A Practitioner's Guide to Civil Litigation

306 Pages·2010·1.76 MB·English

cover concept by Michael Bacina
artwork by fisheye design
The Practitioner’s Guide to
Civil liTiGaTion
3rd Edition
The Law SocieTy of New SouTh waLeS
youngLawyeRS
Civil litigation Committee
© the law Society of new South Wales
(new South Wales Young lawyers Civil
litigation Committee) 2010
a project of the nSW Young lawyers Civil litigation Committee
<http://lawsociety.com.au/about/younglawyers/committees/civillitigation/index.htm>
this guide is available for students and self-represented litigants at
<http://www.lawsociety.com.au/resources/reports/handbooksandguides/index.htm>.
this publication is designed as a guide for legal practitioners and to provide general
legal information only. this publication does not provide legal advice.
the law Society of new South Wales, on behalf of itself and any other person involved
in the production of the contents of this publication, disclaims any liability for direct,
indirect or consequential loss arising in connection with the use of the contents of this
publication or reliance on those contents by any person, whether used in the original
form or altered in some way by the user.
the law Society of new South Wales gives no warranties nor makes any representation
in respect of the contents of this publication.
national library of australia
Cataloguing-in-Publication entry
nSW Young lawyers. Civil litigation Committee.
the practitioner’s guide to civil litigation / nSW Young lawyers’ Civil litigation
Committee.
3rd ed.
iSBn: 978 0 646 52641 6 (pbk.)
Previous ed.: 2006.
actions and defenses – new South Wales
actions and defenses – australia
Procedure (law) – australia
Procedure (law) – new South Wales
347.9405
© Copyright nSW Young lawyers Civil litigation Committee
third edition 2010
Previous editions:
a Practitioner’s guide to Civil litigation, published 2004
Second edition, published 2006
Cover art / graphics by michael Bacina and fsheye design
typeset by the Federation Press Pty ltd, Sydney nSW.
Printed by ligare Pty ltd, Riverwood nSW
The Practitioner’s Guide to Civil litigation iii
Foreword
Courts in New South Wales actively manage the cases in their lists.
Practitioners are required to comply with the case management
principles of the Courts and to actively prepare their clients’ cases for
hearing. This, in turn, places added responsibilities on lawyers. Over
the last decade I have observed a signifcant change in the way that
civil litigation is conducted in this State. The emphasis today is upon
case management, upon the efcient use of Court time and with an
emphasis on the resolution of the real issues in proceedings. The Civil
Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 emphasise
the importance of case management. To quote Section 56(1) of the Act:
The overriding purpose of this Act and of rules of Court, in their
application to civil proceedings, is to facilitate the just, quick and
cheap resolution of the real issues in the proceedings.
It is important that lawyers, particularly those who are inexperienced
or do not do a lot of work in the civil litigation area, are familiar with
what Courts require. It is very important that practitioners are well-
prepared and have a full understanding of the mater in which they are
representing a client, they need to know what is expected of them and
to have a good knowledge of the Court system and to think carefully
about the purpose of Section 56 of the Act. I also draw your atention to
District Court Practice Note No. 1 at paragraph 4 which goes so far as
to set out the high standard of legal representation now required when
atending Court.
The Practitioner’s Guide to Civil Litigation is a valuable guide aimed at
younger practitioners and those practitioners who do not regularly
practice civil litigation. This third edition has changed signifcantly
from the second edition as a result of the Civil Procedure Act 2005, the
Uniform Civil Procedure Rules 2005 and the Legal Profession Act 2004. I
recommend that all young lawyers read this publication and use it as a
guide when entering into civil litigation.
I congratulate the NSW Young Lawyers Civil Litigation Commitee
for the continued updating and publication of The Practitioner’s Guide
to Civil Litigation. To prepare a guide such as this takes considerable
thought, work and dedication. I have no doubt it will be of considerable
assistance to young practitioners.
Judge A.F. Garling, Civil List Judge
District Court of New South Wales
Table oF ConTenTs
Foreword iii
Detailed Table of Contents viii
About this publication xvi
Credits xvii
Preface xviii
Part 1 – introduction 1
1. Courts and Tribunals 3
Hilary Kincaid and Bronwyn Sharp
Part 2 – Types of disputes 15
2. Personal Injury 17
Theresa Assaker, Nicole Cerisola, Juliet Eckford,
Hilary Kincaid and Kathryn Millist
3. Deceased Estates 30
Wendy Bure and Caroline Law
4. Debt Recovery 36
Michael Bacina, Stuart Cork and Katrine Narkiewicz
5. The Local Court Small Claims Division 41
Roslyn Cook and Tannie Kwong
6. Proceedings in the Supreme Court Corporations List 49
Amanda Beatie, Joanne Chaina and Thomas Storer
7. Bankruptcy 54
Michael Bacina and Joshua Knackstredt
8. Administrative Appeals Tribunal 61
Caroline Law and Bronwyn Sharp
9. Proceedings in the Supreme Court Possession List 64
Natalie Ballard and Wendy Bure
10. Proceedings in the Supreme Court Commercial List and
Technology and Construction List 68
Thomas Storer and Joanne Chaina
Table of Contents v
11. Constitutional Litigation 76
Danielle Gatehouse and Rachel Mansted
Part 3 – Commencing Proceedings in new south wales 87
12. Limitation Periods 89
Michael Denahy, Juliet Eckford and Robert Tang
13. Statements of Claim and Summonses 94
Sharna Clemmet, Laith Hiazin and Alanna Van Der Veen
14. Urgent Applications to the Duty Judge 100
Leonie Beyers, Nicole Cerisola, Sine Dellit and
Brenda Tronson
15. Motions 105
Leonie Beyers, Nicole Cerisola, Claire Prenter and
Jacqueline Rennie
16. Drafing Pleadings 111
Sharna Clemmet, Robert Ishak, Joshua Knackstredt
and Laura Rush
Part 4 – interstate and international Civil litigation 117
17. Interstate and International Proceedings 119
Justin Hogan-Doran
Part 5 – Judgment before Trial 125
18. Judgment Before Trial 127
Stuart Brady and Tannie Kwong
Part 6 – Mediation 139
19. Mediation and Negotiation 141
Michael Bacina, Sharna Clemmet, Karen
Dunham, Rachel Mansted and Laura Rush
20. Principled Negotiation 149
Michael Bacina
vi The Practitioner’s Guide to Civil litigation
Part 7 – Common litigious Tasks 159
21. Directions Hearings and Motions 161
Roxana Carrion, Nicole Cerisola, Kirti Patel and
Brenda Tronson
22. Show Cause Hearings 171
Wendy Bure, Nicole Cerisola, Noelle Tin and
Brenda Tronson
23. Discovery 174
Michelle Hernandez, Juliet Eckford,
Marnie Featherstone and Elias Yamine
24. Subpoenas and Notices to Produce 179
Michael Bacina and Tannie Kwong
Part 8 – evidence and Trials 187
25. Afdavits and Witness Statements 189
Jason Geisker, Kirti Patel and Brenda Tronson
26. Expert Evidence 205
Jonathan Adamopoulos, Nelson Arias, Leonie Beyers,
Sharna Clemmet and Susannah Macclaren
27. Admissions by Notice 221
Amanda Beatie, Sharna Clemmet and Roslyn Cook
28. Briefng Counsel 226
Stuart Cork and Joshua Knackstredt
29. Advocacy 236
Jonathan Adamopoulos and Nelson Arias
Part 9 – settlement 245
30. Setlement 247
Nicole Cerisola, Stuart Cork, Elizabeth Magill and
Laura Rush
Table of Contents vii
Part 10 – enforcing Judgments 259
31. Enforcing Judgments 261
Sine Dellit and Riona Moodley
32. Recognition and Enforcement of Interstate and Foreign
Judgments 273
Justin Hogan-Doran
Part 11 – Unrepresented litigants 279
33. Unrepresented Litigants 281
Michael Denahy and Tannie Kwong
viii The Practitioner’s Guide to Civil litigation
deTailed Table oF ConTenTs
Part 1 – introduction
1. Courts and Tribunals 3
1.1 Introduction 3
1.2 Supreme Court of New South Wales 3
1.3. District Court of New South Wales 4
1.4 Local Courts of New South Wales 5
1.5 Federal Court of Australia and Federal Magistrates
Court of Australia 6
1.6 Land and Environment Court 7
1.7 Administrative Appeals Tribunal 9
1.8 Children’s Court and Children’s Court Clinic 10
1.9 Coroner’s Court 10
1.10 Drug Court of New South Wales 11
1.11 Dust Diseases Tribunal of New South Wales 12
1.12 Industrial Relations Commission of NSW (NSW IRC) 12
1.13 Australian Industrial Relations Commission and Fair
Work Australia 13
Part 2 – Types of disputes
2. Personal Injury 17
2.1 Introduction 17
2.2 Civil Liability Act 2002 17
2.3 Common law claims 18
2.4 Motor vehicle accidents 22
2.5 Work injury claims 26
2.6 Victims compensation 28
3. Deceased Estates 30
3.1 Introduction 30
3.2 Probate 30
3.3 Form 31
3.4 Family Provision Act claims 31
3.5 Time limits 32
3.6 Costs 33
3.7 UCPR Part 7 Rule 10 34
detailed Table of Contents ix
4. Debt Recovery 36
4.1 Leter of demand 36
4.2 Proceedings against corporations 38
4.3 Proceedings against individuals 39
4.4 Evidence 39
5. The Local Court Small Claims Division 41
5.1 Introduction 41
5.2 The pre-trial review 44
5.3 Witness statements 45
5.4 Small Claims Assessment Hearings 46
5.5 Semi-Formal Hearings 47
5.6 Costs 48
5.7 The Consumer, Trader and Tenancy Tribunal 48
5.8 Appeals from the Small Claims Division 48
6. Proceedings in the Supreme Court Corporations List 49
6.1 Introduction 49
6.2 Appearing in the Corporations List 50
6.3 Statutory demands and applications for winding up or
appointment of liquidator 52
7. Bankruptcy 54
7.1 Introduction 54
7.2 Involuntary bankruptcy 55
7.3 Voluntary bankruptcy 59
7.4 Further reading 60
8. Administrative Appeals Tribunal 61
8.1 Introduction 61
8.2 Statutory background 61
8.3 Power of review 61
8.4 Evidence 61
8.5 Jurisdiction 62
8.6 Procedure 63
8.7 Appeals 63
9. Proceedings in the Supreme Court Possession List 64
9.1 Introduction 64
9.2 Practice Note 64
9.3 Background to commencing proceedings 64
9.4 Commencing proceedings 65
9.5 Service 65
9.6 Default judgment 65