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LEGAL STUDIES UNIT 4 > CHAPTER 9- Civil Procedure > Flashcards

CHAPTER 9- Civil Procedure Flashcards

1
Q

❓❓❓define civil action

A

-disputes between two parties in which the rights of one party have been infringed by the other

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2
Q

❓❓❓what is the purpose of civil action?

A

-to restore the party whose rights have been infringed back to the position they were in before the action or omission occurred

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3
Q

❓❓❓name the three civil trial procedures

A
  • pleadings
  • discovery
  • directions hearings
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4
Q

❓❓❓define pleadings

A

-the stage where legal documents are filed with the court and exchanged between parties containing details of the claims made by the plaintiff, what the defendant will be relying on their defence, and each party’s response to issues raised by the other side

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5
Q

❓❓❓what are five purposes of pleadings

A
  • ensures each party is aware of the main issues of the case
  • compels each party to state the material facts of he case to ensure each party if aware of the other side’s version of events
  • gives the court a written record of the details of the case
  • speeds up resolution by encouraging agreement on as many issues as possible before trial, to save court time and money
  • assists party’s to reach an out of court settlement is the parties learn all the details about each other’s case
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6
Q

❓❓❓what are the five documents involved in pleadings?

A
  • writ
  • statement of claim
  • notice of appearance
  • statement of defence
  • counterclaim
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7
Q

❓❓❓what is a writ?

A

-a document sent to defendant by the plaintiff which signifies commencement of legal proceedings, and includes the action being taken against them, the mode of trial, and when and where it will take place

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8
Q

❓❓❓what is a statement of claim?

A

-a document sent to the defendant with the writ, and sets out the nature of the claim, the cause of the claim, and the remedy sought

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9
Q

❓❓❓what is a notice of appearance?

A

-a document informing the court and plaintiff that the defendant had received the writ and statement of claim, and wishes to defend the claims made in it. The defendant has 10 days to file the notice, or else the plaintiff has the right to obtain a judgement against the defendant

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10
Q

❓❓❓what is a statement of defence?

A

-a document lodged with the court by the defendant, where they set out a response to each of the allegations contained in the plaintiff’s statement of claims. The defendant has thirty days to lodge

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11
Q

❓❓❓what is a counterclaim?

A

-an optional document filed by the defendant that alleges the plaintiffs also committed a civil wring for which the defendant requires a remedy

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12
Q

❓❓❓what are four advantages to pleadings?

A
  • parties are encouraged to agree on as many issues as possible out of court. Any claim that the opposing party is willing to admit to doesn’t have to be proven at trial (saves time and money)
  • court is kept informed of the progress and details of the case. This better enables the trial judge to decided whether it is appropriate for mediation, and helps the court to schedule the trial
  • strict time limits are imposed on the filing of documents. This limits the ability of one party to drag the dispute out unfairly
  • the element of surprise is reduced, as both parties know exactly what version of the facts the other side is arguing, and what they think the opposing party did wrong. Allows parties to adequately prepare
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13
Q

❓❓❓what are three disadvantages to pleadings?

A
  • cooperation is limited, as parties are exchanging documents drafted by their lawyers rather than sitting down and working through their differences
  • every document filed with the court attracts a filing fee they must be paid, and will usually be drafted by a solicitor who is paid $60 an hour
  • even with time limits the documents take weeks or months to be completed. Further and better particulars, specifically, can be very detailed and time consuming
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14
Q

❓❓❓define discovery

A

-the stage where the facts and documents are disclosed, which forms the basis of the claims and defence

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15
Q

❓❓❓what are three purposes of discovery?

A
  • assists parties to prepare for the trial by allowing them to see the evidence that will be brought against them
  • encourages parties to agree on as many issues as possible and narrow these matters in dispute, by allowing them to see evidence they may not already have
  • provides the court with a record of all the evidence to be brought in the case, by requiring that affidavits (witness statements) be filed with the court
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16
Q

❓❓❓what are three stages in the discovery procedure?

A
  • interrogatories
  • discovery of documents
  • medical examination
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17
Q

❓❓❓explain interrogatories

A
  • asking questions, in writing, relating to the known facts of the case to obtain information from the other party that may be used as evidence
  • helps parties identify the key issues of key facts of the case that need to be contested
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18
Q

❓❓❓explain discovery of documents

A
  • either side may request the other party to disclose any relevant documents
  • all relevant documents to the case and those requested by the other party must be made available for inspection
  • some documents may be protected by privilege
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19
Q

❓❓❓explain medical examination

A
  • if claims involve bodily injury, the defendant may ask the plaintiff to submit to appropriate medical examination to determine the extent of their injuries
  • defendant may ask the plaintiff for hospital and medical reports to be produced to gain details of the injuries sustained by the plaintiff
20
Q

❓❓❓give four advantages of discovery

A
  • parties are encouraged to agree on as many issues as possible by being able to see the strength of the supporting evidence. Any facts that the opposing party is willing to admit to doesn’t have to be proved with evidence at trial
  • court is kept informed of the progress and details of the case. This better enables the trial judge to schedule the trial, as they can see how much evidence each side will be leading
  • strict rules of evidence apply so parties can’t use evidence that is tainted
  • element of surprise is reduced as both parties know exactly what evidence the other side will be leading. Parties can adequately prepare, and are encouraged to settle if the evidence against them is very strong
21
Q

❓❓❓give four disadvantages of discovery

A
  • interpretation of evidence often differs widely between parties and he same piece of evidence can be used by each or try differently, according to what the want to achieve with it. Discovery therefore doesn’t achieve significant agreement
  • every document filed with the court attracts a filing fee that must be paid, and will usually be drafted by a solicitor who is paid a lot
  • the rules regarding evidence and the drafting of court documents are very complicated. They are confusing for parties and require expensive lawyers to navigate
  • dopes covert is a big investment of time and money. The opposing party may request copies of everything, even evidence they already have, if they wish to ‘bleed’ the opposition of funds, and some parties may exhaust their financial resources in pre trial.
22
Q

❓❓❓explain directions hearings

A
  • they are conferences held before the trail judge or associate judge
  • gives direction for any steps the court believes will assist the matter to be resolved in the most effective, complete, prompt and economical way
  • this is the stage where parties might be sent to mediation or arbitration
23
Q

❓❓❓give five purposes of directions hearings

A
  • to identify the main issue and set a timeframe for future actions (eg. Steps that need to be taken before trial, like filing of certain documents)
  • allows for questions of law and fact that don’t require courtroom argument to be addressed so that time isn’t wasted at trail
  • encourages parties to make admissions to speed up proceedings at trail, because anything not in dispute will not have to be argued
  • speeds up the time it takes to take a matter to trial
  • allows parties to flag any potential issues with the availability of witnesses, so that the trail doesn’t need to be adjourned if they can’t attend
24
Q

❓❓❓give three examples of directions given

A
  • judge may refer the matter to mediation or arbitration
  • set a timetable outlining when pre trial procedures must be completed by
  • decide how long the trial should take (set a date for trial)
25
Q

☀️☀️☀️MEDIATION

A

The Supreme Court rules state that:

  • any time during the pre trial or trial proceedings, the court may order the matter to be referred to mediation
  • more often than not, a court WILL order that the parties attend mediation before trial to promote an out of court settlement
26
Q

❓❓❓give two advantages of directions hearings

A
  • parties are given multiple opportunities to settle pretrial, which will be cheaper and faster, and will reduce court backlog for other cases
  • parties supplying timelines means the court can ensure that rooms and personnel are free for the likely duration of the trial, and the judge can effectively schedule the trial in their calendar
27
Q

❓❓❓give three disadvantages of directions hearings

A
  • some procedures eg. Compulsory mediation may achieve nothing in terms of resolving the case, but simply adds to the time and expense of resolution
  • party timelines are estimates in,y, and may not accurately reflect the actual time that less predictable elements, such as cross examination, will take
  • multiple directions hearings and potential mediation all extend the time taken pre trial, which may also cause parties to exhaust their financial resources before trial starts
28
Q

❓❓❓what are the six main aims of civil pretrial procedures?

A
  • to inform both parties of the claims against them and to clarify the issues between them
  • to decide whether to proceed with proceedings
  • prepare for court and establish a case
  • allows parties to settle or discard some issues, therefore only relevant ones come to trial
  • reduces tim expert in court
  • ensure that parties are ready to proceed to trial OR reach an out of court settlement
29
Q

❓❓❓define civil remedy

A

-a remedy is what is awarded to a successful plaintiff at the conclusion of a civil trial

30
Q

❓❓❓what is the purpose of civil remedies?

A
  • to restore the injured party (plaintiff) to the position they were in before the harm occurred
  • can be efficient if it’s a loss of income or money lost due to medical expenses because a person can be compensated exactly. However, if it involves bodily injury or emotional damage or pain and suffering, then remedies are not so effective
31
Q

❓❓❓what are the two types of civil remedies

A
  • damages

- injunctions

32
Q

❓❓❓what are the four types of damages?

A
  • compensatory damages
  • exemplary (punitive) damages
  • nominal damages
  • contemptuous damages
33
Q

❓❓❓explain and give the purpose of compensatory damages (civil remedies - damages)

A

PURPOSE
-to restore the plaintiff to their original position

SPECIFIC DAMAGES

  • aims to compensate for quantifiable loss that can be calculated to the precise monetary value
  • eg. Medical bills, income lost

GENERAL DAMAGES

  • aims to compensate for loss that can’t be calculated exactly, and is therefore a general estimate of loss
  • eg. For pain and suffering, loss of enjoyment

AGGRAVATED DAMAGES
-awarded for humiliation, insult, or embarrassment suffered

34
Q

❓❓❓explain and give the purpose of exemplary (punitive damages (civil remedies - damages)

A

PURPOSE
-to punish or deter the defendant

  • seeks to make an example of the defendant and punish them. This may deter others from behaving in the same way, or deter the defendant from doing the wrong again.
  • used when he defendant acted maliciously or recklessly, was cruel, or acted in a scornful disregard of the plaintiff’s rights
35
Q

❓❓❓❓❓❓explain and give the purpose of nominal damages (civil remedies - damages)

A

PURPOSE
-to make a legal point

  • this is where the plaintiff seeks a small amount of money to make a point about being legally in the right
  • eg. Andrew Bolt sued for vilification. He wrote articles where he accused people of claiming their indigenous heritage only for benefits. They sued him, seeking only to have it on the record that Bolt was wrong
36
Q

❓❓❓❓❓❓explain and give the purpose of contemptuous damages (civil remedies - damages)

A

PURPOSE
-to show contempt for the plaintiff’s claim, so only a small (nominal) amount of damages is awarded

  • awarded by the court when the plaintiff may be legally right but not morally defensible
  • plaintiff would be seeking compensatory damages but the judge awards the, contemptuous damages
37
Q

❓❓❓define and give the purpose of injunctions

A

-injunctions are a court order

PURPOSE
-to rectify a situation caused by the person who was found to be in the wrong

-a plaintiff takes the matter to court to get the court’s assistance in forcing the defendant to stop causing harm, or to do something to rectify the harm caused

38
Q

❓❓❓distinguish between interlocutory injunctions and perpetual injunctions

A

INTERLOCUTORY

  • temporary injunction when the issue is urgent and can’t wait until a trial commences
  • In force until the trial concludes

PERPETUAL

  • permanent awarded at the end of trial of the plaintiff is successful
  • remains in force indefinitely, or until revoked or altered by a later court
39
Q

❓❓❓distinguish between restrictive injunctions and mandatory injunctions

A

RESTRICTIVE

  • orders a person to REFRAIN from doing something
  • eg. Must stay away from someone for a period of time

MANDATORY-orders a person TO DO something
-eg. Rehire someone or fulfil a contract

40
Q

❓❓❓explain how pleadings contribute to a fair and unbiased hearing (effectiveness of pretrial procedures)

A
  • enables parties to become aware of the claims, defences and counterclaims that will be made at trial (allowing for natural justice and procedural fairness)
  • e shred parties are prepared for the case, and that the trial proceeds on the basis that the parties have made all the possible claims they can in their pleadings
41
Q

❓❓❓explain how pleadings hinder a fair and unbiased hearing (effectiveness of pretrial procedures)

A

-very complex, a party without legal representation may be at disadvantage, because this stage generally requires the expertise and knowledge of a solicitor

42
Q

❓❓❓explain how discovery contributed to effective access to the legal system (effectiveness of pretrial procedures)

A
  • having access to this pretrial procedure may assist parties in resolving their case p, as they have access to all legal documents relevant to the case
  • discovery helps to find relevant documents from the other side and also gives parties the ability to order interrogatories to help assist them with their claim
  • these may result in an early out of court settlement or help define the issues in dispute
43
Q

❓❓❓explain how pretrial procedures hinder effective access to the legal system (effectiveness of pretrial procedures)

A

HIGH COST

  • courts are expensive and lawyers are often a necessary element of achieving a fair outcome, but utilising their skills can be expensive
  • the 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
44
Q

❓❓❓explain how directions hearings contribute to a timely resolution of disputes (effectiveness of pretrial procedures)

A
  • speeds up process of getting s matter to trial and to make the trial shorter by clarifying issues before the trial, so they don’t need to be contested in trial
  • can lead to out of court settlement
  • some aspects van be settled during directions hearings, and aspects of the plaintiff’s case may be admitted before attending court
45
Q

❓❓❓explain how pretrial procedures hinder timely resolution of dispute (effectiveness of pretrial procedures)

A
  • pretrial procedures are long and complex
  • delays sometimes are caused by the parties, who may not understand the procedures and need adjournment of times by which proceedings are to be completed
  • some procedures eg. Discovery, often take time as a result of a large volume of documents

LEGAL STUDIES UNIT 4 (3 decks)

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