Queensland Bar Exam: Practice and Procedure flashcards

32 cards. Read the term and the definition here. The deck at the top of this page is optional.

Originating process

The document by which proceedings are commenced. In the Queensland Supreme Court it is a claim, which must be filed and served with a statement of claim.

Notice of claim

A short originating document used where urgent relief is needed before a full statement of claim is prepared. It must be followed by a claim or statement of claim.

Service period for claim

A claim must be served within six months after it is filed. The court may renew service before or after expiry on application.

Defence deadline

A defendant must file and serve a defence within 28 days after service of the claim, unless the court orders otherwise or the parties agree in writing.

Default judgment

Judgment entered without trial where the defendant fails to file a defence within time. It requires proof of service and that no defence was filed.

Summary judgment test

The court may give judgment where the defendant has no real prospect of successfully defending and there is no need for a trial of the claim.

Amendment of pleadings

A party may amend once without leave before the close of pleadings. Later amendment requires leave, which may be refused if prejudice cannot be cured by costs.

Disclosure obligation

Each party must disclose documents directly relevant to an allegation in issue that are in its possession or control. Privileged documents are listed but not produced.

Interrogatories

Written questions requiring answers on oath. They require leave, are limited to matters directly relevant to an issue, and the answers may be tendered at trial.

Costs follow the event

The unsuccessful party ordinarily pays the successful party's costs. The court may order otherwise, and settlement offers can alter the costs outcome.

Calderbank offer

A settlement offer marked without prejudice save as to costs. If unreasonably refused and the offeror does better at trial, the court may award indemnity costs.

Offer of compromise

A formal settlement offer made under the rules. If not accepted and the offeror obtains a better result, costs are awarded on a more favourable basis.

Limitation period

In Queensland, most civil claims must be commenced within three years of the cause of action arising, subject to statutory extensions and disability provisions.

Personal injury notice

Under the Personal Injuries Proceedings Act 2002 (Qld), a notice of claim must generally be given within nine months of the incident before proceedings commence.

Magistrates Court jurisdiction

The Magistrates Court hears civil claims up to $150,000. Claims above that amount must be commenced in the District or Supreme Court.

District Court jurisdiction

The District Court hears civil claims up to $750,000. It also hears appeals from the Magistrates Court and certain criminal matters.

Examination-in-chief

Questioning of your own witness using open, non-leading questions. Its purpose is to elicit the evidence in a clear, chronological and admissible form.

Cross-examination purpose

Leading questions testing the opponent's evidence, challenging credit, and putting your client's case to the witness so the witness has a chance to respond.

Rule in Browne v Dunn

A party must put to an opposing witness the substance of any contradictory evidence it intends to call, so the witness can explain or deny it.

Hearsay rule

Evidence of a previous representation made by a person is inadmissible to prove the existence of a fact that the person intended to assert.

Opinion evidence

A witness may give opinion evidence only if qualified by training, study or experience, and the opinion is wholly or substantially based on that specialised knowledge.

Tendency evidence

Evidence of a person's conduct used to prove a tendency to act in a particular way. It requires notice and satisfies a significant probative value test.

Credibility evidence

Evidence relevant only to a witness's credibility. It is generally inadmissible unless an exception applies, such as evidence of a prior inconsistent statement.

Advocacy opening

A concise statement identifying the parties, the issues, the evidence to be called, and the orders sought, without arguing the case or giving evidence.

Closing address

A submission summarising the evidence, applying the law, and urging the tribunal to accept your version and make the orders sought.

Duty to the court

A barrister must not mislead the court, must cite adverse authority, and must correct any misleading statement previously made to the court.

Conflict of interest

A barrister must decline or return a brief where a conflict exists between clients or between the barrister's interests and the client's interests.

Client interview sequence

Establish the client's objective, take the facts chronologically, identify the cause of action, advise on prospects, and confirm instructions in writing.

Pleading material facts

Each material fact is pleaded in a separate numbered paragraph. Fraud, misrepresentation and negligence must be pleaded with specific particulars.

Written submissions structure

State the issue, the applicable principle with authority, the application to the facts, and the order sought, in that order.

Settlement authority

A barrister may not settle a matter without the client's authority. Advice on settlement options must be given and recorded in writing.

Mediation agreement

A mediated settlement is enforceable as a contract between the parties. Terms should be recorded in writing and signed at the conclusion of the mediation.