LLB300 Chapter Additional Reading: College of Law - Case Preparations

216 views14 pages

scarlettoad922

27 Jun 2018

School

Department

Course

Professor

For unlimited access to Textbook Notes, a Class+ subscription is required.

College of Law Paper – Case Preparation, Pleadings and

Particulars:

Introduction:

Discusses the preparation of cases, pleadings and particulars applicable to civil

litigation in NSW

Civil Procedure Act 2005 (NSW) (CPA) and Uniform Civil Procedure Rules 2005

(NSW) (UCPR) govern the conduct of most litigation

oWhy Litigate?

Should be viewed as a last resort

Used only after careful analysis

Should not be viewed as an inflexible sequence of steps

Objective must be carefully considered

Clients usually instruct on a certain outcome

Lawyers job is to determine the best method

oThe Facts:

Often best to summarise the facts by taking statements of relevant facts

Have regard to the rules of evidence

Nature of the case usually dictates how information is obtained from witnesses

Technique – requiring clients to use a three-column table to describe every

significant event

First column – date

Second column – what is known to have happened

Third column – comments and speculations

oTime Limits:

Imperative to determine and inform the client of relevant time limits

Schedule of limitation periods is available on the LawCover website

Consider possible cross-claims or claims for indemnity or contributions

Sometimes these may be subject to different limitations

Be aware of unfamiliar jurisdictions

Must proceed on the basis that the time limit must be adhered to, even if there

are avenues for extensions

oCosts:

Legal Profession Act 2004 (NSW) s 309 – requires lawyers to disclose costs

Essential to advise of any change in circumstances relating to the conduct

of the case that will affect the original costs disclosure – s 316

Important to warn clients that if they lose, they may be liable to pay the other

sides ordinary or “party/party” costs

Costs agreements must be entered into in manner provided for in Div 5 of Part

3.2 of LPA

Conditional costs agreements should be explained – s 323

Clients of limited means – discuss a grant of legal aid

Must be familiar with the firms policy on legal aid and pro bono work

Preparation of the Case:

oCauses of Action, Remedy and Jurisdiction:

Necessary to consider:

Applicable limitation periods;

Possible causes of action;

Possible remedies anticipated by the client; and

Jurisdiction and forum to pursue the claim

find more resources at oneclass.com

Unlock document

This preview shows pages 1-3 of the document.
Unlock all 14 pages and 3 million more documents.

Already have an account? Log in

Important to be aware of jurisdictional limits of courts

Geographical and monetary

Have regard to provisions relating to costs orders (rr 42.34 and 42.35 of

UCPR)

oJurisdiction of the Supreme Court of NSW:

Superior court of record

Jurisdiction within constitutional competence

Governed by the Supreme Court Act 1970 (NSW), Supreme Court Rules 1970

(NSW) and UCPR

Section 23 of Supreme Court Act provides – ‘The Court shall have all

jurisdiction which may be necessary for the administration of justice in New

South Wales.’

oUNLIMITED jurisdiction

Where no statutory provision excludes jurisdiction – successful objection

requires

Necessary to establish that the relevant jurisdiction exists in some other

court – Re Totalisator Administration Board of Queensland (1988) 15 ALD

577

Some Federal status also confer jurisdiction

Cross-vesting legislation scheme – provides Supreme Court with power:

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth);

Jurisdiction of Courts Legislation Amendment Act 2000 (Cth);

Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW); and

Federal Courts (State Jurisdiction) Act 1999 (NSW)

Any state and territory Supreme Courts may (with limited exceptions)

exercise all of the original and appellate jurisdiction of every other court

Various Acts dealing with specialist tribunals and courts remove/reduce

jurisdiction

oJurisdiction of the Federal Court:

Court of superior record

Original jurisdiction conferred by s 39B of Judiciary Act 1903 (Cth)

Powers are contained in Federal court of Australia Act 1976 (Cth)

Must investigate whether particular legislation confers jurisdiction, even if it

cannot be found in the courts Act and Rules

oJurisdiction of the Federal Circuit Court:

Dervies it jurisdiction from the Federal Circuit Court of Australia Act 1999 (Cth)

FCC does not have jurisdiction solely on its own – shares jurisdiction with:

Family Court of Australia – family law and child support matters

Federal Court of Australia – administrative law, admiralty, bankruptcy,

consumer protection and trade practices, copyright, migration, privacy law,

unlawful discrimination and workplace relations law

oJurisdiction to her matters transferred from this Court

State Supreme Courts in some matters

Jurisdiction is more limited than other courts

Limited jurisdiction under the CCA

Damages are capped at $750,000 or other amount specified in regulations – ss

86AA and 138A

Powered to order injunctions – s 75B and 80

Does not deal with criminal matters

oJurisdiction of the District Court of NSW:

Derives jurisdiction from the District Court Act 1973 (NSW)

find more resources at oneclass.com

Unlock document

This preview shows pages 1-3 of the document.
Unlock all 14 pages and 3 million more documents.

Already have an account? Log in

Court of limited jurisdictions

Dependent on the amount claimed by P

Civil jurisdictions to deal with:

All motor accident cases, irrespective of the amount

Other claims to a maximum of $750,000 or higher if the parties consent

o‘deemed consent jurisdiction’ limit of $1,150,000 if no objection is

raised prior to 3 months before the hearing date – s 51

Exceptions to ‘jurisdictional limit’

Motor accident claims;

Work injury claims; and

Proceedings transderred to the District Court under s 146(1) of CPA

Miscellaneous limitations – s 48 – District Court does not have jurisdiction:

Amount claimed does not exceed $4,000

oUnless leave of the District Court is obtained – s 48(1)

Action relating to the title of land with a value of more than $750,000

oUnless it comes into question incidentally – s 48(2)-(3)

Action for the possession of land – s 48(4)

oJurisdiction of the Local Courts of NSW:

Derives jurisdiction from the Local Court Act 2007 (NSW) s 30

Monetary limit of $100,000

Claims arising from personal injury or death – limit of $60,000

Local Court does not have jurisdiction over – s 33(1)

Proceedings relating to the validity of any element of a settlement dispute

Proceedings for passing-off, wrongful arrest, false imprisonment, malicious

prosecution or defamation

Proceedings for the infringement of patents or copyright

Proceedings relating to the deterntion of goods:

oSubject to a hire-purchase agreement; or

oGoods detained by their owner, or some other person acting on the

owners behalf

Proceedings where the title to land is in question

Two divisions:

Small Claims Division – limit up to $10,000; and

General Division – limit up to $100,000

Parties to proceedings in the General Division may consent to have the matter

heard in the Local Court where the limit is exceeded but not by more than 20%

– s 31

Also subject to the UCPR and the Local Court Rules 2009 (NSW)

oVenue:

Part 8 of UCPR – unless the court orders, the venue is to be the place P

specifies in the originating process

D may apply to have the venue changed

oApplication may cause delay

Relevant factors include:

Nature of the case;

Place where D resides or operates business;

Place where the cause of action arose;

Where the majority of witnesses are situation;

Expense;

Whether there is any prejudice or possibility of not having a fair trial;

Whether delay would occur;

Convenience and availability of court resources; and

find more resources at oneclass.com

Unlock document

This preview shows pages 1-3 of the document.
Unlock all 14 pages and 3 million more documents.

Already have an account? Log in

Document Summary

College of law paper case preparation, pleadings and. Discusses the preparation of cases, pleadings and particulars applicable to civil litigation in nsw. Should be viewed as a last resort. Should not be viewed as an inflexible sequence of steps. Clients usually instruct on a certain outcome. Lawyers job is to determine the best method: the facts: Often best to summarise the facts by taking statements of relevant facts. Have regard to the rules of evidence. Nature of the case usually dictates how information is obtained from witnesses. Technique requiring clients to use a three-column table to describe every. Second column what is known to have happened. Third column comments and speculations: time limits: Imperative to determine and inform the client of relevant time limits. Schedule of limitation periods is available on the lawcover website. Consider possible cross-claims or claims for indemnity or contributions. Sometimes these may be subject to different limitations.

LLB300 Chapter Additional Reading: College of Law - Case Preparations

Document Summary

Get access

Related Documents

70104 Study Guide - Midterm Guide: Alternative Dispute Resolution, Civil Procedure Rules, Determinative

BUS 410 Chapter Notes - Chapter 3: Summary Judgment, Interrogatories, Jury Trial

BLAW 3201 Chapter : BLAW Chapter 3 Outline