Civil procedure in New South Wales PDF
Preview Civil procedure in New South Wales
CIVIL PROCEDURE IN NEW SOUTH WALES Thomson Reuters (Professional) Australia Limited 19 Harris Street Pyrmont NSW 2009 Tel: (02) 8587 7000 [email protected] http:// legal.thomsonreuters.com.au/ For all customer inquiries please ring 1300 304 195 (for calls within Australia only) INTERNATIONAL AGENTS & DISTRIBUTORS NORTH AMERICA ASIA PACIFIC Thomson Reuters Thomson Reuters Eagan Sydney United States of America Australia LATIN AMERICA EUROPE Thomson Reuters Thomson Reuters São Paulo London Brazil United Kingdom CIVIL PROCEDURE IN NEW SOUTH WALES FOURTH EDITION MIIKO KUMAR Crown Prosecutor, Barrister at Law PROFESSOR MICHAEL LEGG Faculty of Law University of New South Wales ILIJA VICKOVICH Macquarie Law School Macquarie University DR JAMES METZGER Faculty of Law University of New South Wales LAWBOOK CO. 2020 Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW 2009 ISBN: 9780455243467 © 2020 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. All legislative material herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. The Copyright Act 1968 permits certain reproduction and publication of Commonwealth legislation. In particular, s 182A of the Act enables a complete copy to be made by or on behalf of a particular person. For reproduction or publication beyond that permitted by the Act, permission should be sought in writing. Requests should be submitted online at www.ag.gov.au/c ca, faxed to (02) 6250 5989 or mailed to Commonwealth Copyright Administration, Attorney-G eneral’s Department, Robert Garran Offices, National Circuit, Barton ACT 2600. Thomson Reuters (Professional) Australia Limited, and the authors, would like to thanks the publishers, agents, and authors who have allowed the reproduction of extracts of their work in this book. Every effort has been made to contact copyright holders and/or their agents, however, we tender our apology for any accidental infringement. The publisher would be pleased to come to a suitable agreement with the rightful owner in each case. Product Developer: Elizabeth Gandy Edited and typeset by Newgen Digitalworks Printed by Ligare Pty Ltd, Riverwood, NSW This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. For more info: http://w ww.pefc.org DEDICATION Miiko Kumar dedicates her chapters to Marco, Lenny and Heidi Michael Legg dedicates this book to Laetitia, Maxime and Alexandre Ilija Vickovich dedicates his work on this edition to the health of his sons Aleks, Daniel and Damien James Metzger dedicates his chapters to Carol Metzger v FOREWORD The Hon John Basten Judge, NSW Supreme Court, Court of Appeal It may be that law students, and even neophyte lawyers, do not instinctively identify civil procedure as an intrinsically interesting, intellectually demanding or even an important topic. They would be wrong on each count. To know substantive law provides only half the picture. Some examples readily demonstrate why this is so. Take the plaintiff sleeping in the cabin of his prime mover while his co-driver undertakes a night time stretch of a rural highway. A black bull wanders in front of the vehicle. The fully laden road train hits the bull and overturns. The plaintiff is seriously injured. Who was at fault, and how should the plaintiff find out? Is there an applicable limitation period? If so, when will it expire? Resolutions of these procedural questions can be as complex and demanding as the tests of negligence and occupier’s liability which will underpin any claim. Other recent issues have concerned the power of the NSW Civil and Administrative Tribunal (NCAT) to deal with landlord and tenant disputes where the landlord of NSW premises resides interstate; the right of an unsuccessful party in bankruptcy proceedings in the Supreme Court to appeal to the New South Wales Court of Appeal; and whether a court hearing a class action could order that a portion of a putative award of damages be payable to the plaintiff’s litigation funder and lawyers, thus allowing security for their fees in the event the claim is successful. Can the same be done for creditors in a corporate liquidation? Sometimes courts exercise “inherent” powers which are not expressly conferred by statute or rules made under a statute; do tribunals enjoy similar inherent powers as a result of their establishment and constitution? In many disputes, one party will benefit from speedy resolution, while the other would prefer delay and procrastination. Sometimes the parties, or one of them, thinks that they can resolve the dispute if the court will answer separately and in advance of a full trial, one specific question. The party asks the judge to state a question for separate determination. When should that procedure be adopted? Will it really shortcut a potentially costly trial, or will it undermine the orderly resolution of the whole dispute? Usually the process will work only if the question is answered one way. Even if that occurs, will the losing party seek to appeal? Large forensic battles can be fought over such procedural steps. Are our procedures well attuned to delivery of just, quick and cheap justice? This book provides materials to allow any thoughtful reader to explore such questions and assess the justifications for the answers. Like most subjects in a modern law school curriculum, a proper understanding of procedure requires skills in statutory interpretation. All law students now receive, or should receive, specialised training in this intellectual discipline. In the past, courses on statutory interpretation, rather like courses on civil procedure, have been undervalued, or taught interstitially in substantive courses. Civil procedure requires skill in construing such materials in a special context. To understand a document, it is necessary to see the actual text, not just read what a judge has said about it. This book sets out the important statutory provisions and the relevant rules. It also provides key forms, which will help readers who do not have ready access to such materials. Finally, as the world grows in complexity, so do dispute settlement procedures. The efforts of the authors in keeping this valuable text up to date are much to be commended. This fourth edition is most welcome. vii PREFACE Civil Procedure in New South Wales provides a scholarly yet accessible account of the New South Wales civil justice system. The text addresses the key procedures prior to the commencement of proceedings and throughout the life cycle of litigation by way of both a principled and practical approach – from the initiation of proceedings through key steps such as pleadings, service, discovery and evidence to enforcement. Explanations and commentary are provided with reference to relevant provisions of the Civil Procedure Act 2005 (NSW), the Uniform Civil Procedure Rules 2005 (NSW), the Evidence Act 1995 (NSW), the Legal Profession Uniform Law and extracts of illustrative cases. The text also deals with fundamental principles of our civil justice system such as open justice, fair trial, case management and lawyers’ ethical requirements. Miiko Kumar, Michael Legg and Ilija Vickovich have convened and taught the compulsory civil procedure courses at the University of Sydney, University of New South Wales (UNSW) and Macquarie University respectively over a number of years. They also have numerous years of experience as practitioners in New South Wales. For the fourth edition, they are joined by Dr James Metzger from UNSW who has convened and taught civil procedure at UNSW and the University of Sydney. This text draws on the authors’ combined experience. The text is aimed at the novice and those recently initiated but seeks to take students and practitioners alike into some of the more advanced or practical areas such as interim preservations orders, service overseas, class actions, commercial arbitration, electronic discovery, the preparation of witnesses and expert evidence. It is hoped that the text will not only perform its primary teaching role but also assist students as they make the transition to litigation and dispute resolution practitioners. The authors would also like to thank past students, lecturers and other users of previous editions of the text whose questions and suggestions have assisted in revising the content of the text. The authors would like to express their appreciation to the Hon John Basten for writing the Foreword. Thanks are also due to the Thomson Reuters staff who have shepherded this book to completion, including Elizabeth Gandy, and Nicholas Riley. Miiko Kumar, Michael Legg, Ilija Vickovich and James Metzger Sydney, December 2019 ix
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