LAWS 2371 Resolving Civil Disputes - HD and Dean's List Full Course Notes

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HD and Dean's List Extensive Complete Course Notes. Covering every topic and lecture for the whole term. Topics covered: Topic 1 (Introduction to Civil Dispute Resolution): Substantive vs procedural law distinction, purposes and sources of procedural law in NSW (Civil Procedure Act 2005, UCPR 2005, court-specific rules, practice notes, inherent jurisdiction), the overriding purpose under CPA s 56 (just, quick and cheap resolution, costs consequences under s 56(5)), NSW court hierarchy table (Supreme Court unlimited, District Court up to $, Local Court up to $100,000 general and $20,000 small claims), overview of civil litigation steps from pre-commencement through to enforcement, Ashby v Commonwealth (No 4) FCA 1411 on courts' inherent power to prevent abuse of process. Topic 2 (Alternatives to Litigation and ADR): Professional obligation to advise on ADR (Solicitors' Conduct Rules 2015 r ), definition of ADR (National Dispute Resolution Advisory Council), settlement rates 50 to 85 percent (Victorian Law Reform Commission), five types of ADR processes (facilitative, advisory, determinative, combined, hybrid), settlement vs litigation debate (Owen Fiss on public value of adjudication, Carrie Menkel-Meadow on remedial imagination), positional vs interest-based negotiation six-dimension comparison table, BATNA concept and four-step development process (Harvard Negotiation Project). Topic 3 (Enforceability of ADR Clauses and Settlement Negotiation Privilege): Court-annexed mediation under CPA s 26 (with or without consent), Practice Note SC Eq 7 on mandatory family provision mediation, enforceability of arbitration clauses under Commercial Arbitration Act 2010 (NSW) s 8(1), enforceability of mediation and conciliation clauses (Aiton v Transfield NSWSC 996), enforceable good faith negotiation clauses (United Group Rail Services v Rail Corp NSW NSWCA 177), settlement negotiation privilege under CPA s 30 (privilege at mediation sessions, exceptions under s 30(5)), settlement negotiation privilege under Evidence Act 1995 (NSW) s 131 (covers all settlement negotiations, eight exceptions under s 131(2)), Field v Commissioner for Railways (1957) 99 CLR 285 on policy rationale for without prejudice protection, Azzi v Volvo Car Australia on interplay between CPA s 30 and EA s 131. Topic 4 (Arbitration): Court-annexed arbitration under CPA ss 37 to 46 (referral for money claims, written award with reasons, application for rehearing, full vs limited rehearing, costs of rehearing), Commercial Arbitration Act 2010 (NSW) key provisions (s 1C paramount object, s 7 written agreement requirement, s 8 mandatory stay and referral, ss 10 to 11 appointment of arbitrators, s 16 competence-competence principle, s 31 written award, s 35 binding and enforceable award), John Holland v Kellogg Brown and Root NSWSC 451 (liberal construction of arbitration clauses, s 8(1) promotes arbitration), Larkden v Lloyd Energy Systems NSWSC 268 (non-arbitrable matters: criminal prosecutions, bankruptcy, divorce, winding up, certain IP decisions), Westport Insurance Corp v Gordian Runoff HCA 37 (arbitration as more than private contract, importance of reasons), International Arbitration Act 1974 (Cth) and the New York Convention. Topic 5 (Case Management): Evolution of active judicial case management (Aon Risk Services v ANU (2009) 239 CLR 175), CPA ss 57 to 63 (objects of case management, dictates of justice, elimination of delay, proportionality of costs, directions, conduct of hearings, procedural irregularities), UCPR r general power to give directions, case management in NSW courts (District Court Practice Note DC Civil No 1 aiming for 12-month completion, Supreme Court Common Law Division lists, Supreme Court Equity Division lists, Practice Note SC CL 7 Professional Negligence List). Topic 6 (Lawyers, Technology and Online Dispute Resolution): Technology in civil litigation (Continuous Active Learning, analytics, E-Discovery Reference Model, Technology-Assisted Review with precision and recall metrics, Lex Machina, Harvey and Casetext LLM platforms), electronic discovery under Practice Note SC Gen 7 (electronic methods required where 500 plus discoverable documents), Online Dispute Resolution platforms (eBay Resolution Centre 60 million disputes per year, NSW Online Court, EU ODR Platform, British Columbia Civil Resolution Tribunal, Justice42), advantages and concerns of ODR. Topic 7 (Offers of Compromise and Security for Costs): UCPR offers of compromise (requirements, acceptance within 28 days, 28-day payment period), cost consequences table (r accepted offers, r plaintiff offer rejected and plaintiff succeeds getting indemnity costs from day after offer, r defendant offer rejected and plaintiff fails getting defendant indemnity costs from day after offer, r defendant offer rejected and defendant wins), ordinary vs indemnity costs distinction, Calderbank offers (without prejudice save as to costs, unreasonableness test, genuine compromise requirement), security for costs under UCPR r (six grounds, eight discretionary factors), Wollongong City Council v Legal Business Centre NSWCA 245 (burden of proof on defendant then shifts to plaintiff, eight relevant factors), Idoport v NAB NSWSC 744 (protective jurisdiction, balance protection against injustice to impecunious plaintiff), UCPR r (1B) natural person cannot be ordered solely for impecuniosity, Corporations Act 2001 (Cth) s 1335 for corporate plaintiffs. Topic 8 (Pleadings): Nature and function of pleadings (Banque Commerciale v Akhil Holdings (1990) 169 CLR 279: state with sufficient clarity the case that must be met), statement of claim vs summons under UCPR rr and , defence filed within 28 days (r ), reply within 14 days, pleading standards (UCPR r facts not evidence, material facts, verification by affidavit under r , no surprise under r ), particulars under UCPR r (Goldsmith v Sandilands (2002): fill in picture with sufficient detail), limits on reliance on pleadings (Films and Casting Temple v Malla NSWCA 377, ASIC v Rich ). Topic 9 (Limitation Periods, Freezing Orders and Search Orders): Limitation periods table (contract 6 years s 14(1)(a), tort 6 years s 14(1)(b), defamation 1 year s 14B, judgment 12 years s 17, recovery of land 12 years s 27(2), breach of trust 6 years s 48, personal injury from December 2002: 3 years from discovery max 12 years s 50C), limitation periods as substantive law (John Pfeiffer v Rogerson HCA 36), freezing orders under UCPR r (good arguable case, solid evidence of real risk of dissipation, ex parte, return date, value capped at likely maximum, legitimate dealings excluded, ancillary disclosure orders under r ), Jackson v Sterling Industries (1987) 162 CLR 612 (danger of absconding or dissipation, must not create security), Blue Mirror v Pegasus NSWSC 961 on good arguable case threshold, search orders under UCPR r (strong prima facie case, serious damage, real risk of destruction, independent supervising solicitor, right to seek legal advice before complying). Topic 10 (Standing, Res Judicata and Anshun Estoppel): Standing in private and public law proceedings (special interest beyond general public), res judicata and Blair v Curran (1939) 62 CLR 464 (judicial determination disposes once for all), cause of action estoppel (Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502: cause of action merges in judgment), issue estoppel, Anshun estoppel from Port of Melbourne Authority v Anshun HCA 45 (bring forward whole case, failure bars later relitigation), four requirements from Gibbs v Kinna VSCA 52, Champerslife v Manojlovski NSWCA 33 (unreasonableness is fact-specific, relevance to first proceeding is key), Anshun and abuse of process (Redowood v Link Market Services NSWCA 286). Topic 11 (Parties, Joinder and Cross-Claims): UCPR r joinder of parties (common question of law or fact plus same transaction or series), Payne v Young (1980) 145 CLR 609 on authorised joinder, UCPR rr to (mandatory joinder, joint liability, separate trials, necessary parties, removal of improper parties), cross-claims under CPA s 22 and UCPR r Topic 12 (Discovery): Purpose and scope of discovery, UCPR r relevance to a fact in issue (narrower than Peruvian Guano test), discovery process (notice of motion, specified classes, 28-day list with affidavit and solicitor certificate, inspection, continuing obligation under r , implied undertaking not to misuse under r and Hearne v Street (2008) 235 CLR 125), discovery in Equity Division under Practice Note SC Eq 11 (post-evidence unless exceptional circumstances, necessity requirement, affidavit support), In re Mempoll NSWSC 1057 (cannot circumvent PN Eq 11 by notice to produce), technology-assisted discovery under Practice Note SC Gen 7 (TAR workflow: seed set, continuous active learning, precision and recall testing, overturn rate validation). Topic 13 (Client Legal Privilege): Five privileges in civil litigation (client legal privilege, professional confidential relationship, journalist privilege, public interest immunity, settlement negotiations), client legal privilege under Evidence Act ss 118 and 119 (dominant purpose of legal advice or litigation), requirements (confidential communication, professional legal services, dominant purpose), Commissioner AFP v Propend Finance (1997) 188 CLR 501 (McHugh J on rationale), dominant purpose test (replaces sole purpose test, accommodates dual-purpose communications), waiver and loss of privilege under EA ss 121 to 126 (inconsistent conduct test from Expense Reduction Analysts v Armstrong HCA 46), inadvertent disclosure (Solicitors' Conduct Rules r 31), EA s 131A application of privilege to pre-trial proceedings. Topic 14 (Service of Documents): Purpose of service (procedural fairness and in personam jurisdiction), general service under UCPR r and methods under r (personal, post, leaving copy, corporation, DX or electronic), personal service under UCPR r (leaving with person or putting down in presence), service on corporations (Corporations Act 2001 (Cth) s 109X registered office), service on person keeping house (r ), substituted and informal service under r (social media permissible, affidavit evidence required), service outside NSW (Service and Execution of Process Act 1992 (Cth) within Australia, UCPR Parts 11 and 11A for overseas service including Hague Service Convention, nexus requirement under r ). Topic 15 (Subpoenas, Witness Preparation and Affidavits): Subpoenas generally (UCPR r , personal service, return date, minimum 5 days, contempt for non-compliance under r ), subpoenas to produce (four grounds to set aside under r : substitute for discovery, oppressive, improper purpose, irrelevant, fishing expedition), legitimate forensic purpose test (identify issues, demonstrate how documents assist, apparently relevant threshold), O'Shane v Harbour Radio NSWSC 93, witness preparation (testing knowledge permissible, coaching prohibited, Solicitors' Conduct Rules r 24, separate preparation r 25), affidavits (sworn or affirmed under Oaths Act 1900 (NSW), personal knowledge, own words per Ying v Song NSWSC 1500). Topic 16 (Representative Proceedings and Litigation Funding): CPA s 157 requirements (7 or more persons, same or related circumstances, substantial common question of law or fact), Wong v Silkfield (1999) 199 CLR 255 (substantial means real or of substance), originating process under s 161 (group description, nature of claims, common questions), Rodriguez v Queensland Bulk Water Supply NSWSC 1565 (no need to plead individual member facts), discontinuance under ss 164 to 166 (fewer than 7 members, excessive distribution costs, efficiency grounds, representative party unable to represent), Multiplex Funds Management v P Dawson Noms FCAFC 200 and Bright v Femcare FCAFC 243, opt-out system under s 162 (advantages: maximum class size, collective bargaining, no free-rider problem), closed class actions and funding agreements, litigation funding (contingency fees prohibited under Legal Profession Uniform Law s 183, commercial funders lawful, access to justice rationale, CPA s 56(6)). Topic 17 (Summary Disposal and Default Judgment): Default judgment (defendant in default after 28 days: r , procedure for liquidated claims r and unliquidated r , mixed claims r ), setting aside default judgment under UCPR r (2)(a) (explain delay, show defence of merit, Cronau v Vavakis NSWSC 1973), five categories of summary disposal (default judgment, summary judgment, summary dismissal, want of prosecution, strike-out under r ). Topic 18 (Evidence at Trial and Examination of Witnesses): Modes of giving evidence (oral examination UCPR r , affidavit r ), examination in chief (non-leading questions), cross-examination (leading questions, rule in Browne v Dunn: must put all contradictory matters to witness), re-examination (matters arising from cross-examination only), expert witnesses (advance service, court may limit numbers under r , court-appointed experts). Topic 19 (Costs in Civil Proceedings): Costs follow the event under UCPR r (subject to discretion), ordinary vs indemnity costs, costs and the overriding purpose (CPA ss 56 and 60), proportionality principle. Topic 22 (Costs: Detailed Analysis): Court's jurisdiction under CPA s 98 (full power as to who, to whom and to what extent), s 99 practitioner liability for wasted costs, Northern Territory v Sangare (2019) 265 CLR 164 (compensatory not punitive), Baulderstone Hornibrook on judicial exercise of discretion, specific costs orders (no order, costs of the day, costs in any event, costs in the cause, indemnity costs), costs against non-parties (instigating, funding or controlling litigation), third-party funders subject to s 56(6), costs and self-represented litigants (Cachia v Hanes (1994) 179 CLR 403: non-lawyers cannot recover professional costs, Bell Lawyers v Pentelow (2019) 269 CLR 333: self-represented lawyers cannot recover either, Chorley exception not adopted in Australia), CJ Spigelman on proportionality as statement of ambition and six mechanisms to achieve it. Topic 23 (Mediation: Procedure, Roles and Good Faith): CPA s 25 definition (structured negotiation, facilitative, mediator neutral), compulsory mediation under s 26 (good faith obligation under s 27, authority to settle required under UCPR r , mediator protection as judicial officer under s 33), position statements (eight elements: heading, formalities, facts, issues, party's case, interests and objectives, further information, negotiations), lawyer's role in mediation (Rundle's five-point spectrum: absent advisor through to spokesperson), Law Council of Australia Guidelines for Lawyers in Mediation cl (must not continue representing client acting in bad faith). Topic 24 (Interlocutory Injunctions and Other Interim Relief): American Cyanamid test (applied in Australia: serious question to be tried, balance of convenience, adequacy of damages, undertaking as to damages), mandatory vs prohibitory injunctions (higher threshold for mandatory: high probability of success), ex parte injunctions (urgent circumstances, full and frank disclosure obligation), other interim preservation orders under UCPR rr to Topic 25 (Expert Evidence and Expert Reports): Admissibility under EA s 79 (specialised knowledge, beyond ordinary person), expert's paramount duty to the court (UCPR r , four key obligations under Expert Witness Code of Conduct), concurrent expert evidence hot-tubbing (four benefits, adopted in major commercial lists), court-appointed experts under UCPR r Topic 26 (Contempt of Court): Three forms in civil proceedings (breach of order or undertaking, sub judice contempt, scandalising the court), five consequences (sequestration, committal, fines, striking out pleadings, adverse costs), standard of proof beyond reasonable doubt. Topic 27 (Summary Judgment and Summary Dismissal): Summary judgment under CPA s 60 and UCPR r (no real prospect of success, real not fanciful prospect test), summary dismissal under r (no reasonable cause of action, prejudice, abuse of process), want of prosecution (length and reasons for delay, prejudice, prospects of fair trial), inherent jurisdiction and CPA s 67 stay, In re Taylor HCATrans 63 (frivolous and vexatious application struck out). Topic 28 (Trial Management and Pre-Trial Preparation): Pre-trial directions hearings (evidence, discovery, subpoenas, submissions, court books, issues identification, hearing length, mediation referral), judicial settlement conferences (confidential, not reported to trial judge without consent), trial process (six stages: opening addresses, plaintiff's case, defendant's case, expert evidence, closing addresses, judgment), judgments and reasons (four functions, reserved judgment permissible, need not address every argument but must address main contentions). Topic 29 (Public Interest Immunity): Nature and rationale of PII (competing public interest in non-disclosure, court can raise of own motion), PII in NSW under Evidence Act s 130 (matter of state, significance vs harm balancing, full or redacted disclosure), PII vs client legal privilege comparison table (immunity vs privilege, public vs private interest, balancing vs absolute, government vs any litigant). Topic 30 (Professional Obligations in Civil Litigation): Duties to the court (not to mislead, not to abuse process, disclose adverse authority, assist case management under CPA s 56(4)), duties to clients (competence, loyalty, confidentiality, candour, informed consent, costs disclosure), duties to opposing parties and practitioners (no exploitation of obvious error, Solicitors' Conduct Rules r 31 on inadvertent disclosure, courtesy and cooperation, compliance with undertakings), duties in settlement and ADR (Solicitors' Conduct Rules r , not to mislead in negotiations, good faith advice, confidentiality). Topic 31 (Enforcement of Judgments: Detailed Analysis): Writ of levy of property (sheriff seizes and sells, real property also available, notice before execution), garnishee orders (garnishee order to pay vs garnishee order to pay instalments from wages), charging orders (security interest on real estate, shares, trust interests, subsequent order for sale), examination of judgment debtor (examination order, under oath, failure is contempt), enforcement of foreign judgments (SEPA 1992 (Cth) within Australia, Foreign Judgments Act 1991 (Cth) for overseas, fresh action on judgment debt where no convention). Topic 32 (Pre-Action Steps and Informal Dispute Resolution): Letters of demand, preservation of evidence (electronically stored information, adverse inferences for failure to preserve), preliminary discovery under UCPR Part 5 (r to identify proper defendant, r to identify documents establishing plaintiff's case), expert reports before litigation (dominant purpose test), without prejudice communications and EA s 131 (not automatic, substance of communication determines protection, Calderbank offer save as to costs, open offers). Topic 33 (Interlocutory Applications and Notices of Motion): Procedure under UCPR r (notice of motion, affidavit support, service, court hearing), eight types of interlocutory orders (directions, injunctions, freezing and search orders, summary judgment and dismissal, security for costs, discovery orders, amendment of pleadings, extension of limitation period), amendment of pleadings under UCPR r (Aon Risk Services principles: stage of amendment, nature, prejudice, necessity, public interest in efficiency, bad faith and irreparable prejudice grounds for refusal).