LLB300 Study Guide - Final Guide: Personal Injury, Contributory Negligence, Service Of Process
CIVIL PROCEDURE CHEAT SHEET:
LEGISLATION:
STEP 1 – Preliminary Discovery & Commencing Proceedings:
Preliminary Discovery (Part 5) – Rules 5.2-5.4; 5.8
Originating Process (Part 6) – Rules 6.1-6.6; 6.9; 6.12; 6.18-6.28; 7.19; 14.7;
35.8
Appearance – Rules 6.9-6.10; 12.5-12.6; 12.11
Notice of Motion – Rule 12.11
Adding a cause of action with an expired Limitation Period – Rules 6.19-6.20
STEP 2 – Decisions on Parties and Causes of Actions:
Joinder of causes of action – Rules 6.18; 6.19; 6.22
Joinder of parties – Rules 6.19-6.28
Joinder of D – Rule 6.19-6.20; 6.24
Granting leave to add P – Rule 6.19; 6.22; 6.24-6.25; 6.29
Time Limit – Rule 9.1
Consolidation – Rule 28.5
Pleadings – Rules 14.3; 14.6-14.11; 14.14; 14.16-14.20; 14.22-14.23; 14.26-
14.27
Particulars – Rules 15.1; 15.3; 15.5; 15.6; 15.9-15.10
STEP 3 – Filing & Service of Documents
General Rules – Rules 10.1; 10.5; 35.8-35.9
Originating Process – Rules 6.2; 63
Personal Service – 10.20-10.21
Other Methods of Service - Rules 10.6; 10.9-10.14; 10.22; 10.23; 10.25;
10.26
Adding a Party after Commencement – Rules 7.27; 10.20
Cross Claims – Rule 14.3(2)
Service Outside NSW but in Australia – Rule 10.3-10.4
Service Outside Australia – Rules 11.1-11.6; and Schedule 6
Decision that the Court is an Inappropriate Forum – Rules 11.7; 12.11
Service by Diplomatic Channels – Rules 11.8A; 11.9-11.11
Service through the Hague Convention – Rules 11A.1, 11A.3-11A.8 + Form
13A
Affidavit of Service – Rule 35.3; 35.8
Waiver of Objection to Service – Rule 10.19
Corporations Act 2001 (Cth) s 109X
Service and Execution of Process Regulations Section 14
STEP 4 – Appearances, Defences and Cross-Claims:
Same time Limit – Rule 9.1
Set Offs and Cross-Claims – CPA s 21, 22, 96
Defence – Rule 14.26
Withdrawing Appearances or Defences – Rules 12.5 and 12.6 (respectively)
STEP 5 – Amendments, Discovery, Subpoenas and Interrogatories:
Amendments – Rules 19.1-19.2; 19.4; 42.6; CPA s 64
Leave to file documents after the reply – Rule 14.5
Notice to Produce – Rule 21.10
Interrogatories (Part 22) – Rules 22.1; 25.2
Subpoenas (Part 23)
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STEP 6 – Concluding Proceedings:
Summary Dismissal – Rule 13.4
Default Judgement – Rules 16.2-16.4; 16.6-16.7
Setting Aside Default Judgements – Rules 16.2; 36.16
Summary Judgement – Rules 13.1; 13.6
Summary Stay or Dismissal – Rules 13.4
OTHER RELEVANT LEGISLATION:
CPA s 56-60; 64
Evidence Act 1995 – Sections 118-119; 130
UCPR Part 4 (rr 4.10; 4.11; 4.12; 4.13); Part 6; Part 10 (rr 10.5; 10.20)
UCPR Part 4; Part 10 (rr 10.1; 10.2); Part 18; Part 35
UCPR Part 1 (r 12); Part 4; Part 6 (r 6.10); Part 10; Part 11; Part 12 (r 12.11);
Part 18; Part 31; Part 35
FORMS:
Summons – Form 4A
Statement of Claim – Form 3A
Affidavit of Service – Form 41
Appearance – Form 6 & 6A
Defence – Form 7A
Notice of Motion – Form 20
Statement of cross-claim – Form 9
Cross-summons – Form 10
Reply – Form 8 or 43
Service through the Hague Convention – Form 13A
Service in Australia but not within NSW – Service and Execution of Process
Regulations Schedule 1 Form 1
STEP 1 – Preliminary Discovery & Commencing Proceedings:
1. Identify Plaintiffs
a. Must have standing
b. Can plaintiff’s be joined? Apply under r 6.19-6.28 (application under r 6.27)
2. Identify Defendants
a. Problems with D’s identity or whereabouts? Apply for preliminary discovery under
r 5.2
b. Preliminary discovery to decide whether to commenced proceedings? Apply
under r 5.3
a.i. If proceedings are not commenced Notice of Motion (r 5.8(2)(a))
a.ii. If already commenced Summons (r 5.8(2)(b); 6.4(1)(c))
a.iii. Must be filed and personally served, along with Affidavit in Support (r 5.3;
8.5)
Hatfield v TCN Channel Nine loosely states:
b.i.1. P may be entitled to make a claim for relief (legal ground) (Morton v
Nylex)
b.i.2. P made reasonable enquiries (r 5.2(1)(a))
b.i.3. P been unable to ascertain sufficient info to determine whether or not
to commence proceedings
b.i.4. D may have or have had possession of documents that can assist P (r
5.2(1)(b))
b.i.5. Inspection could assist P (r 5.2(1)(b))
iv. Arguments –
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1. Document will “tend to assist”, need not be the last piece in a puzzle
(RTA v ANCP)
2. ‘reasonable cause to believe’ – Hatfield
3. Delay, confidentiality and undue prejudice are important considerations
c. Is D a person under legal incapacity requiring a tutor? (CPA s 3(1)(a), (b), (c), (d))
c.i. Tutor required – UCPR r 7.15(2)
c.ii. Tutor must consent – UCPR r 7.16
c.iii. File letter of consent, an affidavit of another person verifying consent and a
letter of solicitors advise stating there is no conflict of interest (r 7.16; 31.15)
d. Can D’s be joined? Arise out of the same transaction or series of transactions &
involve common questions of law and fact
d.i. File Notice of Motion seeking leave to add D
d.ii. Serve all documents on D
d.iii. Must satisfy the ‘balance of persuasion’
3. Originating Process must be filed in Court
a. Summons (r 6.4) or Statement of Claim (r 6.3)?
If desired to be heard in Supreme Court Summons
Originating process must be served personally on D – r 6.2
b. Should include:
i. Material facts should be outlined (r 14.7)
ii. Relief being claim (r 6.12)
iii. If claiming aggravated or exemplary damages that requires specific
pleading (r 6.12)
iv. Venue should be stated
v. Notice to D of consequences for not replying & the return date
vi. Affidavit may be required
Remains active for 6 months (r 6.2)
STEP 2 – Decisions on Parties and Causes of Actions:
1. Can causes of action be joined?
Apply under r 6.19 and 6.22 – factors considered are outlined in r 6.18
i. Arise from the same transaction or series of transactions and involves
common questions of law and fact (r 6.19); OR
Include names on Statement of claim
ii. If leave is given by the court
ii.1.Notice of Motion – must be filed and served on all parties (r 18.2)
ii.2.Affidavit in Support – should be personally served but not filed, handed
up in court (r 10.20)
ii.3.Arguments – unfairness; practicality; costs and delay (Dean Wilcox)
If both parties are suing and being sued in a personal capacity the proceedings
can be joined (r 6.18(1)(a); 6.21)
i. Leave is not required if all names and causes of action are included on the
Statement of Claim (r 6.2)
ii. Serve Statement of Claim and Affidavit verifying facts on all parties and file it
in court
iii. If leave is required (r 18.3):
iii.1. Notice of Motion with application – must be filed and served
iii.2. Affidavit in support – personally served but not filed
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Document Summary
Preliminary discovery (part 5) rules 5. 2-5. 4; 5. 8. Originating process (part 6) rules 6. 1-6. 6; 6. 9; 6. 12; 6. 18-6. 28; 7. 19; 14. 7; Adding a cause of action with an expired limitation period rules 6. 19-6. 20. Step 2 decisions on parties and causes of actions: Joinder of causes of action rules 6. 18; 6. 19; 6. 22. Granting leave to add p rule 6. 19; 6. 22; 6. 24-6. 25; 6. 29. Pleadings rules 14. 3; 14. 6-14. 11; 14. 14; 14. 16-14. 20; 14. 22-14. 23; 14. 26- Particulars rules 15. 1; 15. 3; 15. 5; 15. 6; 15. 9-15. 10. Step 3 filing & service of documents. Other methods of service - rules 10. 6; 10. 9-10. 14; 10. 22; 10. 23; 10. 25; Adding a party after commencement rules 7. 27; 10. 20. Service outside nsw but in australia rule 10. 3-10. 4. Service outside australia rules 11. 1-11. 6; and schedule 6. Decision that the court is an inappropriate forum rules 11. 7; 12. 11. Service by diplomatic channels rules 11. 8a; 11. 9-11. 11. Service through the hague convention rules 11a. 1, 11a. 3-11a. 8 + form. Waiver of objection to service rule 10. 19. Service and execution of process regulations section 14.
