LAWS13017 # CIVIL PROCEDURE

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STUDY GUIDE | WEEK 5

Pleading and Summary Disposition-347618780526-347618780526-14382742819400Version 2.08 2024

CONTENTS

TOC h u z t "Heading 1,1,Heading 2,2,Heading 3,3,Heading 4,4,Heading 5,5,Heading 6,6,"Pleading and Summary Disposition1

1 Preview1

1.1 Introduction1

1.2 Objectives2

1.3 Prescribed Reading4

1.4 Reference Reading4

1.5 Key Terms4

2 Contents of Pleadings5

2.1 Pleading generally5

2.2 Material facts6

2.3 Facts, not evidence7

2.4 Facts and law7

2.5 Miscellaneous rules8

3 Plain English9

3.1 Introduction9

3.2 Avoid legal fossils10

3.3 Omit surplus words10

3.4 Principles of plain English Drafting10

4 Procedure10

5 Statement of Claim10

5.1 Procedural matters10

5.2 Content11

6 Defence15

6.1 Contents generally15

6.2 Denials18

6.3 Affirmative pleading20

7 Counterclaim20

7.1 Counterclaim20

7.2 Reply and defence to a Counterclaim20

7.3 Set-off20

7.4 Set-off and counterclaim contrasted20

8 Particulars21

8.1 Formal requirements and purpose21

8.2 Pleadings and particulars22

8.3 Particulars and evidence22

8.4 Particulars inadequate22

9 Striking out pleadings22

10 Problem Plaintiffs and defendants23

10.1 Problem Plaintiffs23

10.2 Problem Defendants23

11 Introduction - Summary Disposition23

12 Default Judgment25

12.1 Default of notice of intention to defend26

12.2 Liquidated claims and pecuniary damages30

12.3 Claims for goods30

12.4 Other defaults30

12.5 Setting aside default judgment30

12.6 Costs32

13 Summary Judgment32

13.1 Introduction32

13.2 No real prospect32

13.3 Summary judgment for the plaintiff32

13.4 Summary judgment for the defendant35

13.5 Setting aside Summary judgment35

14 Discontinuance36

15 Staying or dismissing proceedings as an abuse of process38

15.1 Introduction establishing abuse of process38

15.2 Delay constituting abuse of process38

16 Vexatious litigants38

17 Interest40

17.1 Interest rates43

17.2 Interest on judgment by the court (judge)45

17.3 Interest on Money Order45

18 Review48

18.1 Concluding Summary48

18.2 Review Questions49

18.3 Tutorial Problems50

18.4 Debrief54

18.5 Answers to Review questions55

Pleading and Summary Disposition

1 Preview

1.1 Introduction

Pleadings are documents exchanged between the parties to litigation, in which they set out the material facts they intend to allege at the hearing of the action. Pleadings serve a number of purposes, including:

Informing the court of the matters on which its decision is sought;

Defining the issues, and so limiting the ambit of discovery and the evidence which needs to be prepared for trial; and

Providing a record of all of the matters involved in the action, and in that way preventing further actions between the same parties in relation to them.

The usual pleadings are:

The plaintiffs Statement of Claim;

The defendants Defence, or Defence and Counterclaim; and

The plaintiffs Reply (and Answer if there is a Counterclaim).

In this topic we will also examine situations in which a party to a civil litigation may take steps to bring about a summary disposal of the matter. This involves situations where a court, either upon the application of a party or (rarely) its own initiative, may call upon the other party to show cause, usually by affidavit, as to why the Claim or Defence ought not be struck out and/or judgment entered against them. The circumstances in which such a summary disposal may occur are not confined solely to the situation of a failure to comply with the rules concerning filing of documents or other procedural stipulations, but may actually involve a form of merits-based determination, either of the action or some material part of it.

1.2 Objectives

After studying Topic 5 Pleading and Summary Disposition you should be able to:

Pleading

Understand the role of pleadings in civil procedure.

Apply the principles of plain English drafting to Pleadings.

Critique various pleadings.

Summary Disposition

Describe what is meant by the expressions summary judgment; default judgment and discontinuance of action;

Identify the difference between a default judgment and a summary judgment;

Understand the process whereby parties to a civil legal proceeding may apply for a summary disposal of an action; and

Describe the steps required to be complied with under the UCPR and related legislation in order to effect the summary disposal of a proceeding.

1.3 Prescribed Reading

Colbran, Spender, Jackson and Douglas, Civil Procedure Commentary and Materials (LexisNexis, 8th ed, 2022) Ch 12, 13.

1.4 Reference Reading

Bamford, Principles of Civil Litigation (Thomson Reuters, 2010) Ch 6.

Barlow, Comments on Changes to Queensland Courts Civil Jurisdiction (2010) 45 Hearsay (the electronic journal of the Queensland Bar Association).

Cairns, Australian Civil Procedure (Thomson Reuters, 12th ed, 2020) Ch 7, 12.

Mandikos, Civil Procedure (Lawbook, 2nd ed, 2009) Ch 10.

1.5 Key Terms

The following are key terms used within the text or required reading for Topic 5:

Pleading:

Cause of action The facts or combination of facts that give rise to a right of action. For example a cause of action based on contract requires an offer, acceptance, consideration and breach. A cause of action based on the tort of negligence requires a duty of care, breach of that duty and damage. The elements of a cause of action are features derived from substantive law.

Counterclaim Another action brought by the defendant against the plaintiff concerning the same subject matter as the plaintiffs action.

Particulars Details of the claim or defence to an action, necessary to enable the other side to know what case has to be met.

Pleading Written statements delivered by one party to another setting out the facts supporting the questions of law to be decided.

Statement of claim A written statement of a plaintiff in an action, outlining the facts used to support the claim made against the defendant, and the relief sought.

Striking out A court order in relation to amendment or destruction of a pleading e.g. if a defence is struck out, the defendant needs to submit another defence or risk default judgment.

Summary Disposition:

Default judgment A discretionary judgment or verdict given in favour of the plaintiff by virtue of the defendants failure to comply with the procedural requirements of the court after having been served with an originating process. Butterworths, Australian Legal Dictionary, 334.

Discontinuance The breaking off or ending of proceedings. Butterworths, Australian Legal Dictionary, 366.

Summary judgment Discretionary judgment or verdict given in favour of the plaintiff, where there is evidence of the fact on which the claim is based and the defendant has no real defence to the plaintiffs claim ... or in favour of the defendant where the plaintiff has no reasonable cause of action, the proceedings are frivolous or vexatious, or are an abuse of the process of the court. Butterworths, Australian Legal Dictionary, 1133.

2 Contents of Pleadings

Pleadings are documents exchanged between the parties to litigation, in which they set out the material facts they intend to allege at the hearing. The purpose of pleadings is to:

Inform the court on the matters to be decided

Define the issues, limits disclosure and evidence for trial

Provide a record of the ambit of the matter

The main pleadings include:

Statement of claim (Plaintiff)

Defence or Defence and Counterclaim (Defendant)

Reply and answer if there is a counterclaim (Plaintiff)

A case can only be decided on an alternative basis to the pleadings, if the parties agree: Banque Commerciale SA (en liq) v Akhil Holdings Ltd (1990) 169 CLR 279 [extracted 12.1.2C]; Suvaal v Cessnock City Council (2003) 200 ALR 1 [extracted 12.1.3C]. These cases illustrate the care that must be taken with pleading.

2.1 Pleading generally

The fundamental pleading rule is UCPR r 149.

UCPR r 149 Statements in pleadings

(1) Each pleading must

(a) be as brief as the nature of the case permits; and

(b) contain a statement of all the material facts on which the party relies, but not the evidence by which the facts are to be proved; and

(d) subject to rule 156, state specifically any relief the party claims; and

(e) if a claim or defence under an Act is relied onidentify the specific provision under the Act.

(2) In a pleading, a party may plead a conclusion of law or raise a point of law if the party also pleads the material facts in support of the conclusion or point.

The following diagram explains the pleading process or pathway. Most litigation involves the three boxes shaded green and do not involve cross-claims. During this process it is common for parties to seek and obtain leave to amend their pleadings.

START

Originating Process

Application filed by plaintiff/applicant

Response

Notice of Intention to Defend. Defence

Filed by defendant/respondent

Optional filed by plaintiff/applicant

Cross-claim

Against plaintiff/applicant/third party

Filed by defendant /respondent

Cross-defence

Filed by plaintiff/ cross-defendant and third party cross-defendant

Cross-reply

Optional filed by cross-claimant

Further Cross-claim

Filed by cross-defendant against an existing or new party

Further Cross-defence

Further Cross-reply

END

2.2 Material facts

A party must plead all the facts necessary to constitute a complete cause of action or defence, so that if the facts pleaded are proved or admitted, the party pleading them will be entitled to the relief sought in the pleading. Material facts also extend to the relief being sought and such other facts as will ensure the other party is not taken by surprise.

Immaterial facts clearly should not be pleaded, but in practice the rule is not so strictly interpreted as to preclude appropriate introductory matters, such as descriptions of the parties, their occupations, locations of their businesses, and so on.

The requirement that a party must plead all material facts does not mean that a party must be committed to one assertion or consistent series of assertions as to what are the facts, but inconsistent allegations of fact or grounds of claim must be clearly pleaded as alternatives:

UCPR 154 Inconsistent allegations or claims in pleadings

(1) A party may make inconsistent allegations or claims in a pleading only if they are pleaded as alternatives.

(2) However, a party must not make an allegation or new claim that is inconsistent with an allegation or claim made in another pleading of the party without amending the pleading.

In Mio Art Pty Ltd v Macequest Pty Ltd (2013) 95 ACSR 583 [extracted at 12.2.5C], Jackson J provides an instructive discussion on the nature of material facts, and the importance of clearly and separately identifying material facts on which a party relies.

2.3 Facts, not evidence

Facts in the nature of evidence of the material facts establishing a cause of action or defence should not be pleaded.

2.4 Facts and law

The pleading need only disclose the essential ingredients of the cause of action or defence: Creedon v Measey Investments Pty Ltd (1988) 91 FLR 318.

A party may however state a conclusion of law, if the material facts in support of the conclusion are also stated: UCPR r 149(2).

Parties relying on a statutory cause of action or defence must identify the specific provision in their pleading: UCPR 149(1)(e).

2.5 Miscellaneous rules

Documents and conversations:

UCPR r 152 Spoken words and documents

Unless precise words are material, a pleading may state the effect of spoken words or a document as briefly as possible without setting out all of the spoken words or document.

Conditions precedent:

UCPR r 153 Condition precedent

(1) An allegation of the performance or occurrence of a condition precedent necessary for the case of a party is implied in the partys pleading.

(2) A party who denies the performance or occurrence of a condition precedent must specifically plead the denial.

Presumptions:

UCPR r 151 Presumed facts

(1) A party is not required to plead a fact if

(a) the law presumes the fact in the partys favour; or

(b) the burden of proving the fact does not lie with the party.

(2) Subrule (1) does not apply if it is necessary to plead the fact

(a) to comply with rule 149; or

(b) to meet a denial pleaded by another party.

Points of law: UCPR r 149(2) discussed above.

Formal requirements:

UCPR 146 Formal requirements

(1) A pleading must

(a) state the number of the proceeding; and

(b) state the description of the pleading; and

(d) be signed by the solicitor for the party filing it or, if the party appears or defends in person, the party; and

(e) be consecutively numbered on each page; and

(f) be divided into consecutively numbered paragraphs and, if necessary, subparagraphs, each containing, as far as practicable, a separate allegation; and

(g) if it is settled by counselstate the counsels name.

(2) In addition, a pleading (other than a reply) must have on it a notice to the party on whom the pleading is served under rule 164 informing the party about the time for serving pleadings in response under rule 164.

UCPR 149 Statements in pleadings

(1) Each pleading must

(a) be as brief as the nature of the case permits; and

(b) contain a statement of all the material facts on which the party relies but not the evidence by which the facts are to be proved; and

(d) subject to rule 156, state specifically any relief the party claims; and

(e) if a claim or defence under an Act is relied onidentify the specific provision under the Act.

(2) In a pleading, a party may plead a conclusion of law or raise a point of law if the party also pleads the material facts in support of the conclusion or point.

3 Plain English

3.1 Introduction

The rules do not prescribe a written style. There is a legalese or special language for pleadings, which the modern movement for plain English drafting has sought to address. Redrafting of court forms into modern English has assisted this process.

3.2 Avoid legal fossils

Source: R MacDonald and D Clark-Dickson, Clear and Precise: Writing Skills for Todays Lawyer, 2nd ed, Thomson Custom Publishing, Sydney, 2005, pp 3839, 129144.

3.3 Omit surplus words

Source: See above.

3.4 Principles of plain English Drafting

Use active, not passive, verbs;

Defined terms, if they have a specific and necessary role (In complicated matters, defining all relevant terms in a dictionary section at the beginning of the pleading may make the pleading more readable);

Non-discriminatory language;

Headings to signpost longer pleadings; and

Vertical lists when appropriate to break up detailed information.

4 Procedure

Pleadings are filed and copies served.

UCPR rr 146(1), 22(3), 139(1), 142, 146 (service).

5 Statement of Claim

5.1 Procedural matters

A Claim must be in the approved form: UCPR r 22(1). This includes incorporating a Statement of Claim within the Claim itself. The pleading process continues with the exchange of pleadings, within the varying time periods permitted for each pleading prescribed by the rules, or fixed by the court at a directions hearing. The rules in most jurisdictions also prescribe the time when pleadings close. A further pleading cannot be delivered after that time without the leave of the court: UCPR r 169.

5.2 Content

Introductory statement: Form 016 - Statement of Claim. This should identify the parties, their relationship with the dispute etc. If a party is a defendant the statement will need to identify that at all material times they were incorporated, entitled to sue or be sued in its own name.

The Claim must disclose a cause of action. This is set out in the body of the statement of claim in numbered paragraphs. Usually this is done in chronological order. All material facts must be included to support the claim.

Not anticipate a Defence. Dealing with a Defence is the role of a Reply.

The nature and amount of damages claimed are to be pleaded: UCPR rr 150, 155.

UCPR 150 Matters to be specifically pleaded

(1) Without limiting rule 149, the following matters must be specifically pleaded

(a) breach of contract or trust;

(b) every type of damage claimed including, but not limited to, special and exemplary damages;

Note See also rule 155 (Damages).

(d) duress;

(e) estoppel;

(f) fraud;

(g) illegality;

(h) interest (including the rate of interest and method of calculation) claimed;

(i) malice or ill will;

(j) misrepresentation;

(k) motive, intention or other condition of mind, including knowledge or notice;

(l) negligence or contributory negligence;

(m) payment;

(n) performance;

(o) part performance;

(p) release;

(q) undue influence;

(r) voluntary assumption of risk;

(s) waiver;

(t) want of capacity, including disorder or disability of mind;

(u) that a testator did not know and approve of the contents of a will;

(v) that a will was not properly made;

(w) wilful default;

(x) anything else required by an approved form or practice direction to be specifically pleaded.

(2) Also, any fact from which any of the matters mentioned in subrule (1) is claimed to be an inference must be specifically pleaded.

(3) If the plaintiffs claim is for a debt or liquidated demand only (with or without a claim for interest), the plaintiff must state the following details in the statement of claim

(a) particulars of the debt or liquidated demand;

(b) if interest is claimedparticulars as required by rule 159;

(d) a statement that the proceeding ends if the defendant pays the debt or liquidated demand and interest and costs claimed before the time for filing notice of intention to defend ends;

(e) a statement of the additional costs of obtaining judgment in default of notice of intention to defend.

(4) In a defence or a pleading after a defence, a party must specifically plead a matter that

(a) the party alleges makes a claim or defence of the opposite party not maintainable; or

(b) shows a transaction is void or voidable; or

(d) raises a question of fact not arising out of a previous pleading.

(5) If the plaintiffs claim starts a wrongful death proceeding, the plaintiff must state in the statement of claim the person or persons for whose benefit the claim is brought.

UCPR 155 Damages

(1) If damages are claimed in a pleading, the pleading must state the nature and amount of the damages claimed.

(2) Without limiting rule 150(1)(b), a party claiming general damages must include the following particulars in the partys pleading

(a) the nature of the loss or damage suffered;

(b) the exact circumstances in which the loss or damage was suffered;

(3) If practicable, the party must also plead each type of general damages and state the nature of the damages claimed for each type.

(4) In addition, a party claiming damages must specifically plead any matter relating to the assessment of damages that, if not pleaded, may take an opposing party by surprise.

Claim for relief must be pleaded: UCPR rr 149(1)(d), 156.

UCPR 156 General relief

The court may grant general relief or relief other than that specified in the pleadings irrespective of whether general or other relief is expressly claimed in the pleadings.

The details in relation to damages as required by rr 150(1)(b) and 155 should appear as allegations in the body of the statement of claim, and not only in the claim for relief at the end. In appropriate circumstances, however, the claim for relief may simply refer back to the amounts or matters pleaded in the relevant paragraphs of the statement of claim: Meredith v Palmcam Pty Ltd [2001] 1 Qd R 645.

Interest

The rules require a party intending to apply for an award of interest to allege particulars of the amount or amounts on which interest is claimed, the interest rate or rates claimed (except if the party is claiming at the rate or rates specified in a practice direction), and the method of calculation: r 159. Proceedings for damages for personal injury or death are expressly excluded (r 159(2)) because in proceedings of that nature it would be difficult, and often impossible, to provide those details.

6 Defence

6.1 Contents generally

The defendant must plead in the defence all facts showing that the plaintiffs claim is not maintainable and all grounds of defence which, if not pleaded, may surprise the plaintiff, or which raise matters of fact not arising out of the statement of claim.

UCPR r 150 (1), (4).

Form 017 Defence - version 2

SUPREME/DISTRICT/MAGISTRATES COURT OF QUEENSLAND

REGISTRY:

NUMBER:

Plaintiff: (Insert Name)

AND

[First] Defendant: (Insert Name)

AND

[Second Defendant:] (Insert Name)

DEFENCE OF THE [FIRST] DEFENDANT

The (first) defendant relies on the following facts in defence of the claim:

1.[The defendant admits the allegations in paragraphs ...................... of the statement of claim.]

2.[The (first) defendant does not admit the allegation in paragraph ... of the statement of claim. The (first) defendant has made reasonable inquiries and remains uncertain of the truth or otherwise of the allegation and is unable to admit it because.. (give explanation) [The (first) defendant believes the allegation cannot be admitted because... (give explanation).]

3.[The (first) defendant denies the allegation in paragraph ... of the statement of claim because (give explanation)]

4.(set out as briefly as the nature of the case permits the material facts on which the defendant relies in accordance with the requirements of Chapter 6 of the Uniform Civil Procedure Rules 1999)

5.etc.

[The (first) defendant elects trial by jury] (if the defendant elects under Rule 472 and no Act excludes trial by jury).

Signed:(defendant or solicitor to sign)

Description:(of signatory eg. solicitor)

[This pleading was settled by (name) of Counsel].

NOTICE AS TO REPLY

You have fourteen days within which to file and serve a reply to this defence. If you do not do so, you may be prevented from adducing evidence in relation to allegations of fact made in this defence.

DEFENCE Name:

Filed on Behalf of the (First) Defendant (s) Address:

Form 17 Version 2

Uniform Civil Procedure Rules 1999 Phone No:

Rule 146 Fax No:

Email:

Form 18 - Defence and counterclaim.

SUPREME COURT OF QUEENSLAND

REGISTRY: (As per Claim)

NUMBER: (As per Claim)

Plaintiff:(As per Claim)

AND

[First] Defendant(As per Claim)

AND

[Second Defendant](As per Claim)

(Title - Add to the title the name(s) of every defendant added by counterclaim)

Filed in the (place) registry on (date).

DEFENCE OF THE [FIRST] DEFENDANT

The [first] defendant relies on the following facts in defence of the claim:

1.[The defendant admits the allegations in paragraphs ...................... of the statement of claim.]

2.[The [first] defendant does not admit the allegation in paragraph ... of the statement of claim. The [first] defendant has made reasonable inquiries and remains uncertain of the truth or otherwise of the allegation and is unable to admit it because........ (give explanation). [The [first] defendant believes the allegation cannot be admitted because. (give explanation).]

3.[The [first] defendant denies the allegation in paragraph ... of the statement of claim because ... (give explanation).]

4.(set out as briefly as the nature of the case permits the material facts on which the defendant relies in accordance with the requirements of Chapter 6 of the Uniform Civil Procedure Rules)

5.etc.

COUNTERCLAIM

This counterclaim is made by the [First] Defendant against:

1.The [First] Plaintiff;

2.The [Third] Plaintiff;

3.The [Second] Defendant;

4.(Name any other relevant person not already a party in the proceeding) called [First] Defendant added by counterclaim;

5.(As per 4)

etc.

This counterclaim is made in reliance upon the following facts:

(Set out as briefly as the nature of the case permits a statement of all the material facts relied on in accordance with the Uniform Civil Procedure Rules, Chapter 6.)

The (First) Defendant claims the following relief:

(Set out in full all relief claimed by the counterclaim in the same way as is required for a claim).

[The [First] Defendant elects trial by jury of the counterclaim] (if the defendant elects under Rule 472 and no Act excludes trial by jury).

Signed:([first] defendant or solicitor)

Description:(of signatory)

[This pleading was settled by (name) of Counsel.]

NOTICE AS TO REPLY AND ANSWER

To the Plaintiff(s): You have 14 days within which to file and serve an answer to this counterclaim. If you do not do so, Rule 166 provides allegations of fact in the counterclaim are taken to be admitted by you unless denied or stated to be not admitted by you in a pleading.

To the [Second] Defendant: You have 14 days within which to file and serve an answer to this counterclaim. If you do not do so, Rule 166 provides allegations of fact in the counterclaim are taken to be admitted by you unless denied or stated to be not admitted by

you in a pleading.

[To each Defendant added by Counterclaim: TAKE NOTICE that you are being sued by the [First] Defendant in the Court. If you intend to dispute this claim or wish to raise any counterclaim, you must within 28 days of the service upon you of this counterclaim file a NOTICE OF INTENTION TO DEFEND in this Registry. If you do not comply with this requirement, judgment may be given against you for the relief claimed and costs without further notice to you. The Notice should be in Form 6 to the Uniform Civil Procedure Rules. You must serve a sealed copy of it at the [First] Defendants address for service shown in this counterclaim as soon as possible.]

Address of Registry:

Particulars of the [First] Defendant: (Here give the particulars required of a Plaintiff and Plaintiffs Solicitor in Form 2. Include name and address of each party to be served with the counterclaim.)

6.2 Denials

The defendant pleads to each allegation in the statement of claim - UCPR 165(1), 166 (4-6).

UCPR 165 Answering pleadings

(1) A party may, in response to a pleading, plead a denial, a nonadmission, an admission or another matter.

(2) A party who pleads a nonadmission may not give or call evidence in relation to a fact not admitted, unless the evidence relates to another part of the partys pleading.

UCPR 166 Denials and nonadmissions

(1) An allegation of fact made by a party in a pleading is taken to be admitted by an opposite party required to plead to the pleading unless

(a) the allegation is denied or stated to be not admitted by the opposite party in a pleading; or

(b) rule 168 applies.

(2) However, there is no admission under subrule (1) because of a failure to plead by a party who is, or was at the time of the failure to plead, a person under a legal incapacity.

(3) A party may plead a nonadmission only if

(a) the party has made inquiries to find out whether the allegation is true or untrue; and

(b) the inquiries for an allegation are reasonable having regard to the time limited for filing and serving the defence or other pleading in which the denial or nonadmission of the allegation is contained; and

(4) A partys denial or nonadmission of an allegation of fact must be accompanied by a direct explanation for the partys belief that the allegation is untrue or cannot be admitted.

(5) If a partys denial or nonadmission of an allegation does not comply with subrule (4), the party is taken to have admitted the allegation.

(6) A party making a nonadmission remains obliged to make any further inquiries that may become reasonable and, if the results of the inquiries make possible the admission or denial of an allegation, to amend the pleading appropriately.

(7) A denial contained in the same paragraph as other denials is sufficient if it is a specific denial of the allegation in response to which it is pleaded.

A denial may be express or implied. It is also possible to plead that an allegation is not admitted. This is appropriate if the allegation is outside the knowledge of the defendant after having made inquiries as to whether the allegation is true or untrue etc see UCPR r 166(3). An explanation for a denial or non-admission is requited UCPR r 166(4) or in default of which they are taken to have admitted the allegation (UCPR r 166(5)). There is a continuing obligation to make reasonable inquiries and amend the pleading as appropriate UCPR r 166(6). Note the serious consequence in UCPR r 165(2).

Another encouragement to meet the allegations is found in the adverse cost consequences of UCPR r 167.

UCPR 167 Unreasonable denials and nonadmissions

If the court considers an allegation of fact denied or not admitted should have been admitted, the court may order the party who denied or did not admit the allegation to pay additional costs caused by the denial or nonadmission.

An ambiguous plea may be deemed to be an admission: Thorp v Holdsworth (1876) 3 Ch D 637 [extracted 12.5.10C].

Avoid negative pregnants. E.g. Plaintiff pleads A had no authority, which the defence denies, results in the defence pleading A had authority, due to the double negative. In such situations the defence may be ordered to provide particulars: Pinson v Lloyds & National Provincial Foreign Bank Ltd [1941] 2 KB 72.

6.3 Affirmative pleading

The defendant should admit all that is appropriate on the defence. A defendant may admit or confess an allegation, but allege further facts, which avoid the allegation this is known as confession and avoidance. E.g. admit that there is a contract, but allege facts that it is illegal. The defendant bears the onus of proof on the latter facts.

Cameron v Troy [2001] WASCA 400 [extracted 12.5.15C].

7 Counterclaim

7.1 Counterclaim

A counterclaim is an action in its own right brought by the defendant against the plaintiff enabling the joint trial of two claims. The defendant follows the same pleading requirements as per a statement of claim.

UCPR rr 177, 178, 182.

UCPR 177 Counterclaim against plaintiff

In a proceeding, the defendant may make a counterclaim against a plaintiff, instead of bringing a separate proceeding.

Counterclaim against an additional party r 178.

UCPR 182 Exclusion of counterclaim

The court may, at any time, exclude a counterclaim from the proceeding in which the counterclaim is made and give the directions the court considers appropriate about the conduct of the counterclaim.

7.2 Reply and defence to a Counterclaim

A reply is needed should the plaintiff wish to plead to specific allegations contained in the defence.

UCPR 168 Implied nonadmission

(1) Every allegation of fact made in the last pleading filed and served before the pleadings close is taken to be the subject of a nonadmission and rule 165(2) then applies.

(2) However, nothing in these rules prevents a party at any time admitting an allegation contained in a pleading.

UCPR 165 Answering pleadings

(2) A party who pleads a nonadmission may not give or call evidence in relation to a fact not admitted, unless the evidence relates to another part of the partys pleading.

The reply can only be used to meet the defence; it is not to raise a new cause of action nor allege any matter which is inconsistent with the statement of claim: r 154.

The plaintiff must defend any counterclaim, otherwise the defendant may obtain a default judgment on the counterclaim.

7.3 Set-off

A defendant may make a claim against a plaintiff by way of set-off.

7.4 Set-off and counterclaim contrasted

A set-off is essentially a defence, whereas a counterclaim is an independent cause of action.

UCPR 173 Set-off

(1) A defendant may rely on set-off (whether or not of an ascertained amount) as a defence to all or part of a claim made by the plaintiff whether or not it is also included as a counterclaim.

(2) If the amount of a set-off is more than the amount of the claim against which it is set off, then, regardless of whether the set-off is pleaded as a counterclaim

(a) the set-off may be treated as a counterclaim; and

(b) the court may give judgment for the amount of the difference or grant the defendant other relief to which the court considers the defendant is entitled.

Examples of other relief under subrule (2)(b) injunction, or stay, if within the courts jurisdiction

(3) Despite subrules (1) and (2)

(a) if the court considers a set-off cannot be conveniently dealt with in a proceeding, the court may set aside a defence or counterclaim in the proceeding by way of set-off and may order that the set-off be dealt with in a separate proceeding; or

(b) if the court considers a set-off should not be allowed, the court may set aside a defence or counterclaim by way of set-off.

UCPR 184 Judgment for balance

If a defendant establishes a counterclaim against the plaintiff and there is a balance in favour of 1 of the parties, the court may give judgment for the balance.

8 Particulars

8.1 Formal requirements and purpose

The rules specify certain allegations in respect of which particulars of the material facts must be given, including such matters as misrepresentation, fraud, breach of trust, wilful default and undue influence: UCPR rr 157, 159, 150, 155. This helps to clarify the case to be met, evidence needed and reduce the requirement for disclosure.

Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 [extracted 12.7.4C] discusses the function of particulars and when they are required.

8.2 Pleadings and particulars

Pleadings define the issues in general terms. Particulars control the generality of pleadings and restrict the evidence to be led by the parties at the trial and give the information enabling the other party to know what case he or she will be met with at the trial and prevent surprise: Pilato v Metropolitan Water Sewerage & Drainage Board (1959) 76 WN (NSW) 364 at 365 per McClemmens J. See generally: Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 2 NSWLR 340 [extracted 12.7.6C].

8.3 Particulars and evidence

Pleadings and particulars are not strictly enforced, and evidence is admitted if the parties have ignored inadequacies in the pleadings, or if to do so is not likely to cause surprise or injustice to the other party. See Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181 [extracted 12.7.8C]; and Doonan v Beacham (1953) 87 CLR 346 [extracted 12.7.10C].

8.4 Particulars inadequate

The detailed evidential procedures in Ch 11 and Pt 8 Exchange or correspondence instead of affidavit evidence, must be complied with before bringing an application for an order for particulars is sought: UCPR rr 443.

A costs sanction may be imposed on a party not providing sufficient particulars: UCPR r 161.

9 Striking out pleadings

The court has discretionary power to strike out all or part of a pleading that does not disclose a cause of action or is otherwise objectionable. A court may order a stay, dismiss a proceeding or enter judgment: UCPR rr 162, 171.

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 [extracted 12.8.5C]. (Whole pleading struck out dismissed the action with costs).

Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 242 [extracted 12.8.6C]. (Part pleading struck out.)

10 Problem Plaintiffs and defendants

10.1 Problem Plaintiffs

Problem

Plaintiffs

Commence proceedings

Excessive

Vexatious

Abuse of process

Interlocutory behaviour

Unnecessary

Expensive

Excessive

Non compliance

Originating process or Service

Court orders and directions

Fail to appear

Fail to engage with ADR

Fail to pay costs

Court response to problem Plaintiffs

Declarations

Proceedings are vexatious.

Summary Dismissal

Dismissal for want of prosecution.

Summary dismissal.

Default and Summary Judgment.

Cost orders

10.2 Problem Defendants

Defendants can also abuse the legal system in numerous ways requiring courts to balance access to justice and efficiency of the system in managing proceedings.

Problem

Defendants

Defend proceedings

File improper or inadequate defences.

Interlocutory behaviour

Unnecessary

Expensive

Excessive

Non compliance

Avoid service

Ignore court orders and directions

Fail to appear

Fail to engage with ADR

Fail to pay costs

Court response to problem Defendants

Striking out

Strike out a defence

Strike out part of a defence

Summary Dismissal

Default Judgment

Summary Judgment.

Dismissal for want of prosecution of cross-claims

Summary dismissal of cross-claims

Cost orders

11 Introduction - Summary Disposition

In this section we will be looking at procedures designed to cut short the standard litigation workflow. These procedures can avoid the abuse of spurious or improper claims or defences. There are procedures for summary judgment, default judgment and inherent powers to stay proceedings for abuse of process.

Generally speaking there are two (2) principle bases for summary disposition:

A failure to comply with a statute or rule, the consequence of which is to render the proceedings a nullity, e.g. starting an action in the wrong forum (jurisdiction); failing to lodge the appropriate initiating documents (an Application when a Claim was required); failing to file in time or take an appropriate step as required by the rules:

A failure, by pleading, to demonstrate either a basis for claim or defence, such as would warrant a trial or hearing on the merits to occur.

An action commenced in a court, which does not have jurisdiction to hear and determine it must generally be regarded as a nullity, i.e. incompetent. Therefore, unless the parties mutually agree to the court being competent to hear the action (rare), the proceedings should be struck-out.

There are obvious cost implications, as well as, in the case of legal practitioners, issues of professional competence, which will arise from such a turn of events.

Under the Civil Proceedings Act 2011 (Qld), such actions may be salvaged by transfer to the appropriate forum (court jurisdiction), but, again, there may well be costs implications which arise from such a step needing to be taken.

In such cases the Plaintiff/Claimant (as the originator of the action) may be liable for the Defendant/Respondents costs thrown away. They will, of course, also carry the burden of their own costs.

12 Default Judgment

Default judgment generally occurs in two instances: (a) where there has been a failure to take a step required by the rules; or (b) where there has been a failure to comply with a peremptory court order, usually called a self-executing or springing order.

12.1 Default of notice of intention to defend

UCPR Ch 9 Pt 1, especially rr 280-281. Judgment is obtained as of right by filing and affidavit of service and request for judgment.

UCPR 280 Default by plaintiff or applicant

(1) If

(a) the plaintiff or applicant is required to take a step required by these rules or comply with an order of the court within a stated time; and

(b) the plaintiff or applicant does not do what is required within the time stated for doing the act;

a defendant or respondent in the proceeding may apply to the court for an order dismissing the proceeding for want of prosecution.

(2) The court may dismiss the proceeding or make another order it considers appropriate.

(3) An order dismissing the proceeding for want of prosecution may be set aside only on appeal or if the parties agree to it being set aside.

(4) Despite subrule (3), the court may vary or set aside an order dismissing the proceeding for want of prosecution made in the absence of the plaintiff or applicant, on terms the court considers appropriate, and without the need for an appeal.

Division 2 Proceedings started by claim

UCPR 281 Application of div 2

(1) This division applies if a defendant in a proceeding started by claim has not filed a notice of intention to defend and the time allowed under rule 137 to file the notice has ended.

(2) This division also applies if a defendant in a proceeding started by claim files a conditional notice of intention to defend that becomes an unconditional notice of intention to defend and the defendant does not file a defence within the time required under rule 144(6).

Time for notice of intention to defend 28 days after the claim is served - UCPR r 137.

A plaintiff must prove service of a claim on a defendant in default before judgment may be given under this division against the defendant UCPR r 282.

As to the specific type(s) of Claim see:

Debt or Liquidated Demand - UCPR r 283. Default judgment may be entered if the plaintiff s claim is for damages, a liquidated demand or a debt.

UCPR 283 Judgment by defaultdebt or liquidated demand

(1) This rule applies if the plaintiffs claim against the defendant in default is for a debt or liquidated demand, with or without interest.

(2) The plaintiff may file a request for judgment for an amount not more than the amount claimed, together with

(a) if interest is claimedinterest calculated, to the date of judgment, at the rate specified in the claim or in a practice direction for the Civil Proceedings Act 2011, section 58; and

(b) the following costs

(i) costs for issuing the claim;

(ii) costs for obtaining judgment;

(iii) any other fees and payments, to the extent they have been reasonably incurred and paid.

(3) If the plaintiff files a request for judgment under subrule (2), the court, as constituted by a registrar, may give judgment.

(4) For this rule, a debt or liquidated demand includes interest if the rate of interest is

(a) limited to the rate specified in, and calculated in accordance with, an agreement; or

(b) not higher than the rate specified in a practice direction for the Civil Proceedings Act 2011, section 58.

(5) Subrules (6) to (8) apply if interest is claimed under the Civil Proceedings Act 2011, section 58.

(6) If the plaintiff elects to abandon the claim for the interest, the claim is taken to be a claim for the debt or liquidated demand without interest.

(7) If the plaintiff elects to accept interest at a rate not higher than that specified in a practice direction for any period mentioned in the direction, the registrar may award interest under the direction, whether or not the defendant has paid the debt or liquidated demand after the proceeding is started.

(8) If the plaintiff seeks to recover a higher rate of interest than that specified in a practice direction for any period mentioned in the direction, the court may

(a) decide the interest, if any, that is recoverable; and

(b) direct that judgment be given for the interest, whether or not the defendant has paid the debt or liquidated demand after the proceeding is started; and

(9) If the period for which interest is to be awarded is not specified in the statement of claim, interest is recoverable only from the date of the issue of the claim.

(10) If the court as constituted by a registrar is considering whether to give judgment, the registrar is not required to consider the merits of the plaintiffs claim against the defendant.

Note Under rule 982, the matter could be referred to a judge or magistrate for disposal, or for consideration and referral back, if the circumstances set out in that rule apply.

Goods UCPR r 285.

Recovery of Land (common law claim) UCPR r 286.

Unliquidated Damages UCPR r 284. If the claim is for damages, interlocutory judgment is entered for the plaintiff. The court will need to conduct a further hearing to assess the amount of damages.

284 Judgment by defaultunliquidated damages

(1) This rule applies if the plaintiffs claim against the defendant in default is for unliquidated damages, with or without another claim.

(2) The plaintiff may file a request for a judgment conditional on the assessment of damages by the court under chapter 13, part 8, and for costs.

(3) If the plaintiff files a request for judgment under subrule (2), the court, as constituted by a registrar, may give judgment.

(4) The court, as constituted by a registrar, must nominate under rule 507 the court that is to do the assessment.

Combination of liquidated and unliquidated UCPR r 287.

Other claims UCPR r 288.

Costs only - defendant satisfied claim UCPR r 289.

UCPR 289 Judgment by defaultcosts only

(1) This rule applies if, under this division, the plaintiff is entitled to judgment against a defendant in default and the defendant satisfies the plaintiffs claim for relief.

(2) The plaintiff may file a request for a judgment against the defendant for costs alone.

(3) If the plaintiff files a request for judgment under subrule (2), the court, as constituted by a registrar, may give judgment.

Special procedures

Ch 3 Pt 4 r 93 - person under a legal incapacity may start or defend proceedings only by the persons litigation guardian.

UCPR 96 - if there is no notice of intention to defend, the plaintiff may not proceed unless a litigation guardian is appointed.

All default judgments are determined by a court - most often constituted by a Registrar.

Debt or liquidated demand

UCPR 283 (2) Plaintiff/Claimant may file a request for judgment for no more than amount in Claim, with:

Interest to date of judgment, at rate specified in claim or in a Practice Direction under the Civil Proceedings Act 2011 (Qld) s 58; and

Costs.

UCPR 283(3) - Court (by Registrar) may give judgment.

Request for Default Judgment (Form 25).

Affidavit of Service (UCPR r 282).

Affidavit of Debt

Where part payment has been made, an affidavit of debt is needed to set out what was paid and what is now owing.

If an affidavit of debt is filed by post it can only be relied on until the end of 5th business day after it is sworn UCPR r 970.

Filing by post - UCPR r 969.

Draft Judgment (Form 26).

Interest

In the absence of a right to interest, the Civil Proceeding Act 2011 (Qld) s 58 provides a discretion in the court to award interest. This is to completely compensate the plaintiff who has been kept out of her money by the defendant.

Since this is discretionary, the court must determine how much interest, if any, to award.

Refer UCPR r 283(5)-(9).

12.2 Liquidated claims and pecuniary damages

Uniform Civil Procedure Rules 1991 (Qld) rr 283, 284.

Plaintiff files a request for judgment conditional on assessment of damages: UCPR r 283(2).

Registrar may grant judgment: UCPR r 283(3).

UCPR rr 507-512.

Separate trial of quantum.

Registrar must nominate the court to do the assessment.

12.3 Claims for goods

UCPR r 285.

12.4 Other defaults

UCPR r 280.

There cannot be default of pleading a statement of claim - since it is attached to the Claim.

Default of Defence - Default of Notice of Intention to Defend (as they are filed and served together)

Time for Defence - time for Notice of Intention to Defend

If no Reply - previous pleading deemed not admitted: UCPR r 168.

If pleading does not respond to previous pleading (or no defence) deemed admitted: UCPR r 166.

Uniform Civil Procedure Rules 1991 (Qld) r 476.

If the defendant does not appear, the plaintiff can proceed.

If the plaintiff does not appear,

The defendant is entitled to dismissal of the claim, and can go on to prove a counterclaim;

The defendant may submit to the judgment.

The Court may set aside or vary judgment, upon application, if the default is satisfactorily explained.

12.5 Setting aside default judgment

Uniform Civil Procedure Rules 1991 (Qld) r 290. There is no such thing as an irregular judgment, since all default judgments are now entered by the court.

UCPR 290 Setting aside judgment by default and enforcement

The court may set aside or amend a judgment by default under this division, and any enforcement of it, on terms, including terms about costs and the giving of security, the court considers appropriate.

The defendant must show by affidavit:

A defence on the merits. The way this will most effectively be shown is by annexing to the affidavit a copy of a draft defence proposed to be delivered;

An explanation for the failure to appear;

An explanation for any delay in applying to set the judgment aside.

Generally, a tardy defendant will be penalised to the extent of paying the plaintiff's costs thrown away on obtaining the default judgment and plaintiffs costs on the application to set aside (even though on that application the defendant is the successful party).

N.M.L.A. v Oasis Developments [1983] 2 Qd R 441 at 450 per McPherson J:

The tenants are required to show by affidavit a defence on the merits; that is what is described in Evans v Bartlam [1837] A.C. 473, 480, as a prima facie defence, and in Saunders v Hammond [1965] QWN 39 as a substantial ground of defence.

Aboyne Pty Ltd v Dixon Homes Pty Ltd [1980] Qd R 142 Kelly J considered an application to set aside a summary judgment. Relevant factors were:

Does the defendant have a satisfactory explanation for the failure to appear?

Is delay in bringing the application such as to preclude the defendant from obtaining relief?

Had the defendant appeared at the hearing, would it have been granted leave to defend?

See also the decision of the Queensland Court of Appeal in Cusack v De Angelis [2007] QCA 313; QLR 28/6/08 (07/3270) Brisbane per McMurdo P; Muir JA and Lyons J 28/09/2007

http://www.austlii.edu.au/au/cases/qld/QCA/2007/313.html (accessed 8 April 2020)

National Australia Bank Ltd v Singh [1995] 1 Qd R 377 [extracted 13.2.10C] focuses on delay.

Mearns v Willoughby Commcoursey Preschool Inc [2003] NSWCA 382 [see 13.2.12] focuses on the need for a prima facie defence.

12.6 Costs

Where the judgment was regularly obtained, the defendant will usually be ordered to pay the costs thrown away and the costs of the application, but costs may be refused if the plaintiff did not give reasonable warning to the defendant of its intention to sign judgment, or if the plaintiff unreasonably refused to agree to set aside the judgment.

UCPR r 289.

(1) The plaintiff is entitled to judgment + defendant satisfies claim for relief! (i.e. the defendant paid up on the claim after you served her with the Claim, but did not pay the extra amount to cover your legal costs - you still want the costs).

(2) Request costs.

(3) Registrar may give judgment for costs.

13 Summary Judgment

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13.1 Introduction

Summary judgment is a short cut procedure available to both Plaintiffs and Defendants who can show that their claim has no defence, or there is a defence to a baseless claim, respectively. The procedures are found in: UCPR Ch 9 Pt 2.

13.2 No real prospect

Uniform Civil Procedure Rules 1991 (Qld) rr 292 (Summary judgment for Plaintiff), 293 (Summary Judgment for Defendant).

13.3 Summary judgment for the plaintiff

Uniform Civil Procedure Rules 1991 (Qld) r 292.

UCPR 292 Summary judgment for plaintiff

(1) A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant.

(2) If the court is satisfied that

(a) the defendant has no real prospect of successfully defending all or a part of the plaintiffs claim; and

(b) there is no need for a trial of the claim or the part of the claim; the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiffs claim and may make any other order the court considers appropriate.

Issue of fact: Jacobs v Booths Distillery Co (1901) 85 LT 262, 262.

Issue of Law: Civic and Civic Pty Ltd v Pioneer Concrete (NT) Pty Ltd (1991) 103 FLR 196, 215 [13.5.9].

Failure to appear. If the defendant does not appear at the hearing and the plaintiff sufficiently substantiates the grounds of the application and proves service on the defendant, leave will be given to obtain summary judgment. This can be easily set aside: UCPR r 302.

UCPR 302 Setting aside judgmentThe court may set aside or vary a judgment given on an application under this part against a party who did not appear on the hearing of the application.

Application to a court: UCPR rr 31, 461, 462, 463. Supported by an affidavit - UCPR rr 430 ff.

Evidence is given by affidavit unless the court lives leave: UCPR r 295.

UCPR 295 Evidence

(1) In a proceeding under this part, evidence must be given by affidavit unless the court gives leave.

(2) An affidavit may contain statements of information and belief if the person making the affidavit states the sources of the information and the reasons for the belief.

(3) A party to an application under this part who intends to rely on a document must

(a) exhibit the document to an affidavit; or

(b) identify in an affidavit the provisions relied on to the extent the party is able to identify them.

(4) A person who makes an affidavit to be read in an application under this part may not be cross-examined without the leave of the court.

Contents of affidavit UCPR r 430.

Service:

UCPR 296 Service

(1) A party applying for judgment under this part must file and serve the respondent to the application with the following documents at least 8 business days before the date for hearing shown on the application

(a) the application;

(b) a copy of each affidavit on which the applicant intends to rely.

(2) At least 4 business days before the date for hearing, the respondent must file and serve on the applicant a copy of any affidavit on which the respondent intends to rely.

(3) At least 2 business days before the date for hearing, the applicant must file and serve on the respondent a copy of any affidavit in reply to the respondents affidavit on which the applicant intends to rely.

Outcome: UCPR r 292 (reproduced above).

Claims not disposed of UCPR r 294.

UCPR 294 Claims not disposed of

(1) The making of orders under this part that does not dispose of all claims in issue in a proceeding does not prevent the continuation of any part of the proceeding not disposed of by the orders.

(2) A second or later application under this part may be made with the courts leave.

Directions UCPR r 298.

UCPR 298 Directions

(a) the court dismisses an application under this part for judgment; or

(b) a judgment under this part does not dispose of all claims in a proceeding;

the court may give directions or impose conditions about the future conduct of the proceeding.

Costs - UCPR r 299.

UCPR 299 Costs

(1) If it appears to the court that a party who applied under this part for judgment was or ought reasonably to have been aware that an opposite party relied on a point that would entitle that party to have the application dismissed, the court may dismiss the application and order costs to be paid within a time specified by the court.

(2) Subrule (1) does not limit the courts powers in relation to costs.

Stay of enforcement UCPR r 300.

UCPR 300 Stay of enforcementThe court may order a stay of the enforcement of a judgment given under this part for the time and on the terms the court considers appropriate.

13.4 Summary judgment for the defendant

UCPR r 293. The elements of the plaintiff s application (discussed above) apply with some necessary adaptation. Defendants commonly seek summary judgment where a plaintiff has commenced proceedings that are statute-barred, i.e. where the limitation period has expired.

UCPR 293 Summary judgment for defendant

(1) A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff.

(2) If the court is satisfied

(a) the plaintiff has no real prospect of succeeding on all or a part of the plaintiffs claim; and

(b) there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiffs claim and may make any other order the court considers appropriate.

13.5 Setting aside Summary judgment

Summary judgment may be set aside where the defendant did not appear on the hearing of the application: UCPR r 302.

UCPR 302 Setting aside judgmentThe court may set aside or vary a judgment given on an application under this part against a party who did not appear on the hearing of the application.

The discretion is not qualified. The cases concerning the setting aside of a default judgment also apply.

Aboyne Pty Ltd v Dixon Homes Pty Ltd [1983] Qd R 248.

Cusack v De Angelis [2007] QCA 313; QLR 28/6/08 (07/3270) Brisbane; McMurdo P Muir JA Lyons J 28/09/2007 http://www.austlii.edu.au/au/cases/qld/QCA/2007/313.html (accessed 8 April 2020).

14 Discontinuance

12663849

Uniform Civil Procedure Rules 1991 (Qld) rr 303-312.

Discontinuance by the plaintiff or applicant - Uniform Civil Procedure Rules 1991 (Qld) r 304.

UCPR 304 Discontinuance by plaintiff or applicant

(1) A plaintiff or applicant may discontinue a proceeding or withdraw part of it before being served with

(a) for a proceeding started by claimthe first defence of any defendant; or

(b) for a proceeding started by applicationthe first affidavit in reply from a respondent.

(2) However, after being served with the first defence or first affidavit in reply, a plaintiff or applicant may discontinue a proceeding or withdraw part of it only with the courts leave or the consent of the other parties.

(3) Also, if there is more than 1 plaintiff or applicant, or a counterclaim against a plaintiff, a plaintiff or applicant may only discontinue with the courts leave or the consent of the other parties.

(4) A plaintiff may discontinue against one or more defendants without discontinuing against other defendants.

(5) An applicant may discontinue against one or more respondents without discontinuing against other respondents.

Discontinuance by the defendant or respondent - Uniform Civil Procedure Rules 1991 (Qld) r 305.

UCPR 305 Discontinuance by defendant or respondent

A defendant may discontinue a counterclaim or withdraw part of it

(a) before being served with the plaintiffs answer to counterclaim; and

(b) only with the courts leave or the consent of the other parties, after being served with the plaintiffs answer to counterclaim.

Discontinuance by parties upon settlement - Uniform Civil Procedure Rules 1991 (Qld) r 308A.

UCPR 308A Discontinuance by parties when proceeding settled

(1) This rule applies if a proceeding is settled, whether or not a request for trial date has been filed.

(2) Each party must immediately give the registrar written notice that the proceeding has been settled.

Costs - Uniform Civil Procedure Rules 1991 (Qld) r 307.

The plaintiff is not forced to continue to prosecute his action if he decides not to do so. The rules provide for discontinuance, with the sanction of a costs penalty.

The effect of discontinuance is not the same as a judgment, nor does it operate as a defence. There is no res judicata, so the plaintiff may institute fresh proceedings for the same cause of action.

Where a person under a disability brings an action claiming money or damages no settlement or compromise is valid unless sanctioned by a judge or the public trustee: Public Trustee Act 1978 (Qld) s 59.

Notice of Discontinuance or withdrawal UCPR r 309 Form 27

UCPR 309 Notice of discontinuance or withdrawal

(1) A discontinuance or withdrawal for which the courts leave is not required may be effected by filing a notice in the approved form and serving it as soon as practicable on the other parties who have an address for service.

(2) A discontinuance or withdrawal for which the courts leave is required is effected by the order giving leave and a notice of discontinuance or withdrawal is not required.

15 Staying or dismissing proceedings as an abuse of process

14405159

15.1 Introduction establishing abuse of process

Abuse of process is a misuse of a courts procedure, which would be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people: Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536 per Lord Diplock.

UCPR r 15 Registrar may refer issue of originating process to court

(1) If the registrar considers an originating process appears to be an abuse of the process of the court or frivolous or vexatious, the registrar may refer the originating process to the court before issuing it.

(2) The court may direct the registrar

(a) to issue the originating process; or

(b) to refuse to issue the originating process without leave of the court.

In Williams v Spautz (1992) 174 CLR 509, 513 [extracted 13.7.5C] the High Court discusses what must be established by the applicant seeking to stay proceedings temporarily or permanently for abuse of process.

15.2 Delay constituting abuse of process

Courts may exercise an inherent jurisdiction to stay proceedings as an abuse of process where there has been considerable delay in commencing or conduct of proceedings: Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256, 438 [extracted 13.7.9C].

16 Vexatious litigants

12803478

Vexatious proceedings are those which are intended to harass or annoy, cause delay or taken for some other ulterior purpose or lack reasonable grounds: B Cairns, Australian Civil Procedure, 11th ed, Thomson Reuters, 2016, p 114).

Vexatious Proceedings Act 2005 (Qld) s 6.

S 6 Making vexatious proceedings orders

(1) This section applies if the Court is satisfied that a person is

(a) a person who has frequently instituted or conducted vexatious proceedings in Australia; or

(b) a person who, acting in concert with a person who is subject to a vexatious proceedings order or who is mentioned in paragraph (a), has instituted or conducted a vexatious proceeding in Australia.

(2) The Court may make any or all of the following orders

(a) an order staying all or part of any proceeding in Queensland already instituted by the person;

(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in Queensland;

Examples of another order for paragraph (c)

an order directing that the person may only file documents by mail

an order to give security for costs

an order for costs

(3) The Court may make a vexatious proceedings order on its own initiative or on the application of a person mentioned in section 5(1).

(4) The Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

(5) For subsection (1), the Court may have regard to

(a) proceedings instituted or conducted in any Australian court or tribunal, including proceedings instituted or conducted before the commencement of this section; and

(b) orders made by any Australian court or tribunal,

including orders made before the commencement of this section.

Attorney General for the State of Victoria v Weston [2004] VSC 314, [23] [extracted 13.8.4C].

Read: Tony Keim, Judge declares man vexatious litigant after failed attempt to sue The Queen, Proctor 13 May 2021 and the linked decision of Justice Sofronoff.

17 Interest

17723992

Pre-judgment interest:

Civil Proceeding Act 2011 (Qld) s 58.

58 Interest up to judgment

(1) This section applies in relation to a proceeding in a court for the payment of money, including a proceeding for debt, damages or the value of goods.

(2) This section does not apply in relation to

(a) a proceeding for a cause of action arising before 21 December 1972; or

(b) a proceeding for the payment of money on which interest is payable as of right whether because of an agreement or otherwise.

Editors note

The Common Law Practice Act Amendment Act 1972 commenced on 21 December 1972.

(3) The court may order that there be included in the amount for which judgment is given interest at the rate the court considers appropriate for all or part of the amount and for all or part of the period between the date when the cause of action arose and the date of judgment.

(4) This section does not

(a) authorise the giving of interest on interest; or

(b) affect damages recoverable for the dishonour of a bill of exchange.

Uniform Civil Procedure Rules 1991 (Qld) r 283(5)-(9).

UCPR r 283 Judgment by default debt or liquidated demand

(5) Subrules (6) to (8) apply if interest is claimed under the Civil Proceedings Act 2011, section 58.

(6) If the plaintiff elects to abandon the claim for the interest, the claim is taken to be a claim for the debt or liquidated demand without interest.

(8) If the plaintiff seeks to recover a higher rate of interest than that specified in a practice direction for any period mentioned in the direction, the court mayPost-judgment interest:

(a) decide the interest, if any, that is recoverable; and

(b) direct that judgment be given for the interest, whether or not the defendant has paid the debt or liquidated demand after the proceeding is started; and

Civil Proceeding Act 2011 (Qld) s 59.

59 Interest after money order

(1) This section applies in relation to a money order except to the extent the court otherwise orders.

(2) Interest is payable from the date of the money order on the money order debt.

(3) The interest is payable at the rate prescribed under a practice direction made under the Supreme Court of Queensland Act 1991.

(4) However

(a) if

(i) the money order is for payment of a stated amount for damages or costs; and

(ii) the amount is paid in full within 21 days after the date of the order;

interest on the damages or costs is not payable; and

(b) if

(i) the money order is or includes an order for the payment of costs in an amount to be ascertained, under the rules or otherwise, after the order is made; and

(ii) the amount for costs is paid in full within 21 days after the day the amount has been ascertained and becomes payable under the rules or otherwise;

interest on the costs is not payable.

(5) This section does not apply in relation to a proceeding for a cause of action arising before 21 December 1972.

(6) In this section

money order

(a) includes an order for the payment of costs in an amount to be ascertained, under the rules or otherwise, after the order is made; and

(b) does not include an order of the registrar, made under the rules, about the amount payable for costs under a money order.

money order debt, for a money order for the payment of costs in an amount to be ascertained after the order is made, means the amount ascertained under the rules or otherwise.

17.1 Interest rates

http://www.courts.qld.gov.au/information-for-lawyers/interest-rates (accessed 3 May 2022)

The following table outlines the rates of interest to be applied by the registrar when giving judgment under rule 283 of the Uniform Civil Procedure Rules 1999 (Qld).

Prior to 1 September 2012

Pre-judgment rates were set by a practice direction of the individual courts under s 47 of theSupreme Court Act 1995 (Qld).

Practice direction number

Dates effective Cashrate (%) Defaultrate (%) Totalrateapplicable (%)

08/1997 01/1997 01/1997 01/05/9730/06/98 N/A 10 10

19/1998 01/1998 01/1998 01/07/9831/10/00 N/A 9 9

09/2000 04/2000 05/2000 01/11/0031/08/01 N/A 10.5 10.5

06/2001 06/2001 03/2001 01/09/0131/03/02 N/A 9.5 9.5

02/2002 01/2002 02/2002 01/04/0230/06/07 N/A 9 9

06/2007 04/2007 04/2007 01/07/0731/08/12 N/A 10 10

From 1 September 2012

From 1 September 2012, rates are set by practice direction under s 58 of theCivil Proceedings Act 2011.

Practice direction number

Dates effective Cashrate (%) Defaultrate (%) Totalrateapplicable (%)

Supreme Court22/2012(This practice direction sets the rate for Supreme, District and Magistrates Courts.) 01/09/1218/04/13 N/A 10 10

07/2013 06/2013 15/2013 19/04/1330/06/13 3 4 7

01/07/1331/12/13 2.75 4 6.75

01/01/1430/06/14 2.5 4 6.5

01/07/1431/12/14 2.5 4 6.5

01/01/1530/06/15 2.5 4 6.5

01/07/1531/12/15 2 4 6

01/01/1630/06/16 2 4 6

01/07/1631/12/16 1.75 4 5.75

01/01/1730/06/17 1.5 4 5.5

01/01/1830/06/18 1.5 4 5.5

01/07/18-31/12/18 1.5 4 5.5

01/01/19-30/06/19 1.5 4 5.5

01/07/19-31/12/19 1.25 4 5.25

01/01/20-30/06/20 0.75 4 4.75

01/07/20-31/12/20 0.25 4 4.25

01/01/21-30/06/21 0.10 4 4.10

01/07/21-31/12/21 0.10 4 4.10

01/01/22-30/06/22 0.10 4 4.10

From 19 April 2013, pre-judgment interest in accordance withrule 283, andSupreme Court practice direction 07/2013,District Court practice direction 06/2013andMagistrates Court practice direction 15/2013, are adjusted on 1 January and 1 July each year, and based on theReserve Bank rate(cash rate) as at 30 June and 31 December each year + 4%.

These rates have been agreed on by representatives of all Australian jurisdictions to establish nationally uniform rates.

Parties wishing to request default judgment may use the Queensland Courtsinterest calculator. Once the calculation is complete, print the page and present it to the registrar to expedite your request.

17.2 Interest on judgment by the court (judge)

From the cause of action until judgmentCivil Proceedings Act 2011 interest rate at the courts discretion.

17.3 Interest on Money Order

The following table outlines the rates of interest to be applied by the registrar on money orders.

Prior to 1 September 2012, the rates were set by regulation under s 48 of theSupreme Court Act 1995. For the current rates see https://www.courts.qld.gov.au/courts-calculator/interest-rates#money (accessed 13 June 2024).

Practice direction number

Dates effective Cashrate (%) Defaultrate (%) Totalrateapplicable (%)

Authority Dates effective Cashrate (%) Defaultrate (%) Total rateapplicable (%)

Supreme Court Regulation 1998 01/07/9830/08/08 N/A 10 10

Supreme Court Regulation 2008 31/08/0831/08/12 N/A 10 10

From 1 September 2012

From 1 September 2012, rates are set by practice direction under s 59(3) of theCivil Proceedings Act 2011.

Practice direction number

Dates effective Cashrate (%) Defaultrate (%) Totalrateapplicable (%)

Supreme Court22/2012(This practice direction sets the rate for Supreme, District and Magistrates Courts.) 01/09/1218/04/13 N/A 10 10

07/2013 06/2013 15/2013 19/04/1330/06/13 3 6 9

01/07/1331/12/13 2.75 6 8.75

01/01/1430/06/14 2.5 6 8.5

01/07/1431/12/14 2.5 6 8.5

01/01/1530/06/15 2.5 6 8.5

01/07/1531/12/15 2 6 8

01/01/1630/06/16 2 6 8

01/07/1631/12/16 1.75 6 7.75

01/01/1730/06/17 1.5 6 7.5

01/01/1830/06/18 1.5 6 7.5

01/07/1831/12/18 1.5 6 7.5

01/01/1930/06/19 1.5 6 7.5

01/07/19-31/12/19 1.25 6 7.25

01/01/20-01/06/20 0.75 6 6.75

01/01/21-30/06/21 0.10 6 6.10

01/07/21-31/12/21 0.10 6 6.10

01/01/22-30/06/22 0.10 6 6.10

01/07/22-31/12/22 0.85 6 6.85

01/01/23-30/06/23 3.10 6 9.10

01/07/23-31/12/23 4.10 6 10.10

01/01/24-30/06/24 4.35 6 10.35

From 19 April 2013, post-judgment interest in accordance with s 59(3) of theCivil Proceedings Act 2011,andSupreme Court practice direction 07/2013,District Court practice direction 06/2013andMagistrates Court practice direction 15/2013are adjusted on 1 January and 1 July each year, and based on theReserve Bank rate(cash rate) as at 30 June and 31 December each year + 6%.

These rates have been agreed on by representatives of all Australian jurisdictions to establish nationally uniform rates.

Parties wishing to apply for an enforcement hearing summons or enforcement warrant may use the Queensland Courtsinterest calculator. Once the calculation is complete, print the page and present it to the registrar to expedite your application.

18 Review

18.1 Concluding Summary

Topic 5 has focused on Pleading and Summary Disposition. Pleadings are documents exchanged between the parties to litigation, in which they set out the material facts they intend to allege at the hearing of the action. They are essential in defining to both the court and the parties on the issues in dispute, confining the extent of evidence and disclosure needed, and in providing a record.

Summary disposition discussed summary judgment, default judgment, both of which are procedures leading to the early resolution of a dispute. Topic 5 also discussed how an action is discontinued, stays, interest and vexatious litigants.

18.2 Review Questions

Question 1

A counterclaim is:

a claim or defence to an action, necessary to enable the other side to know what case has to be met.

another action brought by the defendant against the plaintiff concerning the same subject matter as the plaintiffs action.

another action brought by the plaintiff against the defendant concerning the same subject matter as the defendants action.

a written statement of a plaintiff in an action, outlining the facts used to support the claim made against the defendant, and the relief sought.

Question 2

A default judgment is:

a discretionary judgment or verdict given in favour of the defendant by virtue of the plaintiffs failure to comply with the procedural requirements of the court after having been served with an originating process.

A discretionary judgment or verdict given in favour of the plaintiff, where there is evidence of the fact on which the claim is based and the defendant has no real defence to the plaintiffs claim.

a discretionary judgment or verdict given in favour of the plaintiff by virtue of the defendants failure to comply with the procedural requirements of the court after having been served with an originating process.

a discretionary judgment or verdict given in favour of the defendant where the plaintiff has no reasonable cause of action.

Question 3

A pleading must:

contain a statement of all the material facts on which the party relies, including the evidence by which the facts are to be proved;

be as brief as the nature of the case permits;

state specifically any matter that if not stated specifically may take another party by surprise;

if a claim or defence under an Act is relied onidentify the specific provision under the Act.

Question 4

Is the following in the correct sequence?

Originating process

Response

Cross-claim

Cross-defence

Cross-reply

Yes or No?

Question 5

Which of the following may be regarded as a legal fossil?

Abovementioned

Herein

Whereupon

Such

Question 6

Which of the following matters need to be specifically pleaded?

Breach of Contract.

Every type of damage claimed.

Fraud.

Negligence, but not contributory negligence.

Question 7

The court may strike out a pleading:

if the pleading is objectionable.

that contains legal fossils.

that does not disclose a defence.

if that pleading does not disclose a cause of action.

Question 8

A default judgment may arise where there has been a failure to:

comply with a self-executing order.

take a step required by the rules.

Comply with a peremptory court order.

comply with a springing order.

Question 9

A plaintiff may obtain summary judgment in circumstances:

where the defendant has no real prospect of successfully defending all or a part of the plaintiffs claim.

where there is no need for a trial of the claim or the part of the claim.

where the defendant does not appear at the hearing.

where the plaintiff sufficiently substantiates the grounds of the application and proves service on the defendant, leave will be given to obtain summary judgment.

18.3 Tutorial Problems

Problem 11

Image by Retina Creative from Pixabay

Helix Drilling Equipment Pty Ltd is suing Blacktown Mining Ltd in the Brisbane registry of the Supreme Court of Queensland for recovery of $400,000 owing under a contract for the sale of a drilling rig. A Statement of Claim was filed in Brisbane and served in Warwick, Queensland on 1st April this year. Helix Drilling Equipment Pty Ltd has not heard from the defendant. Advise Helix Drilling Equipment Pty Ltd. Consider in particular:

Whether Helix Drilling Equipment Pty Ltd can apply for default judgment?

What documents are necessary for the application?

Will it be necessary to attend court?

What are the options available for claiming interest?

[Effort 40 min]

Problem 12

Assume a default judgment was entered on 14th April this year, in favour of Helix Drilling Equipment Pty Ltd. It has also come to the managing directors attention, that the affidavit of service filed in support of the application was not signed by the deponent on each page. Blacktown Mining Ltd has just sent a letter advising of its intention to challenge the default judgment and seek costs. Advise Helix Drilling Equipment Pty Ltd in relation to the likelihood that the judgment will be set aside.

[Effort 30 min]

Problem 13

Now assume that Blacktown Mining Ltd files a defence and cross-claim on 17th April this year claiming damages for interference to business caused by the delivery of the drilling rig, which it alleges was never contracted for. Advise Blacktown Mining Ltd whether it can obtain early judgment. Consider in particular:

What are the possible orders the Supreme Court of Queensland could make?

What is the main risk posed by the application?

[Effort 30 min]

Problem 14

Can any of the following civil legal proceedings be commenced within the jurisdiction of the Magistrates Court in Queensland? If not, why not?

A claim for $175,000 for a debt owing to a bank;

A claim for $5,000, being arrears of child maintenance;

A claim for family provision against the estate of a deceased parent by an adult child;

A claim for a declaration as to entitlement under a trust, where the monetary value of the claim is $50,000.

In the event that any of the proceedings outlined above were to be commenced, what steps might the nominated Defendant in each action take?

[Effort 30 min]

Problem 15

What do you understand by the expression no real prospects of success when used in both the context of a Claim and Statement of Claim and a Defence?

[Effort 30 min]

Problem 16

John Brown, the Plaintiff in a personal injuries action in which the claim is quantified at $100 000.00, seeks your advice on whether or not he can and should apply for summary judgment on his claim. What would your advice be?

[Effort 20 min]

Problem 17

Sky wishes to discontinue her action in the Supreme Court of Queensland. Consider each of the following scenarios and outline the appropriate procedure.

Sky commenced proceedings against Julian in the Supreme Court of Queensland seeking damages for personal injury. The matter has been allocated a trial date approximately one month away.

Sky and Dean, who live in Noosa, commenced proceedings in the Supreme Court of Queensland against David claiming damages for breach of contract of sale. The contract involved sale of a rare Kombi van. The matter has been allocated a trial date approximately one month away. David does not consent to any discontinuance of the proceedings by Sky.

Sky and Dean commenced proceedings in the Supreme Court of Queensland claiming damages against Sam for conversion of certain property in respect of which they were uncertain at the time of commencement of proceedings as to which of them had title. They have claimed in the alternative damages for their loss. Sam has just delivered his defence. It has become clear in the meantime that Dean has in fact the title to the goods and Sky wishes to discontinue.

[Effort 40 min]

18.4 Debrief

After studying Topic 5 you should be able in relation to:

Pleading

Understand the role of pleadings in civil procedure.

Apply the principles of plain English drafting to Pleadings.

Critique various pleadings.

Summary Disposition

Describe what is meant by the expressions summary judgment; default judgment and discontinuance of action;

Identify the difference between a default judgment and a summary judgment;

Understand the process whereby parties to a civil legal proceeding may apply for a summary disposal of an action; and

Describe the steps required to be complied with under the UCPR and related legislation in order to effect the summary disposal of a proceeding.

18.5 Answers to Review questions

Question 1 (b)

Question 2(c)

Question 3(b), (c), (d)

Question 4Yes

Question 5(a)-(d)

Question 6(a)-(c)

Question 7(a), (d)

Question 8(a)-(d)

Question 9 (a), (b)

LAWS13017 # CIVIL PROCEDURE

STUDY GUIDE | WEEK 4

Parties and Joinder, Class Actions, Non-compliance, Amendment and TimeVersion 2.08 2024

-13525493114675-347618791575

CONTENTS

TOC h u z t "Heading 1,1,Heading 2,2,Heading 3,3,Heading 4,4,Heading 5,5,Heading 6,6,"Parties and Joinder, Non-compliance, Amendment and Time1

1 Preview1

1.1 Introduction1

1.2 Objectives1

1.3 Prescribed Reading2

1.4 Reference Reading3

1.5 Key Terms3

2 Res judicata and issue estoppel4

2.1 Res judicata4

2.2 Issue estoppel4

3 Rules governing joinder4

3.1 The rules and their interpretation4

3.2 Other matters affecting joinder4

4 Joinder of Parties4

4.1 Permissive joinder4

4.2 Mandatory or compulsory joinder6

5 Joinder of Claims7

5.1 Joinder by the plaintiff7

5.2 Joinder by the defendant counterclaims and set-off8

6 Addition, substitution and removal of parties9

7 Dealing with particular parties11

7.1 Persons under a disability11

7.2 Executors, administrators and trustees14

7.3 Partners14

7.4 Business names15

7.5 Corporations15

7.6 Bankrupt persons15

8 Consolidation15

9 Personal injuries actions16

10 Third Party Proceedings (Crossclaim)18

10.1 Introduction18

10.2 Contribution20

11 Group proceeding (Class Action)20

12 Non-compliance33

13 Amendment35

13.1 Amendment of mistakes in documents35

13.2 Factors affecting amendment37

13.3 The relevance of case management38

13.4 Amendment to add statute-barred claims38

13.5 Amendment of parties39

13.6 Slip rule39

14 Filing and documents40

15 Want of Prosecution40

16 Time42

16.1 Introduction42

16.2 Reckoning42

16.3 Extension and abridgment43

17 Review44

17.1 Concluding Summary44

17.2 Review Questions44

17.3 Tutorial Problems46

17.4 Debrief48

17.5 Answers to Review questions48

Parties and Joinder, Non-compliance, Amendment and Time

1 Preview

1.1 Introduction

This topic is concerned with how parties and causes of action may be joined in the one proceeding. Each Australian jurisdiction has provisions derived from the English Judicature Act 1873 (UK) s 24(7) designed to avoid multiplicity of proceedings and inconsistency of result, and to promote finality in litigation. For the general rules regarding joinder of parties and causes of action and cross-actions, see: Uniform Civil Procedure Rules 1999 (Qld) Ch 3 Pt 1 r 173, Ch 6 parts 5, 6.

1.2 Objectives

After studying Topic 4 you should be able in relation to:

explain the concepts of res judicata and issue estoppel.

understand the issues governing joinder of parties and claims and how parties can be added, substituted and removed.

identify the special joinder rules associated with certain types of parties.

understand when consolidation is appropriate.

identify the circumstances when a traditional representative proceeding is required.

understand how non-compliance is dealt with by the rules.

understand how to amend mistakes in documents and parties and take advantage of the slip rule.

critique the concept of want of prosecution.

understand how time is reckoned, extended and abridged.

understand the basic requirements for a group proceeding (class action).

1.3 Prescribed Reading

Colbran, Spender, Douglas and Jackson, Civil Procedure Commentary and Materials (LexisNexis, 8th ed, 2022) Ch 5, 10, 11.

Supreme Court of Queensland Practice Direction No 2 of 2017 Representative Proceedings.

Kylie Downes QC and Hamish Clift, Queenslands new class action regime. 2017 May Proctor 28-29.

1.4 Reference Reading

Cairns, Australian Civil Procedure (Lawbook Company, 12th ed, 2020) Ch 9.

1.5 Key Terms

The following are key terms used within the text or required reading for Topic 2:

Class action A class action is 'a generic term for a procedure whereby the claims of many individuals against the same defendant can be brought or conducted by a single representative': Australian Law Reform Commission (ALRC), 'Grouped Proceedings in the Federal Court', Report No 46. (1988) [1].

Consolidation Where a court orders several actions, being held before it, concerning the same subject matter, to be tried together.

Cross-claim Another action commenced by a defendant to a primary action commenced by a plaintiff in respect of the same subject matter.

Issue estoppel Prevents the redetermination of a finding made in earlier litigation.

Joinder of causes of action A Plaintiff may join in one action several causes of action, where otherwise would result in delay or added costs. This is always subject to the power of the court to otherwise order.

Joinder of parties All persons should be joined in the one action as either plaintiffs or defendants where there are common transaction(s) or questions of law or fact: John Burke, Osborns Concise Law Dictionary, 6th ed, Sweet and Maxwell 1976.

Party A person suing or being sued.

Res judicata Precludes the re-litigation of claims made in earlier proceedings between the same parties (or their privies; i.e. persons closely connected with the parties and their claims), in respect of the same subject matter.

Slip rule Clerical mistakes, accidental omissions in judgments and orders, may be corrected by the court at any time on application by motion or summons: John Burke, Osborns Concise Law Dictionary, 6th ed, Sweet and Maxwell 1976.

Want of prosecution Where the plaintiff or the plaintiffs legal advisers fail to prosecute the proceeding with due diligence.

2 Res judicata and issue estoppel

Res judicata and issue estoppel are important considerations in relation to the joinder of claims and parties. The failure to join a claim in a proceeding may preclude the pursuit of such a claim in a later proceeding. The failure to join a person as a party will normally mean that a decision made in the proceeding will not be binding upon that person.

2.1 Res judicata

The plea of res judicata applies where a court has given judgment in relation to matters that are the subject of litigation. It precludes the re-litigation of claims made in earlier proceedings between the same parties (or persons closely connected with the parties and their claims), in respect of the same subject matter. It is sometimes described as a cause of action estoppel.

Litigation estoppel applies to those claims which could have been made in an earlier proceeding and which are subsequently sought to be litigated. It would appear that this form of estoppel is an instance of res judicata: see Port of Melbourne Authority v Anshun Pty Ltd (No 2) (1981) 147 CLR 589 at 598 [extracted 10.2.4C].

2.2 Issue estoppel

Issue estoppel is concerned with the redetermination of a finding made in earlier litigation. Issue estoppel occurs where there is an essential element common to two or more sets of proceedings involving the parties.

On the question of whether [a claim by a statutory authority] and the making by a court of declarations and orders in a civil penalty proceeding created an issue estoppel on which a respondent to that proceeding was entitled to rely in a subsequent common law proceeding brought against it by a worker see Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 280 (extracted at 10.2.6C) at [1] per French CJ, Bell, Gageler and Keane JJ.

A case which illustrates the distinction between cause of action estoppel and issue estoppel, and which deals with the operation of issue estoppel and exceptions to it, is the decision of the House of Lords in Arnold v National Westminster Bank Plc [1991] 2 AC 93 [extracted 10.2.7C].

3 Rules governing joinder

3.1 The rules and their interpretation

Courts promote and control joinder by:

3.2 Other matters affecting joinder

4 Joinder of Parties

4.1 Permissive joinder

In theory, joinder is concerned with the decision taken by the plaintiff prior to the drawing and issue of proceedings as to who should be party to the proceedings: Walker v Commonwealth Trading Bank of Australia (1985) 3 NSWLR 496 at 503 per Needham J.

UCPR r 65(1).

65 Inclusion of multiple parties in a proceeding

(1) In a proceeding, 2 or more persons may be plaintiffs or defendants or applicants or respondents if

(a) separate proceedings were brought by or against each of them and a common question of law or fact may arise in all the proceedings; or

(b) all rights to relief sought in the proceeding (whether joint, several, or alternative) arise out of the same transaction or event or series of transactions or events.

In Birtles v Commonwealth [1960] VR 247 [extracted 10.4.5C] the plaintiff sought to, and was successful in, adding his former solicitors as defendants in circumstances where it was alleged by the initial defendants to an action for personal injuries, among other things, that the claim against them had become statute-barred.

UCPR r 65(2).

65 Inclusion of multiple parties in a proceeding

(2) Also, in a proceeding, 2 or more persons may be defendants or respondents if

(a) there is doubt as to

(i) the person from whom the plaintiff or applicant is entitled to relief; or

(ii) the respective amounts for which each may be liable; or

(b) damage or loss has been caused to the plaintiff or applicant by more than 1 person, whether or not there is a factual connection between the claims apart from the involvement of the plaintiff or applicant.

4.2 Mandatory or compulsory joinder

UCPR rr 62-64, 66, 67.

The following rules were designed to eliminate the plea in abatementthat is, where two or more persons were jointly liable upon a contract, the failure to join one of them as defendant released those persons joined as defendants, and gave rise to a substantive defence in the defendant or defendants joined: Van Gelder v Sowerby Bridge Society (1890) 44 Ch D 374 at 391, 394.

UCPR 62 Necessary parties

(1) Each person whose presence is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in a proceeding must be included as a party to the proceeding.

(2) The court may order a person to be included as a party whose presence as a party is necessary to enable the court to adjudicate effectually and completely on all issues raised in the proceeding.

(3) A person who is required under this rule to be included as a plaintiff or applicant and does not consent to be included in this way may be included as a defendant or respondent.

(4) The court may dispense with a requirement under this rule for a person to be included as a party.

UCPR 63 Joint entitlement

(1) If a plaintiff or applicant seeks relief to which another person is entitled jointly with the plaintiff or applicant, all persons entitled to the relief must be parties to the proceeding.

(2) A person entitled to seek relief who does not agree to be a plaintiff or applicant must be made a defendant or respondent.

UCPR 64 Joint or several liability

(1) If a plaintiff or applicant seeks relief against a defendant or respondent who is liable jointly with another person and also liable severally, the other person need not be made a defendant or respondent to the proceeding.

(2) If persons are liable jointly, but not severally, under a contract, and a plaintiff or applicant seeks relief in relation to the contract against some but not all of the persons, the court may stay the proceeding until the other persons liable under the contract are included as defendants or respondents.

UCPR 66 Identical interest in relief unnecessary

It is not necessary for every defendant or respondent to be interested in all the relief sought or in every cause of action included in a proceeding.

UCPR 67 Parties incorrectly included or not included

Despite rules 62 and 63, the court may decide a proceeding even if a person is incorrectly included or not included as a party and may deal with the proceeding as it affects the rights of the parties before it.

5 Joinder of Claims

In considering joinder of claims and parties the court will exercise a discretion and will take into account res judicata and issues estoppel.

5.1 Joinder by the plaintiff

UCPR rr 60, 68.

60 Inclusion of several causes of action in a proceeding

(1) A plaintiff or applicant may, whether seeking relief in the same or different capacities, include in the same proceeding as many causes of action as the plaintiff has against a defendant or the applicant has against a respondent.

(2) However, causes of action may be included in the same proceeding only if at least 1 of the following conditions is satisfied

(a) if a separate proceeding were brought for each cause of actiona common question of law or fact may arise in all the proceedings;

(b) all rights to relief sought in the proceeding (whether joint, several or alternative) are in relation to, or arise out of, the same transaction or event or series of transactions or events;

UCPR 68 Inconvenient inclusion of cause of action or party

(1) This rule applies to a proceeding, despite division 2, if including a cause of action or party may delay the trial of the proceeding, prejudice another party or is otherwise inconvenient.

(2) The court may, at any time

(a) order separate trials; or

(b) award costs to a party for attending, or relieve a party from attending, a part of a trial in which the party has no interest; or

(c) stay the proceeding against a defendant or respondent until the trial between the other parties is decided, on condition that the defendant or respondent against whom the proceeding is stayed is bound by the findings of fact in the trial against the other defendant; or

(d) make another order appropriate in the circumstances.

(3) In this rule trial includes hearing.

5.2 Joinder by the defendant counterclaims and set-off

By counterclaim, a defendant may not only make a claim against the plaintiff, but seek to join a third person to the counterclaim. Claims other than monetary claims can be made the subject of a counterclaim, unlike a defendants claim to set-off. In the absence of any rule or statutory provision to the contrary, a claim and counterclaim would result in two judgments, although for the purpose of execution, they would be set off against each other. It follows that the plaintiff would normally be entitled to its costs of the claim and the defendant to its costs of the counterclaim: McDonnell & East Pty Ltd v McGregor (1936) 56 CLR 50 at 62 per Dixon J (McTiernan J concurring).

UCPR rr 175-185.

UCPR 175 Application of div 2

This division applies to a counterclaim and an answer to a counterclaim with necessary changes and, in particular, as if the plaintiff in the original proceeding were a defendant and the defendant a plaintiff.

UCPR 176 Counterclaim after issue of claim

A counterclaim may be made in relation to a cause of action arising after the issue of the claim.

UCPR 177 Counterclaim against plaintiff

In a proceeding, the defendant may make a counterclaim against a plaintiff, instead of bringing a separate proceeding.

Counterclaim against an additional party UCPR r 178.

Pleading and serving counterclaim UCPR r 179.

Answer to counterclaim UCPR r 180.

Conduct of counterclaim UCPR r 181.

Aurel Forras Pty Ltd v Graham Karp Developments Pty Ltd [1975] VR 202 [extracted 10.5.9C] discussed the basic nature of a counterclaim.

A court has power to exclude a counterclaim from a proceeding or to order that it be separately determined: UCPR r 182.

UCPR 182 Exclusion of counterclaim

The court may, at any time, exclude a counterclaim from the proceeding in which the counterclaim is made and give the directions the court considers appropriate about the conduct of the counterclaim.

Setoff - UCPR r 184.

UCPR 184 Judgment for balance

If a defendant establishes a counterclaim against the plaintiff and there is a balance in favour of 1 of the parties, the court may give judgment for the balance.

The effect of the rule is to enable the court to give a single judgment in respect of the competing claims of plaintiff and defendant in circumstances where money claims are made and the competing claim can be properly categorised as a set-off, cross-claim or counterclaim.

6 Addition, substitution and removal of parties

The rules have been read liberally when it comes to adding a party. Courts are generally more reluctant to permit a defendant to add another defendant or to accede to an application by a non-party to be added as a defendant.

UCPR 69 Including, substituting or removing party

(1) The court may at any stage of a proceeding order that

(a) a person who has been improperly or unnecessarily included as a party, or who has ceased to be an appropriate or necessary party, be removed from the proceeding; or

(b) any of the following persons be included as a party

(i) a person whose presence before the court is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in the proceeding;

(ii) a person whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding.

(2) However, the court must not include or substitute a party after the end of a limitation period unless 1 of the following applies

(a) the new party is a necessary party to the proceeding because

(i) property is vested in the party at law or in equity and the plaintiffs or applicants claimed entitlement to an equitable interest in the property may be defeated if the new party is not included; or

(ii) the proceeding is for the possession of land and the new party is in possession personally or by a tenant of all or part of the land; or

(iii) the proceeding was started in or against the name of the wrong person as a party, and, if a person is to be included or substituted as defendant or respondent, the person is given notice of the courts intention to make the order; or

(iv) the court considers it doubtful the proceeding was started in or against the name of the right person as a party, and, if a person is to be included or substituted as defendant or respondent, the person is given notice of the courts intention to make the order;

(b) the relevant cause of action is vested in the new party and the plaintiff or applicant jointly but not severally;

(c) the new party is the Attorney-General and the proceeding should have been brought as a relator proceeding in the Attorney-Generals name;

(d) the new party is a company in which the plaintiff or applicant is a shareholder and on whose behalf the plaintiff or applicant is suing to enforce a right vested in the company;

(e) the new party is sued jointly with the defendant or respondent and is not also liable severally with the defendant or respondent and failure to include the new party may make the claim unenforceable;

(f) for any other reason

(i) a claim made, or ground of defence raised, in the proceeding before the end of the limitation period cannot be maintained; or

(ii) relief sought in the proceeding before the end of the limitation period cannot be granted; unless the new party is included or substituted as a party.

(3) If the court makes an order including or substituting a party, the court may give directions about the future conduct of the proceeding.

7 Dealing with particular parties

7.1 Persons under a disability

16036019

Each jurisdiction has rules or provisions that require persons under a disability, namely, minors and handicapped persons unable by themselves to conduct litigation, to sue or be sued through a litigation guardian. The relevant legislation includes the Public Trustee Act 1978 (Qld) s 59, UCPR rr 93-99 and PD No 15 of 2018 Persons Under a Legal Disability.

Public Trustee Act 1978 (Qld) s 59.

59 Compromise of actions by or on behalf of persons under a legal disability claiming moneys or damages valid only with sanction of court or public trustee

(1A) In this section

appropriate person, for a person under a legal disability, means

(a) an administrator for the person under the Guardianship and Administration Act 2000; or

(b) if the person does not have an administratoran attorney for a financial matter for the person under an enduring power of attorney under the Powers of Attorney Act 1998; or

court means a court within whose jurisdiction an amount or damages are claimed by or for a person under a legal disability suing either alone or with others, and includes a judge or magistrate of the court.

person under a legal disability means

(a) a child; or

(b) a person with impaired capacity for a matter within the meaning of the Guardianship and Administration Act 2000.

taxing officer of a court means an officer of the court whose duties include the taxation or other assessment of costs in the court.

(1) In any cause or matter in any court in which money or damages is or are claimed by or on behalf of a person under a legal disability suing either alone or in conjunction with other parties, no settlement or compromise or acceptance of money paid into court, whether before, at or after the trial, shall, as regards the claim of such person under a legal disability, be valid without the sanction of a court or the public trustee, and no money or damages recovered or awarded in any such cause or matter in respect of the claims of any such person under a legal disability, whether by verdict, settlement, compromise, payment into court or otherwise, before or at or after the trial, shall be paid to the next friend of the plaintiff or to the plaintiffs solicitor or to any person other than the public trustee unless the court otherwise directs.

(2) Any claim for money or damages by or on behalf of a person under a legal disability claiming either alone or in conjunction with other parties may be settled or compromised out of court before action brought, with the sanction of a court or the public trustee, but no money or damages agreed to be paid in respect of the claim of any such person, whether by settlement or compromise, shall be paid to any person other than the appropriate person for the person under a legal disability unless by direction of a court upon application made in that behalf.

(3) Every settlement, compromise, or acceptance of money paid into court when sanctioned by a court or the public trustee under this section shall be binding upon the person under a legal disability by or on whose behalf the claim was made.

(4) All money or damages paid to the public trustee under this section shall, subject to any general or special direction of a court upon application made in that behalf, be held and applied by the public trustee on trust for the person under a legal disability.

(4A) However, in addition to the public trustees other powers as a trustee the public trustee shall have

(a) power to discharge or reimburse any expenses reasonably incurred by or on behalf of the person under disability; and

(b) where the person under disability is not of full mental capacitythe powers that the public trustee would have under part 6 if the moneys or damages were an estate under management and the person under a disability were an incapacitated person.

(5) Nothing in this section shall prejudice the lien of a solicitor for costs.

(6) The costs of the plaintiff or, if more than 1, of all the plaintiffs in any such cause or matter or incident to the claims therein or consequent thereon shall be taxed by the taxing officer on the request, in the form approved by the public trustee, of the public trustee or of the plaintiff or the plaintiffs next friend, on the standard basis and indemnity basis, and no authority other than the provisions of this section shall be necessary to require the taxing officer to carry out such taxation.

(6A) The taxing officer shall certify the respective amounts of the costs calculated on the standard basis and indemnity basis, and the difference (if any) and the proportions of such difference (if any) payable respectively by or out of the moneys of any party who is a person under a legal disability and by any other party to the cause or matter and no costs other than those so certified shall be payable from such moneys.

(6B) However, the public trustee may, without requiring any such taxation, in any case in which the public trustee considers it reasonable to do so, agree to the payment to the solicitor for the plaintiff, or to any person who has incurred costs on behalf of the plaintiff, or to whom costs are payable on the part of the plaintiff of such sum or sums as appears to the public trustee to be reasonable.

(7) The result of any such taxation shall be notified to the public trustee by the taxing officer.

(8) The public trustee in any case in which the public trustee is trustee under this section or any person on behalf of whom the public trustee is holding moneys hereunder may from time to time apply to the court for directions as to the trust or its administration, or to vary directions which have already been given in regard thereto, or to determine any question arising therein, and such directions or determination may be given accordingly.

UCPR rr 93 99.

UCPR 93 Litigation guardian of person under a legal incapacity

(1) A person under a legal incapacity may start or defend a proceeding only by the persons litigation guardian.

(2) Except if these rules provide otherwise, anything in a proceeding (including a related enforcement proceeding) required or permitted by these rules to be done by a party may, if the party is a person under a legal incapacity, be done only by the partys litigation guardian.

(3) A partys litigation guardian who is not a solicitor may act only by a solicitor.

Who may be a litigation guardian UCPR r 94.

Appointment of litigation guardian UCPR r 95.

Notice of intention to defend UCPR r 96.

Disclosure UCPR r 97.

Settlements and compromise UCPR r 98. Details the materials to be supplied to the Court on an application for a sanction of a settlement or compromise in a personal injuries case. A copy of the opinion of counsel or independent solicitor on the compromise should be provided to the Court - See PD No 15 of 2018 Persons Under a Legal Disability. Draft orders should be prepared by the plaintiff. The PD is quite detailed.

Proceedings by and against prisoners UCPR r 99.

7.2 Executors, administrators and trustees

Supreme Court of Queensland Act 1991 (Qld) ss 93(I), 93(J).

7.3 Partners

Each jurisdiction has rules that facilitate proceedings by or against partners in the name of the firm of which they are partners:

UCPR rr 82-88.

UCPR 82 Meaning of partnership proceeding

A partnership proceeding is a proceeding started by or against a partnership in the partnership name and includes a proceeding between a partnership and 1 or more of its partners.

UCPR 83 Proceeding in partnership name

(1) Two or more partners may start a proceeding in the partnership name.

(2) A proceeding against persons alleged to be partners may be brought against the alleged partnership in the partnership name.

(3) The partnership name used in a partnership proceeding must be the name of the partnership when the cause of action arose.

(4) For a partnership registered under the Partnership Act 1891, the name of the partnership when the cause of action arose is the name in which the partnership was registered when the cause of action arose.

(5) Unless the court orders otherwise, a partnership proceeding must continue in the partnership name and not in the name of the individual partners.

Disclosure of partners names UCPR r 84.

Notice of intention to defend UCPR r 85.

Person improperly served as a partner UCPR r 86.

Defence UCPR r 87.

7.4 Business names

UCPR rr 89 92

UCPR 89 Proceeding if registered business name

A proceeding may be started against a name registered on the Business Names Register.

Unregistered business name UCPR r 90.

Notice of intention to defend UCPR r 91.

Amendment as to parties UCPR r 92.

7.5 Corporations

Corporations Act 2001 (Cth) ss 153(1), 471B.

7.6 Bankrupt persons

Bankruptcy Act 1966 (Cth) ss 58(3)(b), 82(2), 60(2)-(4).

8 Consolidation

Typically, consolidation permits two or more proceedings, or issues within the proceedings, to be tried jointly.

UCPR rr 78-81.

UCPR 78 Consolidation of proceedings

The court may order that 2 or more proceedings be consolidated if

(a) the same or substantially the same question is involved in all the proceedings; or

(b) the decision in 1 proceeding will decide or affect the other proceeding or proceedings.

UCPR 79 Sequence of hearings

The court may order that 2 or more proceedings be heard together or in a particular sequence.

UCPR 80 Directions

If the court orders that proceedings be consolidated or heard together or in a specified sequence, the court may give a direction it considers appropriate for the conduct of the proceeding or proceedings.

UCPR 81 Variation of order

Before or during the hearing of a consolidated proceeding or of proceedings ordered to be heard together or in a particular sequence, the court may order the proceedings be separated or heard in another sequence.

9 Personal injuries actions

Rules derived from equitable practice, permit a person to represent a group of plaintiffs or defendants having the same interest in the litigation.

11356356

Read Carnie v Esanda Finance Corp Ltd (1995) 182 CLR 398 [extracted 11.1.3C] as to what same interest means.

UCPR rr 74A-77.

UCPR 74A Application of division

This division does not apply to a representative proceeding under the Civil Proceedings Act 2011, part 13A.

UCPR 75 Representative party

A proceeding may be started and continued by or against 1 or more persons who have the same interest in the subject matter of the proceeding as representing all of the persons who have the same interest and could have been parties in the proceeding.

UCPR 76 Order for representation

(1) At any stage of a proceeding brought by or against a number of persons who have the same interest under rule 75, the court may appoint 1 or more parties named in the proceeding, or another person, to represent, for the proceeding, the persons having the same interest.

(2) However, when making an order appointing a person who is not a party, the court must also make an order under rule 62 including the person as a party.

UCPR 77 Enforcement of order against representative party

(1) An order made in a proceeding against a representative party under this division may be enforced against a person not named as a party only with the courts leave.

Note

See also the Civil Proceedings Act 2011 (Qld), section 18 (Order binds persons who are represented).

(2) An application for leave to enforce an order must be served on the person against whom enforcement of the order is sought as if the application were an originating process.

10 Third Party Proceedings (Crossclaim)

9600385

10.1 Introduction

The rules provide for claims by defendants against third parties: UCPR rr 191-207.

Part 6 Third party and similar proceedings

UCPR 191 Explanation of pt 6

(1) This part provides for a third party procedure in a proceeding started by claim.

(2) A third party proceeding starts when the third party notice is issued.

(3) In addition to the provisions of this part, rules 16 to 18, 20 and 23 apply in relation to a third party notice as if the notice were a claim and the defendant making the claim were a plaintiff and the third party were a defendant.

UCPR 192 Reason for third party procedure

A defendant may file a third party notice if the defendant wants to

(a) claim against a person who is not already a party to the proceeding a contribution or indemnity; or

(b) claim against a person who is not already a party to the proceeding relief

(i) relating to or connected with the original subject matter of the proceeding; and

(ii) substantially the same as some relief claimed by the plaintiff; or

(c) require a question or issue relating to or connected with the original subject matter of the proceeding to be decided not only as between the plaintiff and the defendant but also as between either of them and a person not already a party to the proceeding.

The content of a third party notice see UCPR r 193. Form 014 - Third party notice.

Filing UCPR r 194.

Service UCPR r 195 and effect UCPR r 196.

Notice of intention to defend by third party UCPR r 197.

Third party defence UCPR r 198.

Pleadings UCPR r 199.

Counter-claim by a third party UCPR r 200.

Default judgment UCPR r 201.

Disclosure UCPR r 202.

Trial UCPR r 203.

Extent third party bound by a judgment between plaintiff and defendant UCPR r 204.

Judgment between defendant and third party UCPR r 205.

Claim against another party UCPR r 206.

Subsequent parties UCPR r 207.

10.2 Contribution

8567240

The rules enable parties to the proceeding to seek contribution or indemnity from another party or parties: UCPR rr 206, 208.

UCPR 206 Claim against another party

(1) A party may claim against another party to the proceeding relief of the kind mentioned in rule 192 by filing and serving a third party notice under this rule.

(2) Subrule (1) does not apply if the claim could be made by counterclaim in the proceeding.

(3) If a party files and serves a third party notice under this rule

(a) the party on whom it is served is not required to file a notice of intention to defend if the party has filed a notice of intention to defend in the proceeding or is a plaintiff; and

(b) this part otherwise applies with necessary changes as if

(i) the party filing and serving the notice were a defendant filing and serving a third party notice; and

(ii) the party on whom the notice is served were a third party.

UCPR 208 Contribution under Law Reform Act 1995

If the only relief claimed by a defendant is a contribution under the Law Reform Act 1995, section 6 against another defendant, the defendant may file and serve a notice claiming contribution without further pleading.

Form 015 - Notice claiming contribution.

11 Group proceeding (Class Action)

Read:

Civil Proceedings Act 2011 (Qld) Part 13A ss 103A-103ZC

Supreme Court of Queensland Practice Direction No 8 of 2018 Class Actions List

UCPR rr 77A-77F

Kylie Downes QC and Hamish Clift, Queenslands new class action regime (2017) May Proctor 28-29

A class action is 'a generic term for a procedure whereby the claims of many individuals against the same defendant can be brought or conducted by a single representative': Australian Law Reform Commission (ALRC), 'Grouped Proceedings in the Federal Court', Report No 46. (1988) [1]. Rachel Mulheron provides a more extensive definition in The Class Action in Common Law Legal Systems: A Comparative Perspective, Hart, 2004, 3:

... a legal procedure which enables the claims (or part of the claims) of a number of persons against the same defendant to be determined in the one suit. In a class action, one or more persons ('representative plaintiff') may sue on his or her own behalf and on behalf of a number of other persons ('the class' [or group]) who have a claim to a remedy for the same or a similar alleged wrong to that alleged by the representative plaintiff, and 'who have claims that share questions of law or fact in common with those of the representative plaintiff ('common issues'). Only the representative plaintiff is a party to the action. The class members are not usually identified as individual parties but are merely described. The class members are bound by the outcome of the litigation on the common issues, whether favourable or adverse to the class, although they do not, for the most part, take any active-part in that litigation.

According to the Supreme Courts of Queensland, Victoria and New South Wales, class actions are proceedings brought by seven or more people where the claims arise out of the same, similar or related circumstances and these claims raise substantial factual and legal questions.

There are four sets of class action rules in Australia set out in the following comparative table. The first set of rules was Part IVA of the Federal Court of Australia Act 1976, which came into effect on 2 March 1992. It applies to causes of action arising after 3 March 1992 and was the model for class action procedures in Victoria and New South Wales. The Federal Court and Victorian provisions are nearly identical. The New South Wales approach was to remodel the former representative proceeding rules adopting a similar but not identical approach to that of the Federal Court. The Queensland rules are similar to New South Wales.

The purpose of class actions was outlined by the ALRC ([13], [69] in the following terms:

In the modern world the mass production and distribution of goods and services has become an inescapable reality. While it brings benefits to many, it also increases the possibility that wrongful injury, loss or damage will be caused on a mass scale. It is time for the legal system to face these realities and to free itself from the individual approach to the granting of legal remedies in cases where mass wrongs occur.

An effective grouping procedure is needed as a way of reducing the cost of enforcing legal remedies in cases of multiple wrongdoing. Such a procedure could enable people who suffer loss or damage in common with others as a result of a wrongful act or omission by the same respondent to enforce their legal rights in the courts in a cost effective manner. It could overcome the cost and other barriers which impede people from pursuing a legal remedy. People who may be ignorant of their rights or fearful of embarking on proceedings could be assisted to a remedy if one member of a group, all similarly affected, could commence proceedings on behalf of all members. The grouping of claims could also promote efficiency in the use of resources by enabling common issues to be dealt with together. Appropriate grouping procedures are an essential part of the legal system's response to wrongdoing in an increasingly complex world.

It can be seen that class actions may promote access to justice (particularly where the total claim is large, but individual claimant shares are small and individual litigation uneconomic), efficiently resolve disputes involving groups, reduce the risk of multiplicity of disputes, eliminate inconsistent findings and reduce the costs of litigation for both parties and the courts. See Second Reading speech by the Attorney General, Australia, Parliamentary Debates, House of Representatives, 14 November 1991, p 3176. A more recent advantage of deterring contravention of the law has also emerged Access to Justice Taskforce, Federal Attorney-Generals Department, A Strategic Framework for Access to Justice in the Federal Civil Justice System (September 2009) 114.

Class actions have arisen in relation to large-scale tort claims (dam management/flood mitigation, bush fires, prescription drugs and food contamination), third-party funded shareholder actions, financial product disclosure, and ASIC prosecutions. A class action has the features of a representative procedure combined with aggregation of all member of the group, who while not necessarily are before the court are nevertheless bound by the outcome of the proceeding. The legislative framework defines the requirements for aggregation as well as protection for those who do not wish to be part of the group and who wish to opt out, notice requirements, a requirement for court approval of certain outcomes, or separate representation.

The Federal Court class action is an example of an opt out representative proceeding where group members are deemed to be part of the group unless they specifically opt out of the group proceeding. The legislation was the result of the ALRC Report No 46, Grouped Proceedings in the Federal Court, AGPS, Canberra, 1988. This may be contrasted with an opt in class action where only members of the group who opt in are bound by the judgment see Michael Legg, Funding a Class Action through Limiting the Group: What does Part IVA of the Federal Court of Australia Act 1976 (Cth) Permit? (2010) 33 Australian Bar Review 17, 18. Opt in class actions, though once part of the Victorian rules, no longer exist in Australia.

Provision Federal Court

Federal Court of Australia Act 1976 (Cth) Part IVA Victoria Supreme Court Act 1986 (Vic) Part IVA New South Wales

Civil Procedure Act 2005 (NSW) Queensland

Civil Proceedings Act 2011 (Qld) Part 13A

Interpretation 33A 33A 155 103A

Application 33B 33B 156 -

Commencement of proceedings 33C 33C 157 103B

Standing 33D 33D 158 103C

Consent to be a group member 33E 33E 159 103D

Persons under a disability 33F 33F 160 103E

Representative proceedings not to be commenced in certain circumstances 33G 33G - -

Pleading requirements and commencement of proceedings 33H 33H 161 103F

Right of group member to opt out 33J 33J 162 103G

Altering the group description 33K 33K 163 103H

Court powers concerning group membership - 33KA - -

Fewer than seven group members 33L 33L 164 103I

Cost of distributing money excessive 33M 33M 165 103J

Proceedings not continuing as representative proceedings 33N 33N 166 103K

Consequences of proceedings not continuing under this Part 33P 33P 167 103L

Not all issues common 33Q 33Q 168 103M

Individual issues 33R 33R 169 103N

Directions relating to commencement of further proceedings 33S 33S 170 103O

Adequacy of representation 33T 33T 171 103P

Stay of execution 33U 33U 172 103Q

Settlement and discontinuance of a representative proceeding 33V 33V 173 103R

Settlement of individual claim of representative party 33W 33W 174 103S

Notice of certain matters 33X 33X 175 103T

Notices 33Y 33Y 176 103U

Judgment powers of the court 33Z 33Z 177 103V

Constitution etc of fund 33ZA 33ZA 178 103W

Effect of judgment 33ZB 33ZB 179 103X

Appeals to the court 33ZC 33ZC 180 103Y

Appeals to the High Court 33ZD - - -

Suspension of limitation periods 33ZE 33ZE 182 103Z

General power of court to make orders 33ZF 33ZF 183 103ZA

Saving of rights, powers, etc 33ZG - - -

Group member costs 43(1A) 33ZD 181 103ZB

Order may specify a date by which group members must take a step - 33ZG - -

Special provision relating to claims under PTVI of the Competition and Consumer Act 2010 (Cth) 33ZH - - -

Order in event of decision or admission on liability - 33ZH - -

Reimbursement of a representative partys costs 33ZJ 33ZJ 184 103ZC

Transitional provisions - 33ZK - -

Whos who?

The representative party fulfils a role not unlike an applicant or plaintiff in non-representative proceeding. They brief lawyers, give instructions, engage in interlocutory applications and may reach a settlement agreement. The representative party must have standing to commence a proceeding on their own behalf before they can do so on behalf of group members. The representative party may contractually agree with group members to consult and perhaps even conduct votes for major decisions. Group members are not parties, but are represented by the representative party. It is arguable that the representative party owes fiduciary duties to group members and impliedly undertake to act in the interests of group members.

Group members do not need to consent to be part of a group unless within one of the stated exceptions FC s 33E, Qld s 103D, Vic s 33E, NSW s 159 Commonwealth, States and Territories, ministers, public body corporates and public officers. Nevertheless there is a mandatory requirement that group members be afforded the opportunity to opt out. Special protection is provided for persons under a disability FC s 33F, Qld s 103E, Vic s 33F, NSW s 160.

Originating process and case management

In the Federal Court a representative proceeding is started by filing an originating application in accordance with Form 19. In Queensland, a statement of claim (r 77B) is filed in accordance with Form 002B. In Victoria a writ of summons (rr 4.01, 4.02) is filed in accordance with form 5A. In New South Wales a statement of claim (r 6.3) is filed in accordance with Form 5.

Sections 33C FC & Vic, Qld s 103B and NSW s 157 sets out three requirements to commence a representative proceeding:

Seven or more persons have claims against the same person;

The claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and

The claims of all those persons give rise to a substantial common issue of law or fact.

The statement of claim should be drawn so that the applicants personal claim can be used as the vehicle for determining the common questions in the action. Ordinarily the trial of the action will resolve all common questions together with any non-common questions raised by the applicants personal claim (e.g. the applicants individual claim for damages) FC Practice Note CM 17. The originating process has to meet the additional requirements of FC and Vic ss 33H (Qld s 103F, NSW s 161) that reinforce the central requirements of FC & Vic ss 33C (Qld s 103B, NSW s 157) that the group and common questions can be adequately defined in the pleadings. Except to the extent of any inconsistency, the other rules of court apply to class actions (FC s 33ZG). It is possible for an opt out class action to be commenced without the express consent of group members FC & Vic ss 33E, Qld s 103D, NSW s 159. Group members can opt out under FC & Vic ss 33X(1)(a) (Qld s 103T, NSW s 175) as they would receive notice of the right and commencement of the proceedings. Failure to opt out results in group members being bound by the outcome of the proceedings FC & Vic ss 33ZB, Qld s 103X, NSW s 179. Civil Proceedings Act 2011 (Qld) s 103C and Civil Procedure Act 2005 (NSW) s 158(2) in contrast to the unresolved position in the Federal Court and Victoria, do not require all group members to have a claim against all defendants.

The phrase same, similar or related circumstances has caused some judicial debate. If claimants circumstances are related to one another, they are at the outer limits of eligibility Zhang v Minister for Immigration (1993) 45 FCR 384, 404-405 per French J:

In each case there is a threshold judgment on whether the similarities or relationships between circumstances giving rise to each claim are sufficient to merit their grouping as a representative proceeding. At the margins, these will be practical judgments informed by the policy and purpose of the legislation. At some point along the spectrum of possible class of claim, the relationship between the circumstances of each claim will be incapable of definition at a sufficient level of particularity, or too tenuous or remote to attract the application of the legislation.

The phrase substantial common issue of law or fact was discussed by Lindgren J in Bright v Femcare Ltd (2002) 195 ALR 574 at [14]:

Its purpose is to elicit the identity of questions, the answering of which in the representative partys claim can be expected also to perform the useful purpose of answering them in the claims of the represented parties [group members].

Common questions do not include particular circumstances of individual group members: Murphy v Overton Investments Pty Ltd [1999] FCA 1673, [14]. A common issue of law or fact shared by the representative party and group members is sufficient. It is not necessary for group members to have a common cause of action against the respondent. The meaning of the term substantial was clarified in Wong v Silkfield (1999) 199 CLR 255.

FC s 33H, Qld 103F, Vic s 33H and NSW s 161 specify pleading requirements for commencement of class actions. A group proceeding is commenced by application (FC s 33H), writ (Vic s 33H), originating process (Qld s 103F, NSW s 161) with an endorsement on the writ that (a) describes or otherwise identifies the group members to whom the proceeding relates, (b) specifies the nature of the claims made on behalf of the group members and the relief claimed, and (c) specifies the common questions of law or fact to the claims of the group members. It is not necessary to identify group members by name or number.

In Queensland, representative proceedings under Part 13A of the Civil Proceedings Act 2011 (Qld) commenced in the Central, Northern or Far Northern regions are assigned to a judge in that region subject to any other order by the Senior Judge Administrator see Qld Practice Direction 8 of 2023 (4). The aim of the practice direction is to facilitate the just and expeditious resolution of the real issues in representative proceedings at a minimum of expense by ensuring that the issues in contest are identified at an early date and that representative proceedings are not unnecessarily delayed by interlocutory disputes. The PD creates a class action list, the Registrar appoints a Class Actions List Manager, a proceeding is returnable for an initial case conference (27-28) before the Class Actions List Judge. The latter manages the proceeding via case conferences (23), determines all interlocutory applications until the proceeding is ready for trial. Mediation is a general practice requirement (34, 35). Members of the group are to be kept informed (36).

In Victoria, class actions are heard in both the Commercial court, where they are known as group proceedings, and in the Common Law Division. Victorian Practice Note No 10 of 2015 Conduct of Group Proceedings (Common Law Division) mirrors Federal Court Practice Note CM 17, both of which provide guidance on the management and control of Group Proceedings in the trial division of the court. The Practice Notes provide rules as to commencement, case management, applications, communication with group members, opting out, preliminary questions and summary judgment, trial of common questions, settlement and communications with the court.

In New South Wales representative proceedings under Part 10 of the Civil Procedure Act 2005 (NSW) are assigned to one judge on a panel from either the Common Law or Equity Division. NSW Practice Note SC Gen 17 provides that representative proceedings are to be commenced in the Division of the Court appropriate to their subject matter in accordance with the Supreme Court Act 1970 (NSW) and the Uniform Civil Procedure Rules.

The ALRC Report 134 Integrity, Fairness and Efficiency An inquiry into Class Action Proceedings and Third-Party Litigation Funders December 2018 made seven recommendations concerning case management of class actions:

Recommendation 1Part IVA of the Federal Court of Australia Act 1976 (Cth) should be amended so that all representative proceedings are initiated as open class.

Recommendation 2Part 15 of the Federal Court of Australias Class Actions Practice Note (GPN-CA) should be amended to provide criteria for when it is appropriate to order class closure during the course of a representative proceeding and the circumstances in which a class may be reopened.

Recommendation 3Part IVA of the Federal Court of Australia Act 1976 (Cth) should be amended to provide the Court with an express statutory power to make common fund orders on the application of the plaintiff or the Courts own motion.

Recommendation 4Part IVA of the Federal Court of Australia Act 1976 (Cth) should be amended to give the Court an express statutory power to resolve competing representative proceedings.

Recommendation 5In order to implement Recommendation 4, Part 15 of the Federal Court of Australias Class Actions Practice Note (GPN-CA) should be amended to provide a further case management procedure for competing class actions.

Recommendation 6The Supreme Courts of states and territories with representative action procedures, should consider becoming parties to the Protocol for Communication and Cooperation Between Supreme Court of New South Wales and Federal Court of Australia in Class Action Proceedings.

Recommendation 7Part 9.6A of the Corporations Act 2001 (Cth) and s 12GJ of the Australian Securities and Investments Commission Act 2001 (Cth) should be amended to confer exclusive jurisdiction on the Federal Court of Australia with respect to civil matters, commenced as representative proceedings, arising under that legislation.

Opt out

The right of group members to opt out is provided for by FC s 33J, Qld 103H, Vic s 33J, NSW s 162. The court must fix a date before which group members may opt out by written notice under the rules. It is possible on application of a group member, representative party or respondent to seek permission to fix a later date. In the absence of leave, the hearing of the proceeding occurs after the date fixed for opting out.

The running of limitation periods applicable to a group member claim is suspended with the commencement of a group proceeding FC and Vic ss 33ZE(1), Qld s 103Z, NSW s 182. The limitation period runs again on opting out or the proceeding is determined without disposing of the group members claim FC and Vic ss 33ZE(2), Qld 103Z, NSW s 182).

In the Federal Court the form of the opt-out notice is set out in the rules and Practice Note CM 17 7. The opt-out notices are published in newspapers and other media to bring it to the attention of group members

Preliminary questions and summary judgmentVictorian Practice Note No 10 of 2015 Part 7 and Federal Court Practice Note CM 17 Part 8 provide that to narrow the scope of the dispute, at the earliest practicable date the Court may consider the utility of either:

a) determining any common question in the proceeding as a preliminary question; or

b) giving summary judgment on any common question in the proceeding.

The court has power to stay any relief awarded to a group member pending determination of any cross-claim FC and Vic s 33U, Qld s 103Q, NSW 172.

Issues not in common

The claims of all group members may not entirely be in common, such that resolution of common issues still requires court directions. The court has power to:

(i) Give directions on dealing with outstanding issues FC and Vic ss 33Q(1), Qld s 103M, NSW s 168.

(ii) Create sub-groups - FC and Vic ss 33Q(2), Qld s 103M(2), NSW s 168(2) see Wingecarribee Shire Council v Lehman Brothers Australia Pty Ltd (in liq) [2102] FCA 1028.

(iii) Appoint a representative party for a sub-group FC and Vic ss 33Q(3), Qld s 103M(2), NSW s 168(2).

(iv) Make individual determinations - FC and Vic ss 33R(1), Qld s 103N, NSW s 169 see Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (No 2) [2003] VSC 212.

(v) Give directions relating to commencement of individual or another representative proceeding FC and Vic ss 33S, Qld s 103O, NSW s 170 see Oliver v Commonwealth Bank of Australia (No 2) (2012) 205 FCR 540.

Notices and communicationNotices are an important feature of class actions given the number of people involved and their need to make decisions whether to opt out or otherwise protect their interests. Subject to the discretion of the court, section 33X (Qld s 103T, NSW s 175) lists an array of notices that must be given, e.g. commencement of proceedings, court approval of a settlement etc. If there is no claim for damages then the court may dispense with the notice requirements. Section 33Y (Qld s 103U, NSW s 176) sets out the form, content and method of the required notices to group members.

Settlement

Most class actions settle rather than proceed to judgment. The court must approve settlement or discontinuance of a group proceeding: FC and Vic ss 33V, Qld s 103R, NSW s 173. A balance is struck between protecting the interests of parties and group members, some of whom may not be represented, with that of the costs and risks of litigation Casey v State Trustee Ltd [2010] FCA 163 at [16].

Federal Court Practice Note CM 17 rules 10 and 11 set out aspects of settlement approval largely based on the judgment of Goldberg J in Williams v FAI Home Security Pty Ltd (2000) 180 ALR 459; [2000] FCA 1925, including content of the relevant notice.

The position of the court to control the amount distributed to litigation funders is somewhat limited compared with that paid to lawyers, as the funder is not an officer of the court and fees are not governed by taxation of costs: see Australian Securities and Investments Commission v Richards [2013] FCAFC 89; K Adams, Issues and Challenges in Settling Class Actions (2013) 87 ALJ 537; M Legg, Class Action Settlement Hurdles (2013) 2 Journal of Civil Litigation and Practice 131. This situation prompted the ALRC in The ALRC Report 134 Integrity, Fairness and Efficiency An inquiry into Class Action Proceedings and Third-Party Litigation Funders December 2018 to make six recommendations for regulation of litigation funders:

Recommendation 11Part IVA of the Federal Court of Australia Act 1976 (Cth) should be amended to prohibit a solicitor acting for the representative plaintiff, whose action is funded in accordance with a Court approved third-party litigation funding agreement, from seeking to recover any unpaid legal fees from the representative plaintiff or group members.

Recommendation 12Part IVA of the Federal Court of Australia Act 1976 (Cth) should be amended to include a statutory presumption that third-party litigation funders who fund representative proceedings will provide security for costs in any such proceedings in a form that is enforceable in Australia.

Recommendation 13Section 37N and s 43 of the Federal Court of Australia Act 1976 (Cth) should be amended to expressly empower the Court to award costs against third-party litigation funders and insurers who fail to comply with the overarching purposes of the Act prescribed by s 37M.

Recommendation 14Part IVA of the Federal Court of Australia Act 1976 (Cth) should be amended to provide that:

third-party litigation funding agreements with respect to representative proceedings are enforceable only with the approval of the Court;

the Court has an express statutory power to reject, vary, or amend the terms of such third-party litigation funding agreements;

third-party litigation funding agreements with respect to representative proceedings must provide expressly for a complete indemnity in favour of the representative plaintiff against an adverse costs order; and

Australian law governs any such third-party litigation funding agreement the funder submits irrevocably to the jurisdiction of the Court.

Recommendation 15The Australian Securities Investments Commission Regulatory Guide 248 should be amended to require that third-party litigation funders that fund representative proceedings report annually to the regulator on their compliance with the requirement to implement adequate practices and procedures to manage conflicts of interest.

Recommendation 16Regulation 5C.11.01 of the Corporations Regulations 2001 (Cth) should be amended to include law firm financing and portfolio funding within the definition of a litigation funding scheme.

The ALRC Report 134 Integrity, Fairness and Efficiency An inquiry into Class Action Proceedings and Third-Party Litigation Funders December 2018 made three recommendations concerning settlement approval of class actions:

Recommendation 8Part 15 of the Federal Court of Australias Class Actions Practice Note (GPN-CA) should include a clause that the Court may appoint a referee to assess the reasonableness of legal costs charged in a representative proceeding prior to settlement approval.

Recommendation 9Part 15 of the Federal Court of Australias Class Actions Practice Note (GPN-CA) should include a clause that the Court may tender settlement administration, and include processes that the Court may adopt when tendering settlement administration.

Recommendation 10Part 15 of the Federal Court of Australias Class Actions Practice Note (GPN-CA) should be amended to require settlement administrators to provide a report to the class on completion of the distribution of the settlement sum. The report should be published on a national representative proceedings database to be maintained by the Court.

Discontinuance

Discontinuance is permissible in circumstances where:

(i) there are fewer than 7 group members - FC and Vic ss 33L, Qld s 103I, NSW s 164 see Falfire Pty Ltd v Roger David Stores Pty Ltd [1996] FCA 853.

(ii) the cost to the respondent of identifying and distributing to group members the amounts claimed is excessive compared to the likely costs of the claim FC and Vic ss 33M, Qld s 103J, NSW s 165 See Vince Morabito, The Federal Court of Australias Power to Terminate Properly Instituted Class Actions (2004) 42(3) Osgoode Hall Law Journal 473.

(iii) the court exercises a discretion, of its own motion or on the application of a respondent that the proceedings no longer continue as a representative proceeding FC and Vic s 33N, Qld s 103K, NSW s 166. Despite meeting the threshold requirements in s 33C, a Court under s 33N may discontinue the proceedings: Bright v Femcare Ltd (2002) FCAFC 243 at [128]. The provisions set out numerous grounds for the exercise of the discretion, see Dagi v Broken Hill Proprietary Co [2000] VSC 486 per Hedigan J.

A representative party may continue proceedings on their own behalf should the class action provisions no longer apply to the proceeding FC and Vic ss 33P(a), Qld s 103L, NSW s 167(1).

Powers, Orders and Judgment

The Court may, of its own motion or on application by a party or a group member, make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding FC and Vic ss 33ZF, Qld s 103ZA, NSW s 183, see McMullin v ICI Australia Operations Pty Ltd (No 6) (1998) 84 FCR 1, 3-4. The extensive array of judgments that a court may make is set out in FC and Vic ss 33Z, Qld s 103V, NSW s 177 as are some particular requirements when awarding damages. The court is empowered to:

determine an issue of law;

determine an issue of fact;

make a declaration of liability;

grant equitable relief;

make an award of damages; and

make such other order as the court thinks just [FC and Vic only].

The judgment must describe or otherwise identify the group members affected by it and bind all such persons other than any person who has opted out of the proceedings under FC and Vic s 33J, Qld 103G, NSW s 162 see FC and Vic s 33ZB, Qld s 103X, NSW s 179.

All group members who have not opted-out are bound by the judgment of the court FC & Vic s33ZB, Qld s 103X, NSW s 179.

Costs

The court may not award costs against a group member on whose behalf the proceeding has been commenced FC and Vic s 43(1A) (Qld s 103ZB, NSW s 181), except where a group member is a representative of a sub-group (FC and Vic s 33Q, Qld s 103M, NSW s 168)), or the court is resolving their individual issues (FC and Vic s 33R, Qld s 103N, NSW 169). Costs may be awarded against the representative party. Security for costs rules remain unaffected by Pt IVA FC s 33ZG(c)(v).

Sections FC & Vic 33ZJ, Qld 103ZC, NSW 184 provides for reimbursement of a representative partys costs reasonably incurred out of any damages award in circumstances where the representative partys costs are likely to exceed costs recoverable from the respondent/defendant.

Appeal

Section FC & Vic 33ZC, Qld s 103Y, NSW s 180 outlines who can appeal, who are parties to an appeal, who is bound by an appeal, notice requirements for group members and the removal of the option of group members being permitted to opt out. Appeals may also be by way of a class action FC s 33ZC, implicit in Vic, Qld s 103Y, NSW s 180. Section 33ZC extends to an appeal to the High Court FC s 33ZD. An individual group member may appeal in the absence of an appeal by the representative party or sub-group representative see Jenkins v NZI Securities Australia Ltd (1994) 52 FCR 572.

ALRC suggested reforms to Solicitors Fees, Conflicts of Interest, Regulatory Redress and Review of Substantive Law

11.2.50 ALRC Report 134 Integrity, Fairness and Efficiency An inquiry into Class Action Proceedings and Third-Party Litigation Funders December 2018 made eight recommendations concerning solicitors fees and conflicts of interest:

Recommendation 17Confined to solicitors acting for the representative plaintiff in representative proceedings, statutes regulating the legal profession should permit solicitors to enter into percentage-based fee agreements.

The following limitations should apply:

an action that is funded through a percentage-based fee agreement cannot also be directly funded by a litigation funder or another funding entity which is also charging on a contingent basis;

a percentage-based fee cannot be recovered in addition to professional fees for legal services charges on a time-cost basis; and

solicitors who enter into a percentage-based fee agreement must advance the costs of disbursements, and account for such costs within the percentage-based fee.

Recommendation 18Part IVA of the Federal Court of Australia Act 1976 (Cth) should be amended to include a statutory presumption that solicitors who fund representative proceedings on the basis of percentage-based fee agreements will provide security for costs in any such proceedings in a form that is enforceable in Australia.

Recommendation 19Part IVA of the Federal Court of Australia Act 1976 (Cth) should be amended to provide that:

percentage-based fee agreements in representative proceedings are permitted only with leave of the Court; and

the Court has an express statutory power to reject, vary, or amend the terms of such percentage-based fee agreements.

Recommendation 20The Law Council of Australia should oversee the development of specialist accreditation for solicitors in class action law and practice. Accreditation should require ongoing education in relation to identifying and managing actual or perceived conflicts of interests and duties in class action proceedings.

Recommendation 21The Australian Solicitors Conduct Rules should be amended to prohibit solicitors and law firms from having financial and other interests in a third- party litigation funder that is funding the same matter in which the solicitor or law firm is acting.

Recommendation 22Part 15 of the Federal Court of Australias Class Actions Practice Note (GPN-CA) should be amended so that the first notices provided to potential class members by legal representatives are required to clearly describe the obligation of legal representatives to avoid and manage conflicts of interest, and to outline the detail of any conflicts in that particular case.

Recommendation 23The Australian Government should review the enforcement tools available to regulators of products and services used by consumers and small businesses (including financial and credit products and services), to provide for a consistent framework of regulatory redress.

Recommendation 24The Australian Government should commission a review of the legal and economic impact of the operation, enforcement, and effects of continuous disclosure obligations and those relating to misleading and deceptive conduct contained in the Corporations Act 2001 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth).

12 Non-compliance

Litigation is expensive and courts through case management and other procedures are keen to ensure that cases proceed efficiently. Non-compliance and amendments are continual issues that run counter to the efficient administration of justice.

8081950

In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 the court emphasised the extent to which amendment of pleadings should be determined by reference to the principles of case management.

UCPR rr 371, 373-374.

UCPR 371 Effect of failure to comply with rules

(1) A failure to comply with these rules is an irregularity and does not render a proceeding, a document, step taken or order made in a proceeding, a nullity.

(2) Subject to rules 372 and 373, if there has been a failure to comply with these rules, the court may

(a) set aside all or part of the proceeding; or

(b) set aside a step taken in the proceeding or order made in the proceeding; or

(d) declare a document or step taken to be effectual; or

(e) make another order that could be made under these rules (including an order dealing with the proceeding generally as the court considers appropriate); or

(f) make such other order dealing with the proceeding generally as the court considers appropriate.

UCPR 373 Incorrect originating process

The court may not set aside a proceeding or an originating process on the ground the proceeding was started by the incorrect originating process.

UCPR 374 Failure to comply with order

(1) This rule applies if a party does not comply with an order to take a step in a proceeding.

(2) This rule does not limit the powers of the court to punish for contempt of court.

(3) A party who is entitled to the benefit of the order may, by application, require the party who has not complied to show cause why an order should not be made against it.

(4) The application

(a) must allege the grounds on which it is based; and

(b) is evidence of the allegations specified in the application; and

(c) must, together with all affidavits to be relied on in support of the application, be filed and served at least 2 business days before the day set for hearing the application.

Note See also rule 447 (Application to court).

(5) On the hearing of the application, the court may

(a) give judgment against the party served with the application; or

(b) extend time for compliance with the order; or

(d) make another order.

(6) The party who makes the application may reply to any material filed by the party who was served with the application.

(7) The application may be withdrawn with the consent of all parties concerned in the application or with the courts leave.

(8) A judgment given under subrule (5)(a) may be set aside

(a) if the application is made without noticeon an application to set the judgment aside; or

(b) otherwiseonly on appeal.

(9) Despite subrule (8), if the court is satisfied an order dismissing the proceeding was made because of an accidental slip or omission, the court may rectify the order.

In some cases the error is so fundamental as to be incapable of fixing:

A party in whose name a proceeding is brought does not exist Deveigne v Askar (2007) 239 ALR 370.

Statutory pre-conditions before an action may be commenced Beugelaar v City of Springvale [1969] VR 3.

Read Matthews v SPI Electricity Pty Ltd [2011] VSC 167 where representative proceedings brought without the authority of the representative were nevertheless permitted to proceed.

13 Amendment

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13.1 Amendment of mistakes in documents

There are general rules for the amendment of documents (rr 375, 376) and more specific rules for the amendment of pleadings (r 377). There are also rules for alterations to documents other than affidavits and statutory declarations (r 963) as well as to statutory declarations (r 963A).

UCPR r 375 Power to amend

(1) At any stage of a proceeding, the court may allow or direct a party to amend a claim, anything written on a claim, a pleading, an application or any other document in a proceeding in the way and on the conditions the court considers appropriate.

(2) The court may give leave to make an amendment even if the effect of the amendment would be to include a cause of action arising after the proceeding was started.

(3) If there is misnomer of a party, the court must allow or direct the amendments necessary to correct the misnomer.

(4) This rule is subject to rule 376.

UCPR 376 Amendment after limitation period

(1) This rule applies in relation to an application, in a proceeding, for leave to make an amendment mentioned in this rule if a relevant period of limitation, current at the date the proceeding was started, has ended.

(2) The court may give leave to make an amendment correcting the name of a party, even if the effect of the amendment is to substitute a new party, only if

(a) the court considers it appropriate; and

(b) the court is satisfied that the mistake sought to be corrected

(i) was a genuine mistake; and

(ii) was not misleading or likely to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued.

(3) The court may give leave to make an amendment changing the capacity in which a party sues, whether as plaintiff or counterclaiming defendant, only if

(a) the court considers it appropriate; and

(b) the changed capacity in which the party would then sue is one in which, at the date the proceeding was started by the party, the party might have sued.

(4) The court may give leave to make an amendment to include a new cause of action only if

(a) the court considers it appropriate; and

(b) the new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment.

UCPR 377 Amendment of originating process

(1) An originating process may not be amended except

(a) if the amendment is a technical matterwith the leave of the registrar or the court; or

(b) if the originating process has not been served and all sealed copies of the originating process, and other documents filed with the originating process, are returned to the court that issued the originating processwith the leave of the registrar or the court; or

(2) Subrule (1) does not apply to a pleading or particular included in an originating process.

13.2 Factors affecting amendment

The party seeking an amendment must satisfy the court that their opponent will not be prejudiced in a way that cannot be remedied by an adjournment, costs or some other way.

After Aon Risk Services Australian Ltd v Australian National University (2009) 239 CLR 175 [see 5.5.11] it is no longer sufficient that costs, even indemnity costs, will be a sufficient remedy such as to allow an amendment.

In Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 169-70 Kirby J set out the considerations for and against the exercise of discretion in an application for amendment.

Factors in favour of the grant for leave to amend:

That the amendment sought is the only way in which the true issues and the real merits, factual and legal, can be litigated and artificially avoided.

That the relevant oversight is adequately explained.

That the proposed amendment is of considerable importance to the rights of a party, particularly where it provides a complete answer to a claim.

That any fault is attributable to the partys legal representatives.

That there has been the perception of an important new point by new legal representatives.

That the hearing date is not jeopardised.

Factors militating against the grant of leave to amend:

The absence of an explanation for a late application.

The blamelessness of the resisting party and the extent to which the applicant is at fault in its breach of clear directions

The strain which litigation my place upon those involved and the natural desire of most litigants to be freed, as quickly as possible, from the anxiety, distraction and disruption which medication causes

The proximity to the hearing date

The length of time that the proceedings have been pending; the longer the time, the more reasonable it is to expect that the matter should have been raised earlier

The extent to which a new issue would give rise to a substantial and new case in reply

Navigation abuse manifest in repeated to fault on the part of a lyric and his contact has the effect of frustrating proper timetable fixed for the trial

13.3 The relevance of case management

The case management model of litigation (UCPR r 5) requires the court when considering amendment to take into account the objects of judicial control of litigation.

See the judgments in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.

13.4 Amendment to add statute-barred claims

Civil Proceedings Act 2011 (Qld) s 16.

16 Amendment for new cause of action or party

(1) This section applies to an amendment of a claim, anything written on a claim, pleadings, an application or another document in a proceeding.

(2) The court may order an amendment to be made, or grant leave to a party to make an amendment, even though

(a) the amendment will include or substitute a cause of action or add a new party; or

(b) the cause of action included or substituted arose after the proceeding was started; or

(3) Despite subsection (2), the rules of court may limit the circumstances in which amendments may be made.

(4) This section

(a) applies despite the Limitation of Actions Act 1974; and

(b) does not limit section 103H.

UCPR r 387 provides that the amendment takes effect on and from the date of the amendment, except for an amendment including or substituting a cause of action arising after the commencement of proceedings, which takes effect on and from the date of the order giving leave unless otherwise ordered. An amendment with leave has effect from the date of the original statement of claim, an amendment without leave does not take effect from the date of the statement of claim so as to defeat a limitations defence: Wilkinson v Rockdril Contractors Pty Ltd [1997] 1 QdR 560.

13.5 Amendment of parties

Removal of a party: UCPR r 69(1)(a).

UCPR 69 Including, substituting or removing party

(1) The court may at any stage of a proceeding order that

(a) a person who has been improperly or unnecessarily included as a party, or who has ceased to be an appropriate or necessary party, be removed from the proceeding;

The addition of a party operates prospectively.

Where a mistake has been made in the name of a party, UCPR r 376 allows amendment to correct the mistake.

Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 (extracted 5.5.34C) discusses changing the name of a party after expiry of a limitation period, the amendment rule allows for misnomer, clerical error and misdescription, but also cases where the party, intending to sue a person of a particular description, was mistaken as to the name of the person who answers that description.

13.6 Slip rule

Jurisdiction exists for a court to correct a mistake or error in a judgment or order: UCPR r 388.

UCPR 388 Mistakes in orders or certificates

(1) This rule applies if

(a) there is a clerical mistake in an order or certificate of the court or an error in a record of an order or a certificate of the court; and

(b) the mistake or error resulted from an accidental slip or omission.

(2) The court, on application by a party or on its own initiative, may at any time correct the mistake or error.

(3) The other rules in this part do not apply to a correction made under this rule.

There is also an inherent jurisdiction to amend or vary an order: Abacus Australia Ltd v Bradstock GIS Pty Ltd [2001] VSAC 19.

14 Filing and documents

UCPR Ch 22 deals with documents and filing. Make sure that you are familiar with the following rules. Documents have specific layout requirements (r 961). This rule will be relevant to the assessment you submit in this unit. Figures may be used for dates, amounts or numbers in a document (r 962). Different rules apply where you seek to alter an affidavit or statutory declaration (r 963A) as opposed to other types of documents (r 963). Court documents must have serial numbers (r 964). It is possible for a court to give leave for a fax or other copy of a document to be used (r 965). Parties entitled to copies of documents must get them if they ask and provide the fee (r 966).

The process for filing a physical document can be done via post (r 969) or personal delivery (r 968) to the registry (r 967). Counterparts can be used when filing affidavits and statutory declarations (r 967A). There are detailed requirements for electronically filing documents (r 969A, Ch 22 Pt 1 Div 4). A registrar can refuse to file a document where they consider it to contain scandalous material, unless it is in a claim, application or notice of appeal (r 973). Any notice required under the rules must be in documentary form, unless the court gives leave for an oral notice (r 974). Approved forms must be used with the necessary changes that circumstances require ( r 975).

Filed documents can be inspected and copied (rr 975G -975I). Documents are kept for a minimum period of 7 years from filing or admission into evidence in a proceeding (r 975F).

UCPR Ch 22 part 2 deals with the Registry, its opening hours (r 976), requirements to keep records (r 977), issue documents (rr 978, 978A), and disposal of exhibits (r 984A).

15 Want of Prosecution

Failure to prosecute a proceeding with due diligence may under the inherent jurisdiction result in the proceedings coming to an end. The same principles apply under UCPR r 280.

12663849

UCPR 280 Default by plaintiff or applicant

(1) If

(a) the plaintiff or applicant is required to take a step required by these rules or comply with an order of the court within a stated time; and

(b) the plaintiff or applicant does not do what is required within the time stated for doing the act; a defendant or respondent in the proceeding may apply to the court for an order dismissing the proceeding for want of prosecution.

(2) The court may dismiss the proceeding or make another order it considers appropriate.

(3) An order dismissing the proceeding for want of prosecution may be set aside only on appeal or if the parties agree to it being set aside.

The advent of case management makes it less likely that the lengthy timeframes formerly associated with dismissal for want of prosecution will likely occur.

Self-executing orders UCPR r 374. Such orders set out the consequences taking effect upon non-compliance with the order.

UCPR 374 Failure to comply with order

(1) This rule applies if a party does not comply with an order to take a step in a proceeding.

(2) This rule does not limit the powers of the court to punish for contempt of court.

(3) A party who is entitled to the benefit of the order may, by application, require the party who has not complied to show cause why an order should not be made against it.

(4) The application

(a) must allege the grounds on which it is based; and

(b) is evidence of the allegations specified in the application; and

(c) must, together with all affidavits to be relied on in support of the application, be filed and served at least 2 business days before the day set for hearing the application.

Note See also rule 447 (Application to court).

(5) On the hearing of the application, the court may

(a) give judgment against the party served with the application; or

(b) extend time for compliance with the order; or

(d) make another order.

(6) The party who makes the application may reply to any material filed by the party who was served with the application.

(7) The application may be withdrawn with the consent of all parties concerned in the application or with the courts leave.

(8) A judgment given under subrule (5)(a) may be set aside

(a) if the application is made without noticeon an application to set the judgment aside; or

(b) otherwiseonly on appeal.

(9) Despite subrule (8), if the court is satisfied an order dismissing the proceeding was made because of an accidental slip or omission, the court may rectify the order.

16 Time

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16.1 Introduction

The rules of time deal with reckoning, extension, abridgment, fixing of time, vacation and registry closures.

16.2 Reckoning

Acts Interpretation Act 1954 (Qld) s 38.

38 Reckoning of time

(1) If a period beginning on a given day, act or event is provided or allowed for a purpose by an Act, the period is to be calculated by excluding the day, or the day of the act or event, and

(a) if the period is expressed to be a specified number of clear days or at least a specified number of daysby excluding the day on which the purpose is to be fulfilled; and

(b) in any other caseby including the day on which the purpose is to be fulfilled.

(2) If the time, or last day of a period, calculated forwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or last day, is taken to fall on the next day later that is not an excluded day.

(3) If the time, or earliest day of a period, calculated backwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or earliest day, is taken to fall on the next day earlier that is not an excluded day.

(4) If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the relevant occasion happens.

(5) In this section excluded day

(a) for filing or registering a documentmeans a day on which the office is closed where the filing or registration must or may be done; or

(b) otherwisemeans a day that is not a business day in the place in which the thing must or may be done.

16.3 Extension and abridgment

UCPR r 7 Extending and shortening time

(1) The court may, at any time, extend a time set under these rules or by order.

(2) If a time set under these rules or by order, including a time for service, has not ended, the court may shorten the time.

Note A time allowed or provided for under these rules is calculated according to the Acts Interpretation Act 1954, section 38 (Reckoning of time).

In limited situations a registrar constituting the court may hear and decide extensions of time - See PD No 11 of 2024 Registrars Power: Extension of Time for Objections to Costs Statement.

17 Review

17.1 Concluding Summary

Topic 4 has outlined the concepts of res judicata and issue estoppel, which aim to prevent re-litigation of the same issues or causes of action. The rules relating to parties and joinder aim to have all the relevant stakeholders to a litigation encapsulated by the proceedings, so that it can be resolved efficiently. Given that people make mistakes and are often tardy Topic 4 also looked at how mistakes in documents, parties and orders are remedied; how non-compliance and want of prosecution are dealt with; and finally what the concept of time means in the context of litigation. All of these procedures have three goals in mind, reduce costs and delay and enhance access to justice.

17.2 Review Questions

Question 1

Res judicata:

precludes those claims which could have been made in an earlier proceeding and which are subsequently sought to be litigated.

precludes the re-litigation of claims made in earlier proceedings between the same parties (or persons closely connected with the parties and their claims), in respect of the same subject matter.

precludes the redetermination of a finding made in earlier litigation.

precludes the re-litigation of claims made in earlier proceedings between the same parties (or persons closely connected with the parties and their claims), in respect of the different subject matter.

Question 2

Courts promote joinder by:

making available representative or class action provisions.

use of amendment rules to ensure that the real issue or issues between the parties are determined.

flexible and liberal construction of joinder of parties and causes of action.

consolidation rules which seek to prevent multiplicity of proceedings.

Question 3

Joinder by the plaintiff is dealt with under UCPR rule(s):

Question 4

A counterclaim:

enables a defendant to join a third person to the counterclaim.

in certain circumstances a claim and counterclaim can be setoff against each other.

if successful will entitle the plaintiff to the costs of their claim.

enables a defendant to make a claim against the plaintiff.

Question 5

In relation to including, substituting or removing a party, a court may order:

a person who has ceased to be an appropriate or necessary party, be removed from the proceeding.

a person whose presence before the court is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in the proceeding be included as a party.

a person who has been improperly or unnecessarily included as a party, be removed from the proceeding.

a person whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding be included as a party.

Question 6

Which Act and section enable persons under a disability to sue or be sued?

Public Trustee Act 1978 (Qld) s 59.

Public Trustee Act 1978 (Qld) s 69.

Civil Liability Act 2001 (Qld) s 11.

Civil Liability Act 2001 (Qld) s 59.

Question 7

Under r 374, a party who is entitled to the benefit of an order may by application require a non-complying party to show cause why an order should not be made against it. What needs to be included in the application?

Include evidence of the allegations specified in the application.

Allege the grounds on which it is based.

Include a draft order.

Must be filed and served at least 2 business days before the day set for hearing the application, together with all affidavits to be relied on in support of the application.

Question 8

Amendments of mistakes in documents are dealt with by the general power to amend found in:

r 5.

r 275.

r 375.

r 376.

Question 9

In terms of reckoning of time:

If the period is expressed to be a specified number of clear days or at least a specified number of daysexclude the day on which the purpose is to be fulfilled.

If a period beginning on a given day, act or event is provided or allowed for a purpose by an Act, the period is to be calculated by including the day, or the day of the act or event.

If no time is provided or allowed for doing anything, the thing is to be done with 2 calendar days, and as often as the relevant occasion happens.

If the time, or last day of a period, calculated forwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or last day, is taken to fall on the next day later that is not an excluded day.

17.3 Tutorial Problems

Problem 9

Photo by Javier Aguilera from Pexels

Damien was riding his rare gold plated Harley Davidson motorbike along Dodds Street, when he was involved in an accident with a train at a level crossing. The train destroyed the Harley and then derailed causing the loss of thousands of litres of motor fuel and pesticide. Damien sued the train driver for property damage of $810,000. The train driver issued third party notices to:

The State of Queensland seeking damages for his personal injuries resulting from the derailment; and

Ace Pty Ltd, the manufacturer of the level crossing warning bell and Sabre Light Pty Ltd, the manufacturer of the level crossing warning lights and points system. The train driver feels that they were the ones responsible for the accident. Both warning systems failed to activate at the time of the accident. It is also suspected that this is due to a lack of maintenance.

Ace Pty Ltd seeks to cross-claim against Damien, on its own behalf and as representing Sabre Light Pty Ltd claiming damages for defamation. The defamatory imputations were said to arise from an interview Damien gave with Channel 1 news, which was posted on YouTube, while Damien was being cut from the wreckage of his Harley by the Fire Brigade Rescue.

Advise Damien whether he can and should join or serve any further parties and causes of action referring to all relevant UCPR rules and legislation.

Advise the train driver whether their third-party notices are valid.

Advise Ace Pty Ltd of any difficulties with its cross-claim and in representing Sabre Light Pty Ltd.

[Effort 50 min]

Problem 10

Photo by Mike from Pexels

On the 4th of November last year Christopher Chase was involved in a motor vehicle accident in which he suffered personal injuries and property damage to his brand new Porsche. On 20th January this year his solicitors issued and served a statement of claim in respect of the property damage to the Porsche. On 25th March this year, the defendant, Nancy Reardon, delivered her defence. On 4th April this year an amended statement of claim, claiming damages for personal injuries as well as for property damage, was served on Nancy. Advise Nancy as to any steps she should consider in objecting to the amendment. What steps should she take if the amendment is permitted?

[Effort 40 min]

17.4 Debrief

After studying Topic 4 you should be able to:

explain the concepts of res judicata and issue estoppel.

understand the issues governing joinder of parties and claims and how parties can be added, substituted and removed.

identify the special joinder rules associated with certain types of parties.

understand when consolidation is appropriate.

identify the circumstances when a traditional representative proceeding is required.

understand how non-compliance is dealt with by the rules.

understand how to amend mistakes in documents and parties and take advantage of the slip rule.

critique the concept of want of prosecution.

understand how time is reckoned, extended and abridged.

understand the basic requirements for a class action.

17.5 Answers to Review questions

Question 1 (b)

Question 2 (b), (c), (d)

Question 3 (b), (c)

Question 4 (a), (b), (d)

Question 5(a), (b), (c), (d)

Question 6(a)

Question 7(a), (b), (d)

Question 8(c)

Question 9(a), (d)

LAWS13017 # CIVIL PROCEDURE

STUDY GUIDE | WEEK 2

Jurisdiction and Limitation of ActionsVersion 2.08 2024

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CONTENTS

TOC h u z t "Heading 1,1,Heading 2,2,Heading 3,3,Heading 4,4,Heading 5,5,Heading 6,6,"Jurisdiction and Limitation of Actions1

1 Preview1

1.1 Introduction1

1.2 Objectives2

1.3 Prescribed Reading3

1.4 Reference Reading3

1.5 Key Terms3

2 Subject matter jurisdiction4

2.1 Commonwealth Constitution4

2.2 The High Court4

2.3 Supreme Court of Queensland5

2.4 District Court of Queensland8

2.5 Magistrates Court of Queensland10

2.6 Queensland Civil and Administrative Tribunal (QCAT)10

3 Territorial jurisdiction11

3.1 Presence in the jurisdiction11

3.2 Submission to the jurisdiction11

3.3 Statutory extension of territorial jurisdiction12

4 Cross-vesting of jurisdiction12

4.1 Introduction12

4.2 Constitutional invalidity13

4.3 Investment and conferral of jurisdiction13

4.4 Nature of jurisdiction cross-vested15

4.5 Transfer of proceedings16

4.6 Applicable law17

4.7 Special Federal Matters17

4.8 Inferior courts17

4.9 Limitations on appeals18

4.10 Procedure18

5 Limitations of Actions18

5.1 Introduction18

5.2 Federal jurisdiction19

5.3 Equitable remedies19

5.4 The purpose of limitation periods20

6 The running of time20

6.1 Stipulated periods20

6.2 Accrual of a cause of action21

6.3 Discoverability22

6.4 Postponement22

6.5 Disability22

7 The effect of expiration of the limitation period23

8 Extension of the limitation period23

9 Personal injuries actions24

9.1 Introduction24

9.2 Latent injuries and dust related conditions24

9.3 Extensions of time for personal injuries actions24

10 Limitation periods and Choice of Law25

10.1 Forum shopping25

10.2 Substantive or procedural?25

11 Review26

11.1 Concluding Summary26

11.2 Review Questions26

11.3 Tutorial Problems27

11.4 Debrief30

11.5 Answers to Review questions30

Jurisdiction and Limitation of Actions

1 Preview

1.1 Introduction

Before a court proceeding can be instituted or an appeal brought, it is necessary to consider whether the court in which it is proposed to commence the proceeding or launch the appeal has the necessary jurisdiction to determine it. The first part of this topic will deal with two types of jurisdiction.

Subject matter jurisdiction, which refers to the nature of the disputes which may be adjudicated upon by the particular court; and

Territorial jurisdiction, which refers to the person or bodies over whom the court may exercise jurisdiction.

Subject Matter Jurisdiction

Territorial jurisdiction

As we will see later, the jurisdiction of courts' cross-vesting scheme alleviates many of the jurisdictional disputes and difficulties which had previously arisen from the strict jurisdictional limitations which otherwise applied to those courts.

The second part of this topic deals with limitation periods. These are statutory time limits within which an action must be brought or will otherwise become statute barred. The idea is that litigation must be commenced within certain time limits otherwise there is an increasing risk that evidence becomes lost, witnesses memories fade, cannot be located or die, and that parties should not be subject to an endless risk of litigation. Limitation periods may be suspended or postponed to alleviate undue harshness with the rules.

1.2 Objectives

After studying Topic 2 you should be able in relation to:

Jurisdiction

identify the types of jurisdiction.

understand the jurisdiction of Courts in the hierarchy of Queensland courts.

understand the concepts and procedure associated with cross-vesting of jurisdiction.

Limitation of Actions

understand how limitation periods dictate when a plaintiff must commence their action.

critique the purpose of limitation periods.

understand how a cause of action accrues, the events that suspend the running of time, and what results when time has expired.

understand the judicial discretion to extend time.

critique the severe limitations associated with personal injuries.

understand that Workers Compensation legislation may impact on time periods.

1.3 Prescribed Reading

Colbran, Spender, Jackson and Douglas, Civil Procedure Commentary and Materials (LexisNexis, 8th ed, 2022) Ch 4, 6.

1.4 Reference Reading

Cairns, Australian Civil Procedure (Thomson Reuters, 12th ed, 2020) Ch 1.

1.5 Key Terms

The following are key terms used within the text or required reading for Topic 2:

Jurisdiction:

Subject matter jurisdiction Jurisdiction as defined by both legislation and inherent jurisdiction.

Territorial jurisdiction Sometimes known as in personam jurisdiction or presence of the defendant in the jurisdiction.

Limitation of actions:

Accrual of a cause of action When all elements of a cause of action are complete.

Cause of action the set of facts which give rise to an enforceable claim.

Claim the assertion of a right or demand to property or a remedy based on a cause of action, with the grounds set out in pleadings upon which relief is claimed.

Disability A person under 18 years of age or suffering from a mental disability.

Discoverability The date the plaintiff knew or ought to have known about a personal injury.

Equitable remedies Remedies available in Equity as distinct from those available at Common Law.

Latent injuries Injuries the plaintiff is unaware of and has no means of discovering.

Limitation period The time period within which a case must commence or risk being barred by statute.

2 Subject matter jurisdiction

In this section we will be considering the main legislation that defines the jurisdiction of various courts.

2.1 Commonwealth Constitution

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Judicial Power and Courts

71The judicial power of the Commonwealth of Australia Act shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other Federal Courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.

Chapter III of the Commonwealth of Australia Constitution Act (ss 7180) sets out the constitutional framework through which courts are or may be invested with the judicial power of the Commonwealth to enforce its laws.

2.2 The High Court

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The original jurisdiction of the High Court is found in ss 75, 76, 77 of the Constitution and s 38 of the Judiciary Act 1903 (Cth). The latter is an exercise of the power given by s 77 of the Constitution.

The appellate jurisdiction of the High Court is found in s 73 of the Constitution. The High Courts jurisdiction under s 73 to hear and determine appeals from justices exercising the original jurisdiction of the High Court is limited by s 34 of the Judiciary Act 1903 (Cth) so as to require the leave of the High Court to bring an appeal from any interlocutory judgment.

Make sure that you read the jurisdiction of the other Federal Courts in the text Federal Court and the Federal Magistrates Court. The Family Court is not covered by the text.

2.3 Supreme Court of Queensland

www.indesignlive.com 6.1 .2010

General jurisdiction:

Constitution of Queensland Act 2001 (Qld) s 58.

58 Supreme Courts superior jurisdiction

(1) The Supreme Court has all jurisdiction necessary for the administration of justice in Queensland.

(2) Without limiting subsection (1), the court

is the superior court of record in Queensland and the supreme court of general jurisdiction in and for the State; and

has, subject to the Commonwealth Constitution, unlimited jurisdiction at law, in equity and otherwise.

The court generally considers matters involving more than $750,000.

Federal jurisdiction: Judiciary Act 1903 (Cth) s 39.

The Supreme Court also has Federal jurisdiction as provided by s 39 of the Judiciary Act 1903 (Cth). Section 39(2) of the Judiciary Act is the principal provision conferring jurisdiction on state courts. It seeks to achieve its purpose through a two-step process.

Section 39(1) makes the jurisdiction of the High Court exclusive of the jurisdiction of state courts. It therefore divests the state courts of jurisdiction they would otherwise have in all matters referred to in s 75 of the Constitution.

Section 39(2) then invests state courts with federal jurisdiction in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it. Excepted are constitutional and other matters, which are exclusively the jurisdiction of the High Court pursuant to s 38 of the Judiciary Act 1903 (Cth). Section 39(2) presumably picks up all other matters listed in ss 75 and 76 of the Constitution.

Despite the broad terms of s 39 of the Judiciary Act 1903 (Cth), other federal Acts may impose conditions or restrictions on the exercise of federal jurisdiction by state courts, e.g. Patents Act 1990 (Cth) s 154(2) (making exclusive the jurisdiction of the Federal Court to hear and determine appeals against decisions of the Commissioner of Patents).

Inherent jurisdiction

In Topic 1, we saw that the jurisdiction of a Supreme Court includes all those powers that are necessary to enable it to act effectively and to control its own proceedings and to prevent obstruction or abuse of its process. Examples of the exercise of inherent jurisdiction include: making practice directions; awarding costs and making orders for security for costs; and staying or striking out actions or pleadings which are frivolous, vexatious or an abuse of process.

PD No11 of 2023 Consent orders of the Registrar

In limited circumstances UCPR r 666 enables Registrars to hear and determine limited forms of applications relating to costs, transfer of proceedings from the District or Magistrates Courts to the Supreme Court, transfer between registries, directions as to the conduct of proceedings not under judicial case management,extensions of time, security for costs, stays, setting aside default judgments, leave to discontinue a proceeding, mediation orders, filing and serving of expert evidence, some orders under the Corporations Act 2001 (Cth), and security for costs. PD rule 6 sets out the nore complex types of consent orders a judge should hear. The Registrar consent procedure requires a Form 59A Request for Consent Order of Registrar, Form 59 Consent Order and an affidavit if necessary. Not following these procedures and taking matters to a judge instead of a Registrar can result in adverse costs consequences. Hence make sure you are very familiar with what a Registrar and a Judge can do respectively.

2.4 District Court of Queensland

District Court Act 1967 (Qld) s 68.

68 Civil jurisdiction

(1) The District Court has jurisdiction to hear and determine

all personal actions, where the amount, value or damage sought to be recovered does not exceed the monetary limit including the following

(i) any equitable claim or demand for recovery of money or damages, whether liquidated or unliquidated;

(ii) any claim for detention of chattels;

(iii) any claim for rent or mesne profits;

(iv) any claim for any debt, damages or compensation arising under any Act; and

the following actions and matters

(i) for enforcing by delivery of possession any mortgage, encumbrance, charge or lien, where the amount owing in respect thereof does not exceed the monetary limit;

(ii) for relief against fraud or mistake, where the damage sustained or the estate or fund in respect of which relief is sought does not exceed in amount or value the monetary limit;

(iii) for specific performance of an agreement for the sale or other disposition of land or an interest in land or of any other property, where the value of the land or interest or property does not exceed the monetary limit, or in lieu of or in addition to specific performance, damages not exceeding the monetary limit;

(iv) for rectifying, delivering up or cancelling any agreement, where the amount in dispute or the value of the property affected does not exceed the monetary limit;

(v) for a declaration of partnership or dissolution or winding up of, or otherwise relating to, any partnership, where the property of the partnership does not exceed in amount or value the monetary limit;

(vi) for the sale or partition or division of property pursuant to the Property Law Act 1974, section 38 or 41, where the property does not exceed in amount or value the monetary limit;

(vii) for the administration of the estate of a deceased person, where the estate does not exceed in amount or value the monetary limit;

(viii) for the execution of a trust or a declaration that a trust subsists, where the estate or fund subject or alleged to be subject to the trust does not exceed in amount or value the monetary limit;

(ix) relating to the custody, maintenance or advancement of an infant including the appointment of a guardian to the property or person of an infant but not so as to authorise any order under this provision affecting assets or property of an infant exceeding in amount or value the monetary limit;

(x) for family provision pursuant to the Succession Act 1981, sections 40 to 43, but so that any provision resulting from an order made by the court shall not exceed in amount or value the monetary limit;

(xi) to recover possession of any land, where the value of the land does not exceed the monetary limit;

(xii) to restrain, whether by injunction or otherwise, any actual, threatened or apprehended trespass or nuisance to land, where the value of that land does not exceed the monetary limit, or, in lieu of or in addition to such an injunction, damages not exceeding the monetary limit;

(xiii) for the determination of any question of construction arising under a deed, will or other written instrument, and for a declaration of the rights of the persons interested where the sum or the property in respect of which the declaration is sought does not exceed in amount or value the monetary limit;

(xiv) for the appointment under the Public Trustee Act 1978, section 104 of the public trustee as administrator of any unclaimed property, where the gross value of the property does not exceed in amount or value the monetary limit.

(2) In this section

monetary limit means $750000.

(3) For the purpose of determining whether or not the District Court has jurisdiction under this part

in the case of proceedings falling within subsection (1)(a)(ii)the amount claimed for detention of goods is the amount claimed for the value of the goods together with the amount (if any) claimed for damages for the detention of the goods; and

the value of land shall be the most recent valuation, current at the time of instituting the proceedings, made by the Valuer-General under the Land Valuation Act 2010, or, if there is no such valuation in respect of the land, the current market value at that time of the land exclusive of improvements thereto; and

in any case where it is necessary to determine whether the monetary limit is exceededno account shall be taken of any amount awarded or liable to be awarded in the action by way of interest on any amount.

(4) Where any question arises as to the amount or value for the purpose of jurisdiction under this part the decision of the District Court shall be conclusive as to that matter.

The court has jurisdiction for matters between $100,000 and $750,000.

2.5 Magistrates Court of Queensland

General jurisdiction: Magistrates Courts Act 1921 (Qld) s 4.

4 Jurisdiction of Magistrates Courts

Subject to this Act

every personal action in which the amount claimed is not more than the prescribed limit, whether on a balance of account or after an admitted set off or otherwise; and

every action brought to recover a sum of not more than the prescribed limit, which is the whole or part of the unliquidated balance of a partnership account, or the amount or part of the amount of the distributive share under an intestacy or of a legacy under a will; and

every action in which a person has an equitable claim or demand against another person in respect of which the only relief sought is the recovery of a sum of money or of damages, whether liquidated or unliquidated, and the amount claimed is not more than the prescribed limit;

may be commenced in a Magistrates Court, and all Magistrates Courts shall within their respective districts have power and authority to hear and determine in a summary way all such actions.

2 Definitions

In this Act

prescribed limit means $150,000.

2.6 Queensland Civil and Administrative Tribunal (QCAT)

General jurisdiction: Queensland Civil and Administrative Tribunal Act 2009 (Qld) Ch 2. The Tribunal has both Original, Review and Appeal jurisdiction.. The Tribunal is a court of record: s164.

Original jurisdiction includes hearing and deciding a minor civil dispute (s 11) generally less than $25,000.

Review jurisdiction under enabling Acts to review a decision made or taken to have been made by another entity under that Act (s 17).

Appellate jurisdiction conferred by s 142 (s 26) being appeals from non-judicial members.

3 Territorial jurisdiction

It is not necessarily sufficient that a court has subject matter jurisdiction. It is also necessary that the court have jurisdiction over the defendant. This is generally referred to as territorial or in personam jurisdiction.

For instance, a resident and citizen of Uganda cannot choose to sue another Ugandan resident in the Supreme Court of Queensland for a debt arising in Uganda, because ordinarily such an action would clearly fall outside the territorial jurisdiction of the Supreme Court of Queensland. On the other hand, if the potential Ugandan defendant is in Queensland, has submitted to the Queensland courts jurisdiction, or for some other reason can validly be served with the initiating proceeding, then the Queensland court will have territorial jurisdiction.

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3.1 Presence in the jurisdiction

The principal basis for jurisdiction over an action in personam is the presence of a defendant in the jurisdiction. Read Laurie v Carroll (1958) 98 CLR 310 [extracted 4.2.3C], in which the High Court considered the rationale for this jurisdiction and expounded a number of principles in relation to it.

3.2 Submission to the jurisdiction

A court will also gain jurisdiction where a defendant, though not present in the jurisdiction, voluntarily submits to the jurisdiction. A party will be taken to have submitted to the jurisdiction of the court in circumstances where its conduct is inconsistent with the maintenance of an objection to the courts jurisdiction. For example, in respect of an action on a contract, the parties may submit to the jurisdiction by an express agreement in the contract that disputes be referred to a particular court.

3.3 Statutory extension of territorial jurisdiction

As well as having jurisdiction over a defendant present in the jurisdiction or who submits to the jurisdiction, the court may have in personam jurisdiction over a defendant outside the jurisdiction who is validly served with the proceeding.

It is necessary to draw a distinction between service outside a State or Territory but within Australia, on the one hand, and service outside Australia on the other. Queensland Supreme Court service outside Queensland, but within Australia is now governed exclusively by the Service and Execution of Process Act 1992 (Cth), which in effect gives the courts of the States and Territories Australia-wide in personam jurisdiction. The Federal Court, the High Court, and all State and Territory Supreme Courts have rules, which allow an initiating process to be served on a defendant outside Australia. As will be seen later in this unit, these rules generally require some nexus between the case or the defendant and the forum being Queensland, before the court will have jurisdiction.

See UCPR Ch 4 Pt 7.

4 Cross-vesting of jurisdiction

4.1 Introduction

Until the commencement of the Jurisdiction of Courts Cross-vesting Acts in 1987 there was also a clear division of territorial jurisdiction between the States. The frequent consequence of this was that litigation, which had components belonging to the jurisdiction of different courts, had to take place in more than one court.

Several hearings could be necessary, and time would often be spent arguing jurisdictional issues. This produced inefficiencies, uncertainties, unnecessary expense and delay. To avoid more broadly the inconvenience and expense associated with exclusive State and federal jurisdictions the cross-vesting scheme was created.

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The scheme has two basic components:

The investment or conferral, as the case requires, of the original and appellate jurisdiction of each of the participating courts in or on each of the other participating courts (although with some exclusions). The participating courts are the Federal Court, the Family Court, the Supreme Courts of each of the States and Territories and the Family Court of Western Australia. The scheme does not apply to the High Court: Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 3(1). The scheme does not include magistrates courts and district and county courts, although certain matters can be remitted to those courts.

A mechanism for the transfer of proceedings to the court best suited to deal with the matter.

4.2 Constitutional invalidity

In Re Wakim; Ex parte McNally (1999) 198 CLR 511 [extracted 4.1.20C] the High Court held that those provisions of the cross-vesting scheme which purported to confer state jurisdiction on federal courts were invalid those parts of the scheme were subsequently omitted by amending legislation.

Catalogue no: 0133 Source/Credit line: Commonwealth of Australia Constitution Act, 1900: Original Public Record Copy (1900). Courtesy of the Parliament House Art Collection, Art Services Parliament House.

4.3 Investment and conferral of jurisdiction

Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld) ss 3(1), 3A, 4.

State Acts

Section 3(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld) and its equivalents in each State, define a State matter as any matter that would fall within the ordinary jurisdiction of a State court regardless of the cross-vesting scheme.

Section 3A of each State Act provides that the Act does not apply to the jurisdiction of courts to which Division 1 of Part 9.6A of the Corporations Act 2001 (Cth) applies. That division deals with jurisdiction of the Federal Court, and of State and Territory Courts with respect to civil matters arising under the Corporations legislation. Such matters should go to the Federal Court where they traverse State borders.

The jurisdiction, which is vested by s 4 is both original and appellate. Only civil jurisdiction is covered; jurisdiction with respect to criminal matters is expressly excluded.

Commonwealth Act

The equivalent Commonwealth Act is the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). Its sections are equivalent to the State acts with necessary modifications due to the different position of the Commonwealth.

Section 3 of the Commonwealth Act defines state as including the Australian Capital Territory and the Northern Territory, and it excludes both Territories from the definition of territory.

Section 4 of the Commonwealth Act therefore vests in, or confers on State and Territory Supreme Courts, federal jurisdiction where the State or Territory courts would not otherwise have jurisdiction and also confers the jurisdiction of the external Territory Supreme Courts on federal, family and State Supreme Courts and the Supreme Courts of the Australian Capital Territory and the Northern Territory (where these courts would not otherwise have jurisdiction).

Sections 4 of the State, Territory and Commonwealth legislation, while granting jurisdiction, is not sufficient in itself to allow the court to which jurisdiction is granted to exercise that jurisdiction.

Section 9 of the cross-vesting legislation applicable for the court to which the jurisdiction is conferred resolves that problem by authorising the exercise of the additional jurisdiction so conferred.

4.4 Nature of jurisdiction cross-vested

There is no doubt that the cross-vesting scheme has the effect of vesting the subject matter jurisdiction of a particular court in the scheme in any of the other courts (with significant exceptions to be discussed), but there is some doubt as to whether it extends, in effect, to the territorial jurisdiction. The issue is discussed in the textbook.

4.5 Transfer of proceedings

To ensure that the scheme does not foster forum shopping (commencing proceedings in a jurisdiction perceived to have the best chance of success or other benefit) and that, so far as possible the jurisdictional balance between the various courts is maintained, the scheme contains provision for the transfer of proceedings in certain cases to a more appropriate court. The key provision for the transfer of proceedings is s 5 of each of the Jurisdiction of Court (Cross-vesting) Acts, which requires transfer of a pending proceeding (where specified conditions are met) between the various superior courts.

Proceedings can only be transferred between courts if both the transferring court and the court to which it is sought to transfer the proceedings have jurisdiction: Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld) s 5.

It has been held on numerous occasions that despite the decision in Re Wakim the venue transfer provisions in s 5(4) of the Commonwealth Act remain operable so that proceedings pending in the Federal Court falling within that courts jurisdiction may be transferred to the Supreme Court of a State.

The legislation provides for two quite distinct circumstances:

The first is where related proceedings have been commenced in different courts participating in the cross-vesting scheme. It is not essential that the related proceeding be between the same parties; there need only be some degree of causality between them (Re Hamilton-Irvine (1990) 94 ALR 428 at 4323 per Beaumont J), or a substantial common question arising in both proceedings: Skaventzon v Tirimon (1993) 61 SASR 103. Provided the other court has jurisdiction, in general terms the effect of the legislation in such a case is that the court should transfer the proceeding brought before it to the other court if it is more appropriate for that other court to hear the case or if it is otherwise in the interests of justice that the proceeding be transferred to that other court.

The second case specifically provided for does not require any related proceeding, and reflects the intention of the cross-vesting legislation (as reflected in the preamble) that courts should in most situations continue to hear and determine only those proceedings which would otherwise fall within their ordinary fields of jurisdiction.

Again the proceeding must be transferred to another participating court if it is more appropriate that the other court deal with the case, but here the court is specifically directed when making that determination to have regard to three criteria (to be considered cumulatively), namely:

whether, apart from the cross-vesting scheme and any accrued jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the court in question; and

the extent to which the case involved an issue of the application, interpretation or validity of a law of the receiving court, and the court would not, apart from the cross-vesting legislation, have had jurisdiction over that issue; and

the interests of justice.

The High Court confirmed the approach in Bankinvest in: BHP Billiton Limited v Schultz [2004] HCA 61. That case also provides an illustration of the factors, which might be weighed by the court in considering which is the more appropriate court having regard to the interests of justice. Make sure that you read this case, extracted in your text.

4.6 Applicable law

The basic rule is that the law in force in the State or Territory in which the court is sitting (including choice of law rules) is to be applied: Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld) s 11(1)(a), ss 6(1), (2), (3).

4.7 Special Federal Matters

Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld) ss 6(1), (2), (3).

Special provisions govern the transfer of proceedings that involve special federal matters. The definition of Special federal matters are defined in s 3(1) of the Jurisdiction of Courts Act 1987 (Cth) to mean any of the matters in respect of which the Supreme Court of a State or Territory would not, apart from the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), have jurisdiction: for example matters arising under Competition and Consumer Act 2010 (Cth) Sch 2. There is a complete list in your text.

Where any of these matters arise in a proceeding pending in a State or Territory Supreme Court, the effect of s 6(1), (2) and (3) of each of the Commonwealth and State Acts is that the proceeding must be transferred to the Federal Court as appropriate in the circumstances) unless the State or Territory Supreme Court otherwise orders that the proceeding be determined by that Supreme Court. The Supreme Court may only make such an order if on the basis that it is satisfied that there are special reasons for doing so in the particular circumstances of the proceeding, other than reasons relevant to the convenience of the parties.

4.8 Inferior courts

Inferior courts do not have any cross-vested jurisdiction, but they are included in the scheme in a limited way. First, Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld) s 8 and each of the State and Territory Act equivalents provides for the Supreme Court, on the application of a party to the proceeding or of its own motion, to remove proceedings pending in a court (other than the Supreme Court of the State or Territory) or a tribunal (established by or under an Act) up into the Supreme Court for the purpose of considering transferring them to another court in accordance with the cross-vesting scheme. Section 8 of the Commonwealth Act provides for removal of proceedings from a lower court or tribunal in an external territory into the Supreme Court of the territory for the purpose of considering whether the proceeding should be transferred.

Second, s 10 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) permits the Federal Court, the Family Court or the Supreme Court of a state or territory, on the application of a party to the proceeding or of its own motion to transfer to an inferior State court a proceeding otherwise within that inferior courts jurisdictional limits, if the proceeding involves a matter arising under the Australian Consumer Law (Part 2-2, 3-1, 3-3, 3-4 of Schedule 2 of the Competition and Consumer Act 2010 (Cth)) and is not an appeal or a special federal matter. Section 10 of the State Acts are in similar terms, although it applies to matters pending in State or Territory Supreme Courts, and extends only to matters arising under the Competition and Consumer Act 2010 (Cth) Sch 2.

In addition to the provisions of s 10, the Competition and Consumer Act 2010 (Cth) s 138 itself vests jurisdiction to the Federal Court in relation to civil proceedings instituted under the Australian Consumer Law. In relation to State courts see Competition and Consumer Act 2010 (Cth) s 138B.

4.9 Limitations on appeals

Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld) ss 13 in each of the cross-vesting Acts provides that no appeal lies from a decision of a court in relation to the transfer or removal of a proceeding pursuant to the cross-vesting legislation, and further that there is no right of appeal in relation to the rules of evidence and procedure which are to be applied pursuant to s 11(1). See Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) ss 13, 11(1).

4.10 Procedure

Each of the courts in the cross-vesting scheme have their own rules providing for the procedural and mechanical means of implementing the scheme. These rules vary significantly. Consider: Uniform Civil Procedure Rules 1999 (Qld) rr 55 59.

5 Limitations of Actions

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5.1 Introduction

For most types of legal action there are time periods known as limitation periods within which cases must be commenced. Statutes of Limitation are in force in every Australian jurisdiction: Limitation of Actions Act 1974 (Qld).

Failure to commence proceedings within this limitation period will bar the action, subject to possible suspension or extension of the limitation period, or the other side failing to take the issue. The existence of the Statutes of Limitation is based on the policy that Stale claims should not be brought. This policy is justified in two major respects:

Injustice: it would be an injustice to defendants to have proceedings hanging over their heads for too long since people should be able to arrange their affairs on the basis that claims cannot be made against them after a certain time. The attainment of justice would be precarious where witnesses memories have faded, died or documentary material is no longer available.

Efficiency: litigants should be encouraged to bring their actions within a reasonable period since there is a public interest in having claims settled as quickly as possible.

Most actions stipulated in the Acts are common law actions as equity developed its own limitation principles.

Time limits vary according to the type of action and operate primarily to protect the public interest that there be an end to the threat of litigation and that a defendant should not be asked to meet a case after which evidence has been lost or destroyed.

5.2 Federal jurisdiction

The Limitation Acts of the Australian States and Territories are not ordinarily applicable to courts exercising federal jurisdiction, for example, the High Court or Federal Court, or where a State court exercises federal jurisdiction, for example, pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). See also Judiciary Act 1903 (Cth) s 79.

5.3 Equitable remedies

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The limitation statutes do not generally apply to claims for equitable relief. For example, injunction, specific performance, compensation, indemnity and account of profits. The limitation statutes state that the legislation does not apply to the exercise of the equitable jurisdiction to refuse relief on the ground of acquiescence or otherwise. Limitation of Actions Act 1974 (Qld) s 10(6)(b), s 43.

The time for commencement of an equitable cause of action is determined by the doctrine of laches. Laches was described in Partridge v Partridge [1894] 1 Ch 351 at 360 as an Old French word for slackness or negligence or not doing. The court may, in its discretion, refuse to grant equitable relief where the plaintiffs delay makes it unjust for the court to award equitable relief: see Orr v Ford (1989) 84 ALR 146. You will study Equity later in your Law degree.

It is possible to apply statutory limitation periods to equitable claims by analogy.

5.4 The purpose of limitation periods

The purpose and effect of Statutes of Limitation is to protect defendants. The Courts have expressed frequently three reasons for supporting the existence of Statutes of Limitation, namely:

That plaintiffs with good causes of actions should pursue them with reasonable diligence;

That a defendant might have lost evidence to disprove a stale claim; and

That long dormant claims have more of cruelty than justice in them (Halsburys Laws of England (4th edition) Volume 28, at 266).

A good summary of these reasons is provided in your textbook.

6 The running of time

The limitation period commences to run upon accrual of a cause of action and the obligation to bring a claim within time will be satisfied by the plaintiff commencing proceedings within the statutory time frame. If proceedings are not commenced within the limitation period, the time for bringing an action will expire, rendering the cause of action unenforceable. However, the plaintiff may seek an extension of time within which to bring the action. Certain occurrences also have the effect of suspending the operation of the limitation period, such as disability (e.g. being a minor).

The running of the limitation period is stopped by the commencement of proceedings. Commencement occurs when the originating process is issued by the plaintiff; that is, when it is accepted in the court registry.

6.1 Stipulated periods

Your text includes a detailed table showing you the limitation periods in years for nominated causes of action. The most important are breach of contract, tort and judgment.

Limitation of Actions Act 1974 (Qld) ss 10(1)(a), 27(2) 10(3), 13, 10(4), 10AA.

The Limitation of Actions Act 1974 (Qld) (LAA) prescribes that the following actions shall not be brought after the expiration of the stated period from the date on which the cause of action arose:

Contract6 years (s 10)

The cause of action accrues upon breach not damage. With respect to a debt, the time runs from the date of the loan, provided that the contract does not specify another date or require a demand [O'Gilvie v Adams [1981] VR 1041, Young v Queensland Trustees Limited [1956] 99 CLR 560].

Even if the limitation period on a debt has expired, if the debt is acknowledged in accounts after expiration, the claim for debts can accrue afresh: See Manicaros v Commercial Images (Aust) Pty Ltd (in liq) [2024] QCA 40 (22 March 2024) (Flanagan JA; Buss AJA; Kelly J).

Tort6 years (s 10)

The cause of action accrues when the damage is sustained.

The above rules apply, except for the following specific actions:

Actions for personal injury3 years(s 11)

Action on a judgment12 years(s 10)

(runs from the date the judgment becomes enforceable)

Deed or Specialty12 years(s 10(3))

Series of wrongful conversions /detention of a chatter6 years(s 12)

(runs from the date of the 1st conversion)

Recovery of land12 years(s 13)

(runs from the date the right of action accrued to the plaintiff)

Defamation1 year(s 10AA)

Action v Deceased12 years(s 28)

Beneficiary v Trustee to recover6 years(s 27(2))

Property or breach of trustUnlimited(s 27(1))

Breach of Trust involving FraudUnlimited(s 27(1))

Expiry of time generally acts as a bar to relief if raised by a defendant in court proceedings and does not affect the cause of action, except in circumstances such as in s 24, which provides that a persons title in land is extinguished where an action for recovery is not brought within the limitation period.

LAA s 7 is a saving provision recognising that statutory time limits occur in other legislation.

Limitation periods also arise in other legislation, for example s 335 of the Legal Profession Act 2007 (Qld) which imposes a 12 month limitation period for recovery of legal debts, subject to an application for extension - see Stevens v HopgoodGanim Lawyers (A Firm) [2024] QCA 18.

6.2 Accrual of a cause of action

The general rule is that the limitation period commences to run when the plaintiffs cause of action accrues or is complete. The Limitation Acts generally stipulate that an action must be brought within a stated number of years from the date on which the plaintiffs right or cause of action accrues.

A cause of action accrues when the necessary facts have occurred, and there is in existence a competent plaintiff who can sue and a competent defendant who can be sued: Thomson v Lord Clanmorris [1900] 1 Ch 718 at 7289 per Vaughan Williams LJ. The requirements of a cause of action vary according to the type of case and are determined by the substantive law. For specific applications in contract the cause of action is said to arise from the breach, whereas in the tort of negligence, damage is necessary to perfect the cause of action. Therefore, generally speaking, in contract the limitation period will run from the breach whereas in negligence, damage must be suffered before the limitation period commences: see Price, Higgins & Fidge v Drysdale [1996] 1 VR 346.

6.3 Discoverability

The concept of discoverability is now commonly adopted by legislatures in formulating limitation periods, particularly for personal injury actions.

Caven v Womens and Childrens Health (2007) 15 VR 447, 453, 464 [extracted 6.3.15C].

6.4 Postponement

The limitation periods stipulated by the Limitation Acts may be suspended or postponed in particular circumstances. Postponement or suspension of the limitation period may arise where there has been:

Fraud, deceit, concealment or mistake.

An acknowledgment or part-payment by the defendant.

Where the plaintiff is under a disability.

See Limitation of Actions Act 1974 (Qld) ss 35-38.

6.5 Disability

The plaintiff is under a disability if he or she is under 18 years of age or suffering from a mental disability. Limitation of Actions Act 1974 (Qld) ss 5(2), 29.

Special provisions exist in relation to child sexual abuse, see Limitation of Actions Act 1974 (Qld) ss 11A, 48.

Where the disability prevents the limitation period from starting to run, its effect is to give the plaintiff the full limitation period after the disability ceases in which to bring an action.

Kirby v Leather [1965] 2 QB 367, 382 [extracted 6.3.23C].

7 The effect of expiration of the limitation period

Where the limitation period has expired the general rule is that the right remains in existence, but may no longer be enforced. In other words, the remedy is statute barred, but not the right. Despite the general rule, the right may still be enforced in court where the defendant waives their right to plead the Statute of Limitation, for example where they take a step in the action.

Limitation of Actions Act 1974 (Qld) ss 24, 12(2).

Commonwealth of Australia v Mewett (1997) 191 CLR 471, 146 ALR 299, 315, 337 [extracted 6.4.7C].

8 Extension of the limitation period

The limitation statute of each Australian jurisdiction contains provisions, which allow the potential plaintiff to seek an extension of time to bring proceedings where the limitation period has expired. The majority of applications for extension made under the Limitation Acts are actions for damages for personal injury.

15958361

The extension provisions in the limitation statutes apply where no proceedings have been commenced within the limitation period so that a persons claim is statute-barred. Where proceedings have been commenced, several applications may be made under the relevant rules:

The plaintiff may seek to amend the originating process to insert a fresh cause of action against the defendant, which is now statute-barred.

Where the plaintiff has proceeded against a defendant (D1) he or she may seek to add or substitute another defendant (D2), where the claims against D2 are statute-barred.

Where the plaintiff has issued an originating process which he or she has failed to serve during its currency and the claim against the defendant is now statute-barred, the court may exercise its discretion for or against renewal of the originating process.

Limitation of Actions Act 1974 (Qld) s 31.

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 139 ALR 1, 7 [extracted 6.5.4C].

9 Personal injuries actions

116060619

9.1 Introduction

Personal injury is defined in the Limitation Acts of all jurisdictions to include any disease and any impairment of a persons physical or mental condition: s 11(1). A personal injury victim who can establish a cause of action at law is entitled to claim damages except to the extent that that right has been modified or abolished by statute. In Australia, these rights have been significantly modified by statute. Special limitation periods apply to personal injuries. See the table in your text. See Limitation of Actions Act 1974 (Qld) ss 5(1), 11. The general rule is that actions in negligence, trespass, nuisance or for breach of duty (whether in contract, under statute or otherwise) where damages claimed consist of or include damages for personal injury have a limitation period of 3 years s 11.

9.2 Latent injuries and dust related conditions

Significant difficulties arise where the plaintiff suffers an injury and the limitation period begins to run, but the plaintiff has no means of discovering the damage until the expiry of the relevant period. This is the issue of latent injury. Rights of action in relation to personal injury resulting from a dust-related condition is not subject to a limitation period LAA s 11; Civil Liability Act 2003 (Qld) Sch 2 defines a dust-related condition.

9.3 Extensions of time for personal injuries actions

The limitation period stipulated for each cause of action may be extended in appropriate circumstances; however, these circumstances vary remarkably from jurisdiction to jurisdiction. Limitation of Actions Act 1974 (Qld) ss 30, 31.

Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, 256 [extracted 6.7.13C].

Under s 31 there must be a material fact of a decisive nature relating to the right of action not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the limitation period and there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation. If this is established the period of limitation can be extended one year after that date.

Section 30 defines what is a material fact of a decisive nature.

For a recent example of where these issues were considered see Star Aged Living Limited v Lee [2024] QCA 1 (25 January 2024) (Bowskill CJ; Bond and Flanagan JJA).

Notice of claims for personal injury

In every Australian jurisdiction there is in force a no-fault workers compensation scheme that provides compensation in respect of injury or death attributable to employment. Each jurisdiction places limitations upon the time within which notice of the injury must be submitted. Personal Injuries Proceedings Act 2002 (Qld).

10 Limitation periods and Choice of Law

10.1 Forum shopping

Some States and Territories have longer limitation periods than others. Plaintiffs seek to commence their action in a jurisdiction in which their claim is not statute-barred - a form of forum shopping. This raises choice of law issues because the question of whether a court has jurisdiction to hear a case brought by a particular plaintiff is decided by reference to the principles of choice of law.

10.2 Substantive or procedural?

Traditionally, under the general law, limitation provisions were regarded as procedural and therefore the forum court would apply its own limitation provisions, for example, the limitation provisions of the State or Territory where the court was physically located. In a series of tort cases (McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1), the High Court held that the law of the forum (i.e. NSW) was to apply where the tort occurred in another jurisdiction.

The decision of the majority in McKain was reversed by the Choice of Law (Limitation Periods) Act 1993 (NSW). Limitation Act 1974 (Tas) ss 32A32D requires courts to regard a limitation law (defined as one which prescribes a time limit for the commencement of proceedings) of another state or territory or of New Zealand, as part of the substantive law of that place if the substantive law of [that place] is to govern a claim before a court of [the State or Territory concerned]. The same position now exists at common law due to the High Court decision in John Pfeiffer Pty Ltd v Rogerson (2000) 172 ALR 625 [extracted 6.9.6C]. The Limitation laws of the other jurisdiction will apply. See Choice of Law (Limitation Periods) Act 1996 (Qld). This effectively reduces forum shopping.

11 Review

11.1 Concluding Summary

In Topic 2 we have examined the concept of jurisdiction, discovering that there is subject matter jurisdiction, territorial jurisdiction and inherent jurisdiction. In the past the first two types of jurisdiction resulted in jurisdictional disputes which were largely solved by the jurisdiction of courts' cross-vesting scheme. Topic 2 also examined limitation periods periods within which cases must be commenced. Failure to commence proceedings within this limitation period will bar the action, subject to possible suspension or extension of the limitation period, or the other side failing to take the issue. The existence of the Statutes of Limitation is based on the policy that stale claims should not be brought.

11.2 Review Questions

Question 1

What are the two main types of jurisdiction in terms of considering initiating a proceeding?

Inherent jurisdiction.

Subject matter jurisdiction.

Cross-vested jurisdiction.

Territorial jurisdiction.

Question 2

Territorial jurisdiction refers to:

the nature of the disputes, which may be adjudicated upon by the particular court.

the jurisdiction a court has to manage its own processes.

jurisdiction granted by statute.

the person or bodies over whom the court may exercise jurisdiction.

Question 3

Which of the following are true concerning the Supreme Court of Queensland?

It is a court of general jurisdiction.

It is a superior court of record.

Its jurisdiction is found in Constitution of Queensland Act 2001 (Qld) s 59.

It has, subject to the Commonwealth Constitution, unlimited jurisdiction at law, in equity and otherwise.

Question 4

In a civil case alleging fraud in the sum of $140,000, which of the following Courts have jurisdiction?

Magistrates Court.

District Court.

Supreme Court.

High Court.

Question 5

In a civil case involving an equitable claim in the sum of $750,000, which of the following Courts have jurisdiction and would likely hear the matter at first instance?

Magistrates Court.

District Court.

Supreme Court.

High Court.

Question 6

Which of the following are considerations taken into account to transfer proceedings from one court to another with a case pending under the Cross-vesting scheme?

The proceeding arises out of or is related to another proceeding in the receiving court.

It is otherwise in the interests of justice that the proceeding be determined in the receiving court.

It is more appropriate that the proceeding be determined by the receiving court.

Whether, apart from the cross-vesting scheme, the proceeding is incapable of institution in the sending court.

Question 7

The limitation period for a tort not involving personal injury is:

3 years.

6 years.

12 years.

There is no limitation.

Question 8

The limitation period for a contract is:

3 years.

6 years.

12 years.

There is no limitation.

Question 9

The limitation period for a dispute between a beneficiary and trustee to recover property tort is:

3 years.

6 years.

12 years.

unlimited.

11.3 Tutorial Problems

Problem 4

Ali Barber is a former refugee from Iran, who arrived on Christmas Island by boat in 2014. His family remained in Iran. After staying in detention on Nauru for two years, he was able to take up residency in Australia. Ali moved to Perth and found work as a Persian rug salesman at Aladdins Rug Emporium.

Image by Semevent from Pixabay

On 8th November 2016, four months before his eighteenth birthday, he incorrectly picked up a Fakeari Rug (weighing 100kg) and sustained a back injury. After two days at home Aladdin sacked Ali. Ali, angry with Aladdin, went to see a solicitor. While the issues of wrongful dismissal, workers compensation and negligence (failure to provide a safe system of work) were discussed, the solicitor did not follow up with Ali as to whether he wanted to proceed.

Twelve months pass with Ali in constant pain. He sought advice from various doctors, but none could alleviate the crippling pain. In the end Ali decided to see a naturopath and herbalist.

Ali, totally depressed, comes to see you on 1st December 2019, and says that he rang his former solicitor the previous day, but that no action had been issued on his behalf. He saw another doctor earlier that week who told him he needed an urgent operation to prevent further paralysis and degeneration of his spine caused by the injury in 2016.

Advise Ali as to his position under Queensland law as of 1st December, 2019.

[Effort 40 min]

Problem 5

Image by Monika Neumann from Pixabay

Elizabeth resides in Bulimba, Brisbane. She is the owner of a long-haul trucking business that operates on the eastern seaboard of Australian. When one of her drivers called in sick, Elizabeth decides to drive the 16-wheel truck along the New England highway towards Sydney. On Cunninghams Gap, just outside Warwick, Elizabeth hits a section of black ice and slides the rig into the path of Harry. Harry lives in Sydney. At the time of the accident Elizabeth was not wearing her glasses, which is a condition on her drivers license.

A council worker witnessed the accident, as did two other motorists driving a campervan from Tasmania. The police breath tested both Elizabeth and Harry. Elizabeth recorded a zero reading, but Harry was over the limit. The campervan driver will testify that Harry was weaving all over the road just prior to the accident.

Harry has commenced proceedings in the Supreme Court of New South Wales against Elizabeth claiming damages for personal injuries in the amount of $200,000, plus property damage to his car, which was written off, in the sum of $70,000. Elizabeth, in her defence, alleges that Harry was completely responsible for the accident. Advise Harry whether:

any of the following courts have jurisdiction to hear the matter and if so, why?

(i) Supreme Court of Queensland

(ii) Supreme Court of Tasmania

(iii) Federal Court of Australia

Elizabeth can have the action transferred to the Supreme Court of Queensland and how?

Elizabeth can appeal if Harry commences his proceeding in the Supreme Court of Queensland, but then changes his mind and succeeds in having the matter transferred to New South Wales?

[Effort 40 min]

11.4 Debrief

After studying Topic 2 you should be able in relation to:

Jurisdiction

identify the types of jurisdiction.

understand the jurisdiction of the High Court and the Queensland Supreme Court.

understand the concepts and procedure associated with cross-vesting of jurisdiction.

Limitation of Actions

understand how limitation periods dictate when a plaintiff must commence their action.

critique the purpose of limitation periods.

understand how a cause of action accrues, the events that suspend the running of time, and what results when time has expired.

understand the judicial discretion to extend time.

critique the severe limitations associated with personal injuries.

understand that Workers Compensation legislation may impact on time periods.

11.5 Answers to Review questions

Question 1 (b), (d)

Question 2(d)

Question 3(a), (b), (d)

Question 4(a), (b)

Question 5(b)

Question 6(a) (c)

Question 7(b)

Question 8(b)

Question 9(d)

LAWS13017 # CIVIL PROCEDURE

STUDY GUIDE | WEEK 3

Instituting proceedings, Service and Notice ofIntention to DefendVersion 2.08 2024

-347618810625-13525492819400

CONTENTS

TOC h u z t "Heading 1,1,Heading 2,2,Heading 3,3,Heading 4,4,Heading 5,5,Heading 6,6,"Instituting proceedings, Service and Notice of Intention to Defend1

1 Preview1

1.1 Introduction1

1.2 Objectives1

1.3 Prescribed Reading1

1.4 Reference Reading2

1.5 Key Terms2

2 Client care3

2.1 Introduction3

2.2 Cost disclosures3

3 Letters of demand5

4 Commencing proceedings5

4.1 Terminology5

4.2 Starting in error7

4.3 Rules about originating process8

4.4 Claims8

4.5 Applications11

4.6 Applications in a proceeding13

4.7 Where to start a proceeding?15

4.8 Pre-action protocols16

4.9 Ethical considerations16

4.10 Filing18

5 Disputes predominantly involving factual issues18

6 Disputes predominantly involving legal issues18

7 Duration of originating process18

8 Preview Service19

8.1 Introduction19

8.2 Objectives19

8.3 Required reading19

8.4 Key terms19

9 Personal Service20

9.1 Foundation of jurisdiction20

9.2 Manner of service20

9.3 Exceptions to personal service21

9.4 Consensual and presumed service22

9.5 Solicitors undertaking to accept service22

9.6 Time requirements23

10 Ordinary Service23

10.1 Introduction23

10.2 Address for service24

10.3 Types of ordinary service24

11 Special Parties25

11.1 Introduction25

11.2 Corporations25

11.3 Partnerships, business names etc26

11.4 Infants29

11.5 Third party notices29

11.6 Crown and Judicial officers30

11.7 Prisoners30

12 Proof of service31

12.1 Introduction31

13 Substituted Service31

13.1 Introduction31

13.2 Practical impossibility of actual service32

13.3 Methods of substituted service32

13.4 Jurisdictional limitations33

14 Service out of the jurisdiction33

14.1 Service out of the jurisdiction but within Australia33

14.2 Service outside Australia34

15 Judgments and orders38

15.1 Judgments and orders38

15.2 Setting aside service irregularities38

16 Preview - Notice of Intention to Defend38

16.1 Introduction38

16.2 Objectives39

16.3 Required reading39

16.4 Key terms39

17 Why enter a Notice of Intention to Defend?39

18 Who may enter a Notice of Intention to Defend?39

19 Nature of Notices of Intention to Defend40

19.1 Types of appearances40

19.2 Procedure for entry of an appearance40

19.3 Time limited for appearance41

19.4 Unconditional Notice of Intention to Defend42

19.5 Conditional Notice of Intention to Defend42

19.6 Appearance under protest43

19.7 Appearance gratis43

20 Failure to enter a Notice of Intention to Defend43

20.1 Waiver43

20.2 Default judgment44

21 Amendment, withdrawal and removal44

22 Review45

22.1 Concluding Summary45

22.2 Review Questions46

22.3 Tutorial Problems47

22.4 Debrief50

22.5 Answers to Review questions50

Instituting proceedings, Service and Notice of Intention to Defend

1 Preview

1.1 Introduction

This topic will outline the law and practice governing the commencement of proceedings. The topic examines the forms of originating process that are based on an historical dichotomy between the action and the matter.

Determining the right court (or forum) in which to commence proceedings is governed by several factors depicted in the following diagram.

Forum

Type of dispute

Location of the dispute

Plaintiff's location

Amount involved

Defendant's assets location

Limitation periods

Cost and convenience

1.2 Objectives

After studying Topic 3 Instituting Proceedings you should be able to:

identify the client care implications of instituting proceedings.

commence an action in the Supreme Court of Queensland.

appreciate the difference between actions, matters and motions.

1.3 Prescribed Reading

Colbran, Spender, Douglas and Jackson, Civil Procedure Commentary and Materials (LexisNexis, 8th ed, 2020) Ch 7, 8, 9.

1.4 Reference Reading

Cairns, Australian Civil Procedure (Thomson Reuters, 12th ed, 2020) Ch 3, 4, 5.

1.5 Key Terms

Action A cause commenced by Writ of Summons. It contemplates a dispute over factual issues, anticipates pleadings and trial.

Affidavit A written statement sworn under oath or affirmed before a person authorised to administer the oath, that the contents of the statement are true. Affidavits are used to support legal applications and in certain circumstances replace oral testimony.

Letter of demand A request, for payment or the doing of an act as a precursor to litigation.

Matter A dispute over legal issues proceeding by way of affidavit rather than pleadings.

Motion An application in open court.

Originating process Commences an Action.

2 Client care

2.1 Introduction

In a lawyer-client relationship, client care means carrying out a clear policy for ensuring that all contacts made between the lawyer and the client promote the development of a positive and fruitful relationship. Critical to the development of such a relationship is effective communication. A common cause for complaint to law societies and institutes is that lawyers failed to communicate adequately with the client. Complaints arise when a lawyer fails to explain in detail each part of the process in which the client is involved. It is prudent to keep the client informed of all possible options and consequences, particularly if litigation is to be commenced. Initiating proceedings may lead to prolonged involvement in a court action with significant costs. It is an ethical obligation to keep your client informed.

2.2 Cost disclosures

The Queensland Law Society has developed a client care rule, which requires lawyers to advise their clients about costs at the initial interview. It also requires all law firms to establish a client complaint handling procedure and obliges solicitors to explain unreasonable delay to their clients. A written agreement must be made between a solicitor and client which sets out inter alia the work to be done by the solicitor; the cost of the work and how the fees are calculated; the costs that the client may have to pay to the other side in a litigious matter and any amounts that the solicitor is likely to incur on behalf of the client such as court filing fees and barristers fees. See Legal Profession Act 2007 (Qld) Pt 3.1 Div 3. You will study cost disclosures in detail in LAWS13013 Legal Professional Conduct.

3 Letters of demand

821748

A letter of demand is often used by solicitors prior to instituting proceedings. Some practitioners consider these letters to be useful because they might bring about a speedy resolution of matters in dispute between the parties. If a negotiated settlement is desired, the letter may be accompanied by a without prejudice offer to settle the dispute, so that if settlement is not reached no admissions can be used in evidence. Alternatively, the letter may disclose deficiencies in the instructions provided by the client; for example, where the defendant is dead, is not incorporated or has been placed into liquidation, has a different name to that advised by the client or cannot be located. A letter of demand might also seek information about insurers or other potential parties to the litigation.

When a lawyer is acting for a defendant, he or she will have to make tactical decisions about whether to reply to a letter of demand. Clearly, sometimes such letters are written without the intention of instituting proceedings; however, a failure to answer a letter of demand may amount to an admission of its correctness in certain circumstances: Thomas v Hollier (1984) 156 CLR 152 at 157 per GibbsCJ.

4 Commencing proceedings

4.1 Terminology

Historically, the basic distinction was made between a cause and a matter. A cause had two or more parties and included criminal proceedings. A matter has only one party. The most common kind of civil cause is an action. An action is a cause which was traditionally commenced by a Writ of Summons: Herbert Berry Associates Ltd v Inland Revenue Commissioners [1978] 1 All ER 161 at 170.

Action

Matter

Motion

Claim

Action

Motion

Procedures which are based on the action contemplate that the dispute primarily concerns factual issues, thus anticipates pleadings and an eventual trial in open court initiated by a Claim.

Procedures which are based on the matter contemplate that the dispute predominantly involves the resolution of legal issues and the plaintiff wishes to proceed by way of affidavit rather than pleadings. These processes are derived from the chamber jurisdiction of the court; that is, where the plaintiff applies to a judicial officer in chambers initiated by an Action.

A motion is used where a party applies in open court for a favourable outcome.

8 Starting proceedings

(1) A proceeding starts when the originating process is issued by the court.

(2) These rules provide for the following types of originating process

claim

application

notice of appeal

notice of appeal subject to leave.

(3) An application in, about or pending the trial, hearing or outcome of a proceeding is not an originating process.

Note

This is commonly called an interlocutory application.

9 Claim compulsory

A proceeding must be started by claim unless these rules require or permit the proceeding to be started by application.

10 Application compulsory

A proceeding must be started by application if an Act or these rules require or permit a person to apply to a court for an order or another kind of relief and

(a) the Act or rules do not state the type of originating process to be used; or

(b) a type of originating process (other than a claim or application) is required or permitted under a law.

11 Application permitted

A proceeding may be started by application if

(a) the only or main issue in the proceeding is an issue of law and a substantial dispute of fact is unlikely; or

(b) there is no opposing party to the proceeding or it is not intended to serve any person with the originating process; or

12 Oral application permitted

A court may allow a proceeding to be started by oral application by a counsel or solicitor for an applicant if

(a) urgent relief is sought; and

(b) the counsel or solicitor undertakes to file an application within the time directed by the court; and

4.2 Starting in error

Due to the complexity of the litigation system, lay litigants or litigants in person, and some inexperienced litigators commence their litigation using the wrong procedure. Rule 13 deals with this situation.

13 Proceeding incorrectly started by claim

(1) This rule applies if the court considers a proceeding started by claim should have been started by application or may more conveniently continue as if started by application.

(2) The court may

(a) order that the proceeding continue as if started by application; and

(b) give the directions the court considers appropriate for the conduct of the proceeding; and

Note

See rule 367 (Directions).

14 Proceeding incorrectly started by application

(1) This rule applies if the court considers a proceeding started by application should have been started by claim or may more conveniently continue as if started by claim.

(2) The court may

(a) order that the proceeding continue as if started by claim; and

(b) give the directions the court considers appropriate for the conduct of the proceeding; and

(c) if the court considers it appropriateorder that any affidavits filed in the proceeding be treated as pleadings alone or supplemented by particulars; and

(d) make any other order the court considers appropriate.

The court has a wide jurisdiction to set aside an originating process See UCPR r 16.

4.3 Rules about originating process

A plaintiff or applicant must ensure that contact details and the address for service are on the originating process UCPR r 17.

Representative capacities must be stated UCPR r 18.

Originating process must be signed UCPR r 18 and filed UCPR r 19.

4.4 Claims

22 Claim

(1) A claim must be in the approved form.

(2) A plaintiff must

(a) state briefly in the claim the nature of the claim made or relief sought in the proceeding; and

(b) attach a statement of claim to the claim; and

(3) The claim and attachment must be filed and then served on each defendant.

(4) Subrule (3) does not require service on a defendant personally if the claim and attachment are served in accordance with the Motor Accident Insurance Act 1994, the repealed WorkCover Queensland Act 1996 or the Workers Compensation and Rehabilitation Act 2003.

Courts have numerous approved forms which must be adhered to or face the possibility of rejection when filed at the Court Registry. The approved form for a Claim is Form 2.

SUPREME/DISTRICT/MAGISTRATES COURT OF QUEENSLAND

REGISTRY:

NUMBER:

Plaintiff: (Insert Name)

AND

[First] Defendant: (Insert Name)

AND

[Second Defendant:] (Insert Name)

CLAIM

The plaintiff claims: (state concisely the relief claimed by the plaintiff)

The plaintiff makes this claim in reliance on the facts alleged in the attached Statement of Claim.

ISSUED WITH THE AUTHORITY OF THE SUPREME/DISTRICT/MAGISTRATES COURT OF QUEENSLAND

And filed in the (place) Registry on (date):

Registrar: (Registrar to sign and seal)

To the defendant[s]: TAKE NOTICE that you are being sued by the plaintiff in the Court. If you intend to dispute this claim or wish to raise any counterclaim against the plaintiff, you must within 28 days of the service upon you of this claim file a Notice of Intention to Defend in this Registry. If you do not comply with this requirement judgment may be given against you for the relief claimed and costs without further notice to you. The Notice should be in Form 6 to the Uniform Civil Procedure Rules. You must serve a sealed copy of it at the plaintiffs address for service shown in this claim as soon as possible.

Address of Registry: (insert relevant street address)

[For the Magistrates Court insert:

If the claim is for an amount of not more than $25,000.00, and the claim is not to recover a debt or liquidated demand, then the claim is a minor claim. Simplified procedures apply to minor claims. (see rule 515 of the Uniform Civil Procedure Rules 1999). ]

If you assert that this Court does not have jurisdiction in this matter or assert any irregularity you must file a Conditional Notice of Intention to Defend in Form 7 under Rule 144, and apply for an order under Rule 16 within 14 days of filing that Notice.

If you object that these proceedings have not been commenced in the correct district of the Court, that objection must be included in your Notice of Intention to Defend.

[The plaintiff is suing in a representative capacity namely (insert details- see Rule 18)

[The [first]defendant is sued in a representative capacity (insert details- see Rule 18)

[The plaintiff relies on the cross-vesting laws in respect of each claim (or as the case may be: see Rule 53. This applies only in the Supreme Court)]

PARTICULARS OF THE PLAINTIFF:

Name:

Plaintiffs residential or business address:

Plaintiffs solicitors name:

and firm name:

Solicitors business address:

Address for service:

Dx (if any):

Telephone:

Fax:

E-mail address (if any):

[If the plaintiff has no solicitor:

plaintiffs address for service:

plaintiffs telephone number or contact number:

plaintiffs fax number (if any):

plaintiffs e-mail address (if any)]

Signed: (plaintiff or solicitor to sign)

Description: (of signatory eg. solicitor)

Dated: (insert date)

This Claim is to be served on:(First defendant's name)

of:(First defendant's address)

[and on:Second defendant's name

of:Second defendant's address

The Claim must include a statement about filing a notice of intention to defend UCPR r 23.

4.5 Applications

The Courts have rules concerning the content of applications and affidavits concerning service.

26 Content of application

(1) An application must be in the approved form.

(2) An application must name as respondents all persons directly affected by the relief sought in the application.

Note

The court may direct that others be included as respondentssee rule 69 (Including, substituting or removing party).

(3) Subrule (2) does not apply if these rules or another law authorise the hearing of the application without notice being given to another person.

(4) The application must list the affidavits to be relied on by the applicant at the hearing.

(5) The applicant must specify in the application the orders or other relief sought in the proceeding.

(6) If an application is made under an Act, the application must state the name and section number of the Act under which the application is made.

(7) The application, and any copies of the application for service, must specify the day set for hearing the application.

(8) An application filed in the District Court or a Magistrates Court, or material filed with it, must show that the court has jurisdiction to decide the application.

The approved form is Form 5.

SUPREME/DISTRICT/MAGISTRATES COURT OF QUEENSLAND

REGISTRY:

NUMBER:

Applicant: (Insert Name)

AND

[First]Respondent: (Insert Name)

AND

[Second Respondent]: (Insert Name)

ORIGINATING APPLICATION

To the respondents: TAKE NOTICE that the applicant is applying to the Court for the following orders:

1.(Set out the orders sought in numbered paragraphs. Where an order is sought under a rule or a particular section of an Act, state the rule number or the Act and section relied on.)

#.The respondent pay the applicants costs of the application or as the case may be.

This application will be heard by the Court at place

on: date of hearing at 10 am or as the case may be

Filed in the place Registry on (date):

Registrar: (registrar to sign and seal)

If you wish to oppose this application or to argue that any different order should be made, you must appear before the Court in person or by your lawyer and you shall be heard. If you do not appear at the hearing the orders sought may be made without further notice to you. In addition, you may before the day for hearing file a Notice of Address for Service in this Registry. The Notice should be in Form 8 to the Uniform Civil Procedure Rules. You must serve a copy of it at the applicants address for service shown in this application as soon as possible.

On the hearing of the application the applicant intends to rely on the following affidavits:

Affidavit of ABC sworn (date)

Affidavit of DEF to be sworn (or as the case may be)

If you intend on the hearing to rely on any affidavits they must be filed and served at the applicants address for service prior to the hearing date.

If you object that these proceedings have not been commenced in the correct district of the Court, you must apply to the Court for dismissal of the proceedings.

[The applicant is suing in a representative capacity namely (insert details - see Rule 18)]

[The [first] respondent is sued in a representative capacity (insert details - see Rule 18)]

[The applicant relies on the cross-vesting laws in respect of each order sought (or as the case may be: see Rule 53. This applies only in the Supreme Court)]

THE APPLICANT ESTIMATES THE HEARING SHOULD BE ALLOCATED (Insert Time Estimate) Hours/Minutes

PARTICULARS OF THE APPLICANT:

Name:

Applicants residential or business address:

Applicants solicitors name:

and firm name:

Solicitors business address:

Address for service:

Dx if any

Telephone:

Fax:

E-mail address if any

[If the applicant has no solicitor:

applicants address for service:

applicants telephone number or contact number:

applicants fax number (if any):

applicants e-mail address (if any)]

Signed: (applicant or solicitor to sign)

Description: (of signatory eg. solicitor)

Dated: (insert date)

This application is to be served on:First respondents name

of:First respondents address

[and on:(Second respondents name)

of:(Second respondents address)]

28 Service of affidavit in support of application

(1) An affidavit to be relied on by the applicant at the hearing of an application must be filed and then served on each respondent at least 3 business days before the day set for hearing the application.

(2) However, the court may give leave for an affidavit not served as required by subrule (1) to be relied on at the hearing.

29 Notice of address for service

(1) A respondent may not file and serve a notice of intention to defend an application.

(2) However, the respondent may file and serve a notice of address for service in the approved form.

(3) The court may require a respondent to file and serve a notice of address for service in the approved form.

(4) Rule 17 applies in relation to a notice of address for service as if the notice were an originating process and the respondent were an applicant.

(5) Despite rule 17, an address for service stated under the Service and Execution of Process Act 1992 (Cwlth) is the address for service of the respondent.

(6) Failure to file or serve notice of an address for service does not affect the respondents right to be heard on the hearing of the application.

Applications may be adjourned by consent UCPR r 30.

In response to Covid-19 the Senior Judge Administrator issued a protocol on 25.03.2020 to avoid the need for physical attendance at court using telephone or video conference. It is still possible, subject to social distancing requirements to attend court in person for urgent matters. The protocol encourages consent orders, narrow issues in dispute, where consent orders require an exercise of discretion to include brief submissions to the court, and matters on the list will be dealt with on the papers if possible. Oral hearings can be made via Cisco WebEx App.

4.6 Applications in a proceeding

After an originating process has commenced a proceeding, applications can be made at a later date within that proceeding. This application is not an originating application, which was discussed earlier. Make sure you take care in understanding the terminology.

31 Applications in a proceeding

(1) A person making an application within a proceeding, or the persons solicitor, must sign the application and file it.

(2) The application must be in the approved form.

(3) The application must name as respondent any party whose interests may be affected by the granting of the relief sought.

(4) If an application is made by a person who is not a party to the proceedings, the application must have on it the information required under rule 17 to be on an originating process unless the information has already been provided on a document filed in the proceeding.

(5) An application must be filed and then served on each

respondent at least 2 business days before the day set for hearing the application.

Note

Under the Acts Interpretation Act 1954, section 38(1)(a), the service day and the hearing day are excluded in the reckoning of time.

(6) If all the parties to an application consent to an adjournment of a hearing of the application, they may adjourn the application by noting the adjournment on the court file.

32 Oral applications

(1) Nothing in this part prevents

(a) a party to a proceeding making an oral application to the court in the proceeding for an order the court may make on a written application; or

(b) the court making an order sought on an oral application.

(2) If a party makes an oral application, the court may impose conditions required in the interests of justice to prevent prejudice to the other parties.

The approved form is Form 9.

SUPREME/DISTRICT/MAGISTRATES COURT OF QUEENSLAND

REGISTRY:

NUMBER:

Plaintiff: (Insert Name)

AND

[First] Defendant: (Insert Name)

AND

[Second Defendant:] (Insert Name)

APPLICATION

TAKE NOTICE that the (party applying) is applying to the Court for the following orders:

(Set out the orders sought in numbered paragraphs. Where an order is sought under a rule or a particular section of an Act, state the rule number or the Act and section relied on)

#.The (party) pay the costs of (party applying) of the application (or as the case may be).

This application will be heard by the Court at (place).

on: (date of hearing) at 10 am (or as the case may be).

Filed in the (place) Registry on (date):

Registrar: (registrar to sign and seal)

On the hearing of the application the applicant intends to rely on the following affidavits:

Affidavit of ABC sworn (date);

Affidavit of DEF to be sworn (or as the case may be).

THE APPLICANT ESTIMATES THE HEARING SHOULD BE ALLOCATED (Insert Estimate) Hours/Minutes

Signed: (party applying or solicitor)

Description: (of signatory eg. solicitor)

Dated: (insert date)

This application is to be served on:

(name of party)

(name and address of respondent if not already a party)

(This form is to be used for any application in a proceeding, but not for an originating application.)

4.7 Where to start a proceeding?

Proceedings may be started in any central registry of the court r 33. As to other registries - see UCPR Ch 2 Part 6 Div 2 and change of venue - see UCPR Ch 2 Part 6 Div 4. For small claims, it is possible to start proceedings in the Queensland Civil and Administrative Tribunal (QCAT) and then have the judgment filed in the Queensland Magistrates Court to become a judgment of that court. This can be a very cheap way to obtain an enforceable Magistrates Court judgment by default.

4.8 Pre-action protocols

These are steps that in some jurisdictions must be taken before commencing litigation. These have not been implemented in Queensland. However, have a look at Civil Dispute Resolution Act 2011 (Cth) s 4.

4.9 Ethical considerations

When a lawyer institutes proceedings on behalf of a client, the question arises as to whether the lawyer must be satisfied that the case has merit. It is commonplace for plaintiff lawyers to make a claim which is not well-supported by the law in the hope that an early negotiated settlement will obviate the need to commence proceedings. If the client has a hopeless case, is the lawyer under any ethical obligation to refuse to commence proceedings?

If a lawyer commences proceedings, which have no legal foundation, the proceedings may constitute an abuse of process. Such proceedings could be struck out or permanently stayed by the court: Williams v Spautz (1992) 174 CLR 509. The major disciplining factor is that a costs award is likely to be made against the client and potentially against the lawyer personally. Courts have express power to order a partys lawyer to pay or forgo costs where the court is satisfied that he or she is responsible for costs having been incurred improperly or without reasonable cause: UCPR r 690.

690 Lawyers delay or neglect

The court may order a lawyer to repay to the lawyers client all or part of any costs ordered to be paid by the client to another party if the party incurred the costs because of the lawyers delay, misconduct or negligence.

Before Lawyers commence proceeding they should make disclosures to clients regarding legal costs. See Legal Profession Act 2007 (Qld) Ch 3 Part 3.4.

Australian Solicitors Conduct Rules June 2011

Fundamental duties of solicitors

3 Paramount duty to the court and the administration of justice.

3.1 A solicitors duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.

4 Other fundamental ethical duties

4.1 A solicitor must also:

4.1.1 act in the best interests of a client in any matter in which the solicitor represents the client;

4.1.2 be honest and courteous in all dealings in the course of legal practice;

4.1.3 deliver legal services competently, diligently and as promptly as reasonably possible;

4.1.4 avoid any compromise to their integrity and professional independence; and

4.1.5 comply with these Rules and the law.

In the case where a barrister accepts instructions from a person other than a solicitor retained on behalf of a client ( a direct access brief ) PD 13 of 2024 Direct Access Briefs requires compliance with Barristers Conduct Rules r 24B, preparation of disclosure documents, acknowledgments and certifications, which must be filed in the proceeding.

The UCPR Ch 22 Pt 3 contains several rules concerning solicitors you should generally be aware of.

Solicitors can act on behalf of a client, except where a document must be signed by a party ( r 985). Where a party initially acts in person and then acts by a solicitor, the solicitor has to file and serve on the other parties a notice in the prescribed form advising their appointment. The same applies where a solicitor is replaced by their client - see r 986. Parties can change their solicitors at any stage (r 987), but once again a notice of change in solicitor is required. The former solicitor remains the solicitor on the record until the notice of change of solicitor is severed on the former solicitor. Solicitors can be removed by the court in certain circumstances (r 988) or is struck off or suspended (r 989). A solicitor can apply for leave to withdraw as solicitor (rr 990 - 992). Similarly town agents of a principal solicitor can withdraw from the record (r 993).

4.10 Filing

Court forms need to be filed in the registry. It is possible to file either hardcopy or electronic copies.

For a discussion of electronic filing see:

Practice Direction 21 of 2016 Commercial list.

Practice Direction 10 of 2011 Use of technology for the efficient management of documents in litigation.

Filing fees are associated with many court documents.

5 Disputes predominantly involving factual issues

Such proceedings would be commenced by claim unless there is insufficient time due to urgency, when an application may be used: UCPR rr 9, 11. The claim must briefly state the nature of the claim made, or the relief sought: UCPR r 22.

Numerous copies of the originating process may be sealed: UCPR rr 978, 980.

6 Disputes predominantly involving legal issues

This Originating Application process uses affidavits rather than pleadings typically equity and probate matters - UCPR r 11.

7 Duration of originating process

UCPR 24 Duration and renewal of claim

(1) A claim remains in force for 1 year starting on the day it is filed.

(2) If the claim has not been served on a defendant and the registrar is satisfied that reasonable efforts have been made to serve the defendant or that there is another good reason to renew the claim, the registrar may renew the claim for further periods, of not more than 1 year at a time, starting on the day after the claim would otherwise end.

(3) The claim may be renewed whether or not it is in force.

(4) However, the courts leave must be obtained before a claim may be renewed for a period any part of which falls on or after the fifth anniversary of the day on which the claim was originally filed.

(5) Before a claim renewed under this rule is served, it must be stamped with the courts seal by the appropriate officer of the court and show the period for which the claim is renewed.

(6) Despite subrule (1), for any time limit (including a limitation period), a claim that is renewed is taken to have started on the day the claim was originally filed.

Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79 [extracted 7.7.6C] demonstrates the complex relationship between the duration of the writ, service and appearance.

8 Preview Service

8.1 Introduction

Service is the procedure by which a plaintiff informs a defendant of the claim being made. Personal service is the foundation of jurisdiction and is required for originating proceedings. It is also an essential requirement of natural justice.

Ordinary service is required for interlocutory (pre-trial) proceedings. There are less stringent requirements for ordinary service compared with personal service.

Special service rules have developed for certain types of parties, such as corporations and those parties under a disability. Special rules also exist in relation to certain types of actions. Detailed technical rules have developed in relation to service outside the jurisdiction.

Where a plaintiff experiences difficulties in serving a defendant, they may seek an order for substituted service, provided that the proposed method of service is likely to bring the proceeding to the attention of the defendant.

8.2 Objectives

After studying Topic 3 Service you should be able to:

understand that service is the basis of jurisdiction.

appreciate how the common law rules for service have been modified by statute.

understand how to serve a party either personally or by ordinary service and distinguish when to do either procedure.

apply the special rules for service in relation to special parties and actions.

gain knowledge of the time limits applicable to service.

know when substituted service is permissible and how to achieve this.

know how to serve documents outside the jurisdiction.

8.3 Required reading

Colbran, Spender, Jackson and Douglas, Civil Procedure Commentary and Materials (LexisNexis, 7th ed, 2019) Ch 8.

8.4 Key terms

Consensual service Service by agreement.

Nexus Connection between jurisdictions.

Ordinary service Interlocutory process (pre-trial) can be served using a simplified process compared with personal service. Most documents are served using ordinary service procedures.

Personal service Originating process must be personally served on a party against whom a remedy or relief is sought. The requirements are more stringent than ordinary service.

Presumed service Assumptions as to when valid service is presumed.

Undertaking A personal guarantee given by a solicitor that something will be done or not done.

9 Personal Service

At common law an action based on the in personam jurisdiction of the court could not proceed unless the person against whom a relief or remedy is sought had been served with an originating process: Laurie v Carroll (1958) 98 CLR 310 at 3234.

Service was only possible upon persons who were physically present within the jurisdiction at the time of filing the originating process; there was no power to serve outside the jurisdiction: Re Sherlock (1991) 102 ALR 156.

9.1 Foundation of jurisdiction

Service is the foundation of jurisdiction (Laurie v Carroll (1958) 98 CLR 310 at 3234), hence a superior court will not exercise its jurisdiction unless the person against whom the relief or remedy is sought has been served with notice of the proceedings.

UCPR r 105 Personal service for originating process

(1) A person serving an originating process must serve it personally on the person intended to be served.

(2) If a defendant files an unconditional notice of intention to defend, the claim is taken to have been served on the defendant on the day the notice is filed or, if a party proves the claim was served on an earlier day, the earlier day.

9.2 Manner of service

11230453

At common law the process server had to physically touch the defendant with the document, describe its nature and offer the defendant the opportunity to compare the service copy with the original. While there is some unnecessary diversity among the rules, personal service is now generally effected by leaving a copy of the originating process with the defendant.

UCPR r 106 How personal service is performed

(1) To serve a document personally, the person serving it must give the document, or a copy of the document, to the person intended to be served.

(2) However, if the person does not accept the document, or copy, the party serving it may serve it by putting it down in the persons presence and telling him or her what it is.

(3) It is not necessary to show to the person served the original of the document.

Ainsworth v Redd (1990) 19 NSWLR 78 [extracted 8.2.3C]. The issue was whether personal service of a document was effected by leaving a copy of the document with the person to be served.

9.3 Exceptions to personal service

Personal service is usually required in respect of:

preliminary originating process;

secondary originating process, e.g. introducing a new party or an existing party in a different capacity;

documents initiating contempt or attachment proceedings;

injunctions; and

situations required by statute, rules, or court order.

However, ordinary service is sufficient in respect of interlocutory applications. There are a number of situations where personal service is not required, even though the process to be served may initiate the proceedings. In those situations, service is either dispensed with, or may be effected in a different way. The main categories are as follows:

ex parte interim applications: UCPR r 27;

where a solicitor accepts service;

unconditional notice of intention to defend (UCPR r 105(2)) is entered before service;

selected Queensland Magistrates Court documents: UCPR r 111;

where substituted service is ordered;

where service is by means of a mode specified in an agreement;

where there is an action for the recovery of land within the jurisdiction;

where there is an action in rem, usually against a ship;

where the rules or a statute expressly permit other means of service, for example, the Corporations Act 2001 (Cth), Service and Execution of Process Act 1992 (Cth) ss 10, 11.

9.4 Consensual and presumed service

UCPR 119 Service under contract

(1) This rule applies if

(a) before a proceeding starts, the parties to the proceeding agree that a document relating to the proceeding may be served on a party, or someone else for the party, in a way or at a place, in Queensland or elsewhere, specified in the agreement; or

(b) after a proceeding starts, the parties to the proceeding agree that a document relating to the proceeding may be served on a party, or someone else for the party, in a way or at a place, in Queensland or elsewhere, specified in the agreement.

(2) The document may be served in accordance with the agreement.

Kenneth Allison Ltd v A E Limehouse & Co (a firm) [1992] 2 AC 105 [extracted at 8.2.8C] provides an example of consensual service.

9.5 Solicitors undertaking to accept service

UCPR r 115 Acceptance of service

(1) Despite parts 2, 3 and 4, a solicitor may accept service of a document for a party.

(2) The solicitor must make a note on a copy of the document to the effect that the solicitor accepts service for the party.

(3) The document is taken to have been served on the party, unless the party proves the solicitor did not have authority to accept service for the party.

(4) This rule applies whether or not personal service of the document is required under these rules.

9.6 Time requirements

UCPR r 24 Duration and renewal of claim

(1) A claim remains in force for 1 year starting on the day it is filed.

(3) The claim may be renewed whether or not it is in force.

(4) However, the courts leave must be obtained before a claim may be renewed for a period any part of which falls on or after the fifth anniversary of the day on which the claim was originally filed.

(5) Before a claim renewed under this rule is served, it must be stamped with the courts seal by the appropriate officer of the court and show the period for which the claim is renewed.

(6) Despite subrule (1), for any time limit (including a limitation period), a claim that is renewed is taken to have started on the day the claim was originally filed.

10 Ordinary Service

More relaxed rules apply in respect of the service of interlocutory processes as distinct from originating processes. Most documents do not require personal service. While such documents may be served personally, ordinary service by sending or delivering the document to a partys proper address for service is sufficient and more convenient.

10.1 Introduction

UCPR r 112 How ordinary service is performed

(1) If these rules do not require personal service of a document, the following are ways by which the document may be served on the person to be served

(a) leaving it with someone who is apparently an adult living at the relevant address;

(b) if there is no-one at the relevant addressleaving it at the relevant address in a position where it is reasonably likely to come to the persons attention;

(c) if the relevant address is within a building or area to which the person serving the document has been denied accessleaving it at the building or area in a position where it is reasonably likely to come to the persons attention;

(d) posting it to the relevant address;

(e) if the person has given

(i) a fax number under these rulesfaxing the document to the person; or

(ii) an email address under these rulesemailing the document to the person;

(f) if the solicitor for the person has

(i) an exchange box at a document exchangeleaving the document in the exchange box or another exchange box available for documents to be transferred to the solicitors exchange box; or

(ii) a faxfaxing the document to the solicitor; or

(iii) an email addressemailing the document to the solicitor;

(g) an electronic means prescribed by practice direction.

(2) A document served under subrule (1)(f)(i) is taken to have been served on the business day after it is left in the document exchange box.

(3) In this rule

relevant address, of a person to be served, means

(a) the persons address for service; or

(b) for an individual who does not have an address for service

(i) the individuals last known place of business or residence; or

(ii) if the individual is suing or being sued in the name of a partnershipthe principal or last known place of business of the partnership; or

10.2 Address for service

Where a person has nominated an address for service, that is their proper address for service: UCPR r 112(3), Form 8 Notice of Address for Service (version 2 approved 5 April 2018).

10.3 Types of ordinary service

Informal Service, where a document has come into a persons possession and no prejudice arises UCPR r 117.

Service by fax UCPR rr 112, 122.

Service by post UCPR r 112 (1)(d).

Service by document exchange UCPR rr 112(1)(f), 102.

Service by electronic means UCPR r 112(1)(f) or as prescribed in a practice direction UCPR r 112(1)(g).

Acts Interpretation Act 1954 (Qld) ss 38, 39, 39A.

11 Special Parties

11.1 Introduction

The Rules of Court contain special service rules applicable to certain types of parties.

Corporations

Partnerships, business names etc

Agents

Spouses

Infants

Mentally ill

Crown and judicial officers

Third parties

Prisoners

11.2 Corporations

UCPR 107 Personal servicecorporationsA document required to be served personally on a corporation must be served in the way provided for the service of documents under the Corporations Act or another applicable law.

Corporations Act 2001 (Cth) s 109X

S 109X Service of documents

(1) For the purposes of any law, a document may be served on a company by:

(a) leaving it at, or posting it to, the company's registered office; or

(b) delivering a copy of the document personally to a director of the company who resides in Australia or in an external Territory; or

(c) if a liquidator of the company has been appointedleaving it at, or posting it to, the address of the liquidator's office in the most recent notice of that address lodged with ASIC; or

(d) if an administrator of the company has been appointedleaving it at, or posting it to, the address of the administrator in the most recent notice of that address lodged with ASIC.

(2) For the purposes of any law, a document may be served on a director or company secretary by leaving it at, or posting it to, the alternative address notified to ASIC under subsection 5H(2), 117(2), 205B(1) or (4) or 601BC(2). However, this only applies to service on the director or company secretary:

(a) in their capacity as a director or company secretary; or

(b) for the purposes of a proceeding in respect of conduct they engaged in as a director or company secretary.

(3) Subsections (1) and (2) do not apply to a process, order or document that may be served under section 9 of the Service and Execution of Process Act 1992.

(6) This section does not affect:

(a) any other provision of this Act, or any provision of another law, that permits; or

(b) the power of a court to authorize a document to be served in a different way.

(7) This section applies to provisions of a law dealing with service whether it uses the expression "serve" or uses any other similar expression such as "give" or "send".

Section 109X can only be used in relation to service within the jurisdiction. For service outside the jurisdiction, but within Australia, the Service and Execution of Process Act 1992 (Cth) must be used. This Act overrides ss 109X and 601CX for service outside the jurisdiction: see s 9(9) of the Service and Execution of Process Act.

11.3 Partnerships, business names etc

Partners may sue or be sued in the firm name. Originating process may be personally served on any one or more partners, or at the principal place of business on anyone having the control or management of the business at the time of service. Persons carrying on a business in a name or style, other than his or her name or style, may be served in that name or style as if the name or style were a firm name, and the partnership service rules apply. In Queensland (r 113), if a proceeding is brought against a person in relation to a business carried on by the person under a name or style other than the persons name, the name is not registered under the Business Names Act 1962 (Qld), and the proceeding is started in that name or style, then the originating process may be served by leaving a copy at the persons place of business with a person who appears to have control or management of the business at the place.

UCPR rr 83, 113, 114.

UCPR r 83 Proceeding in partnership name

(1) Two or more partners may start a proceeding in the partnership name.

(2) A proceeding against persons alleged to be partners may be brought against the alleged partnership in the partnership name.

(3) The partnership name used in a partnership proceeding must be the name of the partnership when the cause of action arose.

(5) Unless the court orders otherwise, a partnership proceeding must continue in the partnership name and not in the name of the individual partners.

UCPR r 113 Service in relation to a business

(1) This rule applies if

(a) a proceeding is brought against a person in relation to a business carried on by the person under a name other than the persons name; and

(b) the name is not registered on the Business Names Register; and

(2) The originating process may be served by leaving a copy at the persons place of business with a person who appears to have control or management of the business at the place.

UCPR r 114 Service in relation to a partnership

(1) An originating process against a partnership must be served

(a) on 1 or more of the partners; or

(b) on a person at the principal place of business of the partnership in Queensland who appears to have control or management of the business there; or

(2) If the originating process is served under subrule (1), each of the partners who were partners in the partnership when the originating process was issued, including a partner who was outside Queensland at the time, is taken to have been served.

(3) The originating process must also be served on any person the plaintiff seeks to make liable as a partner but who was not a partner when the originating process was issued.

An agent may be served on behalf of a principal who is outside the jurisdiction:

UCPR r 118 Service on agent

(1) If a person living or carrying on business outside Queensland (the principal) enters into a contract in Queensland through an agent living or carrying on business in Queensland, the court may, without deciding the agents authority or business relationship with the principal, give leave for an originating process relating to a proceeding arising out of the contract to be served on the agent.

(2) The court must, in an order giving leave under subrule (1), state the time within which the principal must file a notice of intention to defend.

(3) The party serving the originating process on the agent must immediately send to the principal a copy of each of the order and originating process.

(4) The documents required to be sent under subrule (3) must be sent to the principals address outside Queensland by prepaid post.

11.4 Infants

An infant is a natural person under 18 years old.

UCPR r 108 Personal serviceyoung people

(1) A document required to be served personally on a young person must be served instead on the person who is the young persons litigation guardian for the proceeding to which the document relates.

(2) If the young person does not have a litigation guardian for the proceeding the document must be served instead on

(a) the young persons parent or guardian; or

(b) if there is no parent or guardianan adult who has the care of the young person or with whom the young person lives.

As to service on persons with an impaired capacity, mentally illsee UCPR r 109.

11.5 Third party notices

A defendant using a third party notice may claim against a person not already a party to the action (known as the third party), a contribution or indemnity, or a relief or remedy related to or connected with the original subject matter of the action. Personal service is required on a third party.

UCPR r 195 Serving third party notice

(1) A defendant who files a third party notice must serve it on the third party

a) as soon as practicable after it is issued; and

(b) in the same way as an originating process is served on a defendant.(

(2) A copy of the following documents must be served with the third party notice

(a) any order giving leave to file or serve the notice;

(b) the claim;

(3) As soon as practicable after serving the third party notice on the third party, the defendant must also serve a copy of the notice on the plaintiff and all parties who have filed a notice of intention to defend.

196 Effect of service on third party

On being served with a third party notice, the third party becomes a party to the proceeding with the same rights in relation to the third partys defence to a claim made against the third party in the notice as the third party would have if sued in the ordinary way by the defendant.

11.6 Crown and Judicial officers

The Crown in the right of a State or the Commonwealth is served by serving the Attorney-General or Crown Solicitor: Judiciary Act 1903 (Cth) s 63; Crown Proceedings Act 1980 (Qld) s 19.

S 19 Service of documents

(1) Subject to any other Act or law or any practice, a document or other writing required to be served on the Crown for the purposes of or in connection with a proceeding by or against the Crown shall be served on the crown solicitor and service of a document or other writing in accordance with this subsection shall be duly effected if it is left at the office of the crown solicitor with some responsible person.

(2) Save as prescribed by subsection (1), a notice, order or other writing authorised or required by this Act to be given to or served on any person shall be duly given or served if

(a) it is served personally on the person to whom it is directed;

(b) it is left at the place of residence or business of the person to whom it is directed last known to the person who gives it;

(c) it is sent by post to the place of residence or business of the person to whom it is directed last known to the person who gives it.

11.7 Prisoners

UCPR r 110 Personal serviceprisoners

A document required to be served personally on a prisoner must be served on

(a) if the public trustee is manager of the prisoners estate under the Public Trustee Act 1978, part 7 and the proceeding is of a property nature or for the recovery of a debt or damagethe public trustee; or

(b) if paragraph (a) does not apply and the prisoner has a litigation guardianthe prisoners litigation guardian; or

12 Proof of service

12.1 Introduction

Proof of service is not required when a defendant enters a Notice of Intention to Respond, a defence, or the defendants solicitor endorses acceptance of service on the originating process, otherwise an affidavit proving service is required.

UCPR r 120 Affidavit of service

(1) If an affidavit of service of a document is required under these rules or an Act or law, the affidavit

(a) for an affidavit of personal servicemust be made by the person who served the document and include the following

(i) the persons full name;

(ii) the time, day and date the document was served;

(iii) the place of service;

(iv) the name of the person served and how the person was identified; or

(b) otherwise

(i) must state the relevant dates and the facts showing service; and

(ii) may be made on information given to, or the belief of, the person causing the service; and

(iii) if made on information given to the personmust state the source of the information.

(2) An affidavit of service must

(a) have the document filed with it as an exhibit or be written on the document; or

(b) if the document has been filedmention the document in a way sufficient to enable the document to be identified.

UCPR 121 Identity of person served

For proving service, a statement by a person of his or her identity or that he or she holds a particular office or position is evidence of the identity or that the person holds the office or position.

13 Substituted Service

13.1 Introduction

All jurisdictions permit substituted service as an alternative to personal service, where:

personal service must be too difficult or impracticable; and

the substituted method proposed must be likely to bring the proceedings to the defendants attention: r 116.

UCPR r 116 Substituted service

(1) If, for any reason, it is impracticable to serve a document in a way required under this chapter, the court may make an order substituting another way of serving the document.

(2) The court may, in the order, specify the steps to be taken, instead of service, for bringing the document to the attention of the person to be served.

(3) The court may, in the order, specify that the document is to be taken to have been served on the happening of a specified event or at the end of a specified time.

(4) The court may make an order under this rule even though the person to be served is not in Queensland or was not in Queensland when the proceeding started.

Porter v Freudenberg [1915] 1 KB 857 [extracted 8.8.2C].

13.2 Practical impossibility of actual service

The issue is whether, at the date of the application for substituted service, the plaintiff, despite reasonable efforts, was unable to serve the document in accordance with the rules.

Amos Removals & Storage Pty Ltd v Small [1981] 2 NSWLR 525 [extracted 8.8.5C].

13.3 Methods of substituted service

Substituted service (or presumptive service as it is known in South Australia) is effected by the method prescribed by order of the court. The various methods include:

post

advertising (newspaper, registry)

serving someone closely connected with the defendant on the basis they will bring the process to the notice of the defendant. For example, the defendants:

spouse;

solicitor (acting or formerly acting for the defendant);

agent (acting or formerly acting for the defendant);

attorneys under a power of attorney;

compulsory insurer (this is not permissible where there is no likelihood of the process coming to the defendants attention): Chappell v Coyle (1985) 2 NSWLR 73.

Miscamble v Phillips (No 2) [1936] St R Qd 272 [8.8.1].

13.4 Jurisdictional limitations

A person who is not amenable to personal service within the jurisdiction, cannot be served by substituted service of a writ for service inside the jurisdiction. It is possible to serve such a person by substituted service of a writ for service outside the jurisdiction, provided the court has jurisdiction. If a person was within the jurisdiction at the time of issue of the writ, but then deliberately goes outside the jurisdiction to evade service of process, there may be grounds for an order for substituted service.

The rules in some jurisdictions, consistent with Laurie v Carroll (1958) 98 CLR 310, permit an order for substituted service notwithstanding the defendant was outside the jurisdiction when the proceedings commenced: UCPR r 116(4). The rules do not give the court jurisdiction to order substituted service where the court does not have jurisdiction to order personal service.

14 Service out of the jurisdiction

14.1 Service out of the jurisdiction but within Australia

Service out of the jurisdiction from State and Territory courts can be broadly classified into two categories: service out of the jurisdiction but within Australia, and service outside Australia. The former category is governed by the Service and Execution of Process Act 1992 (Cth). The latter category is governed by the Rules of Court (including diplomatic channels) and international conventions, such as the Hague Convention.

Service and Execution of Process Act 1992 (Cth) ss 3, 8, 9 20, 27. Make sure that you read these sections thoroughly.

14.2 Service outside Australia

For service outside Australia according to the Rules of Court, there must be a sufficient nexus with the jurisdiction as specified by the Rules of Court. The main categories of nexus are found in r 125. Note that it does not apply to New Zealand - r 124.

UCPR 125 When service allowed without leave

An originating process may be served outside Australia without leave in the following circumstances

if the claim is founded on a tortious act or omission

(i) that was done or that happened wholly or partly in Australia; or

(ii) in respect of which the damage was sustained wholly or partly in Australia;

if the claim is for the enforcement, rescission, dissolution, annulment, cancellation, rectification, interpretation or other treatment of, or for damages or other relief in respect of a breach of, a contract that

(i) was made or entered into in Australia; or

(ii) was made by or through an agent trading or residing within Australia; or

(iii) was to be wholly or in part performed in Australia; or

(iv) was by its terms or by implication to be governed by Australian law or to be enforceable or cognisable in an Australian court;

(c) if the claim is in respect of a breach in Australia of a contract, wherever made, whether or not the breach was preceded or accompanied by a breach outside Australia that rendered impossible the performance of that part of the contract that ought to have been performed in Australia;

(d) if the claim

(i) is for an injunction to compel or restrain the performance of an act in Australia; or

(ii) is for interim or ancillary relief in respect of a matter or thing in or connected with Australia, and the relief is sought in relation to a judicial or arbitral proceeding started or to be started, or an arbitration agreement made, in or outside Australia (including, without limitation, interim or ancillary relief in relation to a proceeding under the International Arbitration Act 1974 (Cwlth) or the Commercial Arbitration Act 2013); or

(iii) without limiting subparagraph (ii), is an application for a freezing order or ancillary order under chapter 8, part 2, division 2 in respect of a matter or thing in or connected with Australia;

(e) if the subject matter of the claim is land or other property situated in Australia, or an act, deed, will, instrument or thing affecting land or property situated in Australia, or the proceeding is for the perpetuation of testimony relating to land or property situated in Australia;

(f) if the claim relates to the carrying out or discharge of the trusts of a written instrument of which the person to be served is a trustee and that ought to be carried out or discharged according to Australian law;

(g) if relief is sought against a person domiciled or ordinarily or habitually resident in Australia (whether present in Australia or not);

(h) if a person outside Australia is

(i) a necessary or proper party to a proceeding properly brought against another person served or to be served (whether within Australia or outside Australia) under any other provision of these rules; or

(ii) a defendant to a claim for contribution or indemnity in respect of a liability enforceable by a proceeding in the court;

(i) if the claim is for

(i) the administration of the estate of a deceased person who at the time of the persons death was domiciled in Australia; or

(ii) relief or a remedy that might be obtained in a proceeding mentioned in subparagraph (i);

(j) if the claim arises under an Australian enactment and 1 or more of the following applies

(i) an act or omission to which the claim relates was done or happened in Australia;

(ii) any loss or damage to which the claim relates was sustained in Australia;

(iii) the enactment applies expressly or by implication to an act or omission that was done or happened outside Australia in the circumstances alleged;

(iv) the enactment expressly or by implication confers jurisdiction on the court over persons outside Australia (in which case any requirements of the enactment relating to service must be complied with);

(k) if the person to be served has submitted to the jurisdiction of the court;

(l) if a claim is made for restitution or for the remedy of constructive trust and the alleged liability of the person to be served arises out of an act or omission that was done or happened wholly or partly in Australia;

(m) if it is sought to recognise or enforce a judgment;

(n) if the claim is founded on a cause of action arising in Australia;

(o) if the claim affects the person to be served in respect of the persons membership of a corporation incorporated in Australia, or of a partnership or an association formed or carrying on any part of its affairs in Australia;

(p) if the claim concerns the construction, effect or enforcement of an Australian enactment;

(q) if the claim

(i) relates to an arbitration held in Australia or governed by Australian law; or

(ii) is to enforce in Australia an arbitral award wherever made; or

(iii) is for orders necessary or convenient for carrying into effect in Australia the whole or any part of an arbitral award wherever made;

(r) if the claim is for relief relating to the custody, guardianship, protection or welfare of a child present in Australia or who is domiciled or ordinarily or habitually resident in Australia (whether present in Australia or not);

(s) if the claim, so far as it concerns the person to be served, falls partly within 1 or more of paragraphs (a) to (r) and, as to the residue, within 1 or more of the others of paragraphs (a) to (r).

Notes

1 See rules 178(4) and 195(1)(b) in relation to service under this subdivision of a counterclaim against a person not a party to a proceeding and a third party notice.

2 If a proceeding is started in the court and an originating process is served outside Australia under this rule but the court later decides it is more appropriate that the proceeding be decided by a court of another Australian jurisdiction, the court may transfer the proceeding to the other court under the Jurisdiction of Courts (Cross-vesting) Act 1987 and may make an order for costs against the party who started the proceeding in the court rather than in the transferee court.

UCPR 126 When service allowed with leave

The court may, by leave, allow service outside Australia of an originating process if service is not allowed under rule 125.

An application for leave under this rule must be made on notice to every party other than the person intended to be served.

Also, an application for leave under this rule must be supported by an affidavit stating any facts or matters related to the desirability of the court assuming jurisdiction, including

(a) the place or country in which the person to be served is or possibly may be found; and

(b) whether or not the person to be served is an Australian citizen.

The court may grant leave under this rule if satisfied

the claim has a real and substantial connection with Australia; and

Australia is an appropriate forum for the trial; and

in all the circumstances the court should assume jurisdiction.

(5) A sealed copy of an order made under this rule must be served with the document to which it relates.

The Court has a wide discretion whether to assume jurisdiction (r 127). A notice must be served on a person served outside Australia (Form 010C). There is a longer time period for filing of a notice of intention to defend (r 129). If the originating process is an application, then the application and supporting affidavit must be served at least 10 business days before the set hearing date (r 129A). In the absence of filing a notice of intention to defend leave to proceed is required (r 129B). Any document other than an originating process may be served outside Australia with leave (r 129C). A document to be served outside Australia need not be personally served on a person as long as it is served on the person in accordance with the law of the country in which service is effected (r 129D).

Service outside Australia under the Rules of Court (Diplomatic channels)

Various jurisdictions allow for service by diplomatic channels within their rules: UCPR Ch 4 Pt 7 Div 2.

Australian Government Attorney-Generals Department Service Overseas Diplomatic Channels

<http://www.ag.gov.au/Internationalrelations/PrivateInternationalLaw/Pages/Servingalegaldocumentacrossinternationalborders.aspx> (accessed 8 April 2020).

Service outside Australia under the Hague Convention

Service may be effected in a foreign country pursuant to a convention (convention country or any other country the Attorney-General, by instrument filed in the proceeding, specifies): UCPR Ch 4, Pt 7, Div 2.

Special rules apply to service in New Zealand. The Trans-Tasman Proceedings Act 2010 (Cth) provides for service in New Zealand of initiating documents for certain civil proceedings started in Australian courts. Part 2 Div 2 of the Act provides for service of initiating documents. Section 4 defines initiating document and Australian court. See also Qld Ch 14 Pt 6 Div 2.

There are four forms related to foreign service.

Form 010 Certificate of service of foreign process

Form 010A Request for service abroad of judicial documents and certificate

Form 010B Summary of document to be served

Form 010C Notice of defendant served outside the jurisdiction

15 Judgments and orders

Generally, a judgment or order requiring the doing of an act by a person should be served before enforcement: UCPR r 906.

15.1 Judgments and orders

UCPR r 906 Procedure

(1) A person applying for an enforcement warrant to enforce an order must file

(a) an application attaching the warrant the person wants the court to issue; and

(b) an affidavit in support of the application stating that the person against whom enforcement is sought was served with the order and that there has not been compliance with the order.

(2) A person entitled to enforce a non-money order may apply for an enforcement warrant without notice to another party.

(3) A copy of the enforcement warrant must be filed.

(4) Unless the court or a registrar directs otherwise, an application for an enforcement warrant or an application for renewal of an enforcement warrant must be dealt with by the registrar without a formal hearing.

15.2 Setting aside service irregularities

Any person may apply to set aside service of any originating process on the basis that the process or its service is irregular. Examples may include disputes over whether the court is a clearly appropriate forum, orders for substituted service, deemed service, agreements to litigate elsewhere etc.

UCPR r 126 Setting aside service

The court must, on application by a defendant or respondent, set aside service of an originating process under this part if service of it is not authorised under rule 124.

16 Preview - Notice of Intention to Defend

16.1 Introduction

In Queensland, a Notice of Intention to defend (known as an appearance in other jurisdictions) enables the Defendant to indicate to the Plaintiff that the matter is intended to be defended. A Defendant files a Notice of Intention to defend in person or through a solicitor: UCPR r 136; before taking a step in the proceeding: UCPR r 135. There are numerous exceptions outlined in the text.

16.2 Objectives

After studying Topic 3 Notice of Intention to Defend you should be able to:

demonstrate an understanding of the concept of a Notice of Intention to Defend.

articulate the implications of filing or failure to file a Notice of Intention to Defend.

16.3 Required reading

Colbran, Spender, Douglas and Jackson, Civil Procedure Commentary and Materials (LexisNexis, 8th ed, 2022) Ch 9.

16.4 Key terms

Notice of Intention to Defend A Form (6) filed by a Defendant to indicate to a Plaintiff that a matter is intended to be defended.

Waiver Words or conduct of such a nature, that an inference properly be drawn that a party does not intend to rely on an objection upon which they may otherwise be entitled to rely.

17 Why enter a Notice of Intention to Defend?

Notices of Intention to Defend are filed and served for five reasons:

Failure to file a Notice of Intention to Defend will enable the plaintiff to obtain judgment in default of appearance;

To inform the plaintiff the action is to be defended, the name of the defendants solicitors, and an address where service can be effected;

In the case of an unconditional appearance to acknowledge the courts jurisdiction;

As a precondition before a defendant can take a step in proceedings otherwise than with leave of the court; and

In the case of conditional appearances, to prevent waiver of procedural irregularities and of the right to object to the courts jurisdiction.

18 Who may enter a Notice of Intention to Defend?

Only a defendant may enter a Notice of Intention to Defend, either in person or through a solicitor. UCPR rr 93 (infants), 135, 136 (Corporations); 143, 85 (partnership), 91 (business name), 197 (third party), 178 (Counterclaim).

19 Nature of Notices of Intention to Defend

19.1 Types of appearances

In Queensland (r 144(6)), unconditional Notices of Intention to Defend at common law have the effect of waiving procedural irregularities and objections to jurisdiction. Conditional appearances preserve such rights in these jurisdictions.

Form 4.

UCPR 144 Conditional notice of intention to defend

(1) This rule does not apply to a defendant objecting to the starting of a proceeding in a district of a court other than in accordance with rule 35.

Note

See rule 38 for objections to the starting of a proceeding other than in the correct district.

(2) A defendant who proposes to challenge the jurisdiction of the court or to assert an irregularity must file a conditional notice of intention to defend.

(3) Rule 139(1)(b) does not apply to a conditional notice of intention to defend.

(4) If a defendant files a conditional notice of intention to defend, the defendant must apply for an order under rule 16 within 14 days after filing the notice.

(5) If the defendant does not apply for an order under rule 16 within the 14 days, the conditional notice of intention to defend becomes an unconditional notice of intention to defend.

(6) Within 7 days after a conditional notice of defence becomes an unconditional notice of intention to defend, the defendant must file a defence.

(7) A defendant who files an unconditional notice of intention to defend is taken to have submitted to the jurisdiction of the court and waived any irregularity in the proceeding.

19.2 Procedure for entry of an appearance

A defendant in person or by a solicitor may file a Notice of Intention to Defend (UCPR r 136, Form 006).

UCPR rr 136, 139 (signed, dated, with defence attached), 140 (name, address, contact details), 141 (filing), 142 (ordinary service), Form 006, 007, Ch 4 Pt 4. Practitioners are required to complete an appearance slip in the applications jurisdiction: see Practice Direction No 6 of 2004.

19.3 Time limited for appearance

UCPR 137 Time for notice of intention to defend

(1) In a proceeding started by a claim, a notice of intention to defend must be filed within 28 days after the day the claim is served.

(2) However, if the Service and Execution of Process Act 1992 (Cwlth) applies, a notice of intention to defend must be filed within the time limited by that Act.

Service and Execution of Process Act 1992 (Cth) s 17.

S 17 Time for appearance

(1) If the person served is required or permitted to enter an appearance under a law of the place of issue, the period after service within which the person may enter an appearance is:

(a) whichever is the longer of the following periods:

(i) 21 days;

(ii) the period in which the appearance would have been required or permitted to be entered if the process had been served in the place of issue; or

(b) such shorter period as the court of issue, on application, allows.

(1A) If, under a provision (the State provision) of the law of the place of issue, the period in which an appearance is required or permitted to be entered in respect of process served in the place of issue varies according to the distance of the place of service from another place, the period referred to in subparagraph (1)(a)(ii) is to be calculated by reference to the longest distance mentioned in the State provision.

(2) The matters that the court must take into account in determining an application to allow a shorter period include:

(a) urgency; and

(b) the places of residence or business of the parties; and

19.4 Unconditional Notice of Intention to Defend

Entry of an unconditional Notice of Intention to Defend waives:

Objections to the jurisdiction of the court;

Irregularities in the originating process known to the defendant or obvious on the face of the process;

Irregularities as to commencement;

Irregularities in service. Hence there is no need to prove service.

19.5 Conditional Notice of Intention to Defend

Provides a method of approaching the court while preserving rights to object to procedural irregularities or jurisdiction. UCPR Form 007.

SUPREME COURT OF QUEENSLAND

REGISTRY: (As per Claim)

NUMBER: (As per Claim)

Plaintiff:(As per Claim)

AND

[First] Defendant(As per Claim)

AND

[Second Defendant](As per Claim)

CONDITIONAL NOTICE OF INTENTION TO DEFEND

TAKE NOTICE that the [First] Defendant disputes the jurisdiction of this court to entertain the Plaintiff's claim against the [First] Defendant without the [First] Defendant's consent [or: that the [First] Defendant says that the proceeding is irregular] for the following reasons:

(set out reasons)

Filed in the (place) Registry on (date):

Registrar: (registrar to sign and seal)

PARTICULARS OF THE [FIRST] DEFENDANT:

Name:

Defendant's residential or business address:

Defendant's solicitors name:

and firm name:

Solicitor's business address:

Address for service:

Dx (if any):

Telephone:

Fax:

E-mail address (if any):

[If the defendant has no solicitor:

defendant's address for service:

defendants telephone number or contact number:

defendants fax number (if any):

defendants e-mail address (if any)]

Signed: (defendant or solicitor)

Description: (of signatory)

Dated:

See Glassford, Cook and Co Pty Ltd v William Higson & Co (1899) 25 VLR 177 [Extracted 9.8.2C] swapping the unconditional for a conditional. See also Firth v John Mowlem and Co Ltd [1978] 1 WLR 1184 [Extracted 9.8.3C].

19.6 Appearance under protest

An appearance under protest is a common-law equivalent to a conditional appearance. UCPR r 144 requires that a conditional Notice of Intention to Defend be filed, instead of an appearance under protest.

19.7 Appearance gratis

A defendant does not have to wait until service before entering a Notice of Intention to Defend. He or she may enter an appearance gratis upon issue of the originating process. An appearance gratis can take the form of either a conditional or an unconditional Notice of Intention to Defend.

105 Personal service for originating process

(1) A person serving an originating process must serve it personally on the person intended to be served.

Farley & Lewers (Qld) Pty Ltd v Fitzgerald [1983] 1 Qd R 231 [extracted 9.10.2C]it is clear that an unconditional appearance could be entered before service.

20 Failure to enter a Notice of Intention to Defend

20.1 Waiver

Waiver is constituted by words or conduct of such a nature, that an inference can properly be drawn that the party does not intend to rely on the objection upon which he or she may otherwise be entitled to rely: Lindgran v Lindgran [1956] VLR 215 at 220.

20.2 Default judgment

Failure to enter a Notice of Intention to Defend is a common ground for applying for a default judgment.

21 Amendment, withdrawal and removal

A Notice of Intention to Defend may be withdrawn with leave of the court or with the consent of all parties: r 306 Form 028.

UCPR r 306 Withdrawal of notice of intention to defend

A party may withdraw the partys notice of intention to defend at any time with the courts leave or the consent of the other parties.

UCPR r 371 Effect of failure to comply with rules

(1) A failure to comply with these rules is an irregularity and does not render a proceeding, a document, step taken or order made in a proceeding, a nullity.

(2) Subject to rules 372 and 373, if there has been a failure to comply with these rules, the court may

(a) set aside all or part of the proceeding; or

(b) set aside a step taken in the proceeding or order made in the proceeding; or

(d) declare a document or step taken to be effectual; or

(e) make another order that could be made under these rules (including an order dealing with the proceeding generally as the court considers appropriate); or

(f) make such other order dealing with the proceeding generally as the court considers appropriate.

22 Review

22.1 Concluding Summary

In Topic 3 we have examined three main areas, commencing proceedings, service, and notice of intention to defend. When commencing proceedings, you should take into account jurisdiction, client care rules, and ethical considerations. There are two ways to commence an originating process Claim and Application. Service is the procedure by which a plaintiff informs a defendant of the claim being made. Personal service is the foundation of jurisdiction and is required for originating proceedings. It is also an essential requirement of natural justice. The rules provide for two main types of service personal service and ordinary service. Personal service is required for an originating process, otherwise ordinary service is usually sufficient. It is possible to have substituted service in circumstances where personal service is too difficult or impracticable and that the substituted method proposed must be likely to bring the proceedings to the defendants attention. Special service rules apply to different types of parties. A Notice of Intention to Defend (known as an appearance in other jurisdictions) enables the defendant to indicate to the plaintiff that the matter is intended to be defended. A Notice of Intention to Defend may be either conditional or unconditional.

22.2 Review Questions

Question 1

Which of the following factors are relevant in determining which forum in which to bring a proceeding?

Type of dispute.

Cost and convenience.

Amount involved

Plaintiffs location.

Question 2

The client care requirements require:

all law firms to establish a client complaint handling procedure.

solicitors to explain unreasonable delay to their clients.

a written agreement must be made between a solicitor and client, which sets out inter alia the work to be done by the solicitor, the cost of the work and how the fees are calculated.

lawyers to advise their clients about costs at the initial interview.

Question 3

The rules provide for which of the following types of originating process:

Writ.

Notice of Appeal.

Application.

Claim.

Question 4

The approved form for a claim is:

Form 1.

Form 9.

Form 5.

Form 2.

Question 5

Pre-action protocols:

are established by the Civil Dispute Resolution Act 2011 (Cth) s 4.

are established by the UCPR r 1.

do not exist under the UCPR.

are steps, which in some jurisdictions must be taken before commencing litigation.

Question 6

To serve a document personally,

the person serving it must give the document, or a copy of the document, to the solicitor intended to be served.

if the person does not accept the document, or copy, the party serving it may serve it by putting it down in the persons presence and telling him or her what it is.

it is necessary to show to the person served the original of the document.

the person serving it must give the document, or a copy of the document, to the person intended to be served.

Question 7

A claim remains in force for:

six months.

one year.

two years.

five years.

Question 8

Entry of an unconditional Notice of Intention to Defend waives:

objections to the jurisdiction of the court.

irregularities as to commencement.

irregularities in service.

irregularities in the originating process known to the defendant or obvious on the face of the process.

Question 9

A Notice of Intention to Defend,

can only be entered by a defendant either in person or through a solicitor.

can be entered by a partnership.

cannot be entered by or on behalf of an infant.

can arise in relation to a counterclaim.

22.3 Tutorial Problems

Problem 6

Matsuka Engineering, whose registered office is 3 Queen Street Brisbane, have instructed you to institute proceedings in the Supreme Court of Queensland seeking recovery of $900,000.00 in liquidated damages for breach of contract made on 30th March last year. The purchasers under the contract are listed as Dodgy Brothers (a partnership), and Dodgy Associates (a business name). Assume the partners of Dodgy Brothers are Arthur Dodgy (a resident of New Zealand); Sally Dodgy (a resident of Lord Howe Island) and Stuart Dodgy (a resident of Queensland).

Draft the initiating process using the correct court form assuming any necessary pleadings.

How should the parties be described on the originating proceedings?

In the proceedings against Dodgy Associates, are there any special requirements imposed upon the plaintiff Matsuka Engineering?

[Effort 40 min)

Problem 7

Four years ago in September, Peter was injured in a water-skiing accident on the Logan River, just North of Brisbane in Queensland. Peter lost control of his ski when the tow-rope snapped. Peter suffered injury when he fell and hit his head on a submerged log. Peters injury included moderate brain damage and incontinence. Peter was 17 years of age when the accident happened and had never skied before.

Peter had been encouraged to partake in water skiing by an advertisement in the local newspaper, placed by Skiing World Pty Ltd. Sam Skipper, the owner of Skiing World Pty Ltd assured Peter that it was easy to ski and that the 5 minutes training was sufficient, he was a natural, and would be perfectly safe.

Peters guardian, Samantha told Sam Skipper that he was negligent in not checking the wear on the tow rope and failing to keep a look out for submerged logs.

Assume Sam Skipper now lives in Snowtown, South Australia, and that a Statement of Claim seeking damages for the tort of negligence has been filed by Peters Guardian in the Supreme Court of Queensland. The time limited for a Notice of Intention to Defend is 28 days.

Can the Claim be served on Sam Skipper?

If Sam Skipper just receives the Claim in this form, with no other documents, can he challenge the process?

Sam Skipper wants the proceedings to be conducted in Adelaide. How can he achieve this outcome? What are his chances of success?

Assume that shortly after the accident, Sam Skipper sold the business and moved to California in the United States. The Claim issues using the correct Form with a time limited for appearance being 60 days.

Sam receives a Service and Execution of Process Act 1992 (Cth) notice in Form 5, with no other documents. What should he do?

Peter knows that Sam is now living in England. Sam has gone to extraordinary lengths to evade service and cannot be located. What can Peter do, and what are his prospects of success?

[Effort 50 min]

Problem 8

Stuart Orangebee has contacted your firm and provided you with the following summary of events in relation to his son Peter Orangebee. Stuart will be seeing you later today for an initial interview.

I am Peter Orangebee. I was born in Lightning Ridge on 18th November 1995. On the evening of 21st April 2005, I was a passenger in a car driven by my dad. We had gone to rent a video from the local video shop. The car park was dark as some of the lights had been broken. Glass lay on the ground beneath the light poles. On my way back to the car I tripped on a cement gutter, which tree roots had pushed above the surrounding curb. I fell and cut my arm on the glass and broke my leg in several places.The cut was a bad one. The broken leg meant that I could barely walk due to the pain. Dad drove me home and Mum called the ambulance. I was given Morphine and taken to the hospital. An x-ray revealed I had badly broken my leg and lacerated an artery in my arm. After an operation, in which a pin was inserted into my leg. I was in a cast for 8 weeks. For several weeks I was on pain killers and could not go to school. I failed several of my subjects and was required to repeat a year.At School I was captain of the rugby league team and had won several state junior athletics titles. I have an extensive collection of medals from little athletics. My dream was to become a professional league player. One of the competition teams had given me the opportunity to participate in a training camp for young talent.Given the state of my leg, I will not be able to become a professional league player. The orthopedic surgeon has told me that I have a permanent partial disability amounting to 12% of the function of my right leg. I now walk with a slight limp and find running painful. There is a strong possibility that I will need further surgery in a few years as my bones grow.I am now suffering from depression, as I do not know what to do with my life. My dreams have been shattered.

Draft an initiating process in the Supreme Court of Queensland. The name of the video shop is VideoChamp Pty Ltd, whose registered office is Level 3, 23 Oxford Street, Bulimba, QLD 4171. The video store is located at 23 Oxford Street, Bulimba, Qld 4171. The name of the owner of the shopping centre is William Husting of 12 Hawker Street, Balmoral, Qld, 4171. Peter and Stuart live at 13 Balmoral Pde, Balmoral, Qld, 4171. Assume any necessary facts in your pleading.

[Effort 50 min]

22.4 Debrief

After studying Topic 3 Instituting Proceedings you should be able to:

Instituting Proceedings

Identify the client care implications of instituting proceedings.

How to commence an action in the Supreme Court of Queensland.

Appreciate the difference between actions, matters and motions.

Service

Understand that service is the basis of jurisdiction.

Appreciate how the common law rules for service have been modified by statute.

Understand how to serve a party either personally or by ordinary service and distinguish when to do either procedure.

Apply the special rules for service in relation to special parties and actions.

Gain knowledge of the time limits applicable to service.

Know when substituted service is permissible and how to achieve this.

Know how to serve documents outside the jurisdiction.

Notice of Intention to Defend

Demonstrate an understanding of the concept of a Notice of Intention to Defend.

Articulate the implications of filing or failure to file a Notice of Intention to Defend.

22.5 Answers to Review questions

Question 1 (a)-(d)

Question 2(a)-(d)

Question 3(b)-(d)

Question 4(d)

Question 5(a), (c), (d)

Question 6(b), (d)

Question 7(b)

Question 8(a)-(d)

Question 9(a), (b), (d)

LAWS13017 # CIVIL PROCEDURE

STUDY GUIDE | WEEK 1

-28098742676525Court adjudication, Case Management and Alternative-347618790051Dispute ResolutionVersion 2.08 2024

CONTENTS

TOC h u z t "Heading 1,1,Heading 2,2,Heading 3,3,Heading 4,4,Heading 5,5,Heading 6,6,"FROM THE UNIT COORDINATOR1

SYLLABUS4

Introduction4

Unit Learning Outcomes4

Prescribed Textbook5

Reference Reading6

Assessment Tasks7

Scheme of Work7

1 Preview7

1.1 Introduction7

1.2 Objectives9

1.3 Prescribed Reading9

1.4 Reference Reading9

1.5 Key Terms9

2 What is procedure?10

3 The interdependence of substance and procedure10

4 Sources of civil procedural law11

4.1 Statutory jurisdiction11

4.2 Inherent jurisdiction13

5 The participants in litigation13

6 Adversarial and inquisitorial models14

7 The adversarial system in crisis?14

7.1 Efficiency14

7.2 The overriding purpose15

8 Role of the Judge16

8.1 Introduction16

8.2 Managerial judging16

9 Case Management16

9.1 Concepts16

9.2 Queensland Case Management17

9.3 Challenging case management decisions22

10 Alternative Dispute Resolution23

10.1 Introduction23

10.2 The growth in ADR23

10.3 ADR and the legal profession24

10.4 Court-Annexed ADR26

10.5 Types of ADR processes28

10.6 Negotiation29

10.7 Mediation30

10.7.1 Features of mediation31

10.7.2 National Mediator Accreditation System31

10.7.3 Power imbalances33

10.7.4 Enforcement of agreements to mediate34

10.7.5 Evaluating mediation34

10.8 Arbitration35

10.9 Technology and Dispute Resolution35

10.10 Artificial Intelligence in Legal Practice35

11 Review36

11.1 Concluding Summary36

11.2 Review Questions36

11.3 Tutorial Problems37

Self-study exercise:40

11.4 Debrief41

11.5 Answers to Review questions41

FROM THE UNIT COORDINATOR3324225838200

Welcome to Civil procedure. Since the dawn of civilisation humankind has settled disputes by warfare and diplomacy. Modern litigation is perceived by some as a sanctioned form of warfare.

Using Sun Tsus, The Art of War as an analogy the parties are the disputants wishing to gain territory or reclaim lost rights; their lawyers are the generals and foot soldiers assisting in this process; the Rules of Court and legislation are akin to terrain; the judge is all-powerful nature (governing weather, environmental conditions and the rules of the game); discovery and private detectives are the spies; and costs are represented by rapid consumption of wealth and mental strength. In such an environment, strategy and tactics often dominate over rational solutions. Parties and societies resources are consumed at an astonishing rate and community perception moves against the system.

But warfare is not the only solution. Diplomacy and what some perceive as alternative dispute resolution have always had their place. The categories of alternative dispute resolution have enlarged in recent times to encompass negotiation, mediation, case appraisal, mini trial etc. These forms of dispute resolution have played their part in modifying the development of the rules of Civil Procedure. So much so that a dedicated elective unit has been added to our degree on the topic of ADR.

Problems of Australian civil procedural law include:

Courts and associated procedures failing to keep pace with technology, including the ethical duties associated with Artificial Intelligence;

Defects in the way in which witnesses give evidence; namely varying performance, time delays, memory lapse, tutoring, advocates for particular parties and points of view;

The focus on the procedure, not the problem;

Inordinate delays;

Too much emphasis on an adjudicated solution at the risk of ignoring earlier dispute resolution alternatives;

Increasing numbers of ill-prepared self-litigants;

Perceived unfairness and evident frustration amongst litigants;

Insufficient procedures to exchange evidence at the earliest available opportunity;

Questions about the role of a civil jury;

The court is perceived as a hostile environment, including foreign rules, jargon and pressure;

The parties sanctioning delay;

Leaving the litigation to the parties devices results in unnecessary expenditure of time, cost and unfairness;

Non-supervision of cost rules;

Frustration of witnesses who are cut short when they want to tell their story;

The rich being able to afford better lawyers, producing an unfair biased result;

Inconsistent taxation treatment of corporations and individuals; and

Pressures on judges to relentlessly perform to meet the pressure of workload.

Politicians and the press blame lawyers (too much delay, restrictive practices which inflate costs). Lawyers blame the government (appoint more judges, throw more money at the problem).

Since 2005, there has been considerable change in the rules of court. Most of these changes represent rationalisation of the litigation system in an attempt to manage cost, delay and access to justice. The focus of law reform has been to address some of the problems previously identified, including:

Enabling and encouraging resolution of disputes by agreement rather than adjudication;

Expansion of case management;

Adoption of an overriding purpose;

Encouraging access to justice;

Providing cheaper, less labour intensive, and quicker means of adjudication;

Frank exchange of real contentions and relevant information through enlarging discovery and refining the scope of pleadings;

Movement away from the traditional adversarial system;

Introduction of Group Proceedings (Class actions in Queensland);

Movement towards uniformity of court rules within and between jurisdictions;

Covid-19 social distancing requirements impacted on how court cases are heard and pressure for technological improvement. Video-based hearings became part of normal practice.

For such reforms to succeed there needs to be a fundamental recognition of Australian procedural law and a change of mindset for all involved in dispute resolution. It is our aim in this unit to help achieve these reforms through educating future generations of lawyers.

Ms Andrea Turner4495800114300

I welcome your feedback and suggestions for future content. You can email me at a.turner3@cqu.edu.au.

Prof Stephen Colbran, Unit coordinator, Civil Procedure

Discipline of Law School of Business and LawCQUniversity Australia, Building 34, Bruce Highway, North Rockhampton, QLD 4702 Telephone: +61 07 49 23 2741

Facebook:https://www.facebook.com/CQU-Law-192901937531609/

Website: http://www.cqu.edu.au/law

Moral rights

This course was prepared by Professor Stephen Colbran.

SYLLABUS

Introduction

Civil Procedure aims to explore the issues of cost, delay and access to justice as critical issues in modern case management. The unit examines in detail the following issues in civil litigation: court adjudication under the adversarial system, alternative dispute resolution, jurisdiction, limitation of actions, instituting proceedings, service, appearance, parties and joinder, pleading, summary disposition, non-compliance, amendment and time, discovery, further means of obtaining evidence, affidavits, interlocutory procedures, disposition without trial, trial, appeal and new trial, costs and enforcement.

Civil Procedure is a Priestley 11 unit required for admission in Australia.

Unit Learning Outcomes

On successful completion of this unit, you will be able to:

Comprehend and critically examine the court adjudication process under the adversarial system in Queensland in comparison with a Civil Law inquisitorial system.

Articulate and apply the procedures of the Supreme Court of Queensland with reference to relevant legislation, rules, practice directions and court forms.

Research and draft appropriate pleadings for a hypothetical fact situation.

Apply Civil Procedure knowledge in a clinical setting.

Demonstrate an understanding of the project management of litigation.

Prescribed Textbook

Colbran, S., and Spender, P. Civil Procedure: Commentary and Materials (8th ed, 2022) LexisNexis.

Reference Reading

Alexander and Howieson, Negotiation Strategy Style Skills, 2nd ed, LexisNexis, 2010.

Azize et al, Pleading Precedents, 6th ed, Thomson Reuters, 2009.

Bamford, Principles of Civil Litigation, Thomson Reuters, 2010.

Boniface et al, Principles of Civil Procedure in New South Wales, 2nd ed, Thomson Reuters, 2012.

Boulle, Mediation: Principles, Process, Practice, 3rd ed, LexisNexis, 2011.

Bozzi, Principles of Civil Procedure Victoria, Lawbook Co, 2018.

Brandon and Robertson, Conflict and Dispute Resolution, Oxford University Press, 2007.

Cashman, Class Action Law and Practice, Federation Press, 2007.

Cairns, Australian Civil Procedure, 12th ed, Thomson Reuters, 2020.

Cairns, Principles of Civil Procedure in Queensland, Thomson Reuters, 2015.

Colbran and Jackson, LexisNexis Study Guide Civil Procedure, 2nd ed, LexisNexis, 2019.

Fisher and Ury, Getting to Yes, 1991, 1997.

Grave, Adams and Betts, Class Actions in Australia, 22nd ed, Thomson Reuters, 2012.

Hamilton et al, New South Wales Civil Procedures Handbook 2011, 2011.

Handford, Limitation of Actions, The Laws of Australia, Thomson Reuters, 2012.

Hunter, Cameron and Henning, Litigation: Evidence and Procedure, 7th edn, 2005, 2 Vols.

Legg, Regulation, Litigation and Enforcement, Thomson Reuters, 2011.

Mandikos, Civil Procedure, 2nd ed, Lawbook Co, 2009.

Mauet et al, Fundamentals of Trial Technique, 4th ed, Thomson Reuters, 2018.

Sourdin, Alternative Dispute Resolution, 5th ed, Thomson Reuters, 2016.

Spencer, Principles of Dispute Resolution, Thomson Reuters, 2011.

Stacy and Lavarch (eds), Beyond the adversarial system, 1999.

The Practitioners Guide to Civil Litigation, produced by the NSW Young Lawyers Civil Litigation Committee, 3rd ed, 2010: http://www.lawsociety.com.au/cs/groups/public/documents/internetyounglawyers/026375.pdf (accessed 3 May 2023).

Willis, Law Principles and Practice. Civil Procedure, Macmillan Education Australia, 2012.

Zillman and Hemming, Civil Procedure Q & A LexisNexis Questions and Answers, LexisNexis, 2016.

A Zuckerman, S Wilkins, J Adamopoulos, A Higgins, S Hooper and A Vial, Zuckerman on Australian Civil Procedure, LexisNexis, 2018.

Assessment Tasks

Written assessment 35%

Practical assessment 35%

Online Quiz 30%

Scheme of Work

WEEK TOPIC

1 Court adjudication, Case management and ADR

2 Jurisdiction and Limitation of Actions

3 Instituting proceedings, Service and Notice of Intention to Defend

4 Parties and Joinder, Class action, Non-compliance, Amendment and Time

5 Pleading and Summary Disposition

6 Disclosure

7 Further means of obtaining evidence and Affidavits

8 Interlocutory procedures

9 Disposition without Trial

10 Trial

11 Appeal and New Trial

12 Enforcement

1 Preview

1.1 Introduction

Most students initially do not understand what Civil Procedure is nor how it relates to substantive law. One approach is to think of civil procedure as the cement that binds substantive law together. Civil Procedure consists of procedural statutes, the rules of court, practice directions and practical techniques involved in conducting civil as distinct from criminal court cases. It is these elements combined with statute law and the common law that makes up our legal system.

This unit examines the procedures, which are available to litigate civil disputes in the Supreme Court of Queensland, District Court of Queensland and Magistrates Court of Queensland. The procedures are very similar to litigation processes in other Australian jurisdictions. Hence what you will learn in this unit is transferable, via similar rules, to other Australian States and Territory courts, as well as courts in the federal system (e.g. Federal Court).

15606578

The underlying structure of each Australian state Supreme Court is similar. Each is a single superior court which is the intermediate appeal court and the body primarily entrusted with the supervision of state and territory law, state and territory legal institutions and the local legal institutions: J Crawford and B Opeskin, Australian Courts of Law (OUP, 4th ed, 2004) 127.

Superior courts have power to regulate their own procedure and may punish summarily for contempt. The decisions of superior courts are not generally amenable to the writs of certiorari, prohibition or mandamus by which decisions of inferior courts and tribunals may be reviewed, although the decisions of statutory superior courts are reviewable under s 75(v) of the Constitution: M Aronson and B Dyer, Judicial Review of Administrative Action (Lawbook Company, 2004).

1.2 Objectives

After studying Topic 1 you will be able to:

understand the interaction between substantive and procedural law.

understand the source of procedural law.

distinguish between the adversarial and inquisitorial models.

critique the concept of case management.

outline preliminary court processes.

define Alternative Dispute Resolution.

discuss lawyers obligations before commencing litigation.

1.3 Prescribed Reading

Colbran, S., and Spender, P. Civil Procedure: Commentary and Materials (8th ed, 2022) LexisNexis Ch 1, 2, 3.

Visit the Conflict Resolution Network website www.crnhq.org (accessed 3 May 2023) and examine the free training material. Make sure you study: the Self-study guide, 12 skills summary, and the CR Kit.

1.4 Reference Reading

Cairns, Australian Civil Procedure (Thomson Reuters, 11th ed, 2016) Ch 2.

1.5 Key Terms

Adversarial system Under the adversarial model, two adversaries generally take charge of the procedural action.

Alternative Dispute Resolution ADR is an umbrella term for a variety of private and court-annexed dispute resolution process options such as mediation, conciliation, expert referral, and arbitration. For further study enrol in LAWS11068 Resolving Civil Disputes (ADR).

Case Management Case management is an approach to the control of litigation in which the court supervises or controls the progress of the case through its interlocutory phase.

Inherent jurisdiction Inherent jurisdiction allows the courts to regulate and prevent abuse of process.

Inquisitorial system Under an inquisitorial system, officials perform most of the activities.

Mediation Is a process of facilitated negotiation where the parties to a dispute, with the assistance of a neutral third party (the mediator), identify the issues in dispute, develop options, consider alternatives and endeavour to reach an agreement.

Practice Direction A direction issued by the court which deals with matters of practice and procedure not otherwise adequately dealt with by legislation or rules of court.

Procedural law Is the law, which governs the conduct of proceedings before the court.

Substantive law The law, which gives or defines the right.

Statutory jurisdiction Jurisdiction created by an Act of Parliament.

UCPR Uniform Civil Procedure Rules.

2 What is procedure?

Procedural law is the law which governs the conduct of proceedings before the court; that is, the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right: Poyser v Minors (1881) LR 7 QBD 329 at 333 per Lush J.

Civil procedure is seen primarily as a process for the resolution of disputes. While this unit generally deals with the rules and practices that regulate formal adjudication of civil disputes in a court, it is important to realise that such adjudication is quite atypical. Gantler reminds us of this in the following extract.

Gantler, Justice in Many Rooms, in Access to Justice and the Welfare State, (ed Cappelletti) (1981), 149-150 [extracted 1.2.2E].

3 The interdependence of substance and procedure

The rules of procedure are often referred to as adjectival rules in the sense that they qualify substantive rights. They are meant to regulate the way in which substantive rights and obligations are claimed, proved and enforced, without impacting on the definition of those rights. The interdependence of substantive and procedural law is shown in the following two comparative tables.

Substantive Law

Contract

Tort

Land Law

Family Law

Intellectual property Law

Procedural Law

Civil Legislation

Rules of Court

Practice Directions

Law of Evidence

Rules of Professional Conduct

Substantive Law

Breach of contract? or Violation of a tort?

Who is liable?

What remedies are available?

How are damages calculated?

Procedural Law

Which court has jurisdiction?

Has a limitation period expired?

What documents need to be discovered?

What evidence is admissible?

How and when will the trial be run?

Jolowicz, On the Nature and Purposes of Civil Procedural Law (1990) Civil Justice Quarterly 262 at 26670 highlights two important distinctions between the operation of substantive and procedural law:

Subjection to substantive law is involuntary, whereas recourse to procedural law is voluntary. In the overwhelming majority of cases, the person who supposes or knows himself or herself to be possessed of a substantive right is not compelled to enforce it by litigation; and

Substantive law is self-executing, whereas procedural law creates choices for the parties. Generally speaking, even where a procedural rule is mandatory in form, if the opponent chooses to do nothing about it, nothing will happen.

4 Sources of civil procedural law

Legislation

Rules Practice Directions

Inherent jurisdiction

Common law

4.1 Statutory jurisdiction

The legislative source of civil procedure in Queensland can be found in the Civil Proceedings Act 2011 (Qld) and the Supreme Court of Queensland Act 1991 (Qld).

The Civil Proceedings Act, Judiciary Act and Federal Court Act provide that procedural rules may be made by delegated legislation. The Rules of Court were originally made by the legislature, but are now subject to extensive alteration by the judges, to whom the legislature has granted wide-ranging powers to make delegated legislation relevant to the courts own procedures. The rules are devised by rules committees, which are composed of judicial officers and representatives of the government and the legal profession. The Rules of Court for Queensland are found in the Uniform Civil Procedure Rules 2009 (Qld).

The Federal Court and the High Court possess similar legislation: Judiciary Act 1903 (Cth); Federal Court of Australia Act 1976 (Cth). Among other things, this legislation establishes the court, its composition, administration and statutory powers.

The Rules of Court are not a code. The Rules of Court complement the inherent jurisdiction of the court. The inherent jurisdiction entitles the court to issue practice notes and directions. Practice directions are usually commentaries, which are issued by an officer of the court, to assist parties in preparing litigation. While practice notes and directions are not legally binding, courts may ensure they are complied with by exercising their inherent power to make an order against a party, such as a stay on proceedings or an order for costs. Any such order, however, is subject to the Rules of Court: see Gittins v WHC Stacey and Son Pty Ltd [1964-5] NSWR 1793.

4.2 Inherent jurisdiction

Supreme Courts have an inherent jurisdiction derived from their status as superior courts of record. The inherent power, as an incident of judicial power, provides superior courts with such power as is necessary to ensure that their procedures are capable of producing just outcomes. The overall purpose of the inherent jurisdiction is to allow the courts to regulate their process and to prevent abuse of process: Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264.

Dockray, The inherent Jurisdiction to Regulate Civil Proceedings (1997) 113 Law Quarterly Review 120 [extracted 1.4.6E] explores the nature of the inherent jurisdiction.

5 The participants in litigation

Following on from Jolowiczs observations mentioned earlier, during litigation the personal circumstances and characteristics of participants shape their potential access to justice and the role they play in the litigation and the outcomes achieved.

Keon-Cohen, The Mabo Litigation: A Personal and Procedural Account, 2000 [extracted 1.5.2E] describes the participants in a famous Australian indigenous land rights case. This work and case is important to an understanding of the context of the procedural system.

Generally the participants in a litigation include the parties in dispute, solicitors, barristers, ADR practitioners, witnesses, experts, the judiciary, court administration staff and in a broader sense could be said to include the media and the general public. Each litigation is unique and the degree to which various participants are involved varies.

Supreme Court Practice Direction No 18 of 2022 Digitally Recorded Proceedings: Means of Identifying proceedings, Those Appearing, and Witnesses sets out the requirements to identify all the participants in the litigation. This includes names of witnesses and how they are called to give evidence and appearance slips identifying who is appearing for a party. There are also other practice directions aimed at ensuring standard systems, for example Supreme Court Practice Direction No 1 of 2024 Citation of Authority which aims to use reported authorities, identify parts of judgments relied on, reference to subsequent judgments doubting or not following the case relied on etc, and ensure accurate citations. Standard systems help reduce costs.

Given the cost of litigation many parties seek to reduce the number of participants in a litigation by representing themselves (self-represented litigants) or see unbundled or limited scope representation, namely doing some of the work themselves and seeking professional help as and when required. Queensland Law Society Guidance Note 7 Limited scope representation in dispute resolution assists in helping practitioners understand their ethical obligations in this context. There is the potential for clients to seek to expand the help received but not the remuneration or retainer. To manage this potential over reliance the guidance note suggests assessing whether the matter was and remains suitable for limited scope representation, ensuring a written costs agreement is in place defining the scope of the retainer, ensuring clarity in roles and responsibilities, managing the scope of the retainer, confirming when the retainer is at an end, ensuring 3rd parties are aware of the limited nature of the retainer, and good standard practice - maintaining fiduciary duties, good file management practices and diligence.

6 Adversarial and inquisitorial models

Civil procedure systems have been classified along a dichotomy between adversarial and inquisitorial procedural models. Under the adversarial model, two adversaries generally take charge of the procedural action, while under an inquisitorial system, officials perform most of the activities (D Maleshin, The Russian Style of Civil Procedure (2007) 21 Emory Intl L Rev 543).

Maleshins attributes of each approach are summarized in the following table.

Adversarial

Pretrial conferences

Party-controlled pre-trial investigations

Trials as concentrated courtroom drama

Passive judges

Class actions

Party-selected and paid experts

Inquisitorial

Lack of distinction between pre-trial and trial phases

Active judges

Judicial proof taking and fact gathering

Judicial examination of witnesses?

Court-selected experts

The ALRC Review of the Adversarial System of Litigation: Rethinking the Federal Civil Litigation System [extracted 1.6.2E] sees the characteristics of the adversarial and inquisitorial models as legal families derived respectively from the common law and civil systems. There is cross-sharing between both approaches.

7 The adversarial system in crisis?

Flaws in the civil justice system, such as cost, delay and lack of access to justice, have prompted calls for greater efficiency, leading ultimately to profound systemic change through the development of overriding purposes, case management, redefining the role of the judge.

Some jurisdictions have instigated programs to support self-litigants see for example the efforts being made in the Fair Work Commission commencing in 2013 http://www.fwc.gov.au/documents/media/releases/6-May-2013.htm (no longer accessible).

Case management

Role of the judge

Managerial judging

Efficiency

Cost

Delay

Overriding objective

Access to justice

During the 1980s a combination of high costs and delays in Australian civil justice deterred aggrieved persons from pursuing claims and thereby reduced access to justice. Courts took a justice on the merits approach, which would often forgive non-compliance with procedural rules.

7.1 Efficiency

Zuckerman, Quality and Economy in Civil Procedure: The case for commuting correct judgments for timely judgments (1994) 14 Oxford J of Legal Studies 353 [see 1.11.1] argues for simplified procedures which can be invoked by both plaintiffs and defendants in order to obtain a speedy resolution of disputes, even though this may lead to a decline in accuracy of outcomes.

7.2 The overriding purpose

Adversarialism and party control of litigation has given way to a system where courts control the progress of individual matters in their lists by the use of case management practices. Case management has been facilitated by the development of overriding objective provisions in legislation and court rules that allow the courts to interpret procedural rules and individual orders to promote an overriding purpose. Courts account interests beyond those of the immediate parties to a proceeding. Judges have become litigation managers.

In Queensland the overriding philosophy is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense: UCPR r 5.

8 Role of the Judge

8.1 Introduction

The role of the judge has shifted from a passive role umpiring party control of litigation, to a managerial role controlling the litigation.

8.2 Managerial judging

Most judges have shifted from the traditional view to adopt a more active managerial stance. J Resnik, Managerial Judges (1982) 96 Harvard LR 376 at 3767 commented that in growing numbers:

judges are not only adjudicating the merits of the issues presented to them by litigants, but also are meeting with parties ... to encourage settlement of disputes and to supervise case preparation. Before and after the trial, judges are playing a critical role in shaping litigation and influencing results.

In the Australian Law Reform Commission (ALRC) Review of the Adversarial System of Litigation: Judicial and Case Management [extracted 2.2.3E] the ALRC explores some of the wider ramifications of managerial judging for the litigation system.

9 Case Management

The normal steps in a litigation are depicted in the following diagram.

Appeal

Execution

Judgment and costs

Trial

Set down for Trial

Exchange of witness evidence

Notices to produce and subpoenas

Disclosure

Defendant files a Defence and pleadings are completed

Default and Summary Judgment

Case management directions

The plaintiff commences an action

A dispute happens

-171449228600ADR processes

Particulars

Interlocutory disputes

-171449228600

Case management attempts to make the litigation process meet the following policy objectives:

Access to justice

Minimum delay

Minimum cost

Efficiency

9.1 Concepts

Case management is a system in which the court supervises or controls the progress of the case through its interlocutory phase. The term case management encompasses caseflow and caseload management. In particular, the terms caseflow management and case management are used interchangeably in the literature. See ALRC Review of the Adversarial System of Litigation: Judicial and Case Management [extracted 2.3.2E].

9.2 Queensland Case Management

Queenslands Uniform Civil Procedure Rules require courts to apply the rules with the objective of avoiding undue delay, expense and technicality, and of facilitating the purpose of the rules: Qld r 5(2) and Supreme Court of Queensland, Practice Direction No 18 of 2018 Efficient Conduct of Civil Litigation (17 August 2018) (PD 18 of 2018). Case management in the Queensland Supreme Court involves general case management principles for the majority of cases and specialist lists (including the Supervised Case List and Commercial List). Supreme Court of Queensland, PD 9 of 2023 Caseflow Management - Civil Jurisdiction establishes a general system to achieve rule 5 of the Uniform Civil Procedure Rules which provides:

The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.

Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.

In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.

The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.

PD No 9 of 2023 establishes a system to facilitate the procedurally fair, efficient, timely and cost effective resolution of civil proceedings, by monitoring the progress of individual proceedings and intervening when a proceeding is not progressing satisfactorily.

PD No 9 of 2023 (3) applies to civil proceedings:

instituted by claim (or ordered to proceed as if commenced by claim) in the Brisbane; and

to any other civil proceedings if ordered by the court.

PD No 9 of 2023 (4) does not apply to proceedings allocated to another managed list: for example, the Supervised Case List, the Commercial List, the Wills and Estates List or the Supervised Case List for Self-Represented Parties. It is also to be read in conjunction with PD4 of 2010 (as reissued on 8 April 2019) (consent orders of the Registrar).

It is based on an expectation that most proceedings will be ready for trial or otherwise resolved within 180 days of the filing of the defence (9). If the proceeding is not ready for trial or otherwise resolved within that time frame, the registry will issue a caseflow intervention notice. The plaintiff (11) must respond to the intervention notice within 28 days by:

Filing a Notice of Discontinuance (r 309)

Written notice of settlement (r 308A)

Requesting a Trial date (r 467)

Emailing a consent order to the Resolution Registrar and Caseflow Manager to facilitate timely resolution

In the absence of consent, an email to the Resolution Registrar and Caseflow Manager with the plaintiffs proposed orders and identifying points of disagreement.

If (a) ,(b) or (c) above are not followed with correct timelines then the proceeding goes to the Caseflow Management List (12) managed by the Resolution Registrar (15). Parties on this list can submit consent orders to the Resolution Registrar to determine, otherwise a caseflow management conference notice will issue or listing for caseflow review (16). The detailed requirements for consent orders are in 17-20. The caseflow conference and review process is outlined in 21-26.

There are consequences for non-compliance (27). Non-compliance with this practice direction or directions made under it may, on the application of a party, or at the judges own initiative, also result in:

an order under rule 371(2) (effect of failure to comply with rules);

an order under rule 374(5) (failure to comply with order);

a non-complying party being deprived of the costs of late compliance;

a non-complying party being ordered to pay the other partys costs thrown away by reason of the non-compliance, which may be fixed and payable immediately; and/or

the proceeding being listed for trial notwithstanding non-compliance.

Note that orders made under the case flow management system are procedural. Substantive issues requiring determination require an interlocutory application heard in the Applications jurisdiction. If a proceeding is listed for case flow review, the parties or their legal representatives must appear and be in a position to make informed submissions in relation to proposed orders to progress the proceeding. If they do not attend, orders adverse to their interests may be made in their absence.

Proceedings will be removed from the List (28) on the:

making of an order disposing of the matter (e.g. Summary judgment order);

filing of a Request for Trial date;

allocation of the proceeding to another managed list;

filing a Notice of Discontinuance; or

setting down of the proceeding for trial by order of the court.

Resolved proceedings are placed on the Caseflow Settlement List (29, 30).

Queensland promotes the use of ADR through mediation and case appraisal.

The parties must prepare a document management plan outlining the uses of technology in the litigation: Supreme Court of Queensland, Practice Direction No 10 of 2011 Use of Technology for the Efficient Management of Documents in Litigation (22 November 2011) (PD 10 of 2011). As in other jurisdictions, the plaintiff may have to serve specific documents on the defendant before a trial date is requested (e.g. statements of loss and damage in personal injury cases). Parties may not be permitted to rely on any documents in court if they have failed to provide them at this stage: see, for example, Qld rr 548, 551 in relation to personal injury and fatal accidents claims.

In most jurisdictions, the court will consider whether the case should be referred to mediation or another form of alternative dispute resolution (ADR) and make orders accordingly: Qld rr 319, 320. Pursuant to Pt 4 of the UCPR, ADR is part of the pre-trial management process. See also Pt 6 of the Civil Proceedings Act 2011 (Qld).

The Supreme Court has also developed specialist lists for particular types of proceedings.

2024/02 Building, Engineering and Construction list which is designed to improve the conduct of large and complex litigation with respect to those issues.

2023/08 Class actions list. This list applies to representative proceedings under part 13A of the Civil Proceedings Act 2011 (Qld).

2023/01 Commercial list. These are matters arising out of trade and commerce (13), e.g. business contracts, insurance, banking, IP, technology, partnership, import/export, natural resources, financial markets, data, tax, directors duties, shareholders rights etc.

2012/11 Supervised case list. This list is for represented parties. To the extent that it is consistent with the just determination of cases, supervision seeks to maximise the efficient utilisation of time allocated to the hearing of cases on the List. In particular, it seeks (3):

(a) to ensure that, at the trial, the parties focus on matters which are genuinely in issue in the case;

(b) to minimise time spent at trial proving matters which are not genuinely in issue;

(c) otherwise to ensure that evidence at trial is presented as efficiently as is consistent with a fair hearing of the case;

(d) to ensure that the prospects of settlement, whether of the whole case, or some issue or issues in the case, have been fully explored before dates are allocated for the trial of the matter;

(e) to ensure that a case is fully prepared, or at least sufficiently prepared, before trial dates are allocated to it;

(f) otherwise to minimise the risk of an adjournment of the trial.

2023/13 Supervised case list for proceedings involving self-represented parties: civil jurisdiction. Clause 3 states that this list is designed to ensure that matters in the Supreme Court in which a party is self-represented are dealt with efficiently by:

(a) ensuring that a case is prepared for trial as effectively and efficiently as possible;

(b) ensuring that the costs of litigation are reduced;

(d) using the benefits of more intensive supervision to ensure that cases involving a self-represented party can be dealt with efficiently;

(e) ensuring that the parties explore options to resolve their dispute without the need for trial;

(f) ensuring that a trial is fully prepared when a trial date is set;

(g) minimising the risk and costs of a trial being adjourned;

(h) ensuring that at trial the parties focus on the real issues genuinely in dispute; and

(i) ensuring that, consistently with the provisions of the UCPR and the need for the Court to remain impartial, self-represented parties have a fair opportunity to present their case.

It is a particularly important list given the prevalence of unrepresented litigants.

9.3 Challenging case management decisions

Where a judicial case management decision is challenged, conflicting views are often expressed as to the relative weight to be given to court efficiency and the interests of the parties to the individual case. These conflicting views are illustrated by the two High Court decisions: Sali v SPC Ltd (1993) 116 ALR 625 at 629 [extracted 2.6.4C] where it was held a judge is entitled to consider the effect of an adjournment upon court resources and the claims of litigants in other cases and Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 [extracted 2.6.7C] placed greater emphasis upon justice between the parties to the litigation when considering case management issues. The conflicts were resolved in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, (2009) 239 CLR 175 [extracted 2.7.8C] in favour of the first approach. The majority of the High Court stated:

97. The objectives of case management are now expressly stated in r 21 of the Court Procedures Rules. It cannot be overlooked that later rules, such as r 21, are likely to have been written with the decision in JL Holdings in mind (194). The purposes stated in r 21 cannot be ignored. The Court Procedures Rules make plain that the Rules are to be applied having regard to the stated objectives of the timely disposal of the proceedings at an affordable cost. There can be no doubt about the importance of those matters in litigation in the courts of the Australian Capital Territory.

98. Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a just resolution is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rules reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.

The High Court further considered the ambit of the overriding purpose in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management & Marketing Pty Ltd (2013) 250 CLR 303; 303 ALR 199 [2.7.12C]. Note the courts comments (at [57]) that courts must take a more robust and proactive approach to give effect to the overriding purpose when exercising their powers. Although parties continue to have the right to bring, pursue and defend proceedings in court, the conduct of those proceedings is firmly in the hands of the court, and it is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose: at [56].

10 Alternative Dispute Resolution

10.1 Introduction

14452377

There is no reason for disputants to bow down to the law and pursue litigation as a solution. In fact, Alternative Dispute Resolution is the most common way of resolving disputes. The Access to Justice taskforce, A Strategic Framework for Access to Justice in the Federal Civil Justice System, 2009, p 4 included a diagram of the complex pathway to court determination reproduced below. It indicates most disputes are resolved well before court proceedings.

To be successful at ADR it is essential to understand conflict. Christopher Moore in The Mediation Process: Practical Strategies for Resolving Conflict, 4th ed, Jossey-Bass, 2014, p 110 suggests when conducting a conflict analysis, it is helpful to have a conceptual map to identify and organize potential drivers or causes of conflict, opportunities for collaboration, and factors that influence the direction a dispute moves. Moore proposed the following Circle of Conflict: Causes of Disputes and Opportunities for Collaboration. See 3.1.6 of your textbook for an explanation of the model.

There are many approaches to ADR, but they all rely on communication. There are many communication techniques explained in your textbook at 3.1.8. Examples include active rather than passive listening, when to use open and close-ended questions and the importance of body language.

10.2 The growth in ADR

Mediation, negotiation, arbitration and other forms of ADR have ancient origins, but were re-discovered in the 1970s as a reaction to cost, delay and access to justice issues associated with litigation. Neighbourhood justice centres and community groups spurred the wider adoption of ADR. ADR gradually was incorporated into the formal justice system. Hence ADR exists within and also outside the justice system. A detailed timeline can be found at 3.1.10 of your textbook.

10.3 ADR and the legal profession

16575518

Statutory obligations, regulatory schemes, guidelines, and court requirements to negotiate in good faith and promote exchange of information all support the uptake of ADR by the legal profession. L Boulle, Mediation: Principles, Process and Practice (LexisNexis, 3rd ed, 2011) 143144 observes:

Various strands of litigation management enable courts to impose obligations and time-frames on litigants and to require them to participate in settlement conferences, case appraisal or mediation proceedings, drawing ADR closely into court proceedings. Moreover, costs sanctions can be imposed to deter parties from conducting their cases in an excessively adversarial manner. These innovations have been influenced by mediation thinking and ADR-inspired innovations. As a result modern litigation is not as formalized, adversarial and outcome-restricted as traditionally depicted and litigation, on one hand, and negotiation and mediation, on the other, can be viewed as systems on a continuum rather than distinct processes.

There are a range of matters related to ADR that lawyers may be involved in. These include:

obligations to use ADR as a precondition to litigation;

ethical obligations to swear that their clients case has reasonable grounds for success;

understanding and advising on appropriate dispute resolution methods;

structuring a dispute resolution process for a particular client or dispute;

drafting ADR provisions for agreements and understanding which clauses are likely to be enforceable;

preparing information to be used in a dispute resolution process;

identifying and arranging parties to be included in a dispute resolution process;

preparing or advising upon agreements to participate, such as mediation agreements;

attending dispute resolution processes, and if appropriate participating in the process;

providing advice to clients on their legal rights, obligations and duties with the aim of assisting in the generation and evaluation of options and solutions in ADR processes;

preparing or advising upon the legality, workability or enforceability of ADR agreements;

explaining rules and limitations of confidentiality in ADR processes; and

providing advice and assistance where appropriate to address any power imbalance faced by a client.

10.4 Court-Annexed ADR

Two important reasons for the growth in ADR in Australia have been the increased incorporation, referral and use by Australian courts of ADR processes, and the procedural requirement to take genuine or reasonable steps to resolve a dispute before litigation.

In most jurisdictions, courts have the express power to refer all or part of a civil dispute to an ADR process. Court rules and practice directions have also incorporated ADR into the case management system of most courts. Further, ADR may be provided by the courts, with registrars acting as mediators, conciliators, evaluators or arbitrators, or it may be provided by external ADR professionals.

The pros and cons of court-annexed ADR are discussed in your textbook at 3.3.1.

The Supreme Court of Queensland Act 1991 (Qld), Uniform Civil Procedure Rules 1999 (Qld) and District Court of Queensland Act 1967 (Qld) establish mediation and case appraisal as part of the pre-trial management process. Even before a trial date is allocated, the court considers whether a case should be referred to mediation or case appraisal. An action goes to trial only if these processes fail to reach an agreement.

Mediation is also available in Queensland through dispute resolution centres established pursuant to the Dispute Resolution Centres Act 1990 (Qld) and Dispute Resolution Centres Regulation 2009 (Qld). Arbitration is also available under the Commercial Arbitration Act 2013 (Qld).

Practice Directions relevant to ADR created by Supreme Court of Queensland Act 1991 (Qld) s 17 include:

2018/18 Efficient conduct of civil litigation

2022/17 Scheme for pro bono mediation in proceeding involving self-represented litigants

2012/11 Supervised case list

2011/10 Use of technology for the efficient management of documents in litigation

2001/08 Family Provision Applications

The Uniform Civil Procedure Rules 1999 (Qld) Part 4 has five divisions related to alternative dispute resolution.

Division 1 (s 313) has largely been repealed, but does define ADR costs, a referred dispute and registrar.

Division 2 (ss 319-322) deals with the establishment of ADR processes.

Division 3 (ss 323-333) deals with mediation.

Division 4 (ss 334-345) deals with case appraisal.

Division 5 (ss 346-351) deals with the costs of the ADR process.

The Civil Proceedings Act 2011 (Qld) Part 6 has 5 divisions. The first Division 1 deals with preliminary matters. s 37 provides that the objects of Part 6 ADR processes are:

to provide an opportunity for litigants to participate in ADR processes in order to achieve negotiated settlements and satisfactory resolution of disputes; and

to improve access to justice for litigants and to reduce cost and delay; and

to provide a legislative framework allowing ADR processes to be conducted as quickly, and with as little formality and technicality, as possible; and

to safeguard ADR processes;

(i) by extending the same protection to participants in an ADR process as they would have if the dispute were before a court; and

(ii) by ensuring they remain confidential.

Division 2 Interpretation (ss 39-41) defines an ADR process, Mediation and Case appraisal.

Division 3 ADR Process (ss 42-47) lets out how parties can agree or the court may refer a dispute to an ADR process. Procedures related to case appraisal, subpoena and what happens if a party is unable to pay their share of costs.

Division 4 At end of ADR process (ss 48-51) sets out rules for a Mediated resolution agreement, the documents to be filed and the associated orders.

Division 5 Protection, Immunity and confidentiality (ss 52-54) sets out the protections and immunities for ADR convenors, parties, witnesses and documents. Evidence obtained in ADR processes is not admissible at trial. Section 54 preserves confidentiality and creates a 50 penalty unit offence for breaches by ADR convenors.

10.5 Types of ADR processes

A very wide variety of alternative dispute resolution processes have developed, which we can broadly split between determinative processes (involve a third party making a decision or determination on the dispute, usually after hearing arguments and evidence.) and facilitative processes (involve a third party providing assistance in the management of the process of dispute resolution.).

NADRAC in Your Guide to Dispute Resolution 2013, p 7 suggests that when choosing the best dispute resolution process for you, to think about:

how the other people involved want to manage the dispute;

whether you want an independent person involved and, if you do, what you want them to do;

how structured you want the dispute resolution process to be;

what sort of relationship you want to have with the other people involved;

how much you are prepared to spend in time and money;

how much control you want over the process; and

how much control you want over making a decision or agreement.

Dispute resolution in Australia may be divided into two main types of processes: those in which the outcome is determined by a neutral third party (determinative) and those in which the outcome is determined by the disputing parties (facilitative). There are advisory processes that may assist either approach. The binary classification of ADR processes appears in the Table below.

Table: Classification of ADR processes

Determinative Facilitative

adjudication

arbitration

expert determination

private judging

fact-finding

early neutral evaluation

case appraisal

mini-trial facilitation

conciliation

mediation

ombudsmen

David Spencer, Principles of Dispute Resolution, 3rd ed, Thomson Reuters, 2020, p 9 suggests that people choose an ADR process based on the desired level of informality, disputant involvement, consensuality, intervention by a third person, perceived effectiveness, costs and delay.

Spencer translates this into a useful diagram showing the degree of informality, consensus, and intervention of each dispute resolution process (p 10):

Each of these processes are explained in your text at 3.4.2 - 3.4.14. A couple of these processes we will examine in more detail - Negotiation and mediation.

10.6 Negotiation

Mark Anstey, Negotiating Conflict: Insights and Skills for Negotiators and Peacemakers, Junta & Co, 1991, pp 912 defines negotiation as:

A verbal interactive process involving two or more people who are seeking to reach agreement over a problem or conflict of interest between them and in which they seek as far as possible to preserve their interests, but to adjust their views and positions in the joint effort to achieve agreement.

There are many theories and models of negotiation, but one method of categorisation is to view them through the lens of the relationship between the negotiating parties. Is there an existing relationship, a future relationship, one that can be repaired or redefined or is it simply beyond repair? Answers to these questions will influence the approach to negotiation and influence the possible outcome.

Negotiation has several advantages, over more structured and expensive dispute resolution processes, such as litigation:

The parties in conflict define their own resolution rather than having it imposed.

Negotiation is less corrosive of the relationship between the parties.

The parties are more committed to a solution they have designed and implemented.

The parties best understand the impact of the negotiated outcome on their position.

Parties are more likely to achieve at least part of their optimal outcome.

Negotiation may solve all or part of a dispute and narrow the issues proceeding to trial, reducing costs, delay and improving access to justice.

Negotiation may be broadly divided into adversarial negotiation and principled negotiation. The models can be used individually but are not mutually exclusive. For example, principled negotiation can be used to resolve all issues in dispute except one, quantum. As an overview D Spence, Principles of Dispute Resolution, 3rd ed, Thomson Reuters, 2020, p 55 provides this diagrammatic summary:

The main theorist for adversarial negotiation is Carrie Menkel-Meadow in Toward Another View of Legal Negotiation: The Structure of Problem Solving (1984) 31 University of California Law Review 755 whose theory expresses graphically the assumption that negotiations are linear win/lose games where Xs gain is Ys loss - see 3.5.4 of your textbook.

A model for principled negotiation (also known as problem-solving, interest-based, or cooperative) was first developed at Harvard Law School in the late 1970s, and later set out in the book by R Fisher and W Ury, Getting to Yes: Negotiating Agreements Without Giving in, 2nd ed, Arrow Books Ltd, London 1997. This was further expanded in R Fisher and D Ertel in Getting Ready to Negotiate, Penguin, 1995 - see 3.5.5 - 3.5.10E of your textbook.

10.7 Mediation

A mediation is a facilitated negotiation. Therefore, to understand mediation, it is important to understand negotiation and the differences in negotiating styles and theories previously outlined. Mediation is the most widely used alternative to litigation, and is widely associated with court-annexed ADR schemes. According to rule 1 of the Mediation Rules of the Resolution Institute:

mediation is a process in which parties to a dispute with the assistance of a neutral third party (the Mediator) identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or other determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted.

Rule 1: Definitions, Mediation Rules, Resolution Institute, <www.resolution.institute/documents/item/1897> (accessed 2 February 2022)

David Spencer in Principles of Dispute Resolution, 3rd ed, Thomson Reuters, Sydney, 2020, p 57, argues that the key elements of mediation, which may change depending on the type of mediation and the desire of the parties, include the following:

that the people to the dispute are assisted by a mediator;

issues are identified;

options are developed;

there is an effort to reach agreement;

the mediator is not an adviser;

the mediator does not decide the outcome of the dispute;

the mediator may advise on the process that will lead the people to resolution; and

mediation may or may not be voluntary.

Various models have been put forward to explain the mediation process. Two of the most common models are set out below.

Figure 1 Mediation process model. Source: <http://www.mediates.com.au/process.htm>, viewed 5 May 2018, but no longer accessible. The opening perhaps more accurately should be labelled the mediators opening.

Figure 2 Classical Mediation model. Adapted from D Spencer, Principles of Dispute Resolution (Thomson Reuters, Sydney, 2020) 78.

10.7.1 Features of mediation

Michael Noone identifies four principal characteristics of the process of mediation: accessible (resolve any dispute at any stage with a variety of structures), voluntary, confidential, and facilitative: M Noone, Mediation: A Practical Outline, Cavendish, London, 1996, pp 78. While the importance of these characteristics is not disputed, they may not always be present in each mediation. Each of these characteristics is explained in detail in your textbook at 3.7.3 - 3.7.18.

10.7.2 National Mediator Accreditation System

Mediators outside the family dispute resolution realm are governed by the National Mediator Accreditation System (NMAS), which came into effect in January 2008. As Sourdin observes at p 471 the NMAS scheme:

has established a framework that is directed at enabling the largely self-regulated mediation area to manage issues relating to credentialing and quality improvement into the future in a coherent manner.

The NMAS scheme has three tiers:

a system of accreditation which involves approval and practice requirements for mediators (the NMAS Australian National Mediator Standards: Approval Standards and Practice Standards ); and

a self-recognition framework for recognized mediation accreditation bodies (RMABs) these include professional bodies, mediation agencies, courts, tribunals and other entities;

an implementation body the Mediators Standards Board (MSB) that was officially launched in 2010.

The MSB has been established to fully implement the NMAS. It is also involved in developing complaint handling processes, the improvement of standards, the governance and funding of the MSB.

10.7.3 Power imbalances

As mediation is essentially a consensual process, it has been suggested that there is a real danger that the outcome of the process will simply reflect the power relationship between the parties. In particular, there may be a risk that the less powerful party in mediation will accept a less satisfactory outcome than would have been decided by a neutral third party, or may have such an outcome forced upon them by a stronger party. The mediators role does not include guaranteeing a fair outcome for both parties. The mediator facilitates the parties self-determination. Therefore, where there are power imbalances, or where one party is willing (for whatever reason) to accept an unfair outcome, mediation may produce unfair results.

Commentators have suggested that some kinds of power imbalance make mediation inappropriate. For example, mediation has been described as problematic in situations involving domestic abuse or violence, and in cases such as anti-discrimination cases and environmental rights disputes where an individual complainant may face the arrayed forces of developers, big business and government.

It is important, however, to keep the issue of power imbalance in perspective. Some degree of power imbalance will exist in most mediations. It cannot be avoided and does not mean mediation is necessarily inappropriate. This is especially true because the weaker party in the mediation may also be the one with fewer resources (both personal and financial) to spend on litigation. Moreover, the traditional justice system is not free of bias in favour of the rich and powerful.

10.7.4 Enforcement of agreements to mediate

Agreements to mediate can either be written into a contract between the parties or entered into after a dispute has arisen. An important issue is whether these agreements can be enforced, because the law has been reluctant to uphold agreements to agree and agreements to negotiate. This seems to turn on whether the clause is drafted with sufficient clarity. A clause requiring mediating in good faith may be uncertain to be enforceable.

Generally courts have been reluctant to enforce agreements to mediate in good faith. As stated in Walford v Miles [1992] 2 AC 128 at 138:

[T]he concept of a duty to carry on negotiations in good faith is inherently repugnant to the adversarial position of the parties when involved in negotiations. Each party to the negotiations is entitled to pursue his (or her) own interest, so long as he avoids making misrepresentations. To advance that interest he must be entitled, if he thinks it is appropriate, to threaten to withdraw from further negotiations or to withdraw in fact, in the hope that the opposite party may seek to reopen the negotiations by offering him improved terms.

10.7.5 Evaluating mediation

In recent years there have been an increasing number of empirical studies aimed at evaluating ADR processes. From this work, it is apparent that when litigants are made aware of ADR processes, many tend to prefer ADR over litigation and experience a high degree of satisfaction with its results:

T Sourdin, Alternative Dispute Resolution (Thomson Reuters, 4th ed, 2012) 515.

10.8 Arbitration

The process of arbitration has been used for centuries for the settlement of disputes between states, state entities, companies and private parties. In the context of private disputes, arbitration has traditionally developed to provide an alternative process for the resolution of commercial disputes. Australian arbitration law is shared between the International Arbitration Act 1974 (Cth) and a set of state laws governing non-international arbitration: Commercial Arbitration Act 2013 (Qld).

Arbitration has become a quasi-judicial process in which the arbitrator hears arguments and evidence, and renders a determination (an award) that is binding upon the parties. The process is adversarial in nature, and the arbitrator is required to act in a judicial manner and to apply legal principles in determining the dispute.

See 3.8.1 - 3.8.18 of your textbook.

10.9 Technology and Dispute Resolution

The development and diversification of ADR processes has been accelerated by changes in information technologies. With video conferencing, teleconferencing and online exchange of documents becoming cheaper, faster and more accessible, more disputants are turning to online dispute resolution (ODR)) to assist with the resolution of their disputes. There are online mediation services, virtual courtrooms and online ombudsman programs: see, for example, The Mediation Room, <www.themediationroom.com>; The National Center for Technology and Dispute Resolution, <www.odr.info> and complete end-to-end ODR services: Resolve Disputes Online < https://resolvedisputes.online/ >; Immediation < www.immediation.com/> (all accessed 2 February 2022).

10.10 Artificial Intelligence in Legal Practice

The Queensland Law Society Guidance Note 37 Artificial Intelligence in Legal Practice provides a framework for the responsible and ethical use of AI in legal practice. AI has broad implications for the ethical conduct of litigation and dispute resolution. Key issues include:

Ensuring practitioners must have a realistic understanding of the limits of AI and have processes to mitigate risk.

Maintaining confidentiality ensuring that AI does not misuse confidential data or unduly expose it to dissemination.

Transparency and disclosure - clients should be advised if an AI tool will be used when performing their work. The greater the use of AI the greater the obligation for disclosure. Appropriate risk mitigation strategies need to be discussed and put in place.

Supervision and Accountability - AI tools are an aid to, not a replacement for, professional judgment. Liability lies with the legal practitioner not the AI vendor for negligent service delivery or misleading third parties.

Legal costs - AI licensee fees charged on a per matter basis can be a disbursement included in a legal costs agreement. Time-based billing must remain accurate and not be inflated by the time it would manually take to complete a task, when an AI completed the task. The financial benefit of AI is afforded to the client, not the law firm. The Guidance note suggests that fixed fee or hybrid charging is a more appropriate pricing model where a significant AI component is involved.

11 Review

11.1 Concluding Summary

Topic 1 has defined procedural law and its interaction with substantive law. It has introduced you to the two main procedural families adversarial systems and inquisitorial systems and cross-fertilisation between the systems leading to concepts of case management and primary objectives. The topic also introduced you to alternative dispute resolution in its many forms and the idea that ADR should be a precursor to avoiding litigation.

11.2 Review Questions

Question 1

Civil procedure is:

the main method by which disputes are resolved.

the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right.

the law, which governs the conduct of proceedings before the court.

a set of adjectival rules that prevail over substantive rights.

Question 2

Which of the following is substantive as opposed to procedural law?

Rules of Professional Conduct.

Land law.

Law of Evidence.

Tort.

Question 3

Which of the following are procedural rather than substantive issues?

Jurisdiction.

Admissibility of evidence.

Limitation periods.

Calculation of damages.

Question 4

Which of the following are sources of civil procedural law?

Legislation.

Rules and Practice Directions.

Inherent jurisdiction.

Common law.

Question 5

Which of the following are not features of a pure adversarial system?

Court-selected experts.

Class actions.

Active judges.

Pre-trial conferences

Question 6

What are the main reasons for the argument that the adversarial system is in crisis?

Delay.

Uncertain role of judges.

Lack of access to justice.

Cost

Question 7

In Queensland the overriding objective is to:

facilitate access to justice by reducing delay and expense.

facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.

encourage parties to resolve disputes through alternative dispute resolution.

use managerial judging as a means to reduce costs, delay and enhance access to justice.

Question 8

Alternative dispute resolution has grown due to:

costs of litigation.

delay associated with litigation.

the growth of neighbourhood justice centres.

the growth of community centres.

Question 9

Which of the following is not a facilitative ADR process?

Mediation.

Arbitration.

Conciliation.

Ombudsman.

11.3 Tutorial Problems

Problem 1

Is it in lawyers interests to facilitate early and inexpensive resolution of disputes? Some have suggested that ADR stands for alarming drop in revenue. Does ADR threaten the livelihood of lawyers? Or does it make their services more relevant and accessible? Explain.

[Effort 30 min]

Problem 2

Personality Profile Questionnaire

Instructions: Tick the features that best describe you then total the scores in each quadrant. The box with the highest value is generally indicative of your personality type. A similar score in different quadrants indicates a personality mix. Next look at the cartoons to see what The Conflict Resolution Network suggests is your personality type. Finally consider the matching negotiation style suggested by your responses.

Orderly and systematic

Deliberate and unaggressive

Enjoys study and analysis

Critical thinker

Detailed and thorough

Well-organised

Likes accuracy

Weighs alternatives

Needs standard operating procedures

Likes detailed guidelines

Steady quite manner

Dislikes sudden or abrupt changes

Ambitious

Accepts challenges

Strong-willed

Takes initiative

Willing to confront

Makes decisions easily

Results-oriented

Sense of urgency

Takes authority

Assertive

Likes solving problems

Questions the status quo

Total Total

Orderly and systematic

Deliberate and unaggressive

Enjoys study and analysis

Critical thinker

Detailed and thorough

Well-organised

Likes accuracy

Weighs alternatives

Needs standard operating procedures

Likes detailed guidelines

Steady quite manner

Dislikes sudden or abrupt changes

Ambitious

Accepts challenges

Strong-willed

Takes initiative

Willing to confront

Makes decisions easily

Results-oriented

Sense of urgency

Takes authority

Assertive

Likes solving problems

Questions the status quo

Total Total

Eager to please

Helpful

Lacks interest in goal-setting

Not highly competitive

Has difficulty in saying no

Loyal

Calms excited people

Good listener

Needs security

Lets others take the initiative in social situations

Patient

Enjoys assisting others

Fun-loving

Socially outgoing

Sees possibilities

Informal

Persuasive

Energetic

Creative

Lack of concern for details

Likes participating in groups

Creates a motivational environment

Doesnt like to be hemmed in

Open with feelings

Total Total

Can you recognize anyone?

What about the details?

Contentious Do it my way

Direct

As long as everyone agrees;

Stabilising Lets have some fun too

Influencing

Negotiation Styles

Contentious

At worst At best

Fanatic Discriminating

Cautious Planner

Machine-like Evaluative

What to study?

Assertiveness

Self-assurance

Risk taking

Confidence Direct

At worst At best

Fighter Persistent

Dominant Leader

Arrogant Confident

What to study?

Think first

Be precise

Hear feedback on proposals

Be practical

Stabilising

At worst At best

Accommodator Facilitator

Hesitant Patient

Fence sitter Diplomatic

What to study?

Assertiveness

Self assurance

Risk taking

Confidence Influencing

At worst At best

Impulsive Catalyst

Verbose Spokesperson

Disorganised Optimistic

What to study?

Think first

Be precise

Hear feedback on proposals

Be practical

The Conflict Resolution Network, PO Box 1016, Chatswood, NSW 2057 Australia.

Self-study exercise:

Visit the Conflict Resolution Network website http://www.crnhq.org/ (viewed 8 April 2020). Examine the free training material. Make sure you study:

Free Training Material

12 skills summary

CR Kit

On the unit website post what your reflections on how accurate this exercise has been in describing your personality.

[Effort 50 min]

Problem 3

Create a flowchart outlining the mediation process under the UCPR. You can setup a free Lucidchart account to create your flowchart.

[Effort 30 min]

11.4 Debrief

After studying Topic 1 you should be able to:

understand the interactions between substantive and procedural law.

understand the source of procedural law.

distinguish between the adversarial and inquisitorial models.

critique the concept of case management.

define Alternative Dispute Resolution.

discuss lawyers obligations before commencing litigation.

11.5 Answers to Review questions

Question 1 (b), (c)

Question 2(b), (d)

Question 3(a) (c)

Question 4(a) (d)

Question 5(a), (c)

Question 6(a), (c), (d)

Question 7(b)

Question 8(a) (d)

Question 9(b)

SUPREME COURT OF QUEENSLAND

REGISTRY: BRISBANE

NUMBER: BS of

Plaintiff: (name)

AND

First Defendant: (name)

AND

Second Defendant: (name)

CLAIM

The plaintiff claims:

1.$X from the first defendant as the balance payable for goods sold.

2.$X from the second defendant as money payable under a guarantee.

3.interest pursuant to s 58 of theCivil Proceedings Act 2011(Qld).

4.costs.

The plaintiff makes this claim in reliance on the facts alleged in the attached Statement of Claim.

ISSUED WITH THE AUTHORITY OF THE SUPREME COURT OF QUEENSLAND

And filed in the (place) Registry on (date):

Registrar: (registrar to sign and seal)

To the defendants:

TAKE NOTICE that you are being sued by the plaintiff in the Court. If you intend to dispute this claim or wish to raise any counterclaim against the plaintiff, you must within 28days of the service upon you of this claim file a Notice of Intention to Defend in this Registry. If you do not comply with this requirement judgment may be given against you for the relief claimed and costs without further notice to you. The Notice should be in Form 6 to the Uniform Civil Procedure Rules. You must serve a sealed copy of it at the plaintiffs address for service shown in this claim as soon as possible.

Address of Registry: (insert relevant street address)

If you assert that this Court does not have jurisdiction in this matter or assert any irregularity you must file a Conditional Notice of Intention to Defend in Form7 under Rule144, and apply for an order under Rule 16 within 14 days of filing that Notice.

If you object that these proceedings have not been commenced in the correct district of the Court, that objection must be included in your Notice of Intention to Defend.

[The plaintiff is suing in a representative capacity namely (insert details see Rule 18)]

[The [first] defendant is sued in a representative capacity (insert details see Rule 18)]

[The plaintiff relies on the cross-vesting laws in respect of each claim (or as the case may be: see Rule 53. This applies only in the Supreme Court)]

CLAIM Name:

Filed on behalf of the Plaintiff Address:

Form 2, Version 1

Uniform Civil Procedure Rules 1999 Phone No:

Rule 22 Fax No:

PARTICULARS OF THE PLAINTIFF:

Name:

Plaintiffs residential or business address:

Plaintiffs solicitors name:

and firm name:

Solicitors business address:

Address for service:

DX(if any):

Telephone:

Fax:

E-mail address:(if any):

[If the plaintiff has no solicitor:

Plaintiff's address for service:

Plaintiff's telephone number or contact number:

Plaintiff's fax number(if any):

Plaintiff's e-mail address(if any):]

Signed:(plaintiff or solicitor to sign)

Description(of signatory eg. solicitor)

Dated:(insert date)

This Claim is to be served on:(First defendant's name)

of:(First defendant's address)

and on:(Second defendant's name)

of:(Second defendant's address)

*When the amount claimed is within the jurisdiction of the District Court, use the same form but substitute the word District for the word Supreme. When the amount claimed is within the jurisdiction of the Magistrates Court, use the same form but substitute the word Magistrates for the word Supreme. *The number is allocated when the claim is filed.*When the claim is filed it will be signed and dated by the registry.*The following must appear at the foot of the first page.

STATEMENT OF CLAIM

This claim in this proceeding is made in reliance on the following facts:

1.The plaintiff is and was at all material times a corporation.

2.By a written joint venture agreement dated 5 June <year> the plaintiff agreed with (name of joint venturer) to enter into a joint venture to purchase and develop a parcel of land for subdivision and sale of allotments.

3.It was a term of that agreement that the plaintiff would contribute by way of capital to the joint venture an amount not less than $500,000.

4.By an agreement in writing dated 5 June <year> the defendant, in consideration of the plaintiff's entering into the joint venture agreement, agreed to indemnify the plaintiff against any loss of the capital contributed by it to the joint venture, up to a limit of $300,000.

5.Subsequently the plaintiff contributed in excess of $500,000 to the joint venture as capital under the agreement.

6.The joint venture has been carried-out but the plaintiff has lost most of the capital contributed to it, namely $327,840.

7.The plaintiff has demanded payment of the sum of $300,000 from the defendant under the agreement in paragraph 4, by a letter from the plaintiff's solicitors to the defendant dated xx/xx/<year>.

8.In breach of that agreement the defendant has failed to pay to the plaintiff that sum or any part of it, and that sum is now due and payable from the defendant to the plaintiff.

The plaintiff claims the following relief:

1. $300,000 from the defendant as money payable under a contract;2. in the alternative, damage for breach of that contract;3. interest on $300,000 at [relevant % rate] per annum from xx/xx/<year> to the date of payment or judgment pursuant to s58 of theCivil Proceedings Act2011(Qld);4. costs.

Signed: (plaintiff or solicitor)

Description: (of signatory)

[This pleading was settled by (name) of Counsel.]

NOTICE AS TO DEFENCE

Your defence must be attached to your notice of intention to defend.

DEFENCE

The goods sold by the plaintiff to (name of debtor) included a quantity of (name of goods).

The plaintiff represented to (name of debtor) that the (name of goods) were suitable for (identify purpose).

Particulars

(give particulars of the representation in usual form)

(name of debtor) relied on that representation in purchasing those goods from the plaintiff.

The (name of goods) were not suitable for (identify purpose), because (explain why not).

That representation was made fraudulently, in that the plaintiff knew it was false, or made it recklessly not caring whether it was true or false.

Particulars

(identify who on behalf of the plaintiff knew or was reckless, and any other proper particulars)

As a result (name of debtor) suffered loss and damage, in that the sale price of some of the goods which had been resold had to be refunded, and the balance of the goods were worthless:

a. Price refunded$............

b. Overheads on processing refunds$............

c. Price paid for balance of goods$............

TOTAL$............

6.Accordingly the plaintiff was liable to (name of debtor) in the sum of $............ which (name of debtor) was entitled to set off against the amount owing to the plaintiff for goods sold [so as to extinguish it].

7.(Name of debtor) is insolvent and was on (date) ordered to be wound up by the Supreme Court of Queensland.

8.Accordingly the defendant is [to that extent] not liable to the plaintiff on the guarantee.

Because of the facts alleged in the counterclaim, the defendant is entitled to be relieved from liability on the guarantee.

COUNTERCLAIM

This counterclaim is made by the defendant against the plaintiff.

This counterclaim is made in reliance upon the following facts:

1.The defendant was at all material times the wife of (name of husband).

2.The guarantee the subject of the plaintiff's claim is in respect of the indebtedness to the plaintiff of (name of partnership).

3.At all material times (name of husband) was a member of that partnership, but the defendant was not.

4.At all material times the plaintiff knew that that was so.

5.The execution of the guarantee by the defendant was procured by (name of husband).

6.The plaintiff left the procuring of the guarantee to (name of husband) and took no steps to see to it that the defendant had independent advice or properly understood the implications of executing the guarantee.

7.The defendant did not understand the effect of the guarantee or the extent of her potential liability under it.

8.The defendant received no benefit from the execution of the guarantee.

The defendant claims the following relief:

1. a declaration that the guarantee is not binding on the Defendant.

2. an order that the guarantee be set aside and delivered up for cancellation.

(a)costs.

[The defendant elects trail by jury of the counterclaim.] (if the defendant elects under Rule 472 and no Act excludes trial by jury).

Signed: (defendant or solicitor)

Description: (of signatory)

[This pleading was settled by [name] of Counsel.]

NOTICE AS TO REPLY AND ANSWER

To the plaintiff: You have 14 days within which to file and serve an answer to this counterclaim. If you do not do so, rule 166 provides that allegations of fact in the counterclaim are taken to be admitted by you unless denied or stated to be not admitted by you in a pleading.

In answer to the Defence of the Defendant filed on X the First, Second, Third and Fourth Plaintiffs say as follows:

1. The First, Second, Third and Fourth Plaintiffs (the Plaintiffs) adopt and rely upon the admission in paragraph 1 of the Defence of the Defendant filed on X (the Defence) as to sub-paragraphs 1(a) and (b) of the Statement of Claim filed by the Plaintiffs on Y (the Statement of Claim).

2. The Plaintiffs:

a. adopt and rely upon the admission in paragraph 2 of the Defence as to sub-paragraph 1(c) of the Statement of Claim; b. join issue with the phrases self-company purchased by and through the proceeds as those phrases are not particularised sufficiently or at all in accordance with the UCPR; and

c. joins issue with the allegation that the First Plaintiff was purchased by the Fourth Plaintiff and the Defendant through the proceeds from X as that is contrary to fact.

3. As to paragraph 3 of the Defence the Plaintiffs:

a. join issue with the non-admission as to the directors of the First Plaintiff being the Third and Fourth Plaintiffs and repeat andrely upon paragraph 1(e) of the Statement of Claim; b. join issue with the non-admission as to there being no other directors of the First Plaintiff since X other than the Third and Fourth Plaintiffs and repeat and rely upon paragraph 1(f) of the Statement of Claim; c. join issue with the non-admission as to the shareholding of the First Plaintiff and repeat and rely upon paragraph 1(g) of the Statement of Claim; d. join issue with the non-admission as to the First Plaintiff not having a company secretary and repeat and rely upon paragraph 1(h) of the Statement of Claim; e. join issue with the non-admission as to the First Plaintiff not having a company secretary since X and repeat and rely upon paragraph 1(i) of the Statement of Claim;4. As to paragraph 4 of the Defence the Plaintiffs:

a. join issue with the allegation that the First Plaintiff is a holding Company as that is contrary to fact and law and say further that the First Plaintiff was not at the material time the sole shareholder or a shareholder at all of X;c. join issue with the phrases taken over by and the holding Company as those phrases are not particularised sufficiently or at all in accordance with the UCPR; and

d. repeat and rely upon paragraph 1(m) of the Statement of Claim.

5. The Plaintiffs:

a. adopt and rely upon the admission in paragraph 5 of the Defence as to sub-paragraphs 2(a), (b) and (c) of the Statement of Claim;b. join issue with the phrases was acquired by and by the monies from as those phrases are not particularised sufficiently or at all in accordance with Order 8 Rule 29 of the National Court Rules; and

REQUEST FOR FURTHER AND BETTER PARTICULARS OF THE DEFENCE FILED X

The Plaintiff requests the following further and better particulars of the Defence of the Defendant filed X:

1. As to paragraph 3 of the Defence the Plaintiff requests further and better particulars as to sub-paragraph (b) in that that sub-paragraph is not particularised sufficiently or at all as to why it is alleged the Defendant cannot plead in accordance with r 166(4) and rr 149(1)(a), (c), 150(4)(a), (c), 157(a) and (b) of theUniform Civil Procedure Rules 1999(Qld) (UCPR).

2. As to paragraph 5 of the Defence the Plaintiff requests further and better particulars as to sub-paragraph (a) as that sub-paragraph is not particularised sufficiently or at all by direct explanation as to which sub-paragraphs from paragraphs 2 and 3 of the Defence are referred to by the Defendant in accordance with r 166(4) and rr 149(1)(a), (c), 150(4)(a), (c), 157(a) and (b) of the UCPR.

3. As to paragraph 5 of the Defence the Plaintiff requests further and better particulars as to sub-paragraph (d) as that sub-paragraph is not particularised sufficiently or at all as to why it is alleged the Defendant cannot plead in accordance with r 166(4) and rr 149(1)(a), (c), 150(4)(a), (c), 157(a) and (b) of theUCPR.

Liability limited by a scheme approved under Professional Standards Legislation.

File Note

Date: Matter: Author: Time/Units:

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LAWS13017 # CIVIL PROCEDURE

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