LAWS1014 Lecture Notes - Lecture 2: Netcat, 6 Years, Judgment Debtor
16 May 2018
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WEEK 2: MATTERS PRECEDING & COMMENCING LITIGATION
2.1. Matters preceding litigation
2.1.1 Jurisdiction
• A prospective plaintiff needs to ensure that the court:
a) Has jurisdiction to hear the claim
b) Is appropriate for dealing with the subject matter and value of the claim (jurisdictional
monetary limits)
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• Equitable reliefs:
Only granted by the Supreme Court
District Court has some equitable jurisdiction under the District Court Act 1973
(NSW) s134
• Legislative remedy:
Can only sue in court specified by legislation
E.g. a building claim pursuant to the Home Building Act 1989 (NSW) is brought in
the NSW Civil and Administrative Tribunal (NCAT)
• Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth):
Note that Federal jurisdiction can be conferred onto State courts, but not the other
way around: Re Watkin, Ex parte McNally (1999)
s4: Conferral of federal jurisdiction on state courts
s4: Cross-vesting of State jurisdiction among State courts
s5: Transfer of proceedings between courts participating in the scheme
▪ Provides that if a court believes that it is in the interests of justice that the
proceedings be determined by another designated court, then that first court
‘shall transfer’ the proceedings to that other court.
▪ NO requirement that the first court is a ‘clearly inappropriate’ forum, merely
that it is in the interests of justice to be transferred
▪ Deference should not automatically be given to P’s choice of forum
▪ BHP Billiton Ltd v Schultz
Facts: Plaintiff suffered from asbestos related diseases and sued in the
Dust Diseases Tribunal of NSW. BHP applied to transfer to the
Supreme Court of NSW and then transfer them to the Supreme Court
of SA
The judge determined that choosing an appropriate court looks at
considerations of ‘cost, expense and convenience’
Another consideration is that in weighing the ‘interests of justice,’ the
advantage that the plaintiff may obtain in one court may be matched
by a ‘corresponding and commensurate disadvantage to a defendant’
[16] This cancels out justice
Considered the BHP Co Ltd v Zunic, where it was appropriate to
consider the plaintiff’s short life expectancy, hence weight given to the
interests of one party would dictate how appropriate transfer was.
However in the Schultz case, the plaintiff’s choice of tribunal and
reasons are not taken into account
Factors relevant in deciding choice of forum include:
a) Place(s) where parties reside or carry business
b) Location of subject matter of dispute
c) Importance of local knowledge in resolving issues
d) Law governing relevant transaction
e) Procedures available in different courts
f) Likely hearing dates in different courts
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g) Whether it is sought to transfer proceedings to a specialised court
2.1.2 Limitation periods
• Limitation period: the time period within which to bring a claim
• In NSW, if more than one cause of action is pleaded, the applicable limitation period is the
earliest
• Rationale for limitation periods:
Driven by the general rationale that ‘where there is delay the whole quality of justice
deteriorates:’ R v Lawrence [1982] AC 510, per Lord Hailsham
Evidence diminishes e.g. crucial witnesses are deceased, important documents
destroyed or misplaced
People, particularly corporations, should be able to arrange affairs and make the
most productive use of their resources, without the disruptive effects of unsettled
claims. Otherwise, this would negatively impact shareholders, ratepayers and other
institutions linked to corporations
McHugh J in Brisbane South Regional Health Authority v Taylor: ‘the chance of
an unfair trial occurring after the limitation period has expired is sufficiently great
to require the termination of the plaintiff’s right of action…’
• Generally, limitation periods begin upon the gaining of a cause of action and is stopped by the
commencement of proceedings
• Certain limitation periods may be postponed e.g. fraud (Limitation Act 1969 (NSW) ss52-56)
• Certain limitation periods may be extended (Limitation Act 1969 (NSW) s56A)
• After 30 years in NSW, all causes of action are dead
Cause of action
Period
Contract
6 years from the date on which the cause of
action accrues to the plaintiff: s14(1)(a)
Limitation Act 1969 (NSW). Limitation period
begins at the date of breach.
Tort general
6 years from the date on which the cause of
action accrues to the plaintiff: s14(1)(b)
Limitation Act 1969 (NSW)
Limitation periods begin after the damage has
been suffered
Breach of trust or recovery of trust properties
6 years from the date on which the cause of
action accrues to the plaintiff: s 48 Limitation
Act 1969 (NSW)
Cause of action founded on a deed
12 years from the date on which the cause of
action accrues to the plaintiff: s16 Limitation
Act 1969 (NSW)
Recovery of land
12 years from the date on which the cause of
action accrues to the plaintiff: s27(2) Limitation
Act 1969 (NSW)
Defamation
1 year from the date of publication: s14B
Limitation Act 1969 (NSW)
Work injury
3 years after the date on which the injury was
received: s 151D Workers Compensation Act
1987 (NSW)
Motor accident
3 years after the date of the motor accident: s
109 Motor Accidents Compensation Act 1999
(NSW)
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
2. 1. 1 jurisdiction: a prospective plaintiff needs to ensure that the court, has jurisdiction to hear the claim, is appropriate for dealing with the subject matter and value of the claim (jurisdictional monetary limits, equitable reliefs: District court has some equitable jurisdiction under the district court act 1973 (nsw) s134: legislative remedy: Can only sue in court specified by legislation. E. g. a building claim pursuant to the home building act 1989 (nsw) is brought in the nsw civil and administrative tribunal (ncat) Note that federal jurisdiction can be conferred onto state courts, but not the other way around: re watkin, ex parte mcnally (1999) S4: conferral of federal jurisdiction on state courts. S4: cross-vesting of state jurisdiction among state courts. S5: transfer of proceedings between courts participating in the scheme: provides that if a court believes that it is in the interests of justice that the proceedings be determined by another designated court, then that first court.
