BY JENNIFER CORRIN CARE
SCHOOL OF LAW
UNIVERSITY OF THE SOUTH PACIFIC
Title: Civil Procedure Commentary and Materials
Author: Colbran, S., Reinhardt, G., Spender, P., Jackson, S. and Douglas, R.
Published by Butterworths: Australia (1998)
ISBN: 0 409 31094 8
The stated aim of this book is to provide students, lecturers and practitioners with a comprehensive analysis of the practical and theoretical issues encountered in the study and practice of Australian civil procedure. It is also stated to be an attempt to ‘create a standard national approach to the teaching of this subject’. Presumably this is a reference to approach to syllabus content rather than teaching method.
Although there are significant differences between the rules of the state and territory courts, there is a basic common pattern to proceedings both at state and federal level. This allows for the discussion of general principles in this and other texts on Australian civil procedure. The book describes and compares civil procedure in the superior courts of all Australian jurisdictions. It also draws comparisons with other counties such as United Kingdom, Germany, France and Canada.
The book’s 962 pages contain both primary and secondary materials. The primary materials include extracts from court rules, practice directions, legislation, and extracts from decided cases. Secondary materials include extracts from articles, books, Law Reform Commission papers, lectures and conference papers.
The index is not always helpful. For example, the only reference under the heading ‘Security for costs’ is [17.6.26] which deals with security for the costs of appeal. Sections on security for costs in the chapters on interlocutory applications and costs are not mentioned. Tables of statutes, statutory rules and practice directions are included and subdivided by jurisdiction. There is also a table of cases. Unfortunately, although the letter ‘C’ appears after a case name in the table to indicate reference to an extract, no distinction is made between cases that form the substance of an extract and those which are only mentioned in it. Full citations of cases are not contained in the table. The book would have benefited from a table of extracts, allowing the reader to find out whether particular material is included and to browse for things of particular interest.
The nineteen chapters of the book cover the following topics:
Court Adjudication under an Adversarial System
This is an introductory chapter, which looks at the definition and sources of procedure. It compares the adversarial and inquisitorial models of litigation and looks at aspects of case management. The chapter contains a useful section on inherent jurisdiction. A very brief description of the court hierarchies in Australia is given without any references for those who wish to pursue this topic.
This chapter deals with jurisdiction from the point of view of subject matter and territory. It also deals with cross-vesting.
Limitation of Actions
This chapter examines statutory limitation periods governing commencement of actions, concentrating on personal injury actions. It contains a useful comparative table of stipulated limitation periods within all states and territories, supported by the relevant authorities. It also covers the relationship between forum shopping and limitation periods.
The order and content of this chapter could be better arranged. Parts 1 and 2 deal with legal interviewing, client care rules, and letters of demand, rather than institution of proceedings. Part 3 includes a section on ethical considerations, which might have been better dealt with earlier in the work. Practice governing the commencement of proceedings in the Supreme Courts, Federal Court and High Court is outlined.
This chapter deals with personal service and ordinary service, the special rules applying to special parties and special actions, and proof of service. It also deals with substituted service and service outside the jurisdiction. It has two very brief parts covering service of judgments and orders and setting aside irregular service. Neither topic is explained adequately.
Part 4 of this chapter explains that unconditional appearance waives procedural irregularities and objections to jurisdiction. It states that in New South Wales and ACT conditional appearance is not possible and that objections based on irregularity or jurisdiction should be made within the time limited for appearance. However, it does not make clear whether entry of appearance should be postponed in such cases. It also states that ‘In South Australia conditional appearance can only waive an irregularity in service’. Presumably this should be a reference to an unconditional appearance.
Joinder of claims and parties
The introductory section of this chapter is not very helpful. Neither is section [7.2.6], which purports to be a definition of issue estoppel, but does not put one forward.
This chapter could perhaps be better organised. ‘Counterclaim and set-off’ have been separated from the part on defence and it is not made clear that they are usually contained in one document. ‘Reply and defence to counterclaim’ on the other hand have been combined with ‘Counterclaim and set-off’. It might also have been useful to distinguish the general rules of pleadings from rules which apply only to certain types of plea.
This chapter deals with methods of disposing of obtaining judgment without a trial. Applications to strike out have not been given adequate treatment and have misleadingly been put in a short section named ‘Striking out or default of pleading’ in the part on default judgment’. Whilst judgments in default of appearance have been dealt with, judgment in default of defence and other pleadings have not.
Non-compliance, amendment and time
This chapter contains very little commentary and the contents might have been better divided up between other chapters of the book.
This chapter deals with discovery and inspection of documents, discovery from non-parties, interrogatories, oral discovery. It concludes with a part entitled ‘Discovery and interrogatories evaluated’.
Further means of obtaining evidence
This chapter deals with procedures that complement discovery and interrogatories. It includes subpoenas, inspection and testing of property, medical examinations, and notices to admit. The part on inspection and testing of property requires cross-referencing to chapter 14, as there is some overlap.
This short chapter consists mainly of very brief parts, which could be better organised, for example, ‘Miscellaneous paragraphs in Affidavits’ would be better combined with ‘Structure’. The chapter defines affidavit three times (once in the overview, once in the introduction, and once in part 2, which is headed ‘Definition and use of Affidavits’).
The content of this chapter is narrower than its title suggests. Apart from the part on security for costs it deals only with interlocutory procedures designed to preserve the status quo pending trial. It covers injunctions, Anton Piller orders, Mareva injunctions, rules of court providing for preservation of property, and receivership and provisional liquidation. There is no cross-reference between Anton Piller orders and Mareva Injunctions, and preservation under the rules. Nor is there any explanation of how the inherent jurisdiction and rules interact in practice.
Disposition without trial
The title to this chapter suggests that it deals with judgment in default and related procedures. However, these are the subjects of chapter 9, entitled Summary Disposition. In fact this chapter deals with settlement, and the rules that help to encourage it. The chapter includes commentary on negotiation, and commentary and extracts on mediation and neutral evaluation.
This chapter looks at setting down for trial, mode of trial, splitting trials, presentation of the case, verdicts and reports, and judgment. It includes the hearing of cases and issues by referees and arbitrators, as well as by judge alone and judge and jury.
Appeal and new trial
This chapter deals with types of appeal, avenues of appeal, powers, process, grounds of appeal, new trial, striking out, want of prosecution and discontinuance, costs and indemnity certificates. There are short parts, containing only extracts, on preparing an appeal and conducting an appeal. The chapter does not deal with appeal jurisdiction, which is covered in chapter 2.
This chapter starts with an introduction explaining the general rule that costs follow the event. It states that the principle ‘implies that there are limits to the degree to which a winner should be rewarded’, which does not seem to follow. The chapter deals with the different bases on which costs may be awarded. Under the enigmatic title ‘Problematic winners’ it deals with successful parties who have sued in a higher court than necessary and parties who are partly successful. This part could have been combined with ‘Complex cases’, which include multiple party actions and actions involving counterclaims. The chapter also deals with the exceptional cases where courts do not follow the event and scales of costs. The security for costs part overlaps with chapter 14, part 6 and cross referencing is required.
This chapter examines the procedures for enforcing judgments. The introduction contains a table summarising the types of procedure available for each type of judgment and giving the relevant rule in each jurisdiction. Part 14 is entitled ‘Enforcement of judgments outside Australia’ but in fact deals mainly with enforcement of foreign judgments within Australia. The actual procedure is not described. Enforcement of judgments overseas is confined to two paragraphs.
Each chapter of the book is divided up into parts. Parts are then subdivided into sections, using a cumbersome three number system made up of chapter number, part number and section number. For example, [2.3.35] is chapter 2, part 3, section 35. Sections containing materials are numbered in the same way, but with the letter ‘E’ (for extracts other than from cases), or ‘C’ (for extracts from cases) following them. The numbers are placed in square brackets, which looks unattractive and also gives a strange appearance to the index and tables.
Part headings have been placed between two parallel lines for emphasis but extracts are not adequately distinguished and it sometimes difficult to see where an extract ends and the commentary begins. Further, another set of numbers in square brackets is scattered throughout extracts. These presumably refer to page numbers in the work from which the extract has been taken.
Each chapter starts with an overview. Most summarise the contents of the chapter that follows and/or highlight its main points. However the overviews are inconsistent. For example, the overviews of chapter 5 on service, chapter 11 on discovery, chapter 13 on affidavits, and chapter 17 on appeal and new trial are more like introductions and the overview of chapter 8 on pleadings concentrates on definition.
Suggested further reading is placed in a separate part, at the end of each chapter (apart from chapter 12). Further reading is also spread through certain sections of the book. The notes and questions also sometimes refer to further reading, but these references have not been consolidated in the further reading section, which might have been useful. The further reading references will be particularly useful to students.
Some sections of the text contain notes and questions. These are individually numbered, which results in the first line of each notes and questions section commencing with a square bracketed, three part section number, followed by the number 1 outside the brackets, which looks rather peculiar. Although generally useful, some of the questions are unimaginative and merely require repetition of information in the preceding sections (see eg, [6.3.8] 1).
There are no footnotes or endnotes. Instead references are included in the main text, usually after a colon. Some references appear in a sentence or paragraph of their own (see for example the second paragraph on page 321). This is unsuitable for a work where frequent and lengthy references to rules are required. References often take up two to three lines of text and tend to break up the narrative and dominate the printed page.
This book is a useful collection of primary and secondary materials pertinent to civil procedure in Australia. It is a useful reference book for theoretical aspects of civil procedure. The collected material is perhaps of more value than some parts of the commentary, the standard of which is inconsistent. The notes and questions will be of particular use to students of law.