Chapter 9: Civil Procedure Sac Study

Question 1

What are 3 purposes of Supreme Court pre-trial procedures?

Answer 1

• To clarify the issues in dispute
• Parties find out the strengths and weaknesses of each others case
• may lead to out-of-court settlement if one of the parties determines its not worthwhile pursuing the case

Question 2

What are 3 purposes of pleadings?

Answer 2

• Inform defendant an action is being taken against him or her
• inform defendant where the trial will take place and mode of trial
• to assist in reaching an out-of-court settlement where appropriate

Question 3

What is the purpose of a writ? (3) (pleadings)

Answer 3

• inform defendant that an action is being taken against him/her
• inform the defendant where the trial will take place and the mode of trial (judge or judge and jury)
• usually has a statement of claim attached

Question 4

what is the purpose of a notice of appearance? (pleadings)

Answer 4

• to inform the court and plaintiff that the defendant wishes to defend the claim

Question 5

what is the purpose of a defence? (pleadings)

Answer 5

• to inform court and plaintiff the reasons why the defendant is defending the claim (sets out response to each of the allegations contacted in plaintiffs statement of claim)

Question 6

what are the 3 purposes of directions hearings?

Answer 6

• set a timetable for future steps in pre-trial proceedings so matter can progress towards trial
• hear applications made by parties before going to trial
• allocate a date for trial

Question 7

what are 3 purposes of discovery?

Answer 7

• require both sides to disclose relevant material to the other side
• encourage out-of-court settlement where appropriate
• reduce the element of surprise at trial and avoid ‘trial by ambush’

Question 8

what are the 4 main stages of the discovery process?

Answer 8

• discovery of documents (optional)
• interrogatories (optional)
• discovery by oral examination
• medical examination

Question 9

What are 2 strengths of pleadings?

Answer 9

• provides parties w/ various opportunities for out-of-court settlement
• allow parties to determine s&w of each others case (helps them decide if they should concede certain facts or issues)

Question 10

what are 2 weaknesses of pleadings?

Answer 10

• long and complex (several documents need to be exchanged)

- cost can be significant (particular if lawyer is used to prepare pleadings documents)

Question 11

what are 2 strengths of directions hearings?

Answer 11

• ensure timely res. by ensuring parties are completing pre-trial procedures in efficient manner
• judge may order parties attend mediation, encouraging out of court settlement

Question 12

What are 2 weaknesses of directions hearings?

Answer 12

• can be difficult to understand particularly for self-represented parties
• may be waste of time if court has ordered parties to attend but no issues to discuss

Question 13

What are 2 strengths of discovery?

Answer 13

• assist parties in understanding s&w of their case and other parties case (discovering documents that support or adverse their case)
• avoids trial by surprise by ensuring parties have access to the relevant documents

Question 14

what are 2 weaknesses of discovery?

Answer 14

• may take long time to complete (especially if large number of documents)
• significant costs involved in discovery (particularly when number of documents is large)

Question 15

what are the different types of criminal and civil pre-trial procedures?

Answer 15

criminal - bail, remand, committal hearings

civil - pleadings, discovery, directions hearings

Question 16

What are 3 similarities between criminal and civil pre-trial procedures?

Answer 16

• both attempt to make the trial fair by ensuring parties have access to the same info and documents
• both provide the court with info about the case before it begins
• both might result in some issues being conceded or some charges being withdrawn before trial

Question 17

what are 3 differences between criminal and civil pre-trial procedures?

Answer 17

• criminal to provide opprotunity for accused to be released pending trial, civil to encourage out of court settlement
• Criminal to determine if accused wishes to plead guilty or not guitly, civil to provide the court with info about the case before it begins
• criminal accused may not be able to inspect documents and attend directions hearings if remanded in custody, civil this won’t be an issue

Question 18

what is the purpose of all civil remedies?

Answer 18

to restore the plaintiff to the position he or she was in before the harm occurred

Question 19

what is the purpose of injunctions? (civil remedy) 3

Answer 19

• to rectify a situation caused by the person found in the wrong or prevent infringement of rights in first place
• to refrain someone from doing something (restrictive)
• to order someone to do something (mandatory)

Question 20

what are 2 processes that contribute to timely resolution of disputes?

Answer 20

discovery - provide both sides with opportunity to find out details of case against them. could encourage discussion b/w parties that could lead to out-of-court settlement

directions hearings - If some issues are settled in directions hearings, trial becomes shorter as these issued do not need to be settled at trial. The judge can also impose time limits

Question 21

what are 2 processes that hinder timely resolution of disputes?

Answer 21

discovery - may take significant amount of time to compete (especially when large number of documents)

directions hearings - may waste courts time if ordered parties to attend but there are no issues to discuss

Question 22

what is one recent change for timely resolution of disputes?

Answer 22

limiting discovery – In the Sup Courts 2011 ‘Green Book’, a statement setting out the requirements of the court, parties are encouraged to agree on limiting discovery to only documents critical to the resolution of the dispute, thus avoiding the time it would take to discover hundreds of documents that are not relevant

Question 23

what is one reform that could happen for timely resolution of disputes?

Answer 23

greater use of mediation in pre-trial procedures - although already used extensively, can be further used to resolve civil actions faster with little expense. Successful at reducing backlog and helps achieve outcomes in less confrontational manner

Question 24

what are 2 processes that contribute to effective access to the LS?

Answer 24

court system - courts established to enforce civil rights. Each court has specific jurisdiction that deals with cases in its expertise, ensures parties have suitable and appropriate courts to deal with their disputes

pre-trial procedures - party will have access to pre-trial procedures that may assist them in resolving their case. This may result in out-of-court settlement or help define issues

Question 25

what are 2 processes that hinder effective access to the LS?

Answer 25

delays - extensive in civil disputes due to backlog of cases and extensive pre-trial procedures. Often deters people from pursuing civil proceedings and hinders access to this mechanism

complexity of procedures, including pre-trial procedures - often difficult to understand, usually requires assistance of legal rep. Unrepresented litigants find it difficult to use court system to solve disputes

Question 26

what is one recent change that has happened for effective access to the LS?

Answer 26

restructure of VCAT in 2013 - restructured its lists to reduce them from 16 to 11. makes it easier for the community to navigate the jurisdictions of the tribunal

Question 27

what is one reform that could happen for effective access to the LS

Answer 27

reducing the risk of adverse costs orders - rules of the court allow the court to make adverse costs order against unsuccessful party. This is often seen as a barrier for a party to pursue their claim

Question 28

what are 2 processes that contribute to entitlement to a fair and unbiased hearing?

Answer 28

pleadings stage - Ensures parties are prepared for their case and proceeds after all possible claims have been made, ensuring equal footing

discovery process - Parties become aware of each parties evidence during discovery stage, which reduces element of surprise and means parties are on equal footing

Question 29

what are 2 processes that hinder entitlement to a fair and unbiased hearing?

Answer 29

pleadings stage - so complex they disadvantage a party that doesn’t have legal rep. Unrepresented litigant may not understand what pleadings are, so parties don’t being on same footing

discovery process - can be long and complex and requires legal rep. can disadvantage those who rep themselves

Question 30

what is one recent change that has happened with entitlement to a fair and unbiased hearing?

Answer 30

civil procedure act 2010 - makes changes to civil proceedings conducted in VIC. Includes imposing obligations on parties to act honestly and cooperate, ensuring fair and unbiased

Question 31

what is one recommendation for change for entitlement to a fair and unbiased hearing?

Answer 31

greater funding for legal aid - could improve flexibility in being eligible for legal aid, thus ensuring more people are entitled to a fair and unbiased hearing as they are properly represented

Question 32

What is included in the pleadings stage? 4

Answer 32

writ
statement of claim
notice of appearance
statement of defence

Question 33

What are 3 optional documents included in the pleadings stage?

Answer 33

• Counterclaim
• Further and better particulars
• Reply

Question 34

What is the purpose of a statement of claim? 3 (pleadings)

Answer 34

to explain the nature of the claim, cause of the claim and remedy sought