Introduction  to  Civil  Procedure

Introductory Concepts

Procedural Law Procedural  law  is  “adjectival”:  governs  the  conduct  of  proceedings  before  the  court  such  that  it is the mode of proceedings to enforce a right rather than the law which establishes that right (which are substantive).

Steps in civil litigation

1. Pre-commencement (e.g. letter of demand + preliminary discovery) 2. Filing and Service of Origination Process (statement of claim or summons served) 3. Particulars (defendant might ask for more information or attempt to strike out claim) 4. Defences/Cross-claims 5. Discovery 6. Filing of evidence 7. Affidavits 8. Trial 9. Appeal 10. Enforcement

Sources of Procedural Law

1. Civil Procedure Act 2005 (NSW)  (“CPA”)

2. Uniform Civil Procedure Rules 2005 (NSW)  (“UCPR”)

3. Practice Notes a. Examples:

i. NSW Supreme SC Gen 7 – Use of technology 9 July 2008 ii. SC Gen 6 – Mediation, 15 March 2010

iii. SC Cl 5 – Supreme Court Common Law Division – General Case Management List 5 December 2006

4. Inherent/Implied power – these are the inherent rules within the court and the general responsibility of the court to ensure procedural fairness.

a. Implied and inherent jurisdiction were looked at in: i. Grassby v R

1. The distinction between inherent and implied distinction is important, but is not always made clear.

ii. Pelechowski v Registar 1. Built on Grassby by saying inherent jurisdiction is based on the

touchstone of reasonableness

Guiding Principles for Procedure (s 56-60)

1. The court must give effect to the overriding purpose of the of the CPA/UCPR in exercising its power

a. The overriding purpose: facilitate the just, quick and cheap resolution of the real issues in the proceedings (CPA s56)

2. Party to proceedings must assist the court in furthering the overriding purpose and a solicitor cannot cause a party to breach this obligation (CPA s56(4))

3. Court must act in accordance with the dictates of justice whether to make any order or direction for the management of proceedings (including amendment or adjournment)(CPA s58)

4. Dictates of justice: a. Overriding purpose (CPA s56) b. Case management (CPA s57) c. Matters set out in CPA s58(2)(b)

i. Difficulty or complexity of the issues; ii. How expediently parties have approached proceedings (consider

interlocutory activities), and iii. whether lack of expedition is beyond their control; vi. Injustice which would result from any order of direction.

5. Court must implement the above with the object of a. Eliminating delay beyond that which is required for the fair and just determination

of the issues and the preparation of the case for trial (CPA s59) b. Resolving the issues in such a way that the costs are not disproportionate to the

importance and complexity of the issues (CPA s60)

Adversarial System of Civil Litigation [see 1.50-1.70 for policy type analysis]

Features of an adversarial model include: Features of an inquisitorial model which has

A party controlled dispute (that the parties define the dispute an present evidence and argument)

The  judge’s  role  as  both  proactive and inquisitive

Uses precedent, procedural rules and laws of evidence

Main sources of law are codes with commentary from legal scholars

An impartial judge acting as an umpire Minimal rules of courtroom practice

Reliance on oral testimony which is adduced from witnesses and subject to cross-examination

Emphasis on documentary proof rather than oral evidence

Advocates use oral argument No rigid separation between trial and pre-trial phases

Trial is the climatic end to the litigation process

No transcript of recorded proceedings.

The use of trial transcripts for an appeal

We  have  a  “cards on the table”  approach  (Baulderstone Hornibrook Engineering v Gordian Runoff [2008] NSWCA 243) – essentially you have to put forward all your arguments and legal issues before the trial. Æ The rationale is that it saves time and money in the courts by focussing on the real issue. Æ In Baulderstone the advantages were spoken about: (a) clarity, openness and cooperation between the parties rather than ambush or surprise; (b) litigation is dynamic, but if you have a narrower set of issues it is more efficient and the case can be presented in a logical way.

Principles of civil litigation

(1) Open justice Justice must not only be done but must be seen to be done (R v Sussex Justices; Ex parte McCarthy [1942]).

Spigelman CJ in John Fairfax Publications Pty Ltd v District Court of NSW (2004):

1. Is one of the most fundamental aspects of the system of justice in Australia 2. Is an essential quality of an Australian Court of justice 3. Cannot be overridden by any inherent power of the court to exclude the public

Spigelman CJ in R v Richards & Bikerk (1999):

4. Provides that court proceedings are conducted in public and exposed to the glare of publicity 5. Provides the general public with a privilege such that the courts should be open to all 6. Is one of the great protections against arbitrary power 7. Reassures that justice is administered fairly and impartially

McHugh J in John Fairfax & Sons Ltd v Police Tribunal of NSW (1986):

8. Requires that nothing should discourage the making of fair and accurate report (publication of evidence)

If justice is seen to be done, it is more likely to be done. The overall benefits include:

a) Accessibility to justice and understanding of the court b) More trust in the court

Principle of open justice may be overridden in exceptional circumstances (R v Richards & Bikerk) if it is really necessary to secure the proper administration of justice in the proceedings (John Fairfax & Sons Pty Ltd v Police Tribunal of NSW (1986)). It cannot be that it would be merely useful or desirable (John Fairfax Publications Pty Ltd v Ryde Local Court (2005)).

CPA: 71 Business in the absence of the public

Proceedings may be conducted in the absence of the public in any of the following circumstances:

a) on the hearing of an interlocutory application, except while a witness is giving oral evidence, b) if the presence of the public would defeat the ends of justice,

Principle of open justice

Exceptions

c) if the business concerns the guardianship, custody or maintenance of a minor d) if the proceedings are not before a jury and are formal or non-contentious, e) if the business does not involve the appearance before the court of any person, f) if, in proceedings in the Equity Division of the Supreme Court, the court thinks fit, g) if the uniform rules so provide

Exceptions are strictly defined (R v Tait (1979)) NB: Even  though  the  categories  are  ‘strictly  defined’  they  are  not  absolute  and  may  be  extended  to  categories closely analogous to the existing categories: R v Kwok

x Protect the identity of an informer/victim (Attorney-General (NSW) Nationwide News Pty Ltd [2007])

x Protect the identity of victims of blackmail x Matters of national security (Mirror Newspapers Ltd v Waller (1985)).

Media and publicity is unlikely to constitute an exception based on prejudicing the jury pool (presumption that jury will remain unbiased) and is unlikely to necessitate a non-publication order. That is, just because it is a jury trial with large media interest does not mean there should be a non-publication order; you should assume that the jury will remain unbiased (Enfield v R (No 2) [2008]).

Liquidation claims may be conducted in the absence of the public as per s 71(b) if it is believed that the evidence adduced being made available to the insolvent company would detrimentally impact the ability  of  the  liquidators  to  advantageously  pursue  creditors’  claims:  Re HIH Insurance [2007].

In Hogan v Hinch, Hinch had exposed the name of sexual offenders and argued that Ch III implied that all state and federal courts should be open. French CJ said that there is a limited power to suppress information and it is within the power of parliament to make orders which close proceedings however this should be considered against the administration of justice. If the legislation gives the court entire power to do this, it would not be valid.

(2) Reasons for decision

The provision of reasons for decision is also an expression of the open court principle. The decisions are open to public scrutiny. In Wainhou v NSW, Wainhou argued that NSW legislation preventing the reason for decision being needed was invalid. This was upheld in the HCA.

(3) Fair trial The  ‘principle’  [as  opposed  to  right]  that  someone  must  be  afforded  a  fair  trial  is  recognised  in  civil  proceedings; the function of providing proper notice is fundamental to the basic requirement of procedural fairness: Banque Commerciale SA (in liq) v Akhil Holdings Ltd

Principle of fair trial manifests itself in almost every aspect of practice and procedure.

x Reasonable notice of the case a person has to meet x Reasonable opportunity of presenting his or her case x Differentiation between onus and standard of proof in civil/criminal proceedings x Disclosure rules x Adjournment rules x Right of cross-examination

It is based on the inherent power of the court to control and prevent abuse of its process. This applies where the process of the court is converted into an instrument of injustice and unfairness (Walton v Gardiner (1993)).

x It is important to maintain this principle because there is no law requiring fair trial, unlike in America and some other jurisdictions.

In Stead v State Government Insurance Commission it was held that it was an unfair trial when the reason for the guilty judgement was based on psychiatrist evidence which the defence counsel and judge  had  discussed  wouldn’t  be  used  because  it  was  not  reliable.  The  HCA  asked  if  it  would  have  made a difference if the defence counsel could have argued why not to use the evidence. They essentially said that not every departure from procedure is a miscarriage of justice, only if it would have made a real difference to the outcome will it be found to be and unfair trial.

In Mastronardi v NSW, he was assaulted in prison for being recognised as a former security guard. He argued negligence by the state. In the judgment it was held that the case was tainted and there needed to be a retrial.

The  Crown  is  meant  to  be  the  “Model  Litigant”  where  all  Crown  agents  must  act  completely  properly  and as per the standards of the procedural rules of the court:

- Keeping costs to a minimum - Not having unreasonable delay - Accept claims rather than proceeding to litigation - They  don’t  contest  liability  if  it  shouldn’t  be

The right to a fair trial recognised in human rights legislation (See (5) below) [see 1.180]

ACT Human Rights Act 2004

Another one? Victorian?

A right to a fair trial is recognised in the limited Human Rights legislation that we do have. The judiciary is obliged to interpret legislation in a way that is most compatible with human rights rules.

1. The general principle that a litigant is entitled to a fair trial at which he could put his case properly before the court is subject to the qualification that an appellate court will not order a new trial if a properly conducted trial could not possibly have resulted in a different order from that made at the first trial (Stead v State Government Insurance Commission).

2. When the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact (e.g. unreliable witness) it is more difficult for a court of appeal to conclude that affording natural justice would have made no difference (Stead v State Government Insurance Commission).

3. Ability to order a retrial is specifically constrained by UCPR 51.53 (Mastronardi v New South Wales – found material factual errors (misstatement and failure to consider evidence) meant his case was not considered according to law, which in itself constitutes a substantial miscarriage of justice).

Stead v State Government Insurance Commission [1986] HCA 54

Facts Held In an action for negligence a critical question was whether the evidence of a doctor called by the respondent should be accepted. When the appellant's counsel addressed this, the trial judge stated that he did not accept the evidence of that witness ("You need not go on as to that"). The appellant's counsel thus did not argue the point. However the judge did consider the evidence of the respondent's medical witness. Appellant asserted that he had been denied natural justice in that the judge had deprived him of an opportunity of presenting argument on a vital issue in the case

An appeal court could not satisfactorily conclude that, had the appellant's counsel been given a reasonable opportunity to present submissions on the issue, it could have made no possible difference to the result. This was magnified as the issues concerned the acceptance or rejection of the testimony of a witness at trial. Not every departure from the rules of natural justice will entitle the aggrieved party to a new trial: e.g. where a party was denied an opportunity to present an argument on law, where the appellant court believes the question of law would be answered against the appellant anyway.

Exam application

UCPR: 51.53 Circumstances in which the court may order a new trial (1) The Court must not order a new trial on any of the following grounds:

a) misdirection, non-direction or other error of law, b) improper admission or rejection of evidence, c) the verdict of the jury below was not taken on a question that the trial judge was not asked to leave to the jury d) on any other ground,

unless it appears to the Court that some substantial wrong or miscarriage has been thereby occasioned.

(2) The Court may order a new trial on any question without interfering with the decision on any other question.

(3) If it appears to the Court that some ground for a new trial affects part only of the matter in controversy, or one or some only of the parties, the Court may order a new trial as to that part only, or as to that party or those parties only

Habib v Director-General of Security: Whether the obligation to afford natural justice has been discharged is not to be evaluated minutely or in manner divorced from its context. As we have said the obligation is a practical one.

(4) The Crown as the model litigant NSW Model Litigant Policy for Civil Litigation (2008)

The State and its agents must act as a model litigant in the conduct of litigation. This requires more than merely acting honestly and in accordance with the law and court rules.

General Principles

- Acting fairly: the Crown should act fairly towards those with whom it deals, at

least in so far as this is consistent with its obligation to serve the public interest:

Hughes Aircraft Systems International v Air Services Australia.

- No purely technical pleadings: Crown litigants are required to eschew technicality

and pursue fairness in the conduct of proceedings. The Crown should not take a

‘purely  technical  point  of  pleading’:  Melbourne Steamship v Moorehead

- Disclosure: A model litigants has a duty to disclose all information which a court

may find relevant to the proceedings. See Maurice Blackburn, ASIC and Four

Corners.

This was discussed in the NSW Model Litigant Policy for Civil Litigation. Essentially it requires that the State and its agencies act with complete propriety, fairly and in accordance with the highest professional standards by:

a) Dealing with claims promptly and not causing unnecessary delay b) Paying legitimate claims without litigation, including making partial settlements of claims or

interim payments, where it is clear that liability is at least as much as the amount to be paid c) Acting consistently in the handling of claims and litigation d) Endeavouring to avoid litigation, wherever possible. Use ADR. e) Where it is not possible to avoid litigation, keeping the costs of litigation to a minimum by:

i. not requiring the other party to prove a matter which the State knows to be true ii. not contesting liability if the State knows that the dispute is really about quantum

f) Not taking advantage of a claimant who lacks the resources to litigate a legitimate claim g) Not relying on technical defences unless the interests of the State or an agency would be

prejudiced by the failure to comply with a particular requirement h) Not undertaking and pursuing appeals unless the State or an agency believes that it has

reasonable prospects for success or the appeal is otherwise justified in the public interest. The obligation does not require that the State or an agency be prevented from acting firmly and properly to protect its interests.

4.2 The obligation does not prevent the AG from: a) enforcing costs orders or seeking to recover costs b) relying on claims of legal professional privilege or other forms of privilege and claims c) pleading limitation periods

Case  management   What is case management? Rather than focusing on particular cases, case-flow management focuses on the overall caseload.

This includes delays for cases generally in the system as well as costs which the system imposes on

the parties.

According to Spigelman CJ ‘One  of  the  reasons  why  managerial  judging  has  emerged  is  because  of  what economists would call market failure. In a market for legal services, where knowledge was

perfect, clients would ensure that the cost of litigation would be minimised and reasonably

proportionate to the value to them of success in the litigation. However, [in reality there is

substantial  information  asymmetry]…This  kind  of  market  failure  explains  a  number  of  aspects  of  the legal profession. Managerial judging  offsets  this  form  of  market  failure’.

An important role of case management is to minimise the number of appearances in court and to restrict adjournments.

An inherent tension exists between this important efficiency role and the essential prerequisites

that the civil justice process should provide fair outcomes, arrived at by fair procedures, with fidelity

to the law. Efficiency can never override justice such that quality of justice is compromised by

quantity.

Î Individual justice is the dominant criterion and take priority over case management (Queensland v JL Holdings)

Objects of case management: CPA s 57 Case management principles are essentially meant to allow for the overall purpose of the CPA –

s56 (just, quick and cheap).

(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings

in any court are to be managed having regard to the following objects:

(a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost

affordable by the respective parties.

(2) This Act and any rules of court are to be so construed and applied, and the practice and

procedure of the courts are to be so regulated, as best to ensure the attainment of the objects

referred to in subsection (1).

IN SUMMARY, case management arose because of excessive cost and large delays which caused

backlog. The cost of dispute resolution must be proportional to the complexity of the case. Costs are

Justice delayed is justice denied

Jackamarra v Krakouer (1998) HCA Facts Held The appellant's appeal to the Full Court of the Supreme Court had been lodged within time, but, due to inattention by the appellant's solicitor, no steps had been taken to set the appeal down for hearing within time. Application to extend that time was refused.

Delay will almost always impede the proper disposition of

any case that does not come to trial promptly:

x Memories fade, records may be lost, etc.

Delay may be overcome but it is an added burden

x Increase costs

x Slows down other cases

x Prolongs worry and uncertainty felt by the litigants

Managerial judging

Managerial judging focuses on the role of the judge in the individual case – the advantage being

efficiency and avoiding of double-ups of judges re-reading materials or prior instances stuff. The

judge will start and finish the case.

Î Judiciary has accepted an expanded role in the management and administration of justice.

Judges now intervene considerably in hearings. Courts are no longer passive recipients of a

caseload.

Some of the powers given to the court for the purpose of case management include being able to

impose time limits, they can also limit the time for cross examining, direct parties to look at certain

matters they are more prepared to consider as being relevant.

x They also have the power to order costs against a legal practitioner where they see the legal

practitioner as having intentionally caused delays to the proceedings

x They have also employed the use of AJR to resolve issues earlier and ensure trial date

certainty

French  J:  “greater  demands  on  government  and  its  institutions,  including  the  judiciary,  to  be  responsive to their needs in terms of the costs and efficiency”

In 1986 case management procedures were introduced in the Commercial Division of the NSWSC

• Driving force of changes to civil practice and procedure for case management

• Also to a lesser extent affected caseload management

• Judiciary has accepted an expanded role in the management and administration of justice

• Judges now intervene considerably in hearings

• Court are no longer passive recipients of a caseload

Overriding Purpose: CPA s 56

The  court’s  discretion is exercised to give effect to the overriding purpose in CPA s 56 (just, quick and cheap) having regard to the objects of case management in s 57 (just determination of the business of the court, the efficient disposal of business of the court, efficient use of available judicial and administrative resources, the timely disposal of proceedings and all other proceedings, at a cost affordable to the respective parties).

See p.37-38 for full section:

Civil Procedure Act

2005 (NSW)

SUMMARY

- Section 56: provides that parties have a statutory duty to assist the court to further

the overriding purpose and  to  participate  in  the  court’s  processes  and  to  comply  with directions and orders.

- Section 57: objects of case management (see above). It is mandatory for the court

to take this into account.

- Section 58: court to follow dictates of Justice. It is mandatory for the court to take

actions in accordance with the dictates of justice when deciding an issue

enumerated in subsection (1). It is also mandatory that they have regard to ss 56

(overriding purpose) and 57 (objects of case management). However, the court has

a  discretion  whether  to  take  into  account  the  factors  listed  in  (2)(b)  if  it  ‘finds  them  relevant’.

- Section 59: the practice and procedure of the court should be implemented with

the object of eliminating any lapse of time between the commencement of the

proceedings and their final determination beyond what is reasonably required for

the fair determination of the issues in dispute.

- Section 60: In any proceedings, the practice and procedure of the court should be

implemented with the object of resolving the issues between the parties in such a

way that the cost to the parties is proportionate to the importance and complexity

of the subject-matter in dispute.

How to use the overriding purpose?

1. It informs the interpretation of other rules.

2. Provides a guide to interpretation

3. Most useful in resolving issues where the UCPR is silent or unclear or there is a conflict

between the rules

What is the particular section of the CPA or the rule of the UCPR that deals with the situation?

Apply this to the extent that it requires interpretation – then bring in the overriding purpose: Aon

Risk [55] and [58].

When  exercising  any  power  a  court  is  required  to  give  effect  to  the  “overriding  purpose”  of:

x Just (also see ss 57, 58) – especially consider s 58(2)(a) x Quick (also see s 59) x Cheap (also see s 60)

Each of these considerations must be equally weighed and considered (Hans Pet Constructions Pty

Lrd v Cassar [2009] NSWCA 230 – in  this  case  the  trial  judge  failed  to  consider  ‘just’  and  so  the  decision was set aside).

When rules refer to the just resolution of disputes this incorporates the three dimensions of s56

such  that  “the  court  reaches  a  substantially correct outcome by means of proportionate resources and in a reasonable time (Metropolitan Petar v Mistreski [2008] NSWSC 293)

x ‘When  a  court  is  making  case  management  orders,  the court is required more to focus on

the CPA ss 56-60 than on utterances made under the old procedures which focused more on

the rights of parties: Metropolitan Petar v Mitreski per Young CJ in Eq

x Sections 56, 57, 58,(2)(a) places a statutory duty on parties to civil proceedings to assist in

the court in fulfilling the overriding purpose to ensure the efficient disposal of matters:

Triple Take v Clark Rubber per Einstein J.

Common law: N/A in NSW The CPA broadens the definition of justice beyond merely justice between the parties, and invites a

balancing with the interests of other litigants. Thus the CPA departs from the common law position in Queensland v JL Holdings which held that justice between the parties must be paramount

In this State, J L Holdings must now be understood as operating subject to the statutory duty

imposed upon the courts by s 56(2) of the Civil Procedure Act 2005, which requires the Court in

mandatory terms – ‘must  seek’  – to give effect to the overriding purpose – to facilitate the just,

quick and cheap resolution  of  the  real  issues  in  the  proceedings’  – when exercising any power under

the Act or Rules: Dennis v Australian Broadcasting Corporation [2008] (Spigelman CJ)

Queensland v J L Holdings Pty Ltd (1997) 89 CLR 146 (DOES NOT APPLY IN NSW)

Facts Held Queensland Government wanted to amend the defence – at first instance and appeal it was held that the amendment would have caused an extensive delay and longer trial and therefore the refused leave to amend.

Justice is the paramount consideration in determining an application

such as leave to amend. Case management should not be allowed to

prevail over the injustice of shutting the applicants out from raising an

arguable defence. Case management is a function which must be

performed with flexibility and undiminished commitment to afford all

who come before the courts a manifestly just trial of their disputes.

Case management is not an end in itself. It is an important and useful

aid for ensuring the prompt and efficient disposal of litigation. But it

ought always to be borne in mind, even in changing times, that the

ultimate aim of the court is the attainment of justice and no principle

of  case  management  can  be  allowed  to  supplant  that  aim.”  (At  154,  

per Dawson, Gaudron and McHugh JJ.)

On appeal: Leave to amend granted.

‘Extreme  circumstances’  

Examples of circumstances when discretion may properly be exercised to reject an application for

leave to amend, or for an adjournment, or to vary pre-trial directions:

x Where an amendment necessitates adjournment of the trial, effectively reverses a prior

tactical decision or is inadequately explained: Aon Risk Services

x Where the adjournment is sought late and without adequate justification: Sali v SPC

x Where an application to adduce further evidence is made late and without adequate

explanation: Bomanite v Slatex

x Where an application to adduce further evidence involved a failure to comply with previous

directions and would necessitate adjournment of a hearing already in progress: State

Pollution Control Commission v Australian Iron & Steel (No 2)

x Where the party failed numerous times to comply with court directions and timetables and

gave inadequate notice about this inability to comply on the set date: Murtough v Bentham

Murtough v Betham [2008] NSWSC 943 Facts Held

For a period of years the plaintiff failed to comply with directions, timetables, etc. On the date in question, the plaintiff did not turn up to the trial because he was allegedly  “sick  and  in  Orange”.   Default judgement was given and the Court dismissed  the  plaintiff’s  motion to set aside default judgment. This was appealed.

Ss 56-59 must be considered in determining whether to exercise

discretion to adjourn proceedings for delay and failure to comply

with directions.

An appellate court would only exceptionally interfere with the discretion to refuse an adjournment; it will do so when the failure to adjourn results in a denial of justice and the adjournment would not otherwise result in any injustice to other parties. The Court gave the plaintiff more than enough opportunity for him

to prepare and present whatever case he wishes. The delays that he

occasioned by his inability or unwillingness to take advantage of

those opportunities created an injustice and prejudice for the

defendants, which injustice and prejudice is incapable of being

overcome. Order for costs cannot sufficiently address these issues.

Thiele v Radford [2008] NSWSC 1162

Facts Held

Request for summary dismissal: plaintiff was in substantial default in complying with orders for the service of her affidavits. There were about 5 directions

Does not agree that State of Queensland v J L Holdings Pty

Ltd dictates that, in making orders for the conduct of

proceedings under the Civil Procedure Act, primacy is to be

given to the issue of justice in the sense of not precluding the

determination on the merits of a genuine issue between the

parties.

hearings which the plaintiff failed to comply with. Plaintiff submitted that this was because she was caring for her sick mother (rejected) and due to depression she suffered (though she was still running in her local election

It cannot be said that it would be unjust to the plaintiff for her proceeding and the cross-claim to be summarily dismissed. Whilst that would occasion hardship, there would be no injustice because she has had multiple opportunities to serve her evidence. Nonetheless, the

hardship is a matter to be weighed.

Aon Risk Services is good authority for the approach of the overriding purpose in NSW despite the fact that it refers to r 21 which is roughly the equivalent in the ACT.

Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175 Facts Held

In 2004, the respondent commenced proceedings in the Supreme Court of the ACT against co-insurers, claiming indemnity for bush fire damage to its observatory complex in January 2003. Defences filed in April 2005 raised issues as to buildings excluded from cover and as to under-insurance of buildings covered. In June  2005,  the  respondent’s  insurance broker, the appellant, was joined to the proceedings. Claims against it related to buildings not covered but not to under-insurance. In November 2006, on the third day of a four week hearing allocation, the respondent settled with the co-insurers and obtained an adjournment to argue for further amendment of the claim against the appellant to allege, for the first time, breaches of duties not to under-insure. Amendment was subsequently allowed under the Court Procedures Rules 2006 ACT – Court of Appeal affirmed the amendment and the appellants appealed against the upholding of the amendment.

Rule 21 of the Court Procedures Rules recognises

the purposes of case management by the courts. It

recognises that delay and costs are undesirable and that delay has deleterious effects, not only upon the party to the proceedings in question, but to other litigants. The Rule's objectives, as to the

timely disposal of cases and the limitation of cost,

were to be applied in considering ANU's application

for amendment. It was significant that the effect of its delay in applying would be that a trial was lost and litigation substantially recommenced. It would impact upon other litigants seeking a resolution of their cases. What was a "just resolution" of ANU's claim required serious consideration of these matters, and not merely whether it had an arguable claim to put forward. A just resolution of its claim necessarily had to have

regard to the position of Aon in defending it. An

assumption that costs will always be a sufficient

compensation for the prejudice caused by

amendment is not reflected in r 21. Critically, the

matters relevant to a just resolution of ANU's claim

required ANU to provide some explanation for its delay in seeking the amendment if the discretion under r 502(1) was to be exercised in its favour and to the disadvantage of Aon. None was provided.

The appeal was allowed with costs.

Aon posits two questions: how do you use the overriding purpose?

1. Does it override other rules and objectives? No.

2. Does it inform the interpretation of other rules? Yes.

The overarching purpose is  not  intended  to  prevent  the  exercise  judicial  discretion….An overriding purpose would trump any other inconsistent purpose.

Power of court to give DIRECTIONS to achieve overriding purpose

(1) Civil Procedure Act In order to serve the overriding purpose the Courts have the power to give directions as to practice  and  procedure  in  a  series  of  “directions  hearings”.  In  the  NSWSC  the  directions  hearings  are approximately 3months after proceedings are entered in the list.

x Section 61: pre-trial

x Section 62: during trial

x Section 63: irregularities

Section 61 –

Directions as to

practice and procedure generally

PRE-TRIAL

(1) The court may, by order, give such directions as it thinks fit, for the speedy determination of the real issues between the parties to the proceedings.

(2) The court may do any one or more of the following: a. May direct a party to take specified steps in relation to the proceedings

b. May direct the parties as to the time in which specified steps must be completed

c. May make such other directions in relation to conduct of proceedings as it considers

appropriate

(3) If a party fails to comply with a direction, the court may do any one or more of the following: [the list is inclusive so the court is not limited in its power]

a. Dismiss the proceedings, in whole or in part

b. Strike out or limit any claim

c. Strike out any defence filed by a defendant and give judgment accordingly

d. Strike out or amend any document filed

e. Strike out, disallow or reject any evidence

f. Direct the party to pay the whole or part of the costs of another party

g. Make such other orders as it considers appropriate.

(4) Subsection (3) does not limit any other power the court may have to take action of the

kind referred to in that subsection or to take any other action that the court is empowered

to take in relation to a failure to comply with a direction given by the court.

Section 62 –

Directions as to

(1) The court may give directions as to the conduct of any hearing (2) The court may give directions as to the order in which questions of fact are to be tried. (3) Without limiting (1) or (2) the court may give any of the following directions before or

during a hearing: a. Limit the time that may be taken in e.i.c. cross-exam and re-exam of a witness.

conduct of hearing

AT TRIAL

b. Limit the number of witnesses

c. Limit the number of documents

d. Limit the time that may be taken in making oral submissions

e. That all or part of any submissions be in writing

f. Limit the time a party may have in presenting his or her case

g. Limit the time that may be taken by the hearing

(4) The operation of this section must not detract from the principle that each party is entitled to a fair hearing and reasonable opportunity to:

a. Lead evidence

b. Make submissions

c. Present a case

d. To cross examine witnesses (other than in the Small Claims Division of the LC).

(5) In deciding whether to issues a direction under this section, the court may have regard to:

a. Subject matter and complexity of the case

b. The number of witnesses to be called

c. The volume and character of the evidence to be led

d. The need to place a reasonable limit on the time allowed for any hearing

e. The efficient administration of court lists

f. The interests of parties to other proceedings before the court

g. The costs that the parties will bear in relation to the subject matter in dispute

h. The  court’s  estimate  of  the  length  of  the  hearing

(6) The court may direct a solicitor or barrister for a party to give the party a memorandum stating

a. The estimated length of the trial and costs and disbursements of the practitioner

b. The estimated cost if the party were unsuccessful and had to pay opposing costs.

Section 63 – Directions

with respect to

procedural irregularities

(1) This section applies to proceedings where there is a failure to comply with any requirement of this Act or of rules of the court

(2) Such a failure:

a. Is to be treated as an irregularity; and

b. Subject to subsection (3) does not invalidate the proceedings, any step taken or any

document, judgment or order in the proceedings.

(3) The court may do either of the following in respect of proceedings the subject of a failure:

a. Set aside the proceedings, any step taken (etc) in whole or in part

b. Allow amendments and make orders dealing with the proceedings generally

(4) The court may not set the proceedings aside unless the application is made within a

reasonable time and before the party takes any fresh step in the proceedings after

becoming aware of the failure.