CIVIL PRE TRIAL PROCEDURES AOS 2 Flashcards
Purposes and uses of a solicitor in terms of pre trial civil law
If you believe a civil wrong has been committed against you, and a resolution cannot be reached between you and the other party using alternative methods of dispute resolution, you can arrange an appointment with a solicitor to obtain legal advice. The solicitor will inform you of the likelihood of success if you pursue the matter through the courts, the costs of engaging the solicitor and pursuing the case, and the remedy that may be sought.
Letter of demand
The solicitor will normally send a letter of demand to the person you think has infringed your rights. The letter will request an early settlement of the matter. If a settlement cannot be reached at this stage you can take the matter further.
Describe the pre trial procedures in the magistrates court
Claims over $10000 commence with the plaintiff lodging a document known as a Complaint outlining the particulars of the claim. This document is served on the defendant, who must file a notice of defence and/or counterclaim. If the amount is over $10000, the parties will normally first attend a pre-hearing conference with a registrar to see if they can come to an agreement. If not, the case proceeds to a full hearing in the Magistrates’ Court. In most cases, if the amount is less than $10 000, the matter goes straight to arbitration.
Pre-trial proceedings in the County Court or the
Supreme Court: Pleadings
The pleadings contain details of the claims made and the defences raised. Pleadings are a series of documents that are formally served on the parties and filed with the court. The purpose of pleadings is to give the court a written record of the case and to inform the parties of the claims being made and the defences raised. The pleadings include:
Pre-trial proceedings in the County Court or the
Supreme Court: Certifications
The Civil Procedure Act requires the parties to file two certifications with the court at the time when they file the first pleadings document. These certifications are:
A proper basis certification
An overarching obligations certification
Pre-trial proceedings in the County Court or the
Supreme Court: Discoveries
The discovery stage allows the parties to find out further information on matters that remain unclear. This stage includes: Discovery of documents Interrogatories Discovery by oral examination Medical examinations
Pre-trial proceedings in the County Court or the
Supreme Court: directions hearings
Directions hearings are a pre-trial procedure during which the court may give any directions to the parties about the conduct of the civil proceeding. The court may require the parties to undertake further steps to enable the parties to get ready for trial. These are known as ‘directions’. For example, the court may order the parties to attend mediation by a certain date in an attempt to resolve the dispute. The court can also make orders (directions) that the defendant file and serve a list of documents (being documents that fall within a certain class) by a certain date, if there is a dispute between the parties about whether certain documents have been discovered.
More than one directions hearing may be held, particularly in long or complex cases. A directions hearing is held at the court where the plaintiff has issued his or her claim. It is presided over by a judge or, in some instances in the Supreme Court, by an associate judge.
At the directions hearings, the court may make a number of requests of the parties in order to reduce the likely duration of the trial and arrive at a decision as promptly as possible. For example, the court will encourage the parties to make admissions that will speed up the proceedings.
The directions hearings will take place at least 35 days after the defendant has filed a notice of appearance, during which time the pleadings should have been completed. Further directions hearings can be held if the court thinks fit.
Pre-trial proceedings in the County Court or the
Supreme Court: Notice of trial
A notice of trial is issued by the court when both sides have completed the pre-trial procedures. It states the time and place of the trial.
Pre-trial proceedings in the County Court or the
Supreme Court: offer of Compromise
An offer of compromise is a document sent by one party to the other in a proceeding, in which the party makes a settlement offer. Either party can make an offer of compromise, and it can be made at any time during the proceeding. If the other party does not accept the offer of compromise, and the party who has made the offer of compromise (the offeror) achieves an outcome in the proceeding that is more favourable than what was contained in the offer, then legal costs can be awarded on a higher basis by the court. This is because the party did not accept a better outcome under the offer and has caused both parties to incur legal costs in taking the matter to trial. An offer of compromise is therefore used as a weapon to obtain a better costs offer if the party is successful at trial.
Pre-trial proceedings in the County Court or the
Supreme Court
The rules that govern the procedures of the Supreme Court 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.
The majority of civil cases go straight to mediation after the directions hearing rather than going to trial. At any stage of a proceeding the court may, with or without the consent of any party, order that the proceeding be referred to a mediator. The mediator assists the parties to reach a settlement. The mediator can report the outcome of the mediation to the court. An agreement may be made at the mediation or later.
A writ or originating notice
This is prepared by the plaintiff and issued by the court. The writ explains the action that will be taken against the defendant. It provides basic details to the defendant including the mode of trial (judge or judge and jury), the place of trial, and how long the defendant has to file a notice of appearance (see below). It is usually attached to the statement of claim.
A statement of claim
This gives details of the claim made by the plaintiff, and is often attached to the writ. It is prepared by the plaintiff.
A notice of appearance
This is filed with the court and served on the plaintiff by the defendant, showing that he or she wishes to defend the case. The notice of appearance is a simple document and provides the plaintiff and the court with formal notification that the defendant will defend the case.
A defence and counterclaim
The defence gives details of the defence being put forward by the defendant to the plaintiff’s claims. A counterclaim is optional for the defendant, if he or she thinks they have a claim against the plaintiff.
A reply to defence and counterclaim
Used if the plaintiff wants to agree with the defendant on an issue. This is an optional step.
Further and better particulars
Either party may request further details of the other party’s claim; that is, the defendant may require ‘better particulars’ (more details) of the plaintiff’s case. For example, the plaintiff may have claimed that there is a contract between the plaintiff and the defendant. The defendant may ask for more details about that contract, such as when it was made, how it was made and what it contained. This is known as a request for further and better particulars.
A proper basis certification
to be signed by the party or, if represented, by their legal
representative certifying that the party has a proper basis for the claim (if the plaintiff), or a proper
basis for the defence (if the defendant)
An overarching obligations certification
to be signed personally by the party (or a
representative of the party if it is a company) certifying that they have read and understood the 10 overarching obligations imposed on the parties. Examples of the obligations are to act honestly, to cooperate with the other party and to disclose documents.
Discovery of documents
Either side is normally required to disclose any relevant documents
or a class of documents. Once a party has received details of the documents in the other party’s
possession or control, that party is able to inspect or receive a copy of those documents.
Interrogatories
These are a list of questions about the case, served by either party on the other.
Discovery by oral examination
One party may ask the court if they can put questions to the
other party before going to court.
Medical examinations
If necessary, either side may ask the other side to attend a medical
examination.
Purposes of civil pre trial
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Informing parties of the relevant information
Clarifying the issues
Time to prepare
Encourage out of court solution
Providing court with written record of issues and arguments that will be brought up
3 stages of county and supreme pre trial procedures
Pleadings
Certifications
Discoveries
