Exam Preparation Legislation (Nsw) Notes

1. 2. Civil Procedure Theme & Case Management I_2 Proceeding can be conducted in the absence of the public: * In the presence of the public would defeat the ends of justice (b) * If the business concerns guardianship, custody or maintenance of a minor. (c)... 6-8 I_3 Court Suppression and Non-Publication Orders Act 2010 (s6-s8) r 51.53 I_3 The court may order a new trial if and only if there is substantial wrong or miscarriage. (1) LPA 347 I_10 Legal practitioner's must not may a claim unless there is reasonable prospects for success. I_10 If it appears to the court that the law practice has provided the legal service without reasonable prospects of success, the court may: * order the practice to repay to customer the whole or any part of the costs that the customer has paid (1)(a). * to indemnify any other third party for the cost incurred. (1)(b) I_6 The overriding purpose of civil procedure can be summarised as 'efficiency'. Section 56 of the Civil Procedure Act 2005 (NSW) prescribes the "just, quick and cheap" resolution of civil proceedings to be the 'overriding purpose' of civil litigation. * The provision is overriding in the sense that when the court exercises procedural powers, it must always have regard to this purpose: s56(2). * Furthermore, any parties or legal practitioners which are part of the proceedings must also assist the court in achieving this objective: s56 (3)(4). * The litigants is responsible to ensure that the overriding provisions are satisfied, otherwise costs may be awarded against them: (5) I_6 Objects of case management: * just determination of the proceeding, * efficient disposal of the business of the court * efficient use of the available resources, * timely disposal of the proceedings at a cost affordable manner by the respective parties CPA 58 I_7 The dictate of justice. CPA 59 I_7 Elimination of delay. CPA 60 I_7 The cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute. CPA 71 Open Justice Fair Trial LP Costs LPA 348 CPA 56 Case Management CPA 57 1 1. 2. Civil Procedure Theme & Case Management Case Management CPA 61 I_8 * Section 61(1) and (2) confers on the Court a wide power to give pre-trial directions. * Section 61(3) specifically provides that if a party to whom a direction has been given fails to comply with the direction the Court may, amongst other things, dismiss the proceedings. r 2.1 I_7 The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient CPA 66 I_9 The court may at any time and from time to time, by order, adjourn to a specified day any proceedings before it. CPA 86(3) I_7 The court is entitled to make or withdraw any order by application or by its own motion. Civil Procedure Theme s 56 of the CPA: just, quick and cheap * Just: fair trial, open justice * Quick: litigation deterrence * Cheap: costs The power of CM * * * * * * Pleadings (and their amendment) Discovery (including privilege) Preparation of evidence Length and timing of hearings Summary disposition of cases Rule 2.3 UCPR sets out long list of matters over which courts have discretions 2 3. Alternative Dispute Resolution Mediation CPA 26 Entitles court to refer any proceedings or part of such proceedings to mediation with or without parties' consent. CPA 27 It is the duty of each party to participate the mediation in good faith. CPA 28 Costs payable as per court order or as agreed between parties CPA 29 The court may make orders to give effect to any agreement or arrangement arising out of a mediation session. CPA 30 III_4 Confidentiality: A mediator may disclose information obtained only where: * with the parties' consent (a) * court's order (b) * the mediator has reasonable grounds to believe that the disclosure is necessary to prevent or minimise the danger of injury to any person or damage to any property. (c) * for the purpose of aiding in the resolution of a dispute (d) * in accordance with a requirement imposed by law (e) CPA 31 CPA 38 Privilege: the following things are not admissible in any proceedings before any court or other body: (4) * evidence of anything said in a mediation session, or * document prepared for the purpose of, or in the course of, or as a result of, a mediation session. III_5 The court may make order in regards of arbitration. * Determinative role of arbitrator. (1) * Determination must be recorded in writing with reason for the decision and signed by arbitrator. (2) CPA 39 Arbitration CPA 42 CPA 43 III_6 The aggrieved party by award may apply for a rehearing . An order for rehearing need not be made if it appears to the court that the applicant failed to attend a hearing before an arbitrator without good reason. 3 4. Matters Preceding Litigation UCPR Definition Identity Discovery (Unknown defendant or Location of the defendant Unknown) Information Discovery (Cause of Action Unknown) Preliminary Discovery 5.1 Definition: applicant & "identity or whereabout". 5.2 Reason --> for Discovery to ascertain the identity for Prospective Defendant r5.2(1) -->(i.e., the plaintiff does not know the identity of the defendant or the location of the defendant) * Applicant unable to ascertain the identity or whereabout of the prospective defendant (1)(a), * Some other person may have the information or related documents that tends to disclose the information (1)(b) Court order r5.2(2) * Order to attend the court to give the information, or (2)(a) examination held before a registrar r5.2(3)(b) --> (cf.(2)(a), not court) * Order to provide the applicant ALL relevant documents (2)(b) Order to provide the court all those documents r5.2(3)(a) If "the other person" is a corporation, order may be addressed any appropriate officer or former officer of the corporation. (4) No need to attend the court to give the information [(2)(a)] unless the conduct money has been handed a reasonable time before the required "attendance date". (5) Additional money order may be made to the applicant if there are additional costs incurred, i.e., (the previous paid money is not enough to cover the expense). (6) The application for such order must: * be supported by an affidavit (7)(a) * stating the facts on which the applicant relied on * specified the kinds of information, documents or things that the applicant want to check * both the application and the supporting affidavit must be served personally on "the other person". (7)(b) Application for the order is to be made either by "notice of motion" (when the application is a party to the proceedings) or by summon. (8)(a)-(b) 5.3 Reason --> cause of action unsure The court may make an order to require the information/documents from the prospective defendant when: (1) * applicant has made reasonable inquiries, but still unable to obtain the sufficient information to decide whether or not to commence the proceedings against the prospective defendant (1)(a) * the prospective defendant may have or have had a document or thing that can assist in determining whether or not there is a cause of action (1)(b) * inspection of such document would help the applicant make the decision (1)(c) Order may be addressed to appropriate officer or former officer of a corporation. (2) Affidavit required, (3)(a); must be personally served to the prospective defendant. (3)(b) (see 5.2) 1 2 4 4. Matters Preceding Litigation UCPR Preliminary Discovery Discovery of Document from third party 5.4 Discovery documents from third party The court may make an discovery order to a third party of the proceedings: * when the court believes the person possess a document that relates to any question in the proceedings * deliver the document to the applicant. (1) Must be supported by affidavit and with the application personally served to the third party. (2) Security for Cost 5.6 The applicant may be required to give security by the order to secure the cost incurred. Privilege 5.7 Privilege documents are not required to be produced. * when the applicant and the person against whom the order is made were parties in one proceedings. 5.8 Orders for cost may be made for the applicant, (1); including: * conduct money, and (2)(a) * payment made on account of any expense or loss of the proceedings, (2)(b) * the cost of making and serving any documents, and (2)(c) * the cost of producing any documents for inspection, and (2)(d); others (2)(5). 3 Cost Limitation Act 1969 Limitation Periods * 3 years post discoverability limitation period: cause of action is discoverable by the plaintiff; (1)(a) * 12 year long-stop limitation period: from the time the injury occurred 50C Limitation Period for Personal Injury 4 50D * A cause of action is discoverable by a person means that the person "knows or ought to know" the following points: * the fact that the injury occurred (1)(a) * the fact that the injury was caused by the defendant (1)(b) * the fact that the injury was sufficiently serious to bring an action (1)(c) * "ought to know" means the person should take reasonable steps to ascertain that fact (2) * Whether the person know or ought to know is a question of fact, judged by the conduct/statement of the person(3) 5 4. Matters Preceding Litigation Limitation Act 1969 50E Limitation Periods 4 * Prerequisite of the section: (1) * victim was a minor when injured * action against a parent or guardian or a close associate of a parent or guardian of the victim * Section provides: * cause of action discoverable when the minor grows up to 25 years old (1)(a) * the 12 year long-stop limitation period run from the victim at the age of 25 (1)(b) * close associate means: * the parent or guardian may be influenced by the person not to bring an action on behalf of the minor (2)(a) * the minor may be unwilling to disclose the conduct (injury) to his or her parent / guardian (2)(b) * If the victim dies before 25, survival claim starts when he ought to reach the age of 25. (3) 5 * Disability may suspend the running of the "limitation period". (1) * A person is under a disability when * a minor without a capable parent or guardian (2)(a) * an incapacitated person for a continuous period of 28 days or more --> not a protected person (2)(b) * Facts are known or ought to known by a capable parent or guardian of the incapacitated person = facts are known or ought to known by the victim (the incapacitated person). (3) * Definition of "capable parent or guardian", "guardian", "incapacitated person" "protected person". (4) Limitation Period for Personal Injury 50F UCPR Interim Preservation Order Freezing Order (Mareva Injunctions) Preservation Order Meaning of usual undertaking as to damages: an undertaking to pay under an order, the amount of which is just for the payment of compensation affected by the operation of the interlocutory order or undertaking. (Wei Huo De preservation 25.8 6 orderSuo Xu [?] Zhi Fu De He Li Bu Chang Fei [?] Yong ). 25.9 Interim preservation order may be made at any stage of proceedings. 25.11 * A freezing order may be made: (1) * without notice to the respondent * for the purpose of preventing the frustration or abuse of the court's process * Definition of "freezing order" (2) 7 25.12 An ancillary order may be made to further explain the freezing order. 6 4. Matters Preceding Litigation UCPR Preservation Order 25.13 Freezing Order (Mareva Injunctions) 7 The respondent need not be a party to the proceedings. 25.14 Order against judgment debtor or prospective judgment debtor or third party * for the purpose to prevent the debtor from removing the assets to escape the payment. (4) 25. 16 A freezing order may be served outside Australia. 25.17 8 Cost order will be made according to the cost affected by a freezing order or ancillary order. 25.19 Search order may be made to permit persons to enter premises and search for, inspect, copy and remove things described in the search order. it is designed to preserve important evidence pending the hearing of the claim. 25.20 Requirement for grant of search order: ` * the applicant has a strong prima facie case on an accrued cause of action; (a) and * an potential or actual loss or damage to the applicant will be serious if the search order is not made; (b) and * there is sufficient evidence that: * the respondent possesses important evidentiary material, and * there is a real possibility that the respondent might destroy such material or cause it to be unavailable for use in evidence Search Order (Anton Piller Orders) 9 25.22 Terms of search order 25.23 * The court must appoint one or more solicitors who are independent of the appellant's solicitor to supervise the execution of the search order. (1) 25.24 Cost order will be made according to the cost affected by a search order. Maximum Legislation Exceptions Local Court $100,000 s 29 LCA 2007 Personal injury and death claims $60,000 District Court $750,000 s 44 DCA 1973 Unlimited in some areas, e.g., motor accidents 7

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