Overview of the Litigaton Process and UCPR
Adversarial System
Justice
Traditionally meant a:
- Search for truth - via a
- Fair Hearing - which leads to a
- Decision based on legal principles
Adversarial Features
- Based largely on concepts of individual autonomy and respect as mankind moved away from the belief in the supernatural and more towards scientific proof. Adversarial system emerged towards the end of the 18thC.
- Most accounts of the development of the adversarial system derive from the same basic story – 2 individuals in the state of nature arguing over an item of property.
- 2 disputing parties
- 1 Neutral third party – decision maker
- Judge = Umpire/Referee – ensures rules of procedure are kept but not to align with either side.
- Adversarial means that the parties control substance of hearing
- Major criticism – lawyers and the parties themselves can use the rules and the process to drag the matter out to the point where their opponent is financially exhausted irrespective of the merits of the case.
- Whilst party control theoretically gives a person an optimum chance to prove their case, it can be an expensive luxury.
Court resources are provided by the taxpayer;
Efficiency costs and delay are the pivotal issues of our current procedural law reform.
Major question to be considered –
The extent to which our judges should be given more of a controlling role in litigation through mechanisms such as case flow management and managerial judging. These issues are recurring through issues of law reform.
Inquisitorial Features
Judge as inquisitor.
Judge controls the nature and extent of the evidence revealed in the Court and then comes to a decision based on the Judge’s own investigations.
Lawyers’ role less conspicuous.
Other Features:
- Written submissions major role
- Oral argument minor role
- Numerous sessions
- No trial
- System more hierarchical than participatory.
Stages Of An Action
- Pleadings
- Claim – starts proceedings
- Statement of Claim – attached to Claim – sets out in detail material facts.
- Notice of Intention to Defend – Defendant’s document
- Defence/Counterclaim – attached to Notice of Intention to Defend + counterclaim if necessary.
- Reply/Answer – by plaintiff.
- Fact finding
- Disclosure ( formerly discovery and inspection) – all relevant evidence must be made available to the other side. Mainly documents and/or tapes.
- Trial – oral evidence. Opportunity to present witnesses.
- Judgment
- Judge then makes determinations of credibility. Judge imposes a decision based upon the principles of substantive law.
- Enforcement
- Recovering judgment debt –
- Warrant for Redirection of Earnings (old Garnishee summons)
- Bankruptcy
- Warrant of Execution
- Oral examination – where debtor is required to attend to Court to declare what they own.
- Taxation of Costs
- Fundamental misunderstanding in law is that if you win, you get your costs paid. The costs that a successful party can recover following judgment are specifically limited by the Rules and the process of taxation has to be undertaken before any enforcement action can be brought to recover costs. This means itemising costs and having your costs assessed by a taxing officer. Once bill is prepared, if the other side does not agree to it, then it goes before a Taxing Officer to work out what is necessary and unnecessary in the conduct of the matter.
- Itemisation of costs: Assessment of what portion of those costs are recoverable from the judgment debtor.
Alternative Outcomes
Settlement
Approximately 90% of matters never reach trial.
Summary Judgment
Rules provide for that in circumstances where it can be shown there is no real merit to the defence and in those circumstances, it is unnecessary to proceed to trial.
Default Judgment
If the defendant does not plead to fail to attend Court, then a default judgment may be obtained i.e. a judgment in default of a trial.
Alternative Dispute Resolution (ADR) processes
Case appraisal
Mediation
Uniform Civil Procedure Rules
As from 1st July 1999 – uniformity of procedures for:
- Supreme Court
- District Court
- Magistrates Court
Most rules apply to all three courts unless they are specifically stated. e.g. only small or minor debt claims may only be heard in Magistrates Court.
Logical groupings. e.g. Chapter 2 governs starting proceedings.
Simplified procedures. e.g. plain English.
New Forms – reduces forms from over 700 to over 100
- Practice directions retained . (directions issued by Chief Judge of each Court – practices which are followed within the Courts).
- Old practice directions issued previously have been retained under Practice Direction No. 11 in Supreme Court and separate practice direction in each of the Courts.
s130 Supreme Court of Queensland Act 1991
- All outdated references to previous procedures in any act or document should be construed as a reference to its equivalent in UCPR. e.g. if Property Law Act said that to do this, you bring a Writ in the Supreme Court, you now read it as – to do this, you bring a Claim in the Supreme Court.
Rule 5 – Philosophy provision
Expressly provides that the purpose of the new rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
UCPR are the first rules to have a philosophy provision in Queensland.
Imposes an implied undertaking on all parties who participate in Court proceedings to proceed in an expeditious way. It also requires the Courts to apply the rules with the objective of avoiding undue delay, expense and technicality.
Rule 5 originated from a submission by the Qld Law Reform Commission on the consultation draft of the rules.
An example – it specifically permits the Court to dismiss proceedings where a party has failed to observe the philosophy of the Rules. Current authority – prior to this provision being included - has differed as to what weight you can afford to judicial management or court efficiency.
- Du Pont de Nemours & Co v Commissioner of Patents (1987) 16 FCR 423 –
The Federal Court set aside an interlocutory order for general discovery that was made by consent in order to avoid delay and escalated costs.
Per Shepherd J – “Courts are publicly funded institutions except for a nominal filing fee, they provide their facilities free of charge. The Judges who preside over them have a duty consistently with their primary duty to administer justice to do their utmost to prevent waste of public time and money. The days when parties were left at leisure to pursue private litigation in the way they thought best suited their purposes have long gone. Courts an overriding obligation to see to it that those using their facilities are proceeding in a way best calculated to bring litigation to an end at the earliest possible moment so long as the primary goal of achieving justice is not lost sight of. No matter what agreement the parties have made in relation to these matters, the Court always remains in overall control of the proceedings before it.” Therefore, despite the fact there was a consent order, the Court said it was going to delay things too much. They could not do that, they had to move on.
- Sali v SPC Ltd
Where the refusal to grant an adjournment where successive adjournments had been sought in the hearing of an appeal did not amount to a miscarriage of justice but the minority considered that a serious miscarriage had occurred. (therefore High Court is split on this issue as to what weight can you afford to judicial efficiency.
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