QLD Civil Procedure Cases QUESTION AND ANSWER PASSED 100%

QLD Civil Procedure Cases QUESTION AND ANSWER PASSED 100% EVIDENCE: Subpoena; production; setting aside 1. requiring an extensive search of documents is oppressive; 2. vague descriptions require witness to decide what documents are relevant, which is a court function. - ✔✔ Air Pacific Ltd v T ransport Workers Union of Australia TRIAL (1) Cost and efficiency do not always favour a trial by a judge alone; (2) A party who gives notice has a prima facie right to a trial by jury. - ✔✔ Trevor Roller Shutter Services Pty Ltd v Crowe TRIAL The prop er mode of trial is by a judge alone when proceeding in substance equitable and any combined common law claim is subsidiary. - ✔✔ Johnson v McInerney TRIAL A party cannot frustrate another's right to a jury trial or force a jury trial by contriving or concealing an equitable claim. - ✔✔ Hay v Dalegty TRIAL 1. The court has a discretion to set aside judgment obtained by default of appearance at trial. Factors relevant to discretion: (a) whether missing party has a satisfactory explanation; (b) delay; (c) whether the missing party has merits to their case; (d) whether the party who obtained judgment would suffer irreparable harm/prejudice if judgement set aside. SUMMARY AND DISCONTINUANCE 2. Although it is usual for the defendant in applying to set aside a REGULARLY entered default judgment to explain the delay in appearing or pleading, and show a prima facie defence, there is no binding rule to that effect . 3. The courts should not impose fetters that the rules do not impose. - ✔✔ Evans v Bartlam TRIAL A jury trial is inappropriate in an equity case, since questions of fact are less important, but the court has discretion. - ✔✔ Jenyns v Public Curator TRIAL A finding on a matter outside of the pleadings is not part of the verdict. Jury may not return findings on matters not raised in pleadings - ✔✔ Kenny v Sholl TRIAL A verdict is not a decision of the court, but of the jury - ✔✔ R v Snow TRIAL There is an inherent, equitable jurisdiction to rectify a judgment where it does not reflect the court's intentions. Similar but different to the Slip Rule. - ✔✔ DJL v Central Authority TRIAL 1. Principles to consider when determining application to have judgment set aside on the ground that it was obtained by fraud: a. As in all actions based on fraud, particulars of the fraud must be exactly given and the allegations must be established by th e strict proof which such a charge requires. b Must be shown by alleging party that there has been a new discovery of something material... which, by themselves or in combination with previously known facts, will provide a reason for setting aside the judg ment. c. Mere suspicion of fraud, raised by fresh facts later discovered, will not be sufficient to secure relief. d. The mere allegation, or even proof, of perjury by itself will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment e. It must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgme - ✔✔ Wentworth v Rogers (No 5) COSTS 1. The general rule is that costs follow the event. 2. The pr imary purpose is not punitive but to indemnify the successful party for being forced to participate by the other party. - ✔✔ Oshlack v Richmond River Council COSTS It was the successful party's behaviour that caused the unsuccessful party to sue (by not e xplaining why the latter was not covered by the insurance policy). The successful party should be deprived of costs. - ✔✔ Verna Trading Pty Ltd v New India Assurance Co Ltd Delivery of goods left in stevedore warehouse on election. COSTS The court has a discretion with regard to Bullock and Sanderson orders. The court may make an order that it considers just. - ✔✔ Gould v Vaggelas COSTS Referring to r 702 equivalent, costs are 'necessary' if litigation could not have been carried on reasonably without th em. Costs are 'proper' if it was reasonable for a client with competent counsel to have incurred them. - ✔✔ Hennessey Glass and Aluminium Pty Ltd v Watpac Australia Pty Ltd COSTS Solicitor allowed client to pursue hopeless action for ulterior motive (to delay payment of some money owed under a contract). Solicitor liable for costs. - ✔✔ White Industries; Flower v Hart GATHERING INFORMATION: disclosure 1. Norwich order: Where someo ne is aware of the identity of a wrong doer, and where getting that person's admission is the only way to verify identity, equity holds that you should get that person's disclosure. 2. Disclosure allowed. - ✔✔ Norwich Parmacal Co v CEC