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Lecture

WEEK 9 & 10 - Ending Proceedings Early

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Department
Law
Course Code
LWB431
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All

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ENDING PROCEEDINGS EARLY INTRODUCTION In some circumstances it is possible to obtain judgment early in a proceeding, without a full trial of all the disputed issues. UCPR, Ch 9 provides for 6 ways that this can occur: 1) Resolution by an alternative dispute resolution process; 2) An application to have the proceeding dismissed for want of prosecution; 3) An application for judgment in default of the defendant filing a notice of intention to defend; 4) An application for summary judgment; 5) Discontinuance or withdrawal of the proceeding; 6) The making and acceptance of an offer to settle the proceeding. ALTERNATIVE DISPUTE RESOLUTION PROCESSES Ch 9, Part 4 provide for two ADR processes: • Mediation (process where the parties use a mediator to help them resolve their dispute by negotiated agreement without adjudication: District Court of Queensland Act s91) • Case Appraisal N.B. Not defined in rules but defined in each state court acts A proceeding may reach mediation or case appraisal in two ways: 1) Consent of the parties (via Consent Order): SCQA s101, DCQA s96, MCA s28 • Form 34: Requires parties to state their agreement to act reasonably and genuinely in the ADR process • Form 33: Terms of the Referral (time and costs) IF fail to lodge forms: If the ADR goes ahead without lodging forms 33 and 34 then it will be informal and the proceedings aren’t stayed (and all previous time limits etc continue): Raabe v BNRHA 2) Referral by the court • Court may refer matter to ADR of its own violation: r319(1) • Court can order ADR if one of the parties applies for an order or if the proceeding is otherwise before the court: r320 IF party objects to ADR process: A party is allowed to object to a referral by filing an objection notice in the registry: r319(2) but must state the reasons why they object and file them within seven days of receiving the referral notice from the registrar: r319(3) (e.g. waste of time – serial litigator; legal argument that the mediator isn’t fit to deal with). Court may then require a hearing: r319(4); and at the hearing may make an order is considers appropriate: r319(5). Medition or Case Appraisal? Legal issue = case appraisal –asking the expert on interpretation of the law, who is right and wrong; Factual issue = mediation – different opinions on what is important Witcombe v Jordin and Another unreported (Derrington J): Facts: Old people’s home burnt down, sued insurers; two questions: 1) whether niece had physical control of the house (legal issue); and 2) whether niece had been negligent (factual issue) MEDIATION When to refer? A judge’s criteria when considering whether to exercise their discretion to refer to mediation: Barrett v Queensland Newspapers (Samios DCJ) Criteria Barrett v Qld Newspapers Prospect of success Party merely not wanting to go to mediation was not (more likely to settle in ADR more likely to sufficient not to exercise the discretion mediate) Length of trial Would free up 10 days of court time (longer trial will be more likely to send to ADR) Willingness to participants to take part 3/4 parties willing to mediate (how many willing) Offer to share ADR costs Offer by the second defendant to pay some of the (if one party offers to pay for the rest) plaintiffs ADR costs as a sign of good will Role of third party Unlikely defendants would offer anything close to amounts sought by the plaintiff BUT mediation may offer a good compromise. Stage of action Made early in the action (if early in proceedings more likely to refer) Risks of litigation Defamation Act at the time was complex and could result (if complex refer to ADR to avoid risk of long trial in an appeal and greater costs due to technical nature or law/facts involved) Success rate of mediation Even if not resolved, may resolve some issues (typically high) EXAMPLE Barrett v Queensland Newspapers (Samios DCJ) Facts: Action in defamation, defendants wanted another solution that was private, 2 defendant asked for an order be made to refer the matter to a mediation, 3 defendant supported the application but the plaintiff opposed it – the plaintiff obviously wanted their day in court Held: Court proceeded on the basis that he had a discretion to exercise that order. (Reasoning as above table) After Referral? • Claims are stayed 6 days after mediator’s report (filed) to certify that the medition process is finished: r321 • Referring order must specify extensive details: r323 (i.e. appointment of actual mediator to be used, enough detail about the pleadings and the documents relating to the dispute to inform the mediator, a start and end date, must state the % of costs each parties will pay) Mediation Process • Mediation must start ASAP after the mediator is appointed and try to finish within 28 days (of appointment): r324 • Parties must act reasonably and genuinely in mediation: r325 • Meditator must file a certificate after mediation: r331 (Form 5) Mediator may: r326 (1) gather information about the nature and facts of the dispute in any way they decide N.B. IF independent advice (below) (2) decide whether a party may be represented at the mediation and by whom (3) see the parties with or without their representatives, together or separately If successful: Mediator must ensure an agreement in (SCQA s107, DCQA s102, MCA s34) is sealed, marked with file number and filed: r329(1) If unsuccessful: Where the mediation is unsuccessful the costs of the mediation become costs of the dispute: r351. The dispute will continue without any inference being drawn against any party because of the failure to settle at mediation: r332 IF mediator wants to stop mediation: Mediator may abandon the mediation if they consider that it won’t lead to the resolution or the dispute or issue: r330(1). But must inform the parties of the mediator’s intention and give them an opportunity to reconsider their positions: r330(2). IF mediator seeks independent advice: Mediator may seek legal or other advice from third parties: r328(1) However if it costs extra then must obtain either parties agreement to pay or court’s leave: r328(2). The mediator must disclose the substance of the advice to the parties: r328(4). If the court gives leave: Court must also order the parties to pay the extra cost and state to whom and when payment is to be made: r328(3). IF party impedes the mediation process? A party impedes an ADR process if they fail to: r322 (a) attend; or (b) participate; or (c) pay within the time (as required under the order) If impede then it can be taken into account when finalising costs orders. IS MEDIATION APPROPRIATE? Appropriate if: • History of Cooperation: parties can demonstrate that they can work together • Limited issues and parties in dispute: when fewer parties and issues easier to resolve • Moderate to low hostility: easier to communicate • Ongoing relationship desired: long standing commercial/personal/employment relationship parties value • Desire to settle: e.g. economic/relationship/stress/health implications • External pressure to settle quickly: mediation is low cost and quick e.g. shareholder pressure / publicity • Leverage: allows give (of things they don’t value) and take (of things they do) IF party is merely fishing for information: Here [party] is using the mediation as nothing more than a fishing expedition. Rule 325 requires the parties to act reasonably and genuinely. This rule is read in conjunction with rule 5 philosophy provision; and empowers the court to apply sanctions if a party doesn’t proceed expeditiously. Not Appropriate if: • Legal precedent required: i.e. cacase needs to be open and not to be resolved behind closed doors, so that everyone is made aware of it and so that a legal precedent can be established • Where fraud alleged: If If someone has a history of broken promises, mediation will not work because the person needs to be forced to do the right thing • Where domestic violence alleged: Unlikely that someone will confess to this in mediation • Power imbalance between parties: either from resourresources, money, power, team of lawyers against self- represented party - it will likely be reflected in the resolution and court needs to provide a more equal footing ROLES IN MEDITION? Mediator’s role: ••CoControl process ••EnEnhance communication • Facilitate problem solving • Facilitate problem solving ••ReReality test (Gets the parties thinking that they might not win 100% and think in realistic terms. If a matter ddoes not go their way, advise of other alternatives are available to them) Lawyer’s role: ••ExExplain process to the clients before they go to mediation (make them comfortable and willing to participate) ••AdAdvise on strategy (advise of the options) ••EnEncourage client to participate genuinely ••WaWatchdog on disclosure (if your client is disclosing information, make sure that they let you know about it. TThe information disclosed should be consistent with the information given to you by the other party) ••WaWatchdog over mediator’s performance (make sure that mediator is impartial) CASE APPRAISAL A case appraiser provisionally decides a dispute: DCQA s92(1) • Evaluation of the relative positions of the parties by expert opinion • Can only give a decision that could be given by a court: r335 • Case appraiser must be a barrister or solicitor of at least 5yrs in Queensland and senior judge of the court must be satisfied that they know enough and have sufficient experience to adjudicate properly. After referral? • CClaims are stayed until after mediator’s report (while the parties are waiting for mediation to occur, all claims are stayed until 6 business days after the ADR convenor furnishes a report to certify that the ADR process is finished: r321 • Referring order must specify extensive details: r334 (i.e. appointment of actual mediator to be used, enough detail about the pleadings and the documents relating to the dispute to inform the mediator, a start and end date, must state the % of costs each parties will pay) • Party has the right to appear by lawyer or otherwise the party would have if the appearance were before the court: r336 • Appraiser must file certificate after completion and their decision (sealed, marked): r342 (Form 36) Case appraiser has a wide discretion (power of the court to decide the issues in dispute): r335(1) o But can only give a decision that could have been given by the court: r335(2)(a) o Cannot punish for contempt: r335(2)(b) IF party unhappy with the outcome: Dissatisfied party may elect to go to trial by filing notice of election within 28 days: r343 (otherwise the decision becomes final and binding r341(2). But costs of the failed appraisal become costs in the dispute: r351. AND if the ultimate decision of the court isn’t any better for the challenger then the court will award the costs of the proceeding and the case appraisal against him/her: r344. IF case appraiser seeks independent advice: Mediator may seek legal or other advice from third parties: r337(1) However if it costs extra then must obtain either parties agreement to pay or court’s leave: r337(2). The mediator must disclose the substance of the advice to the parties: r337(4). If the court gives leave: Court must also order the parties to pay the extra cost and state to whom and when payment is to be made: r337(3). IF party impedes the case appraisal process? A party impedes an ADR process if they fail to: r322 (a) attend; or (b) participate; or (c) pay within the time (as required under the order) If impede then it can be taken into account when finalising costs orders. IS CASE APPRAISAL APPROPRIATE? Is appropriate if: Is appropriate if: • NNeed for early realistic analysis of the case: some parties strongly believe that they will win and they are prepared to go to trial - may show the parties that their case might not be as strong as they thought. • EEncourage parties at outset to confront and analyse own situation: saves money and distress • IIsolate centre of dispute & identify non-contested issues: narrow issues thus reduce length and complexity • AAllow litigants and lawyers to hear the other side: may result in settlement PROCEDURE Preliminary Conference with the opponent: • Costs • Time/date/venue • Who must attend (authority to settle?) • Who will represent? • Disclosure • Further information necessary? • Procedure worked out • Will you need leave of the court to issue subpoenas/directions? Case Appraisal Session • Introduction (explain the case appraisal) • Parties or representatives make presentations • Appraiser asks questions to clarify positions and identify relevant authorities to guide their decision making • Appraiser identifies disputed issues and common grounds (to see how much would be contested if it went to trial) • Appraiser explores possibility of further agreement (after giving an indication of how they would likely decide, they will adjourn and give the parties another opportunity to settle it themselves) • If dispute not settled (appraiser will give their provisional decision within 24 hours of session finishing) • No need for appraiser to give reasons for decision DISMISSAL FOR WANT OF PROSECUTION A defendant/respondent may bring an application for dismissal of a proceeding where the plaintiff does not comply with the rules or an order of the court: r280 (recognises right of party to move on without the threat of litigation hanging over their heads from a slow plaintiff). Rule 280 (1) If— (a) the plaintiff or applicant is required to take a step required by these rules or comply with an order of the court within a stated time; and (b) the plaintiff or applicant does not do what is required within the time stated for doing the act; a defendant or respondent in the proceeding may apply to the court for an order dismissing the proceeding for want of prosecution. (2) The court may dismiss the proceeding or make another order it considers appropriate. (3) An order dismissing the proceeding for want of prosecution may be set aside only on appeal or if the parties agree to it being set aside. (4) Despite subrule (3), the court may vary or set aside an order dismissing the proceeding for want of prosecution made in the absence of the plaintiff or applicant, on terms the court considers appropriate, and without the need for an appeal. Criteria the court should examine when dismissing proceedings: Tyler v Custom Credit (Atkinson J) 1. How long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced; 2. How long ago the litigation was commenced or causes of action were added; 3. What prospects the plaintiff has of success in the action; 3. What prospects the plaintiff has of success in the action; 4. Whether or not there has been disobedience of Court orders or directions (or just oversight); 5. Whether or not the litigation has been characterised by periods of delay (or isolated incident); 6. Whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant; 7. Whether or not the impecuniosity (lack of money) of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff’s impecuniosity; 8. Whether the litigation between the parties would be concluded by the striking out of the plaintiff’s claim (will litigation continue regardless); 9. How far the litigation has progressed; 10. Whether or not the delay has been caused by the plaintiff’s lawyers being dilatory. 11. Whether there is a satisfactory explanation for the delay; 12. Whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial (if it is going to take place so long after the event that its going to be hard for the defendant to defend the claims with evidence to back up their defences and their recollection of their versions of events) N.B. Courts discretion isn’t fetted by rigid rules thus should take into account all the relevant circumstances of a particular case: Witten v Lombard DEFAULT JUDGMENT Default judgment is available to a plaintiff who has commenced their action and personally served all documentation to the defendant, but the defendant has chosen not to defend the action. REQUIREMENTS 1. Service of claim must be proven: r282. • An affidavit of service (Form 46) is required, proving that the defendant has been personally served • An affidavit of debt (Form 46) is required, proving that amount is still owing: r283 2. Defendant has not filed a NOITD within prescribed time: r281 (i.e. not willing to respond on merits) By either failing to: r281(1) NOITD must be filed within 28 days after the day the claim is served: r137(1) r281(2) CNOITD must apply for a r16 order within 14 days or it becomes an UCNOITD, the defendant/respondent must then file a defence within 7 days: r144 3. Request for default judgement (Form 25): r283 4. Default judgement draft order (Form 26): r283 The application for default judgment is to the court, constituted by the Registrar. • The Registrar is now considered to have a judicial role, not an administrative rule. • Therefore, they do not have to strictly comply with the rules. • The decision will have same effect as a judgment by the court: SCQA s84 FILING It is sufficient to file the application by sending it to the Registry by post: r967. Documents filed by post must be sent by pre-paid post and accompanied by: r969 (3) (a) Sufficient copies (b) Stamped envelope addressed to the party filing or solicitor (c) Any prescribed fee If a default judgment is given after filing by post, the Registrar must return the default judgment in the envelope provided: r969(7) th N.B. An affidavit of debt filed by post can be relied on only until the end of the 5 business day after the day it is sworn: r970 Types of Proceedings: Different types of proceedings have different rules in relation to default judgment: ••LiLiquidated debts (the sum of the debt is known, or capable of being calculated by reference to a scale or fformula, and there is no need for the court to assess the debt): r283; Spain v USC of NZ ••UnUnliquidated damages (need an assessment of how much is owed): r284 • DeDetention of goods: r285 • ••ReRecovery of possession of land: r286 ••MiMixed claims: r287 ••OtOther claims: r288 IF Unliquidated Damages (r284) Assessment of damages will be assessed by the court, the registrar or a lower court: r507 N.B. If lower court: Court isn’t limited to it’s jurisdictional limits: r507(5) • Assessment will be conducted as similarly possible to the trial: r509(1) • Plaintiff must serve a notice of the hearing date on the defendant: r509(3) • Court may give directions about conduct of assessment including the use of disclosure and pleadings or other directions: r510 • Registrar then issues a certificate of the amount of damages that has been assessed: r511 SETTING DEFAULT JUDGEMENT ASIDE: The court has a wide discretionary power to set aside or amend a default judgment and enforcement of them: r290 Relevant considerations to be taken into account: Unique Product Marketing Pty Ltd v. Bortek Sales Pty Ltd (Shanahan DCJ) (a) whether there is a good reason why the defendant failed to file a defence; (b) whether there has been any delay by the defendant in bringing the application; (c) the defendant's conduct in the action before and after judgment; (d) the defendant's good faith; (e) whether the defendant has raised a prima facie defence on the merits (raising triable issues); and (f) whether the plaintiff would be irreparably prejudiced if the judgment is set aside which cannot be adequately compensated by a suitable award of costs • A default judgment is entered into regularly when the UCPR is complied with. • A default judgment is entered into irregularly where the UCPR was not complied with (e.g. affidavit not signed on every page): Wingate Properties • Previously, the Registrar’s role was an administrative one. If a judgment was entered irregularly, then the default judgment must be set aside and there was no discretion of the Registrar: Brotic v Toohey • However, under the UCPR, the Registrar now acts judicially and has a wide discretion to set aside default judgments, regardless of whether default judgment was entered into regularly or irregularly. Now, the Registrar has the discretion to refuse to set aside a default judgment even if it was entered into irregularly. SUMMARY JUDGMENT Define: Process of obtaining judgement without a trial where the claim or defence is without merit. N.B. Similar to SOC being struck out in r171, but here difference is that here there will be a judgement not jus the striking out of a pleading (i.e. can still re-litigate the same point) Features: ••RuRules relating to summary judgment apply to any proceeding: r291 • Summary judgment can be obtained by both the plaintiff: r292 and defendant: r293 • Summary judgment may be ordered on all or only part of a claim: r292 & r293 • If no judgment is given, or judgment is given on part of a claim only, the claim, or remaining part of the claim, continues: r294(1) & 298 o The court can give directions or impose conditions on the future conduct of the proceedings where part of the proceedings applies: r298 • Application is made by way of application (Form 9): r31 • More than one application for summary judgment may be made, if the court gives leave: r294(2) • The parties cannot apply for summary judgment until after a NOITD has been filed: r292 & r293 o It is only after the matter has been joined (after defendant and plaintiff are apprised of the matters in hand) that an application for summary judgment can be filed. I.e. because the full nature of the claim and defence cannot be known to both parties until the claim and statement of claim have been drafted by them first and the notice of intention to defend has been filed. Evidence required: ••EvEvidence supporting the application is given by affidavit, unless the Court gives leave for oral evidence: r295(1) o Court would give leave for oral evidence to be heard in application for summary judgment e.g. if complicated medical evidence. ••ThThe affidavit may contain statements of information and belief if the sources of the information and the reasons for the belief are stated: r295(2) reasons for the belief are stated: r295(2) ••ThThe affidavit must exhibit documents relied on as part of the application to the affidavit: r295(3) ••ThThe deponent cannot be cross-examined unless the Court gives leave: r295(4) o The court could give leave for deponent to be cross-examined, where the nature of the evidence in the affidavit is of a very complex nature, controversial, heavily detailed, scientifically detailed, the affidavit is of a very complex nature, controversial, heavily detailed, scientifically detailed, historically detailed etc. Service: • The party applying for summary judgment (applicant) must file and serve the application and supporting affidavit at least 8 business days before the hearing date: r296(1); • The party responding (respondent) must file and serve its affidavit in reply at least 4 business days before the hearing date: r296(2) • The applicant’s affidavit in reply (if any) must be filed and served at least 2 business days before the date for hearing (rule 296(3)). Note, an applicant’s reply is not mandatory, and is not used very often in practice. N.B. s36 Acts Interpretation Act (business day = ‘day that is not Saturday or Sunday, or a public holiday, special holiday or bank holiday in a place in which act done’) Application by Plaintiff (The ‘Applicant Plaintiff’) In order to obtain summary judgement, the plaintiff must satisfy the court that: r292(2) • The defendant has no real prospect of successfully defending all or party of the claim; and • There is no need for a trial of all or part of the claim Burdon of proof – Plaintiff bears burden of proof to establish entitlement to a summary judgement. If the onus is discharged then onus shifts to the defendant to show evidence of an available defence or need for trial. Application by Defendant (The ‘Applicant Defendant’) In order to obtain summary judgement, the defendant must satisfy the court that: r293(2) • The defendant has no real prospect of successfully defending all or party of the claim; and • There is no need for a trial of all or part of the claim Burdon of proof – Defendant bears burden of proof to establish entitlement to a summary judgement. If the onus is discharged then onus shifts to the plaintiff to show evidence of an available defence or need for trial. NOTE FOR BOTH APPLICANTS: Elderslie Property Investments No 2 Pty Ltd v Dunn [2007] QSC 192 (31 July 2007) where Daubney J at paragraphs [7] ….where a plaintiff leads evidence to make out a prima facie entitlement to judgment, the evidentiary onus shifts to the defendant….. [8] The overall burden of proof in an application under UCPR 292, however remains on the plaintiff. True it is that in many cases the evidence required for the plaintiff to make out a prima facie entitlement will be relatively straightforward, such as in the case of proving a debt due and owing, and the evidentiary shift means that the real focus will be on determining whether the defendant has put on material sufficient to persuade the Judge that the court should not be satisfied that the defendant has no real prospects of defending the claim. But …. this is not such a case. Brypat Pty Ltd v Endless View Holdings Pty Ltd [2005] QSC 171 court was of the view that while the defences raised to the claim were weak, it could not be said that there was no real prospect of success and so it would be necessary to resolve issues arising on the conflicting evidence and questions of law. In circumstances, as here, where some of the defences raised were considered to be "shadowy", it was appropriate to require the defendant to make a substantial payment into court within 30 days. The plaintiff would be at liberty to enter judgment if the defendant failed to make the payment as ordered, and the court further considered it appropriate that a timetable for the speedy progress of the proceedings be fixed. Test for Summary Judgement A plaintiff or defendant should not be improperly denied an opportunity for a trial of the case. The court must balance between the expeditious and rapid dealing of issues and the natural justice issues related to the need to prevent the improper deprivation of the opportunity for a party to have full trial of the case or full ventilation of the issues. QUT v Project Constructions (Aust) Pty Ltd (In Liq) (2003) 1 Qd r 259 at 265 “it without doubt, the case that ‘great care must bee must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case.” Test under r171 does not apply to summary judgement. Test is a real as opposed to a fanciful prospect of success.for the trial of his case.” Test under r171 does not apply to summary judgement. Test is a real as opposed to a fanciful prospect of success. Old Approach: Gray v Morris (2004) 2 Qd R 118 at 126 per Chesterman J: party should only be deprived of the right of litigation in very clear cases, an assessment of the right to summary judgment should not entail any robust assessment of the outcome of the litigation. While expedition in litigation is desirable, it shouldn’t be in contradiction with justice. The enactment of UCPR didn’t change old rules “defence that was bound to fail, no prospect of defence” i.e. cannot possibly succeed, manifestly groundless, manifestly faulty, hopeless.” New Approach: DCT v Salcedo [2005] QCA 277 at [17]: “There has been a significant chasignificant change brought about by the implementation of rule 292 and rule 293 of the UCPR. The test for summary judgment is different, and the Court must apply the words found in the rule.” If a real prospect of success is established then the matter must go to trial. Summary judgment will not be obtained as a matter of course, and the judge hearing the application is called upon to determine whether the respondent to the application has established some real prospect or reasonable prospect of succeeding at trial. DCT v Salcedo does not necessarily indicate that the test is wider or narrower than before, but it is arguable that the test is wider given the discretion that is giv
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