LLB300 Chapter Notes - Chapter 1-2; 9; 12: Australian Law Reform Commission, Fide, Adverbial Phrase
TOPIC 1 – OVERVIEW OF CIVIL PROCEDURE INTRODUCTION;
CASE MANAGEMENT; ADR:
Chapter 1 – Introduction to Civil Procedure:
Procedural Law – 1.20:
oProcedural law is “rules which are directed to governing or regulating the mode or
conduct of court proceedings” – McKain v R W Miller & Co (SA) Pty Ltd (1991)
oDescribed as “adjectival” law
oRegulates the way substantive rights and obligations are claimed and enforced
oGoverned by lex fori – applicable rules of procedure and evidence are the laws of
the forum (court)
oPurpose – provide rules to facilitate dispute resolution
oBasis lies in the need to provide procedural fairness or due process
Promoting access to justice
oDame Hazel Genn, “Introduction: what is civil justice for?” (2010):
Procedural rules guarantee procedural fairness and procedural fairness is
important in its own right and through its link to justice
Bentham – saw procedural fairness as the machinery of civil justice
Procedural fairness is designed to ensure judges have all appropriate
evidence available so they can find material facts and apply it to substantive
law
Important because of its link to the substantive outcome
Important influence on user perceptions
Lawrence Solum – “process guarantees rights”
Sources of Procedural Law:
oPowers Provided by Statute – 1.30:
Mainly found in Civil Procedure Act 2005 (NSW) and Uniform Civil Procedure
Rules 2005 (NSW)
Apply in Supreme, District and Local Courts
Supreme Court Rules 1970, District Court Rules 1973 and Local Court Rules
2009 provide some procedural rules
Enable the power of a rules committee to make procedural rules
oInherent and Implied Jurisdiction – 1.40:
Inherent jurisdiction in superior courts (Supreme) to regulate their process and
prevent an abuse of process – Jago v District Court of NSW (1989) and
Batistatos v Roads and Traffic Authority of NSW (2006)
District and Local Court have a limited jurisdiction which arises under statute or
is derived by implication from statutory provisions – Grassby v R (1989)
Grassby v R (1989):
“…the Supreme Court of New South Wales exercises an inherent
jurisdiction. Although conferred by statue, its powers are identified by
reference to the unlimited powers of the courts at Westminster. On the
other hand, a magistrate’s court is an inferior court with a limited
jurisdiction which does not involve any general responsibility for the
administration of justice beyond the confines of its constitution.”
Courts whose powers are defined by statute (Local and District Court) – “there
is an implied power to do that which is required for the effective exercise of its
jurisdiction” – TKWJ v The Queen (2002)
“really necessary to secure the proper administration of justice” – John
Fairfax & Sons Ltd v Police Tribunal (NSW) (1986)
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“necessary” is “subjected to the touchstone of reasonableness” –
Pelechowski v Registrar, Court of Appeal (NSW) (1999)
Guiding Principles for Procedure – 1.80:
oOverriding purpose of CPA “is to facilitate the just, quick and cheap resolution of the
real issues in the proceedings” – s 56
oParties to proceedings are required to assist the court to further the overriding
purpose, and solicitors and barristers must not cause the client to be in breach of
duty – s 56(4)
oCourt must act in accordance with the dictates of justice – s 58
Consider the overriding purpose and objects of case management – s 56-7
Matters set out in s 58(2)(b)
oCourt must exercise its practices with the object of eliminating any lapse of time
between commencement and final determination beyond what is reasonably
required for the fair and just determination of issues – s 59
oCost to parties must be proportionate to the importance and complexity of the
subject matter – s 60
Adversarial System of Civil Litigation:
oMain Features of Adversarial and Inquisitorial Systems – 1.90:
Australian Law Reform Commission, Review of the Adversarial System of
Litigation: Rethinking the Federal Civil Litigation Systems (1997):
Legal “families” are not rigidly distinguished but there are sufficient
significant differences to define them
Both have the aim of achieving just resolution of disputes and maintenance
of social order
o“It is their means of achieving such ends which differ”
All legal systems in the western world are hybrids to a certain extent
Essential features of common law family include:
oDetermination of disputes based on their individual circumstances and
related judge-made case-law
oApplies to all legal persons
oCourt room practice is rigid with technical rules
oJudiciary is more reactive than proactive
Common law courtroom trial is a forum in which arguments are pitted
against each other
oReforms of the Adversarial System of Litigation – 1.110:
Criticism of the adversarial system due to its cost and delay, and for producing
unjust, unequal and inaccurate results
Lord Woolf conducted a review (1995-6)
oFound the problem was restricted access to justice
oRecommended a number of reforms
oRecommendations came into effect with Civil Procedure Rules 1998
Sir Rupert Jackson conducted a review into case management and costs to
promote access (2009)
oRecommendations are implemented in 2013
Greater use of case management and ADR
Victorian Law Reform Commission, Civil Justice Review (2008):
“the commission accepts that “access to justice” is a qualified right.
Governments cannot reasonably be expected to provide unlimited
publicly funded resources for the adjudication of disputes, particularly
private disputes that do not have significance beyond the interests of
the individual parties.”
“the goals of the civil justice system cannot be pursued without some
moderation”
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Topic 1 overview of civil procedure introduction; Promoting access to justice: dame hazel genn, introduction: what is civil justice for? (2010): Procedural rules guarantee procedural fairness and procedural fairness is important in its own right and through its link to justice. Bentham saw procedural fairness as the machinery of civil justice. Procedural fairness is designed to ensure judges have all appropriate evidence available so they can find material facts and apply it to substantive law. Important because of its link to the substantive outcome. Sources of procedural law: powers provided by statute 1. 30: Mainly found in civil procedure act 2005 (nsw) and uniform civil procedure. Apply in supreme, district and local courts. Supreme court rules 1970, district court rules 1973 and local court rules. Enable the power of a rules committee to make procedural rules: inherent and implied jurisdiction 1. 40:
