Unit 4 AOS2c - Chapter 9: Civil Procedure Flashcards

Question

Explain the difference between the desired consequences in civil disputes and criminal cases.

Answer 1

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.

Answer 2

In some instances, one action can give rise to both a criminal and civil action. Eg. if a person has been sexually assaulted, the police are likely to charge the accused with relevant sexual offences. The person who was assaulted may then also decide to sue the wrongdoer for trespass to person. The two cases – the criminal action and the civil action – will be heard separately and may be heard in different courts. The outcome of one does not affect the outcome of the other, but a guilty verdict in the criminal action may provide a stronger basis for the plaintiff to succeed in the civil action.

Answer 3

This could be because the standard of proof in a criminal case is much higher than that in a civil case. The jury (or magistrate if it was a summary offence or an indictable offence heard summarily) may not have found beyond reasonable doubt that the accused was guilty. However, in the civil case, the judge or the jury of six people may believe that the plaintiff’s version of facts is more believable than the defendant’s version, and may therefore find the defendant liable. That is, the judge or the jury may form the view that, on the balance of probabilities, the plaintiff has been wronged.

Answer 4

Usually the main reason is that the party wishes to be compensated for the wrong they have suffered, often by way of receiving a remedy in the form of damages.

Answer 5

• a desire to stop the defendant from doing something; for example, a person wishing to stop another person from trespassing on his or her land • to compel another party to do something, such as perform their obligations under a contract • to send a message to the defendant, or to society as a whole, about the protection of individuals’ rights.

Answer 6

Commencing a civil proceeding is also known as ‘issuing proceedings’, 'bringing a civil action’ or ‘suing’.

Answer 7

Someone who does so might not win the case, and the legal fees will often be expensive. It will be time-consuming, can be stressful and might lead to bad publicity.

Answer 8

Someone deciding whether to commence a civil proceeding will usually consider: . The likelihood of success . The time and inconvenience involved in taking the claim through the courts . The costs involved . Whether there is enough evidence to establish the claim )including whether there are witnesses or key documents which help prove the claim) . The continuing relationship between the two parties and the effect a court case may have on this . Whether the party against whom the claim is made would be able to pay the compensation claimed . The effects of publicity

Answer 9

Thee wronged party should first contact the other party personally to try to resolve the matter. In some circumstances, however, such as those where the identity of the defendant is not known, this may not be appropriate.

Answer 10

The other option is that the wronged party contacts a solicitor.

Answer 11

A solicitor is also known as a legal practitioner or lawyers provides legal advice to clients and assists in commencing and pursuing a civil proceeding if the client decides to proceed. A legal practitioner will advise the party of their legal rights and their chances of winning the case. If a matter has to be taken to court, normally it is necessary to engage a barrister to appear, although in Victoria it is possible for a solicitor to please a case in the courts.

Answer 12

A barrister can briefed by a solicitor, that is, provided with information about a case (the "instructions") and asked to act on behalf of the solicitor's client. The barrister will often give further advice to the solicitor and will appear in court to represent the client.

Answer 13

The plaintiff or his legal practitioner may send a letter of demand to the defendant.

Answer 14

The letter of demand informs the defendant of the nature of the claim, and outlines the remedy sought. The letter often demands that the defendant comply with the wishes of the plaintiff within a certain time limit. The letter often states that the plaintiff will issue legal proceedings if the defendant fails to comply. An example of a letter of demand follows.

Answer 15

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. The person may decide to use one of the dispute resolution bodies and methods to resolve the dispute.

Answer 16

alternative dispute resolution (ADR), also referred to as appropriate dispute resolution, without having to take the case to a court or tribunal. Some of these methods are also used by courts and tribunals or by individuals and groups.

Answer 17

``` . Negotiation . Mediation . Conciliation . Arbitration . Collaborative Law ```

Answer 18

Negotiation is when parties discuss the issues between themselves and try it reach a resolution. There is no third part involved. Often this is a useful method for disputes between neighbours, or between family members, to avoid the matter escalating further.

Answer 19

Mediation is when a third party, known as a mediator, is present to help parties try to resolve the dispute between them. The mediator assisted parties to reach a resolution in their negotiations. Eg. Making sure each party is able to have their say. However, the mediator remains unbiased and will not offer advice about how to resolve the dispute or offer solutions to the parties.

Answer 20

Conciliation is when a third party, known as a conciliator, is present to help parties reach a decision. Often the conciliator will give advice about how to resolve the dispute where ruined and offer solutions to the parties. Although decisions made during negotiation, mediation and conciliation are not binding often the parties enter into an agreement, called "terms of settlement" after a resolution has been reached, which sets out the terms on which the parties have settled the matter.

Answer 21

Arbitration is when a third party, known as an Arbitrator, preside over informal discussions between the parties, giving each party the opportunity to have their say. The Arbitrator will then make a binding decision. Arbitration is used by the courts, tribunals and other services such as the financial ombudsman.

Answer 22

Collaborative law is another way of resolving civil disputes without taking a matter to court. The parties and their lawyers work together to resolve the dispute with the use of problem-solving techniques. Collaborative law has more recently been used in family law disputes, to avoid the stress and anxiety of going to court.

Answer 23

Courts and tribunals are a formal method of dispute resolution. These bodies make decisions that are binding on the parties to the dispute. Sometimes the court or tribunal will refer the parties to mediation before hearing the case.

Answer 24

The VCAT offers a low-cost, timely and informal way of resolving certain civil disputes. It is separated into four divisions (....)

Answer 25

If a resolution is not available or not possible through any of the above methods, it may be necessary to use the court system to reach an outcome. The three main Victorian courts that have jurisdiction to resolve civil disputes are the Magistrates’ Court, County Court and Supreme Court.

Answer 26

Magistrates' Court: . Civil claims up to $100,000 . Claims of less than $10,000 are referred to arbitration (which is conducted within the Magistrates' court) County Court: . Unlimited Supreme Court: . Unlimited

Answer 27

If a plaintiff issues a civil proceeding in the Supreme Court, the parties must go through various pre-trial procedures. The pre-trial proceedings in a civil case refers to the exchange of legal documents between the plaintiff and the defendant. The exchange of these documents can assist in achieving an out of court settlement.

Answer 28

Supreme Court civil pre-trial processes and procedures are specified in the Supreme Court (General Civil Procedure) Rules 1996 (Vic.), often known as the ‘Supreme Court Rules’.

Answer 29

The Supreme Court Rules set down details about when certain documents should be filed, or when certain steps should be undertaken (such as when a directions hearing is to take place). However, the judge has the power to make any order or give any direction in relation to pre-trial procedures. That is, the court can often use its power to give extra time to a party to undertake certain steps, or change the order in which pre-trial procedures take place.

Answer 30

About 65 per cent of civil cases that are issued in courts are settled before going to trial, or during the trial. Most often they are settled at the mediation stage.

Answer 31

. To inform both parties of information relating to the case - the plaintiff will find out information relating to the defence, and the defendant will find out information relating to the claim. . For the parties to determine whether it is worthwhile proceeding (with or defending the case). . For the aperies to find out the strengths and weaknesses of each others cases. . They might lead to an out-of-court settlement (negotiated between the parties - meaning the cost, stress and inconvenience of going to court I avoided). . They provide the court with information about the case before it begins (leading to a quicker trial). . They might result in some issues being conceded or agreed on by the parties (therefore only those issues in disputes are heard at trial = timely resolution).

Answer 32

. Pleadings . Directions hearing . Discovery . and Mediation (I think you only need to know first three)

Answer 33

Pleadings are a series of documents exchanged between the parties. They set out and clarify the claims and the defences of the parties and helpless to define the issues that are being disputed. The pleadings inform the defendant of the pending legal action and point out the nature of the claim and remember being sort. The defender then has the opportunity to deny or admit to the claims. The pleadings allow both the plaintiff and defendant to develop their cases.

Answer 34

. Writ of originating notion with a statement of claim . Defence (and a counterclaim if filed) . Reply to a defence (and a counterclaim if there is one) . Further and better particulars

Answer 35

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

Answer 36

To require the parties to state the main claims and defences of their case - This allows basic procedural fairness and natural justice by ensuring the other side knows what the claim or the defence is about. To compel each party to state the material facts and particulars on which they are relying - this forms the basis of their claims and defences. This avoids taking an opponent by surprise with facts that a party is relying on to support their claim or defence.

Answer 37

To give the court a written record of the case - which allows the court to understand the issues so it can manage the trial and pre-trial procedures. To set the limits to the dispute - which enables other procedures such as discovery to be confined to the issues in dispute.

Answer 38

A writ is the most com one method of commencing a proceedings in the Supreme Court. It compels the defendant to appear in court on a specified date and time. It is a document which: . Explains to the defendant that an action is being taken against him or her . Informs the defence of where the trial will take place and the mode of trail will take place and the mode of trail (which court and whether it will be heard by a judge alone or judge and jury) . Usually has a statement of claim attracted. Solicitors prepare writs. Once they are entered into court the writ is registered (receives a number).

Answer 39

If a statement of claim is not attached to a weir, the writ must contain a general statement giving sufficient details of: . The nature of the claim, . The cause of the claim and . The relief or remedy sought. If a writ only contains a general statement, then a statement of claim must be filed and served within 30 days of the defendant filing and serving a notice of appearance.

Answer 40

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.

Answer 41

An alternative to the writ is an originating motion. This is a similar form of document, but can only be used when there is little dispute over the facts, or where there is no defendant.

Answer 42

In most situations, the statement of claim is attached to the writ or originating motion. The statement of claim explains the nature of the claim, the cause of the claim and the remedy or relief sought. The statement of claim is different to the writ.

Answer 43

The writ provides basic details about the court, the parties and what needs to happen next, whereas the statement of claim informs the defendant about what the claim is about. It will also normally provide facts about the claim, such as the date of when the alleged wrong occurred and the remedy being sought.

Answer 44

If the defendant wishes to defend the action, the first document he or she must file and serve is a notice of appearance. The purpose pf the notice of appearance is to inform the court and the plaintiff that the defence wishes to defend the claim.

Answer 45

The Supreme Court Rules specify a time limit in which a notice of appearance must be filed and served, which depends on where the writ was served on the defendant. If the defender fails to adhere to the time limit, the plaintiff has the right to obtain a judgement against the defendant. This is called a "default judgement".

Answer 46

A defence sets out a response to each of the allegations contained in the plaintiffs statement of claim. The defendant normally either admits or denies the allegations. 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 his or her solicitors.

Answer 47

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.

Answer 48

The defendant may also make a claim against the plaintiff. This is called a counterclaim. Eg. 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. A counterclaim is usually heard at the same time as the original claim. The counterclaim is often attached to the end of a defence

Answer 49

Because not all disputes give rise to a counterclaim.

Answer 50

If a counterclaim is made, the plaintiff (who will then be known as the plaintiff and the "defendant by counterclaim") will need to file a defence, defending the allegations made.

Answer 51

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.

Answer 52

This is an optional step in the pleadings process. A party may file and serve a request for further and better particulars of the other party's claim or defence. This is a request for more details of the claim or the defence. The party served with the request must file and serve further and better particulars, or risk the court ordering it to do so. The court may also order a part to serve further and better particulars of its pleadings, separate to a party requesting it.

Answer 53

A direction hearing is normally a brief hearing before a judge or an associate judge which allows for the progression of the case to be discussed with the parties present. Here, the judge (or associate judge) can give "directions" to the parties. This is considered to be one of the more important pre-trial procedures.

Answer 54

A directions hearing takes place not less than 35 days after the defendant has filed an appearance, normally after a defence has been filed. At any time, a party may request that the court list the matter for a directions hearing if the party feels it is necessary for the judge or associate judge to give directions.

Answer 55

At least one directions hearing. More complex cases can have more than one directions hearing.

Answer 56

The court may give any direction to assist in the determination of the case as quickly and effectively as possible. These directions will often depend on what state the case is at and the nature of the dispute between the parties.

Answer 57

The courts could direct that the parties: . File a particular plying document or other document (such as expert reports by a certain time). . File a particular application or a subpoena on a third party to produce documents by a certain time. . 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. . Exchange written submissions. . Organise and attend mediation. . Attend a further directions hearing before the matter is set down for trial, to determine that the parties are ready for trial. . Prepare for trial by preparing a "court book" or file witness statements.

Answer 58

The purposes of a directions hearing are to: . Give directions in the proceedings (to ensure an effective, complete, prompt and economical determination of the case). . Set a timetable for future steps in the pre-trial proceedings (so that the matter can progress towards trial). . Hear any applications made by the parties before going to trial (such as applications regarding discovery or pleadings). . Hear any applications for the extension of time to complete particular steps (or for minor amendments of pleadings or other documents). . Determine whether the use of technology would be appropriate in this case (such as using an electronic database for documents or allowing witnesses to appear via videoconference). . Determine whether it is appropriate for the parties to be referred to mediation or some other alternative dispute resolution method (which can therefore be seen to be encouraging an out-of- court settlement). . Allocate a date for trial.

Answer 59

The court will make the appropriate orders and send them to both parties.

Answer 60

The discovery procedures enable parties to gain further information on matters that remain unclear. While the pleadings take is where parties exchange documents setting out their claims and defences, the discovery stage is where facts and document are disclosed which form the basis of the claims and defences.

Answer 61

. Discovery of documents . Interrogatories . Discovery by oral examination . Medical examination

Answer 62

The purposes of the discovery process are to: . Require the parties to disclose all relevant material and documents to the other side . Reduce the element of surprise at trial and avoid a ‘trial by ambush’ . Ensure all parties have copies of relevant documents . Allow each party to determine the strength of the other side’s case and determine their likelihood of success . Ensure that the parties and the court have all the relevant material and documents required to achieve a just outcome (the material and documents then become evidence) . In proceedings where the medical state of the plaintiff is in dispute (for example, in personal injury claims), give an opportunity to the defendant to have the plaintiff medically examined. This can reduce the time in court to dispute the medical condition of the plaintiff . Assist in reaching an out-of-court settlement where appropriate.

Answer 63

The main state in discovery is called "discovery of documents" and involves each party disclosing the extended of, or exchanging, documents that are relevant to the issues in dispute. Previously, it was common practice 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 practice 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.

Answer 64

The affidavit of documents will list: • all relevant documents that are, or were, in the possession of the party • all documents the party refuses to disclose because they are privileged (eg. letters and correspondence between the party and his or her solicitors).

Answer 65

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.

Answer 66

Once an affidavit of documents has been filed and served on the other side, the party may request that the documents are sent to them or arrange to inspect them. This is normally done at a solicitor’s office and is often done when the amount of documents is large. A party may then take copies of any documents that may be useful to them.

Answer 67

It is now common practice in the Supreme Court to order that the parties file a list of documents rather than an affidavit of documents. The list and affidavit are largely the same, but an affidavit is required to be sworn or affirmed by the relevant person on behalf of the party, whereas a list is not sworn or affirmed. Part of an example of an affidavit of documents follows.

Answer 68

These are questions relating to the known facts of the case. Either side may serve interrogatories on the other party requiring any information that might be useful in evidence. Usually a time period, such as 60 days, is set as the deadline by which written responses to the questions must be received by the other party.

Answer 69

This process saves court time and expense by dealing with matters before going to court and by 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. Eg. if a witness stated in answer to interrogatories that she was driving in third gear before the accident, but changed her mind during cross-examination and said she changed down to second gear before the accident, the judge (or jury if there is one present) may question her credibility and whether to believe anything she said.

Answer 70

The party being interrogated can avoid answering interrogatories that do not relate to any question between the parties, or are unclear, oppressive (that is, a question that places a heavy burden on the person required to answer), require the expression of an opinion the person answering is not qualified to give, or require the disclosure of privileged information. If one of the parties does not answer interrogatories, a notice of default can be served by the other party.

Answer 71

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).

Answer 72

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.

Answer 73

Page 503 (but I don't think you need it)

Answer 74

At any time during the proceedings, the parties can reach an out-court settlement or the plaintiff can choose to abandon the action. Other processes that can be used during the proceedings are: . Notice of admission of facts (either party) . Either party can call for export evidence . The parties can make an offer of compromise . The parties may be order to attend a pre-trail conference . The parties may be required to file and serve written statements . The parties made have to sign a certificate of readiness for trial.

Answer 75

. Pleadings: - Writ or originating motion filed with statement of claim (plaintiff) - Notice of appearance (defendant) - Defence (defendant) and counterclaim if any (optional) - Reply to defence and counterclaim (plaintiff) (optional) - Further and better particulars (either party) (optional) . Discovery: - Discovery of documents - Interrogatories - Discovery by oral examination - Medical examination (if claiming injury) . Mediation . Pre-trial conference . Trial

Answer 76

. They provide the parties with various opportunities to reach an OUT-OF-COURT SETTLEMENT, without having to go to trial. . They allow the parties to DETERMINE THE STRENGTHS AND WEAKNESSES of each other’s case. This helps the parties decide if they should concede certain facts or issues that are in dispute. . They allow the parties to DETERMINE WHETHER IT IS WORTHWHILE PROCEEDING WITH THE CASE. At the pleadings stage, it may be so obvious to the plaintiff that there is a clear defence, that the plaintiff may decide not to proceed. Similarly, the defendant may find that the case is so strong that it is not worthwhile defending the case. . Each pre-trial procedure is intended to PROVIDE THE COURT WITH INFORMATION about the case. The court will receive a copy of each of the documents filed in the pleadings stage, giving it a record of the claims and the defences. . Pleadings MIGHT RESULT IN SOME ISSUES BEING CONCEDED during trial, therefore speeding up trial. For example, the defendant may admit certain facts, or the plaintiff may drop certain claims following the filing of the defence.

Answer 77

. Directions hearings can ENSURE THE TIMELY RESOLUTION of a dispute by setting down a timetable for steps to be undertaken, giving directions to the parties and generally ensuring the parties are completing pre-trial procedures in a timely and efficient manner. . Directions hearings INFORM THE JUDGE AND THE COURT ABOUT THE NATURE OF THE DISPUTE and the steps that are to be undertaken. . The judge or the associate judge overseeing the directions hearing may order that the parties arrange and attend mediation before trial. This can be seen to be ENCOURAGING AN OUT-OF-COURT SETTLEMENT. . For both parties, it is an OPPORTUNITY TO COMMUNICATE with the judge who may ultimately hear the matter, or the court generally, about issues such as non-compliance by one party with pre-trial procedures, or difficulties with extracting information from the other party.

Answer 78

. Discovery ASSISTS THE PARTIES IN UNDERSTANDING THE STRENGTHS AND WEAKNESSES OF THEIR CASE and the other party’s case. One party may discover documents that support their case, whereas the other party might discover documents that are adverse to their case. . It AVOIDS TRIAL BY AMBUSH, OR TRIAL BY SURPRISE, by ensuring that both parties have had access to the same relevant documents. The parties are then able to use these documents and the information they found during discovery as the basis for the evidence they intend to lead at trial. . It can ALLEVIATE A PARTY'S CONCERN THAT THE OTHER PARTY IS HIDING OR WITHHOLDING DOCUMENTS. The parties normally need to sign an affidavit stating that the documents discovered are the extent of the documents in their possession – this can help allay concerns that there may be other documents (withholding or destroying documents can have serious consequences). . It can be an AID TOWARDS AN OUT-COURT-SETTLEMENT by allowing the parties to assess the documents and make an informed decision about whether mediation may be suitable, or whether they are prepared to accept certain claims or defences. . In matters involving medical evidence, discovery GIVES AN OPPORTUNITY TO THE DEFENDANT TO ASSES RHE PLAINTIFF'S MEDICAL CONDITION or test a witness through interrogatories.

Answer 79

. Pleadings often TAKE A LONG TIME TO COMPLETE , which adds to the delay in reaching a resolution. There are several documents that need to be exchanged in the pleadings stage, and it can take some time for pleadings to conclude. . The COST CAN BE SIGNIFICANT, particularly if a lawyer is used to prepare and finalise the pleadings documents. . Pleadings can be COMPLEX and particularly difficult to understand for unrepresented litigants. . The PROCESS MIGHT BE ABUSED BY CERTAIN PARTIES. For example, the defendant may simply deny the whole claim without any basis for that defence, causing the plaintiff to suffer significant cost, time and stress in having to prove the case. Alternatively, the plaintiff may have a very weak claim, but put in enough detail in the pleadings to make the defendant spend time and money on defending the claim.

Answer 80

. Directions hearings can be DIFFICULT TO UNDERSTAND, particularly for a self-represented party. Legal steps such as the making of orders, directions being given and applications to be made by a party may be very confusing without the presence of a lawyer. . They can be STRESSFUL AND INCONVENIENT. A directions hearing normally requires the attendance of the party or his or her lawyer. If a person is unrepresented, it can be very daunting to appear before a judge or an associate judge, particularly if the other party has engaged a solicitor or barrister. . Directions hearings may be a WASTE OF TIME if the court has ordered the parties to attend the directions hearing but there are no issues to discuss.

Answer 81

. There is a SIGNIFICANT COST INVOLVED IN DISCOVERY AS A PRE-TRIAL PROCEDURE, particularly when the number of documents is large. The cost is associated with collating and reviewing documents, determining their relevance and whether they are privileged, preparing an affidavit of documents, arranging inspection of documents, inspecting the other side’s documents and determining any applications relating to discovery. . It may TAKE A SIGNIFICANT AMOUNT OF TIME TO COMPLETE. Particularly in cases where there are a large number of documents, discovery could take several months, resulting in a delay of the trial. . The RULES RELATING TO DISCOVERY ARE CONFUSING AND COMPLEX. There are rules about what is relevant and what is not, which documents are privileged, and there can even be rules about confidential or sensitive documents. . There CAN BE RESISTANCE BY ONE PARTY TO DISCOVERING ALL THE DOCUMENTS and that party may withhold relevant documents. This may result in the other party having to seek the intervention of the court to compel that party to produce documents, adding to the time, cost and inconvenience of the parties.

Answer 82

. Pre-trial procedures provide parties with various opportunities to reach an out-of-court settlement. . They allow parties to determine the strengths and weaknesses of each other's cases. . They allow parties to determine whether it is worthwhile proceeding with the case. . They provide the court with information about the case before it behind, leading to a quicker trial. . They might result in some issues being conceded by the parties, thereby saving court time at trial.

Answer 83

. Pre-trial procedures are long and complex, adding to the delay of reaching a resolution. . The cost of each procedure can often be high, particularly in the discovery stage. . They often contribute to the stress and inconvenience experienced by the parties, as they are lengthy and complex. . They are complex, and often require the assistance of legal representation, therefore disadvantage to unrepresented parties. . The time taken means that the remedy is denied for longer. Also, key witnesses might die or disappear, or their memories might become less reliable.

Answer 84

. They attempt to make the trail processes as efficient and fair as possible by ensuring the parties have access to the same information and documents. . The provide the court with information about the case before it begins. . They might result in some issues being conceded or some charges bring withdrawn before trial.

Answer 85

. In a civil dispute, pre-trial procedures are used to clarify issues and let each part know the other party's evidence. In a criminal case, pre-trial procedures are used to see whether there is sufficient evidence to support a conviction. . In a civil dispute, the defendant is required to discover relevant documents. In a criminal case, the accused does not have that obligation and may choose not to disclose any documents. . The accused may not be able to easily inspect documents and attend directions hearings in a criminal case if he or she is remanded in custody. In a Silvio cases this will not be an issue.

Answer 86

LEFT (criminal) - RIGHT (civil) To assist the police in identifying evidence for the prosecution - to inform both parties of information relating to the case. To protect the rights of the accused and ensure that he or she is treated as innocent until proven guilty - to allow the parties to determine whether it is worthwhile proceedings with their case. To provide rights to the police to facilitate police investigation - to find out the strengths and weaknesses of each party's case. To provide an opportunity for the accused to be released pending trial - to encourage an out of court settlement. To determine whether a trial should proceed - to provide the court with information about the case before it begins. To determine if the accused wishes to plead guilty or not guilty - to allow for some issues to be conceded by the parties.

Answer 87

In Australia, trials are conducted using the adversary system of trial. A jury is not used in the Magistrates’ Court and is not required in civil trials in higher courts in Victoria (being the County Court and the Supreme Court). However, if either party requests that the matter is heard before a jury in a higher court, then a notice that a jury is required is served on all parties. The party that chooses to have a jury must then pay the fee for having a jury.

Answer 88

A remedy is the plaintiff’s desired outcome in a civil trial. It is what the plaintiff claims as a result of the civil wrong that has occurred. If the plaintiff is successful, the court will normally award the plaintiff a remedy, which is the way a court enforces a plaintiff’s right, imposes a penalty on the defendant or makes some sort of order for the benefit of the plaintiff.

Answer 89

The general purpose of remedies is to restore the plaintiff to the position they were in before the wrong occurred. Various remedies are available in civil cases. The most common remedy sought is damages. Another common remedy is an injunction.

Answer 90

Damages is a sum of money granted to the plaintiff, to be paid by the defendant, in satisfaction of a claim made by the plaintiff. The purpose of damages is to compensate the plaintiff for losses suffered.

Answer 91

. Compensatory . Exemplary . Nominal and . Contemptuous damages.

Answer 92

If damages are awarded, the court will sometimes award interest to be paid on the amount of damages from the time the incident occurred. This is to compensate for the fact that if the plaintiff had been paid the money immediately after the incident, he or she would have been able to earn interest from a bank or elsewhere.

Answer 93

Compensatory damages are the most common damages sought. The aim is to restore the party whose rights have been infringed to the position they were in before the infringement, by compensating them for losses suffered. It may not be possible to do this in the physical sense, for example if a person has been left with a permanent injury, but damages can be given to make up for the fact that the person will suffer in the future.

Answer 94

Compensatory damages can be: . Specific damages (also referred to as special damages) . General damages OR . Aggravated damages

Answer 95

These can be given a precise monetary values. These can be listed - such as medical expenses or loss of wages - and are easily quantifiable.

Answer 96

These will be assessed by the court according to the magnitude of the wrong done and the long-term consequences of the wrong. It takes into consideration such matters as future loss of wages, long-term job prospects as well as pain and suffering (future and past). They are a general estimate and not readily quantifiable as they try to measure the loss of enjoyment of life.

Answer 97

These can be awarded to compensate the plaintiff further if the court believes that the defendant's conduct injured the plaintiff's feelings by causing humiliation and insult.

Answer 98

When nominal damages are awarded, a small amount of money is paid by way of damages. A plaintiff may be seeking to make a point about being legally in the right and to show that their rights had been infringed, but may not be seeking a large sum of money in compensation. Instead, the plaintiff might ask for only nominal damages. In a case of defamation, nominal damages may be awarded when the plaintiff’s character has been maligned, but little damage has been done to the plaintiff’s reputation.

Answer 99

A court might feel that the plaintiff has a legal right to damages, but does not have a moral right, that is, the plaintiff did not really deserve to be paid damages. In such a situation, small damages might be awarded to show contempt for the claim that is made, while admitting the plaintiff’s right to make the claim.

Answer 100

Exemplary damages are the only consequence of a civil action that in some way seeks to punish the defendant for an extreme infringement of rights. Exemplary damages are also known as punitive damages or vindictive damages (although this term is rarely used). The aim of exemplary damages is to punish and deter where conduct is wanton, malicious, violent, cruel, insolent or in scornful disregard of the plaintiff’s rights.

Answer 101

An injunction is a court order directing someone to stop doing something or to do something. The purpose of an injunction is to rectify a situation caused by the person who was found to be in the wrong.

Answer 102

. Restrictive/prohibitive injunctions | . Mandatory injunctions

Answer 103

Restrictive/prohibitive – ordering a person to stop (or refrain from) doing something (such as pulling down a building, or an ex-spouse visiting a child at school).

Answer 104

Mandatory – ordering a person to do a particular act, such as performing their part of a contract they have breached.

Answer 105

``` An injunction (either a restrictive or a mandatory one) can be either interlocutory or perpetual. An interlocutory injunction is a temporary injunction that is awarded quickly and in circumstances where there is an urgent situation and an injunction is needed as soon as possible. At the final court hearing, the interlocutory injunction can become a perpetual (permanent) injunction, or it can be dismissed (overturned). A perpetual injunction can also be sought in a proceeding where an interlocutory injunction was not sought in the first place by the plaintiff, or was not granted by the court. ```

Answer 106

. To compensate the plaintiff for losses they have suffered such as payment of medical expenses (compensatory damages). . For the plaintiff to make a point about being legally right and show their rights have been infringed (nominal damages). . To show contempt for the claim that is made, while admitting the plaintiff’s right to make the claim (contemptuous damages). . To punish the defendant for an extreme infringement of rights (exemplary damages).

Answer 107

. To rectify a situation caused by the person found to be in the wrong. . To refrain someone from doing something (restrictive injunction). . To order someone to do a particular act (mandatory injunction). . To preserve the position of the parties until the final determination of the matter (interlocutory injunction).

Answer 108

For example, a company may seek a permanent injunction restricting someone from trespassing on their land, as well as seek damages for the trespass that has already occurred. In this instance, the purpose of these remedies is not only to compensate the company for losses they have already suffered, but also to prevent further losses from happening by having an injunction in place.

Answer 109

The purposes of remedies can differ from case to case, as it will depend on the circumstances of the plaintiff and what the plaintiff is seeking to achieve.

Answer 110

. What sort of loss has the plaintiff suffered – economic, physical, emotional, mental? . What is the appropriate measure for unquantifiable losses such as pain and suffering, humiliation and loss of life? . Is the plaintiff’s injury such that money can return them to the position they were in before the harm occurred? . Can damages compensate for time in having the case heard, and for stress and inconvenience? . Does the defendant have the capacity to make payment? . What is the measure of future earning capacity? . Are there are any restrictions in place which limit the amount to be compensated (e.g. non-economic loss or economic loss under the Wrongs Act 1958 (Vic)? . Is there any other reason for which the plaintiff may not be returned to their original position? . Is there some other remedy, such as an injunction or an order for specific performance, that would better compensate the plaintiff?

Answer 111

. Has the defendant already done something damaging and the plaintiff is stopping the defendant from causing any further damage? . Will an injunction stop the defendant from doing other things? . Will the defendant comply with the injunction? . Even if the defendant does comply with the injunction, does it mean the plaintiff is fully returned to their original position? . Is there some other remedy, such as damages or an order for specific performance, that would better compensate the plaintiff?

Answer 112

. Pleadings stage . Court powers . Directions hearings . Discovery process

Answer 113

Pleadings stage – This stage enables the parties to become aware of the claims, defences and counterclaims that are being made in the proceeding to afford them natural justice and procedural fairness. It ensures that the parties are prepared for the case and the trial proceeds on the basis that the parties have made all the possible claims they can in their pleadings. Court powers – The courts now have extensive powers to manage civil disputes, due to the rules of the court and the introduction of the Civil Procedure Act 2010 (Vic.). The courts must use these powers to give effect to the overarching purpose of the Civil Procedure Act, which is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. The powers of the court are broad and include allowing the court to make any orders it considers appropriate with respect to the conduct of the hearing.

Answer 114

Directions hearings – Having both parties present at directions hearings ensures a proper opportunity to make any submissions, applications or arguments to the judge (or associate judge) about what orders should be made or the timetable that should be set down for pre-trial procedures. This allows the case to proceed fairly and ensure that all parties have the opportunity to be heard. Discovery process – This is designed to ensure that all parties have access to information and documents that are relevant for the trial. Particularly during discovery stage, the parties become aware of the evidence of each party’s evidence, which reduces the element of surprise at trial. This assists in both parties being on an equal footing with respect to knowledge of documents at the trial.

Answer 115

``` . Pleadings stage . Discovery process . Directions hearings and mediation . Costs . Different cultural backgrounds . Inconsistency in damages ```

Answer 116

Pleadings stage – Although pleadings are designed to ensure that each party is aware of the claims and defences, and to clarify the issues in dispute, often the pleadings are so complex that they disadvantage a party who does not have legal representation. Pleadings normally require the expertise and knowledge of a solicitor and/or barrister. This can disadvantage an unrepresented litigant who may not understand what pleadings are and therefore does not begin on the same footing as their opponent. Discovery process – Again, although designed to clarify issues in dispute, avoid surprises at trial and allow parties to understand the claims and evidence involved, the discovery process can often be long and complex and require legal representation. This can disadvantage people who represent themselves. Directions hearings and mediation – A party with more experienced legal representation may argue their case better at a directions hearing and thus may be better placed to obtain the orders they require in the case. Further, at mediation, a party without legal representation may feel intimidated by the process, or is unable to clearly present their argument, and the result may therefore be an unfair outcome.

Answer 117

Costs – The costs of pre-trial procedures and taking a matter to trial are significant, and can be a serious impediment to many people trying to access the legal system. In some ways, the cost of accessing civil justice can act as a barrier to many people trying to resolve their dispute, and people can be dissuaded from pursuing resolution, making it an unfair system. Many of these people are ineligible for legal aid, which leaves them to either be self-represented, or not pursue or defend their claim. Different cultural backgrounds – Defendants from different cultural backgrounds may be confused by the legal processes and the adversary system of trial. This may hinder the ability of these defendants to receive a fair and unbiased hearing. Inconsistency in damages – If a jury is required to decide on the amount of damages, the amount can be different from that awarded (by other juries) in other similar cases and can often be very large, which can be unfair to the defendant.

Answer 118

The Victorian Civil and Administrative Tribunal Amendment Act 2014 (Vic).

Answer 119

This enables VCAT, when exercising its review jurisdiction, to invite the original decision-maker to reconsider the decision under review. It creates the presumption that either the whole portion of the VCAT fees incurred in bringing a dispute to VCAT will be met by the unsuccessful party (losing party pays fees). The act also includes changes to improve internal VCAT administration and introduced rules in relation to the use of expert witnesses (deceased costs). The overall aim of these changes to to improve efficiency and and thereby reduce the costs of taking a dispute to VCAT.

Answer 120

Greater funding for legal aid – In more recent times, Victoria Legal Aid has suffered a lack of funding for the services it provides, despite a greater demand for legal aid lawyers. More funding for legal aid could improve flexibility in being eligible for legal aid, thus ensuring that more people, particularly disadvantaged people, are entitled to a fair and unbiased hearing. Greater awareness and legal assistance for disabled persons - Submissions to the current Productivity Commission, which is inquiring into access to justice, make recommendations in relation to the ability of disabled people to get a fair hearing. Recommendations made include training of legal personnel about the needs of disabled people and providing greater awareness and funding for disability legal services.

Answer 121

``` . Court system . ADRs and tribunals . Collaborative law . Pre-trial procedures . Contingency-based legal representation . Litigation-funding companies ```

Answer 122

Court system – Courts have been established to enforce the law, including civil rights. Each court has a specific jurisdiction and deals with cases in its area of expertise. For example, the Family Court deals with cases for the dissolution of marriage, and the Magistrates’ Court deals with claims of damages up to $100000. This ensures that parties have suitable and appropriate courts to deal with their disputes. ADRs and tribunals – The legal system provides a range of mechanisms, other than courts, to assist parties in resolving disputes. The Victorian Civil and Administrative Tribunal (VCAT) can deal with a variety of claims, including disputes between consumers and traders. In addition, parties have access to alternative dispute resolution methods such as mediation and conciliation, available in centres such as the Dispute Settlement Centre.

Answer 123

Collaborative law – Collaborative law provides another method of dispute resolution, whereby disputing parties and their lawyers sign a contract agreeing that they will work together in good faith to resolve their dispute without going to court. The aim is to avoid the costs, delays and stress involved in court action, and also to preserve the existing relationship between the parties. If the parties are unable to resolve their dispute through negotiation, then the lawyers acting for the parties will all withdraw from the case and not act for their clients in any further litigation on the matter. Pre-trial procedures – A party will have access to pre-trial procedures that may assist them in resolving their case which they would otherwise not have access to if they did not issue proceedings. For example, a party will have access to court-ordered mediation, documents discovered by the other side and the ability to order interrogatories to help assist them with their claim. These procedures may result in an early out-of-court settlement, or help define the issues in dispute.

Answer 124

Contingency-based legal representation – Some firms of solicitors will represent clients on a ‘no win, no pay’ basis. This helps people with a genuine claim but limited funds to get a matter to court. If the plaintiff loses the case they do not have to pay the legal fees. If the case is won, the solicitors usually take their legal fees out of the damages paid by the defendant. Without this arrangement a plaintiff may have to abandon the claim because of the high cost of proceedings and the risk of not winning the case. Litigation-funding companies – This is another option that has emerged for those unable to afford legal representation. These funding companies can cover the litigation costs of individuals and small businesses. If the party wins the case, then the funding company takes a share of the proceeds, often between 30 and 40 per cent. If the party loses, then the funding company normally pays the other party’s costs.

Answer 125

. Costs . Complexity of procedures, including pre-trial procedures . Lack of knowledge of ADRs and tribunals . Delays

Answer 126

Costs – Courts are expensive and lawyers are often a necessary element of achieving a fair outcome. However, utilising their skills can be very expensive. This high cost can be prohibitive to people who wish to take an issue to court. People therefore do not have easy access to courts as a mechanism for resolving disputes due to the high costs that may outweigh the potential benefit to be gained. Complexity of procedures, including pre-trial procedures – Pre-trial procedures are often complex and difficult to understand, and usually require the assistance and expertise of solicitors. This poses problems for unrepresented litigants, who find it difficult to easily use the court system to resolve their disputes. Other procedures such as directions hearings, mediation and trials also add to the complexity of the court system.

Answer 127

Lack of knowledge of ADRs and tribunals – Many people are not aware that there are alternatives to the court system. Often they may issue proceedings in court, without knowing that their matter could be heard by a list in VCAT, or that they could contact a body such as the Dispute Settlement Centre to arrange mediation. Although these bodies exist, people may not have easy access to them because they are not aware of their existence or the extent of their powers to determine disputes. Delays – The court system has been criticised for extensive delays in hearing civil disputes. This is not only due to the backlog of court cases in the system, but also the extensive number of pre- trial procedures that parties usually have to go through. This often deters people from issuing civil proceedings and hinders their access to this mechanism to resolve their dispute.

Answer 128

. Civil Procedure Reforms: Discovery and Disclosure | . The Victorian Civil and Administrative Tribunal Amendment Act 2014 (Vic)

Answer 129

The disclosure of documents in civil cases is often the most expensive part of the proceedings with large cases costs frequently run into millions of dollars. The Justice Legislation Amendment (Discovery, Disclosure and Other Matters) Act 2014 commenced may 2014 and gives the court further case management powers in relation to discovery and disclosure. The courts have the power to narrow discovery to key issues through agreed statements of the issues in the dispute and disclosure of how the parties' document management system works.

Answer 130

This enables VCAT, when exercising its review jurisdiction, to invite the original decision-maker to reconsider the decision under review. It creates the presumption that either the whole portion of the VCAT fees incurred in bringing a dispute to VCAT will be met by the unsuccessful party (losing party pays fees). The act also includes changes to improve internal VCAT administration and introduced rules in relation to the use of expert witnesses (deceased costs). The overall aim of these changes to to improve efficiency and and thereby reduce the costs of taking a dispute to VCAT.

Answer 131

Encouragement and retention of lawyers in rural areas – A report by the Law Institute of Victoria in 2009 found that there is a significant issue with access to justice in rural, remote and regional areas in Victoria, where there are fewer lawyers and thus less ability for potential litigants to seek legal advice and representation. The Law Institute has called on the state government to introduce monetary allowances or bonuses for lawyers to relocate to rural areas, as well as to promote job vacancies in rural areas to law students and graduates.

Answer 132

. Pleadings and discovery . Directions hearings . Active court management

Answer 133

Pleadings and discovery – The pre-trial procedures in a civil action can reduce the time needed to resolve a dispute. The pleadings and discovery stages provide both sides to a case with the opportunity to find out details of the case being brought against them. This could result in one party deciding not to pursue their case. Alternatively, these exchanges could encourage discussion between the parties, which could lead to an out-of-court settlement that satisfies both parties. If the matter does proceed to court, the pre-trial procedures, such as directions hearings, could reduce the time to be spent in court. However, some legal commentators have pointed to the long and protracted pre-trial procedures as adding to the time delay in resolving a dispute.

Answer 134

Directions hearings – Directions hearings have been introduced in civil matters to try to speed up the process of getting a matter to trial and to make the trial shorter by clarifying issues before the trial, so that these do not need to be contested in the trial. Directions hearings also help the parties to become better acquainted with the strengths of each party’s case, and as a result can lead to the parties deciding to settle out of court rather than go to trial. Some issues can be settled during directions hearings, and aspects of the plaintiff’s case may be admitted before attending court, which can result in the trial being shorter as these issues do not then need to be settled at trial. Active court management – The court rules and the Civil Procedure Act 2010 (Vic.) provide the judges with powers to actively manage a case. The powers include the ability to reduce the number of witnesses that may be called, limit the time by which certain steps are to be conducted and limit the scope of discovery. This has been seen to substantially reduce the time it takes for a trial to be heard.

Answer 135

. Failure to take the initial steps . Increased litigation . Increase in volume and complexity of information . Delays in civil pre-trial procedures

Answer 136

Failure to take the initial steps – Delays in civil cases are often caused by the individuals failing to take the initial steps to seek legal advice about a problem that has occurred. This may be because they are unaware of their legal rights and how to pursue them, or they are fearful about the costs or outcome of the case. Increased litigation – While there are still people who are unaware of their rights, there is a general trend towards people being prepared to pursue their rights when these have been infringed. This has increased the number of civil cases being brought before the courts, thereby adding to delays.

Answer 137

Increase in volume and complexity of information – Improved technology has provided businesses and individuals with the ability to do far more in terms of gathering information and expanding business opportunities. It has also created a situation where there is likely to be more information to gather and sift through when a case comes to trial. This can result in delays in getting a case to court. If trials are taking more time, it might take longer to get a case listed for trial. Delays in civil pre-trial procedures – The pre-trial procedures are long and complex, and cause delays in getting the matter to trial. Often these delays are caused by the parties, who may not understand the procedures and require adjournments of times by which proceedings are to be completed. Particular procedures, such as discovery, often take time as a result of a large volume of documents, thereby delaying the time it takes to get the matter heard.

Answer 138

. The Victorian Cicil and Administrative Tribunal Amendment Act 2014 (Vic) . Civil Procedure Reforms: Discovery and Disclosure

Answer 139

This enables VCAT, when exercising its review jurisdiction, to invite the original decision-maker to reconsider the decision under review. It creates the presumption that either the whole portion of the VCAT fees incurred in bringing a dispute to VCAT will be met by the unsuccessful party (losing party pays fees). The act also includes changes to improve internal VCAT administration and introduced rules in relation to the use of expert witnesses (deceased costs). The overall aim of these changes to to improve efficiency and and thereby reduce the costs of taking a dispute to VCAT.

Answer 140

The disclosure of documents in civil cases is often the most expensive part of the proceedings with large cases costs frequently run into millions of dollars. The Justice Legislation Amendment (Discovery, Disclosure and Other Matters) Act 2014 commenced may 2014 and gives the court further case management powers in relation to discovery and disclosure. The courts have the power to narrow discovery to key issues through agreed statements of the issues in the dispute and disclosure of how the parties' document management system works.

Answer 141

Greater use of court powers – There has been an increased focus on the judges to use the powers given to them to actively manage a case and to avoid any unnecessary time delays. In a 2013 case involving an issue relevant to discovery, the High Court noted that ‘Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court’.