BY EDWARD R. HILL
LAW CLINIC SUPERVISOR,
SCHOOL OF LAW,
UNIVERSITY OF THE SOUTH PACIFIC
Title: Civil Procedures of the South Pacific
Author: Jennifer Corrin Care
Published by Institute of Justice and Applied Legal Studies, USP: Suva (1998)
pp: 194, xxiv
Civil procedure is a technical area of the law but one that everyone who practises or aspires to practise civil litigation must be familiar with. Using the rules of court effectively can facilitate settlement or provide an advantage when a case does proceed to trial. At the same time, a lack of facility with the rules of court creates extra work for lawyers, extra expense and delay for clients and frustration for judges and court registries.
Civil Procedures of the South Pacific by Jennifer Corrin Care, the third in a series on Pacific law published by IJALS, finally provides students and others with a text that deals with civil procedure in a Pacific context. The stated aim of the book is to ‘outline the main rules of procedure that govern the conduct of civil cases in countries served by the University of the South Pacific’. The fact that USP serves 12 separate countries indicates the magnitude of the challenge that this aim entails. However, in less than 200 pages of clear and concise writing, the stated aim is accomplished.
The book sensibly limits the scope of the task in several ways. First, the work does not concern itself with public law cases that have an administrative or constitutional law base. Judicial review and appeals are also beyond the scope of this work. While the book outlines the variety of methods for commencing a civil action, only civil cases that are commenced by writ of summons and/or a statement of claim are considered at length. This excludes civil cases that, in some jurisdictions, may be commenced by petition or some other means. While this limitation (which exists to some extent in most other books on the subject) makes the book less than exhaustive in terms of its coverage of the subject, it is particularly understandable here. This is because, as the author points out on page 46, there is some ambiguity in at least 5 jurisdictions about the use of alternatives to the writ of summons. Also, proceedings commenced by writ are the most lengthy and complex in nature and they represent the majority of civil cases.
The book concerns itself with the jurisdiction of the courts of inherent jurisdiction throughout the region. The procedure governing the lower courts, notably magistrates’ courts and others created by statute is not treated. This is a sensible limitation in view of the fact that knowledge of the rules governing higher courts is a solid base for understanding the less complex procedures in lower courts where those procedures differ.
Finally, the book’s focus is narrowed to an in depth consideration of civil procedure in 7 of the 12 countries of the region, although some reference is made to that of the remaining jurisdictions. This excludes detailed consideration of the civil procedure of several tiny countries (Nauru, Tokelau, Tuvalu and Niue) and of the Marshall Islands, where a model of procedure based on American practice is used. To include a detailed consideration of the former where practice is conducted by as few as 2 lawyers would require a largely anecdotal rather than an analytical approach. In the case of the latter, the only jurisdiction without a Commonwealth legacy and a common law base (at least one with a recent connection to its roots), would require a massive addition to the work.
The topics covered in the book range from pre-trial matters such as consideration of parties and demand letters to post-trial matters such as costs and enforcement of judgments. Considerable space is devoted to the topic of pleadings, interlocutory matters and disposition of a case without trial. The topics are arranged logically in a chronological sequence. Consistency and clarity are achieved through the use of two hypothetical cases. These cases provide useful illustrations of the main steps that are required in the prosecution and defence of civil cases.
The challenge of dealing with such a technical subject over multiple jurisdictions is met by using the High Court (Civil Procedure) Rules 1964 (pre-independence rules that were promulgated by the Western Pacific High Commission and which continue to govern procedure in 4 of the jurisdictions) as the primary reference. For the most part, regional variations in rules of procedure are outlined in comparison with these rules.
Although in a book of this nature, it is impossible to deal with historical or policy issues behind each rule of court (especially in several jurisdictions), some reference is made to such matters in respect of issues having a particular relevance to the Pacific region. An example is that of representative actions. In traditional societies in the Pacific, where notions of collective ownership, duties and rights are common, the ability to sue or be sued in representative capacity is of increased relevance. The author recognises this and brings it to the attention of readers in Chapter 3, which deals with parties to an action.
In working towards achieving the stated aim, the book serves 2 major purposes. First, it provides students of civil procedure with a clear, concise introduction to the topic. South Pacific students will benefit from no longer having to use a UK or other foreign source as a primary text. Second, it provides a comparative analysis of the rules of civil procedure throughout the South Pacific. This provides a foundation for further inquiry.
Although, in its conclusion, the book acknowledges the need for reform of the rules of procedure in the South Pacific, it adheres to its descriptive approach and does not venture to prescribe those changes or suggest what policy considerations should inform them. However, anyone who ventures into this area will find that Civil Procedures of the South Pacific provides a useful foundation.
Civil Procedures of the South Pacific has an index, tables of legislation and cases and clear headings and page layout. As originally envisaged, the IJALS series of publications on the laws of the South Pacific was to provide surveys that give an overview of a particular areas of the law in the region, incorporating case summaries and extracts of legislation. Civil Procedures of the South Pacific is a valuable addition to the series.