MLL391 CIVIL PROCEDURE & ADR NOTES
MLL391 Civil Procedure and Alternative Dispute Resolution Exam Notes
TOPIC 1 – INTRODUCTION TO CIVIL PROCEDURE What is Civil Procedure? •
The mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right; Poyser v Minors
•
Procedural law is rules which are directed to governing or regulating the mode or conduct of court proceedings.
•
It is the laws of the court and how to bring about a claim, as opposed to substantive law, which includes actual rights, duties, powers and liabilities. For example: o
Substantive: Principles such as what is required to establish a duty of care in tort, frustration in contract or causation in criminal law.
o
Procedural: Principles such as what is required to summarily dispose of a case, order preliminary discovery or order the parties to commence mediation or arbitration.
•
Procedural law is put in place to facilitate dispute resolution: main considerations include ensuring the course of justice, access to justice and due process.
Sources of Civil Procedure Law
•
Civil Procedure law predominantly comes from the Supreme Court Rules (SCR) o
The source of the Supreme Court Rules is contained the Supreme Court Act 1986 (Vic).
o
Designed to lay out the procedures for bringing a case to court.
MLL391 Civil Procedure and Alternative Dispute Resolution Exam Notes
•
Section 25 of the Supreme Court Act provides power to the judges of the Supreme Court to make these rules from time to time.
•
The Supreme Court also has inherent jurisdiction to regulate its own proceedings: o
The inherent jurisdiction of the court provides jurisdiction to hear any matter that comes before it, unless a statute or rule limits that authority or grants exclusive jurisdiction to some other court or tribunal.
•
Inherent jurisdiction appears to apply to an almost limitless set of circumstances.
•
There are four general categories for use of the court's inherent jurisdiction: 1. to ensure convenience and fairness in legal proceedings; 2. to prevent steps being taken that would render judicial proceedings inefficacious; 3. to prevent abuses of process; and 4. to act in aid of superior courts and in aid or control of inferior courts and tribunals.
•
As such, the exercise of inherent jurisdiction is a broad doctrine allowing a court to control its own processes and to control the procedures before it.
•
The power stems not from any particular statute or legislation, but rather from inherent powers invested in a court to control the proceedings brought before it.
Overarching Purpose of the Civil Procedure Act Section 7 of the Civil Procedure Act 2010 (Vic): 1) The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost ‑ effective resolution of the real issues in dispute. 2) Without limiting how the overarching purpose is achieved, it may be achieved by— a) the determination of the proceeding by the court; b) agreement between the parties; c) any appropriate dispute resolution process— i.
agreed to by the parties; or
ii.
ordered by the court.
Section 8 of the Civil Procedure Act 2010 (Vic) – the court is to give effect to the overarching purpose in the exercise of any of its powers.
TOPIC 1 – INTRODUCTION TO CIVIL PROCEDURE What is Civil Procedure? •
The mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right; Poyser v Minors
•
Procedural law is rules which are directed to governing or regulating the mode or conduct of court proceedings.
•
It is the laws of the court and how to bring about a claim, as opposed to substantive law, which includes actual rights, duties, powers and liabilities. For example: o
Substantive: Principles such as what is required to establish a duty of care in tort, frustration in contract or causation in criminal law.
o
Procedural: Principles such as what is required to summarily dispose of a case, order preliminary discovery or order the parties to commence mediation or arbitration.
•
Procedural law is put in place to facilitate dispute resolution: main considerations include ensuring the course of justice, access to justice and due process.
Sources of Civil Procedure Law
•
Civil Procedure law predominantly comes from the Supreme Court Rules (SCR) o
The source of the Supreme Court Rules is contained the Supreme Court Act 1986 (Vic).
o
Designed to lay out the procedures for bringing a case to court.
MLL391 Civil Procedure and Alternative Dispute Resolution Exam Notes
•
Section 25 of the Supreme Court Act provides power to the judges of the Supreme Court to make these rules from time to time.
•
The Supreme Court also has inherent jurisdiction to regulate its own proceedings: o
The inherent jurisdiction of the court provides jurisdiction to hear any matter that comes before it, unless a statute or rule limits that authority or grants exclusive jurisdiction to some other court or tribunal.
•
Inherent jurisdiction appears to apply to an almost limitless set of circumstances.
•
There are four general categories for use of the court's inherent jurisdiction: 1. to ensure convenience and fairness in legal proceedings; 2. to prevent steps being taken that would render judicial proceedings inefficacious; 3. to prevent abuses of process; and 4. to act in aid of superior courts and in aid or control of inferior courts and tribunals.
•
As such, the exercise of inherent jurisdiction is a broad doctrine allowing a court to control its own processes and to control the procedures before it.
•
The power stems not from any particular statute or legislation, but rather from inherent powers invested in a court to control the proceedings brought before it.
Overarching Purpose of the Civil Procedure Act Section 7 of the Civil Procedure Act 2010 (Vic): 1) The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost ‑ effective resolution of the real issues in dispute. 2) Without limiting how the overarching purpose is achieved, it may be achieved by— a) the determination of the proceeding by the court; b) agreement between the parties; c) any appropriate dispute resolution process— i.
agreed to by the parties; or
ii.
ordered by the court.
Section 8 of the Civil Procedure Act 2010 (Vic) – the court is to give effect to the overarching purpose in the exercise of any of its powers.
