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Flashcards in Practice and Procedure Deck (28)
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1
Q

Under what section does the Federal Court have power to make interlocutory orders?

A

FCA s 23

2
Q

Under what section does the Supreme Court have the power to grant injunctions?

A

SCA s 66

3
Q

What is the District Court’s jurisdictional limit, and under what section can it be found?

A

$750,000; DCA s 4

4
Q

Which section sets out the District Court’s common law jurisdiction?

A

DCA s 44

5
Q

Under what section can the District Court grant injunctions, and in what circumstances?

A

DCA s 140
Injunction to prevent threatened or apprehended trespass or nuisance
Injunction to prevent breach of negative stipulation in contract, consideration for which does not exceed $20,000

6
Q

What are the jurisdictional limits of the General Division and Small Claims Division of the Local Court? What section sets out these limits?

A

General Division: $100,000
Small Claims Division: $10,000
LCA s 29

7
Q

In what circumstances can you appeal from a Local Court decision as of right?

A

General Division to Supreme Court on question of law: LCA s 39(1)
Small Claims Division to District Court on grounds of lack of jurisdiction or denial of procedural fairness: LCA s 39(2)

8
Q

In what circumstances is leave required for a subpoena?

A

Unrepresented litigant in NSW: UCPR 7.3(1)
Small Claims Division of Local Court: UCPR 7.3(2)
Federal Court: FCR 24.1

9
Q

National Employers Mutual General Insurance Association Ltd (NEMGIA) v Waind
What are the relevant principles?

A

A subpoena or notice to produce is not a substitute for discovery
Documents sought must be identified with reasonable particularity
A subpoena or notice to produce must not serve as a fishing expedition

10
Q

Commissioner for Railways v Small

What are the relevant principles?

A

A subpoena or notice to produce can be set aside for having no legitimate forensic purpose or for being an abuse of process

11
Q

Seven Network v News Ltd

What is the relevant principle?

A

A notice to produce can be set aside on the same grounds as a subpoena
Notice to produce can be set aside for lack of relevance

12
Q

What limits apply to notices to produce in personal injury claims?

A

Party not required to comply with notice to produce in relation to document or thing that has not been referred to in originating process, pleading, affidavit or witness statement filed or served by that party, unless the court orders otherwise

13
Q

How do notices to produce differ from discovery, and what is a case to cite in this respect?

A

Cannot use notices to produce as means of obtaining further and better discovery
Tony Azzi Automobiles Pty Ltd v Volvo Car Australia [2006]

14
Q

In which circumstances will a person not be required to comply with a subpoena under the Criminal Procedure Act? Which section applies?

A

Person not required to produce document if not specified or sufficiently described in subpoena, or if person named would not be required to produce in a subpoena in the NSWSC
CrPA s 225

15
Q

Iovanescu v McDermott [2004]

What is the principle of this case?

A

Prima facie the rules of court must be observed

16
Q

Under what section can a person abandon an amount in excess of a jurisdictional limit?

A

CPA s 23(1)

17
Q

Unconventional Conventions v Accent Oz (2004)

What is the principle of this case?

A

A second mediation may be ordered where circumstances have substantially changed since the first mediation

18
Q

What privileges apply to mediation sessions and associated documents? What is the relevant provision?

A

Evidence of anything said or admissions made in a mediation section is not admissible in any proceedings before any court or body
Documents prepared in relation to a mediation session are not admissible in any proceedings before any court or body
CPA s 30(4)

19
Q

789Ten v Westpac (2004)

What is the principle of this case?

A

Material obtained by voluntary disclosure at mediation can be incorporated into pleadings and proved by other admissible evidence in proceedings

20
Q

What are the principles of CPA s 56(1)-(4)?

A

(1) : Overriding purpose of CPA and rules is to facilitate just, quick and cheap resolution of real issues in proceedings
(2) : Court must seek to give effect to overriding purpose
(3) : Party to civil proceedings is under duty to assist court to further overriding purpose
(4) : Solicitors, barristers and other persons with relevant interests must not cause parties to breach duties under (3)

21
Q

Aon Risk Services v ANU

What are the relevant principles?

A

Importance of avoiding unacceptable delay in case management
Consideration of court resources, other litigants and public confidence in legal system as considerations in case management

22
Q

Bi v Mourad [2010]

What are the relevant principles?

A

ss 56-60 set up a system that requires court to turn away ‘reluctant gladiators’
Proceedings can be dismissed for want of due despatch having regard to ss 56-60 factors

23
Q

Expense Reduction Analysts Group v Armstrong Strategic Management and Marketing

A

‘Satellite’ interlocutory proceedings inconsistent with ss 56-60

24
Q

What is the relevant principle of CPA s 58(1)?

A

In deciding whether to make order or direction, and terms of order or direction, court must seek to act in accordance with dictates of justice

25
Q

What does CPA s 64 cover?

A

Amendment of documents

At any stage, court may order that document be amended or grant leave to any party to amend document in proceedings

26
Q

In what circumstances will a legal practitioner be liable for unnecessary costs? Which section covers this circumstance?

A

CPA s 99
Serious neglect, serious incompetence or serious misconduct of legal practitioner
Costs incurred improperly or without reasonable cause in circumstances for which legal practitioner responsible

27
Q

Which practice note covers matters relevant to a personal costs order? Which factors are relevant?

A

PN SC Gen 5
Failure to give appropriate advice to client; failure to observe listing procedures, rules and directions; failure to ensure readiness for trial; failure to provide reasonable estimates of length of hearings; failure to comply with timetable or provide notice of adjournment

28
Q

In what circumstances under the UCPR is a notice of appearance or originating process not required? Which provision sets these out?

A

UCPR 6.1(2)
Where defendant applies to set aside originating process
Where defendant makes application in relation to setting aside or enforcement of judgment
Where plaintiff applies for order in urgent case before commencement of proceedings