CP
Civil Procedure
Week 2
Prior to Proceedings 1
1
Workshop Overview
1.0 Introduction
2.0 Legal Ethics and Civil Litigation
3.0 Cause of Action
4.0 Limitations of Actions
5.0 Personal Injuries Process
Introduction
This week and next week we are looking at what needs to be considered prior to commencing an action.
Next week we look at the courts and which court certain matters can be brought in.
Client Care
Should you find yourself working as a litigation solicitor, the nature of your clients and the management skills required will vary according to:
large/medium/small firm;
community/government/corporate sector; and
position within firm/organisation.
For example:
large commercial firm – sophisticated, well-resourced, repeat clients; large matters with sometimes many lawyers working exclusively on one matter.
small firm – less sophisticated, one-off clients with relatively few resources; one lawyer will be responsible for many files.
Client Care
Regardless of the firm/organisation, there are some basic tenets of client care which are generally applicable:
promote positive and productive interaction between clients and all members of the firm;
be available, approachable, interested, understanding of client needs, trustworthy, honest and competent;
mutual expectations should be clear, with transparent complaint resolution procedures in place; and
clients should be updated regularly, and receive value for money
Client Care
Honesty and competence are particularly significant in a litigation context:
any client contemplating litigation needs to understand that litigation is expensive, time consuming and uncertain; and
clients need to be provided with a realistic, not optimistic, assessment of the advantages and disadvantages of commencing litigation.
Rules about client care may be enforced in contract and/or tort, and are reflected in statute and delegated legislation.
For example, Legal Profession Act 2007 (Qld):
Part 3.4 – disclosure clients regarding costs (s 308)
File Management
Basic file management requirements include:
keeping a paper-trail (or what electronically now amounts to a paper trail):
everything – instructions, advice, research, memos, record of telephone conversations, and so on; and
important if a client challenges you on a step taken in the action or on costs; dates and bring-up systems:
paper and electronic; and
very important in litigation, where missed court dates, filing times etc can be very costly for your client;
working on files of others:
clear instructions from acting solicitor crucial;
can be totally responsible (eg acting solicitor on leave) or partially (eg preparation of a research memo on a particular issue); and
again, paper-trail very important; handover of files:
carefully manage with client;
clear instructions important; and
usual practice is to leave a file note providing background on the matter, current status, and necessary further steps/important dates.
Ethics and the Adversarial System
One of the fundamental elements of professional conduct is the obligation to act ethically.
The ethical conduct of lawyers is broadly underpinned by two important sets of duties:
duties to the client; and
duties to the court.
Ethics and the Adversarial System
Duties to a client include those of
loyalty;
confidentiality;
competence; and
to inform, advise and obey.
These duties underpin the aspects of client care covered earlier.
Ethics and the Adversarial System
Duties to the court (or to public administration) include:
acting honestly (eg not misleading the court or breaching undertakings to the court); and
acting fairly (eg not pursuing hopeless cases, not making unsupported allegations, not causing unreasonable expense or delay).
Formally, duties to the court take precedence over duties to a client.
Ethics and the Adversarial System
In an adversarial system, however, duties to clients may seem to overwhelm duties to the court:
ethos of 'winning at all costs';
commercial pressures, including the need to satisfy the client to ensure repeat business; and
well-resourced clients able to exploit court processes to obtain their objectives.
Ethics and the Adversarial System
Issue of professional conduct arose in White Industries (Qld) v Flower & Hart (Goldberg J):
solicitors in the proceedings 'knowingly obstructed the course of justice';
counsel advised that arguable, but weak case existed, and not to wait for further evidence, so as to institute proceedings before other side did.
Cause of Action
The phrase ‘cause of action’ is not a formal legal term.
It is a short hand term used by litigators to say that it is the litigator’s opinion that sufficient evidence exists (or is likely to exist) for all the elements of a substantive area of law to be made out. Substantive law gives the elements of a cause of action.
Eg – A cause of action for breach of contract needs:
A valid contract
Breach of a term
Damage resulting from breach
Cause of Action
Cause of action links with ethics
It is your professional opinion that sufficient evidence exists (or is likely to exist) to substantiate the causes of action – White Industries v Flower & Hart
Need to plead ALL the elements
For most common law actions this involves the need to plead damage.
Most proceedings involve the joinder of multiple causes of action.
Limitations of Actions
What is limitation period?
The period of time within which an action must be brought after a cause of action accrues.
Reasons for having?
Certainty - liabilities.
To avoid prejudice in defending proceedings.
Action brought outside the limitation period means D can raise a complete defence.
Limitations of Actions Act (Qld)
Contract - 6 years (s10)
Tort - 6 years (s10)
Personal Injury - 3 years (s11)
Action on Judgment - 12 years from date judgment becomes enforceable (s10)
Series of Conversion/wrongful detention chattel - 6 years from 1st conversion (s12)
Limitations of Actions Act (Qld)
Recovery of Land - 12 years from date right of action accrued to plaintiff (s13)
Action v Deceased - 12 years from date right to receive share accrued (s28)
Beneficiary v Trustee to recover property or breach of trust action - no limit (s27)
Equity - doctrine of laches - LAA generally applies to common law proceedings
Savings Clause
Section 7 LAA is a savings provision acknowledging that time limits do occur in other legislation.
eg Civil Aviation (Carrier’s Liability) Act (Cth) s 34 in Proctor v Jetway Aviation [1982] 2 NSWLR 264.
Beginning of Limitation Period?
From the date the cause of action arises.
This means when all the elements of the cause of action are present.
I.e. Contract
from the time of breach
I.e. Tort
from the time that damage is sustained
Expiry of Limitation Period
See s 38 Acts Interpretation Act 1958 (Qld)
If a cause of action accrues on 12 February, 3 years will not expire at the end of 11 February but rather, the end of 12 February
If expired on non-business day, P has until next business day to file. Ie if cause of action expires on Sunday can still file on the immediate Monday.
Generally, does not extinguish action, but only bars relief if raised by defendant UCPR r 150(1)(c)
This means that D MUST PLEAD LAA!!!!!
Exception - Section 24 LAA provides person’s title in land extinguished if action for recovery not brought within limitation period.
Contracting Out
Possible for parties to agree not to plead limitation period. Correspondence from defendant saying 'liability is not an issue' has been held to amount to contract that precluded defendant from contesting liability, including defence that claim is statute barred.
Newton, Bellamy & Wolfe v SGIO (1986) 1 QdR 431.
Extension of Limitations Period
LAA Part 3
Remedial in nature and designed to assist plaintiffs who have not, for some genuine reason, taken action and whose case would otherwise be statute barred, or will become so in the near future.
NOT designed to assist sloth, tardiness, laziness, ‘I am just a trainee solicitor….’, etc
4 situations where Part 3 allows extension
1. Where persons are under a disability: s29
2. In cases of personal injury: s31
3. Where there have been acknowledgements or part payments: ss35-37
4. In cases of mistake or fraud: s38.
1&2 most common - will focus on these
Person under disability s 29
Definition s 5(2) ‘under a disability’- ‘infant’ or ‘unsound mind’
‘Unsound mind’ s 5(3) includes, but not limited to, an involuntarily patient under the Mental Health Act 2000 (Qld) or a forensic disability client under the Forensic Disability Act 2011 (Qld).
Infants (minors): Extra 6 years begins to run on obtaining majority.
Persons of unsound mind - 6 years commences once person capable of handling their own affairs, or they die.
Personal Injury- 3 years after person ceased to be under a disability
Personal Injuries Extension - s31
Applies to actions for damages for negligence, trespass, nuisance or breach of duty (e.g. contract, statute) where the damages consist of or include damages in respect of personal injury or death.
IE applies to ANY cause of action where the damage claimed is for personal injuries.
Triggering s 31
Must establish s31(2)(a):
a material fact s30(a);
of a decisive character s30(b); `
relating to the ‘right of action’ (not cause of action);
not within means of knowledge of the applicant - s30(c);
until a date after the commencement of the final year of the limitation period,
s31(2)(b) There is evidence to establish a right of action.
Court may order extension for 1 year from that date.
See Brisbane South Regional Health Authority v Taylor
Why didn’t the plaintiff succeed?
Personal Injuries Process
Personal Injuries Proceedings Act 2002 (Qld) (PIPA)
Introduced in response to perceived insurance/ negligence crisis.
Aims (s 4) to reduce litigation and the damage amounts by forcing parties to negotiate prior to any formal litigation
PIPA covers (s6):
Personal injuries; excluding motor vehicles or work related injuries.
Other processes exist under Motor Accident Insurance Act 1994 (Qld) and Workers Compensation and Rehabilitation Act 2003 (Qld)
Pre-claim Process
The PIPA Process
Overview
A ‘claimant’ must give the respondent notice of claim within a narrow time period after injury. This triggers a process of negotiation and compulsory conferencing that must be completed before litigation can commence.
Slightly different process for medical related injuries
Personal Injuries Process
Claimant responsibility
Give notice on approved form (s9(1))
Time - within 9 months of injury or 9 months of symptoms, or 1 month after instructing lawyers to seek damages for injury (s9(3))
Obligation to provide information (s 22)
Respondent responsibility
Respond within 1 month to form
That the respondent is the proper respondent (or not) s 10(1)
Indicate whether the claimant has complied with their responsibilities
Obligation to provide information (s 27)
Pre-claim Process
Failure of Claimant to comply (s 18) – prevents claimant from commencing proceedings
So can be out of time but still must do PIPA.
Failure of Respondent – Claimant conclusively has satisfied PIPA requirements – can commence litigation
There is a mechanism for identification and addition of other respondents (ss 14-18)
Pre-claim Process
Compulsory conferencing
Usually 6 months after notice of claim (s 36)
Parties can dispense with compulsory conference by agreement (s 36(4))
7 days prior parties must exchange all outstanding documentation (s 37)
Lawyers must sign ‘certificate of readiness’ indicating that all preparation has been done by the lawyer in anticipation of trial (that is all witness statements, reports and evidence that would be used at trial to make out causes of action have been gathered and given to the other side) – s 37(2)
Effect of Chapter 3 PIPA
Instigating court proceedings
Usually 60 days after compulsory conference
Urgent litigation can be brought outside of PIPA process with leave of court (s 43) - SG v State of Queensland [2004] QCA 461 (3 December 2004)
Substantial cost penalties involved if a party refused an offer and received a less amount in court awarded damages (ss 48, 56)
PIPA – LAA
Remember that PIPA is for PI only!!!
That means for personal injury – consider both PIPA and LAA
LAA s 11 – action must be brought within 3 years (from cause of action). PIPA s 9 – notice of claim must be made within 9 months
PIPA s9(9) – ‘removes doubt’ – mention of ‘appearance of symptoms’ does not affect cause of action as calculated by LAA.
s48 PIPA – cost penalty if PIPA not complied with. Basic rule even if complainant successful, pays respondent’s costs if didn’t do PIPA.
Comply with PIPA ‘stalls’ LAA. s59. This means provided PIPA begun in time – claim can be brought out of time – provided within 6 months of PIPA notice.
See Mulpha Hotel Pty Ltd v Goff [2012] 1 QR 226