LEC Practice and Procedure s1

LAW EXTENSION COMMITTEE

UNIVERSITY OF SYDNEY

15 PRACTICE AND PROCEDURE

SUBJECT GUIDE

SUMMER SESSION 2007-08

Explanatory Note / 1
Course Description and Objectives / 1
Teacher / 1
Assessment / 2
March 2008 Examination / 2
Lectures / 2
Weekend Schools 1 and 2 / 2
Texts and Materials / 3
Assignment / 3
Assignment Questions / 4
Prescribed Topics and Course Outline / 5
Lecture Outlines / 10

LAW EXTENSION COMMITTEE

SUMMER 2007-08

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.

It is essential, generally, for all students to regularly access the LEC website 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.

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;

(d) elementary drafting principles, including practical drafting of documents;

(e) mediation and alternative dispute resolution.

Teacher

Mr R Gowenlock, LLB (Syd)

Mr Gowenlock is a Barrister practising in Sydney since 1973, and a former part-time Lecturer in Practice and Procedure at the University of Technology, Sydney. He has a wide area of practice, including Property, Trusts, Wills and Estates, Negligence, Insurance and Personal Injury, Bankruptcy and Equity and has conducted seminars in debt recovery for Dun & Bradstreet from 1980 to 2003.

ASSESSMENT

To 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.

Then, students must achieve a satisfactory result (at least 50%) in each subject where a compulsory component is prescribed.

To register with the LEC, go to www.usyd.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.

MARCH 2008 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.

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 at 6.00pm in Law School Lecture Theatre 1 (LSLT 1), which is on the corner of Phillip, King and Elizabeth Streets. The first lecture will be held on Friday 16 November 2007.

Please note: due to the University Campus Christmas closures, there is no lecture scheduled on Friday 21 December 2007. To compensate for this closure, an additional lecture will be scheduled for Wednesday 19 December 2007 in Law School Lecture Theatre 1 (LSLT 1) at 6.00pm.

The study break is from Saturday 22 December 2007 – Sunday 13 January 2008.

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 / Carslaw Lecture Theatre / Weekend School 2 / Carslaw Lecture
Theatre
Saturday 1 December 2007:
4pm - 8pm
Sunday 2 December 2007:
8am - noon / CLT 373
CLT 175 / Saturday 2 February 2008:
4pm - 8pm
Sunday 3 February 2008:
8am - noon / CLT 373
CLT 373

TEXTS AND MATERIALS

Course Materials

· Practice and Procedure Course Materials (available via the link to the Law Library on the Course Materials section of the LEC Webcampus)

· Practice and Procedure Handouts (hard copy available in the first week of nightly lectures and Weekend School 1 for external students)

· Guide to the Presentation and Submission of Assignments (available on the LEC Webcampus)

Prescribed Materials

· Civil Procedure Act 2005

· Uniform Civil Procedures Rules 2005

· Evidence Act 1995 (NSW) or (Cth)

Reference Materials

· Ritchie, Uniform Civil Procedure NSW, LexisNexis Butterworths (loose leaf service). Alternatively, Thompsons, New South Wales Civil Practice and Practice

· Cairns B.C., Australian Civil Procedure, 7th ed. Thomson Lawbook, 2007 (new edition)

· Colbran et al, Civil Procedure: Commentary & Materials, 3rd ed. LexisNexis Butterworths, 2005

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 on the Course Materials section.

ASSIGNMENT

There is one assignment in Practice and Procedure. The maximum word limit for the assignment is 2000 words (inclusive of all footnotes but not bibliography).

Although the assignment is voluntary, students are strongly encouraged to complete it. Students must submit the assignment by the due date (no extensions will be granted), and should achieve a grade of at least 50% to demonstrate an understanding of the subject. See the LEC Guide to the Presentation and Submission of Assignments which can be accessed on the LEC Webcampus and the advice in your Course Information Handbook before submitting assignments.

The completed assignment should be lodged through the LEC Webcampus by 9.00am on the following date:

Assignment / Wednesday 23 January 2008 / (Week 8)

ASSIGNMENT QUESTIONS

To obtain the Practice and Procedure assignment questions for the Summer Session 2007-08, please follow the instructions below:

1. Register online with the LEC (see page 27 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.

PRESCRIBED TOPICS AND COURSE OUTLINE

NOTE: The references to specific rules and sections of statutes are made as a general guideline only. Students should be aware that other provisions, practice notes etc also need to be considered in relation to each topic outlined below.

1. GENERAL ISSUES

(1) Jurisdiction

(a) Original jurisdiction: civil

(i) Civil Procedure Act 2005 (NSW), s 5

Service and Execution of Process Act 1992 (Cth)

Foreign Judgments Act 1991 (Cth)

Jurisdiction of Courts (Foreign Land) Act 1989 (NSW)

Family Law Act 1975 (Cth), s 40

Land and Environment Court Act 1979 (NSW)

Consumer Trading and Tenancy Tribunal Act (NSW)

(ii) Limitations imposed by costs rules

(iii) Inherent jurisdiction/incidental powers

(b) Appellate jurisdiction: civil

Civil Procedure Act 2005 (NSW)

Criminal Procedure Act 1986 (NSW)

Criminal Procedure Regulation 1995, s 4

Crimes Act 1900 (NSW), ss 12, 19A

(d) Appellate jurisdiction: criminal

Criminal Appeal Act 1912 (NSW)

Criminal Procedure Act 1986 (NSW)

2. CROSS VESTING LEGISLATION

Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth)

Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW)

Re Wakim; Ex parte McNally (1999) 73 ALJR 839

Judiciary Act 1903 (Cth)

Accrued Jurisdiction Federal Courts

3. OVERVIEW OF CIVIL PROCEDURE ACT 2005

4. MONETARY JURISDICTIONAL LIMITS OF THE DISTRICT COURT AND LOCAL COURT

5. TRANSFER OF MATTERS BETWEEN THE SUPREME, DISTRICT AND LOCAL COURTS

Note: All references to the Act or Rules refer to the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 except where otherwise specified.

6A. INITIATING CIVIL ACTIONS I

1. Time

Part 1 Division 2 Rules 1.11 to 1.13

2. Preparation and Filing of Documents

Part 4 Rules

3. Preliminary Discovery

Part 5 Rules

4. Parties to Proceedings and Representation

Part 7 Rules

5. Joinder of Causes of Action and Parties

Part 6 Division 5 Rules

Part 6 Division 6 Rules

Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589

Marino v Esanda Limited [1986] VR 735

6. Originating Process

Part 6 Division 1 Rules

Part 6 Division 2 Rules

Part 6 Division 4 Rules

s100 Interest

7. Pleading Principles

Part 6 Division 4 Rules

Part 14 Rules

8. Requirements on Clients/Legal Practitioners in Commencement/Conduct of Proceedings

Part 14 Division 4 Rules

Other rules and statutes

9. Particulars

Part 15 Division 1 Rules Generally

Part 15 Division 2 Rules Personal injury cases

6B. INITIATING CIVIL ACTIONS II

1. Preliminary Consideration of Costs

Part 42 Rules

2. Commencement of Proceedings

Part 6 Division 1 Rules

Part 4 Division 2 Rules

3. Service

Part 10 Rules

Part 11 Rules

Schedule 6 (Rule 11.2)

(Commonwealth) Service & Execution of Process Act 1992

Corporations Law – Service Provisions, s109 X, s601CX

4. Appearance

Part 6 Rule 1 Rules

Part 6 Division 3 Rules

Part 12 Rule 11

5. Defences & Further Pleadings

Part 14 Division 1 Rules

Part 14 Division 2 Rules

Part 14 Division 4

6. Cross Claims

Section 22 Act Cross Claim

Section 21 Act Set off

Part 9 Rules

7. Interpleader

Part 43 Rules

8. Amendment

Part 19 Rules

Section 64, 65, 58(1)(2), 56 and 57

7A. INTERLOCUTORY PROCEDURES 1

1. Notice of Motion

Part 18 Rules Motion

Part 35 Rules Affidavits

Part 31 Rules Evidence

Section 75 Evidence Act 1995 (NSW)

2. Default Judgment

Part 16 Rules

3. Summary Disposal

Part 13 Rules

Part 14 Rule 28 Rules

Part 17 Rule 7 Rules

Part 20 Rule 33 & 34 Rules

4. Other Forms of Disposal

Part 12 Division I Rules Discontinuance

Part 42 Rule 19 Rules Costs

Part 12 Division 2 Rules Withdrawal

Part 12 Division 3 Rules Dismissal

Section 61 Act

5. Security for Costs

Part 42 Rule 21 Rules

Section 1335 Corporations law

7B. INTERLOCUTORY PROCEDURES II

1. Discovery, Inspection, Notice to Produce Documents

Part 21 Rules

Reference should be made to definitions in the dictionary appended to the Rules

Evidence Act 1995 (NSW)

2. Interrogatories

Part 22 Rules

3. Medical Examinations & Inspection of Property

Part 23 Rules

Evidence Act 1995 (NSW)

Part 31 Division 2, 3 Rules Expert evidence

4. Subpoenas & Notice to Produce at Trial

Part 33 Rules Subpoenas

Part 34 Rules Notice to produce at trial

Service and Execution of Process Act 1992 (Cth)

Botany Bay Instrumentation & Control v Stewart [1984] 3 NSWLR 98

R v Baines [1909] 1 KB 258

R v Hurle-Hobb [1945] 1 KB 165

National Employers Mutual General Association v Waind & Hill [1978] 1 NSWLR 377

Commissioner for Railways v Small (1938) 38 SR (NSW) 564

5. Admissions

Part 17 Rules

Section 70 Act

6. Compromise & Settlement

Part 20 Rule 25 Rules Compromise

Part 42 Division 3 Rules Costs

Part 42 Division 4 Rules

Calderbank v Calderbank [1946] Fam 93

Sections 71-77 Act Settlement, legal incapacity

8. HEARINGS AND JUDGMENT

1. Preparation for and Hearings

Part 29 Rules Trial

Part 30 Rules Assessment

Part 31 Rules Evidence

Part 35 Rules Affidavits

2. Judgment

Part 36 Rule 4 Rules

Part 36 Rule 8 Rules

Part 36 Rule 12 Rules

Part 36 Division 4 Rules Setting aside

Part 36 Interest, s101

9. APPEAL

10. ENFORCEMENT

Rules 36.7 Rules

Schedule 5 Rules Interest

Part 37 Rules Payments by instalments

Part 38 Rules Examination

Part 39 Rules

Part 40 Rules

Part 7 Act ss90-138

11. CASE MANAGEMENT

S 15 Act

S 56, 57, 58, s61, s62, s63

Part 2 Rules

Part 3 Rules

Practice Notes as made available by the Courts

12. LESS LITIGIOUS APPROACHES TO CONTENTIOUS MATTERS

(1) Managerial Judging

Rogers, A., The managerial or interventionist judge (1993) 3 Journal of Judicial Administration 96-110

(2) Mediation

Community Justice Centres Act 1993 (NSW)

Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 342, per Kirby P at 347 and 351

People v Snyder [129 MISC 2d 137] 137

(3) Mediation, Arbitration, Expert Evaluation and Other Dispute Resolution Processes