Beruflich Dokumente
Kultur Dokumente
Table of Contents
LAWS5215 CIVIL EXAM NOTES.................................................................................1
2
JURISDICTION...................................................................................................2
DEFENDANTS RESPONSE...................................................................................17
PLEADINGS/AMENDMENT..................................................................................21
CASE MANAGEMENT.........................................................................................25
DISCLOSURE...................................................................................................28
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11
COSTS.......................................................................................................... 40
JURISDICTION
2.1
What is jurisdiction?
2.2
Jurisdiction is the authority which a court has to decide matters that are litigated before it or to take
cognisance of matters presented in a formal way for its decision: Wardley Australia ltd v Western
Australia(1992) per Toohey J.
Steps to Solve Jurisdiction Question
(ii)
Arising under any laws made by the Commonwealth Parliament;
(iii)
Of Admiralty and maritime jurisdiction;
(iv)
Relating to the same subject matter claimed under the laws of different states.
iii. Matters arising under the constitution and its interpretation (High Court - s30 JA)
(Federal Court - s39B(1A)(b) JA);
iv. Original jurisdiction conferred on High Court by parliament under s76(i) of the
Constitution: GO TO STEP 1(a)
2. If not mentioned in s 51 of Constitution it will be State Jurisdiction (Go to STEP 1(b))
3. If both Go to STEP 1(c).
c. Suits between the Cth, or any person suing on behalf of the Cth, against a state,
or any person being sued on behalf of a state;
d. Suits by a state, or any person suing on behalf of a State, against the
Commonwealth or any person being sued on behalf of the Commonwealth;
e. Matters in which a writ of mandamus or prohibition is sought against an officer
of the Cth or a federal court.
b. Under the actual statute, giving rise to the cause of action: eg. s138B, Competition and
Consumer Act (see Legislation)
c. Cross vesting legislation: s4(1)(c) Jurisdiction of Courts (Cross Vesting) Act 1987
a. Filing an unconditional notice of intention to defend under r 135 (or conditional notice
becoming an unconditional notice due to lapse in time r 144(5)): Perkins v Williams (1900),
b. Express agreement in contract that a particular court will have jurisdiction: Vogel v
Kohnstamm(1973); mere choice of law does not amount to submission: Dunbee v Gilman &
Co (1968)
2.3
3
3.1
a. Advantages binding and final determination; make sure statutory limitation is not an issue
once claim is issued by registrar; tactical move to make a point to the other side
b. Disadvantages takes time; expensive; adversarial process; does not take into account
broader interests of parties; rights based; litigation risk; public process; reputation at risk.
3. Factors to consider when advising to go to ADR
a. Complexity of case
i. If case is complex, use arbitration
b. Conflict history between the parties
i. If there is a history of conflict between the parties, use conciliation
c. Clients priorities and the reason for those priorities;
i. True issue may be disappointment about bad contractual relations; might be better to
use conciliation and mediation
d. Attitudes and capacity of the parties
i. If parties incapable of negotiating reasonably, it might be the case that ADR is not
worthwhile
3.1.2 Duties to the court
1. The solicitors paramount duty to the court trumps its duties to the client; the following duties are
relevant:
a. The solicitor must not commence proceedings for an ulterior purpose: White Industries v
Flower & Hart
i. White Industries v Flower & Hart: FACTS: White Industries was building a
shopping centre for a developer. White Industries was to be entitled to payment at
stages during the building of the shopping centre. White Industries had put in a
number of claims about progress payments. The developer wanted to minimise its
payments and so went to their law firm, Flower & Hart. Flower & Hart advised its
client to commence proceedings against White Industries, alleging fraud as a tactical
advantage against White Industries. The trial went for 154 days. White Industries
were successful and the developer was insolvent. White Industries sued Flower and
Hart, wanting to recover their costs. HELD: Court made a costs order against Flower
and Hart. The jurisdiction to order costs against an unsuccessful partys solicitors is
enlivened when they have unreasonably initiated or continued an action when it had
no or substantially no prospects of success.
ii. Steindle Nominees: A barrister had made an application to extend time. The
successful party wanted to obtain costs from the barrister. HELD: The court found
that the barrister had not acted on insufficient evidence. It is counsels duty to decide
whether there is any point which can be argued. There is a difference between
presenting a case that is barely arguable (but arguable nevertheless) versus a case
that is plainly unarguable.
iii. Levitt v Commissioner of Taxation: The barrister made an argument about the
constitutionality of a certain provision of an act to delay his clients bankruptcy. The
Federal Court made an order against the barrister. HELD: The court may make a costs
order against the lawyer if the conduct amounts to a serious dereliction of their duty
or is commenced for an ulterior purpose.
b. The solicitor must not initiate a case which is bound to fail or unarguable: Ashby v Cth (No
4)
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i. Williams v Spautz (1992): Where commence proceeding with no legal foundation, the
proceedings may constitute abuse of process and may be struck out/stayed.
3.1.3 Pre-proceeding procedural requirements
3.2
Consider:
o Pre-proceedings protocols: eg. Personal Injuries Proceedings Act 2002 (Qld)
o Pre-proceedings resolution obligations: eg. Civil Disputes Resolution Act 2011 (Cth)
Solicitors must attest in documents that they have made reasonable attempts to settle: s4 Civil
Disputes Resolution Act 2011
Ensure compliance with obligation in relation to disclosing estimate of costs of legal work to client
and costs estimate: (see topic on Costs)
Limitation Periods
3.2.1 Objectives
3.2.2 Sources
3.3
3.3.1 Objectives
1. Claim;
2. Application;
3. Notice of Appeal;
4. Notice of Appeal requiring leave.
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Need adequate description of parties on originating process: r 17; Cameron v National Mutual Life
Association of Australasia Ltd (No 2)
o Exceptions:
Incapacitated party; or
Child
o Anonymity not granted:
J v L & A Services Pty Ltd (No 2): An application was made against their employer,
alleging that they had both contracted AIDS. The couple was concerned about the
effect that publicity would have on their family and children. HELD: Court held that
they had to be identified in the interests of justice. Loss of privacy, distress, financial
harm or collateral disadvantages are not sufficient reasons for anonymity.
4.1
Purpose of service
1. In actions in personam, service founds the courts jurisdiction: Laurie v Carrol
2. Provides notice to the defendant: Ainsworth v Redd (Kirby J)
3. Instigates the steps in a civil proceeding
4.2
Renewal of Claim
1. Claim not effective until filed and served: r 22(3) (See Topic 3 Commencement)
a. Claim must be served within 12 months of filing in court: r 24(1)
b. Register may renew the claim for a maximum 1 year period if: r 24(2)
i. reasonable efforts have been made to serve the defendant; or
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ii. there is another good reason to renew the claim: Gillies v Dibbetts
Consider: Muirhead v Uniting Church
length of delay;
reasons for delay;
i. attempts to serve other party
ii. disability of client
conduct of other parties;
i. whether defendant has been actively evading service
prejudice caused to plaintiff by refusing renewal;
i. whether limitation period has expired
prejudice caused to defendant by granting renewal.
There is a tendency to relax rigid time limits where that is legally possible and
where it can be done without prejudice or injustice to other parties: Muirhead
v Uniting Church
The discretion may be exercised although the statutory limitation period has
expired: Muirhead v Uniting Church
There is a wide and unfettered discretion and there is no better reason for
granting relief than to see that justice is done: Muirhead v Uniting Church
c. If not served within 12 months, the Claim is stale
d. Courts leave must be obtained if the plaintiff is seeking to renew a stale claim 5 years from
when it was originally filed: r 24(4).
e. If claim renewed it will be effective 1 yr from date it was supposed to be served: r24(6)
4.3
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ii. Agent, may be given authority to accept service: Montgomery Jones & Co v
Liebenthal (QLD)
b. Where no person who can accept service - post to last known postal address of defendant:
Bradvica
c. Public advertisements in newspaper in the region where the particular person allegedly
resides: Cook v Dey
d. Service by social media where plaintiff can bring proof that this will be effective in
bringing the document to the attention of the defendant: Citgroup v Weerakoon
i. Judges have expressed uncertainty over service by social media:
Uncertainty of facebook pages, the fact that anyone can create an identity that
could mimic the true identity and indeed some of the information that is
provided there does not show with any real force that the person who created
the facebook page might indeed be the defendant, even though practically
speaking it may well indeed be the person who is the defendant: Citgroup v
Weerakoon
ii. Must prove that the message will reach the real defendant:
Defendants had failed to make loan agreements, MKM had obtained default
judgment and needed to personally serve the judgment. MKM attempted to
personally serve the judgment and applied to the court for substituted service
via facebook. MKM produced evidence that they had two profiles matching
the names of the defendant, the date of birth and email addresses matched
those of the defendant, the defendants were mutual friends, and there was
regular access to the sites by the defendant. The court ordered service by
social media: MKM Capital v Corso
iii. Service of an injunction via twitter: Blaneys Blarney order
4.4
Service of documents other than originating process (within and outside Queensland)
4.5
14
Applies to other interlocutory processes (eg. defence, reply, request for trial date)
Ordinary service generally means sending or delivering the document to the partys address for
service: r 112 (see UCPR)
Service outside Queensland must be in accordance with the Service and Execution of Process Act
1992 (Cth) (SEPA): r 123
An originating process issued in a State can be served in another state: s 15(1) SEPA
Service on an individual must be effected in the same way as service of such an originating process
in the place of issue: s15(2) SEPA.
Other issues:
There is no longer a need to show a connection between the proceeding and the state in which
the proceeding is brought, before process can be served interstate under SEPA: s21 SEPA, s5
Jurisdiction of court (Cross Vesting) Act 1987)
Initiating process includes claim and application: s3 SEPA
Proof of service is essentially the same as the Queensland rules: s11 SEPA
Service on Individuals is the same as required under r 105/106: s15 SEPA
4.6
15
Service on Corporations is the same as required under s109X of Corporations Act: s9 SEPA
Must attach a Form 1 notice under the SEPA rules: s16 SEPA
A failure to do so is merely an irregularity
Court can order substituted service on the defendant outside of Queensland : r 116(4)
An originating process may be served on a person outside Australia without leave if:
Must meet procedural requirements, otherwise service is not effective and can be set aside:
R126 UCPR; Carroll v Laurie
The cause of action arose in Queensland (requirement of a connection): r 124(1)(a) (see
UCPR for other grounds)
Property located inside jurisdiction: r 124(1)(b)(i); BHP Petroleum Pty Ltd v Oil
Basins Ltd
Documents affecting property located in the jurisdiction: r 124(1)(c); BHP
Petroleum Pty Ltd v Oil Basins Ltd
Defendant domiciled or ordinarily resident within jurisdiction: r 124(1)(d)
Administration of estates: r 124(1)(e)
Execution of trusts: r 124(1)(f)
Contract: rr 124(1)(g)-(i)
Meaning of contract: Earthworks & Quarries Ltd v F T Eastment & Sons Pty
Ltd; Nominal Defendant v Motor Vehicle Insurance Trust of Western
Australia
Contract made within the jurisdiction: r 124(1)(g)(i); Entores Ltd v Miles Far
East Corporation
Contract made by agent in the forum: rr 124(1)(g)(iii), 118; BHP Petroleum
Pty Ltd v Oil Basins Ltd
Contract subject to law of forum: r 124(g)(iv); BHP Petroleum Pty Ltd v Oil
Basins Ltd
Breach of contract inside jurisdiction: r 124(1)(h); Safran v Chani; Deer
Park Engineering Pty Ltd v Townsville Harbour Board
Agreement to submit to jurisdiction: r 124(1)(i)
Tort committed within jurisdiction: rr124(1)(k)-(l); Acama Pty Ltd v Frost;
Distillers Co (Bio-chemicals) Ltd v Thompson; Dow Jones & Co Inc v Gutnick
Injunction: r 124(1)(o)
Necessary or proper party: r 124(1)(p)
Cause of action inside jurisdiction: r 124(1)(a)
Breach of statute: rr 124(1)(t)-(u)
Contribution or indemnity: r 124(1)(n)
Civil Aviation (Carriers Liability) Act 1959 (Cth): r 124(1)(q)
Membership of corporations: r 124(1)(m)
Arbitration awards: r 124(1)(v)
Infants: r 124(1)(w)
Interlocutory processes and statutory applications: r 127
Counter-claim and third party notices: r 128
Defendants Response
b. Must apply within 14 days to set aside the originating process; if this does not occur, the
notice becomes unconditional: r144(5);
c. Must file a defence within 7 days of a conditional notice of intention to defend to stop it
becoming an unconditional notice: r 144(6).
2. Unconditional notice of intention to defend: attach a defence and use Form 6: r 139;
a. Waives procedural irregularities regarding service and objections to jurisdiction: Sheldon v
Brown: r 144(7)
b. The defendant submits to jurisdiction: Caltex Oil (Aust) v The Drege Willemstad
c. But does not confer subject matter jurisdiction on a court, which does not possess it:
Thomson Australian Holdings v TP Commission; Coe v Qld Mines Ltd
3. Note: for Application
a. Do not file a notice of intention to defend;
b. May file a notice of address for service: (Form 8); r 29
5.1.4 Possible responses by defendant to irregular service
1. If aware of claim, but it has: (1) not been served; and (2) claim is stale:
a. Take no action because the plaintiff cannot request a default judgment
2. If there has been (1) personal service; but (2) claim is stale:
a. Cannot ignore the claim; the claim is valid except for service: Brearley
b. Apply to court to set aside service because of irregularity under r371(2)(b)
i. No need to enter conditional notice: Carroll v Laurie
c. Accept service and enter unconditional notice of intention to defend, thus waiving
irregularity: r 136/r144(6)
i. If filing an unconditional notice of intention to defend, the claim is taken to have been
served on the defendant on the day the notice is filed, or, if a plaintiff proves that the
claim was served earlier, on an earlier day: r105(2)
d. Enter conditional notice and state issues with service: r 144(2)
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6
6.1
6.2
6.3
Other Issues
ii.
Must be: a significant question common to all members of the class and they must be
equally affected by the relief being sought: Carnie v Esanda Finance Corp Ltd
b. The court may order one person to be a representative of a group: r 76
PLEADINGS/AMENDMENT
178(1)(b)(ii)
iv. Relief claimed is sufficiently connected with original subject matter of proceedings,
even if there are two separate contracts in issue; e.g. one with a builder and the other
with an architect: DG Madden
c. Other orders: at any time, the court has the power to exclude the counter claim or order it be
separately determined: r 182
4. Set off a defence to all or part of the plaintiffs claim: r 173
a. Legal set off two parties owe each other money, and defendant ask that the money owed to
them set offs the money owed to plaintiff: e.g. s 20 Civil Proceedings Act re mutual debts
b. Equitable set off :
i. A solicitor sued his former client to recover outstanding fees, the client claimed an
equitable set off on the basis that the fees were incurred by the solicitors negligence:
Piggott v Williams
c. Note
i. Every set off should be pleaded as a counterclaim, but not vice versa.
to enable court to give a single judgment in respect of competing claims of plaintiff and defendant,
where money claims are made and the competing claim can be categorised as set off, cross claim or
counter claim
in order to do justice, the court may need to make separate orders for costs against the plaintiff and
the defendant where the defendants claim is truly in the nature of a counterclaim: Chell
Engineering
Amendment of documents
Party who amends must pay costs of amendment to other party, unless court orders otherwise (r692)
or the amendment was due to other partys default (r692(2))
The court has an inherent jurisdiction to strike out pleadings and particulars that are frivolous,
vexatious or an abuse of process: Kelly v Apps; r 389A
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8.1
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CASE MANAGEMENT
Introductory matters
8.1.1 Rationale
1. Case Management:
a. Rationale is to:
i. Reduce cost and delay; and
ii. Ensure avenues for resolution before trial.
b. To introduce the court role in determining the pace of litigation.
c. Parties still control the issues and evidence.
2. Controlled by various practice directions and court rules.
8.1.2 The Adversarial system
1. Features of the system:
a. Controlled by the parties;
b. Juries act principally as finders of fact;
c. The role of the court and the judge is passive and non-interventionist;
d. Procedural requirements are subservient to the determination of the substantive legal dispute
between the parties.
2. Criticisms of the system
a. Expensive;
b. Slow;
c. Lack of equality between well-resourced litigants and under resourced litigants;
d. Too adversarial;
e. Rules of the court are too often ignored.
3. Key reforms to the adversarial system in Queensland
a. Mechanisms to minimise the use of court adjudication to finalise cases;
b. Time lines for taking certain steps in a proceeding in the UCPR;
c. Reducing court involvement in certain steps in a proceeding;
d. Narrowing scope of disclosure;
e. Mechanisms to narrow the issues in a proceeding (e.g. Notices to Admit, the effect of a plea
of do not admit in a defence);
f. Case flow management;
g. Near removal of jury trials; and
h. Additional professional obligations on lawyers.
8.1.3 Effectiveness of Case Management
1. Reduction of time;
2. But potential increase in costs.
8.2
general; and
o The estimated trial time is 5 days of less, although a case on the
Supervised Case List may be assigned by the Judge responsible for
that List to a Commercial List Judge, and will then be regarded as
included on the Commercial List.
Judge has discretion, and may give priority to urgent matters.
b. District Court
i. Practice Direction 3 of 2010 Commercial List: District Court
Purpose: to establish a commercial list in the District Court.
Application:
o A Commercial List Judge considers that it ought to be placed on
the commercial list. Ordinarily that will apply to defended matter
of a general commercial character or arising out of trade and
commerce in general.
8.2.2 Failure to Comply
1. Balance between:
a. Justice
b. Efficiency
c. Cost
d. Time
2. The ultimate aim of the court is the attainment of justice and no principle of case management can
be allowed to supplant that aim: State of Qld v JL Holdings Pty Ltd
a. it should not be allowed to prevail over the injustice of shutting the applicants out from
raising an arguable defence.
3. Justice does not just involve the needs of the parties, but the needs of the public at large and the
whole of the civil justice system: Aon Risk v ANU
a. Speed and efficiency are important and limits must be placed upon re-pleading
b. The modern view is that even an order for indemnity costs may not always undo the
prejudice a party suffers by late amendment. Aon
4. the weight to be given to these factors may vary depending on the facts in the individual case:
Cement Australia Pty Ltd v Australian Competition and Consumer Commission
9
DISCLOSURE
Purpose of Disclosure
1. Important from parties perspective
a. Provides an insight into the case of other parties and it assists in advising the client about
strategies and settlement
9.1
Policy Rationale
1. Procedural fairness and equality
a. Parties should know about the case they have to answer; this prevents ambush or surprise at
trial
26
b. Giving access to other documents; this provides a chance for parties to put their best argument
forward
c. Prevent situation where one party holds back a document that is detrimental to their case
2. Efficiency: r 5
a. Rules are to facilitate the just and expeditious resolution of the real issues in civil proceedings
at a minimum of expense
b. Disclosure assists to narrow the issues before the course; this promotes the expeditious
resolution of the issues
3. Promotion of resolution other than by trial
a. Having access to the documents allows lawyers to better assess the real issues in dispute and
the merits of each sides case
b. May also help with negotiation, and narrowing of issues
9.2
Duties of Lawyer
1. Duty to the client - advise the client about their disclosure obligations:
a. Not destroying documents when litigation is anticipated; and
b. Purposes and uses for which disclosed documents can be used:
i. Central Qld v Hardy: implied undertaking not to use for ulterior purpose (purpose
other than for which it was discovered) - court can issue injunction to restrain use of
document
ii. McCabe - undertaking continues beyond end of proceedings
2. Duty to the court
a. Solicitor must sign a certificate addressed to the court stating that the duty of disclosure has
been explained fully to the party: r 226.
i. Must file before trial: Myers
b. Duty to take steps to ensure client is complying with disclosure obligations
c. Competing oaths - not to make a document look like a disclosable document so that it can be
admitted as described: City Hall Albury Wodonga v Chicago investments:
i. Court may order a party to file and serve an affidavit swearing a document or class of
documents does not exist or has never existed: r 223
9.3
The UCPR does not restrict any equitable rights to disclosure: r 209(3)
1. The Supreme Court has an inherent equitable jurisdiction to order disclosure of the identity of a
wrongdoer:
a. Norwich order: the person from whom disclosure is sought must have some involvement,
even if innocent, in the commission of the wrong: Norwich Pharmacal v Customs:
i. Norwich Pharmacal v Customs: A court could give an order to a person to disclose
the identity of a wrongdoer so that a proceeding could be commenced. A person had
been innocently involved in the wrongdoing. That person was required to give the
person who had been harmed with information.
ii. Re Pyne: A publisher of a circular that contained defamatory comments was required
to disclose the authority of the article. The publisher had not been involved in creating
the content of the allegedly defamatory article. The court made an order for the
publisher to give information to the person who had been defamed about the identity
27
of the wrongdoer.
iii. Note: in Norwich and Re Pyne, the party did facilitate the commission of the wrong.
2. After commencement but before the close of pleadings:
a. It is questionable whether a Norwich order can be made after the commencement of
proceedings but before the close of pleadings, because the UCPR provides that such an order
can be made: r 214(2)(a). However, the Norwich Order may apply for non-parties.
i. Computer Share: The court gave a Norwich Order before the pleadings had been
closed to compel the defendant to give discovery of other documents.
ii. Owens v Radio 2UE: The court made an order for discovery before the close of
pleadings, because the other party could not plead without discovery. This was a
defamation case.
9.4
Disclosure and inspection between the parties under UCPR Part 1, Chapter 7
The obligations of Part 1, Chapter 7 apply to:
o Proceedings commenced by claim: r 209(1)(a);
o Any proceedings commenced by application that the court:
Treats as started by claim under r 14: r 209 (1)(b); or
Court orders that disclosure is required: r 209(1)(c)
All parties in a proceeding have a duty of disclosure: r 211
The duty of disclosure is ongoing:
o The duty of disclosure continues until the proceeding is decided: r 211(2)
STEP 1: When is disclosure required?
1. If an order has been made, disclosure is required at the time stated in the order: r 214(2)(a)
2. If an application for a summary decision is made, 28 days after the decision: r 214(2)(b)
3. If there is a further pleading or amended pleading, within 28 days after delivery of further or
amended pleading: r 214(2)(c)
4. If a document comes into the possession of the parties after disclosure, must disclose within 7 days
(practically, within 7 days of the lawyers becoming aware of the document): r 214(2)(d)
5. There is an automatic obligation of disclosure within 28 days after the close of pleadings: r 214(2)(e)
ii. Directly: should not be taken to mean that which constitutes direct evidence as
distinct from circumstantial evidence: Robson v REB Engineering
iii. Do not include documents that only lead to a chain of inquiry: Mercantile Mutual v
Village
3. In the possession or under the control of the party: r 211(3)
a. Possession:
i. An enforceable right to obtain possession from another: Turner v Davies
b. Control:
i. Control is a more stringent requirement than power; it means to exercise direction
over[or have] command over a document: Erskine v McDowall;
1. Erskine v McDowall: party was asking plaintiff for applications made to
Commonwealth agencies. Plaintiff did not have copies of the documents in her
possession. Plaintiff could not direct or command those agencies to provide
her with copies of the document, but she could make a freedom of information
application. HELD: the plaintiff could not direct the agency to give a copy of
the application and thus, she did not have control over the document; the
department could reject the freedom of information application. The judge
ordered the plaintiff to make a freedom of information application, pursuant to
r 367, 223.
2. Linfa v Citibank: A parent company may have the power to compel a
wholly owned subsidiary to provide it with documents if the subsidiary is
acting on behalf of the parent company.
3. It is questionable whether a parent company has control over documents
held by a subsidiary under the UCPR.
STEP 3: How must disclosure be done?
1. List of documents
a.Produce a list of documents for inspection, including privileged documents: r 214(1)(a) (form
19)
2. Produce documents for inspection
a. At the partys request, must deliver a copy of the document to the other party: r214(1)
b. May require the other party to produce for inspection the original documents: r 215
c. If it is impractical to produce a list of documents (due to the number, size, quantity or volume
of documents), must notify the other party of a convenient place and time to inspect: r 216
d. There are a number of procedures for producing documents: r 217 (see legislation)
3. By court order otherwise, which can be made at any stage: r 223 (see legislation)
a. This only applies if there are special circumstances and the interests of justice require it; or
there is an objective likelihood that disclosure has not been complied with: r 223 (4)
i. If an order is made because there are special circumstances and the interests of justice
require it, the documents sought do not have to be directly relevant to an allegation in
issue: Lampson (Australia) Pty Ltd v Ahden Engineering.
STEP 4: Exceptions to disclosure
1. Documents not required to be disclosed automatically, but at the other partys request:
a. Documents relating to damages: r221
b. Disclosed in pleadings: r222
2. Documents which are exempted despite meeting r 211 requirement: r212(1)
a. Privileged documents: r 212(1)(a)
b. Documents relevant only to credit: r 212(1)(b)
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9.5
9.6
30
9.7
31
There is no obligation to disclose documents that expose the person in question to a civil or criminal
penalty.
32
Provides parties with an incentive to make a moderate offer to settle early in the proceedings. If an
offer is made and not accepted, the offeror is indemnified against costs which are later incurred:
Morgan v Johnson
Provides an incentive for the defendant to accept the offer and not incur the expenses of litigation.
However, it is counterbalanced by the fact that, early in the proceedings, there is less information
available to determine whether the offer is favourable or not.
An offer to settle is made without prejudice: r 356; not disclosable to the court until costs
declaration: r357(3)
Any statement of fact made in an offer cannot be disclosed in a pleading or affidavit: r 357(1);
Cannot withdraw the offer before it expires without leave of the court: r 355.
Offer lapses only at the end of the period stated, even if the other party makes a counter offer: r
357(2).
May include offer to pay assessed costs, assessed on the filing notice of acceptance: r358(5)
Court may incorporate all or part of offer in the judgment: r 358(4)
STEP 1: Has a formal offer been made and accepted according to rules? (note: if requirements are not met,
it may be a Calderbank Offer)
1. Requirements of an offer:
a. Must serve on the other party before the final relief is granted: r354(1)(b)
b. Offer to settle must be in writing: r 353(3);
c. Contain a statement that it is made under Chapter 9, Part 5 of UCPR: r353(3); and
d. Must set out a period the offer will remain open and that period must be for at least 14 days:
r 355(1).
e. Contain real and genuine element of compromise: Miwa
2. Requirements of acceptance:
a. Must be in writing: r 358
STEP 2: Prima facie costs consequences if offer is rejected and proceeds to trial?
1. Court will disregard the interest relating to the period after the offer has been served: r362(2)
2. If Plaintiff made an offer to settle and Defendant did not accept: r 360(1) and
a. Plaintiff obtains a judgment no less favourable than the offer to settle; and
b. Plaintiff was willing and able to carry out what was proposed in the offer: then
(1) Prima facie entitled to costs on indemnity basis for entire proceedings.
(2) Where there are multiple offers by the plaintiff, the first offer counts for rule 360 purposes: r
360(2)
3. If Defendant makes offer and Plaintiff rejects it: r361
a. Plaintiff obtains a judgment that is not more favourable to the plaintiff than the offer to settle;
and
b. Defendant was willing and able to carry out what was proposed in the offer; then
(1) Prima Facie defendant pays plaintiffs pre-offer costs (before date of service of offer),
plaintiff pays defendants post-offer costs
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(2) Where there are multiple offers by the defendant, the first offer counts for rule 360 purposes:
Hilliar v Sheather
STEP 3: Is another order more appropriate?
1. The rules in relation to a formal offer of settlement do not displace the courts discretion over costs:
Davies v Fay
2. Factors (consider circumstances at time offer is made):
a. Was the offer a genuine offer of compromise? Davies v Fay
b. Was it unreasonable for the offeree not to accept the offer? Castro v Hillery
c. Did offeree have an informed opportunity to assess the likelihood of either party doing better
than the offer?
d. What material was available to the offeree at the time the offer was made?
e. Are there developments after the date of the offer and the trial, which indicate that indemnity
costs to the successful plaintiff are inappropriate?
STEP 4: Failure to comply with accepted offer? r365
1. Apply to the court for a judgment on the conditions of the offer: r365(a)
2. Continue proceedings as if an offer to settle had not been accepted: r365(b)
10.4.2 Contractual offer of settlement
iv. Compromise on terms that the Defendant pay the Plaintiff an agreed amount on an
agreed date; and
v. Defendant must have agreed to submit to judgment in default of payment.
10.5 Lawyers Obligations
1. Must disclose an estimate of legal costs and the contributions towards costs likely to be received
from the other party (on settlement): s 312, LPA 2007 (qld)
2. A solicitor must not knowingly make a false statement to an opponent in relation to the case: R 22.1,
Australian Solicitors Conduct Rule
11 COSTS
11.1 Introduction
Types of costs
1. Solicitor and own client costs - must pay lawyer pursuant to the costs agreement
a. The amount includes GST: r 691(7)
2. Costs of the proceeding - subject of costs order
a. Costs ordered to be costs of the proceeding;
b. Costs of complying with steps necessary before starting proceeding;
c. Costs incurred before or after proceeding for negotiations of settlement;
d. Does not include the costs of an application: r 693
Costs Agreement between solicitor and client4
The costs agreement must be in writing or evidenced in writing: s322(2) Legal Professional Act
2007 (Qld) (LPA).
Conditional costs agreement: s 300, LPA
o A cost agreement that provides that the payment of some or all of the legal costs is
conditional on the successful outcome of the matter to which those costs relate.
o Conditional costs agreement cannot relate to criminal law matters or family matters
Uplift fee
o Additional legal costs, excluding disbursements, payable under a costs agreement on the
successful outcomes of the matter to which the agreement relates: s300
o Cannot be for more than 25% of the legal costs: s324(4), LPA
Cannot charge a contingency fee
o A costs agreement where the amount payable is calculated by the amount of the award or
settlement or the value of any property: s325(1), LPA
Certain costs agreements are void: s327 LPA
Client can apply to have the costs agreement set aside if it is not fair and reasonable: s328(1) LPA
Courts Jurisdiction to award costs
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A party to a proceeding cannot recover any costs of the proceeding from another party other than
under these rules or an order of the court: r 680
The purpose of the costs order is to compensate the successful party for their costs, rather than to
punish an unsuccessful party: Oshlack v Richmond River Council.
2. Costs assessor must assess costs on the standard basis: r702(1); see schedule at back of UCPR
a. Includes costs proper for the attainment of justice; or
i. Costs are proper if it is reasonable for a competent solicitor to have incurred the
costs in carrying out the litigation: Hennessey Glass and Aluminum Pty Ltd
b. Includes costs necessary for the attainment for justice
i. Costs are necessary if litigation could not have been carried on reasonably without
incurring the costs: Hennessey Glass and Aluminum Pty Ltd
3. Court may order costs to be assessed on the indemnity bias: r703(1)
a. Includes costs reasonably incurred and of a reasonable amount, having regard to: r 703(3)(a)(c)
i. Scale of fees prescribed for the court;
ii. Any costs agreement between the client and solicitor;
iii. Chargers ordinarily payable by a client for the work.
b. Examples:
i. Offers to settle:
1. Where (1) formal offer is rejected by defendant, (2) plaintiff obtains
judgement no less favourable than the offer to settle, (3) plaintiff was wiling
and able to carry out order: r 360
ii. Misconduct:
1. Where there has been misconduct in the litigation
2. The proceedings were commenced for an ulterior purpose
3. Course of conduct tended to prolong the proceedings: Verna Trading Pty Ltd
v New India Assurance Co Ltd
4. Dishonest in giving evidence
5. The claims were baseless
4. Court has discretion to make any other costs order: r 687(2)(a)-(d)
a. Specified part or percentage of assessed costs;
b. Assessed costs from a specified period of proceedings;
c. Amount fixed by the court;
d. Amount to be decided by the court.
5. Court may order a lawyer to repay lawyers client all or part of any costs ordered to be paid by the
client: r690
a. Where costs were incurred because of the lawyers delay, misconduct or negligence: r690.
Procedure for assessing costs
1. A Costs may be assessed without an order for assessment: r 686
2. Costs on a standard basis (for an Australian lawyer) are assessed in accordance with Court scales: r
691.
3. Procedure for assessing costs:
a. An order for costs is made.
b. A cost statement in the approved form has to be served on the parties paying the costs: r 705.
c. Within 21 days after being served, the party may object to any item in the statement by
serving a notice of objection: r 706(1)
d. After (c), would go to judge or registrar;
e. After (d) sent to costs assessor;
f. After (e) there may be an appeal;
g. After (g), the amount is a liquidated demand.
Other costs matters
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