Civil Procedure Flashcards
(125 cards)
1
Q
What is the purpose of the Civil Procedure Act?
A
Per s1:
- Reform and modernise laws, practice, procedure and processes relating to civil proceedings
- Provide an overarching purpose to facilitate the just, efficient, timely and cost-effective resolution of the real issues in sidpute
- Amend the Act to reflect new procedures
2
Q
What does the Civil Procedure Act apply to?
A
All civil proceedings (other than under certain Act): s4
3
Q
What is the Overarching Purpose?
A
To facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute: s7
4
Q
What gives effect to the Overarching Purpose?
A
Per s8, in the exercise of its powers the court must seek to give effect to the OP, and have regard to the mandatory and optional factors in s9.
5
Q
To whom and when do the Overarching Obligations apply?
A
Per s10, obligations apply to any party, practitioner, practice, or person providing assistance with direct or indirect control, but not witnesses (other than expert witnesses).
Per s11, obligations apply in respect of the conduct of any aspect of a civil proceeding.
6
Q
To what do the Overarching Obligations prevail over?
A
Subject to the paramount duty, over any other obligation except a practitioners s15 duty to court and the s13 duty to the client: s12
7
Q
May a practitioner cause their client to breach the overarching obligations?
A
No: s14
8
Q
What are the Overarching Obligations?
A
- The PARAMOUNT DUTY to the court and to justice: s16
- Honesty: s17
- Proper basis: s18
- Only take steps to resolve: s19
- Cooperate: s20
- Not mislead: s21
- Reasonable endeavours to resolve: s22
- Narrow issues: s23
- Ensure costs reasonable and proportionate: s24
- Act promptly and minimise delay: s25
- Disclose existence of documents: s26
9
Q
What happens if there’s a breach to the Overarching Obligations, and who can make an application?
A
Per s28, in exercising any power the Court may take into account any contravention (including for costs orders)
Per s29, court may make any order appropriate (including payment of costs)
Per s30 by any person with sufficient interest prior to finalisation of proceeding (but per s31 may get extension if they were unaware of contravention)
10
Q
What powers does the court have to case manage?
A
- s47 general power
- s48 pre-trial power
- s49 trial and hearing power
- s50 power to order parties consult and prepare statement of issues
- s51 power to dismiss/strike/limit claims/defences, disallow/reject evidence, costs
- s52 power to revoke or vary
11
Q
What are the certification requirements? What if it’s urgent? What if there’s non-compliance?
A
- Each party must certify read and understood OO and PD filed with first substantive doc: s41
- Practitioner must file PB certification filed with first substantive doc: s42
- If urgent, party file file without complying but must file ASApracticable (s44) and a failure to comply does not prevent commencement of proceedings (s45) but it might have consequences such as costs: s46
12
Q
How is a proceeding commenced?
A
Normally by writ, but if no defendant or Act or rule requires them by originating motion, and optionally by originating motion if there us unlikely to be any substantial dispute of fact with no pleadings or discovery: r4.01, r4.05, r4.06
13
Q
How is an interlocutory application commenced?
A
By summons: r4.02
14
Q
What are the names of the parties?
A
Plaintiff/defendant except in some cases appellant and respondent: r4.03
15
Q
What happens if a proceeding is wrongly commenced by originating motion?
A
The court may order it continue as if commenced by writ providing there is a defendant and it is more convenient: r4.07
16
Q
What power does the court have in urgent cases?
A
It may make any order as if the applicant had commenced if they so intend and have given an undertaking to do so within such time as directed: r4.08
17
Q
What is the form of a writ?
A
In Form 5A, indorsed with a statement re apperance time, with a statement of claim or statement of reasonable particularity, with the remedy sought and the Act (if Any) with any questions to be stated, any representative capacity, with the address of the plaintiff and any defendant (and their solicitors and email addressess if any), the place and mode of trial desired, if for debt only the amount and costs claimed and a statement that if paid the proceeding will end, signed by plaintiff or solicitor: order 5
18
Q
What commences a proceeding?
A
The filing of an originating process and the Prothontary receiving it or electronically filing in RedCrest: r5.11
19
Q
How long is a writ or originating motion valid for after filing?
A
1 year: r5.12
20
Q
How does a defendant file a counter-claim?
A
By filing a defence and counter-claim together (r10.01) containing a second title of the proceedings served on the new defendant within the time fixed for serving the defence, with the defendant to the counterclaim filing a notice of apperance in Form 10B (r10.04), after which the claim and counter-claim will be tried together (r10.05)
21
Q
What if a counter-claim would embarass or delay the trial or cause prejudice?
A
The court may order separate trials, exclude any claim, strike counter-claim without prejudice, and exclude any party that was joined: r10.06
22
Q
What happens if a counterclaimant admits everything in the primary proceeding?
A
The Court may stay the original proceeding until the counterclaim is disposed of: r10.07
23
Q
What happens to a counterclaim if the original proceeding reaches judgment, is stayed, discountined or dismissed?
A
Nothing, the dismissal of the original claim does not prevent the counterclaim being prosecuted: r10.08
24
Q
What happens if both the plaintiff and the counterclaiming defendant win?
A
The court may give judgment for the balance: r10.09
25
Can the defendant of the counter claim file and serve a third party notice?
Yes: r11.17
26
What happens if a defendant to a proceeding wants to make a claim against a third party, e.g. for indemnity?
Once the defence is served (r11.05) they can join the new party a a third party and making their claim by filing and serving a third party notice (r11.01) within 60 days (r11.15) in Form 11A and indorsed with a statement of claim (r11.02), upon filing the 3P becomes a party with the 3P notice to be filed and served as if it was an originating process (r11.04) to be served within 60 days (r11.15)
27
What are the service requirements for a third party notice?
Served 60 days within filing unless the court orders otherwise (failure to comply may lead to separate trials), served with copies of relevant orders, consents, writs, pleadings and affidavits, copy to plaintiff and any other appeared party: r11.07
28
What happens if a party is served a third party notice?
They must file and serve an appearance within 10 days (r11.03) then the new defendant must serve a defence within 30 days (r11.09)
29
What does a pleading need to have?
A description, date, numbered paras per allegation, and be signed by counsel/solicitor/party (r13.01) with a summary of material facts, provisions in acts, and remedy (r13.02), with the effect of any document or purpose of conversation pleaded as briefly as possible without precise words (r13.03), necessary particulars of any fact or matter including alleged wrongdoing, bodily injury, etc (r13.10)
30
What does a defence needs to contain if the defendant believes a fact or matter makes an allegation in the SoC that is not maintainable?
it must be plead specifically: r13.07
31
Can pleadings of fact be pleaded in alternative?
Yes: r13.09
32
What happens if the particulars are not enough?
Once asked for by letter, the court can order further and better particulars: r13.11
33
What should a defence contain?
Unless each allegation of fact is denied or not admitted, it will be taken to be admitted: r13.12
34
What if a writ or originating process requires amendment before anything is served?
With leave of the Prothonotary or court a party may emend if an affidavit is filed stating nothing has been served and all sealed copies are returned to the Court, then any amendments are to be distinguished: r36.03
35
What if a pleading needs to be amended before (or after) pleadings have closed?
A party has the right to make the amendment (but if pleadings have closed requires consent or leave of the court under r36.01): r36.04
36
Once a pleading is amended, how long does a party have after service to reply?
30 days: r36.06
37
What is the form of evidence for a trial of a proceeding commenced by originating motion?
By affidavit unless parties agree: r45.02
38
What happens in an originating motion if a defendant fails to file an appearance?
Default judgment: r45.03
39
In a proceeding by originating motion, how does a party obtain an interlocutory order once an appearance has been filed?
By making an application under r45.04
40
What if an interlocutory order in a proceeding commenced by originating motion is required urgently?
Use the special procedure outlined in r45.05
41
If a party serves an offer of compromise in writing on terms specified, in writing and containing a statement to the effect that it is served in accordance with THIS order, and the offer is inclusive of costs or that costs are to be paid or received in addition, what order is that?
Order 26
42
What is the minimum time that an Order 26 must be left open?
14 days: r26.03
43
Can multiple Order 26 offers be made?
Yes: r26.03(2)
44
What is the default payment period for an Order 26 offer?
28 days: r26.03.1
45
Are Offer 26 offers by default without prejudice?
Yes: r26.04
46
What happens if a party who accepted an Order 26 offer doesn't pay within the time limit?
The non-defaulting party may withdraw the offer if the Court grants leave, and seek orders to restore the parties to their position as of the time of acceptance: r26.07.1
47
What happens if a party who has accepted an Order 26 offer fails to comply with the terms?
The non-defaulting party may apply to the court to give effect to the offer, stay or dismiss proceedings, strike defences or order the claim shall proceed: r26.07.1
48
What rule applies re costs if an Order 26 offer is not accepted?
Rule 26.08
49
What is the court's power to order discovery?
Per s55 a court may make any order or direction in relation to discovery.
50
When can the court order a without prejudice provision of documents?
Per s55A if the parties consent and satisfied not likely to give rise to substantial prejudice, without unreasonable cost, and are able to be identified by description or category
51
Can the court order a party provide an affidavit of document management or order an oral examination?
Yes: s55B and s55C
52
What powers does the court have if there is a failure to comply with discovery?
Per s56 the court may make any order, including contempt, adjournment, costs, preventing steps, limiting documents, compensation, compel evidence, dismiss claim, or strike defence.
53
When can a party cross-examine a discovery deponent?
Where there is a reasonable belief the other party may be misinterpreting discovery obligations or failing to disclose discoverable documents: s57
54
Once a notice has been served requiring a party make discovery, what documents need to be discovered?
Any documents the party is aware of after a reasonable search on which they rely, would adversely affect their or another partys case, supports another party's case, other than those the party reasonably believes is already in their possession: r29.01.1
55
How long does a party have to respond to discovery?
42 days after service or close of pleadings (whichever is later): 29.03
56
What needs to be in the affidavit of documents?
Per r29.04:
- Documents are or have been in possession
- Enumerated in convenient order
- Describing each document or group
- Distinguishing between those in and no longer in possession
- Any grounds of privilege
- Any documents not searched for and why
57
What happens if discovery is unnecessary?
The court may limit unnecessary discovery by ordering it not be required or limited to specified documents or classes: r29.05
58
When can the Court make a discovery order?
At any stage: r29.05.1
59
What if a party needs to discover documents that are beyond those in the normal 29.01.1 categories?
A party can ask a court to make an order under 29.05.2 to expand discovery: r29.05.2
60
Is a party that has been joined to the proceedings entitled to all of the discovery?
Yes, once they have pleaded they are entitled to a copy of the affidavits of discovery: r29.06
61
What if a party has a belief that some document or class may be helpful but has not been discovered?
A party can ask a court to make an order under 29.08 for a document or class relating to any question be discovered
62
If a party receives an affidavit of discovery, how do they inspect them?
By a notice to produce served on the party, they must serve a notice within 7 days appointing a time for inspection within 7 days, where the documents can then be photocopied: r29.09
63
What if a party wants a document referred to in a pleading or affidavit?
They can issue a notice to produce, requiring the person to produce or serve an affidavit claiming privilege or lack of possession: r29.10
64
What if there is a dispute about production of documents pursuant to discovery?
The party seeking the document can seek an order under 29.11, and under r29.12.1 may issue a default notice which, if not complied with within 7 days the court may order the proceeding be dismissed or defence struck out, and per r29.13 the court may inspect any document to determine any objections
65
What if the discovery document is some kind of video tape?
The court may give directions for making the informaiton available: r29.12
66
What if a party wishes to issue a notice of discovery after the court has given directions about discovery in inspection?
They must seek an order by the court first: r29.16
67
What if a person wishes to obtain an order for preliminary discovery?
If the person has made reasonable enquiries but been unable to ascertain the description of a person sufficient to commence proceedings, they may seek an order from the court for a person with such knowledge or documents to give evidence or produce said documents (r32.03) and includes a party to an existing proceeding (r32.04)
68
What if a person wishes to obtain discovery from a party it is considering bringing proceedings?
If there is reasonable cause to believe an applicant has a right to relief, but has insufficient information to decide, and reasonable cause to believe the person has information that would assist, the court may order discovery (r32.05) and includes a party to an existing proceeding (r32.06)
69
What if a person isn't sure whether to bring proceedings against a particular person?
If there is reasonable cause to believe ana pplication has a right to relief against a person but insufficient information to decide whether to commence, and reasonable cause to believe they have information that would assist that decision, they may apply to the COurt for an order of discovery relating to that question (r32.05) and includes a party to an existing proceeding (r32.06)
70
Other than a subpoena, what can a party do if someone has or is likely to have a document that relates to any question in the proceeding?
They can apply to the Court for an order that the non-party make discovery: r32.07
71
How does one inspect the documents subject to a preliminary discovery order?
You may by notice require the production of documents for inspection and copying: r32.09
72
How can a party subpoena evidence or documents (or both) from a third party?
They can ask the court to order a subpoena (under r42.02) by applying using 42A/B/C (evidence/production /both) (r42.03) to be served at least 5 clear days before production required (r42.03(8))
73
Can the issuer of a subpoena unilaterally give a later date/time for production?
Yes: r42.03.1
74
What can a party do if they object to production under the subpoena?
They can ask the court to set aside the subpoena in whole or part: r42.04
75
How does a party inspect documents the subject of a subpoena?
They apply to the Court for leave, then the Prothonotary allows inspection and copying: r42.09
76
How does a party object to inspection of documents produced under a subpoena?
They notify the Prothonotary in writing of the objection and the grounds, then the Prothonotary will not permit inspection but rather will notify the parties when and where the objection will be heard: r42.09
77
What happens to documents once the subpoena is spent?
They will be returned or destroyed: r42.10
78
Is a subpoena addressee entitled to costs?
Yes: r42.11
79
What happens if a subpoena addressee fails to comply?
It's a contempt of court: r42.12
80
What if a party wanted to use discovery to access something other than a document?
They would need to apply for a subpoena (see Order 42)
81
What is the less procedurally demanding alternative to regular subpoenas that applies only to represented parties, only pre-trial, and only to documents?
Order 42A
82
Who may apply for summary judgement?
- Plaintiff: s61
- Defendant: s62
- Court: s63
83
When will summary judgment be granted?
Per s63 where there is no real (as opposed to 'fanciful') prospect of success, unless per s64 the court allows a matter to proceed to trial because it would not be in the interests of justice to summarily dispose of it.
84
Under the rules, what are the Court's powers in relation to an application for summary judgment?
Subject to the CPA, the Court may dismiss, give judgment in whole or in part, for plaintiff applicants give leave for the defendant to defend, or with consent dispose in a summary manner: r22.08 (for plaintiff applicants) and r22.22 (for defendant applicants)
85
What can the court do with scandalous, frivolous or vexatious proceedings or claims?
With evidence (or not), the court may stay the proceeding, or give judgment generally or in relation to any claim: r23.01
86
What can the court do if a statement of claim or pleading or part of pleading doesn't disclose a cause of action, or is scandalous, frivolous or vexatious or may prejudice, embarrass or delay a fair trial, or is an abuse or process?
Without evidence, the court may strike out : r23.02
87
What is the court's power to order ADR?
Per s66 court may order at any stage appropriate ADR, but without consent only if it would result in a binding outcome.
88
When may a plaintiff join a number of claims against a defendant?
A plaintiff may join any number of claims against a defendant (r9.01)
89
What happens if the prospective joinder of parties may embarrass or delay the trial?
The court may order separate trials, exclude claims, compensate parties by costs orders or order any person cease to be a party: r9.04
90
Can joinder/removal/substitution occur after proceedings have commenced?
Yes, by court order: r9.06
91
What happens if a prospective plaintiff does not consent to be joined as a plaintiff to an existing proceeding?
They would have to be added as a defendant because their consent is required: r9.07
92
What happens if there are multiple proceedings pending with some common question of law or fact or the right to relief arises out of the same transction?
The court may order the proceedings be consolidated: r9.12
93
When can an injunction be ordered?
At any stage (r38.01), including before proceedings have commenced (r4.08) (in which case security for costs may be ordered per r38.03) and in urgent cases granted ex-parte (r38.02)
94
If a party wants to make an application (e.g. for a freezing order, injunction, security for costs) on notice, what form should it be?
By summons (r46.02) in form 46A filed with prothonotary/associate judge/associate: r46.04
95
What are the service requirements for an application?
The sealed copy to be served on every person to whom the application is to be given a reasonable time before the hearing no later than 2pm the previous day, and if no appearance is yet filed served personally: r46.05
96
What may the court do if an application is made on notice but the person did not attend, or if the application was made without notice?
Set aside or vary an order: r46.08
97
Whan can security for costs be ordered?
Per r62.02:
- Non-Vic residents
- Corporations
- Case in another court for same claim pending
- Address for plaintiff not stated or incorrect in origating mototion (unless they acted innocently)
- Plaintiff changed address after commencement to avoid consequences
- Under any Act
98
What are the obligations of a plaintiff who has a security for costs order against them, and what happens if they don't pay?
The security shall be given in the manner and at a time as the court directs (r62.03), failure of which may result in dismissal of proceedings (r63.04) which can be set aside or varied (r62.05)
99
What are the court's powers as to costs?
- Power to order costs memo be given to court and other party: s65A
- Power to order costs memo be given to client: s65B
- Court may make any order to further Overarching Purpose: s65C
100
Must a party seek direction from the court if they intend to, or become aware that they may, adduce expert evidence at trial?
Yes other than in the MC: s65G
101
What are the court's powers in relation to expert evidence (as opposed to expert witnesses)?
Any directions it considers appropriate: s65H
102
What are the court's powers in relation to expert witnesses and experts generally?
- Direct experts hold a conference (per s65J generally without prejudice), or prepare a joint report: s65I
- Give directions it considers appropriate: s65K
- Order an expert be jointly engaged: s65L
- Appoint an expert: s65M
103
How is evidence to be given?
Unless otherwise ordered, for an application or trial commenced by originating motion, by affidavit, otherwise orally: r40.02
104
Does a deponent need to attend court?
If the Court has ordered them to, in which case failure to do so may cause the affidavit to not be received into evidence: r40.04
105
What mechanism is available to the court if there is a particular fact in issue?
A court may order evidence be given at trial or any other stage, including by way of statement on oath, production of documents, or copies or entries into books: r40.05
106
Can evidence taken at trial be used at subsequent stages of the proceeding?
Yes in Order 40 "evidence generally": r40.11.
107
Other than by subpoena, does the court have the power to compel witnesses to attend and produce documents?
Yes in Order 40 "evidence generally": r40.12
108
Does the court have the power to (or authorise a jury to) inspect any place, process or thing?
Yes in Order 40 "evidence generally": r40.13
109
What form must an affidavit be in?
Per r43.01:
- First person
- Place of residence (or if in professional capacity address, position and employer)
- Occupation
- If they are a party or employed by a party
- Numbered paragraphs
- Numbered pages
- Signed jurat before witness
- Witnesses name, address, and capacity to take affidavit
Per r43.06
- Any documents to be annexed as a bundle exhibit
- With leading certificate bearing same heading and signed by witness
- In form 32A with distinguishing mark and brief description of exhibit
110
What happens if an affidavit is not properly filed or served?
It shall not be used unless the court orders otherwise: r43.09
111
What does a party need to do if it intends to adduce evidence of an expert?
Per r44.03:
- Provide a copy of the code to the expert in Form 44A
- Serve the report to parties and deliver copy to court
- Report to be signed by expert and accompanied by extrinsic materials
112
What can a court do if there are multiple experts?
The court may direct experts confer and provide a joint report: r44.06
113
What civil proceedings may be by jury?
Only a proceeding commenced by writ founded on contract or tort, if notice is given in writing to the parties and Prothonotary within 10 days of the last apperance, unless the court directs otherwise: r47.02
114
When can a court order a separate trial for a specific question?
Before, at, or after the trial: r47.04
115
What can a court do if the trial of a separate question substantially disposes of the proceeding or renders the trial unnessessary?
Dismiss the proceeding: r47.05
116
At a civil trial, who normally begins by making the first opening address and then adducing evidence?
The party that bears the burden of proof: r49.01
117
What happens if a party is absent at trial?
The court may set down again for trial, proceed, adjourn, or set aside (and this order may be set aside or varied on applciation made within 14 days): r49.02
118
When may the court order a practitioner to prepare and give to court or party a memo setting out estimated length and costs in relation to the trial?
At any time: s65A
119
When may the court order a practitioner to prepare and give to their cilent a memo setting out the actual and estimated costs and disbursements?
At any time: r65B
120
What other costs orders may a court make?
Any order it considers appropraite to further the overarching purpose: s65C
121
How much is taxation on a standard basis?
All costs reasonably incurred and of reasonable amount: r63.30
122
How much is taxation on an indemnity basis?
All costs except insofar as unreasonable amount or unreasonably incurred with any doubt resolved in favour of costs recipient: r63.30.01
123
What is the default taxation method?
Standard costs: r63.31
124
In Driden v Stockyard, when the plaintiff's pleading pled that they were either the sole possessors of the land, or not, what rules were relevant?
- s18 overarching obligation to make claims with proper basis
- s19 overarching obligation to only take steps to resolve or determine dispute
- s22 overarching obligation to use reasonable endeavours to resolve
- s23 obligation to narrow the issues
- r13.09 limit on the allowance of a party to make pleadings in the alterantive, but not to plead alternatives that the plaintiff should know are false
- r23.03 power of court to strike out
- r9.06 power of court to order a person cease be a party
125
What was the outcome of Driden v Stockyard?
The plaintiffs were required to make an election between the two alternatives proposed and amend the pleading as necessary to give effect to that election.
