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Civil Procedure
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Commentary and Materials
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Fifth Edition
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Civil Procedure
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Commentary and Materials
Stephen Colbran
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Fifth Edition
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B Com (Hons), LLB (Hons) (UQ), LLM (Hons), Grad Cert (Higher Ed) (QUT), PhD (UQ)
Solicitor, Queensland
Professor of Law, School of Commerce and Law Central Queensland University
Peta Spender
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BA, LLB (Hons equiv) (NSW), LLM (Syd)
Barrister and Solicitor, Australian Capital Territory; Solicitor, New South Wales
Professor, College of Law, Australian National University
Presidential Member, ACT Civil and Administrative Tribunal
Sheryl Jackson
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LLB (Hons) QIT, LLM (UQ)
Associate Professor, Faculty of Law, Queensland University of Technology
Roger Douglas
BA (Hons), LLB (Hons) (Melb), MPhil (Yale), PhD (La Trobe)
Barrister and Solicitor, Victoria
Professor of Law, La Trobe University
Tania Penovic
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BA, LLB (Hons) (Melb), MSt (Oxon), Grad Cert (Law Teaching) (Monash)
Deputy Director, Castan Centre for Human Rights Law, Monash University
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Australia
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Contents
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Court Adjudication in the Civil Justice System
1
Overview
Introduction
What is Civil Procedure?
The Interdependence of Substance and Procedure
Sources of Civil Procedural Law
1
1
2
4
5
5
6
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Statutory jurisdiction
Inherent jurisdiction
is
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Chapter 1
xxv
xxix
xxxi
lxvii
cxxix
cxxxi
us
Preface
Acknowledgments
Cases
Statutes
Table of Practice Directions
Abbreviations and Bibliographical References
Access to Civil Justice — The Context
The Adversarial and Inquisitorial Models of Litigation
The Operation of the Australian Civil Justice System
The Principle of Open Justice
11
16
20
20
Introduction
20
Exceptions to the Principle of Open Justice
20
27
Le
Open justice and the chambers jurisdiction
Human Rights Challenges to the Civil Justice System
27
The right to a fair hearing
27
30
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Flaws in, and Reform of, the Civil Justice System
Delay
Efficiency
Chapter 2
30
31
Case Management and the Overriding Purpose
37
Overview
The Role of the Judge
37
37
Managerial judging
38
Case Management — Concepts
Case Management — Examples
39
41
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An overview of case management practices
Hybrid — Master list with management of certain cases:
Australian Capital Territory and Tasmania
Court initiated directions hearings: New South Wales — Supreme Court
Common Law Division, South Australia and Western Australia
Timelines: Queensland
Differential case management: the Northern Territory
Specialist divisions and lists: Victoria
Individual docket: Federal Court
Special leave applications — High Court
Integration of alternative dispute resolution processes
50
m
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Overriding purpose clauses
Federal Court
Australian Capital Territory
New South Wales
Northern Territory
Queensland
South Australia
Tasmania
Victoria
Western Australia
pl
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The Development of the Overriding Purpose
is
.
Challenging Case Management Decisions and the Interpretation
of the Overriding Purpose
Chapter 3
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Judicial interpretation
Case management — The future?
53
54
66
Alternative Dispute Resolution
69
Overview
Introduction
The Growth in ADR
Types of ADR Processes
69
69
74
78
Le
Determinative processes
Adjudication
Arbitration
Expert determination
Private judging
Fact-finding
Early neutral evaluation
Case appraisal
Mini-trial
Facilitative processes
Facilitation
Conciliation
Mediation
Ombudsman
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51
51
52
52
52
52
52
52
53
79
79
80
80
80
81
81
81
81
81
82
82
82
83
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Mediation
83
89
Features of Mediation
93
m
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Arbitration
Features of Arbitration
Court-annexed ADR
Le
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Federal Court
Civil Procedure Resolution Act 2011 (Cth)
Court annexed alternative dispute resolution
The Family Court of Australia
Other federal legislation
Australian Capital Territory
New South Wales
Northern Territory
Queensland
South Australia
Tasmania
Victoria
Western Australia
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108
111
115
116
117
119
124
125
125
127
128
129
129
129
131
131
132
132
132
133
134
136
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ADR and the Legal Profession
Conclusion
Chapter 4
e
108
National mediator accreditation system
Power imbalances
Enforcement of agreements to mediate
Good faith
Evaluating mediation
pl
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Other Issues with Mediation
93
95
96
97
98
99
99
99
103
us
Accessibility
Voluntary
Confidential
Statutory provisions that relate only to mediations
Privilege
Contractual terms
Court orders
Mediator standards and ethical codes
Facilitative
Jurisdiction
137
Overview
Subject Matter Jurisdiction
137
137
The High Court
Original jurisdiction
Appellate jurisdiction
The Federal Court
Original jurisdiction
138
138
140
141
141
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143
144
150
150
151
151
152
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Appellate jurisdiction
Reference jurisdiction
Associated jurisdiction; accrued jurisdiction
Incidental jurisdiction
The Federal Magistrates’ Court
Supreme courts
Original and appellate jurisdiction
Federal jurisdiction
Inherent jurisdiction
157
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Territorial Jurisdiction
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Cross-vesting of Jurisdiction
The purpose of the cross-vesting scheme
Constitutional invalidity
Investment and conferral of jurisdiction
Nature of jurisdiction cross-vested
Transfer of proceedings
Applicable law
Special federal matters
Inferior courts
Limitation on appeals
Procedure
Federal Court
Australian Capital Territory
New South Wales
The Northern Territory and Victoria
Queensland and Western Australia
South Australia
Tasmania
157
160
160
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Presence in the jurisdiction
Submission to the jurisdiction
Statutory extension of territorial jurisdiction
Non-compliance, Amendment and Time
Le
Chapter 5
161
161
162
163
166
167
181
182
183
184
184
184
185
185
186
186
188
188
193
193
194
205
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Overview
Non-compliance
Amendment
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Civil Procedure Commentary & Materials
Amendment rules
Factors affecting amendment
The relevance of case management
Amendment to add statute-barred claims
Amendment of parties
What is a mistake in the name of a party?
Slip rule
Want of Prosecution
205
207
208
220
224
226
233
235
Dismissal under the courts’ inherent jurisdiction
Dismissal under the rules of court
Dismissal and case management
235
236
237
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239
241
Limitation of Actions
245
Overview
Introduction
245
245
245
246
248
The Purpose of Limitation Periods
The Running of Time
Sa
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Examples of limitation periods — General
Accrual of cause of action
Discoverability
Postponement
Disability
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State and territory jurisdictions
Federal jurisdiction
Equitable remedies
Application of statutory limitation periods to equitable claims
by analogy
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Chapter 6
241
243
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Reckoning
Extension and abridgment
The Effect of Expiry of the Limitation Period
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Barring the remedy or right?
Extension of the Limitation Period
Personal Injury Actions
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Date of accrual v date of discoverability in personal injuries actions
Special limitation periods for personal injuries to minors
Minors injured by close relatives or associates
Injuries to children arising from the provision of health services
Latent injuries
Dust-related conditions
Extensions of Time for Personal Injuries Actions
Le
Just and reasonable
Exercise of judicial discretion upon the just and reasonable ground
Material facts of a decisive nature
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Notice of Claims for Personal Injury Actions Involving Motor
Vehicles and Workers’ Compensation
Limitations Periods and Choice of Law
Substantive or procedural?
Chapter 7
249
251
252
253
254
256
263
264
268
269
271
276
279
279
279
279
279
282
283
284
285
288
294
295
296
Commencing Proceedings
301
Overview
Client Care
301
301
Costs disclosures
301
302
C
Pre-action Protocols
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Time
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Commencing Proceedings
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305
Terminology
Ethical considerations
305
307
310
310
310
311
312
312
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The writ of summons
Indorsements
Relationship between the writ and the pleadings
Concurrent writs
Other types of originating process for disputes involving factual issues
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Civil Procedure Commentary & Materials
Disputes Predominantly Involving Legal Issues
Duration of Originating Process
313
314
Service
Overview
Introduction
Personal Service
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Foundation of jurisdiction
Manner of service
Exceptions to personal service
Consensual service
Solicitor’s undertaking to accept service
Time requirements
Cross-vesting schemes
Concurrent summons
Affidavit of service
m
Chapter 8
317
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Renewal of originating process
Ordinary Service
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Address for service
Service by filing
Service by the court
Informal service
Service by facsimile
Service by post
Service by document exchange (DX)
Service by electronic means
Interlocutory injunctions
Statutory modification
Special Parties
327
327
327
329
329
329
332
333
334
335
336
337
337
338
339
340
341
341
341
342
343
343
343
344
344
Corporations
Domestic corporations
Foreign corporations
Government owned corporations
Partnerships, business names, and unincorporated associations
Agents
345
345
346
347
347
348
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350
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351
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Spouses
Infants
Mentally ill persons
Crown and judicial officers
Third parties
Prisoners or detainees
Keeping house
Special Actions
351
351
351
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Action for recovery of land
Motor vehicle personal injuries claims
352
352
353
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Practical impossibility of actual service
Method of substituted service
Jurisdictional limitations
The application
The order
pl
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Indorsements
Proof of Service
Substituted Service
Service Out of the Jurisdiction
Le
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Service out of the jurisdiction but within Australia
Service and Execution of Process Act 1992 (Cth)
Service and Execution of Process Regulations (Cth)
Service outside Australia
Service outside Australia under the Rules of Court — nexus
Categories of nexus
Service outside Australia under the Rules of Court
(diplomatic channels)
Service outside Australia under the Hague Convention
Effecting service outside Australia: Notices and indorsements
Setting aside service outside Australia
Stay of proceedings served outside Australia
Service of foreign legal process inside the jurisdiction
Judgments and Orders
Setting Aside Service Irregularities
Appearance
C
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358
359
360
360
360
361
361
363
363
363
368
372
374
376
377
377
385
386
386
389
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Chapter 9
Overview
Introduction
Why Enter an Appearance?
Who May Enter an Appearance?
389
389
390
391
Corporations
Partnerships
Business name
Multiple defendants
Third parties
Undertakings
391
391
391
392
392
392
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393
395
396
Submission to the jurisdiction
Waiver
Stale writ
400
401
401
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Types of Appearances
Procedure for Entry of Appearance
Time Limited for Appearance
Unconditional Appearance
y.
Civil Procedure Commentary & Materials
402
404
404
405
405
405
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Examples of appropriate circumstances for a conditional appearance
Objection to jurisdiction
Forum non conveniens
Immunity
Service irregularities
Examples of inappropriate circumstances for entry of a
conditional appearance
A different venue within the jurisdiction is required by contract
A compromised cause of action
Alternatives to a conditional appearance
e
Conditional Appearance
is
.
Waiver
Default judgment
Sa
Appearance Under Protest
Appearance Gratis
Failure to Enter an Appearance
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Amendment, Withdrawal and Removal
Chapter 10 Joinder of Parties and Actions, and Particular Parties
Overview
Introduction
Res Judicata and Issue Estoppel
Le
Introduction
Res judicata
Issue estoppel
Definition
Rules Governing Joinder
405
405
406
406
406
407
408
408
409
409
413
413
413
414
414
415
422
422
429
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The rules and their interpretation
Other matters affecting joinder
Joinder of Parties
429
429
430
Mandatory or compulsory joinder
Joinder of Claims
436
437
437
438
438
440
444
C
By the plaintiff
By the defendant — Counterclaims and set-off
Counterclaim
What is the nature of a counterclaim?
Set-off
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452
453
e
Consolidation
Representative Proceedings
453
453
465
466
pl
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The Australian position
The traditional representative proceeding
‘Opt in’ provisions
‘Opt out’ provisions
Third Party Proceedings
Contribution
m
Chapter 11 Pleading
Sa
Overview
Purpose of Pleadings
Contents of Pleadings
Le
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Usual pleadings
Pleading generally
Material facts
Facts, not evidence
Facts and law
Pleading a statutory provision
Miscellaneous rules of pleading
Documents and conversations
Conditions precedent
Presumptions
Points of law
Formal requirements
Certificate of Legal Representative: Australian
Capital Territory, Federal Court and South Australia
Pleadings to be verified: New South Wales
Pleadings optional: South Australia
Plain English
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449
450
450
451
451
452
Procedure
Statement of Claim
481
482
485
485
485
493
493
493
494
497
497
499
500
500
501
501
501
502
503
504
505
505
509
509
Procedural matters
Content
Order of statement of claim
Prescribed details — Australian Capital Territory
Must disclose a cause of action
Should not anticipate the defence
509
510
510
511
511
512
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Persons under a disability
Partners
Executors, administrators and trustees
Corporations
Corporations under administration, dissolved or otherwise defunct
Bankrupt persons
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amount of damages claimed to be pleaded
Claim for relief
513
513
Defence
516
516
517
523
Counterclaim and Set-Off
527
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Contents generally
Denials
Affirmative pleading
527
528
528
529
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Counterclaim
Reply and defence to counterclaim
Set-off
Set-off and counterclaim contrasted
531
Striking Out Pleadings
xi
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Overview
Policy Issues
is
.
No reasonable cause of action
Embarrassment
Sa
m
Formal requirements
Purpose of particulars
Pleadings and particulars
Particulars and evidence
Procedure where particulars are inadequate
Personal injury
pl
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Particulars
Chapter 12 Summary Disposition
Comment
Default Judgment
Le
Judgment in default of appearance
Default judgment — Liquidated claims and damages
Setting aside default judgment
Costs
The operation of the default judgment system
Judgment upon striking out or default of pleading
Judgment upon failure to comply with a time stipulation
Summary Judgment
531
531
534
536
540
541
543
545
549
553
553
554
555
555
555
556
557
561
562
563
563
563
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History and purpose of summary judgment
‘Traditional’, ‘No Real Prospect’ and ‘Reasonable’
Approaches To Summary Jurisdiction
The traditional approach
No real prospect of success
The reasonable approach
563
566
566
566
567
Summary Judgment for the Plaintiff
What must the plaintiff establish?
Application by the plaintiff for summary judgment — Principles
and process
569
569
570
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575
576
Summary Judgment for the Defendant
Staying or Dismissing Proceedings as an Abuse of Process
576
582
583
589
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Establishing abuse of process
Delay constituting abuse of process
Vexatious Litigants
593
597
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Chapter 13 Discovery
597
598
us
Overview
Discovery and Inspection of Documents
C
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Le
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Sa
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Requirement for discovery and inspection of documents
Australian Capital Territory, Northern Territory,
Queensland, South Australia,
Tasmania, Victoria, Western Australia
The Federal Court
New South Wales
Exclusion of privileged documents
Document
Relevance
Australian Capital Territory, Tasmania, and Western Australia
Federal Court
New South Wales
Northern Territory
Queensland and South Australia
Victoria
Documents exempted from discovery
Possession, custody or power
Restricted discovery
Deferral of discovery
Further discovery and particular discovery
Discovery of documents and information technology
Parties obliged to make discovery
Solicitor’s obligations
Discovery: A continuing obligation?
Permitted use of discovered documents
Default
Discovery from Non-Parties and Potential Parties
Preliminary discovery in equity
Identifying a prospective defendant
Discovery from prospective defendant
Discovery from non-party
Interrogatories
598
598
602
602
604
604
605
605
607
608
609
609
610
610
612
616
621
621
623
625
625
626
626
630
635
636
636
638
639
643
What are interrogatories?
When are interrogatories permitted?
Scope of interrogatories
643
643
645
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Default
Objecting to answering interrogatories
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654
654
658
659
659
662
665
666
666
669
671
671
671
674
675
675
675
679
679
679
681
681
682
682
682
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Introduction
Legal professional privilege
Scope and rationale
The ‘dominant purpose’ test: Common law
Confidential communications
Existing or anticipated litigation
Copies of unprivileged documents
‘Client legal privilege’ under legislation
Statutory removal of privilege for expert reports
Self-incrimination, penalties and forfeiture
Scope and rationale of the privilege against self-incrimination
Penalties and forfeiture
Statutory recognition and modification
Public interest
Scope and rationale
Statutory recognition
Without prejudice communications
Scope and rationale
Statutory recognition and modification
Privilege for professional confidential relationships
Priest and penitent
Spousal privilege
Waiver of privilege
on
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657
658
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Oral Discovery: Northern Territory and Victoria
Privilege
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Civil Procedure Commentary & Materials
Chapter 14 Further Means of Obtaining Evidence
Overview
Inspection and Testing of Property
Le
Introduction
Personal Injury Proceedings: Medical Examinations, Particulars and
Documents Relating to Loss and Damage
687
687
687
690
690
690
690
691
691
691
691
692
692
693
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Medical examinations
Rules of Court
Statutory provisions
Inherent jurisdiction
Examination must be reasonable
Particulars and documents relating to loss and damage
Australian Capital Territory
New South Wales
Queensland
South Australia
687
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693
694
Disclosing Expert Evidence
694
695
695
695
696
696
696
697
697
698
698
699
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Practice in each jurisdiction
Federal Court
Australian Capital Territory
New South Wales
Northern Territory
Queensland
South Australia
Tasmania
Victoria
Western Australia
Uniform Evidence Acts
Notices to Admit
Sa
m
Introduction
Cost consequences
Practical observations
Withdrawal of admissions
Subpoenas
Le
xi
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Introduction
Harmonised rules
Form
Subpoena to employer, company
Payment to witnesses
Service
Service out of the jurisdiction
Interstate service (state and territory Supreme Courts)
International service
Production
Subpoena for production before trial
Setting a subpoena aside
Admitting into evidence documents produced on subpoena
Failing to attend on a subpoena
Notice to produce
700
700
701
701
703
704
704
704
705
705
708
709
710
710
711
712
713
714
719
722
723
725
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Chapter 15 Affidavits
Overview
Introduction
Affidavits and Oral Evidence
Interlocutory and Trial Affidavits
Form
Use of facsimiles
725
725
726
727
729
731
732
C
Structure
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Victoria; Northern Territory
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Drafting
732
732
Contents
Taking an Affidavit
733
743
745
748
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Jurat and signatures
Witness
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Alterations, Erasures and Withdrawal
Trial by Affidavit
Irregularities and Defective Affidavits
Objections to Affidavits
A Solicitor’s Duty When Preparing Affidavits
Chapter 16 Interlocutory Procedures
755
756
757
759
759
761
761
762
763
763
766
766
767
767
768
768
Injunctions
769
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Distinguishing interlocutory from final orders
Making an interlocutory application
Service of interlocutory applications
Ex parte applications
Interlocutory applications in the absence of an oral hearing
Medical examinations
Appeals from interlocutory orders
754
755
755
Le
xi
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Overview
Jurisdiction of Masters, Associate Judges and
Judicial Registrars
The Nature of Interlocutory Orders
C
749
750
751
752
752
753
754
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Annexures, Schedules and Exhibits
Filing
Service
Timing
Cross-Examination
Scandalous and Irrelevant
Use of Affidavits
Use of an earlier affidavit
Evidential use of an affidavit
Use of an opponent’s affidavit
Serious question to be tried
Balance of convenience
Interim injunctions
Status quo
Undertaking as to damages
Service of order
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770
771
777
777
778
779
Anton Piller (Search) Orders
780
Privilege against self-incrimination
Search orders under the rules of court
Mareva (Freezing) Orders
791
797
802
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821
825
825
826
827
827
828
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Introduction
Court rules
Other legislation
Court’s inherent power to make such orders
The court’s discretion
Provisional Liquidation and Receivers
829
829
830
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Provisional liquidation
Receivers
Accounts and Inquiries
831
Chapter 17 Settlement
833
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Overview
Introduction
Compromise of Proceedings
Facilitating Settlement
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Without prejudice
Formal offers to settle
Offers of settlement before action
Payment into court
Deposit
In what kind of cases?
Offer
Effect of acceptance
What happens to the money if the plaintiff does not accept?
Multiple defendants
Counterclaims
Parties under a legal disability
Acceptance of money paid in means there is no adjudication
Effect of failure to accept a generous offer
Calderbank offers
Offers of compromise and offers to settle
When may an offer be made?
Withdrawal of offer
Acceptance
Withdrawal of acceptance
Offers are without prejudice
Incorporation into a judgment
Enforcement
Specific parties
Multiple defendants
Offers to contribute
Interest
Costs implications
Dichotomous decisions
833
833
836
841
841
841
841
842
843
843
843
844
844
844
844
845
845
845
848
855
857
858
858
858
859
859
859
859
859
860
860
861
862
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Interim Preservation, Management, Custody of Property
Security for Costs
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The relationship between the offer of compromise rules
and Calderbank offers
Formalising Settlement Agreements
873
873
879
880
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Consequences of formalising settlement
Infants and people under a legal disability
Entering consent judgments
Discontinuance and Withdrawal
880
881
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The rules
889
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Chapter 18 Trial
889
889
890
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Federal Court
Australian Capital Territory
New South Wales
Northern Territory
Queensland
South Australia
Tasmania
Victoria
Western Australia
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Overview
Introduction
Setting Down for Trial
Mode of Trial
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Trial by judge alone
Juries
When is there a prima facie right to a jury trial?
Rebutting the prima facie presumption
When will jury trials be ordered in the absence of a prima facie right?
Rebutting the presumption in favour of trial by judge alone:
The Commonwealth and the territories
Can trial by judge alone be ordered after a jury trial has begun?
The use of juries
Does the jury still have a role to play?
Arbitration and referees
Splitting Trials
Presenting the Case
890
890
891
891
892
892
892
893
893
895
895
895
895
897
897
900
900
902
903
910
918
920
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Order of evidence and addresses
The content of addresses
The effects of non-attendance
No case submissions and the requirement to elect not to call evidence
No case submissions after the defendant has given evidence
Reopening cases
Adjournments
Procedures in hearings by special referees
Verdicts and Reports
921
923
924
925
927
928
930
931
936
Verdicts
937
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944
948
Chapter 19 Appeal and New Trial
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969
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Overview
Introduction
Types of Appeal
Avenues of Appeal
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Jurisdiction
Powers of the Appellate Court
Process
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High Court
State, Federal Court and Northern Territory appellate courts
Interlocutory judgments and orders
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Institution of an appeal
Parties to an appeal
Leave to appeal
Notice of appeal
Sample grounds
Service
Amendment
Callover (setting the appeal down for hearing)
Cross-appeals, notices of contention and objections to competency
Cross-appeals
Notices of contention
Objections to competency
Court materials
Appeal record
Notices
Outlines of argument, written submissions, lists of authorities
and chronologies
Extrinsic materials
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951
956
957
957
961
964
967
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Jury trials
Cases where there is no evidence to support a verdict
Entry of judgment
Setting aside and ‘correcting’ judgments
Judgments in default
Setting aside on the grounds of fraud or new evidence
Correcting minor errors: The ‘slip rule’
Supplemental judgments
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Judgment
Related Applications
969
970
970
979
979
981
981
985
986
986
987
987
987
988
992
993
993
993
994
994
994
994
994
994
995
995
996
997
Stay of execution pending appeal
Security for costs
Substantive Basis Upon which Appeals are Brought
Error of law
997
1001
1001
1003
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When is a verdict final?
Special referees’ and arbitrators’ reports
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1004
1006
1011
1013
1017
1019
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1019
1022
1022
1023
1025
1027
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Judge wrongly exercised discretion
Judge’s findings of fact were wrong
Incorrect inferences drawn
Judge’s view taken of conflicting testimony
Inferences from uncontroverted facts
Fresh evidence sought to be tendered on an appeal
Further evidence arising after judgment: Appeals by way
of rehearing
New point arising after judgment: appeals by way of rehearing
New points and objections arising before judgment
Excessive or insufficient assessment of damages
Non-grounds
Jury grounds
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Preparing an Appeal
Conducting an Appeal
New Trial
Striking Out, Want of Prosecution and Discontinuance
Costs
Settling an Appeal
Indemnity Certificates
Overview
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Chapter 20 Costs
1043
1043
1043
1044
1049
1051
1053
1056
1063
1063
1067
1070
1074
1074
1078
1079
1083
1091
1091
1094
1097
1100
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Introduction
The general rule
Costs awards where litigation has been funded by a third party
Costs awards against third parties
Costs awards against practitioners
Types of costs award
Problematic winners
Party wins in the wrong court
Party ultimately wins, but loses on several issues
Complex cases
Costs which do not follow the event
Public interest litigation
Impecunious parties
Other exceptions
Determining the quantum of costs
The New South Wales position
Resolving disputes over quantum
Security for costs
Rules
Appeal costs
1028
1029
1031
1038
1039
1039
1039
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1103
1103
1108
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Overview
Introduction
When is the Judgment Enforceable?
Equitable relief is not enforceable immediately
Conditional judgments
1109
1110
Stays
1110
1112
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Limitation periods
Pre-Emptive Strikes by Judgment Creditors
1112
1112
1112
1113
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The procedure for obtaining an order or warrant
Types of orders
Orders for the seizure and sale of property
Seizure and sale
Recovery of land
For delivery
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Mareva/preservation of property orders
Attachment
Do not delay
Gathering Relevant Information
Instalment Orders
Writs or Warrants of Execution
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Orders Against Third Parties
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Attachment of debts/enforcement warrants for redirection
of debts/garnishee orders
Attachment of earnings
Charging Orders and Stop Orders
Receivers
Appointment of a receiver and priorities
1114
1115
1116
1117
1125
1125
1127
1140
1140
1142
1142
1149
1151
1154
1156
1156
1156
Contempt
Attachment and committal
Sequestration/seizure of property
1157
1160
1161
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Substituted Specific Performance
Contempt and Sequestration
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Enforcement of Interstate Judgments
Enforcement of Judgments Outside Australia
Other foreign judgments
Enforceability of Australian judgments abroad
Bankruptcy and Winding-Up
1164
1166
1168
1169
1170
1173
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Preface
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Since the dawn of civilisation, humankind has settled disputes by warfare and diplomacy. While
alternative dispute resolution may be a form of diplomacy, modern litigation is perceived by
some as a sanctioned form of warfare. Using Sun Tsu’s, The Art of War as an analogy — the
parties are the disputants wishing to gain territory or reclaim lost rights; their barristers are
the generals and their solicitors are foot soldiers assisting in the battle; the Rules of Court
and legislation are akin to terrain; the judge is all-powerful nature (presiding over weather,
environmental conditions, skirmishes, and the rules of the game); discovery, inspection,
subpoenas and private detectives are the means of spying; and costs are represented by rapid
consumption of wealth and mental strength. In such an environment, strategy and tactics often
dominate rational solutions. Parties’ and societies’ resources are consumed at an astonishing
rate, and community perception moves against the system seeking alternatives.
But warfare is not the only solution. Diplomacy and what some perceive as ‘alternative
dispute resolution’ have always had their place. The categories of alternative dispute resolution
have enlarged in recent times to encompass negotiation, mediation, case appraisal, mini-trial
etc. These forms of dispute resolution have played their part in modifying the development of
the rules of civil procedure and tactics of the game.
Problems of Australian civil procedural law include:
• defects in the way in which witnesses give evidence — namely varying performance, time
delays, memory lapse, tutoring, advocates for particular parties and points of view;
• focus on the procedure and personalities, not the problem;
• impact of technology;
• managing large cases and class actions;
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• inordinate delays;
• how to manage off-shore outsourcing and quality issues;
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• too much emphasis on an adjudicated solution at the risk of ignoring earlier dispute
resolution alternatives;
• increasing numbers of ill-prepared self-litigants;
• perceived unfairness and evident frustration among litigants;
• absence of procedures to exchange evidence at the earliest available opportunity;
• the court as a hostile environment, including foreign rules, jargon and pressure;
• parties sanctioning delay;
• leaving the litigation to the parties’ devices results in unnecessary expenditure of both time
and money with the potential of unfairness;
• excessive cost;
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• non-supervision of cost rules;
• inconsistent taxation treatment of corporations and individuals; and
• pressures on judges to perform to meet the pressure of a relentless workload.
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• the rich being able to afford better lawyers, producing an unfair result and power imbalances;
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• frustration of witnesses who are cut short when they want to tell their story;
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Politicians and the press blame lawyers: too much delay and restrictive practices, which
inflate costs. Lawyers blame the government: appoint more judges and throw more money at
the problem.
Since the fourth edition of this text, there have been numerous changes in the Rules of
Court in most jurisdictions. Most of these changes represent a rationalisation of the litigation
system in an attempt to manage cost, delay and access to justice. The focus of law reform has
been to address some of the problems previously identified, including:
• enabling and encouraging resolution of disputes by agreement rather than adjudication;
m
• encouraging access to justice;
• providing cheaper, less labour-intensive, and quicker means of adjudication;
Sa
• establishing mechanisms to assist with the use of technology;
• frank exchange of real contentions and relevant information through enlarging discovery
and refining the scope of pleadings;
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• continual development of case management regimes; and
• movement towards uniformity of court rules within and between jurisdictions.
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For such reforms to succeed, there needs to be a fundamental recognition of Australian
procedural law and a change of mindset for all involved in dispute resolution. It is our aim in
this work to help achieve these reforms through educating future generations of lawyers.
This book is an attempt to capture these realities to present a coherent exposition of civil
litigation in all Australian jurisdictions. We have summarised Australian procedural law,
compiled a useful set of materials, and created what we feel is an appropriate national approach
to the teaching of this subject.
The size of the task has required the workload to be distributed among the authors, as
follows:
• Stephen Colbran (general editor): Chapters 3, 8, 9, 15, 16, 19;
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• Peta Spender: Chapters 1, 2, 6, 7, 12;
• Roger Douglas: Chapters 10, 17, 18, 20, 21;
• Sheryl Jackson: Chapters 4, 11, 13, 14; and
• Tania Penovic: Chapter 5.
The law is up-to-date on materials available to the authors as at May 2012.
Our debt to other writers is evident in the numerous excerpts from cases, journal articles
and other sources. We are grateful for their assistance.
The authors wish to express their gratitude to the LexisNexis Butterworths team for their
assistance with production of this book, particularly Catherine Britton.
This work is dedicated to the families of all the authors involved, without whose assistance it
would never have been written, in particular: for Peta Spender (Walt, Grace, Euey and Gabe);
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for Sheryl Jackson (Royce, Dean, Stacey and Nathan); for Roger Douglas (Robin Burns); for
Tania Penovic (Scott, Anna, Zara, Richard and Elizabeth) and for myself (Angela, Elizabeth,
Rachel and Sam). We are also indebted to Professor Greg Reinhart and Ms Molly O’Brien for
their contributions to earlier editions of this work.
Stephen Colbran
Central Queensland University
School of Commerce and Law
August 2012
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