CIVIL PROCEDURE Flashcards
(191 cards)
1
Q
🔍 Trigger: What is procedural law?
A
📖 Answer: Law governing the conduct of proceedings before the court.
“Rules directed to the mode of court conduct” – McKain v RW Miller (1991)
2
Q
⚖️ Trigger: What are the two main sources of NSW civil procedure law?
A
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
3
Q
What does s 56 CPA require courts to prioritise?
A
A just, quick, and cheap resolution of the real issues in dispute.
4
Q
What is inherent jurisdiction?
A
Power of superior courts (e.g., Supreme Court) to control abuse of process and ensure fairness — e.g., asset freezing orders, search orders.
5
Q
Procedural law governs the _______ of proceedings before the court.
A
conduct
6
Q
In Aon Risk Services, the High Court held that ________ and ________ are essential to justice.
A
speed, efficiency
7
Q
⚠️ Cloze: In JL Holdings, the High Court said that denying an arguable defence is unjust unless _________ prejudice is shown.
A
🚫 Answer: extreme
7
Q
📜 Cloze: s 61 CPA allows courts to issue __________ for failure to follow case management directions.
A
🔨 Answer: sanctions (e.g., dismiss claims, strike out pleadings, costs)
8
Q
🧩 Scenario: A defendant applies to amend their defence 1 week before trial, citing new evidence. Plaintiff argues delay and prejudice.
A
🧠 Answer:
Statutes: CPA ss 56 (overriding purpose), 57–58 (case management), 61 (consequences for delay)
Key cases:
Aon Risk: Court may reject late amendments if they undermine efficiency or burden other litigants.
JL Holdings: Justice may still require letting a party argue a defence, unless extreme prejudice.
Outcome: Depends on reason for delay and whether justice or efficiency carries more weight.
9
Q
✅ TRUE OR FALSE
🧾 Q: Procedural law is mainly developed through case law.
A
❌ A: False – it’s largely statutory (CPA + UCPR).
10
Q
✅ TRUE OR FALSE
📋 Q: Practice Notes have the same force as legislation.
A
❌ A: False – they guide, but don’t override, statutes or rules.
11
Q
A
12
Q
📘 Q: What are the three sources of procedural law in NSW?
A
Legislation: CPA 2005 + Supreme Court Act
Executive: UCPR
Judiciary: Common law principles (case law)
13
Q
⚔️ Q: Compare JL Holdings and Aon Risk on amendments and delay.
A
JL Holdings: Prioritised right to argue → delay acceptable unless extreme prejudice
Aon Risk: Rejected this; prioritised speed, cost, justice → stricter case management
14
Q
📣 Q: Why is procedural law seen as political?
A
It shapes who can access justice; often advantages the wealthy, reflects power dynamics, and is embedded in settler colonial structures.
14
Q
🛠 Q: What case management powers are available under the CPA?
A
Issue directions (s 62)
Impose sanctions (s 61)
Encourage ADR (s 56 + UCPR r 2.1)
14
Q
What is procedural law?
A
Law that governs the conduct of court proceedings. “Rules which are directed to governing or regulating the mode or conduct of court proceedings” – McKain v RW Miller (1991) 174 CLR 1 per Mason CJ
15
Q
⚖️ Q: What does s 58 CPA say about “dictates of justice”?
A
Courts must weigh factors like complexity, conduct, and fairness — all in light of ss 56 and 57.
15
Q
What is the key difference between inherent and implied powers?
A
Inherent powers are not granted by statute but arise from the court’s status.
Implied powers are necessary for statutory jurisdiction to function properly.
16
Q
Front: Is the court being asked to use an inherent or implied power?
A
Superior courts (e.g. Supreme Court): Have inherent powers (e.g. contempt, procedural fairness).
Inferior courts (e.g. Local Court): Only have implied powers necessary to carry out statutory functions.
✨ Case: Grassby v The Queen (1989)
17
Q
What did the court decide in Pelechowski v Registrar, Court of Appeal
A
Order by District Court exceeded power.
Implied powers must be really necessary for justice.
Not justified merely for convenience or desirability.
17
Q
The ___ Court of NSW has inherent powers, while the ___ Court does not.
A
Supreme / Local
17
Q
Is the court considering whether to restrict public access to a proceeding?
A
Default: Open justice applies — proceedings should be public.
Consider statutory or common law exceptions.
✨ Key provisions: CPA s 71; CSPO Act 2010 (NSW) s 8
17
Q
When can a court close proceedings under s 71 of the CPA?
A
Where necessary to ensure justice (e.g. minors, interlocutory orders).
When open court would defeat the ends of justice.
18
A Local Court judge orders a property seizure not explicitly authorised by statute. Valid?
Likely invalid unless implied power is necessary for exercising jurisdiction (R v Mosely).
19
Under s ___ of the Court Suppression and Non-Publication Orders Act 2010 (NSW), courts may suppress information to avoid prejudice.
8
20
Contrast John Fairfax Publications v District Court of NSW with Rinehart v Welker.
John Fairfax: Courts can't exclude public without legal basis.
Rinehart: Suppression denied — public interest in trust dispute outweighed privacy.
20
Is this a question about improving access to justice?
Consider social, legal, and economic barriers (cost, complexity, remoteness, systemic discrimination).
Refer to Access to Justice Waves:
Equal access to services
System simplification
ADR mechanisms
Cost/resource efficiency
21
What are two rules under the Solicitors’ Conduct Rules that align with s 56 CPA?
r 3.1: Duty to court and justice first
r 7.1: Provide timely and clear legal advice
21
Lucille fears litigation due to past trauma and legal debt. What barriers does she face?
Psychological trauma
Financial stress
Mistrust of institutions
Systemic bias (e.g. loss of family, past detention)
22
What are the three types of ADR and how are they classified?
Facilitative: Mediation, Conciliation, Ombudsman
Determinative: Arbitration, Adjudication, Expert Determination
Advisory: Early Neutral Evaluation
23
What provision allows the court to order mediation with or without consent?
s 26 of the Civil Procedure Act 2005 (NSW)
24
What did BHP Billiton Ltd v Schultz (2004) say about "interests of justice" in court transfer?
Interests of justice must consider all parties, including factors like witness location, governing law, and procedural convenience.
24
Under s ___ CPA, courts can order arbitration for damages or equitable relief.
s 38
24
A party wants arbitration but there’s no arbitration clause. Can the court order it?
Yes – under s 38 CPA, courts may refer to arbitration even without contractual agreement.
24
What are some potential drawbacks of ADR?
Power imbalances
Risk of bad faith participation
May delay proper court resolution
Can retraumatise vulnerable parties
Might hide injustice behind confidentiality
24
What section ensures mediation is conducted in good faith?
s 27 CPA
25
Mediation under s 30 CPA is ______ and ______ in court.
privileged; inadmissible
25
Why was arbitration inappropriate in Re Wakim (1999)?
Federal courts cannot be conferred state jurisdiction under the Constitution.
25
Joy Houses doesn’t want to mediate because it may seem weak. Can the court still order it?
Yes – under s 26 CPA, court may refer to mediation regardless of party consent.
26
What are some court considerations when referring to mediation?
Prospects of settlement
Prior negotiation attempts
Complexity of issues
Public interest
Party capacity and needs
26
What is the purpose of limitation periods in civil litigation?
To promote certainty, avoid stale claims, and ensure fairness.
27
Under s ___(1)(a) of the Limitation Act 1969 (NSW), breach of contract claims must be filed within ___ years.
14(1)(a); 6 years
27
What did Brisbane South Health Authority v Taylor (1996) establish about delay?
Delay can prejudice fair trial rights; limitation periods must be respected to avoid injustice.
27
What are the three key reasons a case may be transferred under the cross-vesting scheme?
Capacity of receiving court to hear the case
Relevance of receiving court’s law
Interests of justice
27
Seaside Chutney wants to sue for $2.3M. Can they file in Local or District Court?
No – claim exceeds jurisdictional limits: Local ($100K) and District ($1.25M). File in Supreme Court (unlimited jurisdiction).
28
Which Act governs the transfer of proceedings between state courts?
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)
29
What did Larissa Behrendt highlight about Indigenous dispute resolution?
Rooted in community values like cooperation, respect for Elders, and oral consensus; western ADR may not reflect this.
29
Under s ___ of the CPA, parties must participate in mediation if referred by the court.
r 20.6(1) UCPR
29
ADR clause is missing in a high-value commercial contract. Can the court mandate mediation?
Yes – s 26 CPA empowers courts to refer parties to mediation without a contractual clause.
30
What are the two forms of originating process under r 6.2(1) UCPR?
Statement of Claim (SoC)
Summons
31
Under r ___ UCPR, a Statement of Claim must be used in proceedings involving tort, defamation, or possession of land.
6.3
31
What does a good Statement of Claim contain?
Clear, numbered paragraphs
Material facts (not evidence)
Relief claimed
Particulars if necessary (e.g. r 15.1)
Complies with r 6.2(3A) (court seal, case no., listing date)
31
When must a Statement of Claim be used instead of a Summons (r 6.3)?
Debt/liquidated claim
Tort claims
Allegations of fraud
Damages for personal injury/property damage
Possession of land
Defamation
31
What is the difference between pleadings and particulars?
Pleadings: Outline general facts and relief sought
Particulars: Give specific details of allegations (e.g. date, place, conduct)
31
What rule governs when pleadings are considered admitted?
r 14.26 UCPR — If not denied specifically, allegations of fact are taken as admitted.
32
Under r ___ UCPR, allegations of fraud, misrepresentation, or breach of trust must be specifically pleaded with particulars.
15.3
32
After 28 days from filing, amendments to pleadings require leave of court under s ___ CPA.
64(1)
32
Particulars must be included in pleadings or a separate document under r ___.
15.9
33
A plaintiff alleges negligence but fails to plead how the breach occurred. What rule is relevant?
Likely a breach of r 14.7 UCPR (must plead material facts). Defendant may seek particulars under r 15.1.
33
What principle was stated in Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) about pleadings?
Pleadings must state the case with sufficient clarity so the other party can respond, ensuring procedural fairness.
34
You want to join multiple plaintiffs who suffered loss from the same collapsed building. What rule applies?
r 6.19 UCPR — parties may be joined if a common question of law/fact or same series of transactions is involved.
34
You want to commence action for preliminary discovery. What originating process do you use?
Summons (r 6.4 UCPR) — used for technical questions and procedural applications.
34
What steps must you take once the Statement of Claim is drafted?
File at court registry (r 4.10(1))
Lodge copies for service (r 4.12)
Must be served (r 6.2(3))
Valid for 6 months (r 6.2(4))
34
What did Choy v Tiaro Coal Ltd (2018) confirm about originating process?
Reaffirmed the significance of correctly using a statement of claim or summons to define the structure of proceedings.
35
When can causes of action be joined under r 6.18?
Same capacity of plaintiff
Same capacity of defendant
Leave of court granted (guided by CPA s 56 — overriding purpose)
36
What happens if a pleading includes excessive detail or irrelevant allegations?
It may be struck out (see r 14.7, 14.26). Breaches procedural fairness and clarity.
37
What must happen after filing the originating process?
Must be served on the defendant (r 10.1(1) UCPR).
Originating process includes SoC or Summons (r 6.2(1)).
Service must be personal in Supreme Court (r 10.20(2)(a)).
38
What is the purpose of service in civil litigation?
To notify a defendant of proceedings against them, fulfilling natural justice and giving the court jurisdiction to hear the matter.
39
Under r ___ of the UCPR, personal service is required for originating process in the Supreme Court.
r 10.20(2)(a)
40
What did the court decide in Flo Rida v Mothership Music Pty Ltd [2013] about substituted service?
Substituted service via Facebook was invalid as it was unlikely to bring the proceedings to the defendant’s attention.
40
If the defendant refuses to accept a SoC but it’s left in their presence, is service valid?
Yes. See Re Hudson (1885). If informed of the document's nature and it’s left in front of them, service is effective.
40
What are valid methods for personal service on a corporation?
Serve a principal officer at business address (r 10.22).
Mail to registered office (s 109X(1)(a) Corporations Act).
41
When can substituted service be ordered under r 10.14 UCPR?
When personal service is impracticable and the proposed method is likely to bring the proceedings to the defendant's attention.
42
Compare substituted service outcomes in Wakim v Criniti and Flo Rida v Mothership.
Wakim: Valid – social media used actively by defendant.
Flo Rida: Invalid – no evidence Facebook would reach defendant.
43
Under SEPA s ___, an originating process from NSW can be served in another state.
s 15
44
What if the defendant is in Victoria and evading service?
Attempt service under SEPA s 15 and UCPR r 10.3.
Apply for substituted service under r 10.14 (e.g., email, serve sister, post in Facebook group).
45
What documents require personal service under the UCPR?
Originating process in Supreme Court (SoC, Summons), subpoenas, and injunctions.
46
47
What does an affidavit of service under r 35.8 prove?
That valid service occurred — provides evidence of date, time, and manner of service.
47
Under r ___, substituted service can only be ordered when personal service is impracticable.
r 10.14
47
What service method was used in Bulldogs Rugby League Club v Williams [2008]?
Multiple: Toulon Rugby Club (France), Sydney residence, SMS to Williams and manager. Court found service likely to reach him.
47
Can you serve a corporation by handing the document to a receptionist?
Yes, if they’re over 16 and at the business address (r 10.10). Better if it’s a principal officer (r 10.22).
47
What are the methods of international service?
Private means (r 11.4)
Diplomatic channels
Hague Convention (Part 11A)
Bilateral treaties
48
Service is valid only after the document has been ___ with the court seal.
sealed
48
What must international service include under r 11.7?
Notice of the court’s jurisdiction, grounds relied upon, and defendant’s right to challenge service.
48
What’s the issue with serving a sealed SoC before lodging it at the registry?
Service is invalid — r 10.4(3) says filing must occur first; court seal ensures procedural validity.
48
Q: What are the two primary forms of evidence in civil proceedings?
A: Oral testimony and affidavit evidence.
49
Q: What is an affidavit?
A: A written, sworn or affirmed statement of evidence used in proceedings, governed by Part 35 of the UCPR.
50
Q: What is discovery?
A: A pre-trial process where parties disclose documents relevant to the issues in dispute to promote fair trial and informed decisions.
51
Q: What is a subpoena?
A: A formal court order compelling a party to attend court or produce documents (r 33.1).
51
Q: What is a notice to admit?
A: A request that a party admit certain facts or the authenticity of documents (rr 17.3, 17.4).
52
Q: What are interrogatories?
A: Written questions submitted to a party, answered under oath, allowed only by court order (r 22.1).
53
Q: What is the rule on privileged documents under discovery?
A: They must be disclosed but can be withheld from inspection (r 1.9 UCPR).
53
Q: What is the purpose of conduct money?
A: To cover reasonable costs for compliance with a subpoena (r 33.6).
53
Q: What governs affidavit drafting and form?
A: UCPR Part 35 and Practice Note SC Gen 4.
54
Q: What documents are needed for preliminary discovery?
Q: What documents are needed for preliminary discovery?A: A summons and affidavit outlining reasons (r 5.2 or r 5.3).
54
Q: What are the types of discovery under the UCPR?
Preliminary Discovery (Pt 5)
Discovery Proper (Pt 21)
55
Q: What is required to serve a subpoena?
A: The subpoena must be personally served (r 33.5) and conduct money must be provided (r 33.6).
55
Gan v Xie [2023] NSWCA 163
Affidavits must use the deponent's own words and avoid lawyer paraphrasing.
55
Q: What happens if a party fails to admit under a notice to admit?
A: They may be liable for costs if the matter is later proved at trial (r 17.4).
56
Davies v Eli Lilly & Co [1987] All ER 801
Discovery serves the purpose of transparent litigation to promote just outcomes.
56
Ying v Song [2010] NSWSC 1500
Affidavit must reflect the deponent’s version, not be drafted in the solicitor's voice.
57
RTA v Care Park [2012] NSWCA 35
Preliminary discovery under r 5.2 requires a genuine intention to sue.
58
Crawford v ANZ [2021] VSC 578
Endorsed the use of Technology Assisted Review (TAR) in complex discovery.
58
Pfizer v Samsung Bioepis [2017] FCAFC 193
Clarified the different purposes of r 5.2 (identity) and r 5.3 (decision to sue).
59
Secretary of DPIE v Blacktown CC [2021] NSWCA 145
Subpoenas must serve a legitimate forensic purpose.
60
Cloze 1: Affidavit content must be written in the __________ of the deponent.
own words
61
Cloze 2: Conduct money must be paid in __________ to subpoena recipients.
advance
61
Cloze 3: Preliminary discovery under r 5.2 is used to discover __________ of the defendant.
identity or whereabouts
61
Cloze 4: Notices to admit must be responded to within __________ days.
14
62
Cloze 6: Affidavit annexures must be __________ clearly (r 35.6(2)).
marked
62
Cloze 5: Under r 35.3, affidavits must only contain facts within the deponent's __________.
personal knowledge
63
Q: Interlocutory applications are made ____ the final judgment to preserve the ____ or manage procedural matters.
A: Interlocutory applications are made before the final judgment to preserve the status quo or manage procedural matters.
63
Q: Under UCPR r 42.21(1B), a court ____ order security for costs merely because the plaintiff is ____.
A: Under UCPR r 42.21(1B), a court cannot order security for costs merely because the plaintiff is poor.
63
Q: A plaintiff must give an ____ as to damages (UCPR r 25.8) when seeking an interlocutory ____.
A: A plaintiff must give an undertaking as to damages (UCPR r 25.8) when seeking an interlocutory injunction.
64
Q: The two-limb test for granting an interlocutory injunction includes a ____ case and the ____ of convenience.
A: The two-limb test for granting an interlocutory injunction includes a prima facie case and the balance of convenience.
64
Q: r 18.1–18.3 UCPR
A: Procedure for interlocutory application by motion; identifies applicant, affected parties, nature of order.
65
Q: Mareva Compania Naviera SA v International Bulkcarriers SA [1980]
A: Established freezing orders to prevent disposal of assets.
66
Q: Anton Piller KG v Manufacturing Processes Ltd [1976]
A: Origin of search orders allowing entry to preserve evidence.
67
Q: Samsung v Apple [2011] FCAFC 156
A: Leave to appeal interlocutory injunction requires doubt + injustice.
68
Q: Defendant is suspected of planning to move assets offshore to defeat judgment. What remedy is appropriate?
A: A Mareva order (freezing order) under UCPR r 25.14 to prevent asset dissipation.
68
Q: What is the first requirement for a freezing order (UCPR r 25.14)?
A. Serious loss
B. Prima facie case
C. Good arguable case or judgment
D. Assets must be located overseas
A: C. Good arguable case or judgment
68
Q: You want to compel the defendant to stop defamatory posts pending trial. What must you prove?
A: Apply for a prohibitory interlocutory injunction: show prima facie case and balance of convenience favors the plaintiff.
68
Q: You suspect the defendant will delete key files before trial. What application do you make?
A: Apply for an Anton Piller order (search order) under UCPR r 25.20, with affidavit and independent solicitor.
69
Q: What is required when seeking an interlocutory order ex parte?
A. Only the application
B. A damages undertaking
C. Application and candour
D. Just a supporting affidavit
A: C. Application and candour
70
Q: Explain the purpose of a mandatory injunction and when it might be used.
A: A mandatory injunction compels a party to perform a positive act. Used where inaction would cause irreparable harm or to restore a pre-dispute position.
71
Q: What must be included in an affidavit supporting a Mareva order?
A: Substantive claim, value of assets, risk of removal/dissipation, affected third parties, and undertaking as to damages.
72
Prompt: Has a party incurred legal costs during litigation?
Response:
→ Go to s 3 CPA: Costs = fees, disbursements, expenses, remuneration.
→ Governed by CPA s 98 and UCPR Pt 42.
→ Types:
Ordinary basis (s 98(1)(c); r 42.2): Fair/reasonable costs.
Indemnity basis (s 98(1)(c); r 42.5): All costs unless unreasonable.
72
Prompt: Has a Calderbank offer or offer of compromise been made?
Response:
→ Calderbank:
Informal; without prejudice; see Miwa & Freedom v D’Ettorre.
Refusal may = indemnity costs if unreasonable.
→ Offer of Compromise (UCPR Pt 20 Div 4 + r 42.13A–15):
Must be in writing, open 28 days (r 20.26).
Cost consequences depend on trial outcome.
Formal; protected by r 20.26(9).
72
Prompt: Did the winning party engage in disentitling conduct?
→ Court may depart from “costs follow event” (r 42.1; s 98 CPA).
→ Case: Oshlack v Richmond – public interest or misconduct may justify no costs order.
73
What is the difference between indemnity and ordinary costs?
→ Ordinary: Only fair and reasonable costs allowed (≈ 2/3 total).
→ Indemnity: All costs allowed unless unreasonable.
74
Prompt: When does a Calderbank offer attract indemnity costs?
Response:
→ If offer was reasonable and clearly expressed.
→ Refusal by other party was unreasonable.
→ Case: Miwa Pty Ltd v Siantan Properties.
75
Prompt: Under s ___ CPA, courts may award costs on either the ordinary or indemnity basis.
Response: 98
76
Prompt: Under r ___ UCPR, the general rule is that costs follow the event.
Response: 42.1
77
Prompt: A formal offer of compromise must remain open for ___ days if made 2+ months before trial.
Response: 28 (r 20.26(5))
78
Prompt: How did Oshlack v Richmond River Council change the costs landscape?
→ Court held public interest litigation justified departure from usual costs rule.
→ Confirmed discretion under s 98 CPA must be exercised judicially.
79
Prompt: What did Leach v Nominal Defendant clarify about costs-only offers?
→ Even where no liability is accepted, insurer’s costs-only offer can be valid and enforceable.
80
Prompt: Ralph makes an offer of compromise under r 20.26. Glam Homes rejects it. Ralph wins and beats his offer. What are the cost consequences?
→ r 42.14 applies: Ralph likely gets indemnity costs from date of offer.
→ Court discretion still applies (r 42.14(2)).
81
Prompt: Concetta represented herself in costs appeal. Can she recover legal costs?
→ No. Cachia v Hanes + Bell Lawyers v Pentelow: No costs for self-represented litigants.
81
What did Bell Lawyers v Pentelow hold?
→ No Chorley exception in Australia. Self-represented lawyers can’t claim costs.
81
Prompt: How do cost rules encourage settlement?
→ Indemnity costs can apply if fair offers are unreasonably refused.
→ Tools:
1. Calderbank letters (informal)
2. Offers of compromise (formal, UCPR)
→ Supports s 56 CPA – just, quick, cheap resolution.
82
Can a court make a cost order against a solicitor?
→ Yes.
→ s 99 CPA – for serious neglect, incompetence, or misconduct.
→ Sch 2 LPUL App Act – no reasonable prospects.
83
A Calderbank letter is a ___ offer made without prejudice that may affect cost orders.
settlement
84
What did Freedom Development v D’Ettorre confirm about offers?
→ Court won’t punish rejection of premature/unrealistic offer.
→ Indemnity costs depend on reasonableness of rejection.
84
A client wants to dispute a bill of costs. What do they do?
→ Request itemised bill.
→ Apply for assessment under Pt 42, Div 6 UCPR.
→ Assessed by costs assessor at informal hearing.
84
If each party paid their own costs, how would litigation change?
→ More weak claims (no deterrent).
→ Less incentive to settle.
→ Increased court workload.
→ Slightly better access to justice for some.
84
Prompt: Is the pleading defective or improper?
→ Apply UCPR r 14.28 (Strike-Out)
1(a): No reasonable cause of action or defence
1(b): Causes prejudice, embarrassment, or delay
1(c): Abuse of process
🔹 Can be partial or total.
🔹 Judicial caution: Courts prefer letting cases run unless plainly flawed.
🔹 Cases: Banque Commerciale, Markisic
85
Prompt: Does the matter involve a meritless claim or defence?
→ Apply Summary Disposal (UCPR Pt 13)
r 13.1: Summary judgment for plaintiff
r 13.4: Summary dismissal for defendant
→ No triable issue = dismissal
🔹 High threshold: Only “clearest cases” (Cosmos E-C, Brimson)
85
UCPR r ___ allows pleadings to be struck out for disclosing no reasonable cause of action.
14.28
85
Prompt: What’s the difference between strike-out and summary judgment?
Strike-Out → attacks form of pleading (can replead)
Summary Judgment → attacks substance; no real prospect of success
86
How did Williams v Spautz [1992] apply abuse of process?
Used proceedings to pressure the university → improper purpose = abuse of court process under r 14.28(1)(c)
86
A party files a 150-page claim full of wild conspiracy theories. What result?
Likely summary dismissal under r 13.4 for frivolous/vexatious claims (Brimson v Rocla)
87
Has the defendant failed to respond or appear?
→ r 13.6: Dismissal for non-appearance
→ r 16.3: Default judgment (no defence)
→ r 36.16: May be set aside if:
Bona fide defence
Reasonable excuse
Short delay (Dunwoodie, Cronau)
87
Why was Kai’s claim dismissed in Tutorial 9B?
Hundreds of irrelevant pages, no factual connection = summary dismissal under r 13.4 as frivolous and vexatious (Brimson)
87
Is the proceeding stale or unduly delayed?
→ r 12.7: Dismiss for want of despatch
→ r 12.8: Own motion dismissal after 5+ months inactivity
🔹 Case: McKenna v McKenna – delays must not prevent fair trial
87
What is required to overturn a default judgment under r 36.16?
Genuine defence
Explanation for absence
Short delay
Justice favours rehearing (Cronau)
87
Why didn’t Josh meet the threshold for being declared a vexatious litigant?
Only one proceeding – no “frequent” institution of baseless claims under VPA s 6
88
Once declared a vexatious litigant under s 8 VPA, a person must seek ___ before filing any new proceedings.
Leave
88
What’s the test under the Vexatious Proceedings Act 2008 (NSW)?
→ s 6: Proceedings instituted frequently & without reasonable cause, to harass or abuse process
→ s 8: Court may prohibit future proceedings without leave
88
What support exists for self-represented litigants?
Duty lawyers and registrars
Plain language forms (UCPR Sch 2)
Community legal clinics
Judicial guidance
Unbundled legal services
88
What are lawyers' duties to unrepresented opponents?
→ Rule 11, Solicitors’ Conduct Rules:
Avoid taking advantage
Explain procedures
Share key documents
Promote fairness
89
What are the key ways to enforce a judgment under UCPR Part 39?
Writs of execution (Div 1–3)
Garnishee orders (Div 4)
Charging orders (Div 5)
Orders for examination (Part 38)
Instalment orders (Part 37)
Enforcement against land (Div 2)
Orders against third parties
90
How is a judgment debt for money enforced under s 106 CPA?
Writ for the levy of property (s 106(2))
Garnishee order
Charging order (Supreme/District Court only)
91
What is a writ of execution and where is it defined?
Court order authorising the Sheriff to seize/sell debtor’s property. Defined in s 102 CPA as including:
Writ of delivery
Writ for levy of property
Writ of possession
92
A writ of execution is applied for by ___ under rr ___ to ___.
notice of motion, rr 39.1–39.3, UCPR
93
Sam owes $80,000 under a judgment. He hasn’t paid in 4 weeks. Can interest be claimed?
Yes → Under s 101 CPA, interest runs at the prescribed rate after 28 days from judgment unless paid in full.
94
What happens before the Sheriff can enforce against land?
Affidavit verifying writ registration (r 39.21(1))
Statement that goods are insufficient (Sheriff’s advice) (r 39.21(2))
Notice served on debtor
Then proceed to rr 39.22–39.24 for enforcement
95
What is the statute of limitations on enforcing a judgment?
12 years from entry (s 17, Limitation Act 1969)
95
Under s ___ CPA, a judgment must be entered to be enforceable. Entry is deemed under r ___.
s 133; r 36.11(2)
95
How can a creditor obtain financial information about the debtor?
Apply for an order for examination under s 108 CPA
Must attend court and answer questions; must produce documents
Procedure: rr 38.1–38.2 UCPR
96
What is the order of property sold under writ for levy?
What Sheriff deems most efficient (r 39.6(2)(a))
Debtor’s choice (r 39.6(2)(b))
Land is last unless debtor requests otherwise (r 39.6(3))
97
Gina wants to garnish Tom’s wages. What does she do?
Apply for garnishee order under rr 39.34–39.37 UCPR
File notice of motion + affidavit
Order served on garnishee (e.g., employer or bank)
98
What are the two scenarios where instalment orders can be made?
Agreement between debtor & creditor (r 37.1A)
Application by debtor (r 37.2) with affidavit of financial circumstances
98
What are some non-traditional enforcement tools available under the UCPR?
Receivers (r 40.2)
Sequestration (rr 40.2–40.3)
Contempt proceedings (Pt 55 Supreme Court Rules)
98
The Sheriff must have a ___ writ to avoid liability in tort.
valid
98
Why might the Bankruptcy Act 1966 (Cth) affect enforcement?
s 11 BA 1966 limits creditor enforcement once bankruptcy proceedings commence; CPA remedies are subject to federal bankruptcy law.
99
Can a creditor use contempt to enforce a civil judgment?
Yes, but only in limited circumstances (e.g., failure to comply with court order); must use Pt 55 Supreme Court Rules; penalties include fines, imprisonment, or sequestration.
100
What are the types of appeal under SCA s 101?
1. As of right (s 101(1)) – no leave needed
2. With leave (s 101(2)) – required for interlocutory decisions, summary judgment, orders < $100K, etc.
100
What powers does the Court of Appeal have under SCA s 75A?
Under s 75A(5)–(8): Court may rehear case, exercise original court's powers, receive new evidence (on special grounds if post-merits hearing).
100
What must a Notice of Appeal contain under UCPR r 51.18?
Statutory basis, leave status, notice of intention to appeal, whole/part of judgment, specific grounds, orders sought, notice of appearance.
101
What are the appeal books and what do they include?
Red Book – formal docs; Black Book – transcript; Blue Book – exhibits; Orange Book – submissions/chronology. (UCPR r 51.25–51.31)
102
What happens if a party does not comply with security for costs in an appeal?
Under r 51.50(2A), the appeal may be dismissed if a party fails to comply with an order for security for costs.
103
Appeals are by way of ___ under s ___ of the Supreme Court Act.
rehearing; 75A(5)
103
Leave to appeal is required for interlocutory decisions under s ___ of the SCA.
101(2)(e)
103
What is the timeframe to file a Notice of Appeal?
28 days from material date (UCPR r 51.16)
104
What is the difference between a notice of contention and a cross-appeal?
Notice of contention: supports decision on different grounds. Cross-appeal: seeks to overturn part of decision. (r 50.10 vs r 50.11)
104
Under r ___, a Notice of Appeal must include grounds of appeal and orders sought.
51.18
105
Which provision allows new evidence only on special grounds in an appeal?
s 75A(8) SCA and UCPR r 51.51
106
Defne wants to argue both factual and legal errors in a final judgment over $100K. Does she need leave to appeal?
No – final judgment over $100K is appealable as of right under s 101(1) SCA.
106
What procedural document must Defne file to commence her appeal and what must it contain?
A Notice of Appeal under r 51.18. Must state statutory basis, leave, notice of intention, part/whole of judgment, specific grounds, orders sought.
