enforcement Warrant 77 In Which court should enforcement Occur? 78 Priority of Competing Warrants 78 Priority of multiple warrants 78 Concurrent warrants across districts 78 Setting aside an enforcement warrant 78 SPECIFIC TYPES OF ENFORCEMENT WARRANTS 78 Warrant for Seizure and Sale 78 Meaning of seizure 78 Storage prior to sale 78 Order of sale 78 Method of sale 79 Advertising 79 Proceeds of sale 79 Payment by debtor before sale 79 Warrant for redirection of debts 79 When will a redirection of debt be ordered? 79 Service requirements 79 Other requirements 79 Warrants for redirection of debts from financial institutions 80 Requirements for redirection warrant 80 Content of enforcement warrant 80 Service of enforcement warrant 80 Financial institution to make payments 80 Enforcement debtor not to defeat warrant 80 End of warrant 80 Warrant for redirection of earnings 80 Requirements for redirection of earnings 80 Enforcement hearing may be required 81 No other enforcement while redirection of earnings 81 Content of enforcement warrant 81 Service of enforcement warrant 81 Employer to make payments 81 Employer may apply for directions 81 Employee protections 81 End of warrant 81 Order for payment by instalment 81 Prerequisites for instalment order 82 Cessation of instalment order 82 No other enforcement while instalment order 82 Stay of enforcement 82 Procedure for application 82 Powers of the court 82 Examples where court has ordered a stay: 82 Examples where court has rejected an application: 82 COSTS 82 STANDARD AND INDEMNITY COSTS 82 Standard basis 83 Indemnity 83 When will the court order indemnity costs? 83 COST ORDERS 83 Costs follow the event 84 General rule: 84 Exceptions to general rule 84 Costs Against Lawyers 84 Costs which do not Follow the Event 84 Successful party does something wrong 84 Public interest litigation 85 Successful party wins in the wrong court 85 Complex cases involving multiple parties 85 Separate issues 86 Successful party loses on some issues 86 Interlocutory Orders 86 Assessment of costs 86 Procedure 86 After assessment: 86 Offer to settle: 87 Fixed costs 87 Security for costs – Chapter 17 ucpr 87 R 671 Security for costs order available: 87 R 672: Court has discretion – Court may have regard to 87 R 673 – Form of Security 87 R 674 – If plaintiff fails to provide security, proceedings stayed and may be dismissed 87 R 675 – order may be set aside or varied in special circumstances 87 R 676 – security applied or discharged 88 CIVIL APPEALS 88 QUEENSLAND COURT OF APPEAL 88 Composition of the QCA 88 Role of president 88 Composition 88 When 2 judges may exercise the powers of the QCA 88 When 1 judge may exercise the powers of the QCA 88 Jurisdiction of the QCA 88 Powers of the QCA 88 Leave to appeal 89 TYPES OF APPEALS 89 Strict appeal 89 Rehearing 89 De novo appeal 89 Stay of enforcement 89 Application for new trial 89 NOTICE OF APPEAL 90 Time for appealing 90 Content of notice 90 Service, Amendment & Joinder 90 Service 90 Amendment of Notice of Appeal 90 Joinder of parties 90 APPEAL BOOK (ADMIN PROCESS WHEN APPLYING FOR APPEAL) 90 Contents 91 WRITTEN OUTLINE OF ARGUMENTS 91 Purpose of Outline SC PD 3/2013, [13] 91 Requirements of Outline 91 Timeframe 91 Late lodgement 91 Respondent’s outline: SC PD 3/2013, [16] 92 Other Notes: 92 OTHER RELATED PROCESSES 92 Cross Appeal 92 Notice of contention 92 Consent order 92 Electronic Appeal 92 Listing the Appeal 92 SUBSTANTIVE BASIS OF APPEAL 92 1. Error of law 92 2. Wrong exercise of direction 93 3. Incorrect Finding of Fact 93 4. Judge’s View of Conflicting evidence 93 5. Inference from the facts 93 6. Fresh evidence 94 7. New point 94 8. Excessive/inadequate damages 94 9. Change of law 94 APPLICATIONS WITHIN THE APPEALS PROCESS 94 Common interlocutory applications 94 Requirements for applications 94 REFERRAL TO COURT OF APPEAL 94 APPEAL TO DISTRICT COURT 94 APPEAL INCORRECTLY INSTITUTED 95

This document is 25 Exchange Credits