LAWS398 Lecture 7,8,9,10,11 Notes.docx - Civil Procedure...

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Civil Procedure - Lecture Week 7 Introduction to Civil Procedure Definition: “[R] ules which are directed to governing or regulating the mode or conduct of court proceedings”; McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 26-27 per Mason CJ. o Civil procedure will teach you how our society resolves disputes between private parties (both with and without court) and the role lawyer’s play in that process. Criminal Civil State vs Defendant Private vs Private (including Govt.) State more powerful Party power can be uneven Outcome is usually punishment Many possible outcomes usually involving money Police and courts have major role in enforcement Courts and individuals enforce (+bailiffs, sheriffs) Higher profile in media More Common and Affects more people Small body of underlying substantive law applies Huge body of underlying substantive law applies State bears most costs Individuals bear most costs Adversarial System Parties control dispute - Parties define dispute & present evidence & argument. Court decisions form precedent, binding on future decisions. Trials are lengthy and involve extensive evidence. Judge as umpire – impartial; role is reactive (cf proactive). Emphasis on oral argument / evidence especially cross-examination. Parties bear the costs. Inquisitorial system Mainly codified law. Prior cases are merely persuasive. No rigid separation between trial & pre-trial phases. Minimal rules of courtroom practice. The judge’s role is proactive and inquisitive. Strong emphasis on documentary proof. Virtually no cross-examination and often no physical hearing (ie entire matter heard “on the papers”). Cases are much shorter generally. Sources of Civil Procedure Law Applicable in NSW Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Federal Court Rules 2011 (Cth) Federal Court of Australia Act 1976 (Cth) Court Acts eg Supreme Court Act 1970; District Court Act 1973; Local Court Act 2007 Court practice notes created by Judges in accordance with power granted by CPA and UCPR. - Don’t cite Victorian, QLD, not federal court Act/rules Law in Exam! Only CPA & UCPR (NSW)
Perceived Problems with Civil Procedure: Cost, delay, lack of access (usually due to cost and delay), uncertainty, unfairness, excessive complexity Civil Procedure Themes: Balancing Competing Objectives - Civil Procedure is all about balancing competing objectives. Some of the key areas where objectives of civil procedure clash are: 1. The tension between efficiency (cost and delay reduction) and justice/procedural fairness. See AON v ANU, Queensland v JL Holdings, ERA v Armstrong, UBS v Tyne . It takes time and money to explore evidence so increases in efficiency can threaten justice. 2. Access to Justice and the role of litigation in society. Does society benefit more from careful but expensive justice which sets good precedents for society to follow or from quick and cheap justice, which is accessible to disputants but not their successors? Hazel Genn, Judging Civil Justice , Hamlyn Lectures, 2008, Cambridge University Press, Chapter 1

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