CCP REVISION 3

 Materials – good summary.

 Colbran.

Key cases
 *Sali SPC – very strong indication that the court took a very dim view of the conduct of a Pl who
was a solicitor. Altho court never said we are punishing you for wasting our time or using rules to
your advantage, get a strong sense that where the fault is caused by practitioners not doing job
properly, the ct is tough. But if there are genuine legit issues, ct not so tough.
 If solicitor made a mistake that necessitates a request for adjournment, and ct says no, the
client is not without redress  client can always sue solicitor for negligence.
 JL Holdings – summarises the law. Acknowledges importance of case mgmt in keeping things on
schedule, but no longer penalising parties and precluding them from the possibility of success in
their defence bc they have errors/mistakes/slackness in preparation.
 General Motors v SGIC – can foresee that the client will pursue the lawyers by their insurance
claim for any loss as a consequence of that.
 P 10, 11 & 12 materials – summarises those key cases.
 SCR 53 – yes “this rule governs amendments”
 All of the questions relate to the case file, very practical. What would you do, what would you
advise, what are your options, what do u think the court will do.
 Need to demo u know basic rules, principles & how cases apply & exercise judgement in using
that info to provide advice etc. Not going to penalise for exercising judgement poorly. But must
show what is relevant to making decisions in civil procedure.
 Access: Is it a doc, is it relevant, is it privileged? Start by “Rule … governs this.” Then talk about
what will apply in this case.

 Joinder – means any parties, Def Pl etc.

 Start with: Pl 1 sues Def 1. If more than 1 Pl in action, (eg can have 2/3 Pls in class action) then Pl
chooses the Def.
 If Def 1 says that’s not fair bc 3rd party is wholly/partly responsible for your damage.
 Then joinder.
 If the Def identifies another person/entity that might also have contributed to or caused the
damage, they join them as a 3rd party.
 When join as 3rd party, that’s by 3rd party notice. Says “ive been sued by Pl for this, and I say u
contributed to that loss/damage”. The 3rd party has to have done something that relates to the
original cause of action. Can’t say the Pl sued me for $100,000 but u owe me $50,000 so u pay Pl.
Have to say somehow the 3rd party is responsible for that damage to the Pl so they are part of the
same CoA.
 The Def cant make them a Def bc that’s Pl’s choice. But once joined, the 3rd party is treated as a
Def to the action. So 3rd party will file a defence to the TPN (to Def).
 If there is an additional Pl, then that person can be joined as a Pl by application by that party
applying for joinder as a Pl.
 But if that party doesn’t care to have the other Pl in the case, then they don’t have to do that.

 Def selects the 3rd party. They are treated as a Def. They receive all notices, attend all court events.
 Costs : If Pl has chosen 2 Defs, and win against Def 1 & lose against Def 2, then Pl has to pay
costs.
 If TPN, the costs are entirely between the 2 parties (def & 3rd party). Pl hasn’t taken a risk. If they
know Def will join, they will let Def join. So Def pays the costs if 3rd party doesn’t work, not Pl.
 What if Def decides not to join that party? If they don’t join 3rd party & 3rd party is found to be
liable, cant pay damages bc 3rd party not a party.
 Def can wait until damages are awarded and then say I seek contribution from you.
 Pl isn’t limited to 1 Def. If have 10 Defs, then risk costs.

 Joinder of parties is where any other party joins in. It just means bringing people in to the action.
 When have more than 1 Def, or have selection of Def & 3rd parties, then as a matter of technicality
If Pl doesn’t join Def, then Def can join as 3rd parties.
 Contribution notices – defs issue among each other. Usually happen when Def with insurer – Def
will say if I am found liable, you are liable to indemnify me to the extent of my damage. They say
you have to contribute to any liability I bear. Briefly explain why.
 Defs will always issue contribution notices among each other. Even though quite sure Def 2
not contributory, and ct didn’t make order on that, can still use the notice to try to get money
from them.
 Suppose 3rd party is a visitor, Def1 = architect … Def 2 = … … and a lot of the issues might be
exclusive to some parties. Got nothing to do with the Pl. So court might then say Pl get $250,000
from Def 1 and then Def 1 has to sort out who is responsible for paying.
Pl chooses Def, Def chooses other parties and contribution notices.

 Can join a TP any stage with leave.

 Can join after judgement? After judgement, the CoA has merged. But before judgement, can join.
 If going to join at late stage, the ct will look at case mgmt.

 Issuing 3pn is a joinder. The effect of a TPN is to join a party.

 Anytime u
 No technical step of joinder. It’s just a term. The process is a TPN. The effect of that technical
process = another party is joined in the action.

 Def can apply to have someone brought in as a Def.

 The difference – if Def successfully applies to join another person as a Def, it changes the costs
risk. The Def would have to convince the court that joining someone as a Def is fair. Effectively
saying Def has been remiss in not joining this person as a Def. It is not fair for us to bear the cost
risk for pusuing that person, it’s the role of Pl to do that. Ct will look at substantive merits of the
case to decide whether it is appropriate - that that person is so closely linked to the CoA that they
should be a party.
 SCR 27 creates the entity of a Def. The relevance = costs. A 3party has no relationship with the Pl,
but with the Def. Don’t get so deeply in this issue. Joinder of Defs is rare.

Tom v Delila
 Separate causes – one is a manufacturing liability one is negligence liability. Pl can join those 2
ppl as Defs. There, Pl chose the yacht club and then subsequently pl became aware of the man
fault. At that point it is open to the Pl to apply to join manufacturer as Def to the proceedings. Seek
leave from court to Amend SoC to add a Def. Nothing to stop the Pl from issuing against them
separately, but there’s advantage in joining as Def. Won’t necessarily mean that have to amend
SoC.
 If Pl decides not to do that, because satisfied that Def will be found liable, and we will recover
against them, it is up to Def to decide whether to join the Manufacturer as a 3rd party. If Def is
aware of another party, the 1st step = telling Pl informally in hope that they will join them. If they
don’t then Def decides whether to join them.
 What to consider in suing?
 When looking @ who to sue – whether they have anymoney, a party who they want to get
discovery, whether want to interrogate them, likelihood of success. (If u don’t join them u cant
interrogate them) so have strategic reasons to bring someone in proceedings. But have to have
a proper reason to sue them &
 realise that have costs risk if unsuccessful.

Can issue TPN if separate coA?

 Has to relate to the injury the Def suffered. So have to have a close relationship to the Pl’s injury.
In Tom v D, have situation where the negligence or BoC of 3rd party had a direct impact and was
causative of Pl’s injuries.
 It will be obvious when what a 3P does has no relationship to the Pl’s injury.
 The damage they suffered from is related – then not precluded from joining a 3P. If the court took
view that its not reasonably related, then issue contribution notice. Court’s preference is just to
bring everyone in if they can, bc it prevents duplicity of proceedings.

Discovery – doctor’s report have to be admitted in discovery

 Look at rules on experts.
Direct relevance
 Line of inquiry – they’ve tried to keep it down to what is directly relevant. It’s a judgement u have
to make.
 Talk about the issues!
 If just allege negligence & not particular, have to think is this particular to negligence or this issue
or …
 Just bc its relevant to circumstances of the parties doesn’t mean its enough – have to link to the
pleadings but cant be too narrow. More relevance to the issues between the parties rather than
what’s explicit on the pleadings. So if parties are broad , the issues are implicit. Comes back to
judgement.

 Relevance. Materiality has a diff connotation. It means material to as having substantive effect.
Prefer to say “relevant” to the CoA. Just understand it has to be relevant.

Brook
 Relates to SCR 53 and relates to a new CoA. Can join a new CoA provided that it’s the same facts.
Brooks – he claimed defamation, and … those are too removed. He was out of time.
 They allowed some of his amendments. Part of the amendments relate to the same facts. So they
allowed some and disallowed others.
 Ct has discretion to extend Limitation period. Circumstances when can get
extension .Discretionary. Look to fairness to parties, CFM, how parties conduct themselves.
 12 months is just one of the reasons/basis. PPl have applied 6 yrs later and convinced court to
extent.
 If apply to amend out of time, and ct allows amendment, s 48 isnt relevant. Need court’s leave to
amend statute barred cause of action. Statute of limitations bars the action, so need to get leave to
amend , and then court can extend the time.
 Need to seek leave specifically to extend the time.

 Doctors don’t have to give records to patients bc property of them & the hospital. If take action
against hospital, then yes discovery.
 Discovery rlates to the party only. Disocvery  it’s the info that you and I have got that is
caught by the rule.
 Insurer on behalf – lots of insurers have right of surrogation. When u have insurance, then insurer
can say I will take over. In discovery – the insurer is not a party. They are only running the action.