Civil Litigation: An Overview

Litigation Overview

• Civil litigation is distinct from criminal litigation
• The adversarial model relies on two powerful parties arguing their client's abilities before a neutral judge to uncover the truth.
• Successfully arguing a case relies on a neutral judge and powerful statements from both sides of the issue, as stated in Ex parte Lloyd (1822) Mont 70n at 72.
• The judge is an impartial, passive decision-maker.
• Lawyers orally present each party's case and oppose the other's.
• Parties control the case's conduct, including the issues in dispute and evidence presented.
• Procedure ensures a fair playing field with stable goal posts.
• Open justice includes public hearings, with rare exceptions.
• Civil procedure governs civil litigation's conduct, including evidence and rules of procedure.
• Evidence is a separate study area.
• Substantive law includes tort, administrative, contract, property, negligence, trusts, family, employment, and intellectual property.
• Poyser v Minors (1881) LR 7 QBD 329 at 333 (Lush J) defines civil procedure as the mode of proceeding by which a legal right is enforced.
• Key questions for civil litigators include, if there is a cause of action , is it worth pursuing and also, is there another avenue of redress
• Determining if pursuing a case is worthwhile involves assessing evidence availability, potential defenses, court's likelihood of granting relief, enforceability of relief, and the balance of benefits against detriments.
• Rules of procedure for this course focus on superior courts of record: ACT Supreme Court and Federal Court.
• Rules of procedure originate from the inherent jurisdiction of superior courts.
• The Supreme Court Act 1933 (ACT) ss 3, 20 determines rules of procedure.
• The Federal Court of Australia Act 1976 (Cth) s 5, 19 ('incidental and necessary') and Practice notes and directions, e.g. ACTSC Practice Note No. 2 of 2014, GPN-AUTH Lists of Authorities and Citations Practice Note help determine rules of procedure.
• Legislation and delegated legislation determine the rules of procedure.
• The Federal Court of Australia Act 1976 (Cth) s 59 determines legislation for rules of procedure.
• The Federal Court Rules 2011 (Cth) and Court Procedures Act 2004 (ACT) s 7 determine delegated legislation for rules of procedure.
• The Court Procedures Rules 2006 (ACT) (CPRs) determine delegated legislation for rules of procedure.

Civil Justice and Systemic Biases

• Civil procedure rules can impede substantive justice including systemic biases related to civil justice.
• Systemic biases exist, with different norms applying to White individuals and Indigenous people.
• White (Norm) involves compartmentalized individual claims based on evidence with a focus on economic elements, primacy of written documents and an adversarial process.
• Indigenous (Other) norms include shared experience based on culture and primacy of oral history.
• Legal structures controlled by predominantly White men places the burden of proof on indigenous people.
• Written word viewed as more reliable causes claimants to substantiate their oral histories with documents written by White people.
• Whiteness centers on setting criteria for proof and credibility standards according to Aileen Moreton-Robinson.
• House v Chief Minister of the Australian Capital Territory [2022] ACTSC 317 involves plaintiffs identified as Ngambri people.
• A case was brought against the ACT Government for breaching rights under section 27(2) of the Human Rights Act 2004 (ACT).
• The United Ngunnawal Elders Council was unable to demonstrate "interst" according to orthodox principles.
• A declaration in the terms sought by the plaintiffs would not directly affect the rights or liabilities of the Ngannawal people, according to the test in Pegang resulting in no strict juridicial sense.

Overarching Purpose and Alternative Dispute Resolution (ADR)

• Civil procedure aims to facilitate the just resolution of disputes according to law quickly, inexpensively, and efficiently.
• Court Procedures Act 2004 (ACT) s 5A and Federal Court of Australia Act 1976 (Cth) s 37M are two examples that highlight the purpose of civil procedure.
• Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175 emphasizes the active implementation of the overriding purpose by courts and parties.
• Speed and efficiency are essential to a just resolution of proceedings.
• Australian Productivity Commission’s ‘Access to Justice Arrangements’ (2014) highlights the cost of justice services and legal representation.
• Vulnerable litigants should not be disadvantaged and there should be affordable justice.
• Australian Productivity Commission ‘Access to Justice Arrangements' (2014) has recommendations which include: more regulation, diversity of legal services, active case management and better accommodation.
• 'ADR' means negotiation, conciliation, mediation, neutral evaluation, arbitration and collaborative law.
• ADR is complementary and can narrow or resolve specific issues.
• Lawyers are responsible for assisting achievement of the primary purpose - s 5A Court Procedures Act / s 37M Federal Court of Australia Act.
• Lawyers should abide by legal profession conduct rules.
• Statutes that require good faith participation including s196 Civil Law (Wrongs) Act 2002 and it is the duty of each party taking part genuinely and sincerely in a proceeding.
• 'Genuine steps to resolve dispute' should be undertook before beginning civil proceedings.
• Efforts should be made to resolve a dispute through Family Dispute Resolution before applying for parenting orders
• ADR is privileged and confidential without prejudice.

ADR and Privilege

• S 131 Evidence Act 1995 (Cth) and Evidence Act 2011 have guidelines to what evidence is able to be deduced.
• 52B Court Procedures Act 2004 (ACT) and s 53B Federal Court of Australia Act 1976 (Cth) have provisions protecting the confidentiality of negotiations.
• Negotiation is a common form of ADR that is conducted directly between parties.
• Settlement is part of ordinary litigation
• It is better for preserving relationships when there is less adversarial than litigation.
• There is broader coverage than litigation and can be confidential.
• Power imbalances may result in an unfair outcome and it can also trivialise legal rights.

Conciliation and Mediation

• Facilitative processes refer to disputes resolutions processes.
• Parties have assistance from an impartial third party while they usually determine the process of a dispute revolution.
• Conciliators commonly provide views and advice on the content of the dispute including assisting in drawing up terms of settlement.
• Conciliators must remain in charge of the outcome and the third party advises and facilitates.
• Mediators facilitate parties in recording the terms of the settlement.
• Different ways a lawyer can participate in ADR include: being an absent advisor and a supportive participant.
• A lack of power balance may result in unfair outcomes in conciliation and mediation.

Arbitration

• Arbitration is a terminative dispute resolution process.
• Frequently used in all international trade disputes.
• The courts must decline to exercise jurisdiction and refer the parties to arbitration if the dispute in the court action falls within the scope according to commercial arbitration act 2017.
• Arbitrators commonly hear the dispute and make a finding of fact in law.
• Arbitrators are advisors but also give determination.
• Unlike ADR, in arbitration parties are usually not in control with a determination that is binding and no appeal and a similar court decision that usually has confederation
• Parties have better knowledge with an arbitrated judge for the subject matter but it may also be as slow and as expensive as litigation.

Jurisdiction Overview

• Jurisdiction has a personal dimension concerning the persons over whom authority to decide is exercised and a territorial dimension concerning the geographical area within which authority to decide can be exercised according to Justice Edelman.
• Jurisdiction include dimensions of subject, matter and personal jurisdiction, a geographical area and the courts inherent power to make particular orders..
• Courts don't have that kind of jurisdiction but they have it under something called implied jurisdiction.
• Federal Jurisdictions created pursuant s 71 and 77 of constitution.
• A court must have personal jurisdiction to resolve and bind parties.
• Federal jurisdiction requires a valid and effective service when determining defendant.
• No courts have unlimited subject/matter jurisdiction.
• The High Court has its subject matter jurisdiction.
• Parliament can make laws to conferring original jurisdiction.
• Appellate jurisdiction is derived from 73 of the constitution.

Federal Courts

• Federal courts original jurisdiction is created pursuant to s 71 and s 77 of the Constitution by the Federal Court of Australia Act 1976 (Cth)
• The judicial power of the Commonwealth shall be vested in the Federal Supreme Court according to Clause 71.
• Appellate jurisdiction is conferred by the Federal Court of Australia Act 1976.
• Ss35AA judiciary Act 1903 set sets special leave appeal
• The Federal Court has Accrued Jurisdiction
• Federal courts do not have jurisdiction to hear and determine claims which claims fall under state or territory legislation.

The High Court and State Courts

• Commonwealth act has conferred jurisdiction about a matter and that
• Clause 771 of Constitution
• The claims aren't be serverable in the common law or statutory claims
• State courts original jurisdiction are supreme and have authority to administer justice within a certain state in their certain territories
• State courts is derived ss71 and 77 of the constitution

Cross-Vesting Scheme

• The aim was to avoid difficulty with a certain subject but it encountered a constitutional hiccup
• It provides that state courts be vested with federal jurisdiction
• The provision of cases can be easily transferred between courts with a cost.
• There must be expedition in a certain trial and should override any purpose.

Limitation Periods

• People should be careful with their actions when there is injustice
• There should be action within a reasonable period of time
• Child abuse is an action that has special exceptions in 21c for example
• The Legal Services Direction issues non-corporate entities
• The state should identify a limitation to sue for cause of action and they should decide if the courts time was postponed.

Limitation Act

• A certain general limitation might act which applies only to common not equitable
• Equitable claims might deal with a doctrine of laches in equity that's prejudiced as a defendant
• clock starts when the cause of action acres when there are also facts to the case like negligence.
• if there is a defence then the proceedings do commence and if plaintiff is disabled the claim is reset.
• a general time rule will apply that the right exist but if the expiry part isn't a right then the remedy ceases.