PROCEDURE Flashcards
LEARN (22 cards)
What is procedural law?
It governs the conduct of proceedings before the court. It consists of ‘rules which are directed to governing or regulating the mode or conduct of court proceedings’.
What are the purposes of procedural law?
To facilitate dispute resolution, uphold the rule of law, manage the flow and conduct of litigants, and deal with the increasing costs of court action.
What are the main statutes governing civil procedure in NSW?
The Civil Procedure Act (CPA) and the Uniform Civil Procedure Rules (UCPR).
How can procedural law be viewed as an instrument of power?
It can empower or disempower groups, affect court access, and substantially advantage those more economically powerful.
What is the foundation of civil procedure law in a settler colonial context like NSW?
British law.
How does the adversarial system function in the context of civil procedure?
The judge has a largely passive role until coming to a conclusion, emphasis is placed on oral arguments, and expenses largely fall on the parties.
What are the primary sources of procedural law in NSW?
The legislature (CPA 2005), the executive (UCPR), and the judiciary (common law).
What responsibility does the CPA give to the court?
Overseeing matters of civil procedure.
What was the key issue in Queensland v JL Holdings Pty Ltd?
Whether a party should be shut out from litigating an issue which is fairly arguable due to case management principles.
What was the High Court’s ruling in Aon Risk Services Australia v Australian National University regarding case management?
The court disapproved of the judgement in JL holdings, noting that speed and efficiency are essential to a just resolution.
What is the Overarching Purpose of the CPA as stated in section 56?
To facilitate the just, quick, and cheap resolution of disputes.
What duty do parties have in relation to the Overriding Purpose?
A duty to assist the court in achieving this purpose.
What powers do courts have under case management principles (ss 57-61 CPA)?
Courts can issue directions to control the progress of cases and encourage early resolution through ADR.
What are the objects of case management as per Section 57 CPA?
The just determination of proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of proceedings at an affordable cost.
What must the Court consider when deciding on orders or directions for the management of proceedings, according to Section 58 CPA?
The dictates of justice, having regard to ss 56 and 57, and may consider factors such as the complexity of issues, expedition of parties, and injustice suffered by parties.
What consequences can arise from failure to abide by court directions (s 61 CPA)?
The court may dismiss proceedings, strike out claims or defences, strike out evidence, direct a party to pay costs, or make other appropriate orders.
What does the CPA outline regarding the commencement of proceedings?
How civil proceedings are started in NSW courts, including rules on pleadings and service of documents.
Under what circumstances can courts summarily dispose of claims (ss 62-67 CPA)?
When claims have no reasonable cause of action or when there is no real issue to be tried.
What powers do courts have regarding costs (ss 98-99 CPA)?
Courts have discretion to order costs, such as the loser paying the winner’s legal fees.
What are Practice Notes?
Guidelines issued by the courts to regulate procedural aspects of litigation and clarify how court rules are applied in practice.
What is inherent jurisdiction?
It allows courts to properly exercise powers and control abuse of process.
Which courts do not have inherent jurisdiction?
Local and District Courts.
