Civil Pre-Trial Procedure

Question 1

Civl action

Answer 1

A civil action arises because of a conflict between two individuals, groups, corporations or government bodies. The action is brought by the party whose rights have been infringed (the plaintiff) against the party who is alleged to have infringed the rights of the plaintiff (the defendant).

Question 2

Aim of a civil action

Answer 2

The aim of a civil action is to attempt 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.

Question 3

Standard and burden of proof in a civil case

Answer 3

When a plaintiff decides to sue the defendant, it is the plaintiff who has to prove that the defendant was in the wrong (the burden of proof). The court must decide which version of the facts is most probably correct; that is, the standard of proof is on the balance of probabilities.

Question 4

Parties in a civil case

Answer 4

The party whose rights have been infringed and who brings a civil action is the plaintiff. Commencing a civil proceeding is known as suing. The party who is alleged to have infringed the rights is the defendant. There can be multiple parties. E.g.if two people both own a property that has been damaged, they can both be plaintiffs. If two people have damaged the property, they can both be defendants.

Question 5

Differences between criminal and civil cases

Answer 5

Civil disputes are distinct from criminal cases in many ways. One of the main differences is the desired consequence of each case. In a civil dispute the plaintiff normally seeks a remedy, such as damages. In a criminal case, the prosecutor normally seeks to punish the offender on behalf of the state.

Question 6

Overlap between criminal and civil

Answer 6

In some instances, one action can give rise to both a criminal and a civil action. For example, if a person has been sexually assaulted, the police are likely to charge the accused and the person who was assaulted may then also decide to sue the wrongdoer.
The two cases will be heard separately and possibly in different courts. The outcome of one does not affect the outcome of the other.

Question 7

Differing outcomes between civil and criminal

Answer 7

Accused can be found not guilty in a criminal case, but found liable in a civil case relating to the same wrong. Can be because the standard of proof in a criminal case is higher than in a civil case. The jury/magistrate may not have found beyond reasonable doubt that the accused was guilty and in civil case judge/jury may form the view that, on the balance of probabilities, the plaintiff has been wronged.

Question 8

Court action is expensive and time consuming so before any action is started the plaintiff must consider

Answer 8

• the time and inconvenience involved in taking the claim through the courts TIME
• the costs involved COSTS
• the likelihood of success SUCCESS
• whether the party against whom the claim is made would be able to pay the compensation claimed. If this is unlikely, there is often little point in proceeding ABILITY
• the effects of publicity. PUBLICITY
• the continuing relationship between the two parties and the effect a court case may have on this RELATIONSHIP
• whether there is enough evidence to establish the claim (including whether there are witnesses or key documents which help prove the claim) EVIDENCE

Question 9

Letter of demand

Answer 9

Before the formal court pre-trial procedures commence, the plaintiff/representative may send a letter of demand to the defendant. It informs the defendant of the nature of the claim, and outlines the remedy sought. It demands that the defendant comply with the plaintiffs wishes within a certain time limit. It often 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.

Question 10

3 types of pre trial procedures

Answer 10

Pleadings
Directions hearings
Discovery

Question 11

Pleadings

Answer 11

This involves the exchange of legal documents between the plaintiff and the defendant. This is called the ‘pleadings’. The pleadings inform the defendant of the pending legal action and points out the nature of the claim and remedy being sought. The defendant then has the opportunity to deny or admit to the claims. The pleadings allow both the plaintiff and defendant to develop their cases.

Question 12

What is a writ

Answer 12

A writ is the most common method of commencing a proceeding in the Supreme Court. It is a document which explains to the defendant that an action is being taken against him or her. It informs the defendant of where the trial will take place and the mode of trial. It usually has a statement of claim attached.

Question 13

Whom is the writ issued by

Answer 13

Before a writ is served on the defendant, the plaintiff or 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 and statement of claim on the defendant. The plaintiff has one year from the day of the writ being filed to serve it on the defendant.

Question 14

Statement of claim

Answer 14

In most situations, the statement of claim is attached to the writ. It explains the nature of the claim, the cause of the claim and the remedy or relief sought. It will also normally provide facts about the claim, such as the date of when the alleged wrong occurred and the remedy being sought.

Question 15

Notice of appearance

Answer 15

If the defendant wishes to defend the action, the first document they must file and serve is a notice of appearance. Its purpose is to inform the court and the plaintiff that the defendant wishes to defend the claim.

Question 16

Defence

Answer 16

After the defendant has filed and served a notice of appearance, he or she must prepare a defence to the claim. This can be done personally, or through solicitors. A defence sets out a response to each of the allegations contained in the plaintiff’s statement of claim. The defendant normally either admits or denies the allegations.

Question 17

Counterclaim

Answer 17

The defendant may also make a claim against the plaintiff. This is called a counterclaim. It is usually heard at the same time as the original claim. It is often attached to the end of a defence. It is an optional step in the pleadings process. If a counterclaim is made, the plaintiff (also known as the ‘defendant by counterclaim’) will need to file a defence, defending the allegations made.

Question 18

Reply

Answer 18

This is an optional step in the pleadings process. The plaintiff may file and serve a reply to the defence. This may be to clarify a particular fact or to agree with the defendant on a particular issue. The defendant can also file a reply to a defence to counterclaim, if the defendant has made a counterclaim and the plaintiff has filed a defence to it.

Question 19

Further and better particulars

Answer 19

Each party can ask for further and better particulars. A party may demand particulars or further and better particulars of the other parties claim. If the particulars are not received, the aggrieved party can have a ‘summons’ in chamber issued, and the court may order the defaulting party to comply.

Question 20

The documents in pleadings

Answer 20

• a writ or originating motion with a statement of claim
• a defence (and a counterclaim if filed)
• a reply to a defence (and a counterclaim if there is one)
• further and better particulars.

Question 21

Directions hearings

Answer 21

Normally a brief hearing before a judge or associate judge, and is a chance for the judge or associate judge to discuss with the parties the progress of the case and give ‘directions’ to the parties. The court may give any direction to assist in the determination of the case as quickly and effectively as possible. These directions often depend on what stage the case is at and the nature of the dispute.

Question 22

Examples of directions that could be made at directions hearings

Answer 22

The court could direct that the parties:
• file a particular pleading document or other document (such as an expert report) by a certain time PLEADINGS

• file a particular application (such as an application seeking the leave of the court to amend a pleadings document) or a subpoena on a third party to produce documents by a certain time APPLICATION
• disclose a particular class of documents by a certain date, particularly where there has been a dispute between the parties about the relevance of those documents DISCLOSE
• exchange written submissions EXCHANGE
• organise and attend mediation MEDIATION
• attend a further directions hearing before the matter is set down for trial, to determine that the parties are ready for trial FURTHER HEARING
• prepare for trial by preparing a ‘court book’ or file witness statements. COURT BOOK

Question 23

Discovery

Answer 23

Enables parties to gain further information on matters that remain unclear. The discovery stage is where facts and documents are disclosed which form the basis of the claims and defences. The main stage in discovery is called ‘discovery of documents’ and involves each party disclosing the existence of and exchanging, documents that are relevant to the issues in dispute.

Question 24

Interrogatories

Answer 24

Either side may serve interrogatories (searching questions relating to the known facts of the case) on the other party requiring any information that might be useful in evidence.

Question 25

Purpose of interrogatories

Answer 25

Saves court time and expense by dealing with matters before going to court and reducing the element of surprise. It can be useful to refer to answers given in the interrogatories during the trial. A witness who gives a different answer to a question already answered in the interrogatories can appear to be an unreliable witness.

Question 26

initiation of discovery of documents

Answer 26

Previously, it was common for one party to ask the other party to disclose any relevant documents by serving a notice for discovery on the other side. It is now common for the Court to order the parties to make discovery as the first directions hearing, rather than one party serving a notice for discovery. A party, once required to discover their documents, must then prepare an affidavit of documents.

Question 27

What will the affidavit of documents list

Answer 27

• all relevant documents that are, or were, in the possession of the party
• all documents the party refuses to disclose because they are privileged (for example, letters and
correspondence between the party and his or her solicitors).

Question 28

Meaning of term ‘documents’

Answer 28

The meaning of the term ‘documents’ is broad. It means written documents such as letters, emails, handwritten notes and contracts, as well as videotapes, audiotapes, discs, films or other recordings. If it is relevant to the issues in dispute, then it should be disclosed.

Question 29

Discovery by oral examination

Answer 29

As a result of the interrogatories, a party may request that the other party answer some questions. If consented to in writing by the court, these questions are put to the party as if the party were being examined-in-chief (questioned by their barrister).

Question 30

Medical examination and provision of hospital and medical records

Answer 30

If the plaintiff is claiming damages for bodily injury, the defendant may ask the plaintiff to submit to appropriate examination by a medical expert or experts at specified times and places. This situation may be reversed if a counterclaim has been made by the defendant.

Question 31

Mediation

Answer 31

The Supreme Court Rules state that, at 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. Mediation is when an independent third party assists the parties in an unbiased manner to reach a resolution without having to go to trial.

Question 32

offer of compromise

Answer 32

The defendant’s solicitor may make a payment into court in an attempt to settle the matter out of court. The court allows the defendant to pay into court a sum of money the court thinks is a reasonable offer of settlement. An offer of compromise may be served at any time before judgement or verdict.

Question 33

pre-trial conference

Answer 33

When a proceeding has been entered into a list for trial, the court or registrar may order the parties to attend a pre-trial conference. The purpose of this pre¬trial conference is to ensure the parties are ready for trial. An out-of-court settlement may be arranged at a pre-trial conference.

Question 34

Certificate of readiness for trial

Answer 34

The certificate of readiness for trial indicates that the parties are ready to proceed with the trial. All parties to the case must sign it. The certificate states the place at which the trial will be heard and includes an indication from each of the parties of the expected length of the trial.

Question 35

Summary of pre-trial procedures 9 points

Answer 35

• Action commenced by P

Pleadings
• P sends to D a Writ of Summons and has it entered on the court register
• D sends to P and the court a Notice of Appearance
• P sends to D a Statement of Claim
• D sends to P a Statement of Defence/Counter Claim

Discovery
• P to D or D to P may request Interrogatories
• P to D or D to P may request documented evidence — Discovery

• Pre-Trial Conference - try to reach out-of-court settlement
• P and D both sign the Certificate of Readiness for Trial

Question 36

Notice of appearance and time limit

Answer 36

The Supreme Court Rules specify a time limit in which a notice of appearance must be filed and served. If the defendant fails to adhere to the time limit, the plaintiff has the right to obtain a judgment against the defendant. This is called a ‘default judgment’, as it is obtained by reason of the defendant defaulting on his or her obligations to file a notice of appearance.

Question 37

Purpose of the defence

Answer 37

The purpose of the defence is to inform the court and the plaintiff of the reasons why the defendant is defending the claim. That is, it should explain why the defendant says that he or she (or they) is (are) not responsible or not liable, so that the plaintiff understands why the claim is being denied.

Question 38

Counterclaim example

Answer 38

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.

Question 39

How can the party be interrogated avoid answering interrogatories

Answer 39

The party being interrogated can avoid answering interrogatories that do not relate to any question between the parties, or are unclear, oppressive, require the expression of an opinion the person answering is not qualified to give, or require the disclosure of privileged information.

Question 40

What happens if the plaintiff thinks the offer of compromise is inefficient

Answer 40

A plaintiff who thinks the offer is insufficient can proceed to court. If the plaintiff proceeds to court and is successful, but the amount awarded by the court is less than the amount paid into court, then the court might not award costs against the defendant, or might award costs at a reduced rate.