Supreme Civil pre - trial procedures

Question 1

Pleadings

Answer 1

commence with the statement of claim, contain details of the claim made by the plaintiff against defendant and matters being raised by way of defence by defendant

Question 2

Pleadings purpose’s

Answer 2

• to require parties to state the main claims and defences of their case
• compel each party to state material facts and particulars on which they are relying and form the basis of claims and defences
• give court a written record of the case
• set limits to dispute
• assist in reaching an out of court settlement where appropriate

Question 3

Statement Of Claim

Answer 3

usually attached to writ/ originating motion.
Explains the nature of the claim, cause and remedy/relief sought.
Different to writ as it informs defendant about what the claim is about.
Also normally provides facts about the claim.
e.g date of alleged wrong and remedy being sought

Question 4

Writ/ Originating motion

Answer 4

document which explains to the defendant that an action is being taken against them.
- most common in supreme court
Informs defendant of where trial will take place & mode of trial (in which court) usually has statement of claim
- before served on defendant, plaintiff/ there legal rep files several copies of writ with courts registry along with filing fee set by court
- Plaintiff must then serve an original copy of writ and statement of claim. plaintiff has one year from day of writ being filed to serve it on defendant.

Question 5

Letter of demand

Answer 5

informs defendant of the nature of the claim and outlines the remedy being sought.
Often demands that defendant comply with wishes of plaintiff with a certain time limit..
often states that plaintiff will issue legal proceedings if defendant fails to comply

Question 6

notice of appearance

Answer 6

after defendant receives writ/summons
if defendant wishes to defend the action, to inform court and plaintiff that the defendant wishes to defend the claim. Time limit in which a notice of appearance must be filed and served depends on where writ was served on defendant in vic, then D has 10 days from date of being served to file and serve the notice

Question 7

Statement of Defence

Answer 7

purpose = to inform court and plaintiff of reasons why defendant is defending claim
After notice of appearance they must prepare defence to claim, can be done personally/ through their solicitors.
sets out a response to each of the allegations contained in plaintiffs statement of claim.
defendant normally either admits/ denies allegations

Question 8

Counter Claim

Answer 8

Defendant may take a claim in return against plaintiff

• usually heard at same time as original claim
• often attached to end of a defence, if made, plaintiff will need to file defence, defending allegations made.

Question 9

example of counter claim

Answer 9

plaintiff says defendant owes $200,00 for services performed but not paid for, defendant may claim plaintiff didnt perform good quality services and may seek an order that p complete those services to appropriate standard.

Question 10

further and better particulars

Answer 10

if parties dont issue anymore pleadinfs without a court order,

• party may demand particulars/ further and better particulars of the other parties claim.
• if particulars are not received, aggrieved party can have a ‘summons in chambers’ issued, and the court may order the defaulting party to comply

Question 11

Directions Hearings

Answer 11

• give directions in proceedings to ensure effective, complete, prompt and economical determination of case
• set timetable for future step in pretrial proceedings so matter can progress towards trial
• hear applications made by parties before trial
• hear applications for extension of time to complete particular steps
• determine whether use of technology would be appropriate
• determine whether it would be appropriate for parties to be reffered to mediation or other dispute resolution
• allocate date of trial

Question 12

Discovery Process

Answer 12

procedure allows the parties to get further info on matters that may remain unclear. pleadings stage is to gain info about the claim, where as the discovery stage is to discover details about the facts of the case.

Question 13

purpose of discovery

Answer 13

• require parties to dispute relevant materials and docs to other side, -
  reduce element of surprise at trial,
  -ensure all parties have copies of relevant docs, -
  allows each party to determine strength of other case,
  -ensure parties and court all have relevant material and docs,
• give an opportunity to defendant to have plaintiff medically examined.
• assist in reaching out of court settlement

Question 14

Interrogatories

Answer 14

searching q’s relating to the known facts of the case, on other parties requiring any info that might be useful for in evidence.
saves court time and expense by dealing with matters before going to court and by reducing element of surprise.
useful to refer to answers given in interrogatories during trial.
witness who gives a different answer to a q

Question 15

compensatory damages

Answer 15

most common from

Question 16

damages

Answer 16

sum of money granted to plaintiff and against defendant, in satisfaction of a claim made by the plaintiff.
different types of damages can be sought
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