#8505 - Intro To Civil Procedure - Litigation

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

1	Introduction to Civil Procedure – Chapter 1

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: Meaning of procedural law Features of an adversarial system of litigation Principle of open justice Principle of a fair trial
Summary of everything	Chapter will consider following issues: 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’ 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 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). 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 Note: Crown must act as model litigant.

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:

Meaning of procedural law
Features of an adversarial system of litigation
Principle of open justice
Principle of a fair trial

Summary of everything

Chapter will consider following issues:

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’
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
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).
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
Note: Crown must act as model litigant.

[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. Rules of evidence found in EA 1995 and cases: rules of evidence that operate in a trial and interlocutory hearings are found in the Evidence Act 1995 (NSW) and the common law. * Civil Procedure Act 2005 (NSW) (CPA) and Uniform civil Procedural Rules 2005 (NSW) (UCPR).

[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.
Rules of evidence found in EA 1995 and cases: rules of evidence that operate in a trial and interlocutory hearings are found in the Evidence Act 1995 (NSW) and the common law.

* Civil Procedure Act 2005 (NSW) (CPA) and Uniform civil Procedural Rules 2005 (NSW) (UCPR).

[1.40] Guiding Principles for Procedure

Principles:

1. Facilitating the ‘just, quick and cheap resolution of the real issues in the proceedings’: s 56 CPA

Overriding purpose of CPA: overriding purpose of CPA and of rules of court, in their application to civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56 of the Civil Procedure Act
- Textbook: court must seek to give effect to the overriding purpose when it exercises any power given to it by the CPA or by rules of court.
Party and barristers have duties: party is under duty to assist court to further overriding purpose and solicitor/barrister must not by their conduct cause their client to be put in breach of this duty: s 56(4) of the CPA

2. Court to act in accordance with dictates of justice when making an order/direction for management of proceedings: s58CPA

Court must act in accordance with dictates of justice when deciding whether ot make any order or direction for management of proceedings including order for amendment or adjournment: s 58 CPA
When determining what are the dictates of justice in a particular case:
- Court must have regard to overriding purpose and objects of case management: ss 56 and 57; and
- Court may consider: (a) the degree of difficulty/complexity to which issues in proceedings give rise; (b) degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities; and (c) the degree of injustice that would be suffered by the respective parties as a consequence of any order of direction: s 58(2)(b) CPA.

3. Court must implement its practices and procedure with the object of eliminating delay: CPA s 59

CPA s 59 requires the court to implement its practices and procedures with the object of eliminating any lapse of time between the commencement of proceedings and their final determination beyond that which is reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial.

4. Court should implement procedure so cost is proportionate to importance/complexity of dispute: s 60 CPA

CPA s 60: Court required to implement practices and procedure with object of resolving issues between parties in such a way that the cost to the parties is proportionate to importance and complexity of subject matter in dispute.

[1.50] adversarial system of civil litigation

Main features of adversarial model:

Party controlled dispute (parties define dispute and present evidence and argument)
Use of precedent, procedural laws, laws of evidence
Judge is impartial and acts as umpire; reactive
Reliance on orality. Testimony adduced from witnesses and is subject to cross examination. Advocates use oral argument in presentation of their case
Trial is climactic end of litigation process and is distinct from pre trial stages of proceedings
Use of trial transcript for appeal

Adversarial	Inquisitorial
Judge: reactive – impartial, umpire. Instead, there is a party controlled dispute.	Judge: Proactive and Inquisitive.
Source of law: precedent,...

#8505 - Intro To Civil Procedure - Litigation - Civil Procedure

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