UNIT 4 - AOS2C Flashcards
considerations for plaintiff before commencing legal action
- likelihood of success (do they have assets)
- time + inconvenience involved
- costs involved
- ability to pay compensation
- whether there is enough evidence
- continuing relationship b/w parties + the effect of case
list three civil pre trial procedures
- pleadings
- discovery
- directions hearing
list what to talk about in pleadings
- writ
- statement of claim
- notice of appearance
- statement of defence
- counter claim
- further and better particles
letter of demand
- issued by Plaintiff
- informs defendant of nature of claim
- outlines remedy sought
- states defendant must comply or legal proceedings will take place
writ
- initiates proceeding in supreme court (usually from P’s solicitor)
- compels defendant to appear in court
- informs D of case against them
- informs court heard in + mode of trial
- names and addresses of parties
- title of claim
- endorsement = statement of claim
statement of claim
- document exchanged in pleadings, notifying D of cause of claim + relief sought
- precise details of claim
- full details of course of action
- facts alleged by plaintiff
- remedy sought
- compensation being claimed
notice of appearance
- if defendant wishes to defend claim
- informs court + P they wish to defend claim
- has 10 days to respond after receiving writ
statement of defence
- defendants version of acts
- any defence being claimed
- cand admit and deny to claims
- purpose is to inform court + P of why defending claim
- filed 30 days after receiving endorsement
counterclaim
- optional
- defendant can make claim against P
- claiming the P is responsible for action taken place
further + better particulus
when either party requires further info on opposing party’s case
pleadings - purpose
- allow for equality as both parties state claims
- compels parties to state material facts and basis of claim
- to assist in reaching out of court settlement where appropriate
discovery
allows parties to get further information on matters remaining unclear
uncover all details of case
discovery - purpose
- disclose relevant material to opposing
- avoids trial by ambush
- ensures all parties have relevant copies of document
list what to talk about in discovery
- documentation
- oral
- medical
- interrogatories
discovery - documentation
either party can request further physical evidence including :
written statement , x rays, photos
discovery - oral
wither party is sworn on oath and asked questions or give statements
discovery - medical
- party can ask opposing party to have medical examination to prove condition, may be specifically by their doctor
discovery - interrogatories
- written questions, requiring sworn written answers
- provides asking party w/ more info + evidence
- promotes out of court settlement, saving court resources by dealing w/ evidence before trial
- eliminates trial by ambush
directions hearing
- pre trial procedure
- can take place any time (usually after pleadings+ before discovery)
- parties sit down w/ judge
- outlines time frame for discovery process
- court can order parties to mediation to promote out of court settlement
- order parties to provide list of witnesses
and summary of evidence
directions hearing - purpose
still to do
offer of compromise
- D can offer sum of money, believed to compensate
- plaintiff can accept or deny + take to court
general purpose of civil remedies
to restore plaintiff to position they were in before the infringement took place
list types of civil remedies
- damages
- injunctions
damages
sum of money granted to the plaintiff and against defendant in satisfaction of claim made by defendant.
different types include: compensatory, exemplary, nominal, contemptuous damages
compensatory damages
- most common damages sought
- aims to restore party whose rights have been infringed to position before infringement
- compensatory for losses suffered
- may not be possible for physical sense, but compensates for future
list three types of compensatory damages
- special/specific damages
- general damages
- aggravated damages
compensatory damages - special/specific damages
- precise monetary value
- can be listed
- medical expenses/loss of wages
- easily quantifiable
compensatory damages - general damages
- assessed by court, according to magnitude of wrong done
- takes into consideration: loss of wages, long term prospects, pain + suffering (past + future)
- general estimate + not readily quantifiable
compensatory damages - aggravated damages
- awarded to compensate plaintiff further
- if court believes defendants conduct has caused humiliation + insult
exemplary damages
- seeks to punish defendant for extreme infringement
- aim to punish + deter where conduct is :
- malicious, violent, cruel + disregards plaintiff’s rights
nominal damages
- awarded small amount in damages
- recognises plaintiff seeking legal right
- not seek large sum of compensation
- only requesting nominal damages
contemptuous damages
- court feels plaintiff has legs right but not moral right to seek damages
- doesn’t deserve to be paid in damages
- small amount awarded
- recognises plaintiff’s right to claim
injunctions
court order directing someone to do something/ or refrain from doing something
purpose is to rectify a situation caused by the person who has been found to be in wrong
injunctions - restrictive
ordering a person to refrain form doing something
eg, pulling down building
injunctions - mandatory
ordering a person to do a particular act
eg. upholding part of contract which has been breached
injunctions - interlocutory + perpetual
interlocutory = temporary + awarded quickly perpetual = permanent + can be overturned
civil pre trial procedures entitlement to fait + unbiased hearing - promotes
- DISCOVERY PROCESS = parties have access to all info and aware of evidence to ensure equality at trial
- DIRECTIONS HEARING = both parties present at hearing to ensure a proper opportunity for both parties
civil pre trial procedures entitlement to a fair + unbiased hearing - problems
- DISCOVERY PROCESS = often long + complex and need of legal rep. Disadvantages those w/o
- DIRECTIONS HEARING = parties w/ legal rep argue to obtain better direction in their favour. Disadvantages those w/o
civil pre trial procedures effective access to the legal system - promotes
- PRE TRIAL PROCEDURES = assist in resolving issues, claims, encouraging out of court settlement
- ADR’S + TRIBUNALS = to deal w/ variety of claims and eliminate cost and time w/ trial
civil pre trial procedures effective access to the legal system - problems
- COSTS = due to complexity of pre trial procedures legal rep required to increase likelihood of success
incurs costs, poses more if goes to trial - DELAYS = extensive pre trial procedures creates delays + less access to resources
civil pre trial procedures timely resolution of dispute - promotes
- PLEADINGS + DISCOVERY = reduces time needed to resolve disputes allowing to clarify issues + aims to promote out of court settlement
- DIRECTIONS HEARING = makes trial shorter by clarifying issues and promoting out of court settlement through mediation to avoid enduring trial
civil pre trial procedures timely resolution of disputes - problems
-FAILURE TO TAKE INITIAL STEPS = delays if don’t seek legal right or unaware of rights, preventing initiation of pleadings + discovery
-DELAYS IN CIVIL PRE TRIAL PROCEDURES = long + complex causing delays in getting matter to trial due to parties being unfamiliar w/ process
discovery specifically slows down
civil pre trial procedures - recent change 1
THE VICTORIAN CIVIL + ADMINISTRATIVE TRIBUNAL AMENDMENT ACT 2014 (VIC)
- enables VCAT to use initial decision maker when reviewing (fair/unbiased)
- presumption that either the whole/part of VCAT fees incurred by unsuccessful party (access)
- changes to internal administration and rule to use expert witnesses
- overall aim is to improve efficiency and therefore reduce costs of taking to VCAT
civil pre trial procedures - recent change 2
THE JUSTICE LEGISLATION AMENDMENT (DISCOVERY, DISCLOSURE + OTHER MATTERS) ACT 2014
- may 2014
- gives courts further case management powers in relation to discovery + disclosure
- power to narrow discovery to key issues through discovery to key issues through agreed statements of the issues in dispute + disclosure of how the parties document management system works
(gives court powers to force parties to identify main issues of dispute and narrow scope of the documents to be used throughout discovery in order to reduce delays in the management and process of documents)
