LAWS1014 Lecture Notes - Lecture 1: Civil Procedure Rules, Procedural Law, Determinative
16 May 2018
School
Department
Course
Professor
WEEK 1:
1.1 General Themes of the Course
• The social purpose(s) and function(s) of the civil justice system
How do the courts and society interact with each other?
How does the administration of justice affect the people involved in these conflicts?
• Possible degradation of civil justice, including through increased use of ADR
Degraded by promotion of mediation, etc? Does this stop the courts from doing what
they’re supposed to do to achieve justice?
• Distributions of power and resources and how courts can control imbalances
What civil procedure rules do to mediate or affect the power of balances
E.g. one person suing a giant company that has a huge team of lawyers – the civil
procedure tries to do some work to level that playing field – how do they do this?
Are the civil procedure rules set up to try accomplish this balance? But ultimately,
people are going to be disadvantaged in some manner
• Interrelationships and interactions amongst different parts of the civil justice system
How are lawyers and judges interacting, how are parties interacting with the courts
How much power do the judges or the lawyers have?
• Public vs private aspects of civil justice
The court system has a public function, not least of which is issuing judgements, so
that anybody can access judgements. If they have any questions, they have the power
to find the answer to them
• Role of the Overriding Purpose of the CPA
• How does the civil procedure affect the people involved in the disputes?
1.2 Procedural Law
• Definition: The law that governs the conduct of proceedings before the court, and directs the
manner in which the claim will be conducted. Procedural law rules are used to enforce
substantive claims, which defines the legal rights, duties and liabilities of everyone in a
society that works under that law. Because procedural law applies to all cases brought before
a court, it is ‘trans-substantive.’
• Purpose:
Provide rules that facilitate dispute resolution
Govern conduct for the case before the court so everyone knows what to expect
Provide procedural fairness and due process to litigants
Promote access to justice – how effective and successful is it?
Address issues of cost and delay e.g. reducing number of interlocutory appeals
between cases
Promote legitimacy of legal system and ensuring reliability by the public
• Sources of procedural law:
Civil Procedure Act 2005 (NSW)
find more resources at oneclass.com
find more resources at oneclass.com
Uniform Civil Procedure Rules 2005 (NSW)
Court rules e.g. Supreme Court Rules 1970
Practice notes of each court
Inherent jurisdiction of courts to be able to regulate their own processes and prevent
abuse of process
• The court system in NSW:
Supreme Court of NSW
▪ Can hear all matters that are not within the exclusive jurisdiction of the
federal court
Unlimited civil jurisdiction; hears the most serious criminal cases
▪ Common law division
Hears civil matters where more than $750,000 is claimed as well as
criminal and administrative law matters
▪ Equity division
Hears cases involving commercial law, corporations law, equity,
trusts, probate, family provisions legislation – non-damages
primarily
▪ Appellate divisions
Court of Appeal
Court of Criminal Appeal
District Court of NSW
▪ Has jurisdiction in civil and criminal matters
▪ Civil jurisdiction has limit of $750,000
▪ Unlimited jurisdiction in claims for damages for personal injuries arising out
of motor vehicle accidents or work injuries
Local courts of NSW
▪ Small claims division – claims up to $10,000
▪ General division – claims between $10,000-$100,000
▪ Jurisdictional limit of $60,000 for personal injury or death claims
▪ Can also hear criminal summary prosecutions, committal hearings, matters
concerning mental health issues, some family law matters, children’s
criminal proceedings, juvenile prosecutions and care matters, licensing issues
and coronial matters
1.3 The adversarial process
• Characteristics of the Australian/Adversarial System
Party controlled dispute
Party has to initiate civil proceeding, where unlike a criminal proceeding
In the criminal context, is the use of the jury
Emphasis on argument, where parties can call witnesses and present evidence in an
open debate. Reliance on oral testimonies subject to cross-examination.
Uses of precedent, procedural rules and laws of evidence
Impartial judge acting as ‘umpire’
Distinct pre-trial and trial stages – the lead up to trial with preliminary motions, the
establishment of ground rules, the trial stage as its own unit
Open justice – accessibility to the public – ability to freely go to courts, access
information, judgements must be placed out in writing
Includes provision of reasons for decision
Subject to certain limitations – see Rinehart v Rinehart [2014] FCA 1241
• Reforms of the adversarial system:
THe adversarial system is criticised for being unjust, unequal and producing
inaccurate results
Lord Woolf – Access to Justice 1996 (England and Wales):
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find more resources at oneclass.com
▪ Unrestrained civil adversarial culture, where litigants control the process,
results in restricted access to justice
▪ Recommendations: transfer of control to court, judges with a more active role
in progression of cases, identification and reduction of issues as a basis for
case preparation, encouraging cooperation amongst lawyers
ALRC Report No. 89, Managing Justice 2000
▪ Aim to provide a ‘simpler, cheaper and more accessible legal system.’
▪ ‘Our civil justice system works best when judicial officers take an active role
in managing proceedings from an early stage.’
1.4 Case management
• Definition: The management of cases by the court required in all civil proceedings and cases
in NSW. It incorporates a disciplinary element for breach of the court-imposed ‘timetable,’
including cost orders
• Purpose:
Generally: Facilitates the overriding concern of attaining open justice and fairness
Reducing delays:
▪ Avoiding issues with witnesses and evidence
▪ Reducing court backlogs where courts can hear cases as they come, rather
than cases sitting around
Reducing costs:
▪ Promote access to justice – if people feel like the courts are too
expensive, people wont come before the courts, disputes wont be
resolved and the law wont be developed
▪ Avoid costs being used as tactical weapon by well-resourced parties –
levels the playing field
▪ ISSUE: Danger that case management can increase costs by front-loading
previously avoidable costs as parties may need to pay solicitors to go to
case management at the beginning of the process
• System:
Each court has its own systems for case management, set out in Practice Notes
District Court – see, e.g. Practice Note DC (Civil) No. 1: Case Management in the
General List
▪ Court aims to have cases completed within 12 months of
commencement
▪ Plaintiffs must not commence proceedings until they are prepared to
proceed, meaning preparation for trial must be well advanced – i.e.
until you and your solicitors are ready to move forward. Basically, do
your homework. You cannot bring a claim without knowing what your
claim is, what your quantum of damages is, know what evidence to bring
▪ Other District Courts Lists:
Commercial List
Construction List
Defamation
Supreme Court
▪ Common Law Division – General Case Management List, Professional
Negligence List, Possession List, Defamation List, Administrative Law
List, Criminal Law List
▪ Equity Division – Commercial List, Corporations List, Commercial
Arbitration List, Revenue List, Admiralty List, Technology and
Construction List
• Judge’s role in case management:
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
1. 1 general themes of the course: the social purpose(s) and function(s) of the civil justice system. How does the administration of justice affect the people involved in these conflicts: possible degradation of civil justice, including through increased use of adr. Does this stop the courts from doing what they"re supposed to do to achieve justice: distributions of power and resources and how courts can control imbalances. What civil procedure rules do to mediate or affect the power of balances. But ultimately, people are going to be disadvantaged in some manner. Interrelationships and interactions amongst different parts of the civil justice system. How are lawyers and judges interacting, how are parties interacting with the courts. How much power do the judges or the lawyers have: public vs private aspects of civil justice. The court system has a public function, not least of which is issuing judgements, so that anybody can access judgements.
