Supreme court pre-trial procedures

Knowledge/skill Key knowledge: Supreme Court civil pre-trial procedures, including pleadings, discovery and directions hearings, and the purposes of these procedures Key skill: describe the pre-trial procedures for the resolution of criminal cases and civil disputes, and compare their relative purposes

Introduction: civil law Deals with disputes between two or more individuals, groups or government bodies Often a person’s rights have been infringed, and that person brings a civil action against the person who has infringed their rights Aim = restore the party whose rights have been infringed back to the position they were in before the act or omission occurred – usually achieved through a sum of money  known as civil remedy and called damages or compensation

Parties in civil cases A party to a civil action must be a ‘legal entity’. A legal entity can be one of the following: an individual suing in their own name a corporation, otherwise known as a company, incorporated under the Corporations Act 2001 (Cth) — in Australia, a corporation is a separate legal entity and can sue and be sued a government body, such as the Victorian Government, a local council or a statutory authority such as the Victoria Police

Bringing a civil action Main reasons for bringing a civil action: Plaintiff wishes to be compensated for the wrong suffered A desire to stop the defendant from doing something. Eg. Trespassing Compel a party to do something, such as perform their obligations under a contract Some parties may wish to issue proceedings because they feel they would like to send a message to the defendant, or to society as a whole, about the protection of individuals’ rights.

How civil disputes can be resolved Courts and tribunals Negotiation Mediation Conciliation Collaborative law Arbitration

Purpose of pre-trial procedures they inform both parties of information relating to the case — the plaintiff finds out information relating to the defence & the defendant will find out information relating to the claim the parties determine whether it is worthwhile proceeding with their case the parties find out the strengths and weaknesses of each other’s case

Purpose of pre-trial procedures they might lead to an out-of-court settlement negotiated between the parties = the cost, stress and inconvenience of going to court is avoided they provide the court with information about the case before it begins  quicker trial they might result in some issues being conceded (let go) by the parties only issues in dispute are heard at trial

Main pre-trial procedures: letter of demand pleadings discovery directions hearings pre-trial conference. Listed specifically in your study design

Letter of demand Plaintiff (or their legal representation sends this) Informs the defendant of the nature of the claim and the remedy sought Usually: Demands the defendant comply with the wishes of the plaintiff within a certain time limit States that the plaintiff will issue legal proceedings if the defendant fails to comply If the defendant fails to comply with the demand, the plaintiff has the option of abandoning his or her claim, or proceeding with the civil action

Pleadings Series of documents exchanged between the parties Set out and clarify the claims and defences of the parties and help to define the issues that are being disputed Documents include:

Pleadings Purpose: require the parties to state the main claims and defences of their case compel each party to state the material facts and particulars on which they are relying give the court a written record of the case assist in reaching an out-of-court settlement where appropriate.

Writ Writ = main method of commencing a proceeding in the SC. What does it do? Explains to the defendant that an action is being taken against them Informs the defendant of where the trial will take place and the mode of trial (that is, in which court, eg. Melbourne, and if it’ll be heard by a judge alone or by a judge and jury).

Writ Usually has a statement of claim attached. If it doesn’t, it must have a general statement giving sufficient detail of the nature of the claim, the cause of the claim and the relief or remedy sought If writ only has a general statement, statement of claim must be filed within 30 days of the defendant filing a notice of appearance Statement of claim explains: Nature of the claim Cause of the claim Relief or remedy sought

Writ Before being served on the defendant, the plaintiff/their legal representative files several copies of the writ with the Court’s registry, along with the filing fee set by the court. The plaintiff must then serve an original copy of the writ on the defendant. The plaintiff has one year from the day of the writ being filed to serve it on the defendant. This time can be extended for a further year if plaintiff asks for extra time – one reason may be if the plaintiff has been unable to locate the defendant

Alternative to writ Originating motion This is a similar, but can only be used when there is little dispute over the facts, or where there is no defendant

Notice of appearance If the defendant wishes to defend the claim, they must file and serve a notice of appearance  this is the FIRST document they must file Purpose = to inform the court and the plaintiff that the defendant wishes to defend the claim. Supreme Court Rules have a time limit in which a notice of appearance must be filed and served Time depends on where the writ was served to the defendant  if in Victoria – defendant has 10 days from the date of being served to file and serve the notice

Notice of appearance If defendant fails to adhere to the time limit, plaintiff has the right to obtain a judgment against the defendant default judgement  obtained by reason of the defendant defaulting on his or her obligations (usually the initial remedy or relief sought by plaintiff)

Defence After filing a notice of appearance – defendant prepares a defence claim Can be done personally, or through solicitors Sets out a response to each of the allegations contained in the plaintiffs statement of claim Defendant will either admit or deny the allegations

Counterclaim (optional step) Defendant may also make a claim against the plaintiff For example, a plaintiff may be claiming that the defendant owes him $200 000 for services performed but not paid for. The defendant may claim that the plaintiff did not provide services that were of good quality and may seek an order that the plaintiff complete the services to the appropriate standard. This is usually heard at the same time as the original claim

Reply (optional step) Plaintiff might want to make a reply to the defence or the counterclaim This may be to clarify a particular fact or to agree with the defendant on a particular issue.

Further and better particulars (optional step) A party may file and serve a request for more details relating to opposing parties claims/defences For example: the plaintiff may claim in a general way in the statement of claim that there was a contract between the plaintiff and the defendant. The defendant may request further and better particulars of this ‘contract’, meaning they want details of when the contract was made and in what circumstances, whether it was in writing or oral, and any other details such as the terms of the contract. Court may also order a party to serve further and better particulars of its pleadings, separate to a party requesting it

Directions hearings P - prompt E- effective E- economical Held before a judge or an associate judge Court may give the party directions for the conduct of proceedings that they think will assist in a: P - prompt E- effective E- economical C - complete determination of the case Mostly directions hearings set a timetable for the future steps that parties must undertake before trial

Purposes of directions hearings Set a timetable for future steps in the pre-trial proceedings stage Hear any applications made by the parties before going to trial Determine whether it is appropriate for the parties to be referred to mediation Establish further orders in the proceedings to ensure a PEEC determination of the case Allocate a date for trial

Practice exam question 2012 Exam – 2 marks – 3 minutes

Discovery of documents Enables parties to gain further information on matters that remain unclear This stage is where the facts and documents which form the basis of claims and defences are disclosed Purposes Require parties to disclose all relevant material and documents to the other side Reduce the element of surprise at trial 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 Assist in reaching an out of court settlement where appropriate

Stages in discovery Discovery of documents Interrogatories Discovery by oral examination Medical examination Either side can ask the other side to disclose any relevant documents . It is common practice for the courts to order this at the first directions hearing “searching questions” relating to the known facts of the case Usually a deadline for having to respond to questions Useful to refer to these during trial Involves questioning of a party by a barrister Can occur as a result of interrogatories If plaintiff is claiming damages for bodily injury, defendant might ask plaintiff to have examination by medical experts at specified times and places

Comparison of criminal and civil pre-trial

Today’s exam question Question 5 from 2009 exam 5 marks ‘Pre-trial procedures are designed to speed up the resolution of civil disputes.’ Comment on this statement. In your answer describe one civil pre-trial procedure.

Today’s exam question + - Pleadings and discovery provide both sides with the opportunity to find out details of the case being brought against them These procedures are long and complex, meaning that delays can be caused by parties who may not understand the steps and adjournment times might be required. Exchange of information can lead to out of court settlement that satisfied both parties Voluminous amount of documents can result from the discovery process, which can cause delays. Due to improved technology, parties can gather more documents which means there is more info to gather and sift through prior to trial Procedures such as directions hearings help reduce the time spent in court due to clarifying issues prior to trial Some legal commentators have pointed to the long and protracted pre-trial procedures as adding to the time delay in resolving a dispute

Assessors report – general feedback Most students managed to gain some marks for their answer; however, the discrepancy in the allocation of marks depended on the amount of detail students provided. Some students did not provide sufficient detail to gain full marks. Some students incorrectly wrote about and discussed committal hearings and hand-up briefs, confusing these criminal pre-trial procedures with civil ones. Other students confused this with alternative dispute resolution and discussed conciliation and arbitration. Better answers gave examples of how pre-trial procedures speed up the resolution of civil disputes, as well as providing the negative view that often pre-trial procedures slow down the process, therefore causing delays. Other students took the approach of stating that not only do pre-trial procedures speed up the resolution, but they are also designed for other purposes such as gaining information about the other party’s case. This was also an acceptable approach.

Assessors report- comments to be made Allow parties to fully prepare and determine which issues they will defend/proceed with. Enhance the opportunity of settling out of court. Give each side some knowledge of the opposing case – parties may concede some issues and therefore this saves time. Allow issues to be clarified before going to court. Allow either side to discover whether it is worthwhile proceeding. Provide the court with information about the case before it begins. This allows the court to expedite some aspects of the trial. It is difficult to conduct civil proceedings without legal assistance. This makes the process expensive and can still be time-consuming. The complexity adds to the time it takes to prepare a case for court. This adds to the period of stress which litigants must endure.

Exemplary answer Pre-trial procedures are designed to speed up civil disputes to an extent. An example of a pre-trial procedure is a pre-trial conference. This is where both parties and the judge attend a conference where the facts and reasons for the dispute, and the remedies, are looked at. This may also encourage an out of court settlement. In one way pre-trial procedures such as the pre-trial conference speed up resolution of disputes as they ensure both parties are prepared for trial, as well as clarifying what the issues are in dispute before trial to ensure that the trial does not address issues that both parties agree on. It also ensures that the parties are given every opportunity to settle before going to trial, therefore speeding up the resolution. On the other hand, the procedures slow down the time it takes to reach a resolution, because many of the procedures are complex and requires the involvement of lawyers. This may therefore delay the time it takes to reach a settlement.