#8504 - Concluding Proceedings Before Trial - Litigation - Civil Procedure

How to conclude proceedings before trial:

Summary disposal:

1. Default judgment: Eg. P applies and obtains default judgment because D has not filed an appearance/defence – UCPR 16.2

2. Summary judgment

3. Summary dismissal: D applies for summary dismissal because P has failed to prosecute proceeding or because P’s pleadings do not reveal a reasonable cause of action.

4. Want of prosecution

5. Discontinuance

6. Summary disposal (concluding proceedings before a trial). (Court orders setting aside originating process pursuant to UCPR r 12.11 are an example see ch 8.)

Security for costs – not necessarily an end

7. Security for costs. D can apply for order for security for costs and proceedings are stayed until order is fulfilled. If P is unable/unwilling to comply proceedings can be dismissed.

Settlement:

8. Settlement. UCPR provide procedure involving costs incentives to settle. Called offer of compromise.

In order to get default judgment:

1. When D defaults, eg fails to file defence within 28 days: A defendant is "in default" for the purposes of this Part: (a) if the defendant fails to file a defence within the time limited by rule 14.3 (1) or within such further time as the court allows, or (b) if the defendant fails to file any affidavit verifying his or her defence in accordance with any requirement of these rules, or (c) if, the defendant having duly filed a defence, the court orders the defence to be struck out.

2. Will need to attach affidavit of service of originating process and affidavit in support of application for default judgment: r 16.3

3. P can then apply under r 16.6 for a default judgment if claim is for liquidated damages, or if unliquidated default judgment under r 16.7

P can apply:

4. If Debt or liquidated claim (for a sum certain), apply under r 16.6 for for default judgment: judgment may be given for the P against the D for: (a) sum not exceeding the sum claimed, and (b) interest up to judgment, and (c) costs. R 16.6

   1. eg debt – sold car and no payment, owe $10k.

   2. also need affidavit – stating how much owed etc: r 16.6(2)

5. If unliquidated damages, judgment may be given for the P against the D for damages to be assessed and costs. R 16.7

   1. Damages less certain – eg damages for tort injury. Damages will be contentious.

   2. Also need affidavit – stating r 16.7(2) – eg matter not been settled with defendant, whether costs are claimed etc.

Definition of default:

Principles: Unfttered discretion to exercise having regard to circumstances of case and so that dictates of justice are best served.

• Applicant bears onus of satisfying the Court that judgment should be set aside.

• each case will turn on its own circumstances: Borowiak

• Whether or not on balance justice demands that action should be dismissed.

Factors which Court consider in deciding whether to set aside a default judgment: Borowiak

• bona fide defence on merits?

• explanation of delay?

• prejudice to plaintiff ?

• overriding purpose – CPA s 56 – just, quick and cheap

  • bona fide defence of merits – goes to just

  • delay –

  • cheap – costs

• Sum at claim – noted that small sum in Borowiak went to demonstrating that appeal to set aside default judgement failed.

Example cases: Borowiak

• Facts: Negligence of P, P made claim on insurer, claim was met by insurer, D took steps to recover, commenced proceedings, process was brought to attention of insurer and it took over conduct of proceedings on behalf of P. No defence was filed.

P may seek summary judgment if the D has no defence to the claim or part of the claim or no defence except as to the amount of any damages claimed: UCPR r 13.1

(1) If, on application by the plaintiff in relation to the plaintiff's claim for relief or any part of the plaintiff's claim for relief:

(a) there is evidence of the facts on which the claim or part of the claim is based, and

(b) there is evidence, given by the plaintiff or by some responsible person, that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part of the claim, or no defence except as to the amount of any damages claimed,

the court may give such judgment for the plaintiff, or make such order on the claim or that part of the claim, as the case requires.

• (Very high threshold for P to succeed – other states and US have ‘reasonable prospects of success’ case)

• Summary judgment not sought a lot in NSW.

Will need affidavit to verify facts on which application based: UCPR r 35.3

D can seek for an order that the proceedings be dismissed before trial:

• Three heads under which a D can dismiss a claim: If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim: UCPR r 13.4

Dismissing because proceedings are frivolous or vexatious: r 13.4(a)

• ‘frivolous’ is a suit not worth serious attention

• vexatious – suit undertaken to harass, waste time or delay

  • eg proceeding that cannot succeed just brough tot waste time or cause delay

Dismissing because abuse of process of court: r 13.4(c)

• abuse of process – suit brought for ulterior purposes

  • eg in Van Der Lee v NSW - evidence showed that predominant purpose of proceedings against claimaints was not to recover damages but to compel Land Lease Corporation to make a contribution to the settlement of the claims.

  • Because State had reasonably arguable grounds on which to sue and a legitimate tactical reason. Suing X with few assets because Y would feel obliged to satisfy claim is not necessarily an abuse of process. Question is whether it is for the purpose of gaining a collateral advantage than a prupose for which proceedings were designed to exist or to obtain a benefit not reasonably related to an order that could be obtained in the proceedings: Van Der Lee

Exam tip: in addition to attacking case. Can also attack pleading – see Ch 8 r 14.28 CUPR.

Consequences

• Order for summary dismissal where no hearing on merits normally doenst prevent P from issuing fresh proceedings or claiming same relief in fresh proceedings: s 91 CPA

• Estopped? However D in fresh proceedings may raise defence of res judicata or issue estoppel

• SOL? Ensure that any SOL has not expired since commencing original proceedings…

Idea: someone commences proceedings, and then doesn’t take any further steps in litigation. Usually because no money:

• Plaintiff: If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit: UCPR r 12.7(1)

• Defendant: If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit: UCPR r 12.7(2)

Factors relevant to striking out defence or dismissing proceedings:

• Overriding purpose principles in s 56-60 of CPA.

Consequences

• Order for summary dismissal where no hearing on merits normally doenst prevent P from issuing fresh proceedings or claiming same relief in fresh proceedings : s 91 CPA

• Estopped? However D in fresh proceedings may raise defence of res judicata or issue estoppel.

• SOL? Ensure that any SOL has not expired since commencing original proceedings…

• P can file notice of discontinuance with consent of other active parties or by leave of court: UCPR r 12.1

• Court would normally allow discontinuance as long as no injustice caused to other parties and terms of leave can be framed with any submission of this nature in mind.

• Very likely costs consequences.

What is security: P ordered to provide security for D’s costs for defending the proceedings. What is security? Idea is to give effect to costs rules, means that no matter how impecunious P is he will have to pay the D if he loses.

• Can order security for costs under:

  • UCPR r 42.21, (r 2.1)

  • Corporations Act s 1335 in respect of corporations

  • Court’s inherent power: Rajski

• Then Court can order stay permanently: s 67...