LAWS5215 Final: LAWS5215 Exam Scaffolds
CIVIL PROCEDURE SEMESTER 1 2013
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Topic 1: Overview of a Civil Proceeding
o Civil dispute
o Any legal dispute that is not a criminal dispute – public or private law – minor or otherwise
o DISPUTE: disagreement about specific issues or about isolated actions and/or inactions
o What is the civil justice system?
o “….combination of institutions and individuals authorised by the state to resolve disputes and, in so doing, set and
enforce standards of behaviour for those belonging to the state” – Gleeson CJ
o It includes:
o The laws and legal framework;
o Services that provide information and advice in relation to legal issues, including rights, advice, assistance,
advocacy, DR and representation;
o Primary decision makers making decisions affecting rights;
o Complaint handling bodies;
o DR services that help people negotiate their own solutions;
o Tribunals and courts.
o Purpose: “It is the method by which the state - the government - enforces the legal rights and obligations of citizens. The law,
whether enacted by Parliament or declared by judges, defines those rights and obligations. Their existence raises the possibility of
disputes, either between citizens, or between the government and citizens. The courts exercise the judicial power of government,
which secures justice, and keeps the peace, by enforcing the civil law and imposing the will of the state on disputing parties”.
o Basic purposes for CJS: system for people to vindicate rights & resolve disputes
o Essential that system must be equally accessible to all & lead to results that are individually and socially just.
o impartially, fairly, without unjustifiable delay and with the minimum but necessary use of public resources.
o Civil procedure includes the rules, procedures and practices governing the process of the determination and adjudication and enforcement
of civil disputes.
o resolved through formal justice (through court system) or informal justice (private ADR; ombudsman etc) or everyday justice (parties
resolution)
o formal justice: using coercive power of state (trial/court order) but State cannot recover costs
Overview of the civil court system
o Controlled by parties
o Juries principally act as finders of fact and judges are non-interventionist
o Procedural rules take a back seat to determination of dispute
o BUT criticism: expensive/slow to resolve/lack of equality with resourced parties/too adversarial/rules ignored
o Reforms include case management/minimising use of courts/removing juries/professional obligations on lawyers
REFORM: CASE MANAGEMENT
Case management has been introduced with the objective of reducing unnecessary costs and delay in the resolution of civil proceedings as well as
promoting the resolution of civil proceedings prior to trial. Case management involves court supervision of the pre-trial steps in proceedings.
Process for obtaining interlocutory orders
Please note that LIFT does not warrant the correctness of the materials contained within the notes. Additionally, in some cases, these
notes were created for previous semesters and years. Courses are subject to change over time, both in content and scope of
assessment. Thus the information contained within may or may not be assessed this semester, or the information may have been
superseded. These notes reproduce some copyrighted material, the use of which has not always been specifically authorised by the
copyright owner. We are making these materials available for the purposes of research and study and as such believe that this
constitutes fair dealing with any such copyrighted material pursuant to s 40 Copyright Act 1968 (Cth).
CIVIL PROCEDURE SEMESTER 1 2013
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Courts have long provided mechanisms for parties to seek interlocutory orders in relation to procedural matters: rules 31 and 32. In addiiton, parties
can apply for directions at any stage of the proceedings: rules 366 and 367.
Adversarial System
Features of the adversarial system – procedural system:
ď‚· Controlled by parties;
ď‚· Juries principally act as finders of fact;
ď‚· Role of court/judge is relatively passive and non-interventionalist;
ď‚· Procedural requirements subservient to determination of substantive legal dispute between the parties.
Criticisms of adversarial system:
1. Expensive.
2. Too slow in bringing cases to a conclusion.
3. Lack of equality between wealth, well-resourced litigants and under resources litigants.
4. Too adversarial.
5. Rules of court too often ignored by the parties and not enforced by the courts.
Key Queensland reforms:
ď‚· Mechanisms to minimize the use of court adjudication to finalise cases.
o E.g. introduction of specialist tribunals (e.g. QCAT) to get matters resolved in a more appropriate forum.
o Filtering actions for trial through ADR processes.
ď‚· Time lines for taking certain steps in a proceeding in the UCPR.
ď‚· Reducing court involvement in certain steps in a proceeding.
ď‚· Narrowing scope of disclosure.
ď‚· Mechanisms to narrow the issues in a proceeding.
o E.g. Notices to Admit, the effect of a plea of “do not admit” in a defence.
ď‚· Case flow management.
ď‚· Near removal of jury trials.
ď‚· Additional professional obligations on lawyers.
Ongoing problems in Queensland
ď‚· Supreme Court Annual Report 2010/2011:
o “Trials, civil and criminal, continue to grow in length, especially in Brisbane. This expansion in the number of days committed to
trials inhibits the court’s capacity to dispose of its workload as quickly as the judges would wish. It also adds to expense, both public
and private. Earlier, more intensive judicial case management is needed to try to address some of the causes of this ongoing
inflation”.
ď‚· In Queensland, all cases have a general timeline. Specific types of cases have individual case management, whereby courts hone in on
specific obligations at specific steps of the proceedings. There is also a power to refer matters to ADR.
CASE MANAGEMENT
Rationale: reduce cost and delay, and ensure avenues for resolution before trial are explored.
Rule 5: Philosophy – overriding obligations of parties and court
1. The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
2. Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating
the purpose of these rules.
3. In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.
4. The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.
Example—
The court may dismiss a proceeding or impose a sanction as to costs, if, in breach of the implied undertaking, a plaintiff fails to
proceed as required by these rules or an order of the court.
Rule 5 sets out the overriding objectives used to interpret other provisions in the UCPR and guides the court in managing litigation. This objective
entrenches expedition and efficiency as goals in the litigation process. Case flow management was introduced to give practical effect to rule 5.
Courts have made it clear that “parties do not have an inalienable right to a hearing on all issues on the merits”: de Jersey CJ Ridolfi v Rigato Farms.
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Civil Cases: General practices and Requirements
ď‚· The court may give directions about the conduct of a proceeding at any time: 366(2)
ď‚· A party may apply to the court for directions at any time: 366(3)
ď‚· The court has an extensive power to give directions: 367 (i.e. any direction that it considers appropriate)
o Give directions about pleadings
o Limit the time to be taken by the trial or hearing or party in presenting its case
o Require evidence to be given by affidavit, orally or in some other form
o Limit the number of witnesses (including expert witnesses) a party may call
o Require that submissions be made as the court directs, e.g. in writing, orally, or a combination of written and oral submissions.
o Limit time taken in examining and cross-examining or re-examining witnesses etc.
o Limit time for making and the length of submissions.
o Require the parties to provide witness statements before the trial.
ď‚· In deciding whether to make an order or direction, the interests of justice are paramount: 367(2)
ď‚· Parties can consent to participate in ADR, or the court may order it.
Alternative Dispute Resolution
The Supreme Court of Queensland Act 1991 establishes ADR as part of the pre-trial management process. It is virtually compulsory for the parties to
participate. The process aims to promote negotiated settlements and the satisfactory resolution of disputes within the framework established under
the Act: s94.
Part 6 of the Civil Proceedings Act 2011 (Qld) (and section 95 of the Supreme Court of Queensland Act 1991) provides that there are 2 processes you
can be ordered to attend by the court:
1. Mediation – a process under which the parties use a mediator to help them resolve their dispute by negotiated agreement without
adjudication (s96)
2. Case appraisal – a process under which a case appraiser provisionally decides a dispute. Parties may choose to accept or reject the decision.
If they elect to proceed to trial, the appraiser’s decision is placed on court file and may have cost consequences. Case appraisal is rarely used
(s97).
The court has unlimited discretion in deciding whether to refer a case to mediation / case appraisal. The court may take account of whether costs
would be disproportionate to the benefits of a trial, the likelihood of an appraisal producing a compromise or the abandonment of a claim or defence,
and whether other circumstances justify an appraisal: s102.
If the court refers a dispute to ADR, the parties must attend before the mediator or case appraiser at the appointed time and date, and must not
impede the conduct of the process. A party impedes the ADR process by failing to attend or participate in the process for example.
Evidence of statements made or acts done at mediation or case appraisal is inadmissible in subsequent civil proceedings, except as to fraud in the ADR
process, unless all parties agree: s114.
Supreme Court Practice Direction 17 of 2012: “Case Flow Management – Civil Jurisdiction”
- Resolution of matters within 180 days of the filling of the defence (approx. 6 months).
- If not resolved within 180 days, parties will receive a letter from the Registrar asking parties to “show cause” (in which parties must state
what they will do to resolve the matter in a timely manner).
- Can (within 28 days):
o File a written notice of discontinuance
o Give written notice that matter is settled
o File a request for trial date
o Otherwise justify your failure to file a request for trial date within 180 days.
 If so, you must propose a plan as to how you will prepare the matter for trial.
- Failure to respond will result in the matter being listed before the case flow management review judge.
Supreme Court Practice Direction 11 of 2012: “Supervised Case List”
- A specific judge is allocated, who will regularly review proceedings and make directions at any stage to ensure that the parties are moving
expeditiously through the designated steps.
- In relation to disclosure, which is ordinarily automatic under the UCPR rules, it is not automatic under this Practice Direction. You disclose
pursuant to the document management plan (agreed between the parties and the court).
- Parties are required to attempt to reach settlement.
Document Summary
Please note that lift does not warrant the correctness of the materials contained within the notes. Additionally, in some cases, these notes were created for previous semesters and years. Courses are subject to change over time, both in content and scope of assessment. Thus the information contained within may or may not be assessed this semester, or the information may have been superseded. These notes reproduce some copyrighted material, the use of which has not always been specifically authorised by the copyright owner. We are making these materials available for the purposes of research and study and as such believe that this constitutes fair dealing with any such copyrighted material pursuant to s 40 copyright act 1968 (cth). combination of institutions and individuals authorised by the state to resolve disputes and, in so doing, set and enforce standards of behaviour for those belonging to the state gleeson cj.
