LAWS4001 Lecture Notes - Lecture 3: Service Of Process, Civil Procedure Rules, Crossclaim
Week 3 – Commencing Proceedings
Lord Woolf: Leading judge on shifting responsibility from legal representatives to judges in the
court proceeding process (adversarial: case management)
New client – what are the steps?
1. 1st conference: facts, timeline, instructions, causes of action, relief, court jurisdiction,
risks of loosing, costs in paying other side
a. Interviewing your client – Interests or rights?
-Interest – what your client wants
-Rights – based on the causes of action and defence but may not be in the
best interest of the client e.g. in maintaining a good relationship with OS
b. Setting realistic goals
-Manage clients expectations: time, risks of loosing
-Trial: the client should never find the judgment surprising because as
their legal adviser, it is your duty to keep them updated
c. Case Theory?
-A strategic litigator looks at the matter as a whole, end goal for client
-What is my case about, what am I trying to achieve and understand
-Causes of action in contract or negligence & elements
2. Disclosure retainer: legal services agreement, our costs and disbursements i.e. counsel,
ADR negotiations maybe better option
3. Write to the client: what is the limitation period of when you must bring the claim to
court
4. Letter of Demand: write to other side
5. Courts Pre-action Protocols – genuine steps to resolve the matter before commencing
proceedings
6. Lodge SOC: The plaintiff’s preparation for trial must be well advanced before filing the
statement of claim
7. First Directions Hearing: appointed approx.. 3 months after the proceeding is entered in
the List and notice of it will be provided by the registry at the time of filing the SOC
(Practice Note SC CL 5)
Before commencing proceedings
1. Rule 7 of the Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015
requires solicitors to inform clients of the alternatives that are available to civil litigation
2. Comply with pre-action protocols that may be required before proceedings commenced
(Federal Courts: Civil Disputes Resolution Act 2011: genuine steps)
Parties must take genuine steps to resolve disputes before they institute
proceedings.
Genuine steps are defined in s 4: “a person takes genuine steps to resolve a
dispute if the steps taken by the person in relation to the dispute constitute a
sincere and genuine attempt to resolve the dispute, having regard to the person’s
circumstances and the nature and circumstances of the dispute (s 4(1A))”
Both the applicant and the respondent must file ‘genuine steps statement’ (see ss
6 and 7)
There are duties on lawyers with respect to these obligations on the parties (see
ss 8 and 9)
The failure to comply with these requirements can be relevant to the Court’s
power with respect to costs (see ss 11-13)
3. Clear understanding of what out instructions are and what the available evidence indicates
find more resources at oneclass.com
find more resources at oneclass.com
4. Identify the rights and liabilities of the parties – provisional assessment because we are
not privy to the evidence the OS
5. Make sure we have defendants to sue and those defendants have means ($)
6. If the client has a cause of action we have to determine what the best course is:
a. Recommend beginning negotiations immediately with OS and attempt to resolve
the dispute without recourse to the court
b. Recommend commencing proceedings immediately because of the urgency of
the matter
c. Recommend attempting some form of ADR e.g. mediation
7. Form the view that the causes of action have reasonable prospects of success
8. Which court has subject matter and territorial jurisdiction
9. Limitation period: the ability of courts to do justice between the parties decreases with
time
oThe law that governs the limitation period is a matter of substantive law and is
the of the place where the wrong was committed: John Pfeiffer Pty Ltd v
Rogerson (2000)
oBrisbane South Regional Health Authority v Taylor:
Time will diminish the significance of a known fact or circumstance because
its relationship to the cause of action is no longer as apparent as it was when
the cause of action arose. Facts and evidence might be forgotten or lost
People have a right to a speedy hearing of an action that had been
commenced
It is unfair to a defendant to allow an action to be brought long after the
circumstances, which gave rise to it, have passed
People should be able to arrange their affairs and utilise their resources on
the basis that claims can no longer be made against them
Insurers, public institutions and businesses, particularly limited liability
companies, have a significant interest in knowing that they have no liability
beyond a definite period
10. Advise the client of risks, unpredictability and delays that are likely to be experienced and
obtain clear instructions to proceed. They need time and the heart to go through the stress
and uncertainty of civil proceedings. A result cannot be guaranteed, the process is
expensive and time consuming
11. Our client has financial means to conduct the litigation and given him the best estimate of
our likely costs and counsel’s disbursements
Recommended pre-action procedures:
to focus the attention of litigants on the desirability of resolving disputes without
litigation;
to enable them to obtain the information they reasonably need in order to enter into an
appropriate settlement; or
to make an appropriate offer (of a kind which can have costs consequences if litigation
ensues); and
if a pre-action settlement is not achievable, to lay the ground for expeditious conduct of
proceedings.
Before the first directions hearing, parties are expected to have:
Discussed the case to narrow the issues and identify any matters of agreement;
Agreed on suitable interlocutory (preliminary) orders, directions or arrangements;
Prepared a draft timetable for the future management of the proceedings;
Prepared draft short minutes of any orders or directions to be sought at the directions
hearing; and
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Lord woolf: leading judge on shifting responsibility from legal representatives to judges in the court proceeding process (adversarial: case management) New client what are the steps: 1st conference: facts, timeline, instructions, causes of action, relief, court jurisdiction, risks of loosing, costs in paying other side a. Rights based on the causes of action and defence but may not be in the best interest of the client e. g. in maintaining a good relationship with os: setting realistic goals. Manage clients expectations: time, risks of loosing their legal adviser, it is your duty to keep them updated. A strategic litigator looks at the matter as a whole, end goal for client. What is my case about, what am i trying to achieve and understand. Causes of action in contract or negligence & elements: disclosure retainer: legal services agreement, our costs and disbursements i. e. counsel, Parties must take genuine steps to resolve disputes before they institute proceedings.
