Supreme Court civil pre-trial procedures: an overview VCE Legal Studies Unit 4 Area of study 2 In Area of Study 2 of VCE Legal Studies Unit 4, students are required to examine Supreme Court civil pre-trial procedures (including pleadings, discovery and directions hearings) and the purpose of these procedures, and the extent to which they contribute to an effective legal system. This PowerPoint presentation has been prepared for teachers to provide Unit 4 students with an overview of civil pre-trial procedures in the Supreme Court . By Jules Aldous, Shelford Girls’ Grammar

Chapter I Supreme Court (General Civil Procedure) Rules 2005 Chapter II Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 http://www.supremecourt.vic.gov.au/home/practice+and+procedure/supreme+court+rules/ The Supreme Court Rules: – set out the practice and procedures of the Supreme Court – are written by Supreme Court judges – are a guide to proceedings before the Supreme Court

Writ 4.04 When writ required Except as provided by Rules 1.12, 4.05 and 4.06 and Order 58, every proceeding shall be commenced by writ. 4.05 When originating motion required A proceeding shall be commenced by originating motion— where there is no defendant to the proceeding; where by or under any Act an application is authorised to be made to the Court; or where required by these Rules. 4.06 Optional commencement by originating motion A proceeding may be commenced by originating motion where— it is unlikely that there will be any substantial dispute of fact; and for that reason it is appropriate that there be no pleadings or discovery.

PLEADINGS Statement of claim (may be endorsed on writ) Defence Reply Counterclaim

THE WRIT Informs the defendant that an action is being taken against them Where the trial will be held The mode of trial— judge or judge and jury Can include either a general statement as to the nature of the claim and the remedy sought or a statement of claim is attached Extract from Chapter I: Supreme Court (General Civil Procedure) Rules 2005, p. 571

Endorsement of claim on writ A writ shall contain an endorsement of claim. The endorsement of claim shall be a statement of claim; or a statement sufficient to give with reasonable particularity notice of the nature of the claim and the cause thereof and of the relief or remedy sought in the proceeding. (3) An endorsement of claim on a writ shall constitute a statement of claim if, but only if, it is headed ‘Statement of Claim’. Extract from Chapter I: Supreme Court (General Civil Procedure) Rules 2005, 5.04 and p. 553

NOTICE OF APPEARANCE Informs the court and the plaintiff that the defendant intends to defend the claim If the defendant fails to file a notice of appearance within a specified time a default judgment can be made Extract from Chapter I: Supreme Court (General Civil Procedure) Rules 2005, p. 548

(a) where the endorsement of a claim on a writ constitutes a statement of claim in accordance with Rule 5.04, within 30 days after filing the appearance; (b) where the plaintiff serves a statement of claim, within 30 days after service of the statement of claim; or (c) within such time as the Court directs. DEFENCE 14.04 Service of defence In a proceeding commenced by writ, a defendant who files an appearance shall serve a defence

10.02 When counterclaim allowed (1) A defendant who has a claim against the plaintiff may counterclaim in the proceeding. (2) Rule 9.01 applies to a counterclaim as if the plaintiff were the defendant and the defendant were the plaintiff. (3) A defendant who counterclaims shall plead the defendant's defence and the counterclaim in one document called a defence and counterclaim. COUNTERCLAIM A defendant may make a claim against the plaintiff This claim will usually be heard at the same time as the original claim

14.05 Reply Where the plaintiff is required to serve a reply, it shall be served within 30 days after service of the defence, unless the Court otherwise orders. 14.06 Pleading after reply No pleading subsequent to reply shall be served without an order of the Court. 14.07 Defence to counterclaim Where the defendant sets up a counterclaim in the defence, the plaintiff or any person joined as defendant to the counterclaim who is already a party to the proceeding shall serve a reply and defence to counterclaim or a defence to counterclaim within 30 days after service of the defence and counterclaim, unless the Court otherwise orders. REPLY This is optional—to clarify facts or issues

FURTHER AND BETTER PARTICULARS 13.11 Order for particulars (1) The Court may order a party to serve on any other party particulars or further and better particulars of any fact or matter stated in the party's pleading or in an affidavit filed on that party's behalf ordered to stand as a pleading. (2) The Court shall not make an order under paragraph (1) before service of the defence unless the order is necessary or desirable— (a) to enable the defendant to plead; or (b) for some other special reason. (3) The Court may refuse to make an order under paragraph (1) if the party applying for the order did not first apply by letter for the particulars the party requires. FURTHER AND BETTER PARTICULARS This is optional A request for more details in relation to the statement of claim

Discovery of documents Interrogatories Discovery by oral examination Medical reports Disclose information so the parties are fully informed about the claim All parties have copies of relevant documents Assess the strength of the case Promote an out-of- court settlement

DISCOVERY OF DOCUMENTS Can be requested by either side Parties can be ordered to make discovery at the first directions hearing Allows parties to assess the strength of a case Extract from Chapter I: Supreme Court (General Civil Procedure) Rules 2005, p. 565

QUESTIONS RELATING TO THE FACTS OF THE CASE Interrogatories Oral examination Medical reports

Order 34 DIRECTIONS 34.01 Powers of Court (1) At any stage of a proceeding the Court may give any direction for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination. DIRECTIONS May be before a judge or associate judge May refer the parties to mediation Set a timeline for the completion of pre- trial stages

DIRECTIONS HEARING Some of the purposes of a directions hearing: set a timetable for the parties to complete future pre-trial procedures such as discovery, attendance at mediation or serving interrogatories allocate a date for trial set a time for when the parties are to attend mediation establish orders to be made in the proceeding hear any applications made by the parties prior to the trial of the proceeding.

WHAT DOES THE STUDY DESIGN SAY WHAT DOES THE STUDY DESIGN SAY? VCE Legal Studies Unit 4, Area of Study 2 Key knowledge Key skills Supreme Court civil pre-trial procedures, including pleadings, discovery and directions hearings and the purposes of these procedures Define key legal terminology and use it appropriately Describe the pre-trial procedures for the resolution of criminal cases and civil disputes and compare their relative purposes Evaluate the extent to which court processes and procedures contribute to an effective legal system