Unit 4 AOS2C Flashcards Preview

Legal > Unit 4 AOS2C > Flashcards

Flashcards in Unit 4 AOS2C Deck (53):

Supreme Court civil pre-trial procedure

Aim: to inform both parties of information that relates to the case- encourage an out of court settlement
If the case goes to court, the pre-trial civil procedure provides the court with information about the case before it begins


Aim of civil action

To restore the party whose rights have been infringed back to the position they were in before the infringement had occurred


Standard of proof

On the balance of probabilities


Civil action

Civil action arises because of a conflict between two individuals, groups or government.


Who brings the case

The case is brought by the party whose rights have been infringed ( the plaintiff) against the party who is alleged offences have infringed the rights of the plaintiff ( defendant)


Parties involved

Plaintiff and defendant ..


Plaintiff must consider

-Time and inconvenience involved in taking a claim through the court
- Costs involved
- Likelyhood of success
-Whether or not the other party has the ability to pay compensation
- larger companies try to settle cases out side of court to not gain publicity as it may be negative on the business
- consider the relationship between the other party


Civil Pre trial procedure

The Pretrial proceedings in a civil case involve the exchange of legal documents between the plaintiff and the defendant


Pre trial civil procedure

- Pleading:
Originating writ
Statement of claim
Notice of appearance
Statement of defence (Counter Claim)
Further and better particulars
- Discovery
Oral examination
Medical examination
- Direction


Who initiates a civil action?


How is this done?

Party who has had their rights infringed will initiate civil action.
Their aim is to claim compensation to return them to their original position.
Done by contacting a lawyer who issues a 'letter of Demand on the defendant'.


What does the letter of demand contain

- nature of the claim
- remedy being sought
- date of compliance
- statement. E.g: Failure to comply legal proceedings will be commenced


Purpose of Pleadings

To require the parties to state the main claims and defences of their case. This ensures the other side knows what the Claim or the defence is about.

To compel each party to state the material facts and particulars on which case they are relying and which form the basis of their claims and defence.

To give the court a written record of the case, which allows the court to understand the issues so it can manage the trial and pre trial procedures

To set the limits to the dispute, which enables other procedures such as discovery to be confined to the issues disputes

To assist in reaching an out of court settlement where appropriate


Counter claim

Defendant claiming that the plaintiff is partly responsible for their injury.


Purpose of Supreme Court Pre trial procedure

- They inform both of the parties of information relating to the case
- The parties can determine whether it is worthwhile to proceed with or defending case
- The parties find out the strengths and weaknesses of each other's case
- They might lead to an out of court settlement
- They provide the court with information
- they might result in some issues being conceded and agreed



A document that explains to the defendant that an action is being taken against him or her , it informs the defendant where the trial will take place and the mode of trial ( which court and whether it be heard by a judge and jury) usually a statement of claim is attached.i

Issued by plaintiff or legal representative


Statement of Claim

Informs the defendant what the claim is


Notice of appearance

If the defendant wishes to defend the action, the first document he or she must file and serve is the notice of appearance this informs the court and the plaintiff that the defendant wishes to defend the claim.


Statement of defence

Sets out a respond to each of the allegations contained in the plaintiffs statement of claim. The defendant normally admits or denies the allegations. The purpose of the defence is to inform the court and the plaintiff of the reasons why the defendant is defending the case.


Further and better particulars

Optional step in the pleadings process.
A party may file and serve a request for further and better particulars of the other party's claim or defence. This is a request for more details of the claim or the defence.


Directions Hearing

A brief hearing before a judge or an associate judge, and is a chance for the judge or the associate judge to discuss with the parties the progress of the case and give 'directions' to the party.

Takes place not less than 35 days after the defendant has filed an notice of appearance.

At any time a party may request that the court list the matter for a directions hearing if the party feels it is necessary for the judge or associate judge to give directions



Enable parties to gain further information on Matters that remain unclear.


Purpose of discovery

-Require the parties to disclose all relevant material and documents to the other side
- Reduce the element of surprise at trial and avoid a trial by ambush
- Ensure all parties have copies of relevant documents
- Allow each party to determine the strength of the other sides case and determine their likelihood of success
- ensure that the parties and the court have all the relevant material and documents required to achieve a just outcome.
- in proceedings where the medical state of the plaintiff is in dispute, gives the opportunity to the defendant to have the plaintiff medically examined, this can reduce the time in court to dispute the ,education condition of the plaintiff.
- assist in reaching an out of court settlement where appropriate.



- Common practise for the court to order the parties to make discovery as the first directions hearing.
- A party, once required to discover their documents must then prepare an 'affidavit of documents'
- Documents include written documents, such as letters, emails, hand written notes and contracts, as well as videotapes, audio tapes, discs, films, or other recordings. If they are relevant to the issues in the dispute.



Interrogation is searching questions relating to the known facts of the case.
-Requiring any information that could be used as evidence


Oral examination



Medical examination

is the plaintiff is claiming damages for bodily injury, the defendant may as the plaintiff to submit to appropriate examination by a medical expert or experts at specified times and places.

-This situation may be reversed if a counterclaim has been made by the defendant



At any time during the pre-trial or trial proceedings, the supreme court may order the parties to mediation. Mediation is when an independent third party facilitates discussion between the disputing parties to try and reach a resolution


Strengths of pre trial civil procedures

- Pre-trial procedures provide parties with various opportunities to reach an out of court settlement
- They allow parties to determine the strengths and weaknesses or each other's cases
- They allow parties to determine whether it is worthwhile proceeding with their case
- They provide the court with information about the case before it begins, leaving to a quicker trial.
- They might result in some issues being conceded by the parties, thereby Savin g the court time of trial.


Weaknesses of pre trial procedures

- Pre trial procedures are long and complex adding to the delay of reaching a resolution
- The cost of each procedure can often be high and particularly in the discovery stage
- They often contribute to the stress and inconvenience experienced by the parties, as they are lengthy and complex.
- They are complex, and often require the assistance of legal representation, therefore disadvantaging unrepresented parties.
- Te time taken means that the remedy is denied for longer, also, key witnesses might die or disappear, or their memory might become less reliable.



A sum of money granted to the plaintiff, to be payed by the defendant, in satisfaction of a claim made by the plaintiff.

Purpose of damages is to compensate the plaintiff for losses suffered.

Different types of damages can be sought these include, exemplary, compensatory, nominal and contemptuous.


Compensatory Damages

Most common damages sought.
Aim to restore the party whose rights have been infringed to the position they were in before they were infringed, By compensating them for losses suffered. May not be possible to compensate in a physical sense however they can be compensated to make up for what the person will suffer in the future.

Compensatory damages include: specific damages, general damages and aggravated damages


Specific damages

Can be given a precise monetary value. These can be listed such as medical expenses or loss of wages and are easily qualifiable.


General damages

Will be assessed by the court according to the magnitude of the wrong done and the long term consequences of the wrong. Taking into consideration such matters as future loss of wages, long term job prospects, and pain and suffering.
They are a general estimate and not readily qualifiable


Aggregated damages

Can be awarded to compensate the plaintiff further if the court believes that the defendants conduct injured the plaintiffs feeling by causing humiliation and insult


Nominal damages

- Small amount of money is paid by way of damages.
- A plaintiff may be seeking to make a point about being legally in the right and to show that their rights have been infringed, however may not be seeking a large amount of money in compensation, therefore plaintiff may ask for nominal damages


Contemptuous damages

a court may feel the plaintiff has a legal right to damages, however does not have the moral right. (Plaintiff doesn't deserve damages)
-Small damages may be awarded to show contempt for the claim that is made


Exemplary damages

Exemplary damages are the only consequence of a civil action that in some way seeks to punish the defendant for an extreme infringement of rights.
Exemplary damages are also known as punitive damages or vindictive damages (although this term is rarely used). The aim of exemplary damages is to punish and deter where conduct is wanton, malicious, violent, cruel, insolent or in scornful disregard of the plaintiff’s rights.



A way in which the court will enforce a right, impose a penalty or make another court order for the benefit of the plaintiff.
- Aimed at returning the plaintiff back to the position they were in before the wrongful act occurred.

- Damages are a remedy



A type of remedy, being a court order that stops someone from doing something or compels someone to do something


Effectiveness of Civil procedure:
processes and procedures that contribute to F

- pleadings stage – This stage enables the parties to become aware of the claims, defences and counterclaims that are being made. It ensures that the parties are prepared for the case and the trial proceeds on the basis
that the parties have made all the possible claims they can in their pleadings.
• court powers – The courts now have extensive powers to manage civil disputes. The courts must use these powers to give effect to the overarching purpose of the Civil Procedure Act, which is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. The powers of the court are broad and include allowing the court to make any orders it considers appropriate with respect to the conduct of the hearing.
• directions hearings – Having both parties present at directions hearings ensures a proper
opportunity to make any submissions, applications or arguments to the judge (or associate judge) about what orders should be made or the timetable that should be set down for pre-trial procedures. This allows the case to proceed fairly and ensure that all parties have the opportunity to be heard.
• discovery process – This is designed to ensure that all parties have access to information and documents that are relevant for the trial. Particularly during discovery stage, the parties become aware of the evidence of each party’s evidence, which reduces the element of surprise at trial. This assists in both parties being on an equal footing with respect to knowledge of documents at the trial.


Effectiveness of Civil procedure:
problems and difficulties to F

-pleadings stage – Although pleadings are designed to ensure that each party is aware of the
claims and defences, and to clarify the issues in dispute, often the pleadings are so complex that they disadvantage a party who does not have legal representation. Pleadings normally require the expertise and knowledge of a solicitor and/or barrister. This can disadvantage an unrepresented litigant who may not understand what pleadings are and therefore does not begin on the same footing as their opponent.
• discovery process – Again, although designed to clarify issues in dispute, avoid surprises at trial and allow parties to understand the claims and evidence involved, the discovery process can often be long and complex and require legal representation. This can disadvantage people who represent themselves.
• directions hearings and mediation – A party with more experienced legal representation may argue their case better at a directions hearing and thus may be better placed to obtain the orders they require in the case. Further, at mediation, a party without legal representation may feel intimidated by the process, or is unable to clearly present their argument, and the result may therefore be an unfair outcome.
• costs – The costs of pre-trial procedures and taking a matter to trial are significant, and can be a serious impediment to many people trying to access the legal system. In some ways, the cost of accessing civil justice can act as a barrier to many people trying to resolve their dispute, and people can be dissuaded from pursuing resolution, making it an unfair system. Many of these people are ineligible for legal aid, which leaves them to either be self-represented, or not pursue or defend their claim.
• different cultural backgrounds – Defendants from different cultural backgrounds may be confused by the legal processes and the adversary system of trial. This may hinder the ability of these defendants to receive a fair and unbiased hearing.
• inconsistency in damages – If a jury is required to decide on the amount of damages, the amount can be different from that awarded (by other juries) in other similar cases and can often be very large, which can be unfair to the defendant.


Effectiveness of Civil procedure:
processes and procedures that contribute to A

court system – Courts have been established to enforce the law, including civil rights. Each court
has a specific jurisdiction and deals with cases in its area of expertise. This ensures that parties have suitable and appropriate courts
to deal with their disputes.
• ADRs and tribunals – The legal system provides a range of mechanisms, other than courts, to
assist parties in resolving disputes. The Victorian Civil and Administrative Tribunal (VCAT) can deal with a variety of claims, including disputes between consumers and traders. In addition, parties have access to alternative dispute resolution methods such as mediation and conciliation, available in centres such as the Dispute Settlement Centre.
• collaborative law – Collaborative law provides another method of dispute resolution, whereby disputing parties and their lawyers sign a contract agreeing that they will work together in good faith to resolve their dispute without going to court.
• pre-trial procedures – A party will have access to pre-trial procedures that may assist them in resolving their case which they would otherwise not have access to if they did not issue proceedings. For example, a party will have access to court-ordered mediation, documents discovered by the other side and the ability to order interrogatories to help assist them with their claim. These procedures may result in an early out-of-court settlement, or help define the issues in dispute.
• contingency-based legal representation – Some firms of solicitors will represent clients on a ‘no win, no pay’ basis. This helps people with a genuine claim but limited funds to get a matter to court. If the plaintiff loses the case they do not have to pay the legal fees. If the case is won, the solicitors usually take their legal fees out of the damages paid by the defendant. Without this arrangement a plaintiff may have to abandon the claim because of the high cost of proceedings and the risk of not winning the case.
• litigation-funding companies – This is another option that has emerged for those unable to afford legal representation. These funding companies can cover the litigation costs of individuals and small businesses. If the party wins the case, then the funding company takes a share of the proceeds, often between 30 and 40 per cent. If the party loses, then the funding company normally pays the other party’s costs.


Effectiveness of Civil procedure:
problems and difficulties to A

costs – Courts are expensive and lawyers are often a necessary element of achieving a fair outcome. However, utilising their skills can be very expensive. This high cost can be prohibitive to people who wish to take an issue to court. People therefore do not have easy access to courts as a mechanism for resolving disputes due to the high costs that may outweigh the potential benefit to
be gained.
• complexity of procedures, including pre-trial procedures – Pre-trial procedures are often
complex and difficult to understand, and usually require the assistance and expertise of solicitors. This poses problems for unrepresented litigants, who find it difficult to easily use the court system to resolve their disputes. Other procedures such as directions hearings, mediation and trials also add to the complexity of the court system.
• lack of knowledge of ADRs and tribunals – Many people are not aware that there are alternatives to the court system. Often they may issue proceedings in court, without knowing that their matter could be heard by a list in VCAT, or that they could contact a body such as the Dispute Settlement Centre to arrange mediation. Although these bodies exist, people may not have easyaccess to them because they are not aware of their existence or the extent of their powers to
determine disputes.
• delays – The court system has been criticised for extensive delays in hearing civil disputes. This is not only due to the backlog of court cases in the system, but also the extensive number of pre- trial procedures that parties usually have to go through. This often deters people from issuing civil proceedings and hinders their access to this mechanism to resolve their dispute.


Effectiveness of Civil procedure:
processes and procedures that contribute to T

pleadings and discovery – The pre-trial procedures in a civil action can reduce the time needed to resolve a dispute. The pleadings and discovery stages provide both sides to a case with theopportunity to find out details of the case being brought against them. This could result in one party deciding not to pursue their case. Alternatively, these exchanges could encourage discussion between the parties, which could lead to an out-of-court settlement that satisfies both parties. If the matter does proceed to court, the pre-trial procedures, such as directions hearings, could reduce the time to be spent in court. However, some legal commentators have pointed to the long and protracted pre-trial procedures as adding to the time delay in resolving a dispute.
• directions hearings – Directions hearings have been introduced in civil matters to try to speed up the process of getting a matter to trial and to make the trial shorter by clarifying issues before the trial, so that these do not need to be contested in the trial. Directions hearings also help the parties to become better acquainted with the strengths of each party’s case, and as a result can lead to the parties deciding to settle out of court rather than go to trial. Some issues can be settled during directions hearings, and aspects of the plaintiff’s case may be admitted before attending court, which can result in the trial being shorter as these issues do not then need to be settled at trial.
• active court management – The court rules and the Civil Procedure Act 2010 (Vic.) provide the judges with powers to actively manage a case. The powers include the ability to reduce the number of witnesses that may be called, limit the time by which certain steps are to be conducted and limit the scope of discovery. This has been seen to substantially reduce the time it takes for a trial to be heard.


Effectiveness of Civil procedure:
problems and difficulties to T

failure to take the initial steps – Delays in civil cases are often caused by the individuals failing to take the initial steps to seek legal advice about a problem that has occurred. This may be because they are unaware of their legal rights and how to pursue them, or they are fearful about
the costs or outcome of the case.
• increased litigation – While there are still people who are unaware of their rights, there is a
general trend towards people being prepared to pursue their rights when these have been infringed. This has increased the number of civil cases being brought before the courts, thereby adding to delays.
• increase in volume and complexity of information – Improved technology has provided businesses and individuals with the ability to do far more in terms of gathering information and expanding business opportunities. It has also created a situation where there is likely to be more information to gather and sift through when a case comes to trial. This can result in delays in getting a case to court. If trials are taking more time, it might take longer to get a case listed for trial.
• delays in civil pre-trial procedures – The pre-trial procedures are long and complex, and cause delays in getting the matter to trial. Often these delays are caused by the parties, who may not understand the procedures and require adjournments of times by which proceedings are to be completed. Particular procedures, such as discovery, often take time as a result of a large volume of documents, thereby delaying the time it takes to get the matter heard.


Recent changes: happened after 2012



Strengths of Pleadings

-Provide parties with the opportunity to reach and out of court settlement
-to slow parties to determine the s & w of each others case- concede certain facts / issues
-to determine if it is worthwhile to proceed
-clear defence or no defence
-Provide the court with information-record of claims and defences
-Pleadings may result in some issues being conceded at trial - speed up trial process


Weaknesses of Pleadings

-often takes a long time to complete with a number of documents needing to be exchanged = increase delays in reaching a resolution.
-Significant cost involved if a lawyer is involved in the preparation of the documents as pleadings can be complex and difficult to understand


Strengths of Discovery

-Assist the parties to understand the s & w of each others case - supporting documents
-Avoids any surprises at trial
-Alleviates concerns that one party may be hiding documents
-Aids in an out of court settlement = full assessment of case - informed decision as to whether edition is suitable


Weaknesses of Discovery

-Significant costs ( in time & money) are involved - collating, reviewing, determining relevance, preparing on affidavit, ranging inspection & inspecting documents, etc. - Could take several months
-Complexity of the rules relating to discovery
-Withholding, of documents by one party = The other party may need to seek the intervention by the court


Strengths of Directions hearing

-Ensures timely resolution- timeline for completion
-Informs the judge & the court thats about the nature of the claim and the steps that need to be taken
-Encourages an out of court settlement by sending the parties to mediation
-Opportunity to communicate with the judge who will be hearing the case about issues such as non compliance or difficulties getting information from the other party


Weaknesses of Directions Hearing

-Stressful, inconvenient and difficult to understand - Requires the presence of the party and their lawyer - If unrepresented directions hearing can be daunting and confusing
-May be a waste of time if both parties have been ordered to a directions hearing and there are no issues to discuss
damages can only put them back into there original position if its economic loss


Affidavit documents will list

- All relevant documents there are, were, in possession of the party
-All documents that the party refuses to disclose because they are privileged ( Letters and correspondence between the arty and their solicitor