2
/ Diploma in Law /LEGAL PROFESSION
ADMISSION BOARD
/ /LAW EXTENSION COMMITTEE
LAW EXTENSION COMMITTEE SUBJECT GUIDE
15 PRACTICE AND PROCEDURE
SUMMER SESSION 2017-18
This Guide includes the Law Extension Committee’s course information and teaching program and the Legal Profession Admission Board’s syllabus. The syllabus is contained under the heading “Prescribed Topics and Course Outline” and has been prepared in accordance with Rule 27H(a) of the NSW Admission Board Rules 2015.
Explanatory Note / 1Course Description and Objectives / 1
Lecturers / 2
Assessment / 2-3
March 2018 Examination / 3
Lectures / 4
Weekend Schools 1 and 2 / 4
Texts and Materials / 4-5
Compulsory Assignment / 5
Assignment Questions / 5
Sample Examination Question / 7
Prescribed Topics and Course Outline / 8-12
Lecture Outlines / 13-38
General Outline - Statement of Claim / 39-40
1
LAW EXTENSION COMMITTEE
/SUMMER 2017-18
15 PRACTICE AND PROCEDURE
EXPLANATORY NOTE
Up to and including the Summer Semester 2004-05 the subject of Practice and Procedure involved an examination of the Supreme Court Act 1970 (NSW) and the Supreme Court Rules (NSW).
This gave a basis for understanding civil litigation in the Supreme Court of NSW, and also an essential understanding to the conduct of civil litigation in the District Court of NSW and in the Local Court in NSW. However, in relation to practice as a legal practitioner, if a matter was to be conducted in, say, the District Court, the practitioner would have needed to know the provisions of the District Court Act 1973 (NSW) and the District Court Rules. Similarly, a matter in the Local Court would have required the application of the Local Court (Civil Claims) Act 1970 (NSW) and the Local Court Rules.
As a consequence of the introduction in 2005 of the Civil Procedure Act and Uniform Civil Procedure Rules, there is much greater uniformity in procedures applicable to these various levels of courts in their civil jurisdiction. However, some provisions of the previous Acts remain in force and are of importance and some rules also continue.
It is essential, generally, for all students to regularly access the LEC Webcampus to ascertain any additional material as and when it becomes available, especially references to relevant Practice Notes.
COURSE DESCRIPTION AND OBJECTIVES
The subject of Practice and Procedure deals with the day-to-day practicalities of civil litigation in New South Wales.
SPECIAL NOTE:
There will be considerable emphasis on the more significant Practice Notes when looking at the step by step procedure, as outlined in the Act and the Rules.
The emphasis throughout the course is on conducting matters through the Supreme Court of New South Wales. However, with the changes introduced by the Civil Procedure Act of 2005 and the Uniform Civil Procedure Rules 2005, the procedure, with some exceptions, will be uniform throughout the Supreme Court, District and Local Courts of New South Wales.
The topics covered in the course are set out in the syllabus. In general terms the course deals with:
(a) the logistics of commencing an action in the Supreme Court; the various interlocutory steps between the commencement of an action and the hearing stage, including discovery and inspection and the issuing of subpoenas;
(b) evidence in relation to procedural matters;
(c) the logistics of “running” a matter, including enforcement of judgment;
(d) elementary drafting principles, including practical drafting of documents;
(e) mediation and alternative dispute resolution.
LECTURERS
Mr Robert Gowenlock, LLB (Syd)
Robert Gowenlock has been a barrister practising in Sydney for 38 years, and a former part-time lecturer in Practice and Procedure at the University of Technology, Sydney. He has had a wide area of practice, including property, trusts, wills and estates, negligence, insurance and personal injury, bankruptcy and equity and conducted seminars in debt recovery for Dun & Bradstreet from 1980 to 2003.
Ms Andrea Cotter-Moroz, LLB (Hons) (UTS), Grad Dip (Leg Prac) (UTS), M.Ed (Adult) (UTS)
Andrea Cotter-Moroz is a practising barrister at the NSW Bar. She has a broad range of experience, appearing in all civil courts, within both the state and federal court systems. Her main areas of practice are family law and equity. Andrea has a special interest in alternative dispute resolution. She is also on the panel of Mediators for the referral of Supreme Court matters and is a Local Court Arbitrator. Andrea also teaches Family Law for the Law Extension Committee.
ASSESSMENTTo be eligible to sit for the Board’s examinations, all students must complete the LEC teaching and learning program, the first step of which is to ensure that you have registered online with the LEC in each subject for which you have enrolled with the Board. This gives you access to the full range of learning resources offered by the LEC.
To register with the LEC, go to www.sydney.edu.au/lec and click on the WEBCAMPUS link and follow the instructions. Detailed guides to the Webcampus are contained in the material distributed by the LEC, in the Course Information Handbook, and on the Webcampus.
Eligibility to Sit for Examinations
In accordance with the Legal Profession Admission Rules, the LEC must be satisfied with a student’s performance in a subject in order for the student to be eligible to sit for the examination, conducted by the Legal Profession Admission Board (LPAB). Assignments are used to assess eligibility.
Students are expected to achieve at least a pass mark of 50% in assignments to be eligible to sit for examinations. However, a category of “deemed eligible” has been introduced to offer students whose assignment mark is between 40-49% an opportunity to sit for the examination. In these circumstances students are often advised not to sit. A mark below 40% means a student is not eligible to sit for the examination.
Assignments as part of the Board’s Examinations
Assignment results contribute 20% to the final mark in each subject.
The Law Extension Committee (LEC) administers the setting and marking of assignments. The LEC engages the LPAB’s examiners to assess or supervise the assessment of assignments.
Submission
Assignments must be received by 11:59pm on the due date unless an extension has been granted. Extensions must be requested by email prior to the due date. Specific supporting evidence must be provided. Assignments that are more than ten days late will not be accepted. Late assignments attract a penalty of one mark out of 20, or 5% of the total marks available, per day.
Assessment
Assignments are assessed according to the “Assignment Grading and Assessment Criteria” outlined in the Guide to the Presentation and Submission of Assignments. Prior to the examination, assignments will be returned to students and results posted on students’ individual results pages of the LEC Webcampus. Students are responsible for checking their results screen and ascertaining their eligibility to sit for the examination.
Review
Where a student’s overall mark after the examination is between 40-49%, the student’s assignment in that subject will be included in the Revising Examiner’s review. The final examination mark is determined in accordance with this review. Assignment marks will not otherwise be reviewed.
MARCH 2018 EXAMINATION
Candidates will be expected to have a detailed knowledge of the prescribed topics:
· General issues;
· Jurisdictional issues;
· Initiating civil actions I;
· Initiating civil actions II;
· Interlocutory procedures I;
· Interlocutory procedures II;
· Hearings and judgments and enforcement;
· Alternative dispute resolution;
· Case management, including Practice Notes.
Candidates will be expected to have made a study of the prescribed materials in relation to those topics, and to have analysed the cases and statutory provisions referred to in the Law Extension Committee’s course and lecture outlines.
All enquiries in relation to examinations should be directed to the Legal Profession Admission Board.
LECTURES
Lectures will be held on Fridays commencing 10 November 2017 at 6.00pm. Lectures will be held in Carslaw Lecture Theatre 375 before the study break and Eastern Ave Lecture Theatre 315 after the study break. Note there will be no lecture on Australia Day.
See lecture outlines beginning on page 12.
The study break is from Saturday 16 December 2017 – Sunday 7 January 2018
WEEKEND SCHOOLS 1 and 2
There are two weekend schools principally for external students. Lecture students may attend but should be aware that weekend school classes aim to cover the same material provided in weekly lectures and are primarily for the assistance of external students.
Please note that it may not be possible to cover the entire course during the weekend schools.
Weekend School 1 / Weekend School 2Saturday 25 November 2017:
4pm - 8pm
Sunday 26 November 2017:
8am - noon / Abercrombie CSLT 2150
Abercrombie
LT 1130 / Saturday 3 February 2018:
4pm - 8pm
Sunday 4 February 2018:
8am - noon / New LSLT 026
New LSLT 026
TEXTS AND MATERIALS
Course Materials
· Practice and Procedure Course Materials (available via the link to the Law Library in the Course Materials section of the LEC Webcampus)
· Guide to the Presentation and Submission of Assignments (available on the LEC Webcampus)
· Practice Notes, as discussed in lectures, or as specified in the case list
· Case List – A case list is available as part of the Course Materials. Students will be notified any recent cases of significance during lectures and on the LEC Webcampus
Prescribed Materials
· Civil Procedure Act 2005 as amended
· Uniform Civil Procedure Rules 2005, including Practice Notes as amended
· Supreme Court Act 1970, and Supreme Court Rules 1970
· District Court Act 1973 and District Court Rules 1973
· Local Court Act 2007, and Local Court Rules 2009
· New South Wales Civil Procedure Handbook 2017, Hamilton, Lindsay, Morahan & Webster, Thompson Reuters
· Civil Procedure in NSW, 3rd ed., Kumar, Legg & Vickovich, Thompson Reuters, 2015
· Evidence Act 1995 (NSW) as advised
[Note: Supreme Court Act, District Court Act, Local Court Act and rules – limited discussion]
Reference Materials
· Ritchie, Uniform Civil Procedure NSW, LexisNexis Butterworths (loose leaf service and online)/ service provided by Thomson Reuters
· Cairns B.C., Australian Civil Procedure, 11th ed. Thomson Reuters, 2016
· Colbran et al, Civil Procedure: Commentary & Materials, 6th ed. LexisNexis, 2015
· Sourdin Tania, Alternative Dispute Resolution, 5th ed., Thompson Reuters 2016
· Spender D., Hardy S., Dispute Resolution in Australia, 3rd ed., Thompson Reuters
· The College of Law NSW Practice Papers 2106 (Vol 4) LexisNexis
· Azize, El Khouri and Finnane, Pleading Precedents, Thomson Reuters, 2009
· Villa, Dominic, Annotated Civil Liability Act 2002 (NSW) 2nd ed. Thomson Reuters, 2013
· Odgers S., Uniform Evidence Law, 11th ed. Thomson Reuters, 2016
· Jones D., Commercial Arbitration in Australia, 2nd ed., Thomson Reuters 2013
Important Notice
The Civil Procedure Act, less so, and the Uniform Civil Procedure Rules, more often, undergo continuing change. This also applies to Practice Notes. Any examination will be set on the basis of the relevant procedure provisions in force as at the time the second weekend school is conducted. Students must be aware of the need to ascertain any changes to the course materials by checking the LEC site.
A case list will be published during the semester.
LEC Webcampus
Once you have registered online with the LEC, you will have full access to the facilities on the LEC Webcampus including links to relevant cases and legislation in the Course Materials section.
compulsory ASSIGNMENT
In Practice and Procedure, there is only ONE ASSIGNMENT. This assignment is compulsory and must be submitted by all students. Students must submit the assignment by the due date. A pass mark is 50%. Refer to the Guide to the Presentation and Submission of Assignments for the assignment grading and assessment criteria. Students who fail to satisfy the compulsory requirements will be notified through the Results screen on the Webcampus before the examination period of their ineligibility to sit the examination in this subject. The maximum word limit for the assignment is 2000 words (inclusive of all footnotes but not bibliography).
The rules regarding the presentation of assignments and instructions on how to submit an assignment are set out in the LEC Guide to the Presentation and Submission of Assignments which can be accessed on the LEC Webcampus. Please read this guide carefully before completing and submitting an assignment.
The completed assignment should be lodged through the LEC Webcampus, arriving by 11:59pm on the following date:
Compulsory Assignment / Wednesday 10 January 2018 / (Week 7)ASSIGNMENT QUESTIONS
To obtain the Practice and Procedure assignment questions for the Summer Session 2017-18, please follow the instructions below:
1. Register online with the LEC (see page 24 of the Course Information Handbook for detailed instructions). Once you have registered, you will have full access to all the facilities on the LEC Webcampus.
2. Then go into the Webcampus, select the Course Materials section and click on the link to the assignment questions for this subject.
SAMPLE EXAMINATION QUESTION
From LPAB Examination paper, March 2015, Question 5.
The essential obligation imposed on courts, parties and legal advisers and the application of the Act and the Rules is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings” (section 56 CPA).
For this purpose (as well as other procedures) the various courts have introduced practice notes. Over the years, since their first introduction, the practice notes have been refined and developed to deal with specific matters and their attendant procedures.
A plaintiff may commence proceedings for a range of matters in the Equity Division of the Supreme Court. Certain types of matters in the Equity Division fall within the province of a specific practice note, for example, family provision claims are dealt with in PN SC Eq 7.
General equity matters whether commenced by statement of claim or by summons have procedures detailed in a number of practice notes, specifically:
PN SC Eq 1 Supreme Court Equity Division – Case Management