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Law Notes Litigation - Civil Procedure Notes

Intro To Civil Procedure Notes

Updated Intro To Civil Procedure 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...

Available here

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

Lit 1 notes_ 1 Intro to civil procedure 1

Class 1 Readings - Introduction to Civil Procedure Ch1 1

1 Procedure law 3

1b guiding principles 4

2 Adversarial system of litigation 6

Principle of Open justice 8

Open justice: Exceptions 8

4 Principle of a Fair trial 12

4.b note Crown as model litigant 14

Lit 1 notes_ 1 Intro to civil procedure

1 Introduction to Civil Procedure – Chapter 1

Class 1 Readings - Introduction to Civil Procedure Ch1

Readings Ch 1
1 intro

Book is about civil procedure in NSW – considers procedure by which disputes are processed in the supreme, district and local courts of NSW

Chapter will consider following issues:

  1. Meaning of procedural law

  2. Features of an adversarial system of litigation

  3. Principle of open justice

  4. Principle of a fair trial
Summary of everything

Chapter will consider following issues:

  1. Meaning of procedural law

    • Civil Procedure has been defined as ‘the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right, and which by means of the proceeding of the Court is to administer the machinery as distinguished from its product’

  2. Features of an adversarial system of litigation

    • Note tempered by CPA s 56-8.

    • Claim must have reasonable prospects of success – Legal Profession Act s 345

  3. Principle of open justice:

    • Exceptions: (a) informers (b) national security (c) fair trial – s 71 CPA, Einfeld, Re HIH

    • S 71 CPA was applied by Barrett J in Re HIH Insurance to close court on application of liquidators of insolvent HIH companies - liquidators argued that if evidence intended to be adduced by them was made available to any of the defendants to the litigation concerned, the ability of the liquidators to advantageously conclude the claims for the benefit of the creditors of the relevant companies would be likely to be significantly prejudiced…

    • When issue of jury bias: case law has rejected previous tendency to regard jurors as exceptionally fragile and prone to prejudice: John Fairfax. Law acknowledges existence of possibility that juror can acquire irrelevant prejudicial information in a criminal trial, but proceeds on footing that jury acting in conformity with instructions given to them by trial judge will render a true verdict in accordance with the evidence: Einfeld. (In this case trial judge ordered nonpublication this was overturned).

  4. Principle of a fair trial

    • Law: Not every departure from the rules of natural justice at a trial will entitle the aggrieved party to anew trial because an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial: Stead v SGIC

    • When party cant make submissions on issue of fact esp whether evidence should be accepted difficult to know effect of this: Where the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court to conclude that compliance with the requirements of natural justice would have made no difference and the court should proceed with caution: Stead v SGIC

    • Trial judge misstate evidence given and fail to consider other evidence: Mastronardi v NSW

  5. Note: Crown must act as model litigant.

1 Procedure law

[1.20] procedural law (definition)

Definition: Procedural Law is (1) Rules which are directed to governing or regulating the mode or conduct of court proceedings: McKain v R W Miller (1991) Mason CJ, (2) ‘Adjectival’ law as it is the mode of proceeding to enforce a right, it is not concerned with the law that establishes the particular right.

There are two ‘guiding principles’ lying between the need to distinguish between substantive and procedural issues: John Pfeiffer v Rogerson

  • (1) Lex fori v lex loci delicti: Procedural law is governed by the lex fori = applicable laws of procedure and evidence are the laws of the court hearing the claim. Substantive law in tort claims is governed by lex loci delicti = applicable law is law of place where wrongful act took place.

    • ‘Litigants who resort to a court to obtain relief must take the court as they find it’: John Pfeiffer v Rogerson

  • (1)Procedural law v Substantive law: Procedural law regulates the way in which substantive rights and obligations are claimed and enforced, without impacting on definition of those particular substantive rights. Substantive law is the branch of law that defines legal rights duties powers and liabilities.

    • ‘Matters that affect the existence, extent or enforceability of the rights/duties of the parties are matters that are concerned with issues of substance, not procedure’: John Pfeiffer v Rogerson; ‘ rules which are directed to governing or regulating mode or conduct of court proceedings are procedural and all other provisions are to be classified as substantive: McKain
[1.30] Sources of procedural law

Sources of procedural law in the NSW Supreme, District and Local Courts:

  • CPA and UCPR: CPA and UCPR apply in the Supreme, District and Local Courts and Land and Environment Court and Dust Diseases Tribunal.

  • URC can make rules: CPA provides that a Uniform Rules Committee can make rules consistent with CPA: ss 8 and 9

  • Court rules: Some procedural rules can be found in the court rules: Supreme Court Rules 1970, District Court Rules 1973 and Local Court Rules 1982.

  • Specific court Acts enable the power of a rules committee to make procedural rules: Specific court acts deal with jurisdictional matters, constitution of the court and delegation of powers. Also enable power of a rules committee to make procedural rules: Supreme Court Act 1970 (NSW), District Court Act 1973 (NSW), and the Local Court Act 1982 (NSW).

  • Practice notes: Court can deliver a practice note: eg Practice Note SC Gen 7 Supreme Court – Use of Technology in Chapter 11.

  • ...

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