PROCEDURAL LAW

Definition ‘Procedural law is the law that governs the conduct of proceedings before the court.
Procedural law is “rules which are directed to governing or regulating the mode or
conduct of court proceedings; McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1
at 26-27 per Mason CJ” – Kumar, Legg, Vickovich & Metzger, Civil Procedure in New
South Wales (Lawbook Co, 2020), 2.

Sometimes described as ‘adjectival’ law – distinguishes it from ‘substantive law.’

See Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at
176-7.
Purposes of - It provides the institutions and rules which facilitate dispute resolution.
procedural law - Relatedly, procedural law is an important component of the idea of the rule of
law.
- Order, consistency and structure
- Modern procedural law has an important role in managing the flow and conduct
of litigants – it has practical economic and bureaucratic functions which are very
important in a litigious age where the costs of court action are ever-increasing.
Adversarial Adversarial Inquisitorial
System vs. Origins in the English common law. Origins in revolutionary France and
Inquisitorial Key features: Roman legal tradition.
systems • Determining legal disputes Key features:
according to their individual • Source of law found in
circumstances and related judge- authoritative statements of legal
made case law and legislation; principles issued by the state e.g.
• An inductive form of legal Civil and Criminal Codes;
reasoning; • A deductive form of reasoning;
• The trial is the distinct and • No rigid separation between pre-
separate climax to the litigation trial and trial processes;
process; • Procedural rules are meant to be
• Court-room practice subject to minimal and uncomplicated; and
rigid rules; • Lawyers are not as central to the
• The proceedings are essentially court hearing and litigation
controlled by the parties with an process – emphasis is on written
emphasis on oral arguments – submissions. The judiciary is
judiciary largely reactive (not proactive and inquisitorial.
pro-active); and
• The expenses fall largely on the
parties.
Sources of Three sources of procedural law, divided between each arm of the government:
procedural law 1. The legislature: the NSW Government, which creates statutes like the Supreme
Court Act 1970 (NSW) and the Civil Procedure Act 2005 (NSW);
2. The executive: For example, the Uniform Civil Procedure Rules 2005, made
pursuant to the CPA; and
3. The judiciary: through the inherent jurisdiction of superior courts, court practice
notes, and judicial decisions, the courts develop their own forms of procedural
law.

Inherent • Inherent jurisdiction allows courts ‘to properly exercise their powers, perform
Jurisdiction their functions and to control abuse of process’: Riley McKay Pty Ltd v McKay
[1982] 1 NSWLR 264.
• Examples of devices originally derived from Court’s inherent jurisdiction:
o Security for costs orders
o Asset preservation orders
o Search and seizure orders
• Prior to CPA & UCPR, the superior courts had powers on inherent jurisdiction to
make decisions about cases where there was abuse of process for example. Now
the CPA & UCPR codify this power.
• Inferior courts don’t have this power – they have implied powers.
 ‘The overriding purpose’
Legislation s 56(1) of the CPA:
‘(1) The overriding purpose of this Act and of rules of court, in their application to civil
proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the
proceedings.’

‘(2) The court must seek to give effect to the overriding purpose when it exercises any
power given to it by this Act or by rules of court and when it interprets any provision of this
Act or of any such rule.
(3) A party to civil proceedings is under a duty to assist the court to further the overriding
purpose and, to that effect, to participate in the processes of the court and to comply with
directions and orders of the court.
(4) Each of the following persons must not, by their conduct, cause a 1992party to civil
proceedings to be put in breach of a duty identified in subsection (3):
(a) any solicitor or barrister representing the party in the proceedings,
(b) any person with a relevant interest in the proceedings commenced by the party.
(5) The court may take into account any failure to comply with subsection (3) or (4) in
exercising a discretion with respect to costs.

History à This concept derived from the Woolf report (UK): reasonable costs, speed, accessible.
This inspired legislative reform in Australia
à Court and parties have to act with this purpose in mind – cost implications otherwise

Object The overriding purpose of the CPA is not about the court’s final decision on the substantive
rights and interests in the legal dispute e.g. you can’t invoke the overriding purpose to
determine if someone actually breached a contract, committed a tort etc.

Rather, it is relevant to the process through which the dispute is resolved – the procedural
decisions of judges and the conduct of judges, parties and lawyers along the way (i.e. the
litigation’s journey rather than final destination).
CASE MANAGEMENT
Case • ‘The court may, at any time and from time to time, give such directions and make
Management such orders for the conduct of any proceedings as appear convenient (whether or
not inconsistent with these rules or any other rules of court) for the just, quick and
cheap disposal of the proceedings’: UCPR r 2.1; for examples, see UCPR r 2.3
• ‘an approach to the control of litigation in which the court supervises or controls
the progress of the case through its interlocutory phase.’ (Colbran et al).
• Shift from ‘adversarial’ judging to ‘managerial’ judging (see ALRC report, Kirby
J in JL Holdings).
• Judge can make Directions re conduct at hearing: CPA s 62
• Availability of sanctions if parties breach judge rules: CPA s 61.
• Case management still guided by overriding purpose – not efficiency or cost alone

Objects of s 57 CPA
Case
Management (1) For the purpose of furthering the overriding purpose referred to in section 56
(1), proceedings in any court are to be managed having regard to the following
objects:
(a) the just determination of the proceedings,
(b) the efficient disposal of the business of the court,
(c) the efficient use of available judicial and administrative resources,
(d) the timely disposal of the proceedings, and all other proceedings in the
 court, at a cost affordable by the respective parties.
(2) This Act and any rules of court are to be so construed and applied, and the
practice and procedure of the courts are to be so regulated, as best to ensure the
attainment of the objects referred to in subsection (1)

Dictates of s 58 CPA
Justice • Court must seek to act with the dictates of justice in deciding whether to make any
order or direction for the management of proceedings: s 58(1) CPA
• Re ‘dictates of justice’ in a particular case, the court must have regard to ss 56 and
57, and may have regard to:
(i) the degree of difficulty or complexity of issues in proceedings,
(ii) expedition of parties throughout proceedings,
(iii) degree to which any lack of expedition is due to circumstances beyond the
control of the parties,
(iv) degree to which parties have fulfilled their duties under section 56 (3),
(v) parties taking procedural opportunities,
(vi) the degree of injustice that would be suffered by the respective parties as a
consequence of any order or direction,
(vii) other matters as the court considers relevant in the circumstances of the case.:
s 58(2) CPA

Consequences s 61
of failure to (1) The court may, by order, give such directions as it thinks fit (whether or not
abide by inconsistent with rules of court) for the speedy determination of the real issues between the
directions parties to the proceedings...

(3) If a party to whom such a direction has been given fails to comply with the direction,
the court may, by order, do any one or more of the following:
(a) it may dismiss the proceedings, whether generally, in relation to a particular
cause of action or in relation to the whole or part of a particular claim,
(b) it may strike out or limit any claim made by a plaintiff,
(c) it may strike out any defence filed by a defendant, and give judgment
accordingly,
(d) it may strike out or amend any document filed by the party, either in whole or in part,
(e) it may strike out, disallow or reject any evidence that the party has adduced or
seeks to adduce,
(f) it may direct the party to pay the whole or part of the costs of another party,
(g) it may make such other order or give such other direction as it considers
appropriate.’

The overriding The overriding purpose is:

purpose • Relevant to all procedural decisions made by judges pursuant to the Civil
frames the Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005
civil justice (NSW);
system u Relevant throughout the entirety of the civil litigation process; and
 u Relevant to the conduct and decisions of lawyers as civil litigators.
u Relevant to costs orders the Court might make.
• Cases relevant to the significance of the overriding purpose:
u Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic
Management and Marketing Pty Limited [2013] HCA 46
u Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230
16

Tensions It is clear that there are inherent tensions between justice, efficiency and cheapness.
within the u Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265, Justice Basten states at
overriding [28]: ‘Section 56 purports to identify a single “overriding purpose”, namely to facilitate
purpose “the just, quick and cheap resolution of the real issues in” civil proceedings. It is self-
evident that what will be required in most cases is the resolution of a tension between speed
(including avoidance of delay), reduction of costs and the proper consideration of the issues
raised by the parties, especially in cases of complexity.’

CASE MANAGEMENT ISSUES IN CASES

Queensland v • Dispute over a lease to develop land. Queensland Minister had approved lease
JL Holdings Pty but not endorsed it. Change of government results in new Minister not endorsing
Ltd (1997) 189 lease.
CLR 146 • JL Holdings challenge decision.
• After several interlocutory hearings and amendments, the state of Qld apply to
amend their defence.
• Kiefel J refuses leave to add new defence.
• Qld appeal to Full Court of the Federal Court – unsuccessful.
• Qld then appeal to High Court – successful.

Held:
• HC endorsed the narrow conception of justice i.e. If a party has an issue that is
fairly arguable only if very extraordinary cases should case management
principles prevent that issue from being ventilated
• Sufficient time in the existing court dates to accommodate any new matters that
Qld might raise in their amended defence
• Costs order in favour of JL Holdings could be an adequate remedy for prejudice
caused by the amendment sought to the pleadings

Aon Risk • Catastrophic 2003 Canberra bushfires damage some of ANU’s property.
Services • ANU commences proceedings against insurers.
Australia v • It later adds its broker, Aon Risk Services, alleging failure to renew policies.
Australian • ANU applies for leave to add substantial new claim against Aon Risk - allowed.
National • Aon Risk appeals to ACT Court of Appeal – fails.
University • Appeals to High Court – successful.
(2009) 239 CLR
175 Held:
• JL Holdings pre-dated the rules and this matter needed to be determined in
reference solely to the rules (The ACT conduct/civil practice rules)
• Takes back its view from Qld v JL Holdings and endorses broader view of
justice
• HC allowed AON’s appeal determining that the trial judge had failed to
recognise the extent of the new claims and the effect that the amendment would
have upon AON and thus failed to meet the objectives of r 21 of the ACT rules
• HC explicitly disapproves that statement made in JL Holdings (case
management principles should only be applied “in extreme circumstances” )

OPEN JUSTICE
What is open - It is well established that the principle of open justice is one of the most
justice fundamental aspects of the system of justice in Australia. The conduct of
proceedings in public ... is an essential quality of an Australian court of justice.
- ‘There is no inherent power of the court to exclude the public.’: John Fairfax
Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 at [18] per
Spigelman CJ.
- Only depart from open justice in exceptional circumstances.
Why? - Crucial component of rule of law.
- ‘Publicity of proceedings is one of the great protections against the exercise of
arbitrary power and a reassurance that justice is administered fairly and
impartially.’: R v Richards & Bijkerk (1999) 107 A Crim R 318 at 324 per
Spigelman CJ.
What happens - Significance of open justice to rule of law
when the public - E.g. Public generally excluded from the Military Commission system for trying
isn’t allowed in? Guantanamo Bay inmates. Widely seen as a system that abused rule of
law, partly through lack of open justice.
- Inform general public
- Demonstrative/pedagogical function

Exceptions to - Courts have always possessed capacity to close the court to the public
open justice and restrain publication of information.
- Superior courts derive this power from their inherent jurisdiction. Inferior or
statutory courts from the “implied powers” doctrine.
- Departures from open justice must be ‘really necessary to secure the
proper administration of justice’: John Fairfax & Sons Pty Ltd v Police
Tribunal (NSW) (1986) 5 NSWLR 465 at 477 per McHugh JA
- However, these powers are now largely codified in statute e.g.:
- s 71 of the CPA: the court can be closed to the public for a number of
reasons, including: the presence of the public would defeat the ends of
justice; if the business concerns the guardianship, custody or maintenance of
a minor; the hearing of an interlocutory order etc
- s 8 of the Court Suppression and Non-Publication Orders Act 2010
(CSPO Act): Orders under s 8 of CSPO Act only made in ‘exceptional
circumstances
- relevant grounds for making a suppression or non-
publication order are:
o the order is ‘necessary to prevent prejudice to the proper administration
of justice’;
o the order is ‘necessary to prevent prejudice to the interests of the
Commonwealth or a State or Territory in relation to national or
international security’;
o the order is ‘necessary to protect the safety of any person’;
o The order is ‘necessary to avoid causing undue distress or embarrassment
to a party to or witness in criminal proceedings involving an offence of a
sexual nature’ ; and/or
o ‘it is otherwise necessary in the public interest for the order to be made
and that public interest significantly outweighs the public interest in open
justice’.

Rinehart v - Fight over the status of Gina Rinehart as the trustee of a family trust –
Welker [2011] children want her removed.
NSWCA 403 - Rinehart wants details of the case suppressed.
- Denied by the Court on the grounds of the public interest in open justice.

ACCESS TO JUSTICE
What is it? AG’s report A Strategic Framework for Access to Justice in the Federal
Civil Justice System describes 4 waves of access to justice reform:
- Access to justice as equal access to legal services (such as lawyers and
legal aid) and courts;
 - Access to justice as correcting structural inequalities within the justice
system e.g. demystifying legal procedures, changing court procedure
to make it less traumatic for victims etc;
- Access to justice as an emphasis on informal justice e.g. greater use of
ADR; and
- Improve access to justice by lowering costs and improving the
allocation of judicial resources through competition policy.

Barriers to - Socio-economic status,

justice - Interlocking systems of oppression, economic, social and racial privilege
- Unfamiliarity of the law
- Location
- Technological obstacles
- Culture
Key Findings of Review of the Adversarial System of Litigation: Rethinking the Federal
the ALRC Civil Litigation System. Some key findings relevant to access to justice:
Report 1999 - ‘Access to justice’ is never going to be perfectly realised in practice.
- Access to justice is not synonymous with obtaining a favourable outcome.
- Access to justice means access to more than just the courts proper.
It observed the proliferation of tribunals, community justice
centres, Ombudsmen and government agencies.
- The report discussed the importance of case management in triaging
disputes in the context of limited court resources and time.

Figures https://www.justice.nsw.gov.au/Pages/media-news/news/2016/justice-for-everyday-
problems.aspx
- 1 in 4 people in NSW experience a substantial legal problem each
year;
- 85% of legal issues are civil issues;
- Only 3% of problems ever end up in a court or tribunal – demonstrates that
litigation is generally a step of last resort;
- 38% of people take some action to resolve their legal problem but don’t then
take it any further;
- 20% of people take no action at all for various reasons, including that it is too
stressful, expensive or they don’t know how.
RULES FOR LEGAL PRACTITIONERS
Key sources of - s 56(3),(4),(5) of the CPA: establishes that a party owes a duty to the
rules for legal court to help further the overriding purpose, that a lawyer or
practitioners barrister must not put a party they are representing in breach of this
duty, and that such a breach can be dealt with by an adverse costs
order
- Rules enacted pursuant to the Legal Profession Uniform Law:
o The Legal Profession Uniform Law Australian Solicitors’ Conduct
Rules 2015
o The Legal Profession Uniform Conduct (Barristers) Rules 2015
The Legal - r 4.1.1: must act in the best interests of a client;
Profession - 4.1.2: be honest and courteous in all dealings in the course of legal practice;
Uniform Law - 4.1.3: deliver legal services competently, diligently and as promptly as
Australian reasonably possible;
Solicitor’s - 4.1.4: avoid any compromise to their integrity and professional independence;
Conduct Rules - 4.1.5: to comply with these Rules and the law;
2015 - r 7.1: must provide clear and timely advice; and
- r 3.1: ‘A solicitor’s duty to the court and the administration of justice is
paramount and prevails to the extent of inconsistency with any other duty.’
The Legal - r 35: the barrister ‘must promote and protect fearlessly and by all proper and
Profession lawful means the client’s best interests to the best of the barrister’s skill and
Uniform diligence’, irrespective of any interest they may have;
Conduct - r 37: the barrister ‘must seek to assist the client to understand the issues in the
(Barristers) case and the client’s possible rights and obligations...’; and
Rules 2015