LAWS 2244Litigation and Dispute Management

2009 1st semester

End of Semester Exam Question 2(80)

Mark: 80

Question 2.A

To find out who the appropriate defendants are, I would make an application for preliminary discovery under r. 650, issuing an originating application with an affidavit attached (r. 650(2)). √

Glenn (G) must have made reasonable inquiries before preliminary discovery will be given (r. 650(c)), and his phone call to Acme and discussions with builders may be be enough. √

Glenn may want to ask Acme, as the ‘other person’ who the appropriate defendants are, since they are now “mixed up with the tortious acts” (Norwich). √

Glenn certainly has a likely cause of action (r. 650(a)). √

To stop the logging, G may want to apply to the court for an injunction, which the courts are able to give due to their inherent jurisdiction (r. 20, Supreme Court Act) (s. 62 CPA). There is a likelihood of imminent harm to G’s property and G can probably make out a serious question to be tried. √ This includes G showing a prima facie cause of action.

To gather evidence on the trees, G should make an application for an Anton Pillar order, such that he could enter the fenced-off area and inspect the trees (Anton Piller v Manufacturing Processes). To gain an AP order, G must show he has an extremely strong prima facie case, that he could suffer serious damage and that the respondent (AFL) will destroy evidence if notice is given. Given AFL and Acme’s previous behaviour, it is likely that they would destroy the trees and G would lose them, which is serious damage. Proving an extremely strong prima facie case is difficult, but the fact that the boundary is incorrect should cover it. Could also use search order (r. 751/752) or r. 715 √.

Question 2.B

The power imbalance – TP being a multi-national million-dollar company and Glenn a citizen – could lead to the mediation simply reflecting this relationship and Glenn being pressured into agreeing with TP. Nevertheless, there are various mediation techniques that can mitigate the power imbalance and moreover, a power imbalance must be extreme to stop a mediation occurring.

The advantages of mediation may well outweigh the disadvantage of the power imbalance: G wants to save all the trees, which is unlikely to occur in litigation, since TP have no obligation to protect them. However, in a mediation, G may be able to show TP how valuable the trees are or more realistically, work out a win-win situation with TP, to perhaps leave the eldest trees alone. √ Since G and TP will be neighbours, an intact and on-going relationship can be a benefit.

However, if TP is hell-bent on destroying the trees, litigation may well simply be inevitable and mediation an extra cost and effort, especially to G, who has less resources. √

Question 2.C

The set of photocopied documents will probably need to be listed, but not necessarily produced, due to client legal privilege. Before discussing privilege, it should be noted that r. 601 CPR states that to determine pre-trial privilege you must use the tests for adducing evidence and the E.A.

Client legal privilege can be sought under s. 118, 119 EA. Making copies of documents falls under this privilege, due to the decision in Propend Finance. If G can show – which is very likely – that the documents were copied for the sole purpose of giving legal advice and that their selection will reveal a line of reasoning as to the relevant issues in the case, then copies do not need to be discovered. √

It should be noted that two judges would only allow client legal privilege over copied documents that were annotated or where, specifically, the lawyers’ line of reasoning would be shown (Propend Finance). √

Note that the originals would still need to be produced, if they are not separately privileged. √

Regarding the Aboriginal rock drawing, is this a document under the meaning of the Commonwealth Evidence Act (EA)? (r. 600 CPRs). A document includes “anything on which there are marks, symbols, etc… having a meaning for persons qualified to interpret them”. Therefore, the paintings are probably a document. However, they are not in the possession of either party, unless they are on someone’s land, which is unclear (r. 605). √

Moreover, do they relate directly or indirectly to a matter in issue? In Peruvian Guano, the largest interpretation possible was given to this and includes a train of inquiry. √ However, it is the location of the paintings and not their context which is relevant here, so perhaps they will not be relevant.

It is likely that the Aboriginal rock paintings may not be a discoverable document under r. 605. Otherwise, an order for court management under r. 606 may be sought.

Regarding the letter that was thrown over the table. This would attract client legal privilege, since it is a confidential communication between a legal advisor and a client for the dominant purpose of providing legal services (s. 119, EA). The privilege requires no balancing, so if the court is satisfied that it is claimed correctly, it will be given.

Additionally, the document will have the without prejudice privilege attached to it (s. 131 EA). A document made in connection with an attempt to negotiate a settlement cannot be adduced into evidence. The privilege is limited if TP could use independent means to find the info (Field), but this is unlikely, so the privilege will likely be found. [Markers comment: waiver?]

Question 2.D

Summary judgment is available to G if he can show that the defendants – TP – have no reasonable basis for their defence regarding the 20 hectares. TP will have to show that they have a good defence on the merits – which is unlikely if the property is so strongly shown to be Gs. In relation to the 8 hectares, there may well be a good defence, due to the disputed location of the land. Or the defendants have to show that sufficient facts are disclosed to defend the claim generally (r. 1147).

The onus on the defendant is not a heavy one, but since the 20 hectares are obviously G’s, summary judgment would probably be given on this part of the claim. √

The remainder of the land – 8 hectares – will be harder to gain summary judgment on, since there is reasonable basis for the defence (Salcedo). √