ByLawyers News and Updates

Overriding purpose – Litigation – QLD

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New case added to Queensland litigation guides

All six of the By Lawyers Queensland litigation guides have been updated to provide a link to a recent case on the importance of the ‘Overriding purpose’ provision of the UCPR and the costs sanctions that might apply where it is breached.

The ‘Overriding purpose’

Rule 5 of the Uniform Civil Procedure Rules 1999 (Qld) provides that the overriding purpose of the rules is to provide for the expeditious resolution of the real issues in civil proceedings at a minimum of expense. That requires the courts to have the objective of avoiding undue delay, expense and technicality.

Under Rule 5 all parties to proceedings impliedly undertake to conduct their case in an expeditious way. Where they breach this undertaking, the court may dismiss the proceedings or apply costs sanctions. Francis v MSF Sugar Limited [2020] QSC 16 is a stark example of the court doing so.

Costs sanctions

In making indemnity costs orders in favour of the plaintiff in this case, the court noted:

[23] The defendant has conducted itself in this court quite unreasonably – failing to disclose directly relevant documents until the eve of the trial and pleading matters that were false,
according to its own records, and which it could not prove by admissible evidence. This unreasonable conduct has caused the plaintiff to incur unnecessary costs, including costs
thrown away by yesterday’s adjournment and today’s application and short adjournment. It also likely delayed the determination of the plaintiff’s claim and prevented the matter
resolving on an agreed basis without the need for a trial.

Publication updates

The commentary in each of the By Lawyers Queensland litigation guides already highlights the importance of the Overriding purpose provisions. This useful new case illustrates the court’s approach to compliance with Rule 5 and the possible sanctions that will be applied. it has been added to each of the Acting for the Plaintiff and Acting for the Defendant guides in the By Lawyers Supreme Court, District Court and Magistrates Court publications.

 

Service of documents outside Australia – QLD

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The rules in Queensland courts relating to service of documents outside Australia have been amended.

The Uniform Civil Procedure (Service Outside Australia) Amendment Rule 2019 (Qld) has inserted a new Chapter 4, Part 7, Division 1 into the Uniform Civil Procedure Rules 1999 (Qld). The new Division 1 of Part 7 consists of two subdivisions, dealing with the Supreme Court and the District and Magistrates courts respectively.

The amendments are to incorporate the harmonised rules for service of documents outside Australia originating from the Council of Chief Justices’ Rules Harmonisation Committee. The amendments are minimal, relating mainly to terminology and consistency between jurisdictions.

The rules provide for the service of documents outside Australia, not including New Zealand, which is already covered by the provisions of the Trans-Tasman Proceedings Act 2010 (Cth).

The commentaries in the following By Lawyers litigation guides have been amended accordingly:

Commercial arbitration – UCPR – QLD

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Recent amendments to the Uniform Civil Procedure Rules 1999 (UCPR) provide for processes when Queensland courts become involved in commercial arbitration matters.

The Uniform Civil Procedure (Commercial Arbitration) Amendment Rule 2019 (QLD) introduces a new Chapter 9A into the UCPR which deals with all aspects of arbitrations under the Commercial Arbitration Act 2013 (Qld) and the International Arbitration Act 1974 (Cth).

The Queensland Act is harmonised with commercial arbitration acts in other Australian jurisdictions and largely reflects the provisions of the UNCITRAL Model Law on International Commercial Arbitration as adopted by the United Nations Commission on International Trade Law on 21 June 1985, with amendments as adopted by that Commission in 2006 (‘Model Law’).

The new rules relate to applications under the Acts, or the Model Law, including applications:

  • for a stay and referral to arbitration in existing proceedings before the court;
  • to enforce a foreign arbitration award;
  • to issue subpoenas in arbitration matters;
  • relating to evidence for arbitrations;
  • relating to disclosure of confidential information in relation to arbitrations;
  • to set aside an arbitrator’s award;
  • to enforcement an arbitrator’s award;
  • for leave to apply to the court for the determination of a question of law arising in the course of an arbitration;
  • for leave to appeal on a question of law arising out of an award.

The commentaries in the By Lawyers litigation guides for QLD Supreme Court Civil and District Court Civil have been amended accordingly.

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