welcome to laws 1307 civil procedure topic one Court adjudication case management and alternative dispute resolution or ADR I'm Andrea Turner before we get into topic one I want to make some general comments concerning civil procedure civil procedure aims to tackle the issues of cost delay and access to justice as critical issues in modern case management system these three considerations are critical um lens for you to consider throughout the unit in this unit we will examine in detail many issues in civil litigation including Court adjudication under the adversarial system alternative dispute resolution jurisdiction limitation of actions how to Institute proceedings how to serve procceedings how to enter a notice of intention to defend sometimes known elsewhere as an appearance who are the parties and how those parties are joined into litigation pleadings summary disposition what happens when non-compliance or amendment is needed issues of timing disclosure and privilege further means OB of obtaining evidence repairing affidavits interlocutory procedures such as in injunctions resolving matters without trial what happens at a trial the nature of an appeal and a new trial and ultimately cost an enforcement all of these concepts are presented in the order in which they generally will arise in a typical litigation the this unit is based on the constructivist model of Education my role as the course coordinator coordinator is one of a facilitation I'm here to assist you in constructing your knowledge of the content and developing the skills which are associated with this unit the unit itself is interactive in nature and expect that you will actively participate using the Mur website that you work up answers to tutor questions that you will attend Zoom sessions and you will respond to other students as well as to any queries from myself the best way to contact me is by email details on assessment and the scheme of work and individual topic summaries are found in the unit profile which is on Moodle this civil procedure unit is designed for you to develop the skills and knowledge necessary for you to satisfactorily run a basic litigation in an Australian Court let's start by considering what mod one which has several learning outcomes I want you to understand the interaction between substantive law which up until this time you've been studying in your law degree and procedural law which is the subject of this unit as well as units such as evidence and legal professional conduct I want you to understand the source of procedural law and the basic differences between the adversarial system in other words the system that we run here in Australia and the inquisitorial model which are found in Europe European countries I want you to be able to understand and critique the concept of case management and preliminary court processes it's also very important to realize that it's best not to be in court at all and you should be utilizing alternative dispute resolution in terms of reading for this week There's the first three chapters of the textbook that I've that has been written uh with Professor curn I also want you to visit the conflict resolution Network website the details of which are in the notes for this week the reason why this univer why this unit is so important is that at some point in life everyone is going to be exposed to conflict and potential litigation we live in a very litigious society and we're seeing the continual development of a market in litigation and the rise of class actions whether it be in relation to the management or mismanagement of dams negligence or simple crash and Bash cases negligence and litigation is everywhere people are always conflict this unit is important for you because it helps you objectively manage conflict this knowledge when combined with a knowledge of alternative dispute resolution gives you a complete picture of how to deal with conflict through the law and through alternative techniques in other words it's a unit That's essential for you to understand to survive in practice let's start our journey by asking what is procedural law procedural law governs the conduct of proceedings before the court that is in the words of Justice Lush in poisa and miners um 1881 uh the reference will be up in the um in the study guides the mode of proceeding by which a legal right is enforced as distinguished from the law which gives or defines a right we can easily understand what this statement means by considering a couple of diagrams found on pages 11 and 12 of your study guide for week one in the first diagram which is split into two columns we see the left- hand column the substantive law units you've already studied or about to study these include contract taught land law and family law the right hand column shows you the procedural law which consists of civil legislation the rules of Court practice directions the law of evidence and the rules of professional conduct procedural laws are are a fabric which brings together and helps the substantive law to operate effectively the rules of procedural law are often referred to as adjectival rules in the sense that they qualify substantive rights found in substantive law they designed to regulate the way in which substantive rights and obligations are claimed proved and enforced without impacting on the definition of those substantive rights the interdependence of substantive law and procedural law is shown in the second two column diagram in terms of substantive law you might be asking the question whether there's a breach of of contract or violation of a tort who's liable for that what remedies are available and how are damages calculated the procedural question associated with those substantive law issues or which court has jurisdiction to deal with the matter has a limitation period expired what documents need to be disclosed to the other side what evidence is admissible how and when will the trial be run how are costs calculated and a judgment is enforced you can see the procedural law goes together with the substantive law to produce an outcome every case you have ever read combined substantive and procedural law up to now you've been largely concerned with the ratio and obiter associated with the substantive substantive law that have been linked together to form the bodies of law that you recognize as units that you have studied but each case is also bound up in procedural law to practice you need to understand the dynamic nature of the complete picture that is what this civil procedure unit together with evidence and legal professional conduct units gives to you let's consider where procedural law comes from what is its source essentially there are four sources of procedural law firstly legislation such as the Civil proceedings act 2011 the services and execution of process act a commo statute that you'll be looking at at some detail in detail in this unit secondly there subordinate legislation such as the uniform civil procedure rules 2011 and Associated practice directions made by the courts there's also the common law cases on civil procedure law and the inherent jurisdiction of superior courts of record such as the Supreme Court of Queensland to regulate their procedures and to prevent the abuse of their process hence there are four sources of civil procedural law let's consider a different topic namely the adversarial and inquisitorial models civil procedure systems have been broadly classified along a dichotomy between one on the one hand adversarial systems which we predominantly have in Australia and inquisitorial models that are often seen in Europe under the adversarial model two adversaries generally take charge of the procedural action while under an inquisitorial system officials such as judicial officers perform most of the activities in the article by D Malin the style of civil procedure this sets out the attributes of each approach summarized in a two column diagram on page 14 of your study guide under the adversarial model there are pre-trial conferences the parties themselves control the pre-trial investigations the trial is a con concentrated courtroom drama judges are largely passive there are class actions and there are party selected and paid experts involved contrast that with the inquisitorial system where there a complete lack of distinction between pre-trial and trial phases there are very active judges there's judicial proof taking and fact Gathering there's judicial examination of witnesses and there are Court elected experts as you progress through this unit on civil procedure some of the features of inquisitorial systems have been taken up in our ad adversarial system to make it more efficient the reason for that is largely accepted that the adversarial system is a system in crisis so flaws in the Civil Justice System such as cost delay lack of access to Justice have prompted calls for greater efficiency leading ultimately to profound systemic changes through the development of Notions as overriding objectives of case management and redefining completely the role of the judge in our adversarial system adversarialism and party control of litigation have given way to a system where courts control the process of individual matters in their lists using case management practice I es case management has been facilitated through the development of overriding objective Provisions in legislation and court rules that allow the courts to interpret procedural rules and individual orders to promote an overriding purpose courts account for interests Beyond those of the immediate parties in the proceeding and judges have become in effect to litigation managers in Queensland the overriding objective is to facilitate the just and expeditious resolution ution of the real issues in civil proceedings at a minimum of expense this is found in uniform civil procedure rules or the ucpr and this is in rule five the overriding objective found in rule five is very important it is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense we'll now consider some ele elements of the adversarial system in crisis there are four aspects to the crisis these are cost delay access to Justice and achieving the overriding objective case management is relevant to all four but particularly in achieving the overriding objective in considering the usual steps in a litigation you will begin to see where case management comes into play initially there is a dispute between the parties if that dispute is not resolve through alternative dispute resolution processes such as negotiation mediation Etc a plaintiff May commence an action the action will move to a phase of case management directions which involve the judge laying down how the case will progress there may be an opportunity for default and summary judgment which is a way to get a resolution without having a full trial however failing a summary procedure the defendant May file a defense and pleadings are ultimately completed there may then be a circular process involving further and better particulars of the nature of the plaintiff's claim the action procedures the action procedures to disclosure this represents the com commencement of what is known as interlocutory disputes and these are matters when the action commences and the trial which may be the subject of a separate applications to the court disclosure is an area where essentially the parties disclose the documents that are relevant to the action to the the other side there may be notices to produce further documents there may be subpoenas requiring parties or persons to provide documents or to give evidence there'll be an exchange of witness evidence and ultimately the action will be set down for trial upon which the trial will commence soon after delay can be tracked can be tracked through managerial judging the judge keeps the parties on track cost can be tackled through ensuring efficiency in the conduct of the litigation or or seeking Avenues such as alternative dispute resolution to to resolve the dispute before incurring additional cost access to justice is dependent on the role of the judge to manage the case efficiently to reduce cost cost is primarily the factor undermining access to Justice case management is a system in which the court supervises or controls the progress of a case through its interlocutory phase have a look at Supreme Court practice Direction number two of 2020 which explains case management in the case of Aon risk Services Australia limited and Australian National University the citation there is 2009 HCA 27 the high court held that the judge is entitled to consider the effect of an adjournment upon Court resources and the claims of litigant in other cases it's more than just about the parties to a case it also has an effect on other people's matters waiting resolution the high court further considered the Ambit of overriding of the overriding purpose in the case of expense reduction analyst group propriety limited and Armstrong strategic management and marketing propriety limited that citation is 2013 250 CLR 303 note the courts comments at paragraph 57 that courts must take a more robust and proactive approach to give effect to the overriding purpose when exercising their powers although parties continue to have the right to bring pursue and defend proceedings in court the conduct of those proceedings is firmly in the hands of the court and it is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose let's now consider alternative dispute resolution in Greater depth alternative dispute resolution processes can be involved right from when the action commenced through to the doorstep of trial trial even as the trial progresses towards a judgment if an action proceeds to a judgment costs will be awarded that will then be followed by an execution process execution processes enable successful parties to attempt to recover both whatever they're awarded by the court in terms of judgment but also recovering the cost of the process as we'll see later on in the unit when we get to costs parties typically only recover about 60% of the costs involved in the litigation if they're successful there's also a potential appeal process people need disputes resolved quickly at a minimum cost and it should be efficient unfortunately the reality is that litigation is not satisfying this probably explains why about 5% of cases actually proceed to a trial there is absolutely no reason for disputants to bow down to the law and pursue litigation as the only and preferred solution in fact alternative dispute resolution despite the word alternative is in fact the most common way of resolving disputes and there's been an exponential growth in the alternative dispute resolution since the 1970s there are very wide V variety of alternative dispute resolution processes which have developed which we can broadly split between the determinative processes and facilitative processes determinative processes involve a third party making a decision Audi determination on the dispute usually after hearing arguments and evidence the table at 10.5 of the study guide shows you all the types of determinative processes for example adjudication the normal trial process arbitration expert determination which having a private judge fact finding early neutral evaluation case appraisal and mini trials all of these are determinative processes facilitative processes processes involve a third party providing assistance in the management of the process of a dispute the parties resolve their dispute with the assistance of the third party in a facilitative situation whereas in a determinative situation the third party actually makes a decision facilitative processes include mediation which is most commonly used conciliation Ombudsman and facilitation aside from determinative and facilitative processes there is also supporting processes such as negotiation Mark ansty in negotiating conflict insights and skills for negotiators and peacemakers defines negotiation as a verbal interactive process process involving two or more people who are seeking to reach agreement over a problem or conflict of interest between them and in which they seek as far as possible to preserve their interests but to adjust their views and positions in the joint effort to to achieve agreement there are many theories and models of negotiation but one method of categorization is to view them through the lens of the relationship between the negotiating parties is there an existing relationship a future relationship one that can be repaired or redefined or is it simply Beyond repair answers to those questions will influence the approach to negotiation and influence a possible outcome negotiation has several advantages over a more structured and expensive dispute resolution process such as litigation the parties in Conflict Define their own resolution rather than having it imposed upon them negotiation is less corrosive of the relationship between the parties the parties are more committed to a solution they have designed and implemented the parties best understand the impact of the negotiated outcome in their position parties are more likely to achieve at least part of their optimal out come negotiation may solve all or part of a dispute and narrow the issues proceeding to trial reducing costs delay and of course improving access to Justice negotiation may may be broadly divided into adversarial negotiation and principled negotiation the main theorist for adversarial negotiation is Carrie mcoo in toward another view of legal negotiation the structure of problem solving whose theory expresses graphically the assumption that negotiations are linear win lose games where X's gain is y's loss C 3.5.4 of your textbook a model for principled negotiation also known as problem-solving interest based or cooperative was first developed at Harvard Law School in the late '70s and later set out in this in the book by R Fisher and W getting to yes negotiation negot negotiating agreements without giving in this is further explain further expanded in R Fisher and D erle in getting ready to negotiate see 3.5.5 to 3.5.1 10e of your textbook make sure you take the time to study the extracts in relation to these various models a mediation is a facilitated negotiation therefore to understand mediation it's important to understand negotiation and the differences in negotiating Styles and theories previously outlined mediation is the most widely used alternative to litigation and is widely associated with the court annexed ADR schemes according to rule one of the mediation rules of the resolutions Institute mediation is a process in which parties to a dispute with the assistance of a neutral third party the mediator identify the disputed issues develop options consider alternatives and Endeavor to reach an agreement the mediator has no advisory or other determinative role in regard to the content of the dispute or the outcome of its resolution but may advise on or determine the process of mediation whereby resolution is attempted David Spencer in principles of dispute resolution Third Edition at page 57 argues that the key elements of mediation which may change depending on the type of mediation and the desire of the parties include the following that people to the dispute are assisted by a mediator issues are identified options are developed there is an effort to reach agreement the mediator is not an adviser the mediator does not decide the outcome of the dispute the mediator May advise on the process that will lead the people to resolution and mediation may or may not be voluntary there are various models of mediation processes that have been put forward and I'm going to just briefly discuss two of them to give you an indication of the process the first is the mediation process model you can see that it looks at both the past and the future so if we start at the top it's all about understanding and exploring what's occurred so there's an opening by the mediator the parties then make opening statements there is a process of summarizing and and setting an agenda followed by an exploration of the issues the mediator then holds private sessions with both parties then we start to enter into the problem solving resolution phase this is where we start to see joint negotiation sessions and further private sessions with the mediator and hopefully in the end an agreement or closure after the process there might be a post mediation enforcement agreement to ensure what has been agreed is actually enforced the second model is the classic mediation model which is like the previous model it starts off at the base with preparation and preliminary meeting which could be by telephone or video conference from a very broad brush approach looking at the whole question the whole direction of the mediation is to narrow down the issues to a conclusion the second stage is the mediator makes an opening statement and explains the process and allows the parties to ask questions thirdly the parties have their opening statements that really is an opportunity for the parties to State how they see the dispute from their perspective it also helps the other party the opposite party to understand the issue from a different perspective the issues are then identified and an agenda is set a lot of work is then spent on identifying common ground to try and Achieve early segments of agreement you then look at identifying early options for agreement you then have to separate you then have separate sessions to check interests and start option generation and then finally you head towards a joint meeting where an agreement is argued and eventually it's all written up in the form of a settlement another common ADR process is arbitration the process of arbitration has been used for centuries for the settlement of disputes between States state entities companies and private parties in the context of private disputes arbitration has traditionally developed to provide an alternative process for the resolution of commercial disputes Australian arbitration law is shared between the international arbitration act 1974 which is Commonwealth and a set of state laws governing the non-international arbitration so commercial arbitration act 2013 in Queensland arbitration has become a quasi judicial process in which the arbitrator hears arguments and evidence and renders a determination or award that is binding upon on the parties the process is adversarial in nature and the arbitrator is required to act in a Judicial Manner and to apply legal principles in determining the dispute see 3.8.1 to 3.8.8 of your textbook alternative dispute resolution has found its way into the legal system it's found in the Supreme Court of Queensland act 1991 the uniform civil procedure rules 1999 and the District Court of Queensland act 196 7 these pieces of legislation and subordinate legislation establish mediation and case appraisal as part of the pre-trial management processes even before a trial date is allocated the court considers whether a case should be referred to mediation or case appraisal and an action only goes to trial if these processes fail to reach an agreement case appraisal is a process in which a dispute resolution practitioner the case appraiser investigates a dispute and provides advice on possible and desirable outcomes and the means whereby these may be achieved mediation is also available in Queens and through dispute resolution centers established pursuant to the dispute resolution centers act 1990 I would urge you to consider studying the elective laws 11068 resolving civil disputes alternative dispute resolution to expand your knowledge in this important area and it's a good complement to the civil procedure unit in this lecture what we've looked at is the inter interaction between substantive and procedural law you can see how these elements interact within our legal system you know the four sources of procedural law you know the difference between adversarial and inquisitorial models and that there are elements of the inquisitorial model creeping into the adversarial model we've had a look at the concept of case management looked at the preliminary court processes and the overall flow of litigation we've defined alternative of dispute resolution in its various forms and the idea that ADR should be a precursor to avoiding litigation entirely in the next topic we'll be examing jurisdic examining jurisdiction and limitations of actions so until then bye for now