Civil Procedure

Objection to Production:Privilege

Court may: r1.8, ss133 and 138 Evidence Act Inspect documents in order to determine privilege or any other question arising under the rules o Inspect or order production for the purpose of inspection Balance of authority favours a similar CL power to inspect, including power to inspect to determine a claim for public interest immunity: Alister v R (1984) 154 CLR 404 Exercise of power is discretionary Onus is on the party claiming privilege to establish basis for the claim: ASIC v Rich [2004] NSWSC 1089

1.37 Marvea: Fed Court

(A) FC GPN-FRZG (2.20): affidavit should state o - details of judgment or cause of action o - amount claimed o - value of assets o - facts satisfying substantive test o - identify the people / entities to be affected by order (B) Undertaking as to damages - • FC GPN-UNDR (C) Ex parte • If ex parte, affidavit needs to state any possible defences - FC GPN-FRZG (2.19) • Full and frank disclosure needed - Thomas Edison v Bullocks • Duration of order to terminate on return day of App - FC GPN-FRZG (2.9) (D) Service of order • Need to serve on affected persons - FC GPN-FRZG • If outside service Australia, court has jur if assets are within jur of court - 7.37

1.21 Service: Abridged Service

(a) Is matter urgent? • Can get abridged service - 1.12 • Need NoM - 18.1 • Supporting affidavit - 31.2 • Case management princ apply - CPA 56-59 • Crt will consider: o Parties' interests o Likelihood of app being dealt with on accelerated return date o Would abridged service constitute pre-judgment o Nature of claim o Balance of convenience

1.71 Practice Notes NSW

Pre-Judgment Interest = SC Gen 16 4% above cash rate, calculated on half yearly basis Representative Proceedings = Supreme Court Representative Proceedings (SC GEN 17) Commercial List = SC Gen Eq 3 Mediation= SC Gen 6 re mediation Disclosure in Equity = SC Eq 11 Subpoenas = See SC Gen 18 re production and access to subpoenaed material + SC Gen 19 re Proposed Access Orders and return of subpoenas list (SC Gen 19) + DC No.8 re Return of Subpeonas Urgent Applications = SC Eq 8 + SC CL 5 re Common Law urgent applications Freezing Orders = SC Gen 14 Anton Piller = SC Gen 13 Affidavits = SC - PN SC Gen 4 Experts = SC Eq 5 Single Experts = SC Gen 10 Joint Expert Report = SC PN Eq 11

1.65 DC: Discretion to Order New Trial

• 126 of DCA • where o The parties to the action consent; or o In the case of jury trial, a party makes an application for a new trial on the day on which the jury gives a verdict and in the presence of the other party, or in the absence of the other party but after reasonable notice to the other party; or o In the case of trial without a jury, a party makes an application for a new trial on the day on which the judgment is given and in the presence of the other party, or in the absence of the other party but after reasonable notice to the other party and within 21 days of judgment o If no judgment has yet been given, and no verdict entered, the Court may order, on sufficient cause, that the trial be discontinued and a new trial be had

1.66 DC: Right of Appeal to SC

• 127(1) of DCA • Leave required where o appeal is from an interlocutory order, o a costs order only, o appeals where the amount in dispute is less than $100,000, o appeals from summary judgment, and o appeals from consent orders. • In all other cases, leave to appeal is as of right 127(3)

1.67 DC: Appeal after Jury Trial

• 127A of DCA • Applications for setting aside verdict, a new trial or alyteration of verdict are by way of appeal to SC • Lies as of right o Probably duplicative -The same relief can be sought from the DC under s 126, and a denial of that relief can likely be appealed to the SC under 127 (Keramianakis v Regional Publishers (2009) HCA).

1.16 Reply

• 14 days after defence - 14.4(3) • SC or DC can do this as of right - 14.4(1) • LC need leave to file reply - 14(4)(2)

1.12 Commencing Proceedings: Wrong Process:

• 6.5/6.6 • Proceedings wrongly commenced are nevertheless considered duly commenced, but the court may o order that the proceedings be continued as if they had been commenced by summons or SoC and o as if any pleadings filed in the proceedings had been filed as affidavit or vice versa, and o may also make such orders as it thinks fit for the future conduct of the proceedings

1.14 Defence

• Also file LPULAA Sch 2 cert • Enter app by filing notice of app or defence - 6.9 • 28 days to file defence or app - 6.10 • If commended by Sum, need to file app by return date - 6.10 • Must be served as soon as practicable - 10.1(1) • In LC, defence must be served by court - 10.1(2) • Defence: A defence must be filed within 28 days of service of the statement of claim, unless the court directs otherwise UCPR r 14.3 // FCR 16.32

1.24 Service: Substituted

(a) Substituted Service 10.14 • If a document cannot be practically be served on a person, or in the requisite manner, the the Court may, by order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person concerned o Need NoM - 18.1; 18.2 o Need supporting affidavit - 31.2; 10.1 • The document can be deemed served 10.14 (2) o Including personal service 10.14(4) • Application requires affidavit 10.14(3A) o (a) a statement as to the applicant's knowledge of the whereabouts of the person to be served, and o (b) a statement as to any communications that have occurred between the applicant and the person to be served since the cause of action in the proceedings arose o [ideally should also explain why service is not practicable and proposed alternative means] • The availability of substituted service turns on the impracticality of service by normal means, and mere convenience will not suffice Ricegrowers Co-Op v Containerline (1996). • Substituted service cannot be used to overcome the territorial limits of the jurisdiction of the court, and so cannot be used when a person is beyond the jurisdictional reach of the court Laurie v Carroll (1958) HCA). • Method of service must be one which will, in all reasonable probability, be effective to bring knowledge of the proceedings to the person Porter v Freudenberg [1915] KB) (i) Test: o Service cannot be practically effect - ASIC v Sweeney o - need to show evidence of attempts o - need affidavit of attempted service - 35.8 o - need to show more than inconvenience - Amos Removals (ii) Substituted service and land • 10.15 • In proceedings for possession of land, expense, the court may order substituted service by affixing the originating process to a conspicuous part of the land, and such service is taken to be personal service

1.40 Commercial List

(a) Supreme Court: Commercial List • UCPR 45.6 • The following types of proceedings in the SC may be entered in the Commercial List: o Proceedings arising out of commercial transactions; or The critical issue is whether the matters arise out of "ordinary commercial transactions" Malleys Ltd v Horton Investments Ltd (1961) 78 WN (NSW)). • It is not necessary that the parties be merchants or traders, nor must the transaction be common or usual for the parties o Proceedings in which the issue has importance in trade or commerce • Mere convenience will not suffice to justify entry into the Commercial List NRMA Insurance v Flanagan [1982] NSWLR). • The methods available for entry on the commercial list (or the Administrative Law List, the Defamation List, the Possession List, the Professional Negligence List [CL]; the Admiralty List, the Commercial List, the Technology and Construction List, the Protective List, the Revenue List, the Probate List [Eq]) are: o By indicating that the matter is to be added to the Commercial List on the originating process UCPR r 45.1, but subject to SC Eq 3 as below); A matter in the SC commercial list must be commenced by summons UCPR r 6.4(3)). o By order of the SC UCPR r 45.2). • Any party moving for entry of proceedings in the Commercial List shall move by Notice of Motion at the earliest possible time, and any motion shall be returnable before the List Judge on a Friday SC Eq 3). • Proceedings must be filed by Summons with a "Commercial List Statement" setting out o the nature of the dispute, the issues which the plaintiff believes are likely to arise, the plaintiff's contentions, matters suitable to be referred to a referee and whether attempts to mediate have been made and whether the plaintiff is willing to proceed to mediation at an appropriate time (SC Eq 3). • The plaintiff's Commercial List Statement must avoid formality, state allegations with adequate particulars, and identify the legal grounds of the relief claimed • A defendant shall file and serve a Commercial List Response covering the same issues as the plaintiff's Commercial List Statement, • A cross-claim in the SC Commercial List is to be filed by Cross-Summons filed with a Commercial List Cross-Claim Statement \ • Proceedings in the Commercial List may be heard by stopwatch hearing by the Court or a Referee o Any party wishing to have a trial heard by the stopwatch method must notify the other parties is writing prior to the matter being set-down for hearing or reference out. (SC Eq 3). • SC Eq 3 requires parties to do the following in advance of the matter being set-down for hearing or reference-out: o Give careful review to whether the matter is appropriate for mediation or reference out and for use of a single expert. o Be prepared to provide a realistic estimate of the time required for trial and the time required by the party for its evidence and submissions. o Prepare draft consent orders as to timetable, with any later slippage dealt with by further agreement, without the need for court intervention without good reason. • The Usual Order for Hearing in the SC Commercial List

1.22 Service: General

(a) Timing and General Obligation • UCPR r 10.1 • A party that files a document must serve the document on all other parties as soon as practicable after filing (b) Unfiled affidavits • UCPR r 10.2 • Must be served on all other parties a reasonable time before it is used, otherwise the party may not use the affidavit except with the leave of the court.

1.17 Commencing Proceedings: FCA

(i) Commencement • All proceedings are commenced by originating application FCR, r 8.01). • Genuine steps statement - 8.02 (ii) Requirements: • 8.03 • The application must include the relief sought, together with the relevant details set out in r 8.03 depending on the nature of relief sought • Costs need not be specifically claimed, • Exemplary damages must be specifically claimed. (iii) SoC • r 8.05. • An originating application must be accompanied by a statement of claim (if the applicant seeks relief that includes damages) or a statement of clam or affidavit. • An affidavit must state the material facts on which the applicant relies that are necessary to give the respondent fair notice of the case to be made at trial • If damages sought, SOC needed - 8.05(1)(a) (iv) Service: • 8.06 • Applicant must, at least 5 days before the return date fixed by the Registrar, serve a copy of the originating application and SoC or accompanying affidavit personally on each respondent named in the originating application: • Can change return date by applying to Reg - 8.07 • Can use Fast-Track app if commercial case - FC PN CM 8

1.46 Affidavits: FedCourt v NSW

(i) Form: • FCR 29.02(1) expressly provides the form with which affidavits must comply, Form 59 • UCPR 35.1 makes no express reference to the relevant form. Although, note, there is an approved affidavit form, namely, Form 40 (ii) Alterations: • UCPR r 35.5 governs alterations to affidavits. • There is no such provision in the FCR (iii) Certificate: • In the FC, each annexure and exhibit must be identified on its first page by a certificate, which is a separate document (FCR r 29.02(8)). • In the SC, annexures must have a certificate endorsed on the annexure itself, in the same document (r 35.6(2)) (iv) Annexure/Exhibit: • In the FC, copies of any documents exhibited or annexed must be served with the affidavit (FCR r 29.05). • In the SC, annexures should be served with the affidavit (given that they will be annexed), but not exhibits (r 35.6(1)). Instead, if any other party so requires, a party serving an affidavit to which a document is an exhibit must produce or provide the document for inspection (r 35.6(6)). (v) Filing: • Under the FCR, a party must get leave in order to use an affidavit that has not been filed (FCR r 29.07). • There is no such provision in the UCPR - in fact, under r 35.9, affidavits must not be filed except in accordance with leave, rules of court or practice notes. (vi) Service: • Under FCR r 29.08, affidavits must be served at least 3 days before they are intended to be used. • Under the UCPR, affidavits that are filed must be served as soon as practicable (r 10.1), and a party intending to use an affidavit that has not been filed must serve it a reasonable time beforehand (r 10.2). (vii) Scandalous material: • The FCR specifically provides that affidavits may not contain material that is scandalous, frivolous or vexatious; be evasive or ambiguous; or otherwise be an abuse of process (FCR r 29.03). • The UCPR do not make specific provisions for affidavits; however, there is a general provision allowing the court to strike out similarly described material (r 4.15) (viii) Numbering of annexures/exhibits: • In the FC, annexures and exhibits must be numbered sequentially, including across affidavits by the same deponent (r 29.02). • There is no such requirement in the SC. (ix) Blind persons: • FCR r 29.04 provides for the blind to be able to read the affidavit by certain technological means • Whereas the UCPR r 35.7 does not provide specified approved means but refers to the Oaths Act, which provides that the affidavit must be read to the deponent in the presence of the authorised person (x) Who can make an affidavit: • The FCR does not have a detailed section dealing with this • Whereas UCPR r 35.3 is quite detailed as to who may make an affidavit

1.35 Injunction Answer

Accordingly, it would be better to seek the injunction from the Supreme Court, pursuant to s 66 of the SCA (or alternatively, the SC's inherent jurisdiction), given the ambit of the SC's jurisdiction under s 23, which extends to "all jurisidiction which may be necessary for the administration of justice in NSW". May consider going to DC, as limited ability to grant injunction, but there are limits to jurisdiction. As Mr Ngo is commencing urgent ex parte proceedings in the Supreme Court, he will need to comply with s 6.1 of the UCPR, requiring originating process to be filed. Ordinarily, this claim - being proceedings for relief in relation to a tort (trespass) under UCPR 6.3(b) or alternatively proceedings on a claim for possession of land under UCPR (6.3)(f), would require a statement of claim to be filed. However, given the present urgency, Mr Ngo should make an application under UCPR 25.2. Because of UCPR 6.1(2)(b), when making such an application, the UCPR 6.1 obligation to file (and under UCPR 6.2(3), to serve) originating process, is relieved. Instead, Mr Ngo will need to comply with UCPR 25.2, which allows for Mr Ngo to apply for "any injunctive relief" (25.2(1)(c), as if he had already commenced proceedings. However, pursuant to r 25.2(3), Mr Ngo will need to give the court an undertaking that he will file originating process commencing the proceedings within 48 hours (or within such time as the court grants) - which as noted above, will require filing a statement of claim. For the purposes of making the application however, pursuant to UCPR 18.1, any interlocutory application (including an application under 25.2) is to be commenced by motion, unless provided otherwise. The requisite contents of a notice of motion are set out in 18.3. Such a motion is required to be served on each person affected by the motion (18.2), except insofar as it would cause undue prejudice (18.2(2)(b)), which it might in the present case, due to the urgency. On the hearing of such a motion, the court may give directions as to the order of evidence (18.9). In the hearing of the motion, the rules of evidence will apply (EA, s 4(b)), but not the hearsay rule (EA, s 75), provided the party adduces evidence of its sources. Mr Ngo will also need to comply with the requisite practice notes- being SC Eq 8 for equity division, which requires the application to be made to the duty judge. An undertaking should be sought from PPL absent special circumstances, and there are no reasons why such undertakings cannot be sought in concert with preparation of the application. Extremely urgent applications may be made outside 10am-4pm. The test for awarding an injunction is whether (1) a prima facie case for relief has been made out, (2) whether the injunction is necessary to avoid irreparable loss, damages being an inadequate remedy and (3) whether the balance of convenience favours the grant of an injunction (Castlemaine v Tooheys). In this case, I am instructed that there are no grounds for breach of the lease (notwithstanding aggressive correspondence), which is sufficient basis for me to satisfy my ethical obligations under BR 64 (as a result of r 65), which means that Mr Ngo would have a prima facie case for relief. Mr Ngo will be expected to give the usual undertaking as to damages (as defined in UCPR 25.8), which provides that he will submit to compensation to anyone affected by the operation of the injunction. Failure to proffer the undertaking will mean that the balance of convenience will strongly weigh against such an injunction. In the hearing of the injunction application, if it is on an ex parte basis (particularly, if we have been unable to serve Phonominal Pty Ltd), then under both the common law and the Barristers Rules (rule 27), I must be full and frank with the court in respect of any reasons not to grant such an injunction.

1.57 Case Management Principles

Aon Risk Services Australia v ANU overrules Qld v J L Holdings, and highlighted the importance of avoiding unacceptable delay. The focus not just on justice to parties but also consider court resources, other litigants and public confidence in the legal system. This is now reflected in the overriding objective of the "just, quick and cheap resolution of the real issues in the proceeding.": CPA, s 56 (cf 37M in FCCA) Court must give effect to overriding purpose and Parties in civil proceedings are under a duty to assist the court in achieving the objective (3). Lawyers are under duty by their conduct cause a party to be in breach of that duty (4) %%. Failure to do so is taken into account in costs: s 56, and can give rise to personal costs orders s 99 (see also PN SC Gen 5). This objective is further expanded in ss s57 and 58, and parties are under obligations to eliminate delay under s 59 and courts to keep costs proportionate in s 60. · Compliance of Court Orders: Court may order parties to pay costs incurred by one party due to the other's failure to comply with a court order à UCPR r 42.10).

1.72 Practice Notes FedCourt

Appeals = Appeals Practice Notes 1 and 2 (APP-1 and APP-2), re Case Management and Court Books Overseas Service = Overseas Service and Evidence Practice Note (GPN-OSE) Representative Proceedings = Class Actions Practice Note (Fed Court) Subpoenas = Subpoenas and Notices to Produce Practice Note (GPN-SUBP) Injunctions = Usual Undertaking as to Damages Practice Note (FC) Search Orders = FC GPN-SRCH Freezing = FC GPN-FRZG Experts = FC GPN-EXPT Costs = Costs Pracice Note in Fed Court (GPN-Costs) Interest = Interest on Judgments Practice Note (GPN-INT)

1.6 Dispensing with Rules

Court may dispense with UCPR if it "is appropriate to do so": s 14 of CPA Available at any stage of the proceedings or after non compliance with the rules: FAI General Insurance v Southern Cross Exploration NL (1988); Higgs v Thompson Power to give directions in circumstances not covered by rules (s16)

1.41 Summary Disposition: Types

Disconitnaunce - 12 Withdrawal - 12 Due Despatch - 12.7 Summary Judgment (Application by plaintiff)- 13.1 Summary Judgment (Vexatious)- 13.4 Summary Judgment (Non-Apparance of Plaintiff) - 13.6 Strike out of pleadings (no cause of action, prejudice, abuse of cause) - 14.28 Default Judgment - 16.2-3 Set Aside Default Judgment: 36.15-18 Separate questions - 28.2-28.4 No case to answer/judgment for want of evidence - 29.9-10

1.60 Structure of CPA

Dispense with rules: s 14 Commencement and Splitting: ss 19-24 (see also UCPR Part 6) Mediation: 25-34 (see UCPR Part 20) Arbitration: 35-55 (see UCPR Part 20) Case Management Principles: 56-60 Case Management Powers: 61-73 (see UCPR 2.1) Incapacity: 74-80 (UCPR 7.14-7.18) Interim Payments: 81-84 (UCPR 15.18) Protection against self-incrimination: 87 ## Judgments: 90-97 (UCPR 36) Costs: 98-99 (UCPR 42) Interest: 100-101 (UCPR 6.12) Enforcement: 102-138 (UCPR 39) Transfers under ss 139-149 (UCPR 44) Representative Proceedings: 155ff

1.5 Cross-Vesting

Jurisdiction of Courts (Cross-Vesting) Acts 1987 Section 4 of the Cth Act vests the jurisdiction of the Federal Court and Family Court in civil matters in the State Supreme Courts, including the NSWSC, where the Supreme Courts would not otherwise have jurisdiction over those matters. Transfer of Proceedings is set out under s 5 of Cth Act Court's duty under s 5 is to transfer the matter to the most appropriate forum :James Hardie v Barry (2000) NSWLR). A court may transfer proceedings under s 5(7) of the Act on application, or on its own motion or on application of the Commonwealth, State or Territory AG. Certain "special federal matters" must be transferred to Federal Court. s 6 Meaning of "Special federal matters" is in s 3

1.4 Jurisdiction of LC

Jurisdictional limit : 100,000 Gen Div, $ 10,000 Small Claims Div: s29(1) (the two disvisions are set up under s 10 of LCA). This may be expanded with consent under s 31. Has jurisdiction to hear and determine money claims, and proceedings for recovery of detained goods, value of goods and claimed consequential damage under JL No authority to administer the rules of equity: Buzera v Mezan Enterprises No jurisdiction to grant injunctions

Setting Aside Subpoena grounds

May set aside a subpoena in whole or in part or grant other relief: r33.4(1) Notice to issuing party and other parties: r18.2 o Grounds Abuse of process: Commissioner for Railways v Small Insufficient particularity in description: NEMGIA v Waind [1978]; Commissioner for Railways v Small • Potential relevance is speculative: Cosco Holdings v Commissioner of Taxation ( • Burdensome or unduly oppressive. Balance between burdens on third parties and proper exercise of statutorily mandated function: Southern Pacific Hotel Services v Southern Pacific Hotel Corp [

1.38 Anton Piller

Note limits under s 128 of EA re self-incrimination (a) NSW Procedure • App made by NoM - 18.1 (i) See also • SC Gen 13: • Purpose of order is to preserve important evidence pending hearing and determination of the applicant's claim in the proceedings • Search orders are an extraordinary remedy • Applicant will usually have to undertake to pay costs of independent solicitor • The independent solicitor retains custody of all things removed from the premises until delivered to the court • Ordinarily, search order should be served between 9 and 2 on a business day to allow respondent to seek legal advice • Undertaking as to damages • Order must be clear about max no of people who can enter premises - SC PN Gen 13 (7) • Application should be made on motion with affidavit setting out: o Description of the things in relation to which the order is sought; o Address and location of premises to be searched; o Reasons the order is sought; o Prejudice, loss or damage likely to be suffered, o Name of an independent solicitor who will conduct the search; o If residential premises are involved, whether the only occupant of the premises is likely to be a female, child under the age of 18 or vulnerable person (as defined) o Ex parte applicant must make full and frank disclosure, including as to defences (Thomas Edison v Bullock(

1.45 Affidavit defects and service

Party using a non-served affidavit but serve it no later than a reasonable time before it is required to be used , otherwise cannot be used without leave: 10.2 Court may grant leave to use affidavit despite any regularity in form: UCPR 35.1. See also CPA s 63 regarding curing defects, but note case management principles. But an affidavit cannot be filed unless it is in accordance with the rules: UCPR 35.9 Court may dispense with UCPR if it "is appropriate to do so": s 14 of CPA

1.2 Jurisdiction of FCA

Statutory court, Ch III federal court created by Parliament under s71 of Constitution No inherent jurisdiction Has only such powers as are expressly conferred by statute, impliedly conferred by statute, incidental and necessary to the exercise of the jurisdiction/powers so conferred Court of law and equity: s 5(2) of FCCA • The original jurisdiction of the FC is as vested under laws of the Cth Parliament FCA, s 19). • Section 39B of the Judiciary Act confers original jurisdiction on the FC in any matter: o (1) In which a writ of mandamus or prohibition is sought against an officer of the Commonwealth; o (2) Where the Commonwealth is seeking an injunction or declaration; o (3) Arising under the Constitution; o (4) Arising under any laws made by the Commonwealth Parliament, other than matters as to criminal prosecution. • This means that section 39B confers jurisdiction on the FC to determine matters arising under the Cth law even of the law does not specifically vest jurisdiction in the FC pursuant to s 19 • The FC has no inherent jurisdiction, but has implied jurisdiction to prevent an abuse of process Jackson v Sterling Industries (1987) HCA).

1.13 Commencing Proceedings: SoC/Summons Requirements

o 6.12 o Must specifically state the relief claimed, and any question calling for the determination of the court. o Exemplary and aggravated damages must be specifically claimed. o An order for interest up to judgment must be specifically claimed ( o A summons is to specify a return date (set by the court or obtained from the registry), 6.15 must be served on the defendant not less than 5 days before the return date, except in the case of service outside NSW when the return date is to be not less than one month after service o Tell D to file defence - 6.13

1.32 Injunction: Procedure

o Applicant must give an undertaking to the court to file originating process within 48 hours after the application is granted or with such time as the court orders o Draft SOC and NoM needed - 25.2(3); 18.1 Give Undertaking given that draft SOC will be filed in 48 hrs - 25.2(3) If not in position to file SOC, then NoM should be filed with a short form summons - 25.2 o Supporting affidavit - 31.2; 10.1 o Hearsay rule won't apply but need to adduce evidence of sources - EA 75 o App can be made before entering appearance - 6.1 o Full candour needed if ex parte - Thomas Edison v Bullock • an undertaking to the court to submit to such order as the court may consider just for the payment of compensation to any person affected by the operation of an interlocutory order 25.8

1.33 Injunction: SC Eq 8

o Application should ordinarily be made to the duty judge (ascertained from the registry or court website), o ought to be made during court sitting hours or regular business hours. o Extremely urgent applications may be made outside 10am to 4pm by contacting the Associate to the Duty Judge or the Security Officer of the Supreme Court of NSW and applications made out of hours may be subject to an additional fee o Best practice is to afford notice of motion to other parties under UCPR r 18.2, however such notice is not required where it would cause undue delay or prejudice to the person seeking the order. o Nevertheless, Court expects the moving party to have sought undertakings from the defendant prior making any such application absent special circumstances o Need accurate estimate of timeframe for hearing • Remember hearsay admissible EA, s 75)

1.11 Commencing Proceedings: Summons Needed

• (r 6.4) • Proceedings in which there is no defendant; • Proceedings on an appeal or leave to appeal (other than proceedings assigned to the CoA); • Proceedings before the Supreme Court under s 69 of the SCA (writs of mandamus, prohibition or certiorari); • Proceedings for preliminary discovery; • Proceedings on a stated case; • Proceedings for the approval of a settlement or compromise under s 75 of the CPA; • Proceedings on an application to transfer order under Pt 9 of the CPA; • Proceedings (other than a claim for damages) made under any Act (except the CPA 2005); • Proceedings on an application to the court, other than on an application under the SCA, DCA or LCA that may properly be made in existing proceedings; • Any other proceedings required to be made by summons pursuant to the rules (UCPR r 6.4(1)). • Proceedings in the Supreme Court that the applicant intends to be entered into the Commercial List or the Technology and Construction List are to be commenced by summons (UCPR r 6.4(3)).

1.10 Commencing Proceedings: SoC Needed

• 6.3 • Proceedings must be commenced by statement of claim if it is a claim o For a debt or liquidated claim; A liquidated claim is any claim that can be ascertained by calculation or fixed by any scale of charges or other positive data (High Court in Spain v Union Steamship Co of NZ (1923) HCA). o In relation to a tort; o Based on an allegation of fraud; o For breach of duty (however arising) where damages claimed are for death, personal injury or damage to property; o In relation to a trust (other than an express trust wholly in writing); o For possession of land; o Under the Property (Relationships) Act o For defamation

1.69 Sc: Appeal Procedure

• 75A of SCA o an appeal from a single judge of SC under s 101 is by way of rehearing o CoA has all of the remedial powers of the Court below, o CoA may receive further evidence in the appeal. o CoA exercise of powers under s 75A is to determine whether the decision below was correct, recognising both Fox v Percy (2003) HCA the comparative advantages of the trial judge in experiencing the course of the trial, and the limitations inherent in every trial o However, after this, if CoA determines that the decision below made an erroneous finding of fact, the CoA may give effect to its own conclusion under s 75A Fox v Percy (2003) HCA). • A court may receive "further evidence" (i.e., evidence arising prior to trial but not adduced at trial) only on "special grounds". 75A(7)-(8) • the procedure for establishing special grounds for further evidence is by an application by motion, UCPR 51.51 o provides that the grounds must be stated in an affidavit, and evidence establishing the special grounds must be given by affidavit • No such grounds are necessary for "fresh evidence", being evidence arising after trial s 75A(9) • Powers of Judge of Appeal set out in s 46

1.73 Specialist Lists SC

• (A) Real Property List (SC EQ 12) • (B) Commercial Arbitration List (SC EQ 9) • (C) Administrative and Industrial Law List (SC CL 3) • (D) Defamation List (SC CL 4) • (E) Possession List (SC CL 6) • (F) Corporations List (sc eq 4) • (G) Revenue List (SC Eq 9)

1.26 PS Generally effected by

• (UCPR 10.21) • leaving a copy of the document with the person, or • putting the copy down in the person's presence and telling the person the nature of the document • Exception for violence or threat of violence near as practicable • Personal Service on person carrying on business under unregistered business name: 10.9 • Personal Service on person carrying on business under registered business name: UCPR r 10.10 • Personal Service of Limited Partnership: 10.11 • Personal service on corporation: 10.22 • Solicitor: 10.13

1.28 Interlocutory Motions

• An interlocutory or other application is to be made by motion: s 18.1 • Such a motion needs to be filed and served on each person affected: 18.2(1) • Personal service required for non-active parties/non-parties: 18.5 • Requirements of Motion: 18.3 o Identify person seeking order o Identify person affected by order o Address for service (if affected party is not active) o Relief sought o Costs needed not be specifically claimed • Service: Three days before date fixed for motion (the return date): 18.4 • Can then be dealt with in partie's absence (ex parte): 18.7 • Applications at hearing: 18.6 • Supporting affidavit needed (examination in chief by affidavit): 31.2 • If filed: Supporting affidavit must be served in reasonable time before return date: 10.1 • If not filed: Supporting affidavit to be served in reasonable time before the occasion for its use: 10.2 • Hearsay rule does not apply to interlocutory hearing, provided evidence of source of PR is included - EA 75

1.39 Anton Piller: FedCourt Procedure

• App made by Interlocutory App - 17.01 • Supporting affidavit - 17.01(1)(b) o FC GPN-SRCH (2.8): affidavit should state - description of things sought - address of premises - why order is sought prejudice if order is not made - details of independent solicitor - any vulnerable persons on premises • Undertaking as to damages - FC GPN-SRCH (2.18) (i) Ex parte • If ex parte, affidavit needs to state any possible defences - FC GPN-SRCH • Full and frank disclosure needed - Thomas Edison v Bullocks (ii) Order • If order made, need to appoint independent solicitor - 7.46 • Order must be clear about max no of people who can enter premises - 7.45 • Executed between 9am - 2pm business day - FC GPN-SRCH (2.13) • Order should preserve liberty to apply on short notice - FC GPN SRCH

1.36 Mareva Orders

• App made by NoM - UCPR 18.1 // 17.01 FCR (i) SC Gen 14: • Freezing orders are exceptional in nature • Purpose of freezing order is to prevent frustration or abuse of process of the court, not to provide security in respect of a judgment or order • Duration should be limited to a return date when the respondent will have an opportunity to be heard, • applicant bears onus of proving orders should continue • Freezing order should reserve liberty for respondent to apply at short notice • Orders should usually exclude dealings by respondents with its assets for legitimate purposes • Usual undertaking as to damages will usually be required • Full and frank disclosure is required in ex parte applications o Including of possible defences • Application for freezing order should be accompanied by affidavit stating: o Information about the judgment obtained or cause of action, including basis for the claim, amount of the claim and possible defences, o Details of the respondents assets, o The basis for the "real risk" of frustration or abuse of process, and o The identity of any person who may be affected by the order Test : P must show Prima facie cause of action against D Danger that P, if successful, will not have the judgment debt satisfied: Patterson v BTR Engineering (1989) 18 NSWLR 319 ; Hayden v Teplitzky (1997) 74 FCR 7

1.68 Dc: Appeal Procedure

• Appeals under ss 127 and 127A are assigned to COA SCA, s 48 o So procedure is same for DC appeals to CoA - through 51 • Stays: 128 o Appeals do not automatically stay o But DC may order that judgment be stayed, provided that an appeal is brought and security for the judgement debt and appeal costs is given to the satisfaction of the registrar • Parties Consent: 129 • An agreement between the parties that a DC ruling, order or direction will be final is binding and no appeal will lie to the Supreme Court in those circumstances

1.20 FCA: Reply

• Applicant may file reply 14 days after being served defence - 16.33

1.29 Interlocutory Motions: FCA

• Application to be made by Interlocutory App - 17.01 • Supporting affidavit needed - 17.01(1)(b) • To be served 3 days before return date - 17.01(2) • Short service may be sought - 1.39 • Affidavit not needed if party wants to rely on correspondence or other docs - 17.02 • Proof of service established by affidavit of service - 29.02 • If party served, can be heard ex parte - 17.03 • Hearsay rule does not apply to interlocutory hearing, provided evidence of source of PR is included - EA 75 • Must state specifically what relief is sought - 17.01(1)(a)

1.62 Contempt

• Civil Contempt = disobedience of court orders, though where deliberate, can also be criminal contempt (Australiasian Meat Industry Employee's Union) • Criminal Contempt = Obstruction of court proceedings/interference with administration of justice (R v Dunabin) • Contempt in face of the court = interference with or obstruction of due administration of justice, generally limited to what judge, saw, heard or sensed in Court Room (European Asia Bnak v Wentworth). It is criminal in nature, requires proof BRD (Whitlam v Holloway). Courts can punish on their own motion: SCR Pt 55 r 2; DCA, s 199; LCA, s 124; FCR r 42.02 • Contempt not in face of the court requires an application must be made (SCR, Pt 55 rr 6-8; FCR, r 42.11-12) • The LC and DC have no jurisdiction over contempt not committed in the face of the court, but may refer such cases for hearing in the SC (DCA, s 203; LCA, s 24)

1.54 Special Costs Rules

• Costs can be awarded against lawyer if costs have been incurred by serious neglect, incompetence, misconduyct, improperly, without reasonable cause, in circumstances for which they are responsibeL: s99 of CPA (regulated by PN SC Gen 5). Note the conflict issues this creates • Amendment: Party that amends pleadings without leave must, after conclusion of the proceedings, pay the cost of and occasioned by the amendment UCPR r 42.6) • Costs of interlocutory Applications: Unless court otherwise orders, costs of interlocutory applications are to be paid or otherwise dealt with in the same way as the general costs orders in proceedings ("costs in the cause" or, if only one party is entitled to recover if ultimately successful, plaintiff's/defendant's costs in the cause) UCPR r 42.7) • Compliance of Court Orders: Court may order parties to pay costs incurred by one party due to the other's failure to comply with a court order UCPR r 42.10). • Failure to attend court: Court may order any person who fails to attend court as ordered to pay the costs occasioned by the default UCPR r 42.27). -Costs are payable following dismi9ssal of proceedings: r 42.20

1.58 Judgment Powers

• Court is to give such judgment and make such order as the nature of the case requires CPA, s 90 • Cross-Claims: Where there is a cross-claim by a defendant, the court may give judgment only for the balance of the sum awarded on the respective claims, or • may give judgment in respect of each claim: CPA, s 90(2)). • Dismissal of proceedings: does not, subject to the terms on which any order for dismissal was made, prevent the plaintiff from bringing fresh proceedings (or claiming the same relief in fresh proceedings) s 91 (except where court dismisses proceedings following a determination on the merits) • A judgment for possession of land: takes the place of a judgment for the claimant in ejectment: CPA, s 92). • Judgment for possession of land is enforced: s 104. • In proceedings for the detention of goods, court may order delivery of the goods, payment of an amount equivalent to the value of the goods, or delivery or payment at defendant's option: s 93. • Instruments: court may make an order that a be executed or instrument endorsed by such person as the court nominates, and a document executed in the manner ordered operate as if executed by the person originally ordered to execute it CPA, s 94). • Joint Liability: CPA s 95 1 • Set Off: Where opposing parties are entitled to a judgment debt against the other, the parties may apply to have the judgments set-off against each other: CPA, s 96 • Arrest: If a court by subpoena or otherwise requires a person to attend court for any purpose or to produce a document or thing to the court, and the person fails to do so, court may issue a warrant for the person's arrest: CPA, s 97). 2 • Fulfil duties: The Court may order any person to fulfil any duty in the fulfilment of which the person seeking the order is personally interested: s 65 of SC 3• SC has power to grant remedy by way of writs of prohibition, mandamus, certiorari (s 69 of SCA) and declarations: s 75 4• SC may grant relief against forfeiture: s 73 of SCA

1.27 Pleading Amendment

• Court may amend documents at any time (CPA, s 64). • Pleadings can be amended without leave within 28 days of filing - 19.1 (1) • If after 28 days, need leave - 19.1(1) o NoM needed - 18.1 o Supporting affidavit - 31.2; 10.2 • When considering leave, court will consider CPA ss56-59 • Key cases: JL Holdings / Aon v ANU • Crt can disallow amendment on application by party - 19.4 • Amendment without leave, may have to pay costs thrown away by other party - 42.6 • Late amendment can give rise to personal costs orders s 99 (see also PN SC Gen 5).

1.48 Subpoenas

• Court may issue subpoena or order attendance / prod docs - CPA 68 ## • If person present in court and compellable, court can require person to give evidence - EA 36 • The court may by subpoena or otherwise order a person to attend court for examination, or produce a document or thing to the court, or both UCPR 33.2 • Subpoena, subpoena to attend to give evidence, subpoena to produce defined in UCPR 33.1 • Leave to issue subpoena required when person issuing is not represented by solicitor UCPR 7.3 • Need to show proper forensic purpose - Samootive • Leave required in SCD LC - 7.3(3) • In DC, subpoenas must be issued as early as possible - DC PN Civil 1 . Sub to be served on all parties within 7 days of issuance - DC PN Civil 8 • An issuing officer must not issue a subpoena if The court has made an order, or if there is a rule, preventing the subpoena from being issued, or requiring leave to issue the subpoena or The subpoena requires the production of a document or thing in the custody of the court or another court UCPR 33.2 • Requirements of subpoena: (form, address, date, time, place for attendance/time/date for production, identitification of subject of production) UCPR 33.3 • Service: 5 days required for service UCPR 33.3 • Subpoena must be served personally on the addressee UCPR r 33.5 • Issuing party must serve a copy of the subpoena to produce on each other active party as soon as practicable after the subpoena has been served on the addressee UCPR r 33.5(2) • SEPA, s 29 allows the service of subpoenas anywhere in Australia. • Compliance: Comply in two ways: attend on return date or send doc 2 days in advance of RD - 33.6(4) • Calling on subpoena: • Subpoena to be called on where not produced in advance - 33.6(4)(b) • If no objection, make access app - 33.9 • Access orders: Parties cannot access docs until access orders made - 33.9; SC Gen 19(12) • Court may require issuing party to pay reasonable costs of the addressee in complying with a subpoena UCPR r 33.11; FCR r 24.22.

1.61 Structure of FCAA

• Court may make declarations: s 21 • Court may grant all remedies to which parties may be entitled under law or equity for final determination: s 22 • Court may make interlocutory orders or direct writs as court thinks appropriate: s 23 • Court has power to punish contempt of court: s 31 • Representative Proceedings set out in Part IVA • Vexatious Proceedings under Part VAAA • Overriding Objective of just resolution of disputes according to law as quickly, inexpendsively and efficiently as possible: s 37M(1). Set out in further detail under s 37M(2), and the practice and procedure provisions must be interpreted and applied in way that best promotes overarching purpose: s 37M(3) • Parties are obliged to act consistently with overarching purpose: s 37N. Lawyers must on party's behalf take account of that duty and assist the party: s 37N(2) %%, and court can order personal costs if failure to comply s 37N(5) • Court has power to give directions about practice and procedure: s 37P • Otherwise practice anmd procedure is in accordance with FCR: s 38 • In civil trials, no jury: s 39 • Court may award costs: s 43(1) in their discretion (2), including any of the orders under (3) • Formal defects do not invalidate proceedings: s 51 • Pre-judgment interest awarded under s 51A (post judgment under s 52) • FCA has same powers of enforcement as SCs: s 53 • FCA may order proceedings to arbitration, mediation or ADR: s 53A • Mediation privilege ## under s 53B and protection under s 53C • Arbitration Awards enforceable under s 54 • Referrals to referees under s 54A • Power to order seucirty for costs given under s 56 • Receivers can be appointed under s 57

1.53 Costs: Ordinary vs Indemnity

• Court may order that costs be paid on an ordinary basis or an indemnity basis - CPA, s 98) • Unless Court orders otherwise, costs are to be assessed on the ordinary basis UCPR r 42.2). • "Ordinary costs" are defined in the CPA and UCPR as party/party costs under Div 3 of Pt 7 of the AA, being those which are assessed as fair and reasonable for the work concerned. • costs may be ordered on an indemnity basis under CPA s 98, and potentially under the court's incidental powers to control its own processes Walton v McBride (19995) NSWLR). • Where a court determines costs to be paid on an indemnity basis, all costs (other than unreasonable costs) are to be allowed UCPR 42.5 o Onus of proof key distinction between ordinary v indemnity - Friend v Brien (No 2) o except in the case of costs payable out of property held by a party as an executor or fiduciary, in which case all costs are to be paid (except costs incurred through a breach of the fiduciary's duty) (a) Indemnity costs awarded: o Party that disputes a fact or authenticity of a document the subject of a notice to admit under rr 17.3-17.5 must pay costs on an indemnity basis if that fact is ultimately proved or admitted for costs incurred in proving that fact or document's authenticity UCPR rr 42.8-9). o See also offer of compromise rules (UCPR rr 42.14-15A) o Personal costs against lawyer - CPA 99(2)(c) (b) Examples of situations in which indemnity cost awards are appropriate include: o Where a party misled the court (Wentworth v Rogers) o Maintaining proceedings where plaintiff should have known there were no real prospects of success (Fountain Select Meats (Sales) PL v International Produce Merchants PL) o Proceedings maintained for an ulterior purpose (Cutlus Petroleum NL v OMV Australia PL [1999] NSWSC)

1.50 Setting Aside Subpoena/NTP

• Court may, on application by notice of motion by a party or any other person having sufficient interest, set aside a subpoena in whole or in part or grant other relief in respect of it UCPR r 33.4, FCR r 24.15 o may be made by a party "any person having sufficient interest", Crt will look at connection between docs sought and applicant - Compsyd v Streamline Travel o includes the recipient of the subpoena (Witness v Marden (2000) NSWLR) Comm Railways v Small o NoM must be filed if subpoena is contested - Subpoena List PN 1 (A) Grounds for objecting to a subpoena • are grounded in abuse of process, bearing in mind the overriding purpose of the CPA and the UCPR ("just, cheap and quick") (CPR s 56, UCPR r 2.1): o Substiute for discovery: A subpoena is not a substitute for discovery and must identify the documents required to be produced with reasonable particularity Cmr for Railways v Small ((1938) NSW); Waind o Irrelevance: A subpoena may be objected to where there is no reasonable cause to expect that the documents sought will be relevant to proceedings Cosco Holdings PL v Cmr of Taxation (1997) ATR). o No legitimate forensic purpose - Portal Software o Oppression " Set aside is appropriate where a subpoena is an abuse of process, where it is overbroad and oppressive (NEMGI v Waind [1978] NSWLR. It is oppressive to place upon a stranger the obligation to form a judgment as to what is relevant to the issue joined in a proceeding, to which he is not a party. Hence it is an abuse of the use of a subpoena to impose this obligation. (NEMGI v Waind [1978] NSWLR). o Improper purpose: for some spurious purpose, such as to inspect the documents in connection with other proceedings, or for some private purpose, or in collusive proceedings to give them publicity. (NEMGI v Waind [1978] NSWLR). o Alternative statutory procedure - R v Hurle-Hobbs o Contrary to Harman undertaking - Lemery Holdings • Note may also object to production on the basis of Privilege - UCPR 1.9; EA 131A ##

1.42 Summary Judgment: Power

• Crt can give summary judgment - CPA 90 • Conditional Orders o Court may make conditional orders disposing of the claim unless certain conditions are met. (CPA, s 86) • Crt can make order for summary judgment on terms - CPA 86 • UCPR: 13.1 o Requires evidence of facts on which the claim is based evidence that defendant has no defence to the claims (except on damages) o Court can give judgment with damages to be assessed • NoM needed: 18.1; 18.2 • Supporting affidavit: 31.2; 10.1 • EA 75 applies • Can set aside under 36.15 and 36.16 • Appeal: Need to leave to appeal to CoA against sum judg - SCA 102(2); DCA 127(2)

1.15 Cross-Claim

• Crt has power to grant relief under cross-claim - CPA 22 • File within 28 days (if commenced by SOC) - 9.1(1) • File by return date (if commenced by Sum) - 9.1(1) • Use cross-statement of cl / cross-sum where necessary - 9.1(2) • Personal service not required - 9.6 • Crt can give judgment for balance of clam and cross-claim - CPA 90(2)(a) • Crt can give judgment separately for each claim - CPA 90(2)(b)

1.74 District Court Specialist Lists

• Defamation List (PN 6) • Sexual Assault Case List

1.8 Preliminary Discovery: FedCourt

• Description of Respondent: Where o an applicant has made reasonable inquiries but o has been unable to ascertain the description of the person (defined using the same terms as "identity or whereabouts" under the UCPR) for purposes of commencing proceedings, the FC may make an order of preliminary discovery against a person with knowledge or possession of documents tending to assist in ascertaining the description: FCR, r 7.22). • Prospective Respondent: Where o it appears to the FC that there is reasonable cause to believe that the applicant may be entitled to relief, and o after making reasonable inquiries, the applicant does not have sufficient information to determine whether to commence proceedings, and o there is reasonable cause for believing the prospective respondent has in its possession documents relating to the applicant's entitlement to relief, the court may order preliminary discovery of those documents: FCR r 7.23). • Costs: Court may make orders as to costs for the applicant, respondent and any person producing documents, including costs of the proceedings and in complying with an order for preliminary discovery: FCR, r 7.29).

1.52 Cost: General

• FC has general power to order costs in any proceeding (FCA, s 43) • Court has a broad discretion to award costs, including powers to award costs on an ordinary or indemnity basis, to award interim costs and to order costs in gross or proportionate terms. (CPA, s 98). o Oshlack • The general rule is that costs follow the event UCPR r 42.1 (Oshlack) o Successful party usually gets costs - Yazgi v Permanent o Party must have been actually successful - Hansen v Monterey o If no merits determination, no event has occurred - Lai Qin o But may still get costs if other party's conduct unreasonable - Lai Qin • Court has a general discretion to depart from the general rule where "it appears to the court that some other order should be made" UCPR r 42.1 eg o - prof discourtesy - Araf Capital o - conduct cause delay - Dr Douglas o - P recovers only nominal damages - Oshlack o - Govt not 'model litigant' - Mahenthirasa o - Litigation in public interest - CSR v Eddy o Where the case was a test case and the successful party is considerably advantaged, or o Where the successful party encouraged the litigation. • Costs to be proportionate to the importance and complexity of dispute - CPA 60

1.75 Federal Court Specialist Lists

• FCA has "National Practice Area Practice Notes • (A) Administrative and Constitutional Law and Human Rights Practice Note (ACLHR-1) • (B) Admiralty and Maritime Practice Note (AM-1) • (C) Commercial and Corporations Practice Note (C&C-1) • (D) Defamation Practice Note (Sub Area ithin Other Federal Jurisdiction National Practice Area) (DEF-1) • (E) Employment and Industrial Relations (E&IR-1) • (F) Intellectual Property Practice Note (IP-1) • (G) Native Title • (H) Tax

1.18 FCA: Defence

• File notice for address of service by return date - 5.02 • File defence within 28 days of service - 16.32

1.43 Summary Judgment Tets

• General principle is that a merits hearing must be held unless the absence of a cause of action or defence is "clearly demonstrated" General Steel Industries Inc v Cmr for Railways (1964) HCA). o test is whether the claim or defence is "so obviously untenable that it cannot possibly succeed" (General Steel Industries Inc v Cmr for Railways (1964) HCA). • Court must exercise "exceptional caution" before granting summary relief Webster v Lampard (1993) HCA). • Applicant bears the onus Singh v Barinder Kaur (1985) ALR). • Summary disposal is inappropriate where there is any serious conflict between the parties as to matters of fact (Sidebottom v Cureton (1937) WN (NSW) or law General Steel Industries Inc v Cmr for Railways (1964) HCA). • HOWEVER Court may decide questions of law on summary judgment Esanda Finance Corp v Pear Mawick Hungerfords (1997) HCA). • Defence so obviously untenable that cannot possibly succeed - General Steel • Where real Q to be tried, not open for court to intervene - Dey v VRC • But: developing jurisprudence re 13.4 that General Steel test no longer applies o Might only need to show defence has no reasonable prospects of success - Simmons v NSW Trustee per Hammerschlag J o But still unclear, so still need to satisfy General Steel - Walker v Sydney Uni per Harrison J • Applicant bears onus - Fancourt v Mercantile Credits • Commercial List still takes v strict view of summary judg app: SC PN Eq 3 (62)

1.55 Bullock v Sanderson Orders

• Gould v Vaggelas: o Reasonable for P to proceed against successful D2, and o Conduct of unsuccessful D makes it fair to impose liability on D1 for costs of D2 • The overriding consideration for the exercise of the discretion to make a Bullock or Sanderson order is whether, as between the contending parties, it is proper to order the successful party's costs to be paid by a particular unsuccessful party: Johnson's Tyne Foundry PL v Maffra Corp (1948) HCA). • The discretion is differently expressed but the basic requirement is that the claims against the parties are sufficiently interdependent in the sense that the conduct of the unsuccessful defendant has led the plaintiff to conduct proceedings against a third party (Gould v Vaggelas (1985) HCA). (a) A Bullock order • is where an unsuccessful defendant's costs liability to the plaintiff includes the plaintiff's cost liability to a successful defendant in the same proceedings: Bullock v London General Omnibus Co (b) A Sanderson order • is where an unsuccessful defendant is ordered to pay a successful co-defendants costs directly; Sanderson v Blyth Theatre Co o Useful where D1 is insolvent o Eliminates unnecessary admin and procedural steps - Coombes v RTA

1.70 Grounds of Appeal: Jury Trials

• Grounds of Appeal -Jury Trials: ss106-108 Supreme Court Act • A must establish a ground of appeal involved an error in the trial proceedings: o Mistake in the admission or rejection of evidence, or in directing the jury, where such error has brought about a miscarriage of justice: Buggv Day(1949) o Jury's verdict such that reasonable people, properly directed, could not have found on evidence: Swain v Waverley Council (2005); Hocking v Bell (1947) o Jury misconducted itself: David Syme& Co Ltd v Swinbourne(1909) o Where there has been surprise, perjury or discovery of fresh evidence: Rowe v Australian United Steam Navigation Co Ltd (1909) o Denial of justice in the conduct of the trial: Stead v State Government Insurance Commission (1986)

1.7 Preliminary Discovery: NSW

• Identity Discovery: a person can seek preliminary discovery as to a person's "identity or whereabouts" 5.1 • Court may order preliminary discovery where: 5.2 o The applicant has made reasonable inquiries and o Applicant is unable to sufficiently ascertain the identity or whereabouts of the person for the purpose of commencing proceedings; o Some person other than the applicant may have information or a document or thing that tends to assist in ascertaining the other person's identity or whereabouts o Application to be made by summons (or NoM if proceedings on foot) 5.2(8) Preliminary Discovery: Court may order preliminary discovery against prospective defendant of all dcuments relating to applicant's entitlement to relief if under UCPR 5.3 o The applicant may be entitled to a claim for relief; o The applicant has made reasonable inquiries; o The applicant has been unable to ascertain sufficient information to determine whether or not to commence proceedings; o The prospective defendant may have possession of a document or thing that can assist in determining whether the applicant is entitled to a claim for relief; o Inspection of the document or thing would assist the applicant in determining whether or not to commence proceedings Non-parties: Where it a non-party may have possession of a document that relates to any question in the proceedings, the court may order discovery of all documents relating to that question to the applicant: UCPR 5.4 • Requirements for Preliminary Discovery: UCPR 5.8 • Applications must be supported by affidavit • Applications must be personally served • Court may make orders as to costs for the costs of any party, including the payment of conduct money, costs in relation to the proceedings, cost of production and the costs of compliance

1.3 Jurisdiction of DC

• Inferior Court of Record: s 8 of DCA • Has a jurisdictional limit of $750,000: s 4 • In common law, actions must be under $750k (in total or after admitted set off), but has unlimited jurisdiction for work injury or motor accident claims: s 44. Can be extended by 50% if parties consent: s 51 • No action re title to land where value of land exceeds JL: s 48 • Has jurisdiction to grant injunctions in any action: s 46 • In equity, has jurisdiction for Specific kinds of proceedings under 20k (property, fraud, estates, trusts) (s 134). Has jurisdiction for equitable claims under JL ( s 134(1)(h). DC has power of the supreme court in these claims: s 137 (which will include injunctions). • DC has power of temporary injunctions for apprended trespass or nuisance or contract (for consideration less than $20k), for less than 14 days: s 140. DC has all the powers of SC in respect of these injunctions: s 141

• 1.59 Judgment Enforcement

• Judgment debts enforced by writ of levy of property, garnishee order or charging order: CPA 106 • Writs for the levy of property • Against goods: CPA 109 • Against securities: CPA 111 • Against land: CPA 112 • Garnishee orders • Against debts: CPA 117 • Against wages or salary: CPA 119 • Against rental income, if owners corp: CPA 122C • Charging orders against specific security interests: CPA 126

1.47 Types of Disclosure

• NTP before hearing: 21.10 • NTP at hearing: 34.1-3 • Subpeonas: 33 • Prelim Disclosure: 5.1-8 • Discover: 21.1-8 • Interrogartories: 22

1.9 Commencing Proceedings: Generally

• Need LPULAA Sch 2 cert [cite from ethics] • No step without filing SOC or Sum - 6.1 (unless bringing motion under UCPR 25.2) • Commencement: An action may be commenced by filing a statement of claim or a summons: UCPR r 6.2(1)). • Originating process must be served on each defendant: UCPR r 6.2(3)). o Originating process is valid : UCPR r 6.2(4)). in the SC and LC for 6 months after filing, and in the DC for one month after the date of filing • Failure to serve within time limit does not prevent filing of new originating process to commence fresh proceedings: UCPR r 6.2(5)). • REMEMBER Court has a general power to extend or abridge any time fixed by the UCPR: UCPR r 1.12 • Manner of service? o Personal (SC / DC) - 10.20 o Personal, left at address, or LC to service (LC) - 10.20 • Need affidavit of service - 35.8; Form 41

1.25 Service: Personal - When Required

• Only required in certain circumstances: 10.20 o Generally not required 10.20(1) o Required for in SC or DC • Originating process • Order for examination • Garnisshee order For LC • Originating process can be left at residential or business addressed with person or can be posted to business or residential address from LC • Order for examination + Garnisshee order can be left at residential or business addressed with person For DC or LC subpoenas • can be left at residential or business addressed with person or can be posted to business or residential address (A) Also required for SC where • Subpoena: 33.5 Preliminary discovery • NOM on parties without appearance or third parties: 18.5 • Cf. Ordinary Service In SC o Affidavits o Notices to produce o NoM, on parties who have entered appearance - 18.5

1.44 Set Aside Default Judgement:

• Power: 36.16 o NoM - 18.1; 18.2 o Supporting affidavit - 31.2; 10.1 • Excludes default judgment granted in open court • Requires notice and affidavit setting-out grounds for the default and any defences on the merits o Need a draft defence annexed to affidavit - Saunders v Hammond • Basis for setting it aside: 36.15: o Irregularity o Illegality o Breach of good faith o Consent • Power is discretionary and standard is to balance the competing interests of the plaintiff and the defendant and to determine whether or not the interests of justice require the defendant be permitted to contest the plaintiff's claims (Reinehr Industrial Lease & Finance v Jordan (1974) NSWCA). • Relevant factors in exercising discretion: o Regularity of the judgment (is there evidence to suggest it has been entered for more than is due?), o Reasons for default (including whether plaintiff warned the defendant that it would seek default judgment). o Delay in seeking to have the judgment set aside (given the timing considerations in CPA, s 58 and UCPR Pt 2), o Whether the delay has cause prejudice to the plaintiff, and o Defendant's prospects of success on the merits. • If the default judgment has been properly obtained, defendant will have to show (by affidavit or otherwise) that they have a good defence on the merits and to explain the default Vacuum Oil Co PL v Stockdale (1942) SR NSW).

1.56 Case Management Powers

• Remember to cite Aon 1 • Court may dispense with UCPR if it "is appropriate to do so": s 14 of CPA 2 • The court may give such directions or make such orders for the just, quick and cheap disposal of proceedings: UCPR 2.1 (3 similarly, may give directions or order what steps it thinks fir for speedy determination of the real issues: s 61). Failure to comply with a direction can result in strike-out of claim or defence, dismissal or proceedings, disallowance or rejection of evidence, and cost orders 4 • Court may abridge or extend time periods: UCPR 1.12 • Court may make directions as to the conduct of the hearing provided that the parties be afforded a fair hearing s 62 o This includes the order in which evidence is given and addresses made, the order in which questions of fact are to be tried, and the duration of evidence, 5 • Court may take steps to allow procedural irregularities to be cured, or may set aside proceedings, judgments or orders obtained through procedural irregularity: CPA, s 63). • Court may amend documents at any time (CPA, s 64). • Court grant leave to amend enable P to maintain proceedings affected by limitation period - CPA 65 • Court may adjourn proceedings at any time (CPA, s 66) • Court may stay proceedings (CPA, s 67) • Court may issue subpoena or order attendance / prod docs - CPA 68 6 • Court may dispense with the rules of evidence for proving any matter not bona fide in dispute, and with such rules of evidence as give rise to expense or delay, CPA s 70 ## • Court may require any party to make admissions with respect to any document or question of fact (CPA, s 70) • Court may close court in interlocutory proceedings - CPA 71 • Court may order defendant make interim payments - CPA 82 (see 83-84) • Court may make orders on its own motion or application - CPA 86 • Court can give self incrimination certificate - CPA 87 ##

1.19 Fca: Cross-claim

• Resp can file cross-claim - 15.01 • Commenced by notice of cr-claim - 15.02 • Notice of cr-claim filed same time as defence - 15.04 • Accompanied by SOCC - 15.06 • Notice of cr-claim to state relief - 15.07 o To be served as soon as reasonably practicable - 15.08

1.31 Other interim powers

• SC may appoint receiver: s 67 • SC may order damages in lieu of injunction or specific performance: s 68 (Lord Cairns Act damages)

1.30 Injunction: Power

• SC: s 66 of SCA o Court may by injunction restrain any threatened or apprehended breach of contract or other injury (even if it is not actionale yet: s 66(2)). o Cour may grant injunction in any proceedings at any time it considers it just and convenient to do so: s 66(4) • SC has unlimited jur - SCA 23 • DC: • DC can grant inj ancillary to its CL jur - DCA 46 • DC can order temporary inj - DCA 140 • FC: FC may make interlocutory orders it thinks appropriate - FCA 23

1.51 Security for Costs

• See UCPR 42.21 • Impecuniosity of the plaintiff is generally not a sufficient basis for ordering security for costs (Cowell v Taylor (1885) Ch). • Procedure: NoM - 18.1; 18.2, Supporting affidavit - 31.2; 10.1, • Should state how much costs will be - Idoport v NAB • Corporations Act, s 1335 provides a statutory exception to that rule in the case of impecunious plaintiffs that are corporations. • Principles governing an order for security for costs are as follows (from KP Cable Investments PL v Meltglow PL (1995) FCR): o Request should be made promptly and early in proceedings, o The strength and bona fides of the applicant's case are relevant considerations, o Whether the applicant's lack of funds was caused by the respondent's conduct subject of the claim, o Whether the respondent's application for security is oppressive, in the sense that it is being used merely to deny an impecunious applicant a right to litigate, o Whether making the order would stultify the plaintiff's ability to bring proceedings, o Whether the conduct complained of is properly characterized as self-help by the defendant. • See UCPR 42.21(1A) factors (after jurisdictional threshold has been met) • Other rules provide for security is specific circumstances including for preliminary discovery UCPR r 5.6) and appeals UCPR r 51.50). • SC has power to stay proceedings - CPA 67

1.1 Jurisdiction of SC

• The Court shall have all jurisdiction which may be necessary for the administration of justice in NSW S 23 of SCA: • Is superior court of record: s 22 • SC has equitable and common law jurisdiction: s 57 of SCA • Empowered to finally determine any issue arising in the proceedings and to grant "all such remedies as any party may appear to be entitled to in respect of any legal or equitable claim": s63 • Three divisions: Appeal, CL and Equity: s 38 • Business is assigned between CL and equity divisions under UCPR 1.18 and 1.19 • Inherent jurisdiction : Superior court of record, responsible for administration of justice, its jurisdiction is wide and incapable of being confined to defined and closed categories: Reid v Howard

• 1.49 Subpoenas: FedCourt

• The court may by subpoena or otherwise order a person to attend court for examination, or produce a document or thing to the court, or both FCR 24.12 • Cannot be issued without leave FCR 24.01 (cf UCPR) • Remember: If person present in court and compellable, court can require person to give evidence - EA 36 • An issuing officer must not issue a subpoena if the court has made an order, or if there is a rule, preventing the subpoena from being issued, or requiring leave to issue the subpoena, or the subpoena requires the production of a document or thing in the custody of the court or another court FCR 24.12 • Requirements of subpoena (form form, address, date, time, place for attendance/time/date for production, identitification of subject of production): FCR 24.13 • Subpoena must be served personally on the addressee: FCR r 24.16 • Obligation to comply: FCR 24.17 • Subpoena to be called on where not produced in advance - 24.17(4) • If no objection, make access app - 24.20(3) • Parties cannot access docs until access orders made - 24.20 • Inspection or removal of docs not permitted unless uplift order made - FC GPN-SUBP (8) • Court may require issuing party to pay reasonable costs of the addressee in complying with a subpoena: FCR r 24.22. • Court may, on application by notice by a party or any other person having sufficient interest, set aside a subpoena in whole or in part or grant other relief in respect of it , FCR r 24.15

1.23 Means of service

• UCPR r10.5 • A person may be served: o By personal service, or o By posting a copy or leaving a copy of the document addressed to the person at their address for service, or if they are not an active party in the proceedings, at their residential or business address, o In the case of a corporation, in any manner in which service of a document may be served on a corporation. o In the case of a person whose address for service is a solicitor's office, service may be effected by DX, fax or email. (a) Alternate Means of Service • 10.6 • Parties may agree to alternative means of service (b) Retrospective Service • If already served, can get service confirmed - 10.14(3) (c) Waiver of Objection 10.19 • Filing document in response to document incorrectly served waives objection to service

1.34 Injunction: Test and Obligations

• Whether applicant has established a "prima facie case" and "probability of success at trial" in the sense that there is a "probability that the plaintiff will be entitled to relief at trial" (ABC v O'Neil (2006) HCA); and • Whether order should issue on the "balance of convenience" between the parties, given the potential impact to each party of granting or not granting the order • The test - Castlemaine Tooheys v South Australia • Serious question to be tried (ie, is there a reasonable cause of action?) - ABC v Lenah Game Meats • Irreparable harm • Balance of convenience • Give undertaking as to damages (25.8) • Note duty of candour

1.63 Appeals: General Principles

• Will usually refrain from disturbing a conclusion of a state Supreme Court on matters of court rules, practice and procedure: Roy Morgan Research Centre Pty Ltd v Cmrof State Revenue (Vic)(2001) 207 CLR 72 • Is reluctant to interfere with decisions made in courts below on procedural matters which are ordinarily best left to the court seized of the proceedings: Adam P Brown Male Fashions Pty Ltd v Philip Morris Ltd(1981) 148 CLR 170 • Decisions made in the exercise of discretion vested in the court below will not lightly be set aside on appeal: House v R(1936), Norbis v Norbis(1986) • For an appeal court to intervene in the exercise of discretion, A must show error -acted upon a wrong principle, took into account irrelevant matters, failed to take into account relevant considerations, relevant error of fact, or judge reached a result that is plainly unreasonable or unjust: House v R (1936) 55 CLR 499 • Courts will be slow to interfere with the discretion of a trial judge, and will generally only do so where the exercise of the discretion miscarried: Frugtniet v STNSW[1999], House v R (1936) • Appellate court will interfere in exercise of discretion where refusal to grant an adjournment will result in a denial of natural justice: Frugtniet v STNSW[1999]

1.64 Leave to Appeal: SC

• s 101(1) of SCA o an appeal shall lie to the Court of Appeal from any judgment or order of the Court in a Division • Leave Required in Certain Circumstances: 101(2) • Order regarding amendment or judgment or orders regarding clerical slips: 2(a) • Judgment with consent or parties: 2(c) o provision only applies where the order is the result of a contractual bargain between the parties, not merely acceptance of the court's proposed order Aldham v Brown [1890] WN). • Costs: 2(c) o Under s 76 of the SCA, costs are a matter for the discretion of the court, subject to any other provision of the Act. • Interlocutory judgments or orders (2(e) • Final Judgment or order where matter in issue is less than $100k (2(r)) • Judgment correcting clerical mistake • Summary judgment (2(l)) • Winding up corp (2(n)) • The exercise of leave to appeal not subject to rigid rules of practice or extensive criteria, but leave should only be granted where there are substantial reasons Johnson Tiles v Esso Australia (2000) HCA). • For small appeals, below the $100,000 threshold, the issue will be whether the statutory policy underlying the leave requirement is outweighed by the nature and significance of the alleged error Gurr v Robinson (1986) NSWCA per Kirby P). • For interlocutory judgments or orders that are mere matters of practice and procedure, leave usually not granted, but there are exceptions (Itek Graphix v Elliott (2002) NSWCA) eg where an appeal is justified by the exceptional circumstances of the case or where the interlocutory order will effectively determine the substantive rights of the parties · Parties can object to competency of appeal under UCPR 51.41; failure to do so may trigger costs consequences