5210LAW Lecture Notes - Lecture 4: Affidavit, Tarong Energy, Contributory Negligence
1. INFORMATION GATHERING
REVIEW
Conditional notice of intention to defend
- Time
- Unsure of court
- No cause of action
Must bring an application to the court within 14 days to have proceedings struck out if not then
becomes unconditional and they will need to file defence.
- Third party notice
- File counter claim
- File answer to counter claim
- Reply to answer to counter claim
- Reply to defence
- Close of pleadings
Defendant wants to serve defence and what not
- Serves by ordinary service
Serve third party as subcontractor
- Originating process
- New person to the proceeding means originating generally
What must be included in defence
- Admit, deny or not admit
- If don’t do one, will be accepted as admitting
1.1. Disclosure
- What is Disclosure?
oDelivery or production of documents – relevant documents for trial
oRelevant to the matters in issue
oWhat is a matter in issue? = pleadings
oDisclosure attempts to get parties exchanging information in the hope of
reaching settlement, refining issues in dispute or reaching trial sooner.
Decide whether better to
Settle
Settle on one/some issues and go to court on others
oWhite v Overland [2001] FCA 1333, per Allsop J at [4] ‘in the efficient and
proper conduct of civil litigation…it should always be recognised that in the
propounding of issues for trial the parties should take steps to ensure that all
relevant parties to the dispute are cognisant of what the issues are.’
- Applies to claim (not application), or if a Ct orders for a proceeding started by
application - r 209
- Applies to documents - r 210
- ‘documents’ def s 36 Acts Interpretation Act 1954 (Qld) includes:
opaper with writing
odisc, tape or other article or material from which sounds, images writings or
messages are capable of being produced - s 36(c)
1.2. Duty to Disclose
-r 211(b) key section.
- Provides that a party to a proceeding has a duty to disclose any document which is:
oin possession or under control of that party; and
ois directly relevant to an allegation in issue in the pleadings
find more resources at oneclass.com
find more resources at oneclass.com
- The duty to disclose continues until the end of the proceedings – r 211(2)
1.3. Possession or Control…Directly Relevant
- WRT ‘possession and control’
oErskine v McDowall [2001] QDC 192 – control more stringent than power.
Doc gatherable through right to government information legislation not under
control
Freedom of information application to get document? No
In database of firm? Yes, through employment
Agent has it? Yes, through agency agreement
- WRT 'directly relevant'
oRobson v REB Engineering Pty Ltd [1997] Qd R 102 – means directly
connected to an allegation in dispute rather than something that might merely lead
to a train of inquiry
oDifferent from ‘direct’ v ‘circumstantial’ evidence
oRelevant = to issue in pleadings
1.4. Documents exempt from disclosure
-r 212 Doc is exempt if
orelates to credit
eg qualifications of expert witness
ounmodified copy of already disclosed doc
eg where partnership has multiple copies of contracts or
correspondence
ovalid claim to privilege (see below)
1.5. Procedure for disclosure
- How do you disclose?
or 214(1) By delivering a) a list of the documents and b) copies of the
documents
- List of documents – Form 19 - 2 parts
oDocuments that can be disclosed
oDocuments over which privilege is claimed
Description of document, when made and who made it
- When do you have to disclose them by?
oList of documents? - 28 days after close of pleadings r 214(2)(e)
Close of pleadings = 14 days after the last reply
oList should adequately identify nature of document and 'author'
- Disclose everything (eg including employment contract against employer)
- 2 ways to facilitate disclosure once list of doc delivered
odeliver copies to other party on request 214(1)(b)
oIf delivery ineffective r 216 allows for production of documents for
inspection. r 217 specifies that facilities be available to read and make copies of the
documents
If have two boxes of documents not going to copy, offer for them to
come in and go through the documents themselves
-r 223 – Court can order disclosure where:
oSpecial circumstances exist and it is in the interests of justice; or
oLikelihood duty to disclose has not been complied with; or
oDoc exists or existed and has passed out of possession
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Must bring an application to the court within 14 days to have proceedings struck out if not then becomes unconditional and they will need to file defence. Defendant wants to serve defence and what not. New person to the proceeding means originating generally. If don"t do one, will be accepted as admitting. Delivery or production of documents relevant documents for trial. Disclosure attempts to get parties exchanging information in the hope of reaching settlement, refining issues in dispute or reaching trial sooner. Settle on one/some issues and go to court on others o. Applies to claim (not application), or if a ct orders for a proceeding started by o o o o application - r 209. Documents" def s 36 acts interpretation act 1954 (qld) includes: o paper with writing disc, tape or other article or material from which sounds, images writings or messages are capable of being produced - s 36(c)
