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Law Notes Litigation - Civil Procedure Notes

Case Management Notes

Updated Case Management Notes

Litigation - Civil Procedure Notes

Litigation - Civil Procedure

Approximately 162 pages

These notes aim to set out the relevant legal principles, and material facts from cases in order to demonstrate how those legal principles have been applied. Because of how heavily statute-focused this topic is, in some places I've extracted the relevant statute in the text or in a 'comment'.

At the beginning of each document on each topic, there is a table of contents (hyperlinked so you can navigate easily through the document), and also 'checklists', which you can use during revisions or ex...

The following is a more accessible plain text extract of the PDF sample above, taken from our Litigation - Civil Procedure Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Table of Contents

Class 2 Case Management 1

2.20 Justice Delayed is Justice Denied: Jackamara v Krakouer –delay is bad 6

2.40 NSW COURT SYSTEM: AN OVERVIEW 7

2.90 Backlog Reduction 8

2.100 Case study of NSW SC CL division’s Case MANAGEMENT 8

2.120 CASE MANAGEMENT: efficiency v justice 9

2.140 CPA 2005 and UCPR 11

2.160 – HOW HAS PT 6 OF CPA AFFECTED CIVIL PROCEDURE? 13

2.190 DIRECTIONS 14

2.210 UCPR 17

2.240 Application of the CPA and UCPR 17

2.260 practice notes 18

AON 19

Class 2 Case Management

Readings:

* All Ch 2 + Aon Risk Services

2

Case Management – read all Chapter 2 (pages 25-57) +

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, [38]-[117].

[Optional – Boniface and Legg (2010) 39(2) Common Law World Review 157]

Summary

Exam format
  1. Issue: Court is asked to make an order

  2. Consider: s 56 CPA and the overriding purpose of facilitating the quick just and cheap resolution of real issues in proceedings.

  3. Note how CPA has changed CL: s 56 - 8 CPA broadens the definition of justice to require court to consider not only justice between the individual parties but whether justice has been done to other litigants waiting for the courts resources: Metreski .

    1. This means that a ‘reasonable opportunity does not mean multiple repeated opportunities’: Phornpisutikul

    2. Chandra likely decided incorrectly given Thiele; Dennis v ABC

  4. Court can give directions as it thinks fit (inconsistent or not with rules of court) for the speedy determination of the real issues between the parties : s 61 CPA

Failure to comply with directions?: s 61(3) CPA

Pre-trial directions

  1. Dismiss: S 61(3)(a) – the Court can dismiss the proceedings. – this is the most extreme order because it denies you access to the court. (SEE ANSHUN ESTOPPEL NOTES ____________ FOR POSSIBLE ISSUES)

  2. Strike out or amend document filed: S 61(3)(d) – The Court can strike out or amend any document filed by the party – the Court can strike out an amendment included because the defendant didn’t seek leave to amend.

  3. Reject evidence: S 61(3)(e) – the Court can strike out disallow or reject any evidence that the party has adduced or seeks to adduce – this is a matter of natural justice at times, because the Court must allow parties to have time to respond to the other arguments.

  4. Costs: S 61(3)(f) – Court can direct party to pay whole or part of the costs of another party. – this is the most common ‘I order the costs be paid forthwith’ = pay immediately.

  5. Other costs: S 61(3)(g) it may make such other order or give such other direction as it considers appropriate. Eg. The court can order the solicitor pays.

  6. S 63 – procedural irregularity. See s 63(3)

Directions for hearing:

  1. Regulate hearings: S 62(1) – Directions for hearing. S 62(1) is about regulating the hearing (eg the Court can say, I don’t want opening hearings, I’ve read your affidavit /submissions etc. The court can limit the hearing (eg within 2 weeks), so the case must fit within that. ‘Stopwatch hearings’ can be imposed or parties can agree.

  2. s 62(4) – do not detract from principle of fair hearing

How to decide what order to give

  1. eg in Andell: P breached court directions, D sought to dimiss proceedings, but if P hadn’t breached case then case would have been finished in 9 months, that would have been exemplary, proportionate response . Furthermore the only injustice D are experiencing is unnecessary expense, no suggestion that prospective witnesses or documents wouldn’t be available – proportionate response was giving one last chance, with serious costs conseqeunces. Application for extension made with very stringest conditions.

Amendments: s 64 CPA – Court can order at any stage of proceedings an amendment, but this is subject to s 58 CPA. go to notes –

  1. When deciding whether or not to direct an amendment under s 64 CPA the Court must exercise their discretion subject to s 58 which requires the Court to act in accordance with the dictates of justice, and consider s 56 and 57

  2. eg in Andell: P breached court directions, D sought to dimiss proceedings, but if P hadn’t breached case then case would have been finished in 9 months, that would have been exemplary, proportionate response . Furthermore the only injustice D are experiencing is unnecessary expense, no suggestion that prospective witnesses or documents wouldn’t be available – proportionate response was giving one last chance, with serious costs conseqeunces. Application for extension made with very stringest conditions.

  3. (For Amendments, Aon does not apply because AON decided ACT rules not NSW )

Adjournments: s 66 CPA (9.200)

Adjournments [9.200]

CPA s 66

  1. Subject to rules of court the court may at any time and from time to time by order adjourn to a specified day any proceedings before it or any aspect of any such proceedings.

  2. Power to be exercised consistent with overriding purpose: Murtough v Betham

    1. Where P had received countless adjournments, did not appear at hearing, judge said that justice had to be balanced, costs order was insufficient and struck out claim: Betham

    2. Important for party seeking adjournment to explain why. In Aon no explanation for adjournment, court had to consider cost and delay and didn’t understand why it would be just:

  3. Party requesting adjournment may breach direction, UCPR and/or CPA

Note:

  • At JL Holdings – position used to be that amendment should be allowed if prejudice occasioned could be remedied through a costs order and the issue was fairly arguable.

Technology [2.310]

  • Directions hearing by Telephone by Common Law registry – where consent matters and matters where parties/legal representatives are located outside Sydney CBD. – Parties required to fax any proposed directions to CL case management registrar by 5pm on day before directions hearing over the phone. Directors/orders may be obtained by telephone are adjounrments, directions and allocation of hearing dates.

  • Electronic Case Management (ECM)

    • Online document...

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