Tests

Question 1

Discover party to find unknown defendant

Answer 1

1) bona fide claim likely to succeed
2) relationship between plaintiff and person sought to be discovered
3) only practical way to get info

Question 2

Confidentiality orders

Answer 2

1) necessary to prevent real and substantial risk to administration of justice
2) beneficial effects outweigh deleterious ones

Question 3

Effective service

Answer 3

Person knew or or reasonably should have known they were being sued, and general nature of claim

Question 4

Summary judgement on pleadings

Answer 4

Plain and obvious that claim discloses no reasonable cause of action, assuming everything claimed is true

Question 5

Jurisdiction

Answer 5

Real and substantial connection (rebuttable presumptive factors: resident, business, tort, contract)

Question 6

Forum non conveniens

Answer 6

Clearly more appropriate

Question 7

Recognition of foreign judgements

Answer 7

Real and substantial connection

Question 8

Granting amendment

Answer 8

Unless bad faith or prejudice not compensated by costs

Question 9

Severance

Answer 9

Benefit of severing outweighs benefit of leaving joined - are all claims inextricably bound up with each other?

Question 10

Misjoinder

Answer 10

Not same transaction or series of transactions?

Question 11

Consolidation

Answer 11

Balance of convenience

Question 12

Intervenor status

Answer 12

Any of:

1) interest in subject
2) adversely affected by outcome
3) ought to be bound
4) public interest

Question 13

Compulsory joinder

Answer 13

Party must be necessary to action, and adding them must not cause prejudice that can’t be compensated

Question 14

Cause of action estoppel

Answer 14

1) final judgement
2) Same Parties
3) Same cause of action

Question 15

Issue estoppel

Answer 15

1) final decision
2) Same Parties
3) Same issue or question
4) equitable result

Question 16

Abuse of process

Answer 16

Same as cause of action or issue estoppel, with “same parties” requirement not quite met

1) oppressive or vexatious
2) violate PFJs underlying fair play and decency

Question 17

Solicitor-client privilege

Answer 17

1) communications with lawyer acting in capacity as lawyer
2) seeking legal advice
3) intended to be confidential

Question 18

Litigation privilege

Answer 18

Document

1) created for the
2) dominant purpose of
3) reasonably contemplates litigation

Needs crystallisation date (case-by-case)

Question 19

Case-by-case privilege

Answer 19

1) communication in confidence
2) confidence essential to relationship
3) relationship should be protected in the public good
4) weighing

Question 20

Modify implied undertaking

Answer 20

Public interest outweighs privacy/efficiency

Question 21

Summary judgement on evidence

Answer 21

1) no material factual matters in dispute

2) respondent doesn’t still have real chance of success at trial

Question 22

Question of law

Answer 22

1) necessary facts can be found/resolved Without trial
2) determination will reduce length/cost of proceedings
3) no inconsistent findings

Question 23

Default judgement

Answer 23

1) proper service
2) time for filing defence expired
3) no defence filed

If prothonotary: 4) judgement is for damages only (or liquidated demand)

Question 24

Setting aside default judgement: discretionary basis

Answer 24

1) fairly arguable defence

2) reasonable excuse for delay

Question 25

Want of prosecution

Answer 25

1) Inordinate and inexcusable delay

2) caused substantial is of impossibility of fair trial

Question 26

Settlement privilege

Answer 26

1) litigious dispute in existence or contemplation
2) Express or implied intention of non-disclosure
3) purpose is to attempt to effect a settlement

Question 27

Striking jury notice

Answer 27

Either of:

1) rule or law prevents jury
2) justice requires judge alone (complexity, practical constraints€

Question 28

Fresh evidence on appeal

Answer 28

1) wasn’t available at time of trial
2) is Relevant
3) is credible
4) would impact result if believed

Question 29

Stay of execution pending disposition of appeal

Answer 29

1) arguable issue raised
2) irreparable harm
3) balance of convenience (comparative harm to parties)

OR: exceptional circumstances

Question 30

Class action certification

Answer 30

1) reasonable cause of action
2) identifiable class
3) common issues of fact or law
4) preferable procedure