UCPR r 360 – offers to settle – joint offer by first and second plaintiffs

The decision in ACN 070 037 599 Pty Ltd v Larvik Pty Ltd (No 2) [2008] QSC 118 involved a consideration of the implications for a plaintiff whose offer to settle under Part 5 of the Uniform Civil Procedure Rules 1999 (Qld) was made jointly with another plaintiff who abandoned her action before trial. The court found nothing wrong with the making of a joint offer. It concluded the successful plaintiff would be entitled to indemnity costs on the simple test of whether the judgment for that plaintiff was more favourable than the offer.

UCPR r243 - notice of non-party disclosure - obligation to state allegation to which documents sought are directly relevant

In Deppro Pty Ltd v Hannah [2008] QSC 193 one of the matters considered by the court related to the requirement in r 243 of the Uniform Civil Procedure Rules 1999 (Qld) that a notice of non-party disclosure must “state the allegation in issue in the pleadings about which the document sought is directly relevant.”The approach adopted by the issuing party in this case of asserting that documents sought by a notice of non-party disclosure are relevant to allegations in numbered paragraphs in pleadings, and serving copies of the pleadings with the notice, is not uncommon in practice. This decision makes it clear that this practice is fraught with danger. In circumstances where it is not apparent that the non-party has been fully apprised of the relevant issues the decision suggests an applicant for non-party disclosure who has not complied with the requirements of s 243 might be required to issue a fresh, fully compliant notice, and to suffer associated costs consequences.

Practice and procedure - solicitor's retaining lien

The judgment of Daubney J in Magnamain Investments Pty Ltd v Baker Johnson Lawyers [2008] QSC 245 provides guidance on a number of aspects concerning the scope and maintenance of a solicitor’s retaining lien for costs.

PI claim clears the statute bar

In Hughes v Impulse Entertainment Pty Ltd & Workcover Queensland [2013] QDC 21 the plaintiff commenced a proceeding more than 60 days after the compulsory conference under the Workers Compensation and Rehabilitation Act 2003 (Qld). The question to be determined was whether this meant the claim was statute-barred under that Act, even though the relevant limitation period under the Limitation of Actions Act 1974 (Qld) had not expired

Insights into special costs orders : WA court examines compliance and retrospectivity

In Walter v Buckeridge [No.5] [2012] WASC 495 Le Miere J considered an application by the defendants for special costs orders under the applicable legislation in Western Australia. Aspects of the decision may be of persuasive value in dealing with similar issues under Queensland legislation.

Service difficulties - Will UCPR r 117 provide the answer?

In Amci Pty Ltd ACN 124 249 485 v Corcoal Management Pty Ltd [2013] QSC 50 Jackson J considered an application for an order under r117 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) in relation to informal service of an originating process on a corporation registered in the Ajman Free Zone in the United Arab Emirates. The decision appears to be the first time a Queensland court has examined the scope of r117 of the UCPR, and relevant considerations influencing the exercise of the discretion under the rule, when the defendant is outside Australia.

Offers to settle - by the rules

In Balnaves v Smith [2012] QSC 408 Byrne SJA concluded that an offer to settle could be an “offer to settle” under Chapter 9 Part 5 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) despite the inclusion of non-monetary terms. His Honour took a different approach to that taken by Moynihan SJA in Taske v Occupational & Medical Innovations Ltd [2007] QSC 147.

Pleading - self-incrimination and penalty privileges

In Anderson v Australian Securities and Investments Commission [2012] QCA 301 the Queensland Court of Appeal allowed an appeal from the decision of the primary judge (ASIC v Managed Investments Ltd No 3 [2012] QSC 74. The Court of Appeal was satisfied that the defendants’ non-compliance with the pleading rules in the Uniform Civil Procedure Rules 1999 (Qld) was justified by the claims to privilege against self-incrimination or exposure to a penalty.

Motor Accident Insurance Act 1994 - request for information

In Angus v Conelius [2007] QCA 190 the Queensland Court of Appeal concluded that the obligations under the Motor Accident Insurance Act 1994 (Qld), and in particular s 45 of the Act (duty of claimant to cooperate with insurer), continue beyond the commencement of court proceedings

Evaluating consent and legitimacy amongst shifting community norms : an EVE Online case study

The legitimate resolution of disputes in online environments requires a complex understanding of the social norms of the community. The conventional legal approach to resolving disputes through literal interpretation of the contractual terms of service is highly problematic because it does not take into account potential conflict with community expectations. In this paper we examine the importance of consent to community governance and argue that a purely formal evaluation of consent is insufficient to legitimately resolve disputes. As online communities continue to grow in importance to the lives of their participants, the importance of resolving disputes legitimately, with reference to the consent of the community, will also continue to grow. Real consent, however, is difficult to identify. We present a case study of botting and real money trading in EVE Online that highlights the dynamic interaction of community norms and private governance processes. Through this case study, we argue that the major challenge facing regulators of online environments is that community norms are complex, contested, and continuously evolving. Developing legitimate regulatory frameworks then depends on the ability of regulators to create efficient and acceptable modes of dispute resolution that can take into account (and acceptably resolve) the tension between formal contractual rules and complex and conflicting community understandings of acceptable behaviour.

The "new advocacy" and the ermergence of lawyer representatives in ADR

This article traces the emergence of “the new advocacy” role for lawyers, that of “dispute resolution advocacy”, describing the role of legal practitioners when representing clients in negotiation, mediation and conciliation processes. The dispute resolution models they may encounter and the different types of assistance that lawyers can provide to their clients in such contexts will be discussed. Whether “dispute resolution advocacy” falls under the umbrella of “non-adversarial practice” or is a separate and distinct role will also be explored, in light of the professional obligations of lawyer representatives, particularly the duty of loyalty to their clients.

Mediation ethics in Australia : a case for rethinking the foundational paradigm

In contemporary Western society, including Australia, professional mediation practice has developed with a specifically defined foundational approach - a problem-solving, facilitative method, in which the mediator's intervention is centred on providing the parties with a series of formal steps to assist their communication and to steer them towards a self-determined and mutually agreeable resolution of the issues in dispute. Facilitative mediation developed, in part, as a response to the adversarial system of law and justice. In that system the parties are said to lose control of their dispute, and a decision is imposed on them which invariably puts one party in a losing position. Facilitative mediation has offered an alternative to this inevitable outcome by offering the parties a democratic, cost-effective, party-centred, empowering, interests-based and principled option for resolving their dispute.

Open for Inspection? Julstar Pty Ltd v Lynch Morgan Lawyers [2012] QDC 272

In Julstar Pty Ltd v Lynch Morgan Lawyers [2012] QDC 272 Dorney QC DCJ considered whether an applicant for an assessment of all or part of their costs under s 335 of the Legal Profession Act 2007 (Qld) (LPA) must provide grounds on which they dispute the amount of the costs charged or their liability to pay them. His Honour also made an order for inspection of the solicitor’s file, despite a claimed lien for unpaid fees.

Why ADR must be a mandatory subject in the law degree - the profession

The Australian legal profession, as well as the content and pedagogy of legal education across Australia, are steeped in tradition and conservatism. Indeed, the legal profession and our institutions of legal education are in a relationship of mutual influence which leaves the way we teach law resistant to change. There has traditionally been pushback against the notion that dispute resolution should have a place amongst black letter law subjects in the legal curriculum. This paper argues that this position cannot be maintained in the modern legal climate. We challenge legal education orthodoxy and promote NADRAC’s position that alternative dispute resolution should be a compulsory, stand alone subject in the law degree. We put forward ten simple arguments as to why every law student should be exposed to a semester long course of DR instruction.

Why ADR must be a mandatory subject in the law degree - the academy

The profession of law is deeply steeped in tradition and conservatism. The content and pedagogy employed in law faculties across Australia is similarly steeped in tradition and conservatism. Indeed, the practice of law and our institutions of legal education are in a relationship of mutual influence; a dénouement which preserves the best aspects of our common law legal system, but also leaves the way we educate, practice, and think about the role of law, resistant to change. In this article, we lay down a challenge to legal education orthodoxy and a call to arms for legal academic progressivists. It is our simple argument that alternative dispute resolution should be a compulsory, stand alone subject in the law degree. There has been traditional pushback against the notion that alternative dispute resolution should have a place amongst black letter law subjects in the legal curriculum. This position cannot be maintained in the modern day legal climate. We put forward ten simple arguments as to why every law student should be exposed to a semester long course of ADR instruction. With respect to relationships of mutual influence, whether legal education should assimilate the practise of law, or shape the practise of law makes no difference here. Both views necessitate the inclusion of ADR as a compulsory subject in the law degree.