CIVIL PROCEDURE - pre trial

Report
Chapter 8
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A civil action relates to an act or omission that
infringes the rights of a person, group or
government instrumentality and seeks to return
the party whose rights have been infringed to
their original position before the harm occurred.
The aim of civil action is to restore the party
whose rights have been infringed back to the
position they were in before the act or omission
occurred.
 This can be done through a civil remedy such as
damages.
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Plaintiff – party bringing civil action/the party
whose rights have been infringed.
Defendant – the party who is alleged to have
carried out the wrong action eg negligence.
Standard of proof – Balance of Probability
(means which version of the facts is most
probably correct)
Burden of proof – lies with the plaintiff
Civil actions include:
 Negligence
 Breach of contract
 Trespass
 Defamation
 Nuisance
 Family law
 Inheritance
 trusts
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Children under 18 can sue another person
through a ‘next friend’
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Children can also be sued – extent of their
liability depends on child’s maturity and the
behaviour expected of a child at that age.
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When a person takes responsibility for the
actions of another person
Example: employer/employee relationship
If a person is negligent towards another
person during the course of their
employment.
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When a group of people can be included
together as the plaintiff in a claim against a
group or company – this is known as class action
or representative action
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One or more of the group with common
grievance bring an action, representing the
claim for each other member of the group.
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Slater and Gordon represented 1000 people in
1995 representative action – salmonella
poisoning from contaminated peanut butter
Aim
 To inform both parties of information relating
to the case
 Plaintiff informs the defendant about the
claim being made against them
 Defendant informs the plaintiff about their
defence
( This allows the parties to discover whether it is
worthwhile proceeding with the case)
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It might also lead to an out of court
settlement between the parties meaning
their do not need to go to court.
Cost, trauma and inconvenience of going to
court would be avoided.
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Contact the other party
Solicitor – gives legal advice to their clients
and prepare the documents necessary for a
matter to proceed. The solicitor will advise
the plaintiff of their legal right and their
chance of winning.
Barrister – briefed by solicitor – asked to act
on behalf of the solicitor’s client. Barrister
investigates the law and appear in court.
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Solicitor sends a letter of demand
Informs the other party of the nature of the
claim against them and suggests the
compensation or other remedy sought.
Sets time limit
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Contains the details of the claim made by the
plaintiff against the defendant and matters
being raised by way of defence by the
defendant.
Aim
 State the issues of their case
 Compel each party state material facts
 Gives the court a written record
 Saves the court time and expense
 Assists in out of court settlement
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Must be as brief as possible
Point of law can be raised
Should not contain evidence of fact claimed
Time limits
The writ or originating
motion with
endorsement of claim
Notice of apearance
(including couterclaim if
appropriate)
Statement of claim (if
not endorsed on the
writ or originating
motion)
Statement of defence
Reply
Further and better particulars
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Summarise pages 419 to 428
Questions 12 to 23
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Plaintiff will issue a writ against the
defendant
It explains that an action is being taken
against them
Informs about the place and mode of trial
(whether their is a jury)
Writ sent to court – copy sent to plaintiff and
defendant
Includes cause of action and remedy
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Usually indorsed on the writ
If not indorsed on the writ the Statement of
claim must be served within 30 days or receiving
the notice of appearance.
Gives details of the claim
An originating motion can be used when there is
little dispute over the facts
Filing of the writ – signifies commencement of
proceedings
 Valid for one year – can be extended if problem
serving
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This indicates the defendant will defend case
against them
The writ will give a specific time for the
defendant to enter an appearance
Time limit (not less then 10 days if the writ is
served in Vic – 21 days elsewhere in Australia)
If the defendant does not enter an
appearance within the time limit the plaintiff
can obtain judgement
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Gives information about the defence
Provides plaintiff with defendant’s version of
the facts
Shows which facts are admitted and which
facts are denied
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Plaintiff may issue a reply if they agree with
the defendant on an issue or confirm some
material facts.
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Each party may demand better particulars, or
further and better particulars of the other
party’s claim.
If not received ‘summons in chamber’
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DEFENDANT - Counterclaim
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Allows parties to get further information on
matters that might remain unclear.
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Pleadings – gain info about the claim
Discover – discover detail about the facts of
the case
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Interrogatories - 60 days – written responses to
questions. Saves time and expense in court reduces the
element of surprise – if not answer ‘notice of default’
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Notice of discovery – disclose all relevant documents –
affidavit of documents – can request copy (videotape,
audiotape, disc, film or other recording)
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Discovery by oral examination – consented in writing to
be put orally in court
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Medical examination and provision of hospital and
medical reports
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Notice of admission of facts
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Expert evidence
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Offer of compromise
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Directions hearings
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Certificate of readiness
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Pre- trial conference
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Mediation and arbitration

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