Civil Procedure

Question 1

pre-trial procedures

Answer 1

both parties are informed about the details of legal action through the exchange of documents and to inform the defendant that legal action is being taken against them

Question 2

Pleadings

Answer 2

an exchange of documents between legal representatives setting out the nature of the claim, including the remedy being sought and the defence raised by the defendant

1. WRIT OR ORIGINATION MOTION; prepared by plaintiff’s solicitor and lodged with the Supreme Court, with another document given to the defendant. Informs the defendant of the case against them, the remedy being sought, and compels them to appear in court on a stated date and time. It also sets out a time limit within which the defendant is expected to reply to the plaintiff.
2. STATEMENT OF CLAIM; written by plaintiff’s solicitor, sent to the defendant. Explains specific details of the plaintiff’s claim, such as the alleged facts and remedy being sought – attached to the write
3. NOTICE OF APPEARANCE; informs the plaintiff and the court that the defendant intends to defend the claim
4. STATEMENT OF DEFENCE; defendant’s response to allegations and written by defendant’s solicitor, sent to plaintiff. Provides details of the defendant’s defence, including any allegations admitted or denied and their version of facts
5. COUNTERCLAIM; defendant may bring a separate action against the plaintiff, suing them for damage or injury – such matters are usually dealt with together

Question 3

Discovery

Answer 3

discovering and raising questions of fact where parties are required to disclose to the other all relevant documents and information so that they are fully informed of the case
• INTERROGATORIES; specific written questions concerning issues of fact that either party can serve on the other (parties must answer in written form within 60 days). Any evidence gathered can be used at trial to check the evidence of witnesses, saving time at trial
• DISCOVERY AND PRODUCTION OF DOCUMENTS; either party can request that the other party provides them access to any documents that they intend to use in the case, which they are able to copy. Including; written or printed documents, emails, photographs, videotape, audiotape, film or other recording

Question 4

Directions Hearing

Answer 4

held between the parties before a judge that allows the judge to identify the issues and give direction regarding how they should take action. it aims to reduce the time taken for the process before and during the trial, making it faster and more efficient.

Question 5

Civil remedies

Answer 5

the means by which a plaintiff’s civil rights are protected or corrected for injury caused by a defendant. PURPOSE: to restore the injured or wronged party to the original position they were in before harm was caused

Question 6

Damages

Answer 6

• Compensatory damages; damages that aim to compensate the plaintiff for the injury suffered to the extent that money is able to do so (can be either specific or general)
o Specific: readily identifiable costs for which a monetary value can be calculated, such as medical expenses, loss of income
o General: not so easy to calculate as they take into account the impact of the injury on the plaintiff’s past, present and future life, such as pain and suffering, loss of enjoyment of life, future loss of wages
• Aggravated damages; additional compensation received for the humiliation suffered by the plaintiff due to the defendant’s offensive or particularly nasty conduct
• Exemplary damages; where a large sum of money is awarded to the plaintiff to punish the defendant and make them an example of gross reckless, malicious or cruel behaviour
• Contemptuous damages; court awards a small sum of money to the plaintiff as recognition that although they have a legal right to damages, the court holds them in contempt for their actions and does not believe they have a moral right to damages
• Nominal damages; only small amounts of money are awarded to the plaintiff as they are more concerned with proving a legal point than recovering money

Question 7

Injunctions

Answer 7

a court order against the losing party in a civil case that prohibits them from performing a task (restrictive) or compels them to perform a specific task (mandatory)

Question 8

effective operation of civil procedures ETFUH

Answer 8

• Rules of evidence and procedure apply to both parties = ensures equal treatment
• Impartial and unbiased judge, magistrate and jury = fairness
• Complicated and extended stages necessitate use of legal rep. No legal rep = disadvantage
• Inconsistencies in the damages payouts

Question 9

effective operation of civil procedures EATLS

Answer 9

• Able to establish grounds for appeal
• Increased use of ADR within courts and VCAT has assisted parties to gain access to low-cost, quick and effective methods of dispute resolution
• may not realise that their rights have been infringed or they may not know where to go for assistance = reducing access to legal system
• High costs associated with civil claim and cost of legal rep may discourage potential plaintiffs from pursuing legal claims

Question 10

effective operation of civil procedures TROD

Answer 10

• An out-of-court settlement can occur, thereby reducing delays
• Pre-trial procedures help clarify issues, allow parties to prepare case
• Lengthy pre-trial procedures add to delays
• Increased workload of the courts due to increased litigation