Civil Procedures and Arbitration Topic 1: The Adversarial System Chapter one Introduction
Procedural law is the law which governs the conduct of proceedings before the court –“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)
Civil Procedures = primarily a process for the resolution of civil disputes JA Jolowicz:
- Purposes of procedural law are restricted to the provision of the institutions and rules of procedure best fitted to the fair, economical and expeditious adjudication of disputes which the parties choose to submit to the court.
- Process focuses on individual disputes
- Process of litigation as a whole has two other distinct but connected purposes:
“First, civil proceedings serve to demonstrate the effectiveness of the law; secondly they provide the opportunity for the judges to perform their function of interpreting, clarifying, developing and, of course, applying the law. Galanter:
The Interdependence of Substance and Procedure
- Courts not only produce decision but also messages
- If messages too discouraging -> justice will be denied and the law will be ineffective
- If messages too encouraging -> courts will be overloaded leading to delay
- One significant message -> prospect of success for individual litigant (matter of substantive law)
Rules of procedure referred to as ‘adjectival’ rules -> they qualify substantive (fundamental) rights Rules regulate the way in which substantive rights and obligations are claimed, proved and enforced, without impacting on the definition of those rights. Procedure is NOT about the law that creates the legal right or status, it relies upon the distinction between substantive and procedural law. Rules of procedure: trans-substantive in effect, that is, they are intended to be equally or similarly relevant to many different sorts of substantive disputes – Robert Cover
Jolowicz highlights two distinctions between the operation of substantive and procedural law:
Sources of Civil Procedure Law Statutory Jurisdiction – page 5 Civil Procedure Act 2005 (NSW) Inherent Jurisdiction – page 6
- 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 when a procedural rule if mandatory in form, if the opponenet chooses to do nothing about it, nothing will happen.
Supreme Courts have an inherent jurisdiction deriving 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 endure that their procedures are capable of producing just outcomes. 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- Mason –five
of inherent jurisdiction:
- ensuring convenient and fairness in legal proceedings;
- preventing steps being taken that would render judicial proceedings ineffective;
- preventing abuse of process;
- acting in aid of superior courts; and
- aiding or controlling inferior courts and tribunals
Mason describes these inherent powers as a ‘vast armoury of remedies’ that judges have developed to respond to the ‘limitless ways in which the due administration of justice can be delayed, impeded or frustrated.’ The Inherent Jurisdiction to regulate Civil Proceedings (M S Dockray):
The jurisdiction to exercise these powers was derived, not from any statute or rule of law, but from the very nature of the court as a superior court of law, and for this reason such jurisdiction has been called ‘inherent’…the essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused… The jurisdiction which is inherent in a superior court of law is that which enables it to fulfil itself as a court of law. Access to Civil Justice – the Context pg 11 The Adversarial and Inquisitorial Models of Litigation pg 16 Flaws in, and reform of, the civil justice system pg 30 Delay
The combination of high costs and endemic delays in the Australian civil justice during the 1980’s deterred people from pursuing claims and thereby reduced access to justice. This led to case management. – see page 31 Efficiency
The need of the community may be better served by faster and simpler proceedings, albeit at some cost to accuracy, than by a highly accurate procedure in which delays can rob judgements of their utility and in which expense places the protection of the law beyond the reach of the great majority – Zuckerman
It makes sense to trade some quality for speed and economy. Zuckerman’s arguments are based on a notion of distributive justice and Parker makes a similar point by asking why, in a world of finite resources, justice should be seen as more important than health or a basic standard of living…justice must always be rationed to some extent. Chapter two The role of the judge page 37-51
Adversarial Model of litigation:
Jones v National Coal Board 
- Party control
- Parties left to conduct proceedings as they see fit and according to their own timetables
- Judges assume passive role, intervening, like an umpire, only if the non-delinquent party seeks the imposition of sanctions
- Judge does not intervene in preparation or the preparation of a case; rather parties plan the preparation steps which lead to a climatic and self-contained trial
per Denning LJ: …The judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society as large… If he goes beyond this, he drops the mantle of a judge and assumes the role of an advocate, and the change does not become him well. Managerial Judging
Most judges have shifted from the traditional view to adopt a more active managerial stance. …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 – J Resnik
Implications of managerial judging:
Case Management – Concepts
- If judges require litigants to present their dispute in a certain manner and with an emphasis on what the judge has decided is the central issue, then the roles of the litigants, lawyers, and the court are altered.
- Focus of dispute resolution is no longer solely directed towards the final hearing. Rather, legal proceedings are viewed as a continuous series of meetings, hearing and written communications during which evidence is introduced, witnesses heard and motions made.
Case management is an approach to the control of litigation in which the court supervises or controls the progress of the case through management. The term ‘case management’ encompasses ‘caseflow’ and ‘caseload’ management (terms used interchangeably) Forms of case management involve the court managing the time and events involved in the movement of cases from commencement to disposition. Objectives:
- early resolution of disputes
- reduction of trial time
- more effective use of judicial resources
- the establishment of trial standards
- monitoring of case loads
- development of information technology support
- increasing accessibility to the court
- facilitating planning for the future
- enhanced public accountability
- the reduction of criticism of the justice system by reason of perceived inefficiency
Fundamental elements of successful case caseflow management system:
- judicial commitment and leadership
- court consultation with the legal profession
- court supervision of case progress
- the use of standards and goals
- a monitoring information system
- listing for credible dates
- strict control of adjournments
Models of caseflow management:
- management involving continuous control by a judge, who personally monitors each case on an ad hoc basis; and
- management where control is exercised by requiring the parties to report to the court (often in the form of a master or registrar) at fixed milestones and where the court exercises routine and structured control
Above methods called ‘individual lists’ and ‘master list’ respectively. Master list method most used in Australia. Case Management Examples
Interesting or unique aspects of various case management techniques that are used in Australian jurisdictions: Hybrid – Master List with management of certain cases”: Australian Capital Territory and Tasmania
Rely on a master list for the greater volume of their work Matter involving a claim for debt or death or bodily injury fall within the master list system (the plaintiff must nominate the cause of action on the originating claim – r1302) In Tasmania, the matter list operates with respect to the claims for damages for personal injuries. Court initiating directions hearings: NSW – Supreme Court Common Law Division, South Australia and Western Australia
Upon a triggering event (e.g the filing of a defence); the notification of an address for service, or an appearance, the court requires the parties to attend court for a Directions Hearing (also known as status conference or a status hearing). The obligation applies to all cases commenced, with minor exceptions. Queensland and Northern Territory Method – page 43 Individual Docket: Federal Court
Individual docket method adopted by all Federal Court registries Method involves each case being allocated to a particular judge who will ordinarily be responsible for that case from commencement to disposition. Rationale of system: It is preferable for one judge only to make decisions about the issues in the case and to establish continuity from the pre-trial to trial phases of a proceeding. Individual Docker System – Federal Court Home page:
The individual docket system aims to encourage the just, orderly and expeditious resolution of disputes. It also seeks to enhance the transparency of the process of the court. Key elements:
- Cases are randomly allocated to judges
- Case remains with same judge from commencement until disposition
- Docket judge makes orders about the way in which the case should be managed or prepared for hearing
- Court may direct that special procedures be used, including case management conferences and referrals to mediation
- Docket judge monitors compliance with directions, deals with interlocutory issues and ensures that hearing dates are maintained
- Saving in time and costs resulting from the Docket judge’s familiarity with the case
- The system seeks to eliminate the necessity to explain the case afresh each time it comes before a judge
- Consistency of approach throughout the case’s history
- Fewer management events with greater results
- System aims at reducing the number of directions hearings and other events requiring appearances before the Court
- Discouragement of Interlocutory disputes or, alternatively, swift resolution of those disputes
- Better identification of cases suitable for assisted dispute resolution (mediation).
- Earlier settlement of disputes or, failing that, a narrowing of the issues and a consequent saving of Court time
- Early fixing of trial dates and maintenance of those dates
Special Leave Applications – High Court
- Judges allocate hearing dates for matters in their own dockets
The High Court controls its case load in its appellate jurisdiction by requiring appellants to qualify for special leave before an appeal will be heard Morris v R (1987)
per Dawson J: Appellant must show “some special feature of the case which warrants the attention of [the] court” in order for special leave to be granted Inclusive criteria in s 35A of the Judiciary Act 1903 Integration of Alternate Dispute Resolution Processes
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: section 26 and 28 Civil Procedure Act 2005
Appropriate dispute resolution is defined to mean a process attended, or participated in, by a party for the purpose of negotiating a settlement of the civil proceeding or resolving or narrowing the issues in dispute. This includes but is not limited to:
Mediation as case management pg 48-49 Mediation as case management
- early neutral evaluation
- judicial resolution conference
- settlement conference
- reference of a question, a civil proceeding or part of a civil proceeding to a special referee
- expert determination
- conciliation; or
Referral to mediation as part of a case management process must facilitate the progress of litigation and not be another cause of delay:
Using mediation as case management
- the consequences of failed mediation for delay and attitudes of parties need to be understood
- when their staff act as mediators courts have an extra investment of resources in the process
Courts need to address these issues and find solutions in order for effective use of mediation If courts are to continue to take part in referral of cases to mediation attempts have to provide guidelines for those making referral decisions. Guidelines must give assistance on:
- Character of the parties-
- relationship between parties
- parties’ understanding of the process and likely outcomes
- assessment of the bargaining power of each party
- parties’ willingness to settle
- Character of the case –
The Development of the overriding Purpose pg 50
- amount at stake
- complexity of legal issues
Case management does not of itself alter in anyway the purpose for which the litigation process is carried out – Sorabji
As case management became increasingly interventionist, it was necessary for the courts to articulate this purpose through the overriding objective or overriding purpose. It represents civil procedure’s first explicit guiding principle, its first explicit all controlling policy objective – Sorabji
This objective introduced a new concept of justice into…civil procedure; [which was] committed to proportionality rather than…an unalloyed commitment to the achievement of ‘justice on the merits approach’ Defined as a statement of an overriding philosophy expressed in legislation or court rules that ‘the court must manage litigation to bring cases to an early and economical disposition consistently with the needs of justice’ Topic 2: Pleading and Joinder of claims and parties, representative and class actions Chapter ten Introduction
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. Example: section 29 Supreme Court Act 1986 (Vic); section 63 Supreme Court Act 1970 (NSW) – see section pg 18 Such a provision should be liberally construed – Roberts v Gippsland Agricultural and Earth Moving Contracting Pty Ltd  Note:
Rules regarding Joinder of parties and causes of action, cross claims, counterclaims, and third party proceedings
Uniform Civil Procedure Rules 2006 (NSW) part 6 division 5 and 6 Part 6 – Commencing proceedings and appearance Division 5 – Joinder of causes of action and joinder of parties 6.18 Joinder of causes of action
- High Court Rules 2004 Part 21 — Parties
- Federal Court Rules Part 9
(cf SCR Part 8, rule 1; DCR Part 7, rule 1; LCR Part 6, rule 1) (1) In any originating process, the plaintiff may claim relief against the defendant in respect of more than one cause of action in any of the following circumstances: (a) if the plaintiff sues in the same capacity, and claims the defendant to be liable in the same capacity, in respect of each cause of action, (b) if the plaintiff sues: (i) in his or her capacity as executor of the will of a deceased person, or administrator of the estate of a deceased person, in respect of one or more of the causes of action, and (ii) in his or her personal capacity, but with reference to the estate of the same deceased person, in respect of the remaining causes of action, (c) if the plaintiff claims the defendant to be liable: (i) in his or her capacity as executor of the will of a deceased person, or administrator of the estate of a deceased person, in respect of one or more of the causes of action, and (ii) in his or her personal capacity, and in relation to the estate of the same deceased person, in respect of the remaining causes of action, (d) if the court grants leave for all of the causes of action to be dealt with in the same proceedings. (2) Leave under subrule (1) may be granted before or after the originating process is filed. 6.19 Proceedings involving common questions of law or fact
(cf SCR Part 8, rule 2; DCR Part 7, rule 2; LCR Part 6, rule 2) (1) Two or more persons may be joined as plaintiffs or defendants in any originating process if: (a) separate proceedings by or against each of them would give rise to a common question of law or fact, and (b) all rights of relief claimed in the originating process are in respect of, or arise out of, the same transaction or series of transactions, or if the court gives leave for them to be joined. (2) Leave under subrule (1) may be granted before or after the originating process is filed. 6.20 Proceedings affecting persons having joint entitlement
(cf SCR Part 8, rules 3 and 4; DCR Part 7, rules 3 and 4; LCR Part 6, rules 3 and 4) (1) Unless the court orders otherwise, all persons jointly entitled to the same relief must be joined as parties in any claim for that relief that is made by any one or more of them. (2) Unless the court orders otherwise, any other such person is to be joined: (a) as a plaintiff, if he or she consents to being a plaintiff, or (b) as a defendant, if he or she does not consent to being a plaintiff. (3) Despite subrule (1), a person may not be joined as a party to proceedings in contravention of any other Act or law. See, for example, section 62 of the Bankruptcy Act 1966 of the Commonwealth. 6.21 Proceedings affecting persons having joint or several liability
(cf SCR Part 8, rule 5; DCR Part 7, rule 5; LCR Part 6, rule 5) (1) A person who is jointly and severally liable with some other person in relation to any act, matter or thing need not be a defendant in proceedings with respect to that act, matter or thing merely because the other person is a defendant in those proceedings. (2) In any proceedings in which a defendant is one of a number of persons who are jointly, but not severally, liable in contract or tort, or under an Act or statutory instrument, the court may order that the other persons be joined as defendants and that the proceedings be stayed until those other persons have been so joined. 6.22 Court may order separate trials if joinder of party or cause of action inconvenient
(cf SCR Part 8, rule 6; DCR Part 7, rule 6; LCR Part 6, rule 6) If the court considers that the joinder of parties or causes of action in any proceedings may embarrass, inconvenience or delay the conduct of the proceedings, the court: (a) may order separate trials, or (b) may make such other order as it thinks fit. 6.23 Effect of misjoinder or non-joinder of parties
(cf SCR Part 8, rule 7 (1); DCR Part 7, rule 7 (1); LCR Part 6, rule 7 (1)) Proceedings are not defeated merely because of the misjoinder or non-joinder of any person as a party to the proceedings. 6.24 Court may join party if joinder proper or necessary
(cf SCR Part 8, rule 8 (1); DCR Part 7, rule 8 (1); LCR Part 6, rule 8 (1)) (1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party. (2) Without limiting subrule (1), in proceedings for the possession of land, the court may order that a person (not being a party to the proceedings) who is in possession of the whole or any part of the land (whether in person or by a tenant) be added as a defendant. 6.25 Joinder as plaintiff requires party’s consent
(cf SCR Part 8, rule 8 (2); DCR Part 7, rule 8 (2); LCR Part 6, rule 8 (2)) A person is not to be joined as a plaintiff in any proceedings except with his or her consent. 6.26 Joinder to recover costs
(cf SCR Part 52A, rule 4 (3) and (4)) (1) Except to the extent to which these rules expressly provide, a party may not join another person as a party to any proceedings for the purpose of making an application for costs against the other person. (2) This rule does not apply: (a) if the other person would otherwise be a proper party to the proceedings, or (b) if the party joins the other person by means of a cross-claim in respect of a claim for costs against the party. 6.27 Joinder on application of third party
(cf SCR Part 8, rule 8; DCR Part 7, rule 8; LCR Part 6, rule 8) A person who is not a party may apply to the court to be joined as a party, either as a plaintiff or defendant. 6.28 Date of commencement of proceedings in relation to parties joined
(cf SCR Part 8, rule 11 (3) and (4); DCR Part 7, rule 11 (3); LCR Part 6, rule 11 (3)) If the court orders that a person be joined as a party, the date of commencement of the proceedings, in relation to that person, is taken to be the date on which the order is made or such later date as the court may specify in the order. Division 6 – Removal of parties 6.29 Removal of parties by order
(cf SCR Part 8, rule 9; DCR Part 7, rule 9; LCR Part 6, rule 9) The court may order that a person: (a) who has been improperly or unnecessarily joined, or (b) who has ceased to be a proper or necessary party, be removed as a party. 6.30 Effect of certain changes on proceedings
(cf SCR Part 8, rule 10; DCR Part 7, rule 10; LCR Part 6, rule 10) (1) Proceedings do not abate as a result of a party’s death or bankruptcy if a cause of action in the proceedings survives. (2) If a cause of action survives, and the interest or liability of a party to any proceedings passes from the party to some other person, the court may make such orders as it thinks fit for the joinder, removal or re-arrangement of parties. (3) Without limiting subrule (2), if a party to an application under section 20 of the Property (Relationships) Act 1984 dies, the court may order the substitution of the legal representative, as mentioned in section 24 (1) of that Act, as a party to the application. 6.31 Court may dismiss proceedings not prosecuted following death of party
(cf SCR Part 8, rule 12; DCR Part 7, rule 12; LCR Part 6, rule 12) (1) This rule applies to any proceedings in which: (a) a party dies, but a cause of action in the proceedings survives his or her death, and (b) an order for the joinder of a party to replace the deceased party is not made within 3 months after the death. (2) The court may order that, unless an application to join a party to replace the deceased party is made within a specified time, the proceedings in relation to the cause of action concerned be dismissed. (3) An application for such an order may be made by any person to whom the deceased party’s liability in relation to the cause of action concerned has passed (whether or not a party to the proceedings). (4) On making an order under this rule, the court may give such directions as it thinks fit for service of the order on any person (whether or not a party to the proceedings) who is interested in continuing the proceedings. Uniform Civil Procedure Rules 2006 (NSW) part 9 Part 9 – Cross-claims 9.1 Making of cross-claim
(cf SCR Part 6, rule 10; DCR Part 20, rule 10; LCR Part 18, rule 1) (1) A party (“the cross-claimant”
) may make a cross-claim: (a) in proceedings commenced by statement of claim, within the time limited for the party to file a defence, or (b) in proceedings commenced by summons, before the return day specified in the summons, or within such further time as the court may allow. (2) A cross-claim is to be made: (a) by statement of cross-claim, in the case of a cross-claim in proceedings commenced by statement of claim, or (b) by cross-summons, in the case of a cross-claim in proceedings commenced by summons. (3) Subject to this Part, these rules apply to a statement of cross-claim and cross-summons in the same way as they apply to a statement of claim and summons, respectively. (4) In any proceedings, each cross-claim is to be numbered (“first cross-claim”, “second cross-claim” and so on) in the order in which the cross-claims are filed. (5) For the purposes of rule 4.2 (2) (d), the identification of a document as a cross-claim must include the number given to the cross-claim under this rule. 9.2 Existing parties need not enter separate appearance
A party against whom a cross-claim is made (“the cross-defendant”
) is not required to enter an appearance if he or she: (a) is a party to the proceedings in which the cross-claim is made, and (b) has entered an appearance in those proceedings. 9.3 Cross-claimant may rely on previous pleadings
(cf SCR Part 6, rule 11; DCR Part 20, rule 11; LCR Part 18, rule 1) A cross-claimant may, in the cross-claim, plead all or any of the facts on which he or she relies by reference to the previous pleadings in the proceedings from which the cross-claim arises. 9.4 Defence
The cross-defendant must include in his or her defence to a statement of cross-claim any grounds on which he or she disputes the claim made by the cross-claimant. 9.5 Default of cross-defendant to cross-claim
(cf SCR Part 6, rule 7; DCR Part 20, rule 7) If a cross-defendant does not file a defence to a statement of cross-claim in accordance with these rules or an order of the court: (a) any judgment (including summary judgment, judgment by default or judgment by consent) on any claim, question or issue in the proceedings, so far as it is relevant to the cross-claim, and (b) any decision (including any decision by consent) on any claim, question or issue in the proceedings, so far as it is relevant, is binding, as between the parties to the cross-claim, unless the court orders otherwise. 9.6 Service on active parties
(cf SCR Part 6, rule 5; DCR Part 20, rule 5) (1) If a cross-defendant is an active party, personal service of a statement of cross-claim or cross-summons on that party is not required. (2) Rule 10.16 (Service by filing) does not apply to service of a statement of cross-claim or cross-summons. 9.7 Service on new parties
(cf SCR Part 6, rule 5; DCR Part 20, rule 5; LCR Part 18, rule 1) (1) This rule applies to the service of a statement of cross-claim or cross-summons on a person who is not already a party to the proceedings from which the cross-claim arises. (2) When serving the statement of cross-claim or cross-summons, the cross-claimant must serve on the cross-defendant both the originating process in the proceedings from which the cross-claim arises and such of the following documents as have been filed by or served on the cross-claimant: (a) in proceedings commenced by statement of claim or in which a statement of claim has been filed, any other pleadings, (b) in proceedings commenced by summons, any other cross-summonses, (c) any notices of motion not finally disposed of, (d) any affidavits, other than affidavits that are not relevant to the questions arising on the cross-claim, (e) any other documents that have been served by the plaintiff on the defendant, or by the defendant on the plaintiff, and are intended to be relied on, (f) any amendments to any of the documents referred to in paragraphs (a)-(e). (3) Service of a statement of cross-claim or cross-summons must be effected in accordance with the provisions of these rules with respect to service of originating process. 9.8 Directions
(cf SCR Part 6, rule 4; DCR Part 20, rule 4; LCR Part 18, rule 4) The court, at any stage of the proceedings: (a) may order that any cross-claim, or any question in or arising on any cross-claim, is to be separately tried, and (b) may direct generally the extent to which the usual procedures at a trial or hearing are to be modified because of the joinder of the cross-defendant. 9.9 Proceedings to continue together
(cf SCR Part 6, rule 6 (1); DCR Part 20, rule 6 (1); LCR Part 18, rule 3 (1)) Unless the court orders otherwise, proceedings on a cross-claim are to be carried on together with the proceedings from which the cross-claim arises. 9.10 Cross-claim may be separately prosecuted
(cf SCR Part 6, rule 8; DCR Part 20, rule 8; LCR Part 18, rule 3 (5)) (1) A cross-claim may proceed even if: (a) judgment has been entered on the originating process in the proceedings from which the cross-claim arises or any other cross-claim in the proceedings, or (b) the proceedings on the originating process or any other cross-claim have been stayed, dismissed, withdrawn or discontinued. (2) Proceedings on the originating process in the proceedings from which the cross-claim arises may proceed even if: (a) judgment has been entered on any cross-claim in the proceedings, or (b) the proceedings on any such cross-claim have been stayed, dismissed, withdrawn or discontinued. 9.11 Contribution or indemnity
(cf SCR Part 6, rule 9; DCR Part 20, rule 9; LCR Part 19, rule 1) (1) If a defendant makes a cross-claim for contribution or indemnity in respect of a claim made against the defendant in the proceedings, judgment on the cross-claim: (a) is not to be entered except by leave of the court, and (b) is not to be enforced until any judgment in the proceedings against the defendant has been satisfied. (2) If a cross-claim in any proceedings includes a claim for contribution under section 5 of the Law Reform (Miscellaneous Provisions) Act 1946
in respect of a claim made in the proceedings against the party by whom it is filed, a defence to the cross-claim, or subsequent pleadings on the cross-claim, may not be filed unless the court so directs. Res Judicata and Issue Estoppel Introduction
The plea of res judicata
applies where a court has given judgement in relation to matters that are the subject of litigation It precludes
the relitigation of claims made in earlier proceedings between the same parties, in respect of the same subject matter Sometimes described as cause of action estoppel Issue estoppel
is concerned with the redetermination of a finding made in earlier litigation Port of Melbourne Authority v Anshun Pty Ltd (No. 2)(1981)
– Litigation estoppel or Ashun Estoppel introduced Litigation estoppel applies to those claims which could have been made in an earlier proceeding and which are subsequently sought to be litigated This form of estoppel is an instance of res judicata – Port of Melbourne Authority v Anshun Pty Ltd
as per Lord Wilberforce in the case of Carl Zeiss
: “Lord Wilberforce in the case of Carl Zeiss observed that Henderson v Henderson
was an instance of re judicata” Res Judicata and issue estoppel are important considerations in relation to the joinder of claims and parties 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 Res Judicata
Res judicata extends to claims which could have been made in an earlier proceeding The objectives underlying the Judicature Act 1873 (UK) s 24(7) (and Australia’s equivalent Acts) is (for NSW) referred to in section 63 of the Supreme Court Act 1970 (NSW), and in particular, the desire for complete and final determination of all matters between the parties, are given full force through the doctrine of res judicata
SUPREME COURT ACT (NSW) 1970 – SECT 63
63 Final determination
shall grant, either absolutely or on terms, all such remedies as any party may appear to be entitled to in respect of any legal or equitable claim brought forward in the proceedings so that, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided. Risk that non-joinder of a claim may result in the later estoppel of that claim, will be a powerful factor in a litigants decision to join that claim in the proceeding. Henderson v Henderson (1843)
formulated the principle. Per Sir James Wigram VC: …Where a given matter becomes the subject matter of litigation in and of the adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case
. The plea of res judicata applies
, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and a judgement
, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time… CASE: Port of Melbourne Authority v Anshun Pty Ltd –
page 415 High Court notes that a claim to an indemnity may be litigated as between a defendant and a third party (or between defendants) even though the right to the indemnity arises only on payment of the liability to which it relates, that is, payment tot eh plaintiff who seeks damages. The fact that liability to the plaintiff has not been established (or discharged) is no bar to the third party claim. Gibbs CJ, Mason and Aickin JJ:
- …In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence int eh section was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it.
- Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding.
- It has generally been accepted that a party will be estopped from bringing an action which, if it succeed, will result in a judgement which conflicts with an earlier judgement…the likelihood that the omission to plead a defence will contribute to the existence of conflicting judgements is obviously an important factor to be taken into account in deciding whether the omission to plead can found an estoppel against the assertion of the same matter as a foundation for a cause of action in a second pleading…by ‘conflicting judgement’ …it is enough that they appear to declare rights that are inconsistent in respect of the same transaction
- …Taking into account the relevant factors we conclude that the full court was right in holding that there was an estoppel. The matter now sought to be raised by the Authority was a defence to Anshun’s claim in the first action. It was so closely connected with the subject matter of that action that it was to be expected that it would be relied upon as a defence to that claim and as a basis for recovery by the Authority from Anshun. The third party procedures were introduced to enable this to be done. If successful, the indemnity case would have obviated an inquiry into contribution. If reserved for assertion in a later action, it would increase costs and give rise to conflicting judgements.
- The Authority did not adduce evidence at the trial to show why it failed to raise the indemnity issue in the first action
- Appeal was dismissed
- …Notions of Res Judicata and issue estoppel are founded on the necessity, if there is to be an orderly administration of justice, of avoiding reagitation of issues, and of preventing the raising of issues which could have been and should have been decided in earlier litigation… The judgement in [the earlier] case is inconsistent with the judgement now sought by the plaintiff.
In the case of discontinuing proceeding and prosecuting a fresh one – Anshun estoppel did NOT apply CASE: Running Pigmy Production Pty Ltd v AMP General Insurance Co Ltd
- The recovery of a judgement which declares or enforces rights or liabilities between parties inconsistent with an earlier judgement binding upon them is precluded by the operation of the rules of estoppel and res judicata…if cause of action is taken to mean a right, the rule is stated in terms of the passing of the right into judgement, and the rule precludes a party bound by the judgement from maintaining against another party bound by it any subsequent proceeding to recover a judgement giving a remedy to enforce to compensate for an infringement of that right.
– page 421 Facts: Plaintiff commenced proceedings as one of two co-plaintiffs against the defendants, although arising out of the same events and under the same insurance policy. It had discontinued those proceedings, with leave of the court, and the proceedings by the co-plaintiff were settled. Held: It was not unreasonable to discontinue the earlier proceeding so as to prosecute the fresh proceeding. Palmer J:
- It is not an abuse of the process for a plaintiff to discontinue a proceeding merely in order to be able to bring the same proceeding later in circumstances which the plaintiff believes there will be a greater prospect of success or a more substantial recovery.
- These circumstances may legitimately include:
- – the possibility of subsequent increase in the limit of recoverable damages due to legislative amendment
- – the enhanced prospect of enforcing a verdict by commencing proceedings in another jurisdiction
- – the prospect of the plaintiff being able to conduct the second proceedings more effectively than the first by reason of an improvement in the plaintiff’s financial position enabling the plaintiff to procure expert evidence which would have been prohibitively expensive at the time of the first proceeding.
- The extended doctrine, of which Anshun is only part, supplements the doctrines of merger, cause of action estoppel and issue estoppel. It can apply where parties or the cause of action are different. It has never been suggested, however, that it extends an issue estoppel to decisions on question of fact or law which were not fundamental to the earlier decision. The extended doctrine also applies to later proceedings which are vexatious and hopeless in light of an earlier decision, and to proceedings which are a collateral attack on earlier decision…
In the case where an employer (or its insurer, or any other party) has a statutory right to seek indemnity from a third party tortfeasor (ie for compensations which the employer has been bound to pay to its employees under workers compensation legislation), and an employee sues the tortfeasor and recovers a judgement in respect of his/her injuries less any monies received by way of worker’s compensation, according to QBE Worker’s Compensation (NSW) Pty Ltd v Dolan (2004)
the statutory exists independently of the employee’s right to bring a claim for damages; there was no privity of interest and no res judicata. Issue Estoppel Definition
Issue estoppel occurs where there is an essential element common to two or more sets of proceedings involving the parties Example: This might occur when a common issue of liability arises in two actions involving a motor vehicle collision, where, if each proceeding were tried separately, mutually inconsistent decisions might be reached, with the result that a party in one proceeding might be bound by a decision in the other. In such a case the proceeding might be consolidated (combined) – Todd v Jones 
The earlier decision might be reopened in light of subsequent evidence becoming available – Mills v Cooper 
Issue estoppel will only apply where the previous determination was made by a court of competent jurisdiction; that is, a court able to hear and determine the earlier proceeding. CASE: Arnold v National Westminster Bank Plc 
– page 423 Lord Keith of Kinkel
- Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to reopen that issue.
- Issue estoppel, too, has been extended to cover not only the case where a particular point has been raised and specifically determined in the earlier proceedings, but also that where in the subsequent proceedings it is sought to raise a point which might have been but was not raised in the earlier
- Brisbane City Council v Attorney-General for Queensland  per Lord Wilbeforce:
The second defence is one of ‘res judicata’. There has, of course, been no actual decision in litigation between these parties as to the issue involved in the present case, but the appellants invoke this defence in its wider sense, according to which a party may be shut out from raising in a subsequent action an issue which he could, and should, have raised in earlier proceedings…
- Although Henderson v Henderson, was a case of case of action estoppel, the statement there by Wigram VC has been held to be applicable also to issue estoppel. The statement includes the observation that there may be special circumstances where estoppel does not operate.
- cases in which the special circumstances exception had been considered:
- – special circumstances that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings.
The general view has been that issue estoppel does not apply
in cases where:
Brunsden v Humphrey (1884) à
- separate proceedings are brought for property damage on the one hand, and
- person injuries on the other arising out of a tortious act by the defendant
The plaintiff brought proceedings in the County Court for damages to his cab caused by the defendant’s employee. The plaintiff recovered damages. He then brought proceedings in the High Court seeking damages for personal injury arising from the same incident. HELD: the second action was not barred
by the previous action Marlborough Harbour Board v Charter Travel Co Ltd (1989)à
Noted that the effect of the majority’s view in Brunsden
ought to be confined to the distinction between personal injury and property damage cases. Hope JA: The better view would seem to be that, although the pragmatic and possibly historical reasons separate actions can be brought for damages in respect of personal injuries and damage to property, if an action has been brought for damage to property, or for both personal injury and damage to property, other actions cannot be brought for damage to other property as the result of the same ‘causality’. There would not be, as has been submitted in the present case, a separate cause of action in respect of each knife and fork lost
when ‘Mikhail Lermontov’ sank. Azzopardi v Bois  à
In proceedings before a court of petty sessions dealing with a claim and counterclaim for the cost of repairs to their respective motor vehicles, it had been found that both parties were negligent and their claims were reduced accordingly. HELD – Adam J: The plaintiff was estopped from alleging, in Supreme Court Proceedings for damages for personal injury, that the accident was wholly due to the defendant’s negligence, and from denying that he was contributorily negligent. The court could vary the appointment made in the court of petty session. Linsley v Petrie  à
Plaintiff’s insurer brought proceedings in the name of plaintiff against defendant seeking damages for damage to her car. Magistrate found that circumstances were beyond control of defendant and therefore no negligence – no damages recoverable. Plaintiff then sought to sue defendant for personal injury. HELD – Hayne JA (Smith AJA – similar view): While there was one duty of care owed by the alleged tortfeasor, there might be a different standard of care owed depending on if claim for personal injuries or property damage. Issue Estoppel did NOT apply. Rules Governing Joinder
page 229-230 The rules and their interpretation
The court seeks to promote and control joinder in a number of ways:
Other Factors affecting joinder
- court gives flexible rules regarding joinder of parties and causes of action, and seek to give a liberal construction to those rules
- the rules regarding consolidation seek to prevent a multiplicity of proceedings
- courts will use the amendment rules to ensure that the real issues between the parties are determined. The court will allow the amendment even during the trial to ensure that the real issue or issues are determined: Queensland v JL Holdings Pty Ltd (1997)
Following considerations relevant to the question who to join and whether to join:
- decision to join dictated by need to effect a joinder prior to the expiry of any relevant limitation period, in the absence of an agreement of such party or parties that they will not rely on the limitation provision
- Statutory interest will run from the date of the accrual of the cause of action – section 100 Civil Procedures Act 2005 (NSW)
CIVIL PROCEDURE ACT 2005 – SECT 100 Interest up to judgment
100 Interest up to judgment
(cf Act No 52 1970, section 94; Act No 9 1973, section 83A; Act No 11 1970, section 39A) (1) In proceedings
for the recovery of money (including any debt or damages or the value of any goods
), the court
may include interest in the amount for which judgment
is given, the interest to be calculated at such rate as the court
thinks fit: (a) on the whole or any part of the money, and (b) for the whole or any part of the period from the time the cause of action arose until the time the judgment
takes effect. (2) In proceedings
for the recovery of a debt or damages in which payment of the whole or a part of the debt or damages has been made after the proceedings
commenced but before, or without,judgment
being given, the court
may include interest in the amount for which judgment
is given, the interest to be calculated at such rate as the court
thinks fit: (a) on the whole or any part of the money paid, and (b) for the whole or any part of the period from the time the cause of action arose until the time the money was paid. (3) This section: (a) does not authorise the giving of interest on any interest awarded
under this section, and (b) does not authorise the giving of interest on a debt in respect of any period for which interest is payable as of right, whether by virtue of an agreement or otherwise, and (c) does not authorise the giving of interest in any proceedings
for the recovery of money in which the amount claimed
is less than such amount as may be prescribed by the uniform rules
, and (d) does not affect the damages recoverable for the dishonour of a bill of exchange. (4) In any proceedings
for damages, the court
may not order the payment of interest under this section in respect of the period from when an appropriate settlement sum
was offered (or first offered) by the defendant
unless the special circumstances of the case warrant the making of such an order. (5) For the purposes of subsection (4), “appropriate settlement sum”
means a sum offered in settlement of proceedings
in which the amount for which judgment
is given (including interest accrued up to and including the date of the offer) does not exceed the sum offered by more than 10 per cent. Joinder of Parties
In all jurisdiction other than Federal Court, party bringing claim = plaintiff; and party against whom the proceeding is brought = defendant In Federal Court they are called applicant and respondent 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 Cth Trading Bank of Australia (1985)
per Needham J. UNIFORM CIVIL PROCEDURE RULES 2005 – REG 6.18 Joinder of causes of action 6.18 Joinder of causes of action
(cf SCR Part 8, rule 1; DCR Part 7, rule 1; LCR Part 6, rule 1) (1) In any originating process
, the plaintiff may claim relief against the defendant in respect of more than one cause of action in any of the following circumstances:
(a) if the plaintiff sues in the same capacity, and claims the defendant to be liable in the same capacity, in respect of each cause of action
, (b) if the plaintiff sues: (i) in his or her capacity as executor of the will of a
deceased person, or administrator of the estate of a deceased person
, in respect of one or more of the causes of action
(ii) in his or her personal capacity
, but with reference to the estate of the same deceased person
, in respect of the remaining causes of action, (c) if the plaintiff claims the defendant to be liable: (i) in his or her capacity as executor of the will
of a deceased person, or administrator of the estate of a deceased person, in respect of one or more of the causes of action, and
(ii) in his or her personal capacity, and in relation to the estate of the same deceased person, in respect of the remaining causes of action, (d) if the court grants leave for all of the causes of action to be dealt with in the same proceedings. (2) Leave under subrule (1) may be granted before or after the originating process
is filed. CASE: Birtles v Commonwealth 
page 431 Facts
: Applicant sought both declarations that respondents had engaged in conduct in contravention of Trades Practices Act and Securities Industry Act and also damages. It was accepted that investors’ claims could not be said to arise from the same transaction or series of transactions. Held – Wilcox J:
Mandatory or Compulsory Joinder
- As the discretion in sub rule (b) is, in terms, unconfined, it would in appropriate to specify circumstances in which is might be applied. Everything must depend upon the facts of the particular case. BUT it is appropriate to consider what principles ought to guide the exercise of such discretion….the court should take whatever course seems to be most conductive to a just resolution of the dispute…but having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation…costs and delay may support grant of joinder.. however, leave must not be granted unless the court is satisfied that joinder is unlikely to result in unfairness to any party. Secondly, regard must be had to practical matters…eg. it would normally be inappropriate to grant leave for the joinder of applicants who were represented by different solicitors.
- There must be a single solicitor, or firm of solicitors, who is accountable for the conduct of the proceeding on the applicant’s side of the case. Similarly, although all applicant might propose to rely upon some common, or similar facts, there may be such differences between the evidence intended to be relied upon in support of the claims of particular applicants as to make it inexpedient to join the claims. the discrete material may overbear that which is common to all the claims.
- Again, there may be cases in which the sheer number of claims, if joinder is permitted, will impose an undue burden on the respondent; although it seems to me unlikely that this will be so except in cases where separate evidence is proposed to be adduced in support of individual claim
- Moreover, it seemed to me that there were advantages in all the claims being litigated at one time. I was told that the total value of all the claims lay between 5 million and 6 million. I do not know the extent of the respondents’ resources but it is possible that they would not extend to payment of all claims, if all were successful. It seemed to me to be inherently undesirable to take a course which would allow one claimant to advance her claim to judgement, and so be in a position to recover in full against the respondents, while the claims of other persons, in a like situation, were, in a practical sense, stayed.
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 6.20
6.20 Proceedings affecting persons having joint entitlement
(cf SCR Part 8, rules 3 and 4; DCR Part 7, rules 3 and 4; LCR Part 6, rules 3 and 4) (1) Unless the court orders otherwise, all persons jointly entitled to the same relief must be joined as parties in any claim for that relief that is made by any one or more of them. (2) Unless the court orders otherwise, any other such person is to be joined: (a) as a plaintiff, if he or she consents to being a plaintiff, or (b) as a defendant, if he or she does not consent to being a plaintiff. (3) Despite subrule (1), a person may not be joined as a party to proceedings in contravention of any other Act or law. Note :
See, for example, section 62
of the Bankruptcy Act 1966
of the Commonwealth.
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 6.21
6.21 Proceedings affecting persons having joint or several liability
(cf SCR Part 8, rule 5; DCR Part 7, rule 5; LCR Part 6, rule 5) (1) A person who is jointly and severally liable with some other person in relation to any act, matter or thing need not be a defendant in proceedings with respect to that act, matter or thing merely because the other person
is a defendant in those proceedings. (2) In any proceedings in which a defendant is one of a number of persons who are jointly, but not severally, liable in contract or tort, or under an Act or statutory instrument, the court may order thatthe other persons
be joined as defendants and that the proceedings be stayed until those other persons have been so joined.
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 6.23
6.23 Effect of misjoinder or non-joinder of parties
(cf SCR Part 8, rule 7 (1); DCR Part 7, rule 7 (1); LCR Part 6, rule 7 (1)) Proceedings are not defeated merely because of the misjoinder or non-joinder of any person as a party to the proceedings. Van Gelder v Sowerby Bridge Society
(1890)- 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…English equivalent in Byrne v Brown
(1889) Lord Esher MR stated that the rule should be construed so as to give effect to the objectives of the Judicature Act. PART 14 – PLEADINGS
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 14.4
(cf SCR Part 15, rule 4) (1) In proceedings in the Supreme Court or the District Court, a plaintiff may file a reply to a defence. (2) In proceedings in the Local Court, a plaintiff may file a reply to a defence only by leave of the Court. (3) The time limited for the plaintiff to file a reply is 14 days after service of the defence on the plaintiff. UNIFORM CIVIL PROCEDURE RULES 2005 – REG 14.7 14.7 Pleadings to contain facts, not evidence
(cf SCR Part 15, rule 7; DCR Part 9, rule 3) Subject to this Part, Part 6 and Part 15, a party’s pleading must contain only a summary of the material facts on which the party relies, and not the evidence by which those facts are to be proved.
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 14.8
14.8 Pleadings to be brief
(cf SCR Part 15, rule 8; DCR Part 9, rule 4) A pleading must be as brief as the nature of the case allows.
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 14.9
14.9 References in pleadings to documents and spoken words
(cf SCR Part 15, rule 9; DCR Part 9, rule 5) If any documents or spoken words are referred to in a pleading: (a) the effect of the document or spoken words must, so far as material, be stated, and (b) the precise terms of the document or spoken words must not be stated, except so far as those terms are themselves material.
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 14.10
14.10 Certain facts need not be pleaded
(cf SCR Part 15, rule 10; DCR Part 9, rule 6) A party need not plead a fact if: (a) the fact is presumed by law to be true, or (b) the burden of disproving the fact lies on the opposite party, except so far as may be necessary to meet a specific denial of that fact by another party’s pleading.
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 14.19
14.19 Pleadings may raise points of law
(cf SCR Part 15, rule 18; DCR Part 9, rule 13) A pleading may raise any point of law.
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 14.22
14.22 Pleadings in proceedings for defamation, malicious prosecution, false imprisonment, death and personal injury
(cf SCR Part 15, rule 23 (16) and (17)) (1) This Division does not apply to pleadings in proceedings for the recovery of damages for: (a) defamation, or (b) malicious prosecution, or (c) false imprisonment, or (d) trespass to the person, or (e) death, or (f) personal injury. (2) Despite subrule (1), the court may order that this Division is to apply to any or all pleadings in any such proceedings (including pleadings filed before the order is made) with such variations (if any) as the court may direct.
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 14.23
14.23 Verification of certain pleadings
(cf SCR Part 15, rule 23 (1)-(7); DCR Part 10, rule 2 (1)-(6)) (1) This rule applies to proceedings in the Supreme Court and the District Court. (2) A party’s pleading (including any amendment of the pleading) must be verified by affidavit. Note :
See rule 35.3 as to who may make such an affidavit. (3) The affidavit verifying a pleading must state: (a) as to any allegations of fact in the pleading, that the deponent believes that the allegations are true, and (b) as to any allegations of fact that the pleading denies, that the deponent believes that the allegations are untrue, and (c) as to any allegations of fact that the pleading does not admit, that after reasonable inquiry the deponent does not know whether or not the allegations are true. (4) If the deponent is unable to make an affidavit that complies with subrule (3) in relation to all parts of a pleading, the affidavit may comply with so much of that subrule as can be complied with and state why the affidavit does not comply with the remainder of that subrule. (5) Subject to any order of the court, an affidavit made in accordance with subrule (4) is taken to comply with subrule (3). (6) Unless the court otherwise orders, the affidavit verifying a pleading must be subscribed to the pleading.
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 14.27
14.27 Joinder of issue
(cf SCR Part 15, rule 21; DCR Part 9, rule 15) (1) A pleading may expressly join issue on a previous pleading. (2) If there is no reply by a plaintiff to a defence, there is an implied joinder of issue on that defence. (3) If there is no answer by the opposite party to a reply or subsequent pleading, there is an implied joinder of issue on the reply or subsequent pleading. (4) There can be no joinder of issue, express or implied, on a statement of claim. (5) An implied joinder of issue on a pleading operates as a denial of every allegation of fact made in the pleading. (6) An express joinder of issue on a pleading operates as a denial of every allegation of fact made in the pleading other than an allegation that is expressly admitted. PART 15 – PARTICULARS
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 15.5
15.5 Allegations of negligence and breach of statutory duty in common law claims in tort
(cf SCR Part 16, rule 4; DCR Part 9, rule 22; LCR Part 8, rule 4) (1) The particulars to be given by a pleading that alleges negligence (whether contributory or otherwise): (a) must state the facts and circumstances on which the party pleading relies as constituting the alleged negligent act or omission, and (b) if the party pleading alleges more than one negligent act or omission, must, so far as practicable, state separately the facts and circumstances on which the party relies in respect of each alleged negligent act or omission. (2) The particulars to be given by a pleading that alleges breach of statutory duty: (a) must state the facts and circumstances on which the party pleading relies as constituting the alleged breach of statutory duty, and (b) if the party pleading alleges more than one breach of statutory duty, must, so far as practicable, state separately the facts and circumstances on which the party relies in respect of each alleged breach of statutory duty.
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 15.8
15.8 Claims for aggravated damages
(cf SCR Part 16, rule 5B) The particulars to be given by a pleading that claims aggravated compensatory damages must state the facts and circumstances on which the party pleading relies to establish that claim. PART 6 – COMMENCING PROCEEDINGS AND APPEARANCE
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 6.12
6.12 Relief claimed
(cf SCR Part 7, rule 1; DCR Part 5, rules 6 and 6A; LCR Part 5, rules 1 and 2) (1) A statement of claim or summons must specifically state the relief claimed by the plaintiff. (2) If the relief claimed requires the determination or direction of the court on any question
, the statement of claim or summons must state the question
. (3) Costs referred to in section 329 (1) (c) of the Legal Profession Act 2004
(costs payable for the enforcement of a lump sum debt or liquidated sum for damages) must be specifically claimed. (4) Costs, other than those referred to in section 329 (1) (c) of the Legal Profession Act 2004
, need not be specifically claimed. (5) Exemplary damages and aggravated compensatory damages must be specifically claimed. (6) An order for interest up to judgment must be specifically claimed. (7) In the case of a liquidated claim, a claim for an order for interest up to judgment: (a) must specify the period or periods for which interest is claimed, and (b) may specify the rate or rates at which interest is claimed. (8) If no rate of interest is specified under subrule (7) (b), the rate at which interest is claimed is taken to be: (a) in respect of the period from 1 January to 30 June in any year-the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced, and (b) in respect of the period from 1 July to 31 December in any year-the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced. Note :
See Part 46 as to the additional matters to be included in a summons relating to an appeal
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 6.18
6.18 Joinder of causes of action
(cf SCR Part 8, rule 1; DCR Part 7, rule 1; LCR Part 6, rule 1) (1) In any originating process
, the plaintiff may claim relief against the defendant in respect of more than one cause of action in any of the following circumstances: (a) if the plaintiff sues in the same capacity, and claims the defendant to be liable in the same capacity, in respect of each cause of action, (b) if the plaintiff sues: (i) in his or her capacity as executor of the will
of a deceased person, or administrator of the estate of a deceased person, in respect of one or more of the causes of action, and (ii) in his or her personal capacity, but with reference to the estate of the same deceased person, in respect of the remaining causes of action, (c) if the plaintiff claims the defendant to be liable: (i) in his or her capacity as executor of the will
of a deceased person, or administrator of the estate of a deceased person, in respect of one or more of the causes of action, and (ii) in his or her personal capacity, and in relation to the estate of the same deceased person, in respect of the remaining causes of action, (d) if the court grants leave for all of the causes of action to be dealt with in the same proceedings. (2) Leave under subrule (1) may be granted before or after the originating process
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 6.19
6.19 Proceedings involving common questions of law or fact
(cf SCR Part 8, rule 2; DCR Part 7, rule 2; LCR Part 6, rule 2) (1) Two or more persons may be joined as plaintiffs or defendants in any originating process
if: (a) separate proceedings by or against each of them would give rise to a common question
of law or fact, and (b) all rights of relief claimed in the originating process
are in respect of, or arise out of, the same transaction or series of transactions, or if the court gives leave for them to be joined. (2) Leave under subrule (1) may be granted before or after the originating process
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 6.20
6.20 Proceedings affecting persons having joint entitlement
(cf SCR Part 8, rules 3 and 4; DCR Part 7, rules 3 and 4; LCR Part 6, rules 3 and 4) (1) Unless the court orders otherwise, all persons jointly entitled to the same relief must be joined as parties in any claim for that relief that is made by any one or more of them. (2) Unless the court orders otherwise, any other such person is to be joined: (a) as a plaintiff, if he or she consents to being a plaintiff, or (b) as a defendant, if he or she does not consent to being a plaintiff. (3) Despite subrule (1), a person may not be joined as a party to proceedings in contravention of any other Act or law.
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 6.21
6.21 Proceedings affecting persons having joint or several liability
(cf SCR Part 8, rule 5; DCR Part 7, rule 5; LCR Part 6, rule 5) (1) A person who is jointly and severally liable with some other person in relation to any act, matter or thing need not be a defendant in proceedings with respect to that act, matter or thing merely because the other person
is a defendant in those proceedings. (2) In any proceedings in which a defendant is one of a number of persons who are jointly, but not severally, liable in contract or tort, or under an Act or statutory instrument, the court may order thatthe other persons
be joined as defendants and that the proceedings be stayed until those other persons have been so joined.
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 6.22
6.22 Court may order separate trials if joinder of party or cause of action inconvenient
(cf SCR Part 8, rule 6; DCR Part 7, rule 6; LCR Part 6, rule 6) If the court considers that the joinder of parties or causes of action in any proceedings may embarrass, inconvenience or delay the conduct of the proceedings, the court: (a) may order separate trials, or (b) may make such other order as it thinks fit.
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 6.23
6.23 Effect of misjoinder or non-joinder of parties
(cf SCR Part 8, rule 7 (1); DCR Part 7, rule 7 (1); LCR Part 6, rule 7 (1)) Proceedings are not defeated merely because of the misjoinder or non-joinder of any person as a party to the proceedings.
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 6.24
6.24 Court may join party if joinder proper or necessary
(cf SCR Part 8, rule 8 (1); DCR Part 7, rule 8 (1); LCR Part 6, rule 8 (1)) (1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party. (2) Without limiting subrule (1), in proceedings for the possession of land, the court may order that a person (not being a party to the proceedings) who is in possession of the whole or any part of the land (whether in person or by a tenant) be added as a defendant.
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 6.25
6.25 Joinder as plaintiff requires party’s consent
(cf SCR Part 8, rule 8 (2); DCR Part 7, rule 8 (2); LCR Part 6, rule 8 (2)) A person is not to be joined as a plaintiff in any proceedings except with his or her consent.
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 6.26
6.26 Joinder to recover costs
(cf SCR Part 52A, rule 4 (3) and (4)) (1) Except to the extent to which these rules expressly provide, a party may not join another person as a party to any proceedings for the purpose of making an application for costs against the other person
. (2) This rule does not apply: (a) if the other person
would otherwise be a proper party to the proceedings, or (b) if the party joins the other person
by means of a cross-claim in respect of a claim for costs against the party.
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 6.27
6.27 Joinder on application of third party
(cf SCR Part 8, rule 8; DCR Part 7, rule 8; LCR Part 6, rule 8) A person who is not a party may apply to the court to be joined as a party, either as a plaintiff or defendant.
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 6.28
6.28 Date of commencement of proceedings in relation to parties joined
(cf SCR Part 8, rule 11 (3) and (4); DCR Part 7, rule 11 (3); LCR Part 6, rule 11 (3)) If the court orders that a person be joined as a party, the date of commencement of the proceedings, in relation to that person, is taken to be the date on which the order is made or such later date as the court may specify in the order. PART 7 – PARTIES TO PROCEEDINGS AND REPRESENTATION
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 7.6
7.6 Representation in cases concerning administration of estates, trust property or statutory interpretation
(cf SCR Part 8, rule 14) (1) In relation to proceedings concerning: (a) the administration of a deceased person’s estate, or (b) property the subject of a trust, or (c) the construction of an Act, instrument or other document, where a person or class of persons is or may be interested in or affected by the proceedings, the court may appoint one or more of those persons to represent any one or more of them. (2) A person or persons may not be appointed under subrule (1) unless the court is satisfied of one or more of the following: (a) that the person or class, or a member of the class, cannot, or cannot readily, be ascertained, (b) that the person or class, or a member of the class, although ascertained, cannot be found, (c) that, although the person or class, or a member of the class, has been ascertained and found, it is expedient for the purpose of saving expense (having regard to all of the circumstances, including the amount at stake and the degree of difficulty of the issue or issues to be determined) for a representative to be appointed to represent any one or more of them. (3) For the purposes of this rule, persons may be treated as having an interest or liability: (a) even if, in relation to one or more of them, the interest or liability is a contingent or future interest or liability, or (b) even if one or more of those persons is an unborn child. (4) This rule does not limit the operation of rule 7.10. PART 58 – REPRESENTATIVE PROCEEDINGS
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 58.1 Introduction
(1) This Part applies to representative proceedings commenced under Part 10 of the Act
. (2) Words and expressions used in this Part have the same meanings as they have in Part 10 of the Act
. (3) In this Part: “the Act”
means the Civil Procedure Act 2005
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 58.2 Opt out notice
58.2 Opt out notice
(1) A group member who wishes to opt out of representative proceedings in accordance with Division 2 of Part 10 of the Act
must do so by filing and serving on the representative party a notice in the approved form. (2) The representative party must, within 14 days after the opt out date, provide to each of the other parties to the proceedings a list of persons who have filed and served opt out notices in accordance with this Part. (3) In this clause
: “opt out date”
means the date fixed by the Court before which a group member may opt out of representative proceedings. Consolidation Bolwell Fibreglass Pty Ltd v Foley
: The Court will not normally permit consolidation, unless it would have been proper to join the claim between the plaintiff in the one proceeding with the claim between the parties in the second proceeding. Representative Proceedings The Australian Position The Traditional Representative Proceeding
Each of the Australian Jurisdictions, other than NSW
, has rules derived from the equitable practice, which permit a person to represent a group of plaintiffs and defendants having the same interest in the litigation. In Tasmania, there is a reference to ‘common rights’ and ‘common interest’ in a ‘subject matter or controversy’. The word ‘same interest’ have, until recently, been narrowly construed as the result of the decision of the English Court of Appeal in Markt And Co Ltd v Knight Steamship Co Ltd
CASE: Carnie v Esanda Finance Corp Ltd
- In that case, it was held that where proceedings are brought on behalf of a group of plaintiffs under separate but otherwise identical contracts, the same interest requirement was not satisfied.
- It was also held that where damages were in issue and had to be separately assessed, that the representative proceeding rule could not be used.
- This decision must now be read in light of the HC decision in Carnie v Esanda
(1995) Mason CJ, Dean and Dawson JJ:
- Remit the matter to the Court of Appeal for the purpose of considering whether an order should be made that the action not continue as a representative action.
- Whether the present case was or was not a class action is not the critical question. More than that, it is not a question which is susceptible of a precise or instructive answer. The term ‘class action’ is used in various senses. Sometimes it is employed as a generic term to comprehend any procedure which allows the claim of many individuals against the same defendant to be brought or conducted by a single representative.
- At other times, when the ‘same interest’ stipulation was thought to preclude the application of the representative action procedure to actions for damages on the ground that each individual’s entitlement to damages would have to be independently assessed, the term ‘class action’ was employed to refer to an extension of the representative action to cover such actions.
- The remaining sense in which the term ‘class action’ is used by way of reference to the class action procedure …as prescribed by the Federal Court rules of Civil Procedure, r23… This is the sense in which the majority in the court of appeal used the term. It would be unprofitable and difficult to make a precise comparison between a representative action and a class action but we see no reason to doubt that the two rules could cover much common ground.
- The sub rule is expressed in broad terms and it is to be interpreted in the light of the obvious purpose of the rule, namely, to facilitate the administration of justice by enabling parties having the same interest to secure a determination in one action rather than in separate action. It has been suggested that the expression ‘same interest’ is to be equated with a common ingredient in the cause of action by each member of the class.
- …It has not been recognised that persons having separate causes of action in contract or tort may have the ‘same interest’ in proceedings to enforce those cases of action.
- Once the existence of numerous parties and the requisite commonality of interest are ascertained, the rule is brought into operation subject only to the exercise of the court’s power to order otherwise. And that leaves for consideration the question whether the case is one in which the court should, in the exercise of its power, make an order that the action should not continue as a representative action. Relevant to that question as som comments of Gleeson CJ in the course of explaining his concern about the absence of a detailed legislative prescription. In that context, Gleeson CJ mentioned the need to deal with such important matters as:
- Whether or not consent is required from group members
- the right of such members to opt out of the proceedings
- the position of persons under a disability
- alterations to the description of the group
- settlement and discontinuance of the proceedings; and
- the giving of various notice to group members
- The court must be satisfied that – ‘the issues common to every member of the class will be decided after full discovery and in the light of all the evidence capable of being adduced in favour of the claim’. I would add that if, for any reason, the court is not satisfied that the interest of the absent but represented class are being properly advanced, the court should exclude the represented persons from the action… the power can be exercised at any time before the judgement is perfected.
- The defendant’s objections are relevant to…should the action be permitted to continue as a representative action? … the discretionary powers of the tribunal are to be exercised according to the individual circumstances of the case. Is it appropriate then, to permit the action to continue as a representative action when, in any given case, it will be necessary to determine whether the person seeking relief against the defendant has entered into a loan or credit sale contract…and the ultimate benefit of the litigation to that person will depend on the prospect of he defendant’s obtaining an oder under s 85 increasing the liability of the particular debtor.
- It will be for the Court of Appeal, appreciating the nature of the interest common to the plaintiffs and the represented class and evaluating the factors relevant to the obtaining of substantive relief by each of the represented persons, to determine the question whether the action should continue as a representative action.
Toohey and Gaudron JJ: The approach to a claim for a representative action
- The starting point is whether the procedure which the appellants wish to adopt is within the rules. If it is, a subsidiary question arises. whether the supreme Court should exercise its discretion to ‘otherwise order’ and so prevent the continuance of the proceedings in that form.
- In ascertaining whether the procedure which the appellants wish to adopt is within the rules it is helpful to consider the history and interpretation of r13(1).Lord Macnaghten, with whom the majority concurred, identified three criteria which must be satisfied before the representative rule can apply:
Given a common interest and a common grievance, a representative suit was in order if the relief sought was in its natural beneficial to all whom the plaintiff proposed to represent.
- The majority held there was a common interest and it did not matter that the group was a fluctuating body which would be difficult to catalogue. It was enough that there was a clear description of the growers sought to be represented in the Act. The fact that the plaintiffs were claiming separate and different rights under the Act did not detract from the practicality of using the representative procedure.
- John v Rees  Megarry J referred to the board approach of Lord Macnaghten in Bedford v Ellis with approval
- His honour said this approach was consistent with the language of the rule which was wide and permissive in its scope while providing adequate safeguards for the substance and that he ‘would therefore be slow to apply the rule in any strict or rigorous sense’.
- It is clear on authority and principle that a representative action can be brought by a plaintiff, suing on behalf of himself and all other members of a class, each member of which, including the plaintiff, is alleged to have a separate case of action in tort, provided three conditions are satisfied:
- no order could be made if the effect might be to confer a right of action on a member of the class represented who would not otherwise have been able to assert such a right in separate proceedings, or to bar a defence which might otherwise have been available to the defendant in a separate action.
- the common interest requirement, where there are separate cases of action in tort, is a requirement for a common ingredient in the cause of action of each member of the class. In this case, the representative action resulted in a declaration that was common in terms of relief to all the members of the class: whether a circular sent to shareholders was misleading and contained statements that were untrue.
- It must be for the benefit of the class that the plaintiff be permitted to sue in a representative capacity
- Likewise, in R J Flowers Ltd v Burns  McGechan J held that the fact that claims arose under separate contracts was not an objection to the use of a representative action.
- The Court held that a representative action was appropriate because there was a common interest in securing a declaration that the activities of the defendants were unlawful and in recovering the losses sustained by virtue of those activities.
- In Shaw v Real Estate Board of Greater Vancouver (1973)Bull JA observed:
It appears to me that the many passages uttered by judges of high authority over the years really boil down to a simple proposition that a class action is appropriate where if the plaintiff wins the other persons he purports to represent win too, and if he, because of that success, becomes entitled to relief whether or not in a fund or property, the others also become likewise entitled to that relief, having regard, always, for different quantitative participations. Topic 3: Instituting Proceedings/Summary and Default Judgement Chapter Two Challenging Case Management Decisions and the Interpretation of the Overriding Purpose – Page 53-66
In some Jurisdictions (including NSW) additional sanctions have been created in the rules or by legislation to support the overriding purpose and by corollary, case management. CIVIL PROCEDURE ACT 2005 – SECT 61 61 Directions as to practice and procedure generally
(1) The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings. (2) In particular, the court may, by order, do any one or more of the following: (a) it may direct any party to proceedings to take specified steps in relation to the proceedings, (b) it may direct the parties to proceedings as to the time within which specified steps in the proceedings must be completed, (c) it may give such other directions with respect to the conduct of proceedings as it considers appropriate. (3) If a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following: (a) it may dismiss the proceedings, whether generally, in relation to a particular cause of action or in relation to the whole or part of a particular claim, (b) it may strike out or limit any claim made by a plaintiff, (c) it may strike out any defence filed by a defendant, and give judgment accordingly, (d) it may strike out or amend any document filed by the party, either in whole or in part, (e) it may strike out, disallow or reject any evidence that the party has adduced or seeks to adduce, (f) it may direct the party to pay the whole or part of the costs of another party, (g) it may make such other order or give such other direction as it considers appropriate. (4) Subsection (3) does not limit any other power the court may have to take action of the kind referred to in that subsection or to take any other action that the court is empowered to take in relation to a failure to comply with a direction given by the court. Judicial Interpretation
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. CASE: Sali v SPC Ltd
(1993) pg 54 Brennan, Deane and McHugh JJ:
- …In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties…what might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and public interest in achieving the most efficient use of court resources…
, the majority of the HC considered that a judge is entitled to consider the effect of an adjournment upon court resources and the competing claims of litigants in other cases awaiting hearing. More recently in Queensland v JL Holdings
, the HC placed greater emphasis upon justice between the immediate parties to litigation when considering the efficacy of case management sanctions. CASE: Queensland v JL Holdings Pty Ltd (1997)
pg 57 Dawson, Gaudron, McHugh JJ:
CASE: Aon Risk Services v Australian National University (2009)
- As the defence, if established, would be a complete answer in either action, the amendments sought should have been allowed unless it appeared that injustice would thereby have been occasioned to the respondent, there being nothing to suggest fraud or improper concealment of the defence on the part of the appellants…
- …Justice is the paramount consideration in determining an application such as the one in question.
- Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the appellants out from raising an arguable defence, thus precluding the determination of an issue between the parties…
pg 59 French CJ:
- …Both the Primary Judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a public funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account.
- …It might be thought a truism that “case management principles” should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions…
- Also to be considered is potential loss of public confidence in the legal system…
- It mandates consideration of the effect of the proposed amendment on the just resolution of the real issues in the proceeding “with minimum delay and expense”…
Gummow, Hayne, Crennan Kiefel and Bell JJ:
Conclusion and Orders
- The objectives of case management are now expressly stated in rule 21 of Court Procedure rules…[These] rules are to be applied having regard to the stated objectives of the timely disposal of proceedings at an affordable price…
- Of course, a just resolution of proceedings remain the paramount purpose [of rule 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.
- Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Much may depend upon the point that litigant has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting their trial date.
- The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in JL Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for.
CASE: Cement Australia Pty Ltd v Australian Competition and Cosumer Commission (ACCC)
- An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment costs by way of compensation. There is no such entitlement.
- All matters relevant to the exercise of power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume important on an application for leave to amend.
- A party has the right to being proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability tto effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
- It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
- An assumption that costs will always be a sufficient compensation for the prejudice caused by the amendment is not reflected in the rules
- Critically, the matters relevant to a just resolution…required…some explanation [from the party seeking an amendment] for delay in seeking an amendment if the rule was to be exercised in favour of that party and to the disadvantage of the other.
(2010) pg 65 Keane CJ, Gilmour and Logan JJ:
Chapter Twelve: Summary Disposition Overview –
- Aon Risk is not a one size fits all case
- While various factors are identified in the judgement as relevant to the exercise of discretion, the weight to be given to these factors, individually and in combination, and the outcome of the balancing process, may vary depending on the facts in the individual case.
- In our opinion, the explanation from them [respondents], accepted albeit in the limited sense as it was by the senior council of the appellant, was in the circumstance a sufficient explanation capable of acceptance by the primary judge. There was no need for an enquiry beyond that given by the counsel whose responsibility it was to plead the ACCC’s case.
- There is a very different position to that in Aon Risk. There the reason the claim introduced by amendment had not been raised before was the result of a deliberate tactical decision on the part of ANU
- It is apparent from these passages(in the judgement of the plurality in Aon Risk) that their honours were more concerned that there be an explanation as to how the later application comes to be made, than the form in which the explanation was proffered.
pg 553 It is a fundamental principle of justice that litigants should have full access to court procedures to prove their claim or defence. However, this principle may become an instrument of tyranny if applied without limitation. The principle is subject to a number of countervailing policies. In particular:
Policy Issues –
- Litigants should not make spurious or improper claims or defences and the other party should be entitled to deal expediently with such claims/defences
- Litigants should be discouraged from bringing a claim or entering a defence which has no merit. The other party should not be required to compromise or be forced to bear the cost of a full hearing into such claims or defences
- Some sanctions must be available to force parties to comply with time limits and other procedural requirements mandated by the rules and the courts. If courts are lenient with breaches of time stipulations, parties may be dilatory or engage in tactical behaviour
pg 554 Principles of Civil Procedure
What protection does a defendant have against unmeritious or maliciously inspired actions, or the plaintiff against a bad defence? It will be expensive and time-consuming to nail the bad point at trial or on appeal. Can the trial victim of such a point snatch himself out of the nightmare and terminate the action or strike out defence on the ground that it is improper? Or might he at least be entitled after the case is concluded to seek compensation from his adversary or his adversary’s lawyers? In abstract form, such actions and defences can be placed in the following categories:
The principle of accelerated justice
- malicious or bad faith
- hopeless or groundless claims brought in good faith
- ‘bad’ claims which are immediately identifiable as such
- ‘weak’ claims which are distinctly tenuous but not as obviously bad as the preceding class
Most judgements are obtained without a trial. A plaintiff might obtain judgement by default…if the defendant has failed to defend or indicate that he is unwilling to defend. Another possibility is that a plaintiff might win a “summary judgement”…In this last situation the plaintiff will go before a [judicial officer] and show that there is no arguable defence disclosed by the defendant’s response to the plaintiffs claim. The defendant will then try to argue against that conclusion. Striking out enables the court to order that a relevant claim or defence should be erased on the ground that it is technically bad or clearly based on an improper motive, or that it is trivial (frivolous). Once the plaintiff makes an application for summary judgement the burden is on cast upon the defendants to show that there should be a trial. If the defendant cannot do this, then the plaintiff may obtain summary judgement. Similar procedures may be used by the defendant (discussed below). Default Judgement – pg 555 (UCPR Part 16)
Default judgement generally occurs in two instances:
- where there has been a failure to take a step required by the rules; or
- where there has been a failure to comply with a peremptory court order, usually called a self-executing or springing order.
The rules prescribe time limits for most steps involved in the interlocutory process. Those limits may be shortened or lengthened, sometimes by agreement, but more commonly by a court order upon application. Judgement in Default of Appearance
An appearance is a general term which describes the first formal step taken by the defendant in response to originating process. Where the defendant fails to enter an appearance, the plaintiff may obtain default judgement as of right by filing with the relevant court an affidavit of service and request for judgement. See mainly rule 16.2(1); 16.3 (below) Part 16 – Default judgment 16.1 Application of Part
(cf SCR Part 17, rule 1; DCR Part 13, rule 1; LCR Part 11, rule 1) This Part applies to proceedings commenced by statement of claim. 16.2 Definition of “in default”
(cf SCR Part 17, rule 2; DCR Part 13, rule 1; LCR Part 11, rule 1) (1) A defendant is “in default” for the purposes of this Part: (a) if the defendant fails to file a defence within the time limited by rule 14.3(1) (see below) or within such further time as the court allows, or (b) if the defendant fails to file any affidavit verifying his or her defence in accordance with any requirement of these rules, or (c) if, the defendant having duly filed a defence, the court orders the defence to be struck out.
(2) Despite subrule (1), a defendant is not in default if the defendant: (a) has made a payment towards a liquidated claim under rule 6.17, or (b) has filed an acknowledgment of claim under rule 20.34, or (c) has filed a defence after the time limited by these rules or allowed by the court, but before a default judgment is given against the defendant. 16.3 Procedure where defendant in default
(cf SCR Part 17, rule 3; DCR Part 13, rule 1) (1) If a defendant is in default, the plaintiff: (a) may apply for judgment to be given under this Part, according to the nature of his or her claim for relief, against the defendant in default, and (b) may carry on the proceedings against any other party to the proceedings. (1A) Unless the court otherwise orders, an application under this rule: (a) may be dealt with in the absence of the parties, and (b) need not be served on the defendant. (2) Unless the court orders otherwise, an application for judgment to be given under this Part must be accompanied by: (a) an affidavit of service of the statement of claim (“the affidavit of service”), and (b) an affidavit in support of the application (“the affidavit in support”). (3) An affidavit of service is unnecessary in relation to a statement of claim whose service has been effected by the Local Court under rule 10.1 (2). (4) Unless the court orders otherwise, an affidavit in support is valid for the purposes of an application only if it has been sworn within 14 days before the date on which the application is filed.
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 14.31
14.31 Defamation defences generally (referred to in 16.2(1)(a))
(cf SCR Part 67, rules 13 and 19 (1); DCR Part 49, rule 12) (1) Subject to rules 14.32-14.40, a defendant in proceedings for defamation must plead any defamation defence specifically. (2) If the plaintiff in defamation proceedings complains of two or more imputations, the pleading of any of the following defences must specify to what imputation or imputations the defence is pleaded: (a) a defence under section 15
(2) or 16
(2) of the Defamation Act 1974
, (b) a defence under section 25
of the Defamation Act 2005
, (c) the defence of justification at common law. (3) If a plaintiff intends to meet any defamation defence: (a) by alleging that the defendant was actuated by express malice in the publication of the matter complained of, or (b) by relying on any matter which, under the Defamation Act 1974
or the Defamation Act 2005
, defeats the defence, then the plaintiff must plead that allegation or matter of defeasance by way of reply. Default Judgement – Liquidated claims and damages –pg 556
The rules of most Australian jurisdictions stipulate that default judgement may be entered if the plaintiff’s claim is for damages, a liquidated demand or a debt. If the claim is for damages, interlocutory judgement is entered for the plaintiff because the court will need to conduct further hearing to assess the quantum of the judgement; that is the amount of damages: UCPR 16.7 16.6 Default judgment on debt or liquidated claim
(cf SCR Part 17, rule 4; DCR Part 13, rule 1; LCR Part 11, rule 1) (1) If the plaintiff’s claim against a defendant in default is for a debt or liquidated claim or for a claim for unliquidated damages of the kind referred to in rule 14.13 (2), judgment may be given for the plaintiff against the defendant for: (a) a sum not exceeding the sum claimed, and (b) interest up to judgment, and (c) costs. (2) The relevant affidavit in support: (a) must state the amount due to the plaintiff, in respect of the cause of action for which the proceedings were commenced, as at the time the originating process was filed, and (b) must give particulars of any reduction of that amount, and costs, as a consequence of any payments made, or credits accrued, since the time the originating process was filed, and (c) must state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the debt or debts, and (d) must state the amount claimed by way of interest, and (e) must state whether costs are claimed and, if so, how much is claimed for costs, indicating: (i) how much is claimed on account of professional costs (not exceeding the amount fixed by the regulations made for the purposes of section 329 of the Legal Profession Act 2004
), and (ii) how much is claimed on account of filing fees, and (iii) how much is claimed on account of the costs of serving the originating process, and (f) must state when and how the originating process was served on the defendant. 16.7 Default judgment on claim for unliquidated damages
(cf SCR Part 17, rule 5) (1) If the plaintiff’s claim against a defendant in default is for unliquidated damages only, judgment may be given for the plaintiff against the defendant for damages to be assessed and for costs. See Part 30 for provisions as to assessment of damages. (2) The relevant affidavit in support: (a) must state that the matter has not been settled with the defendant, and (b) must state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the claim, and (c) must state whether costs are claimed and, if so, how much is claimed for costs, indicating: (i) how much is claimed on account of professional costs (not exceeding the amount fixed by the regulations made for the purposes of section 329 of the Legal Profession Act 2004
), and (ii) how much is claimed on account of filing fees, and (iii) how much is claimed on account of the costs of serving the originating process, and (d) must state when and how the originating process was served on the defendant. The entry of default judgement for liquidated claims is an administrative task performed by the registry staff at the offices of the relevant court. The application does not receive judicial consideration. This aspect distinguishes default judgement from summary judgement or a judgement after a hearing. Fisher J made the following comments in Argento v Cooba Developments Pty Ltd (1987)
referring to three earlier decisions concerning default judgements:
- A summary judgement…is to be distinguished from a default judgement in that it involves a decision by the court that the defendant has failed to show a triable defence o the plaintiff’s claim.
- In an application for leave to enter [summary] judgement…the defendant has the opportunity to point to defects in the plaintiff’s [claim] and have it reviewed by the court. A defendant has no such opportunity when default judgement is entered
When default judgement is sought for an unliquidated claim, the plaintiff cannot use the administrative procedure and must apply to the court for an assessment of damages. A debt is a type of liquidated demand What constitutes a liquidated demand or claim? Spain v Union Steamship of NZ Ltd (1923):
It has been held that whenever the amount to which the plaintiff is entitled can be ascertained by simple calculation, or fixed by any scale of charges or other positive data, it is liquidated. [Applied in Rothenberg Australia v Poulsen (2003)
] Setting aside default judgement – pg 557
Due to the comparative ease with which the plaintiff may obtain default judgement, there are correlative rights vested in the defendant. Anlaby v Praetorious (1888); Deputy Commissioner of Taxation v Abberwood Pty Ltd (1990):
Where a default judgement has been irregularly obtained (that is, not in accordance with the rules), it will generally be set aside as of right (ex debito justitiae) Examples: Judgements
- signed too soon (Anlaby v Praetorious (1888)); or
- For too much (Hughes v Justin ); have been set aside
Commonwealth Bank of Australia v Buffet (1993)
- where the irregularity was the entering of the judgement against the defendants in both their personal and representative capacities (Westpac Banking Corporation v Garret 
: The court retains discretion to deal with irregularities; therefore not every irregularity will enable the defendant to have default judgement set aside as a matter of right However, even when properly obtained, the court has discretion to set aside a default judgement upon the application of the defendant: UCPR 36.16 36.16 Further power to set aside or vary judgment or order
(cf SCR Part 40, rule 9) (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. (2) The court may set aside or vary a judgment or order after it has been entered if: (a) it is a default judgment (other than a default judgment given in open court), or (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or (c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order. (3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it: (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief. (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered. (3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered. (3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B). (4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order. Cook v DA Manufacturing Co Pty Ltd (2004) – QLD court of appeal
: The defendant should address three elements when attempting to set aside default judgement –
Nation Australia Bank Ltd v Singh 
- Give a satisfactory explanation for failure to appear
- Establish no unreasonable delay in making the application; and
- Demonstrate a prima facie defence on the merits.
– Focuses upon delay Mearns v Willoughby Community Preschool Inc 
– Discusses the need for a prima facie defence CASE: Nation Australia Bank Ltd v Singh
 – pg 558 Pincus JA:
CASE: Mearns v Willoughby Community Preschool Inc
- It appears that one of the bases on which his honour declined to set the default judgement aside was that if that is done whenever there is a defence on the merits, defendants might be encourage to let judgement go by default, in order to produce delay.
- In my view, there is no reason to think that the appellant had any such motive, nor do I think it likely that defendants generally will, having a good defence on the merits, be inclined to let judgement go by default, simply to gain the relative short time which would be expected to pass before the judgement can be set aside.
- The learned primary judge also remarked, “where there has been, in effect, no satisfactory explanation of delay, the Court should not, in my view, be overly anxious to accommodate the preference of the debtor
- Here it is true that the explanation given was broad and not detailed: further no medical reports were produced. Despite these weaknesses I see no justification for failing completely to act on the explanation, particularly as it derived, as I have mentioned, some support from contemporary correspondence.
- There is really nothing in the evidence to suggest that the defence is put forward other than bona fide.
- The learned judge erred in failing to give any weight to the explanation advanced for the delay
- His Honour should have approached the matter on the basis that, the appellant’s delay not being lengthy and no prejudice being shown, the appellant should have been allowed to litigate a defence which appears to the a matter of substance.
 – pg 559 Hodgson JA:
- His honour asked the question whether he should dismiss the notice of motion or give the defendant an opportunity to bring forward material to support a defence, and he adjourned the notice of motion to 11 Sep to give that opportunity to the defendant.
- On that day Acting Judge Bowden delivered a judgement referring to the defendant’s affidavit, and indicating that in his view the defence was precisely the sort of defence that the rules say shall not be pleases to a matter commenced by way of liquidated statement of claim. He went on to say that what the defendant has to do was a matter of showing the prima facie defence on the merit, but that in doing so:
The defendant is required to put some factual statements before the Court that would deal with that are very specific allegations and claims that have been made there. That has not been done.
- The question for this Court is whether leave should be granted to appeal, on the basis that there is an appeal that has some prospect of success because an error made by the primary judge, and the interest of justice required that leave should be granted.
- …The statement of claim was pleaded with adequate particularity and that the request that was made for the particulars was one to which the defendant was not entitled to have an answer before the putting on a defence, or, indeed, probably at all.
- …The application which the claimant made to have the judgement set aside should have been accompanied by a proposed defence, and the failure to have a proposed defence put the Judge hearing the application was a significant deficiency in the application that was made.
- There was no addressing in the affidavit of the very significant allegations in the statement of claim of deliberate falsifications in relation to the recording of the transactions so as to disguise the nature of the payments. In any defence, that certainly would have to be addressed.
- It may be that if that question had been squarely addressed and if there had been a verified defence available asserting in relation to some or even all transactions that the money was applied for the purposes of the school, that might possibly have been a sufficient indication of a defence on the merits to justify setting aside the judgement.
- However, in the light of the deficiencies that have been identified, I do not think that it can be said that the result to which the District Court judge came was an incorrect result, even if it may be the case that he placed too high a standard on the defence on the merits that had to be shown.
– pg 561 Gorman v Matthews (1897):
Where the judgement was regularly obtained, the defendant will usually be ordered to pay the costs thrown away and the costs of the application (Federal Bank v Bate (1889))
BUT costs may be refused if the plaintiff did not give reasonable warning to the defendant of its intention to sign judgement (Coburn v Brothchie (1890))
OR if the plaintiff unreasonably refused to agree to set aside the judgement Topic 5: Discovery/Interrogatories Chapter 13 – Discovery Discovery and inspection of documents Requirement for discovery and inspection of documents New South Wales –
pg 602 Part 21 Div of the NSW rules substitutes, for the right of general discovery upon service of a notice on another party, a more limited right to require the production of specific documents. Any document referred to in the other party’s originating process, pleadings, affidavits or witness statements may be specified. Other documents clearly identified in the notice, and relevant to a fact in issue may also be specified: UCPR 21.10
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 21.10
21.10 Notice to produce for inspection by parties
(1) Party A may, by notice served on party B, require party B to produce for inspection by party A: (a) any document or thing that is referred to in any originating process
, pleading, affidavit or witness statement filed or served by party B, and (b) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue. (2) A notice to produce may specify a time for production of all or any of the documents or things required to be produced.
Unless the court orders otherwise, the party served with the notice must then produce the requested documents in the party’s possession, custody and power, and provide any information he or she may have as to the whereabouts of the specified documents that are not produced: UCPR 21.11
UCPR 2005 – r 21.11 Production under notice to produce
(cf SCR Part 23, rule 2 (3) and (4); DCR Part 22, rule 2 (3) and (4)) (1) Unless the court orders otherwise, party B must, within a reasonable time after being served with a notice to produce: (a) produce for party A’s inspection such of the documents or things referred to in the notice (other than privileged documents) as are in party B’s possession, and (b) serve on party A, in respect of any document that is not produced, a notice stating: (i) that the document is a privileged document, or (ii) that the document is, to the best of party B’s knowledge, information and belief, in the possession of a person identified in the notice, or (iii) that party B has no knowledge, information or belief as to the existence or whereabouts of the document. (2) For the purposes of subrule (1): (a) unless party B establishes to the contrary, 14 days or longer after service of the notice is to be taken to be a reasonable time, and (b) unless party A establishes to the contrary, less than 14 days after service of the notice is to be taken to be less than a reasonable time. A party to the proceedings on a claim for damages for personal injuries or death is not required to comply with a notice to produce documents other than those referred to in documents filed by that party unless the court, for special reason, otherwise orders: UCPR 21.12
UCPR 2005 – r 21.12 – Personal injury claims
(cf SCR Part 23, rule 5, Part 24, rule 1 (3); DCR Part 22, rule 5) In any proceedings on a common law claim: (a) for damages arising out of the death of, or bodily injury to, any person, or (b) for contribution in respect of damages so arising, a party is not required to comply with a notice to produce in relation to a document or thing that has not been referred to in any originating process
, pleading, affidavit or witness statement filed or served by that party unless the court, for special reasons, orders otherwise. A court order is necessary for any discovery beyond the specific documents which may be sought by notice under rule 21.10, but this right is also limited. The court has power to make an order for discovery, but only in relation to a document within a specified class or classes, or to one or more samples of documents with such a class: UCPR 21.2
A class of documents is not to be specified in more general terms than the court considers ‘justified’ in the circumstances. A class of documents may be specified either by relevance to one or more of the facts in issue
, by description of the nature of the documents
and the period within which they were brought into existence
, or in such other manner as the court considers appropriate
in the circumstances. An order for discovery may not be made in respect of a document unless the document is relevant to the fact in issue
UCPR 2005 – r 21.2 – Order for discovery
(cf SCR Part 23, rule 3 (1), (2) and (3); DCR Part 22, rule 3 (1), (2) and (3)) (1) The court may order that party B must give discovery to party A of: (a) documents within a class or classes specified in the order, or (b) one or more samples (selected in such manner as the court may specify) of documents within such a class. (2) A class of documents must not be specified in more general terms than the court considers to be justified in the circumstances. (3) Subject to subrule (2), a class of documents may be specified: (a) by relevance to one or more facts in issue, or (b) by description of the nature of the documents and the period within which they were brought into existence, or (c) in such other manner as the court considers appropriate in the circumstances. (4) An order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue.
In personal injury and fatal accident proceedings, the court is not to make an order for discovery unless satisfied there are special reasons: UCPR 21.8
UCPR 2005 – r 21.8 – Personal injury claims
(cf SCR Part 23, rule 5; DCR Part 22, rule 5) In any proceedings on a common law claim: (a) for damages arising out of the death of, or bodily injury to, any person, or (b) for contribution in respect of damages so arising, an order for discovery may not be made in relation to any document unless the court, for special reasons, orders otherwise. A party order to make discovery must comply with the order within 28 days
or within such period as the court orders This required the preparation of list, verified on oath, which set out all the documents within the scope of the order an which are or were at a time later than six months prior to the proceeding in the ‘possession, custody or power’ of the party. The list must indicate which documents are no longer in the possession of the discovering party and state any belief the party may have as to in whose possession or power those documents may now be. (SEE PAGE 68 FOR INTERPRETATION OF POSSESSION CUSTODY AND POWER – CASES) It must also state which documents are claimed to be privileged and the basis of that claim: UCPR 21.3; 21.4 21.3 List of documents to be prepared
(cf SCR Part 23, rule 3 (5) and (6); DCR Part 22, rule 3 (5) and (6)) (1) Party B must comply with an order for discovery by serving on party A a list of documents that deals with all of the documents (other than excluded documents) referred to in the order. (2) The list of documents: (a) must be divided into two parts: (i) Part 1 relating to documents in the possession of party B, and (ii) Part 2 relating to documents that are not, but that within the last 6 months prior to the commencement of the proceedings have been, in the possession of party B, and (b) must include a brief description (by reference to nature and date or period) of each document or group of documents and, in the case of a group, the number of documents in that group, and (c) must specify, against the description of each document or group in Part 2 of the list of documents, the person (if any) who party B believes to be in possession of the document or group of documents, and (d) must identify any document that is claimed to be a privileged document, and specify the circumstances under which the privilege is claimed to arise. (3) Party B must comply with the requirements of subrule (1): (a) within 28 days after an order for discovery is made, or (b) within such other period (whether more or less than 28 days) as the order may specify. 21.4 Affidavit and certificate supporting list of documents
(cf SCR Part 23, rule 3 (5), (6) and (7); DCR Part 22, rule 3 (5), (6) and (7)) (1) The list of documents must be accompanied by: (a) a supporting affidavit, and (b) if party B has a solicitor, by a solicitor’s certificate of advice. See rule 35.3 as to who may make such an affidavit. (2) The affidavit referred to in subrule (1) (a) must state that the deponent: (a) has made reasonable inquiries as to the documents referred to in the order, and (b) believes that there are no documents (other than excluded documents) falling within any of the classes specified in the order that are, or that within the last 6 months before the commencement of the proceedings have been, in the possession of party B (other than those referred to in Part 1 or 2 of the list of documents), and (c) believes that the documents in Part 1 of the list of documents are within the possession of party B, and (d) believes that the documents in Part 2 of the list of documents are within the possession of the persons (if any) respectively specified in that Part, and (e) as to any document in Part 2 of the list of documents in respect of which no such person is specified, has no belief as to whose possession the document is in, and must state, in respect of any document that is claimed to be a privileged document, the facts relied on as establishing the existence of the privilege. (3) The solicitor’s certificate of advice referred to in subrule (1) (b) must state that the solicitor: (a) has advised party B as to the obligations arising under an order for discovery (and if party B is a corporation, which officers of party B have been so advised), and (b) is not aware of any documents within any of the classes specified in the order (other than excluded documents) that are, or that within the last 6 months before the commencement of the proceedings have been, in the possession of party B (other than those referred to in Part 1 or 2 of the list of documents).
For discovery made pursuant to a court order under 21.2, the discovering party must hen make the documents available for inspection. Rule 21.5
details the obligations on discovering party in that respect. 21.5 Documents to be made available
(cf SCR Part 23, rule 3 (9) and (10); DCR Part 22, rule 3 (9) and (10)) (1) Subject to the requirements of any Act or law, Party B must ensure that the documents described in Part 1 of the list of documents (other than privileged documents): (a) are physically kept and arranged in a way that makes the documents readily accessible and capable of convenient inspection by party A, and (b) are identified in a way that enables particular documents to be readily retrieved, from the time the list of documents is served on party A until the time the trial of the proceedings is completed. (2) Within 21 days after service of the list of documents, or within such other period or at such other times as the court may specify, party B must, on request by party A: (a) produce for party A’s inspection the documents described in Part 1 of the list of documents (other than privileged documents), and (b) make available to party A a person who is able to, and does on party A’s request, explain the way the documents are arranged and assist in locating and identifying particular documents or classes of documents, and (c) provide facilities for the inspection and copying of such of the documents (other than privileged documents) as are not capable of being photocopied, and (d) provide photocopies of, or facilities for the photocopying of, such of the documents as are capable of being photocopied, subject to: (i) party A’s solicitor undertaking to pay the reasonable costs of providing those photocopies or facilities, or (ii) if party A has no solicitor, party A providing to party B an amount not less than a reasonable estimate of the reasonable costs of providing those photocopies or facilities. In the Equity Division:
Additional limitations upon application s for orders for disclosure of documents. The court will not make an order for disclosure of documents until the parties to the proceeding have served their evidence, unless there are exceptional circumstances necessitating disclosure. There is to be no order for disclosure in any proceeding in the Equity division unless it is necessary for the resolution. Exclusion of Privileged Documents
The right to inspection of any document is subject to their being no valid claim to privilege in respect of that document. In NSW when any claim to privilege is made in a list of documents, the rules require the circumstances under which the privilege is claimed to be specified: UCPR 21.3(2)(d) UCPR 2005 – r 21.3
– List of documents to be prepared
(2) The list of documents: (d) must identify any document that is claimed to be a privileged document, and specify the circumstances under which the privilege is claimed to arise.
If any application before the court involves a challenge to a claim for privilege, the court may inspect the document to decide the validity of the claim: s 183 Evidence Act 1995 (NSW)
EVIDENCE ACT 1995 – SECT 183 – Inferences
If a question arises about the application of a provision of this Act in relation to a document or thing, the court may: (a) examine the document or thing, and (b) draw any reasonable inferences from it as well as from other matters from which inferences may properly be drawn.
- Document– pg 604
The definitions of ‘document’ which apply to discovery procedure are wide enough to encompass audiotapes and video tapes, computer disks and information stored by most other electronic or mechanical means: S21(1) NSW Interpretations Act 1987 (NSW)
INTERPRETATION ACT 1987 – SECT 21 Meanings of commonly used words and expressions
(1) In any Act or instrument
means any record of information, and includes: (a) anything on which there is writing
, or (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons
qualified to interpret them, or (c) anything from which sounds, images or writings
can be reproduced with or without the aid of anything else, or (d) a map, plan, drawing or photograph. Sony Music Entertainment (Aust) Ltd v University of Tasmania :
Tamberlin J made orders permitting Sony’s expert forensic investigator to have access to the university’s backup files and to use specially designed software to recover deleted information, extract information and if necessary convert into readable form, and to make copies of it. Grant v Marshall :
Applicant wanted to trace back the source of an email containing false allegations. Emmett J made orders restraining two of the respondents from deleting or erasing material that might assist in identifying the author of the email and for the production to the court of material that might assist in identifying the author. It was also ordered that a computer forensic expert be given access to the hard drive of the computer upon the giving of appropriate undertakings.
- Relevance – pg 605
A very broad interpretation has been taken as to what is relevant, extending to relevance of an indirect kind. The rules in NSW now incorporate more restrictive tests in relation to the nature of documents which must be disclosed. NSW
Relevance is usually but not always, one of the applicable tests in determining whether a document must be discovered. It is alsys necessary if a party is seeking production for inspection of specific documents under r21.10, that the document be relevant to a fact in issue. If discovery is pursuant to a court order for discovery of a class or classes of documents under r 21.2, it is possible for the classes to be descried in the order by description of the nature of the documents and the period when they were made, or in any manner the court considers appropriate. In that event, the question of which documents are included can only be determined by reference to the terms of the court order. Alternatively, the class of documents may be described in order by reference to their ‘relevance to one or more facts in issue.’ For those circumstances in which relevance is a governing test, part 21 now incorporates a definition for that term: UCPR 21.1(2)
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 21.1 Definitions
(2) For the purposes of this Division, a document
or matter is to be taken to be “relevant to a fact in issue”
if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document
or matter would be admissible in evidence. This test, which is similar to the test in section 55 Evidence Act NSW, is still fairly wide, and would appear to encompass anything that might throw light in any matter in issue or relevant to an issue between the parties. It does not, however, encompass
documents which may only have value under the ‘chain of inquiry’ test in National Australian Bank Ltd v Indoport Pty Ltd .
- Documents Exempt from Discovery
In NSW, the rules eliminate certain categories of documents from the requirement to discover or disclose. In respect of most categories of documents excluded, the underlying rationale is that discovery of those documents serves no useful purpose but simply increases the number of documents included. Part 21 (rules 21.1)
excludes certain documents from an order for discovery, unless the court order to the contrary. (list in section below)
(1) In this Division: “excluded document”,
in relation to proceedings the subject of an order for discovery, means any of the following documents
: (a) any document filed in the proceedings, (b) any document served on party A after the commencement of the proceedings, (c) any document that wholly came into existence after the commencement of the proceedings, (d) any additional copy of a document included in the list of documents, being a document that contains no mark, deletion or other matter, relevant to a fact in question, not present in the document so included, (e) any document comprising an original written communication sent by party B prior to the date of commencement of the proceedings of which a copy is included in the list ofdocuments,
but does not include any document
that the court declares not to be an excluded document
for the purposes of those proceedings. “list of documents”
means a list of documents
referred to in rule 21.3. “order for discovery”
means an order referred to in rule 21.2. “party A”
means a party to whom another party is giving discovery, or being ordered to give discovery, of documents
. “party B”
means a party who is giving discovery, or being ordered to give discovery, of documents
. “party B’s affidavit”
means an affidavit prepared in relation to the list of documents
under rule 21.4.
- Possession, Custody or Power – pg 612
A party is only required to discover document which are or have been in that party’s control in the manner contemplated by the rules. The test is whether the document has been in the party’s ‘possession, custody or power’ – see part 21 (mainly 21.3) Defined in CPA 2005, SECTION 3 (DICTIONARY) CIVIL PROCEDURE ACT 2005 – SECT 3 Definitions “possession”
, otherwise than of land
, includes custody and power. Halsbury’s rules of England-
For the purpose of the discovery rules: ‘possession’
means the mere actual physical or corporal holding of a document pursuant to the legal right to deal with it, as in the case of an agent, or bailee. ‘Custody’
means the mere actual physical or corporal holding of a document, regardless of the right of its possession, as in the case of a servant or employee. ‘Power’
mean an enforceable right to inspect or to obtain possession or control of the document from the person who ordinarily has it in fact. CASE: Alstom Ltd v Liberty Mutual Insurance Co.  – pg 612
This case considered the authorities relating to the meaning of ‘power’ in this context, and provides guidance as to the circumstances in which a document will be in a party’s ‘power’ Siopis J:
Theodore v Australian Postal Commssion - NOT
- The expression “power” must, in my view, mean a presently enforceable right to obtain from whoever actually holds the document inspection of it without the need to obtain the consent of anyone else.
- Provided that the right it presently enforceable, the fact that for physical reasons it may not be possible for the person entitled to it to obtain immediate inspection would not prevent the document from being within his power; BUT in the absence of a presently enforceable right there is, in my view, nothing to compel a party to a cause or matter to take steps that will enable him to acquire one in the future.
- Taylor v Santos Ltd (1998)- A person does not have that right or actual immediate ability if the person is able to inspect the document ONLY if the third person, who has control of the document, agrees to permit the inspection, or agrees to refrain from so exercising that person’s control as to prevent inspection.
within “power” if document is in possession of other party however, discovering party has possible access under freedom of information Act. Erskine v McDowall - NOT
in possession and/or control if party is entitled to copy of document (forms) submitted to various commonwealth agencies by virtue of FIO but not in possession at the time. ‘control is more strict than requirement of ‘power’. Judge did order however that document be disclosed to relevant party under FIO.
- Restricted Discovery – pg 616
In Federal Court and NSW, a spate rule in this respect is not necessary as a right to require documents by notice is limited to specific documents and a court order will only be in respect of stipulated classes of documents, and only to the extent the court considers justified in the circumstances.
- Further Discovery and Particular Discovery – pg 621
A party to whom a discovery of document has been provided may believe that the discovery is complete. It may be thought that a document or class of documents has been overlooked by the discovering party, that privilege has been appropriately claimed, or even that the discovering party has been deliberately evasive and has intentionally omitted discoverable documents. It has always been possible, however, to challenge an affidavit of documents if it was obvious from the record (pleadings, the list or affidavit of documents, or other discovered documents) that a party had given incomplete discovery. It has been seen that in NSW, Part 21 div 2
enables a party, by notice, to require discovery in respect of specified documents. In respect of a discovery made under a court order, there is no rule directed towards challenging the sufficiency of discovery or the contents of a verifying affidavit. There is, however, a general power in the court to determine any question arising under the rules, and for the purpose to inspect any document and if the document is not before the court to order that the document be produced to the court for inspection: UCPR 1.8
UCPR 2005 – r 1.8 Determination of questions arising under these rules
The court may determine any question
arising under these rules (including any question
of privilege) and, for that purpose: (a) may inspect any document
in relation to which such a question
arises, and (b) if the document
is not before the court, may order that the document
be produced to the court for inspection.
- Discovery of Documents and Information Technology – pg 623
One of the challenges for litigation in the electronic age is dealing with the explosion in the number of documents which are discoverable in many civil matters. In matters involving large volumes of documents which must be gathered, sorted, indexed, and classified, it has been common for some time for litigation practitioners to use information technology as an aid in document management. In most jurisdiction (including NSW), practice notes have been issued to encourage partied to consider, from the start of the proceeding, way to use information technology to manage the discovery and inspection process more efficiently and also to use technology in appropriate case at trial – NSW Practice Note SC Gen 7: Supreme Court – Use of technology, with effect from 1 August 2008. Most of the practice notes and directions refer to document ‘protocols’. Document protocols may simply set out how document are to be described. They prescribe what information (known as fields) should be included e.g, date, document type, author, author organisation, recipient, recipient organisation. The practice notes encourage parties to use electronic data (or databases) to create lists of their discoverable documents, and encourage parties to give discovery by exchanging databases created in accordance with an agreed protocol. They also encourage parties to consider the use of technology, including an electronic court book, at trial. The latest practice notes formally recognise the distinction between paper and electronic documents and attempt to address some of the associated issues. Their requirements include an obligation on the parties to meet and confer for the purpose of reaching agreement about a range of issues relating to efficient document management in proceedings, including the discovery of electronic documents in their native format.
- Parties obliged to make Discovery – pg 625
The rules generally provide that a party to a litigation may be obliged to make discovery to any other party: UCPR 21.2; 21.10 Shaw v Smith (1886):
Usually that will mean discovery may be required between parties on different sides of the record as, for example, between plaintiff and defendant or defendant and third party, but the rules are broad enough to extend to any parties between whom there is an issue to be adjusted.
- Solicitor’s Obligations – pg 625
In preparing for trial, solicitors bear a heavy burden in relation to discovery, as their client will not usually know or appreciate the legal requirements relating to discovery. It is a solicitor’s professional duty to be personally satisfied that the client is providing complete discovery. Myers v Ellman :
If a client will not give information which his or her solicitor is entitled to require, or if the solicitor knows the affidavit of documents insisted upon by the client is misleading, then the solicitor should withdraw. It was ling suggest in that case that the solicitor bears a special burden in this respect when an allegation of fraud is made against his/her client. In NSW rule 21.4
, the solicitor must, with in the time for compliance with the order for discovery, serve on the party to whom discovery is made a certificate that he or she has advised the client as to the obligation arising under an order for discovery, and he or she is not aware of any documents which have not been included in the list of documents but should have been.
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 21.4 Affidavit and certificate supporting list of documents
(cf SCR Part 23, rule 3 (5), (6) and (7); DCR Part 22, rule 3 (5), (6) and (7)) (1) The list of documents
must be accompanied by: (a) a supporting affidavit, and (b) if party B has a solicitor
, by a solicitor
’s certificate of advice. Note :
See rule 35.3 as to who may make such an affidavit. (2) The affidavit referred to in subrule (1) (a) must state that the deponent: (a) has made reasonable inquiries as to the documents
referred to in the order, and (b) believes that there are no documents
(other than excluded documents
) falling within any of the classes specified in the order that are, or that within the last 6 months before the commencement of the proceedings have been, in the possession of party B (other than those referred to in Part 1 or 2 of the list of documents
) , and (c) believes that the documents
in Part 1 of the list of documents
are within the possession of party B, and (d) believes that the documents
in Part 2 of the list of documents
are within the possession of the persons (if any) respectively specified in that Part, and (e) as to any document
in Part 2 of the list of documents
in respect of which no such person is specified, has no belief as to whose possession the document
is in, and must state, in respect of any document
that is claimed to be a privileged document
, the facts relied on as establishing the existence of the privilege. (3) The solicitor
’s certificate of advice referred to in subrule (1) (b) must state that the solicitor
: (a) has advised party B as to the obligations arising under an order for discovery (and if party B is a corporation, which officers of party B have been so advised), and (b) is not aware of any documents
within any of the classes specified in the order (other than excluded documents
) that are, or that within the last 6 months before the commencement of the proceedings have been, in the possession of party B (other than those referred to in Part 1 or 2 of the list of documents
- Discovery: A Continuing Obligation?– pg 26
In the federal court, a party who has been ordered to give discovery is under a continuing obligation to discover any document not previously discovered that would other need to be discovered to comply with the order. The position is similar in NSW, where a party who has provided discovery under an order made under rule 21.2
, is under a continuing obligation to give discovery of documents which fall within the ambit of the order and which come into the possession of the discovering party (or which the discovering party becomes aware are in his or her possession, custody or power): UCPR 21.6 (see next page)
It is also specified that if the discovering party becomes aware that a document claimed to be privileged was not, or has ceased to be a privileged document, that party must notify the other party and make the document available for inspection.
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 21.6 Subsequently found documents to be made available
If at any time after party B’s affidavit is made, and before the end of the hearing, party B becomes aware: (a) that any document
within the class or classes specified in the relevant order for discovery (not being an excluded document
) but not included in Part 1 of the list of documents
is within, or has come into, party B’s possession, or (b) that any document
included in Part 1 of the list of documents
which was claimed to be a privileged document
was not, or has ceased to be, a privileged document
, party B must forthwith give written notice to party A of that fact, and comply with rule 21.5 in respect of the document
, as if the document
had been included in Part 1 of the list of documents
and the list had been served on the date of the giving of the notice. Interrogatories
– pg 643
- What are Interrogatories?
Interrogatories are a series of questions delivered by one party to the other which the party under interrogation is required to answer, usually on oath. The questions are designed to obtain admissions to assist in proving the case of the interrogating party, or to damage the case of the party under interrogation.
- When are interrogatories permitted?
Although at one time interrogatories were delivered as a matter of course, the rules in the Federal Court and NSW now require the court’s leave for the delivery of interrogatories in all cases. Australian Competition and Consumer Commission v ANZ Banking Group Ltd
(per Greenwood J): includes a useful discussion of the background to the requirement for leave, and MAKES IT CLEAR THAT LEAVE WILL NOT BE GRANTED AS A MATTER OF PRACTICE. (see case below) Under the rules, the application for leave to deliver interrogatories must be accompanied by a draft of the proposed interrogatories. UCPR 22.1
In NSW, the court may not make an order requiring any party to answer interrogatories in a personal injury or fatal accident proceeding, unless it is satisfied that special reasons exist that justify the making of the order. UCPR 22.1(3)
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 22.1 Interrogatories
(1) At any stage of the proceedings, the court may order any party to answer specified interrogatories. (2) An application for such an order must be accompanied by a copy of the proposed interrogatories. (3) In the case of proceedings on: (a) a claim for damages arising out of the death of, or bodily injury to, any person, or (b) a claim for contribution in relation to damages so arising, such an order is not to be made unless the court is satisfied that special reasons exist that justify the making of the order. (4) In any case, such an order is not to be made unless the court is satisfied that the order is necessary at the time it is made. (5) An order to answer interrogatories: (a) may require the answers to be given within a specified time, and (b) may require the answers, or any of them, to be verified by affidavit, and (c) in circumstances in which rule 35.3 authorises someone other than the party to whom the order is addressed to make the relevant affidavit, may specify the person to make the affidavit, or the persons from whom the person to make the affidavit may be chosen, in relation to the interrogatories or any of them.
Buxton v Lysaught Pty Ltd v Buxton :
- Scope of Interrogatories – pg 645
Interrogatories MUST relate to a question between the parties in the proceeding They cannot be directed purely to ascertain the name of witnesses, unless those names are themselves material facts, nor to the evidence which the party under interrogation intends to call. Similarly, they may not be directed only to credit, or indeed to any fact which, if proved will not establish anything material in the pleadings. The object of interrogatories an their permissible scope
were discussed by Greenwood J in Australian Competition and Consumer Commission v ANZ Banking Group Ltd. CASE: Australian Competition and Consumer Commission v ANZ Banking Group Ltd 
– pg 646 Greenwood J:
- Notwithstanding each case turns on its circumstances, I find it difficult to identify a class of case where best practice does not require the applicant for leave to first formulate the precise questions for which leave is sought and serve those questions in draft on the other party or parties seeking leave, irrespective of whether a party to be interrogated supports or consents to an order granting general leave to the interrogating party.
- Properly formulated interrogatories directed to assertions of fact in issue which elicit admissions, may possibly have the benefit of narrowing the issues and thus narrowing the scope of discovery, although that advantage may be more theoretical than real.
- The practice of first drafting the interrogatories and circulating the proposed interrogatories to the relevant parties and court, is to be preferred.
- I propose to deal with the question of whether each and every interrogatory is a proper interrogatory by asking these questions:
- First, is the interrogation directed to a matter pleaded in the amended statement of claim but not admitted in the defence? That, fundamentally was the proposition but in support of leave initially.
- Secondly, if the interrogatory is not directed to that question, is each interrogatory otherwise directed to a denial or non-admission which is said to be clear? If so, on either basis, the third question is whether the interrogatory is vexatious or oppressive in the sense that those terms are understood in the authorities.
- …I do not think the court acts on hard and fast lines. If, for instance, the admission intended to be elicited will only afford a meagre or unsubstantial support to the plaintiff’s case, while answering the interrogatory will involve the defendant in great labour and expense, I think the court may exercise a discretion whether it will enforce an answer or not… per Simpson J in WA Pines Pty Ltd v Bannerman
- …Where an account is claimed as part of the claim in an action, or question of account arise in the action, interrogatories as to the details of the accounts may be allowed, provided they are of sufficient importance to the party interrogatories, eg, enabling him to obtain an immediate decree or order at the trial, and cause comparatively little trouble to the party interrogated, but not where the interrogatory would be oppressive (per Street J) with whom Cullen CJ agreed in WA Pines Pty Ltd v Bannerman
- There is no one general principle underlying the whole law as to interrogatories, namely, that they must not be of such a nature to be oppressive, and to exceed the legitimate requirements of the particular occasion…(Collin MR in White & Co) with whom Cullen CJ agreed in WA Pines Pty Ltd v Bannerman
- The prima facie object of interrogatories is to enable a party to litigation to obtain discovery of material facts in order either to support or establish proof of his own case, or to find out what case (but not the evidence) he has to meet; or to destroy or damage the case brought by the opposition: Adams v Dikeson 
- In American Falnge v Rheem, Myers J considered the following matters in asserting whether a set of interrogatories was oppressive:
- The number of individual interrogatories;
- The extent to which the providing an answer imposes an unreasonably onerous burden on the interrogated party
- Whether the interrogatory requires the interrogated party to form opinion, exercise judgement or draw conclusions;
- The repetitiveness of the questions
- Whether the questions were in the truth asked for the purpose of discovering trade secrets
- Answers to Interrogatories – pg 650
Answers to interrogatories are to be verified by affidavit to the extent to which and in the manner in which the order giving leave for the interrogatories so requires: UCPR 22.3
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 22.3 Answers to interrogatories
(cf SCR Part 24, rules 4 and 6; DCR Part 22A, rules 4 and 6) (1) A party who has been ordered to answer interrogatories must do so within the time required by the order by serving a statement of answers on all other active parties. (2) Such a statement: (a) must deal with each interrogatory specifically, setting out each interrogatory followed by the answer to it, and (b) must answer the substance of each interrogatory without evasion, and (c) to the extent to which, and in the manner in which, the order so requires, must be verified by affidavit. Note :
See rule 22.6 as to the admission in evidence of answers to interrogatories. A party served with interrogatories must answer to the best of his or her knowledge, information and belief.
It may be that a party has no knowledge of the fact or matter inquired after, bus has an enforceable right to information held by employees or agents who may have obtained the requisite knowledge in that capacity. In such an event, the party is obliged to make all reasonable inquiries of such persons for the purpose (so far as possible) of forming a belief as to the fact or matter inquires after, and to answer the interrogatories in the light of the information obtained. CASE: Sharpe v Smail (1975)
– pg 650 Facts:
- First responded answered:
I have no personal knowledge of the matter enquired after. I have certain information about the said matters but I am unable to swear as to a belief in the truth of such information.
- In respect of these (and other) answered given, by the first defendant, the plaintiff brought an application for further and better answered to interrogatories.
- The answer given to these interrogatories is insufficient. It does not state the proper – or indeed any – enquires have been made and it is quite consistent with the answer given that if the defendant had made enquiries he could have obtained further information which he might have believed to be true.
- It is well established that a party interrogated must answer to the best of his knowledge, information and belief (unless he objects to answer)
- It is not enough to say he has no knowledge, because he is bound also to answer according to the information acquired from servants or agents who have gained it in that capacity, and where appropriate his answer must show that he has made all proper inquiry and that having made them he has no information enabling him to answer further
- Gilchrist v R Wallace Mitchell Pty Ltd : QUESTION – Whether an employer need answer interrogatories on the basis of information given to him by a servant who happens to be the opposing party in the action, or by a servant with an interest opposed to the employer’s interest. Lush J answered this question by saying that a defendant is bound to answer from information so supplied if he believes the information to be true but not otherwise.
- BELIEF IS NOT THE SAME AS KNOWLEDGE and a party cannot truthfully swear that he has no belief based on information in his possession simply because he does not know that the information is true. Although he is not bound to say that he believes what he does not, he is not entitled to treat any information that he may receive with blameless suspicion, refusing to entertain belief unless it has ripened into certain knowledge. He cannot by refusing to believe information when there is no reason to doubt its truth escape from his obligation to answer to the best of his knowledge, information and belief. Moreover, the fact that information comes from a suspect source will not always be enough to render it worthy of disbelief; for example, it may be supported by other credible material.
– pg 658 A common ground upon which a party may object to making documents available for inspection or to answering an interrogatory is that the document is privilege from production or that the party is privileged from answering the interrogatories, as the case may be. A valid claim to privilege means that the documents to which the privilege applies need not be produced for inspection (though they may still be mentioned in the affidavit or list of documents), and that a party may refuse to answer interrogatories directed to privileged information. Legal Professional Privilege – page 659
- Scope and Rationale
To ensure the client can feel free to engage in honest and complete communications with their legal practitioners, the law protects from disclosure communications between client and a legal adviser to obtain confidential legal advice, as well as communications which are made for the purpose of existing or anticipated litigation. Nature, Scope, and Rationale: CASE: Baker v Campbell (1983)-
pg 659 In the event that legal professional privilege attaches to an is maintained in respect of the documents held by the firm, can those documents be properly made the subject of a search warrant issued under s10 of the Crimes Act. Dawson J:
- Proper functioning of our legal system depends upon a freedom of communication between legal advisers and their clients which would not exist if either could be compelled to disclose what passed between them for the purpose of giving or receiving advice. This is why the privilege does not extend to communications arising out of other confidential relationships such as those of doctor and patient, priest and penitent or accountant and client.
- The cover of legal professional privilege was extended from communications relating to actual litigation to communications in anticipation of litigation and it is now ‘sufficient if they pass as professional communications in a professional capacity.
- The conflict between the principle that all relevant evidence should be disclosed and the principle that communications between lawyer and client should be confidential has been resolved in favour of the confidentiality of those communications. It has been determined that in this way the public interest is better served because the operation of the adversary system, upon which we depend for the attainment of justice in our society would otherwise be impaired.
- The privilege extends beyond communications made for the purpose of litigation to all communications made for the purpose of giving or receiving advice and this extension of the principle makes it inappropriate to regard the doctrine as a mere rule of evidence.
- No doubt there are exceptions to the principle that confidentiality should prevail in relation to professional communications in the law. E.G the privilege may be waived and it has no application if the communications are in furtherance of crime or fraud. Moreover, there is authority for the proposition that the privilege may be lost if a document to which it attached comes into the hands of someone other than the legal adviser or his client, even dishonestly, so that secondary evidence of it may be given.
- The exceptions do no more, however, than demonstrate that the basic principle is not absolute; they do not justify any general conclusion that the principle of confidentiality should yield to the principle that all relevant evidence should be disclosed.
- The legislature may, ofcourse, if it sees fit to do so, cut across the doctrine of legal professional privilege on occasions when it considers that it is more important to obtain information than to preserve the privilege and no doubt the inclination to do so will be greater in administrative proceedings where the principle has not been seen to operate as it has in judicial proceedings.
- The ‘dominant purpose’ test: common law
In its decision in Esso Australia Resources Ltd v The Commissioner of Taxation (1999)
the High Court preferred the ‘dominant purpose’ test. CASE: Esso Australia Resources Ltd v The Commissioner of Taxation (1999)-
pg 662 Gleeson CJ, Gaudron and Gummow JJ:
- Dean J said the test of whether a document is to be protected is whether ‘the cause of its existence, in the sense of both causans and sine qua non, must be seeking or provision of privilege legal advice. That may be closer to ‘dominant purpose’ than ‘sole purpose’.
- If a document is created for the purpose of seeking legal advice, but the maker has in mind to use it also for a subsidiary purpose which would not, by itself, have been sufficient to give rise to the creation of the document, the existence of a subsidiary purpose will not result in the loss of privilege.
- The ‘dominant purpose’ test should be preferred. It strikes a just balance, it suffices to rule out claims of the kind considered in Grant v Downs, and it brings the common law of Australia into conformity with other common law jurisdictions.
- The rules should not be used to exclude documents from production solely because they meet the ‘dominant purpose’ test in ss 118 and 119 of the Evidence Act 1995 (Cth)
EVIDENCE ACT NSW 1995 – SECT 118 Legal advice
118 Legal advice
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
EVIDENCE ACT NSW 1995 – SECT 119 Litigation
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
- Confidential Communications – pg 665
The first limb of legal professional privilege applies to confidential communications between a legal adviser and client. It DOES NOT apply to communication with a solicitor acting outside their professional capacity or to a communication which does not relate to any confidential advice. CASE: Packer v Deputy Commissioner of Taxation 
– pg 665 Andrews SPJ:
- Whether [privilege] attaches depends upon whether the documents disclose communications made or brought into existence for the sole purpose of seeking or giving advice or for the sole purpose of use in existing or anticipated litigation.
- Baker v Campbell: There is not privilege for physical objects other than documents and there is no privilege for documents which are the means of carrying out, or are evidence of, transactions which are not themselves the giving or receiving of advice or part of the conduct or actual or anticipated litigation. Communications which would otherwise be privileged lose their immunity from disclosure if they amount to participation in a crime or a fraud. The compass within which the doctrine of legal professional privilege operates is, therefore, narrow having regard to the principle which it protects.
- Disclosure is no less disclosure if it occurs by little and little.
- If ‘tend and reveal’ means no more than ‘may reveal’ in the sense that something recorded in the ledger may, conjecturally, tend to contribute to eventual knowledge by the Deputy Commissioner to the disadvantage of the applicants, then in my view that does not amount to disclosure of privileged matter.
- I would observe that if books kept according to usual procedures contain or refer directly to confidential matters, so as to disclose the subject of a communication for the purposes discussed, then to that extent they are privileged; but that if they are plainly laden with such information so as to demonstrate an intention to contrive advice and are not privileged.
- Baker v Campbell: Legal privilege does not extend to protect things lodged with a legal adviser for the purpose of obtaining immunity from production.
- Existing or anticipating litigation – pg 666
The second limb of legal professional privilege relates to communications with a solicitor for the purpose of existing or anticipating litigation. It is not necessary that litigation has actually commenced, provided there is a reasonable apprehension of such litigation. Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002):
In summary then, as a general rule at least, there must be a real prospect of litigation, as distinct from a mere possibility, but it does not have to be more likely than not. The privilege will generally protect communications between a solicitor and a third party or between a party and some other person, provided the communication is for the purpose of the litigation. This is subject, however, to an increasing number of statutory exceptions which compel exchange of medical reports and disclosure of other expert reports as part of caseflow management schemes.
- Copies of unprivileged Documents – pg 666
An important issue which has been the subject of a great deal of conflicting authority relates to the position of copies of unprivileged document in the possession of a lawyer, where the copies have been made solely for the purpose of obtaining or giving legal advice or solely for use in legal proceedings. The HC has held that under the common law test the copies will attract legal professional privilege. CASE: Commissioner, Australian Federal Court Police v Propend Finance Pty Ltd (1997)
– pg 667 McHugh J:
- No doubt it seems contrary to common sense that the law should give privilege to the copy of a document when it does not give it to the original. But in this area of the law, as in other areas of law and life, common sense turns out to be a misleading guide. This is because legal professional privilege turns on purpose, and no argument is needed to show that the purpose of a client or lawyer in making a copy document may be very different from the purpose of the person who created the original.
- The privilege attaches whenever the communication or material is made or recorded for the purpose of confidential use in litigation or the obtaining of confidential legal advice. The protected communication or material may be a telephone conversation between a solicitor and client, a research memo of the legal adviser on an issue pertinent to the client’s affairs or, as in the present case, the collection and collation of material and documents for the purpose of litigation or obtaining legal advice. As long as the communication was made or the material recorded for the sole purpose of legal advice or pending litigation and was intended to be confidential, the actual form of the communication or recording is irrelevant.
Brennan CJ, Gaudron, Gummow, and Kirby JJ:
- Legal professional privilege applied to copy documents in the possession of a lawyer if they were made solely for the purpose of obtaining or giving legal advice, or solely for use in legal proceedings, even where the originals were not privileged.
EVIDENCE ACT NSW 1995 – SECT 118 Legal advice 118 Legal advice
- Client Privilege under Legislation – pg 669
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client. EVIDENCE ACT NSW 1995 – SECT 119 Litigation 119 Litigation
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party. Evidence is not to be adduced of a confidential communication with a lawyer (s118) or a communication in the course of existing litigation (s119), if the client objects. Several of the terms used in these sections are defined in s 117
EVIDENCE ACT 1995 – SECT 117 – Definitions
(1) In this Division: “client”
includes the following: (a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service), (b) an employee or agent of a client, (c) an employer of a lawyer if the employer is: (i) the Commonwealth or a State or Territory, or (ii) a body established by a law of the Commonwealth or a State or Territory, (d) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a client-a manager, committee or person so acting, (e) if a client has died-a personal representative of the client, (f) a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made. “confidential communication”
means a communication made in such circumstances that, when it was made: (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. “confidential document”
means a document prepared in such circumstances that, when it was prepared: (a) the person who prepared it, or (b) the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. “lawyer”
means: (a) an Australian lawyer, and (b) an Australian-registered foreign lawyer, and (c) an overseas-registered foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country, and (d) an employee or agent of a lawyer referred to in paragraph (a), (b) or (c). “party”
includes the following: (a) an employee or agent of a party, (b) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a party-a manager, committee or person so acting, (c) if a party has died-a personal representative of the party, (d) a successor to the rights and obligations of a party, being rights and obligations in respect of which a confidential communication was made. (2) A reference in this Division to the commission of an act includes a reference to a failure to act. Section 120 specifically extends the privilege to unrepresented parties
EVIDENCE ACT 1995 – SECT 120 Unrepresented parties
(1) Evidence is not to be adduced if, on objection by a party who is not represented in the proceeding by a lawyer, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication between the party and another person, or (b) the contents of a confidential document (whether delivered or not) that was prepared, either by or at the direction or request of, the party, for the dominant purpose of preparing for or conducting the proceeding. These provisions introduce a legislative defined concept, ‘client legal privilege’, which broadly corresponds to legal professional privilege at common law. The provision was also altered by the rules of Court in NSW, which refers to various provisions in the Evidence Act 1995 (NSW) (incl. part 3.10 Div 1) for the purpose of defining privilege both in respect of discovery and inspection of documents and in specifying the grounds upon which a party may object to answering in interrogatory: UCPR 21.3; 21.4; 22.2
, Dictionary Section 131A of the Evidence Act
of NSW have both been amended so as to extend the application of several provisions of the Act relating to privilege, including those relating to client legal privilege, to any compulsory process of disclosure.
EVIDENCE ACT 1995 – SECT 131A Application of Part to preliminary proceedings of courts
131A Application of Part to preliminary proceedings of courts
(1) If: (a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and (b) the person objects to giving that information or providing that document, the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence. (2) In this section, “disclosure requirement”
means a process or order of a court that requires the disclosure of information or a document and includes the following: (a) a summons or subpoena to produce documents or give evidence, (b) pre-trial discovery, (c) non-party discovery, (d) interrogatories, (e) a notice to produce, (f) a request to produce a document under Division 1 of Part 4.6.
- Statutory removal of privilege for expert reports – pg 671
Expert reports obtained by a party or their legal advisers for use in existing or anticipating litigation is protected by legal professional privilege, unless the privilege is removed or modified by statue. Most rules to not abrogate the right of a party to refuse to produce documents on the ground of privilege. Rather, they impose the obligation to disclose the report, or in some jurisdictions to disclose the substance of expert evidence, if the party intends to adduce the evidence as expert evidence at the trial. In light of the Court of Appeal’s analysis on that issue, legal professional privilege attaches to communications passing between an expert and a party’s solicitor for the dominant purpose of giving legal advice in relation to, or obtaining evidence to be used in litigation, but such privilege does not protect other documents relating to the production of an expert report, such as drafts and working papers, source materials and documents collated and copied by the expert in order to prepare a report. Self-incrimination, penalties and forfeiture
– pg 671
- Scope and rationale of the privilege of self-incrimination
A party is NOT obliged to produce an incrimination document for inspection, nor to answer an interrogatory which would involve the provision of incriminating information. Privilege is not available to corporation: Environment Protection Authority v Caltex Refining Co Pty Ltd (1993)
This is now reflected in section 187 of the Evidence Act 1995 (NSW)
EVIDENCE ACT 1995 – SECT 187 No privilege against self-incrimination for bodies corporate
(1) This section applies if, under a law of the State or in a proceeding, a body corporate is required to: (a) answer a question or give information, or (b) produce a document or any other thing, or (c) do any other act whatever. (2) The body corporate is not entitled to refuse or fail to comply with the requirement on the ground that answering the question, giving the information, producing the document or other thing or doing that other act, as the case may be, might tend to incriminate the body or make the body liable to a penalty. The privilege against self-incrimination is a rule of substantive law. Reid v Howard (1995)
: The High Court considered the rationale for the privilege. The HC also made it clear that in Australia the privilege cannot be abrogated or modified unless clearly authorised by statute. CASE: Reid v Howard (1995)
Toohey, Gaudron, McHugh and Gummow JJ:
- It operates so that a person cannot be compelled to answer any question, or to produce any document or thing, if to do so “may tend to bring him into the peril and possibility of being convicted as a criminal
- There is simply no scope for an exception to the privilege, other than by statute. At common law, it is necessarily of general application – a universal right which, as Murphy J pointed out in Pyneboard Pty Ltd, protects the innocent and the guilty.
- It would be anomalous to allow that a person could refuse to answer questions in criminal proceedings or before investigative bodies where the privilege has been abrogated if that person could be compelled to answer interrogatories or otherwise make disclosure with respect to the same matter in civil proceedings…
- Section 23 of the Supreme Court Act 1970 (NSW):
The Court shall have all jurisdiction which may be necessary for the administration of justice in NSW.
- Penalties and forfeiture – pg 674
The privilege against exposure to penalties and forfeiture is distinct from the privilege against self-incrimination (Re Intercontinental Development Corp Pty Ltd (1975)
), but they both reflect the underlying principle that persons alleging that a crime has been committed or a penalty incurred should not be able to compel the defendant to provide the proof of the allegations made. If the object of a proceeding is the recovery of a statutory penalty, then the defendant will not be required to provide discovery or answer interrogatories, without any need for the defendant to claim the privilege: R v Associated Northern Collieries (1910)
The privilege against exposure to penalties and forfeiture is not available to a corporation: Trade Practices Commission v CC (NSW) Pty Ltd (No 4) (1995)
For NSW, the provision in respect to the provision of section 187 Evidence Act 1995 (NSW)
in respect of incrimination also apply to civil penalties, confirming the common law position that the privilege is not available to a body corporate.
Section 128 Evidence Act NSW (1995)
- Statutory recognition and modification – pg 675
: Recognises privilege in respect of both self-incrimination and exposure to civil penalty. UCPR 21.3; 21.4, dictionary
: Specifically recognises (in the case of a nature person) privilege in respect of both self –incrimination (extending to incrimination under foreign law) and liability to a statutory penalty, within the meaning of the applicable Evidence Act 1995. It would appear the terms of the statutory provisions are wide enough to encompass the answering of interrogatories UCPR 22.2
the rules permit a natural person to object to answering an interrogatory on the basis of self-incrimination (extending to incrimination under foreign law) or exposure to a civil penalty; within the meaning of the Evidence Act 1995 (NSW).
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 22.2 Objections to specific interrogatories
(cf SCR Part 24, rule 6 (3)) A party may not object to being ordered to answer an interrogatory except on the following grounds: (a) the interrogatory does not relate to any matter in issue between that party and the party seeking the order, (b) the interrogatory is vexatious or oppressive, (c) the answer to the interrogatory could disclose privileged information. Public Interest –
pg 675 Scope and Rationale
Public interest privilege, once known as crown privilege, applies where the Crown is a party to litigation or where Crown documents have been subpoenaed. It has been extended to cover other information which has been collected in the course of public duties or public administration. The privilege protects from disclosure information, such as criminal intelligence or as to the inner workings of government which, in the public interest, should remain confidential. Sankey v Whilam (1978):
HC confirmed that it is for the court to determine for itself, whether the information in question is protected by public interest privilege The judgement in this case include detailed analyses of the scope and application of, and the rationale for, public interest privilege. CASE: Sankey v Whitlam (1978)-pg 676
- The general is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it.
- Public interest may have two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer :
There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.
- It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its function should not be denied access to relevant evidence.
- Lord Reid said in Conway v Rimmer ‘ the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be able to prevail over it’
- An objection may be made to the production of a document because it would be against the public interest to disclose its contents, or because it belongs to a class of documents which in the public interest ought not to be produced, whether or not it would be harmful to disclose the contents of the particular document.
- It has been repeatedly asserted that there are certain documents which by their nature fall in a class which ought not to be disclosed no matter what the documents individually contain; in other words that the law recognises that there is a class of documents which in the public interest should be immune from disclosure… The class includes:
- The cabinet minutes; and
- minutes of discussions between heads of department (Conway)
- papers brought into existence for the purpose of preparing a submission to cabinet;
- and any documents which relate to the framing of government policy at a high level
- According to Lord Reid the class would extend to ‘all documents concerned with policy making within departments including, it may be, minutes and the like by quite junior officials and correspondence with outside bodies: Conway
- It is inherent in the nature of things that government at a high level cannot function without some degree of secrecy. No minister, or senior public servant, could effectively discharge the responsibilities of his office if every document prepared to enable policies to be formulated was liable to be made public. The public interest therefore requires that some protection be afforded by the law to documents of that kind. It does not follow that all such documents should be absolutely protected from disclosure, irrespective of the subject matter with which they deal.
- …The weight that would be given to an affidavit making an assertion of this kind would necessarily be reduced if the person swearing it had not himself seen the document.
- Finally, the power of the court to inspect the document privately is clear, and once a court has decided, notwithstanding the opposition of a minister, that on balance the document should probably be produced, it will sometime be desirable, or indeed essential, to examine the document before making an order for production: Conway
In Australia and where necessary, will examine a document to determine whether public interest privilege should extend to it: Conway v Rimmer Statutory Recognition
– pg 679 The Evidence Act 1995 (NSW)
contains provisions permitting the exclusion of certain evidence in the public interest. This includes information or documents evidencing the reason for judicial decisions (s 129
) and information or documents relating to matters of state: s130 Section 131A Evidence Act 1995 (NSW)
extends the application of the public interest privileges to pre-trial processes
EVIDENCE ACT 1995 – SECT 129 Exclusion of evidence of reasons for judicial etc decisions
(1) Evidence of the reasons for a decision made by a person who is: (a) a judge in an Australian or overseas proceeding, or (b) an arbitrator in respect of a dispute that has been submitted to the person, or to the person and one or more other persons, for arbitration, or the deliberations of a person so acting in relation to such a decision, must not be given by the person, or a person who was, in relation to the proceeding or arbitration, under the direction or control of that person. (2) Such evidence must not be given by tendering as evidence a document prepared by such a person. (3) This section does not prevent the admission or use, in a proceeding, of published reasons for a decision. (4) In a proceeding, evidence of the reasons for a decision made by a member of a jury in another Australian or overseas proceeding, or of the deliberations of a member of a jury in relation to such a decision, must not be given by any of the members of that jury. (5) This section does not apply in a proceeding that is: (a) a prosecution for one or more of the following offences: (i) an offence against or arising under section 319, 321, 322 or 333 of the Crimes Act 1900
, (ii) an offence against or arising under section 67 of the Jury Act 1977
, (iii) an offence connected with an offence mentioned in subparagraph (i) or (ii), including an offence of conspiring to commit such an offence, or (b) in respect of a contempt of a court, or (c) by way of appeal from, or judicial review of, a judgment, decree, order or sentence of a court, or (d) by way of review of an arbitral award, or (e) a civil proceeding in respect of an act of a judicial officer or arbitrator that was, and that was known at the time by the judicial officer or arbitrator to be, outside the scope of the matters in relation to which the judicial officer or arbitrator had authority to act. Note :
Subsection (5) (a) differs from section 129 (5) (a) of the Commonwealth Act.
EVIDENCE ACT 1995 – SECT 130 Exclusion of evidence of matters of state
(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence. (2) The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party). (3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit. (4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would: (a) prejudice the security, defence or international relations of Australia, or (b) damage relations between the Commonwealth and a State or between 2 or more States, or (c) prejudice the prevention, investigation or prosecution of an offence, or (d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law, or (e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State, or (f) prejudice the proper functioning of the government of the Commonwealth or a State. (5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters: (a) the importance of the information or the document in the proceeding, (b) if the proceeding is a criminal proceeding-whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor, (c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding, (d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication, (e) whether the substance of the information or document has already been published, (f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant-whether the direction is to be made subject to the condition that the prosecution be stayed. (6) A reference in this section to a State includes a reference to a Territory.
EVIDENCE ACT 1995 – SECT 131A Application of Part to preliminary proceedings of courts
(1) If: (a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and (b) the person objects to giving that information or providing that document, the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence. (2) In this section, “disclosure requirement”
means a process or order of a court that requires the disclosure of information or a document and includes the following: (a) a summons or subpoena to produce documents or give evidence, (b) pre-trial discovery, (c) non-party discovery, (d) interrogatories, (e) a notice to produce, (f) a request to produce a document under Division 1 of Part 4.6. Setting a Subpoena Aside – pg 714
The Court has inherent jurisdiction to intervene to prevent an abuse of its process. The rules in all jurisdictions, except the HCA, also give the court specific power to set aside a subpoena, either wholly or in part: UCPR 33.4
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 33.4 Setting aside or other relief
(cf SCR Part 37, rule 4) (1) The court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it. (2) An application under subrule (1) must be made on notice to the issuing party. (3) The court may order that the applicant
give notice of the application to any other party or to any other person having a sufficient interest. CASE: Commissioner for Railway v Small (1938) – NSW Court of Appeal
- Appeal by D regarding the use of subpoena by the P.
- The subpoena required production of (inter alia)
- All docs already produced for inspection
- Records, papers, books, memoranda, reports, recommendations, letters, estimates, plans, diagrams, sketches and other docs relating directly or indirectly to the installation of automatic or self-closing safety doors or similar safety devices for electric trains in NSW and/or other places
- All docs, papers, reports and correspondence relating directly or indirectly to this action
- All docs, papers, reports and correspondence relating directly or indirectly to falls from electric trains
- All docs, papers, reports and correspondence relating directly or indirectly to complaints about the running and control of electronic trains
- A party may be found to serve a subpoena as an abuse of process where:
- It is for the purpose of a ‘fishing’ expedition,e. endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all
- Great numbers of documents are called for and it appears that they are not sufficiently relevant
- It is used as a substitute for discovery- It is not legitimate to use a subpoena as a substitute for an application for discovery of docs, or as an alternative for further and better discovery.
HELD: The subpoena requesting those marked (2) to (5)
inclusive are quite improper, and it was a serious abuse of process
of the Court that the issue of subpoena in this form should have procured. CASE: Pasini v Vanstone  – Federal Court of Australia
CASE: National Employers’ Mutual General Association v Waind  – NSW Court of Appeal
- Subpoena can properly be used to obtain access to a document in the possession, custody or power of a party to a proceeding
- Objections can be taken to such a subpoena on the grounds that:
- It is oppressive and vexatious
- Its object in whole or in part is not to obtain evidence to support a case but to discover whether there is a case at all
- It is an abuse of process in that ‘it is not legitimate to use a subpoena as a substitute for an application for discovery of docs, or as an alternative for further and better discovery’- Commissioner of Railway v Small
- The documents required must not only be sufficiently described, they must also be sufficiently relevant in the sense of having apparent relevance to the issues in the proceedings.
- Where docs produced into control of court, inspection is a matter of judicial discretion
- When inspection is sought, the party seeking it must be able to show the legitimate forensic purpose for which access is sought.
- There is a 3-stage process to the production of documents upon subpoena, and their subsequent admission into evidence:
Failing to attend on a subpoena – pg 722
- Obeying the subpoena, by the witness bringing the docs to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or the production of docs to the court pursuant to the subpoena.
- The decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the docs.
- The admission into evidence of the doc in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. This step provides the material upon which the ultimate decision in the case rests
In NSW UCPR 33.12
the rule expressly states that failure to comply with a subpoena without lawful excuse is a contempt of court and that the addressee may be dealt with accordingly. Even in the absence of a specific rule, however, a witness who fails to attend on a subpoena which has been properly served with appropriate conduct money, is liable to be punished for contempt of court: R v Daye 
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 33.12 Failure to comply with subpoena-contempt of court
(cf SCR Part 37, rule 12) (1) Failure to comply with a subpoena without lawful excuse is a contempt of court and the addressee may be dealt with accordingly. (2) Despite rule 33.5 (1), if a subpoena has not been served personally on the addressee, the addressee may be dealt with for contempt of court as if the addressee had been so served if it is proved that the addressee had, by the last date for service of the subpoena, actual knowledge of the subpoena and of its requirements. (3) Subrules (1) and (2) are without prejudice to any power of the court under any rules of the court (including any rules of the court providing for the arrest of an addressee who defaults in attendance in accordance with a subpoena) or otherwise, to enforce compliance with a subpoena. There is some authority that, as well as being liable to punishment for contempt, witness who disobeys a subpoena may be liable for damages to the party on whose behalf the subpoena was issued. This will only be the case, however, if it is established that the person served is a material witness, that he or she was served, and that the person could have appeared: Roberts v J and F Stone Lighting and Radio Ltd (1945) Rule 42.27 UCPR
provides that the court may order the person in default in these circumstances to pay costs occasioned by the default.
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 42.27 Attendance
(1) If: (a) a person is ordered by the court, by subpoena or otherwise, to attend court: (i) for the purpose of giving evidence, or (ii) for the production of any document
or thing, or (iii) to answer a charge of contempt, or (iv) for any other purpose, and (b) the person fails to attend in accordance with the order, the court may order the person in default to pay any costs occasioned by the default. (2) If: (a) a corporation is ordered by the court, by subpoena or otherwise, to produce to the court any document
or thing, and (b) the corporation fails to produce the document
or thing in accordance with the order, the court may order the corporation to pay any costs occasioned by the default. (3) This rule does not limit the power of the court to punish for contempt. For a subpoena served interstate under the Service and Execution of Process Act 1992 (Cth), section 37(1) confirms that if the person served with a subpoena fails to comply with it, a court or authority of the place of issue may issue such warrant as it may have issue had the subpoena been served in the place of issue. Topic 6: Judgement and Appeal Chapter 19- Appeal and New Trial Substantive Basis upon Which Appeals are Brought – pg 1002
The principles governing the determination of an appeal from a decision on a point of practice and procedure may be gathered from the joint judgement of Gibb CJ, Aicken, Wilson, and Brennan JJ in Adams P Brown Male Fashion Pty Ltd v Philip Morris Inc (1981) CASE: Adams P Brown Male Fashion Pty Ltd v Philip Morris Inc (1981)
Gibb CJ, Aicken, Wilson, and Brennan JJ:
- Substantive law is concerned with the ends which the administration of justice seeks, procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates the conducts and relations of courts and litigants in respect of the litigation itself; the former determines their conduct and relations in respect of the matter litigated.
- ..We believe it to be, unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in “In Re the Will of F B Gilber (1946)”:
I am of opinion, that…there is material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a judge in Chambers to a Court of Appeal. Error of Law –
pg 1003 The application of wrong principles of law to the facts (including wrongful admission or rejection of evidence) may amount to an error of law. However, a finding of fact which is perverse, contrary to the weight of evidence, or displays demonstrably unsound reasoning, such that no reasonable person could have made, it is not an error of law, it is an error of fact. But law, when applied to the facts found producing a conclusion which is not reasonably open, may amount to an error of law: Azzopardi v Tasman UEB Industries Ltd 
It is necessary to show that outcome at trial would have been different had the correct principle been applied: Norbis v Norbis (1986)
There are no difficulties for an appeal court in substituting its decision on the law for an erroneous decision by a trial judge. Other examples based on error of law include:
Judge Wrongly Exercised Discretion – pg 1004
- Denial of natural justice or procedural fairness: Escobar v Spindaleri (1986) (where counsel refused an opportunity to address the court resulting in denial of natural justice)
- A trial judge’s failure to state adequate reasons for his or her decision. Reasons should be given to establish the basis for the decision so as not to nullify any right of appeal: Housing Community of NSW v Tatmar Pastrol Co Pty Ltd 
An appellate court will only interfere with the exercise of a discretion if the judge at first instance has acted on a wrong principle or upon incorrect facts, has allowed extraneous or irrelevant matters to guide or affect him or her, has wrongfully admitted or rejected evidence, has mistaken the facts, has failed to take into account some material consideration, or has not given enough weight to relevant matters. The appellant must show that the primary judge was clearly wrong. Russo v Russo 
Sholl J said in considering the nature of a discretionary determination: What is a discretionary determination? … At least the concept involves a considerable latitude of individual choice of a conclusion – a right in the tribunal, adhering to certain general principles, and taking into account relevant factors, to decide nevertheless according to its individual opinion. It involved further that the tribunal, instead of merely ascertaining and declaring existing rights, formulates for the first time, and declares, new rights according to its own opinion – the only pre-existing right having been to have the tribunal’s discretion exercised on the correct materials. CASE: House v R (1936)
Dixon, Evatt, McTiernan JJ:
CASE: Australian Coal and Share Employees’ Federation v The Commonwealth (1953)–
- The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.
- It must appear that some error has been made in exercising the discretion.
- If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the fact, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the material for doing so.
- It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
pg 1005 Kitto J:
Judge’s findings of fact were wrong – pg 1006 CASE: Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) –
- …The true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgement is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.
- A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts.
- Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance
pg 1006 Windeyer J:
- …As I understand it, involves our considering the judgement of the learned trial judge in this case, not so much to determine whether we would have come to the same conclusion on the facts, but rather to determine whether or not the Full Court should have disturbed it…
- The case as I see it, this raises again what this Court has called ‘the ever recurring question how far a court of appeal is justified in going in reviewing a finding of fact made on oral evidence: Riebe v Riebe (1957) A brief formulation by this court of the answer to that question is as follows:
On an appeal from a judge of fact it is the duty of an appellate court to examine the evidence itself, due regard being had in weighing that evidence to any opinion formed by the general atmosphere of the trial: Committee of Direction of Fruit Marketing v Spence (1953)
CASE: Edwards v Noble (1971) – pg 1010
- …It had become accepted doctrine that ‘the appellate’, in seeking for the reversal of the judgement below, must establish his case, and that there is a presupposition that the trial judge was correct in his conclusion. It has been said many times that the decision of a judge of fact ought not to be set aside on appeal unless the appellate court, duly considering the advantages the judge had had in hearing the evidence, is satisfied that his conclusion was wrong.
- In Powell v Streatham Manor Nursing Home  Lord Sankey said it must be plainly wrong.
- …I think it must appear convincingly that the judge of fact came to a wrong conclusion before it is reversed. I consider that the statement by the Chief Justice in Whiteley Muir and Zwanenberg Ltd v Kerr (1966) points the approach for this court to take.
- In short, in a case of this kind, the primary facts not being in question, I would treat the decision of the trial judge as the equivalent in all respects of the verdict of a jury, unless from his reason it appeared that he has in some way misdirected himself. It seems to me that – adopting the words of Lord Esher, then Brett J, in Bridges v North London Railway Company (1874) concerning the verdict of a jury – the question in the end is still whether the finding is ‘such as reasonable and fair men might not unfairly arrive at’.
Incorrect Inferences Drawn – pg 1011 Warren v Coombes (1979)
- In any appeal against a finding of fact, the appellate court ought not to reverse the finding of fact unless convinced it is wrong. In deciding its own view is right and that of the primary judge wrong, the nature of the fact found by the primary judge is a matter for consideration.
- The appellate court is not bound to reverse a primary judge’s finding of fact merely because it held a different opinion to the primary judge. And if the members of the appellate court are not of a unanimous view, he doubted the propriety of reversing the primary judges finding.
Gibbs ACJ, Jacobs and Murphy JJ:
Baird v Magripilis (1925):
- The principles which govern appeals based on incorrect findings of facts is that ‘an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or, having been disputed, are established by the findings of the trial judge. The appellate court will respect and give weight to the conclusion of the trial judge, but once having reached its own conclusion, will not shrink from giving effect to it.
- ‘the duty of the appellate court is to decide the case – the facts as well as the law – for itself. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular
- ‘If the law confers a right of appeal, the appeal should be a reality, not an illusion; if the judge of an appellate court holds the decision of the trial judge to be wrong, they should correct it.’
Under the Judicature rules, an appellate court, where all the facts are before it, and it is satisfied that the evidence is such that only one possible verdict reasonably be given, is not bound to order a new trial, but has jurisdiction to give any judgement and made any order which ought to have been made, notwithstanding the verdict of a jury: Miller v Toulmin (1886)
The court clearly has jurisdiction to set aside the verdict of a jury which is unreasonable or perverse and is a finding is set aside and no longer exists, then it seems to me that the authority to draw inferences of fact under the rules may be exercised. But that authority will only be exercised where the evidence is such that only one possible verdict could reasonably be given upon the evidence: it is a strong power and must be exercised with considerable caution. Judge’s view taken of conflicting testimony
– pg 1013 The appeal court has not seen the witnesses and will not interfere, unless the trial judgement is clearly wrong on the grounds which do not depend merely on credibility, eg, glaring improbability, or inconsistency with established facts: Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) CASE: Paterson v Paterson (1953)
– pg 1014 Dixon CJ and Kitto J:
- Lindley MR sitting with Rigby and Collins LJJ said in substance that the court of appeal must:
- rehear and reconsider the materials
- make up its own mind taking the judgement of the primary judge into account
- be guided by his impression when the question which witness is to be believed turns on demeanour
- be warranted in differing even on credibility when other circumstances show whether the evidence is credible or not. It will be seen that so far the tendency of the decisions was to formulate and concede the restrictive considerations or rules but, at the same time, to emphasize and act on the power to review findings of fact.
- The position of a court of appeal was examined at length by Isaac J. Four years later…Lord Robson for the Judicial Committee restated the considerations. The substance of what his lordship said was that :
- The court of appeal should be influenced by the opinion of the primary judge because he can estimate intelligence position and character of the witnesses
- It should remember that many points are elucidated at the trial which may be represented ambiguously or imperfectly by the notes and the elucidation may be through counsel;
- But it may turn out (a) that the judge has filed to take something into account, or (b) that he has given credence to evidence afterwards shown to be self-inconsistent or contrary to indisputable fact;
- Except in rare cases such as those which are capable of being dealt with wholly by argumenta court of appeal will hesitate to interfere
- …Of course there is jurisdiction to retry the case on short hand note…none the less, not to have seen the witnesses puts the appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and other own view of the probabilities of the case.
- The course of trial and the whole substance of the judgement must be looked at, and the matter does not depend on the question whether a witness has been cross examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgement the trial judge’s conclusions of fact should, as I understand the decisions, be let alone
- Isaac J referred to the existence of ‘ a constitutional and statutory duty upon this appellate court to form its own independent opinion as to the proper construction of documents and the proper inferences from the evidentiary facts
- Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so UNLESS it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion;
- The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence
III. The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question. Inferences from uncontroverted facts – pg 1017
The appeal court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge: Brunskill v Sovereign Marine & General Insurance Co Ltd(1985) CASE: Brunskill v Sovereign Marine & General Insurance Co Ltd(1985)– pg 1018
Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ:
- The question that then arises is whether the decision of the learned trial judge can be seen to be clearly wrong on grounds which do not depend merely on credibility; for example on the grounds that the evidence which was accepted was inconsistent with established facts or was glaringly improbable…
In Warren v Coombes (1979)
, it was observed that in deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trail judge, but, once having reached its own conclusion, will not shrink from giving effect to it. Fresh Evidence sought to be tendered on an appeal – pg 1019
State appellate courts have power to admit further evidence, in appeals by way of rehearing in the form of oral evidence, affidavit, or deposition as director: UCPR 51.51
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 51.51 Additional evidence
(cf SCR Part 51, rule 19) (1) This rule applies to an application to receive additional evidence. (2) The application must be made by motion returnable on the return day or, with leave of the Court, on a later day. Note :
Part 18 makes provision with respect to motions and notices of motion. (3) The grounds must be stated in an affidavit. (4) Evidence necessary to establish the grounds of the application, and the evidence the applicant
wants the Court to receive, must be given by affidavit. (5) The evidence of any party in response must be given by affidavit filed within the time directed by the Court. (6) A party must, not later than the time limited for filing an affidavit under this rule: (a) file as many copies of the affidavit as the Court may direct, and (b) serve 3 copies of the affidavit on each other interested party. Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000)
per Gleeson CJ, Gaudron and Hayne JJ: It is common and often convenient to describe an appeal to a court or tribunal whose function is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given as an appeal in the strict sense… an appellate court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if it be appropriate, to substituting the decision that should have been made at first instance. An appeal to the Federal Court is hybrid in the sense that it can receive additional evidence, provided the evidence does not relate to matters occurring after the judgement at first instances Further Evidence arising after judgement: appeal by way of rehearing- pg 1019
The rules of Court in all state jurisdictions refer to further evidence arising after the date of judgement. In Mulholland v Mitchell , Lord Wilberforce, when referring to the admission of evidence of event after the trial, said: Negatively, fresh evidence ought not to be admitted when it bears on matters falling within the field or area of uncertainty, in which the trial judge’s estimate has previously been made. Positively, it may be admitted if some basic assumptions, common to both sides, have clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant. Positively, too, it may be expressed that courts will allow the fresh evidence when to refuse it would affront common sense, or a sense of justice. All these case are only non-exhaustive indications; the application of them, and their like, must be left to the court of appeal. The exceptional character of cases in which fresh evidence is allowed is fully recognised by that court. New point arising after judgement: appeals by way of rehearing – pg 1022
Generally a new point cannot be raised on appeal unless expedient or in the interests of justice. In Water Board v Moustakas (1988)
Mason CJ, Brennan and Dawson JJ: A point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied. New Points and objections arising before Judgement – pg 1022 Appeals to the NSW court of Appeal
A frequent source of appellate failure is that the point sought to be argued on appeal was not made or a relevant objection not made in the court below. To allow a party to raise in an appellate court a matter which was not litigated in in the trial court not only undermines the respective function of the trial and appellate courts and the policy of the law but also deprives the appellate court of the views of the trial court: Holcombe v Coulton
per McHugh JA Two bases for refusing to entertain a new question of law not taken at trial are that the point will involve the court ordering a new trial (Coulton v Holcombe
) or that the point might have been answered by evidence given at the trial: Suttor v Gundowda Pty Ltd (1950)
A party can only raise a new point of law in the court of appeal if on the evidence before the court below, the point was not curable by evidence: George Hudson Ltd v Australian Timber Workers Union
Some cases suggest that the making of concessions at trial may create an estoppels which precludes the appellant taking a contrary position on appeal by seeking to argue a ground not relied upon or pressed in the court below: Randall v Tuxford (1875)
The role played by an opponent in inducing or contributing to a particular error may be relevant on the question of whether a matter can be raised for the first time: Mapley v Radial Industries (1982)
There is a great advantage in carefully drafting the grounds of appeal in the original notice of appeal, or at least seeking (by consent or otherwise) amendment of the notice of appeal long before the hearing of the appeal to include all necessary grounds of appeal, including grounds not relied on at trial, and thereby avoid a situation that prior to doing so it is necessary on the hearing of the appeal itself to get the leave of the court to amend the notice of appeal. Excessive or insufficient assessment of damages – pg 1023
The appellate court will determine excessive or insufficient assessment of damages as a ground of appeal in the same way as if asked to interfere with the exercise of discretion by a trial judge: Moran v McMahon  CASE: Gamser v The nominal Defendant (1977)- pg 1023
- Barwick CJ’s statement in a previous case is appropriate:
The setting aside of an award of damages in a trial which has not been irregular or unfair, and where there is neither challenge to the findings of fact made by the trial judge nor any demonstrated misconception of the evidence should, in my opinion, be a most unusual event, to occur only in circumstances where the disproportion between injury and award of damages is so great as to make the award quite unreasonable, indeed outrageous, in the circumstances, whether by being too great or too small: and therefore of itself a demonstration of error present though otherwise undisclosed. The less ponderable the elements of the damages under consideration, the less likely will there be a case for setting aside an award by a judge who has not overlooked any significant fact at the end of a trial not blemished by error or irregularity.
Non- Grounds – pg 1025
- In my opinion the proper approach in this case is to look at the total sum awarded as general damages and at all the circumstances, the pain and suffering, past, present, and future, the physical disabilities, the medical and psychological problems which are inevitable for the future, the effect on earning capacity and the kinds of additional costs which the appellant will necessarily incur, and to ask oneself whether the sum of $150, 000 is ‘out of all reason’ or ‘ wholly disproportionate to the circumstances’ . No doubt every case is in some sense ‘special’, but there is no question that here the injuries and disabilities are unusually severe.
- I do not myself think that the figure is wholly disproportionate to these circumstances and I do not think that any basis has been shown for the conclusion
A ground to the effect that ‘the learned trial judge misdirected himself or herself or the jury in law and/or in fact is an insufficient ground of appeal: Cataldo v Clark  CASE: Eggins v Brooms Head Bowling and Recreational Club Ltd – pg 1025
- An unsuccessful party to an action sought to have an unfavourable verdict set aside on the basis that prior to hearing the appeal a superior court held that the previously accepted state of the law was valid.
- A verdict given after a trial cannot be set aside and a new trial ordered merely because a decision binding upon the trial judge and upon which counsel presumably relied in determining the conduct of the case has been subsequently over ruled: Piening v Wanless (1968)
Jury Grounds – pg 1027
- The issues at a trial are decided on the basis of the ‘law’ which applies to them at the date of the trial. If a party believes that the current state of the law is erroneous, he must object to its application to his case or be bound by it. if he fails to raise the point at the trial, he cannot be allowed to raise it on appeal because of the accident that he has lodged an appeal and that, before the hearing of the appeal, a superior court has decided that the law is different from what it was conceived to be at the date of the trial.
- As the courts have often pointed out, new trials are ‘an enormous evil’: Scott v Scott (1863) In an era where solicitor and client costs greatly exceed that which is recoverable on a party and party taxation basis, a new trial means that substantial costs are always incurred which are irrecoverable even by the successful party. If a party suffers an ‘injustice’ by reason of the failure of his legal advisers to take a point, he must seek his remedy, if any, against his legal adviser and not by depriving the successful party of his verdict.
An appeal following a jury trial will arise with respect to either:
- the verdict
- the judgement; or
An appeal with respect to the judgement involves a question of law, that is: Did the court apply the wrong legal rule to the facts found by the jury? An appeal based on the verdict revolves around the contention that:
- a trial irregularity led the jury into error (eg misdirection to the jury, wrongful admission or rejection of evidence); or
- the verdict was against the evidence or the weight of evidence
In Hocking v Bell (1945) Dixon J: A distinction has always existed between cases on the one hand in which the verdict is vitiated by some legal error, such as a material misdirection or misreception of evidence, or was perverse in the sense that the jury disregarded a judge’s direction and, on the other hand, cases where, on conflicting evidence, a verdict is found which is said to be against the weight of the evidence. In the former case, apart from the modern rule about substantial miscarriage, a new trial was granted ex debito jutitiae. In the latter it was matter depending on a more general discretion. Preparing an Appeal – pg 1028 Conducting an Appeal – pg 1029 New Trial – 1031
Appellate courts have the power to grant a new trial, whether trial at first instance was before a jury of otherwise, where there has been a substantial wrong or miscarriage of justice: UCPR 51.53
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 51.53 Circumstances in which Court may order new trial
(cf SCR Part 51, rule 23) (1) The Court must not order a new trial on any of the following grounds: (a) misdirection, non-direction or other error of law, (b) improper admission or rejection of evidence, (c) that the verdict of the jury below was not taken on a question
that the trial judge was not asked to leave to the jury, (d) on any other ground, unless it appears to the Court that some substantial wrong or miscarriage has been thereby occasioned. (2) The Court may order a new trial on any question
without interfering with the decision on any other question
. (3) If it appears to the Court that some ground for a new trial affects part only of the matter in controversy, or one or some only of the parties, the Court may order a new trial as to that part only, or as to that party or those parties only. (4) If the Court makes an order under subrule (2) or (3), it may give such judgment or make such order as the nature of the case requires for the disposal of the remainder of the appeal. (5) If the Court orders a new trial, the Court may: (a) impose conditions on any party for the purposes of the new trial, and (b) direct admissions to be made by any party for the purpose of the new trial, and (c) order that the testimony of any witness examined at the former trial may be read from the transcript, instead of the witness being again examined. Alternatively, in some jurisdictions the appellate court may determine the matter without recourse to a new trial: ss 102, 105, 107 Supreme Court Act 1970 (NSW). Such an approach is not feasible where the issues on evidence not available to the appellate court, or turn on issues of credibility. In Dakhyl v Labauchere
Lord Loreburn: In all cases it is a most deplorable result, not to be entertained upon any but the most solid grounds, as the only means of redressing a clear miscarriage of justice. Common Grounds for a new trial are:
- some mistake or misdirection by the judge in summing up to the jury; eg, where a trial judge explains the law generally, but fails to explain to the jury how the law is applied to the facts: Afford v Magee (1952); Balenzuela v De Gail (BELOW). The misdirection may be on a matter of law or fact: Bright v Sampson and Duncan Enterprises Pty Ltd
- Some fault of the jury: eg, a verdict against the weight of evidence: Hocking v Bell (1945)
- Misbehaviour by the jury resulting in an unfair trial. While evidence of jury deliberations is inadmissible (David Syme & Co v Swinburne (1910)), evidence of impropriety is admissible – eg jurors communicating with witnesses: Perdrian v Moore (1888), or non-jurors: Trewartha v Confidence Extended Co (NL) 
- excessive or inadequate award of damages: Australian Iron & Steel Ltd v Greenwood(1962)
- misconduct of counsel: R v Birks (1990)
- perjury of witnesses: McCann v Parson (1954)
- surprise at trial
- judgement obtained by fraud: Boughen v Abel 
- discovery of fresh evidence: evidence freshly discovered of matter occurring before judgement at first instance can base an application for a new trial. In relation to fresh evidence a new trial will not be ordered, unless there has clearly been a miscarriage of justice. The fresh evidence must be likely to have produced a different result at trial and that failure to adduce the evidence at trial was not due to any lack of due diligence by the party seeking to rely on it;
- By reason of a judge’s conduct: Stead v State Government Insurance Commission (1986) (denial of natural justice on the basis that counsel was not given proper opportunity to develop argument on a critical issue); Carryer v Kelly (1969) (refusal of an adjournment) (extremely limited); Jones v National Coal Board  (failure to stay neutral): R v Watson
- Wrongful rejection or admission of evidence: Bray v Ford . Parties are relevant and properly admissible evidence;
- erroneous exercise of a discretion;
- perverse verdicts against evidence, or the weight of evidence: Hocking v Bell (1947)
- raising points not taken at trial
The affidavit material in support of the application for a new trial must establish the credibility of the evidence, its highly probative or decisive nature and how the evidence could not have been obtained with reasonable diligence for use at first instance. If successful, fresh evidence in this context will be dealt with by way of a new trial Orr v Holmes (1948)
: deals with the rationale for a new trial CASE: Orr v Holmes (1948)– pg 1032
CASE: Balenzuela v De Gail (1959)- pg 1034
- If a trial has been regularly conducted and the party against whom the verdict has passed cannot complain that evidence has been wrongly received or rejected or that here has been a misdirection or that he has not been fully heard or has been taken by surprise or that the result is not warranted by the evidence, the successful party is not to be deprived of the verdict he has obtained except to fulfil an imperative demand of justice.
- When a litigant has obtained a judgement in a court of justice…he is by law entitled not to be deprived of that judgement without very solid grounds; and where (as in this case) the ground is the alleged discovery of new evidence, it must at least be such as is presumably to be believed, and if believed, would be conclusive.
- It is possible to figure cases in which it might be so gravely material and so clearly relevant as to entitle the court to say that the that material and relevant fact should have been before the jury in giving its decision.
- …The evidence is so material that its absence will cause or has caused a miscarriage of justice. In R v Copestake his Lordship said that the court of appeal had clearly decided that the evidence must be of such weight, as if believed, would probably have an influence on the result but had not gone so far as the full extent of Lord Loreburn’s statement
- In determining whether a new trial should be directed, he expresses the two that are material to the strength of the evidence this –
- Is the new evidence prima facie likely to be believed?
- If believed, would it be likely to be a determining or at least a very important factor in the result of the trial?
- It is enough if it appears to the court deciding an application for a new trial that an error of law has been made at the trial which may operate to do any of the following three things:
- improperly to limit or enlarge the evidentiary materials by which it is not an unreasonable hypothesis to suppose the judgement of the jury might be affected, even if illogically; or
- in the case of misdirection touching standards or criteria of liability , wrongly to expose the party to a hazard that is appreciable and not illusory of a verdict for or against him that otherwise might have been found; or
- in matters of burden of proof, of the legal need of corroboration or of other like incidents of the jury’s consideration of the case, to provide an erroneous guidance which it is not unreasonable to regard as capable of contributing to the result. These categories are probably not exhaustive but it is enough if a case falls within one of them; if it does it is necessary to treat it as involving a substantial wrong or miscarriage.
CASE: Council of the City of Great Wollongong Corporation v Cowan (1955) – pg 1037
- It has been generally accepted that, notwithstanding, earlier decisions to the contrary, if admissible evidence which might have influenced the jury be rejected, there must be a new trial; unless, of course, the case was one in which any verdict other than that found by the jury would be so unreasonable that it would be set aside.
- We were pressed with the view that a new trial is always a most ‘deplorable result’. But wherever there has been a significant error in law it is a necessity of justice, to be deplored (criticised) but not refused.
- A new trial cannot be refused just because the court thinks the jury’s verdict right, any more than a new trial can now be granted merely because the court thinks the verdict wrong. There is a clear distinction between, on the one hand, applications for a new trial on the ground that the verdict was against the weight of evidence or because of discovery of fresh evidence or because the judge’s summing-up was, in relation to the facts, insufficient, and, on the other hand, complaints of misdirection of law or wrongful rejection and reception of evidence. In the former case a new trial is, within limits, a discretionary remedy to be applied only if the court thinks there has been a miscarriage of justice.
- But in the latter cases there has been an error in law; and the court must assume that is has, or may have, resulted in a miscarriage of justice, for a party has a right to have his case tried according to law.
Dixon CJ, Williams, Webb, Kitto, Taylor JJ:
- The law which governs the grant of new trials on the ground of the discovery of fresh evidence is not in doubt
- If cases are put aside where a trial has miscarried through misdirection, misreception of evidence, wrongful rejection of evidence or other error and if cases of surprise, malpractice or fraud are put on one side, it is essential to give effect to the rule that the verdict, regularly obtained, must not be disturbed without some insistent demand of justice. The discovery of fresh evidence in such circumstances could rarely, if ever be a ground for a new trial unless it has been available at the first trial and had been adduced, an opposite result would have been so highly likely as to make it unreasonable to suppose the contrary. Again, reasonable diligence must have been exercised to procure (secure/obtain) the evidence which the defeated party failed to adduce at the first trial.
Note particularly that a new trial may be ordered even when not specifically sought, and a judgement may be given by the appeal court although a new trial was sought. Care should be taken when reading the cases to determine what relief was sought, by what procedure, and what relief was granted and why. No reasonable Cause of Action – pg 545
The decision of the HC in General Steel Industries Inc v Commissioner for Railways (NSW)(1964)
, provides an example in which a court struck out the whole of the plaintiff’s statement of claim as failing to disclose a cause of action – court dismissed the plaintiff’s action, with costs. CASE: General Steel Industries Inc v Commissioner for Railways (NSW)(1964) – pg 545
Discontinuance and Withdrawal – pg 884 The rules CASE: Packer v Meagher (1984)
- The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion.
- The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense’.
- At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or ‘so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable agreement’; ‘so to speak apparent at a glance’
- …A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury..
Setting Aside on the grounds of fraud of new evidence – pg 961
- The court struck out the notice as an abuse of process and dismissed the proceedings as an abuse of process because it was apparent that the plaintiff had an ulterior and a collateral purpose in bringing the proceedings before the court, namely a vindictive motive; the plaintiff tried to make the defendant as uncomfortable as possible, for as long as possible, by having these proceedings hanging over the defendant’s head in order to punish him for assisting in the compilation of the report of the Royal Commission.
- This was clearly an abuse of process and since the court retains an inherent power to deal with cases abusing the process of the court, the court may strike out, stay or dismiss proceedings.
In NSW, judgements may be set aside if made irregularly, illegally or against good faith: r 36.15
UNIFORM CIVIL PROCEDURE RULES 2005 – REG 36.15 General power to set aside judgment or order
(cf DCR Part 13, rule 1, Part 31, rule 12A; LCR Part 11, rule 1, Part 26, rule 3) (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. (2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent. CASE: Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (No 2) (1992)
– pg 961 Gummow, Spender and Lee JJ:
CASE: Wentworth v Rogers (No 5) (1986) –
- ‘there has been no difficulty in treating all judgments impeached for fraud in a Judicature system court in the same way as previously Chancery treated its own decrees on a bill of review.’
- There were no examples of an action to set aside a judgment on the ground of fresh evidence.
pg 962 Kirby P stated a number of principles
which are established by law which govern proceedings of the kind. The points must be fulfilled to consider whether a final judgment can be set aside on the grounds of fraud: Kirby identified:
CASE: Arnett v Holloway  – pg 964 The majority:
- First, the essence of the action is fraud, particulars of the fraud claimed must be exactly given and the allegations must be established by the strict proof which such a charge requires.’
- Second, it must also be shown ‘that a judgment was procured by fraud, that there has been a new discovery of something material which would provide a reason for setting aside the judgment.’
- Third, mere suspicion of fraud is not enough to secure relief
- Fourth: procured by a fraud
- Fifthly: (In the book)
- The claimant must establish the new facts are so evidenced and so material that it is reasonably probable that the action will succeed. It must also be shown that the successful party was responsible for the fraud which taints the judgment under challenge
- Suspicion of Fraud is not enough to have the judgment set aside, must be more (above)
Nature of Interlocutory Orders – pg 763 Distinguishing interlocutory from final orders
- A clerical error or slip can be set aside.
- Here the judges took a wide interpretation and therefore allowed the appeal.
- Under UCPR 36.15, the Court can set aside a judgment or an order if the judgment was made irregularly, illegally or against good faith.
- Under UCPR 36.16, there is further power to set aside or vary the judgment or order. (36.17 – slip rule: If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.
An interlocutory order is one that does not finally determine the rights, duties, obligations or the ultimate question between the parties – that is the role of a final order. Interlocutory orders are a matter of procedure not substantive law. The distinction was explained in Adam P Brown Male Fashions Pty Ltd v Phillip Morris (1981):
…substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained. The latter regulate the conduct and relations of courts and litigants in respect of the litigation itself; the former determines their conduct and relations in respect of the matters litigated. CASE: Kowalski v NMAL Staff Superannuation Fund Pty Ltd 
Explains the distinction between interlocutory and final orders. Spender, Graham, Gilmour JJ:
Further example of interlocutory Orders – See pages 765 table Making and interlocutory application – pg 765
- The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principle cause pending between them. That question is answered by determining whether the legal effect of the judgement is final or not.
- If the legal effect of the judgement is final, it is a final order; otherwise it is an interlocutory order: Re Luck 
- An order is an interlocutory order when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, and abuse of the process of the Court or does not disclose a reasonable cause of action.
- There have been numerous cases in the HC which illustrate orders that are interlocutory and orders that are final applying the test as stated above:
- – Orders dismissing applications for interlocutory injunctions and for orders striking out matter within a statement of claim, which it was said tended to prejudice and embarrass a defendant and to delay the fair hearing of the suit, are interlocutory (Pye v Renshaw  )
- – Orders upholding a demurrer ore tenus to a statement of claim and granting a plaintiff liberty to attend a statement of claim are interlocutory (Pye v Renshaw  )
- – An order refusing an application for an extension of time within which to institute proceedings against the Nominal Defendant under s65A(3) f the Traffic Act 1925 (Tas)is interlocutory (Hall v The Nominal Defendant)
- – Orders setting aside an order for substituted service and setting aside orders relating to the deemed validity of service of process are interlocutory (Licul v Corney )
- – An order refusing to set aside a default judgement is interlocutory. It does not, as a matter of law, finally dispose of the rights of the parties, whatever its practical effect may be (Carr v FCA)
- – An order dismissing an application for removal of Family Court proceedings in HC is interlocutory (Bienstein v Bienstein)
- – An order staying an action as an abuse of process on the ground that the matters in question which it was sought to raise could and should have been litigated in earlier proceedings was a final one (Anshun No.1)
The application will be made either by motion, summons or application: UCPR 18.1; 18.3 Part 18 – Motions 18.1 Applications for court orders to be made by motion
(cf SCR Part 19, rule 1; DCR Part 16, rule 1; LCR Part 15, rule 1) An interlocutory or other application is to be made by motion unless these rules otherwise provide. 18.3 Contents of notice of motion
(cf SCR Part 19, rule 2 (4) and (5); DCR Part 16, rule 2 (3) and (4); LCR Part 15, rule 2 (3) and (3A)) (1) A notice of motion for an order: (a) must identify the person by whom the order is sought: (i) if the person is already a party to the proceedings, as that party (for example, as first plaintiff or second defendant), or (ii) if the person is not yet a party to the proceedings, as the applicant, and (b) must identify each person affected by the order: (i) if that person is already a party to the proceedings, as that party (for example, as second plaintiff or first defendant), or (ii) if that person is not yet a party to the proceedings, as the respondent, and (c) if the person by whom the order is sought is not already an active party, must state an address for service for that person, and (d) unless the motion is to be moved in the absence of the public, must state the date and time when, and the place where, the motion is to be moved, and (e) if the court makes an order as to the time by which the notice is to be served, must bear a note of the order made, and (f) must state concisely the nature of the proposed order. (1A) In the case of proceedings in Class 1, 2, 3 or 4 of the Land and Environment Court’s jurisdiction, a notice of motion must identify a person who is not yet a party to the proceedings by name alone, and not as the applicant or respondent as required by subrule (1) (a) (ii) or (b) (ii). (2) Costs need not be specifically claimed in the notice of motion. (3) If a notice of motion is of a kind that, under any Act, any rules of court or any practice of the court, is dealt with in the absence of the public, the notice of motion must contain a statement to the effect that the motion is to be so dealt with. (4) If it becomes necessary for an application under subrule (3) to be dealt with in court, the registrar is to refer it to the court and give notice to the parties that the application has been so referred.
An application to a judge is made in chambers by summons or application. An application in court is by way of motion. An application for an interlocutory order will normally be heard on the basis of an affidavit or affidavits filed in respect of that application: UCPR 31.2 31.2 Evidence of witnesses at other hearings
(cf SCR Part 36, rule 3; DCR Part 28, rule 3) Subject to rule 31.1, evidence in chief of any witness at any hearing must be given by affidavit unless the court orders otherwise. The interlocutory application and affidavit(s) will be served on the respondent to the application. The affidavit may include statements based on information and belief, contrary to the rule against hearsay, provided the grounds of the belief and the sources of information are stated The rules also prescribe the form of the application: rule 18.1; 18.3 (see above) Service of interlocutory applications – pg 766
Generally any part affected by the relief sought should be served with notice of the interlocutory application: UCPR 18.4 18.4 Time for service of notice
(cf SCR Part 19, rule 3; DCR Part 16, rule 3; LCR Part 15, rule 3) Unless the court orders otherwise, a notice of motion must be served at least 3 days before the date fixed for the motion. Service may be dispensed with in case of urgency or where service may give rise to irreparable damage – such applications by their very nature are made ex parte. In most jurisdictions, an application for a consent order need not be served: UCPR 18.4
Interlocutory applications usually involve ordinary service: UCPR 10.5 Division 2 – Manner of service 10.5 The various methods of service
(cf SCR Part 9, rules 3 and 4; DCR Part 8, rules 3, 9 and 12; LCR Part 7, rules 3, 9 and 12) (1) Subject to these rules, a document may be served on a person: (a) by means of personal service, or (b) by posting a copy of the document, addressed to the person: (i) to the person’s address for service, or (ii) if the person is not an active party, to the person’s business or residential address, or (c) by leaving a copy of the document, addressed to the person: (i) at the person’s address for service, or (ii) if the person is not an active party, at the person’s business or residential address, with a person who is apparently of or above the age of 16 years and apparently employed or residing at that address, or (d) in the case of service on a corporation, by serving the document on the corporation in any manner in which service of such a document may, by law, be served on the corporation. (2) In the case of a person having an address for service that is a solicitor’s office address, service of a document on the person may also be effected: (a) if the notice advising the address for service includes a DX address, by leaving a copy of the document, addressed to the solicitor, in that DX box at that address or in another DX box for transmission to that DX box, or (b) if the notice advising the address for service includes a fax number, by faxing a copy of the document to that number, or (c) if the notice advising the address for service includes an electronic service address, by transmitting an electronic copy of the document to that address. (3) Unless the contrary is proved, the time at which a document is taken to have been served is: (a) in the case of a document that is left in a DX box in accordance with subrule (2) (a), at the end of the second day following the day on which the copy is so left, or (b) in the case of a copy of a document that is faxed in accordance with subrule (2) (b), at the end of the first day following the day on which the copy is so faxed. See clause 13 of Schedule 1 to the Electronic Transactions Act 2000
as to when an electronic copy of a document is taken to have been delivered to an electronic mail address. See also Division 3 of this Part as to how personal service is to be effected. Interlocutory Judgements and orders – pg 981
An appeal lies from a final judgement or order concerning the substantive question in the proceeding. The distinction between final and interlocutory orders is vexed, being dependent upon the nature of the application and its legal effect. THE TEST IS: Does the order made finally dispose of the rights of the parties in action? Hall v Nominal Defendant (1966)
Salter Rex & Co v Ghosh : The question of ‘final’ or ‘interlocutory’ is so uncertain that the only thing for practitioners to do it look up the practice books and see what has been decided on the point. Most orders have been the subject of decision. If a new case should arise, we must do the best we can with it. There is no other way. The applicant will need to establish the first instance decision was wrong or doubtful and that a substantial injustice will arise by allowing the decision to stand: Australia Dairy Corporation v Murry Goulburn Co-op Co Ltd 
Leave to appeal is generally required in appeals from interlocutory orders, particularly those made by consent or discretionary cost order The failure to appeal form an interlocutory order does not prevent the Court of Appeal from giving such decision as may be just: UCPR 51.52 51.52 Powers of Court on appeal not limited by certain procedural matters
(cf SCR Part 51, rule 22) (1) The Court may exercise its powers under the Civil Procedure Act 2005
, the Supreme Court Act 1970
and these rules even if: (a) there is no appeal from some part of the decision below, or (b) a party to the proceedings below has not appealed, or (c) a ground for allowing or dismissing the appeal or varying the decision is not included in any notice of appeal, notice of cross-appeal or notice of contention, or (d) there has been no appeal from some other decision in the proceedings. (2) If a person was not a party to the proceedings in which the decision below was given, but is served with a notice of appeal pursuant to a direction of the Court, the Court may give such decision as might have been given in the court below if the person served had been a party below. (3) The Court may, on terms, make any order to ensure the determination on the merits of the real question in controversy. (4) The Court may make any order that it might make on an application for a new trial or for the setting aside of a verdict or judgment. (5) This rule applies subject to any Act. CASE: Meddings v The Council of the City of Gold Coast  – pg 982
- Where there remains a right to make some further application of the kind which has been dealt with, it cannot be held that the order which has been made finally determined the rights of the parties. Also where an order made does not directly deal with the rights in contest in an action, it cannot be regarded as one finally determining those rights. An enquiry into the practical effect of an order which has been made should not be undertaken as the appropriate was of deciding whether the order is final or interlocutory. Carr v Finance Co
CASE: Carr v Finance Corporations Australia Ltd (1981) – pg 984
- …It does not have the effect of finally disposing of the rights of the parties. It leaves open – at least in theory – to the applicant to make a further application…for an extension of time for service of each summons, and if that extension is granted and the summonses is served, to proceed with the actions
- agreeing with judgement in Carr…An order refusing an application to set aside a default judgement was not final but interlocutory because it did not preclude a second or subsequent such application. That was so even though such an application might be ‘doomed to failure because the issue of substance which it raised would have been decided adversely to the defendant in the first application’.
- In my opinion, the test in Lucil v Corney requires the court to have regard to the legal rather than the practical effect of the judgement.
- The test now applied in this court for determining whether a judgement is final or nor is whether the judgement of order appealed from, as made, finally determines the rights of the parties…
- An order refusing to set aside a default judgment does not as a matter of law finally dispose of the rights of the parties, for it is open for the disappointed defendant to apply again to have the judgement set aside.
- One view… is that the test depends on the nature of the application made to the court…the other view…should I think be regarded as established Australia, depends on the nature of the order made; the test is:
Does the judgement or order, as made, finally dispose of the rights of the parties? Jurisdiction – pg 985
The diverse jurisdiction of appellate courts is found in the statutes, which create the right of appeal. Appellate courts are superior courts of record and have appellate, original and inherent jurisdiction: ss 44, 75A; 101; 102; 107; 108 Supreme Court Act 1970 (NSW); UCPR 51.52 51.52 Powers of Court on appeal not limited by certain procedural matters
(cf SCR Part 51, rule 22) (1) The Court may exercise its powers under the Civil Procedure Act 2005
, the Supreme Court Act 1970
and these rules even if: (a) there is no appeal from some part of the decision below, or (b) a party to the proceedings below has not appealed, or (c) a ground for allowing or dismissing the appeal or varying the decision is not included in any notice of appeal, notice of cross-appeal or notice of contention, or (d) there has been no appeal from some other decision in the proceedings. (2) If a person was not a party to the proceedings in which the decision below was given, but is served with a notice of appeal pursuant to a direction of the Court, the Court may give such decision as might have been given in the court below if the person served had been a party below. (3) The Court may, on terms, make any order to ensure the determination on the merits of the real question in controversy. (4) The Court may make any order that it might make on an application for a new trial or for the setting aside of a verdict or judgment. (5) This rule applies subject to any Act. Notices to Admit – pg 700 Introduction
In all jurisdictions, except the HC, there are rules which specifically enable a party to request another party to admit, for the purpose of the proceedings, certain facts, or the authenticity of stipulated documents: UCPR 17.3; 17.4 17.3 Notice to admit facts
(cf SCR Part 18, rule 2; DCR Part 15, rule 2; LCR Part 14, rule 2) (1) The requesting party may, by a notice served on the admitting party (“the requesting party’s notice”
), require the admitting party to admit, for the purposes of the proceedings only, the facts specified in the notice. (2) If, as to any fact specified in the requesting party’s notice, the admitting party does not, within 14 days after service on the admitting party of the requesting party’s notice, serve on the requesting party a notice disputing that fact, that fact is, for the purposes of the proceedings only, taken to have been admitted by the admitting party in favour of the requesting party only. (3) The admitting party may, with the leave of the court, withdraw any such admission. 17.4 Notice to admit documents
(cf SCR Part 18, rule 5; DCR Part 15, rule 5; LCR Part 14, rule 3) (1) The requesting party may, by a notice served on the admitting party (“the requesting party’s notice”
), require the admitting party to admit the authenticity of the documents specified in the notice. (2) If, as to any document specified in the requesting party’s notice, the admitting party does not, within 14 days after service on the admitting party of the requesting party’s notice, serve on the requesting party a notice disputing the authenticity of that document, the authenticity of that document is, for the purposes of the proceedings only, taken to have been admitted by the admitting party in favour of the requesting party only. (3) The admitting party may, with the leave of the court, withdraw any such admission.
The rules in NSW stipulate that a fact or document specifies in a notice to admit is taken to be admitted, unless the party who is served with the notice gives notice that the fact or document is not admitted. In circumstances where one party has made sufficient admissions, whether in response to notices to admit or in pleading or otherwise, another party may apply to the court for the judgement or any order which the admissions may be found to justify: UCPR 17.7 17.7 Judgment on admissions
(cf SCR Part 18, rule 3; DCR Part 15, rule 3; LCR Part 14, rule 5) (1) If admissions are made by a party, whether by his or her pleadings or otherwise, the court may, on the application of any other party, give any judgment or make any order to which the other party is entitled on the admissions. (2) The court may exercise its powers under this rule even if the other questions in the proceedings have not been determined. Cost Consequences – pg 701
The rules of the court include cost consequences which provide the incentive to use, and to respond to, a notice to admit. UCPR 42.8; 42.9
: A party who has disputed a fact or the authenticity of a document the subject of a notice to admit, is required to bear the cost of providing the fact or document, unless the court otherwise orders. 42.8 Dispute of fact subsequently proved or admitted
(1) In this rule:“disputing party”
means the party who serves a notice disputing a fact under rule 17.3 (2).“fact in dispute”
means the fact that is the subject of a notice served under rule 17.3 (2).“requesting party”
means the party who is served with a notice disputing a fact under rule 17.3 (2). (2) Unless the court orders otherwise, the disputing party must, after the conclusion of proceedings in which a fact in dispute is subsequently proved or is subsequently admitted by the disputing party, pay the requesting party’s costs, assessed on an indemnity basis, being costs incurred by the requesting party: (a) in proving the fact, or (b) if the fact has not been proved–in preparation for the purpose of proving the fact. (3) An entitlement to costs under this rule is not affected by any order as to costs unless that order makes particular reference in that regard. 42.9 Dispute of authenticity of document subsequently proved or admitted
(1) In this rule:“disputing party”
means a party who serves a notice disputing the authenticity of a document under rule 17.4 (2) or 17.5 (3).“document in dispute”
means a document that is the subject of a notice served under rule 17.4 (2) or 17.5 (3).“requesting party”
means a party who is served with a notice disputing the authenticity of a document under rule 17.4 (2) or 17.5 (3). (2) Unless the court orders otherwise, the disputing party must, after the conclusion of proceedings in which the authenticity of a document in dispute is subsequently proved or is subsequently admitted by the disputing party, pay the requesting party’s costs, assessed on an indemnity basis, being costs incurred by the requesting party: (a) in proving the authenticity of the document, or (b) if the authenticity of the document has not been proved–in preparation for the purpose of proving the authenticity of the document. (3) An entitlement to costs under this rule is not affected by any order as to costs unless that order makes particular reference in that regard.