CIVIL PROCEDUREChapter 8

Civil Action A civil action relates to an act or omission that

infringes the rights of a person, group or government instrumentality and seeks to return the party whose rights have been infringed to their original position before the harm occurred.

The aim of civil action is to restore the party whose rights have been infringed back to the position they were in before the act or omission occurred.

This can be done through a civil remedy such as damages.

Civil disputes

Plaintiff – party bringing civil action/the party whose rights have been infringed.

Defendant – the party who is alleged to have carried out the wrong action eg negligence.

Standard of proof – Balance of Probability (means which version of the facts is most probably correct)

Burden of proof – lies with the plaintiff

Civil Law

Civil actions include: Negligence Breach of contract Trespass Defamation Nuisance Family law Inheritance trusts

Children

Children under 18 can sue another person through a ‘next friend’

Children can also be sued – extent of their liability depends on child’s maturity and the behaviour expected of a child at that age.

Vicarious Liability

When a person takes responsibility for the actions of another person

Example: employer/employee relationship

If a person is negligent towards another person during the course of their employment.

Representative proceedings When a group of people can be included together

as the plaintiff in a claim against a group or company – this is known as class action or representative action

One or more of the group with common grievance bring an action, representing the claim for each other member of the group.

Slater and Gordon represented 1000 people in 1995 representative action – salmonella poisoning from contaminated peanut butter

Supreme court – pre trial procedure

Aim To inform both parties of information

relating to the case Plaintiff informs the defendant about

the claim being made against them Defendant informs the plaintiff about

their defence( This allows the parties to discover

whether it is worthwhile proceeding with the case)

Aim – continued...

It might also lead to an out of court settlement between the parties meaning their do not need to go to court.

Cost, trauma and inconvenience of going to court would be avoided.

Obtaining legal advice

Contact the other party Solicitor – gives legal advice to their

clients and prepare the documents necessary for a matter to proceed. The solicitor will advise the plaintiff of their legal right and their chance of winning.

Barrister – briefed by solicitor – asked to act on behalf of the solicitor’s client. Barrister investigates the law and appear in court.

1. Letter or Demand

Solicitor sends a letter of demand Informs the other party of the nature

of the claim against them and suggests the compensation or other remedy sought.

Sets time limit

2. Pleadings Contains the details of the claim made by

the plaintiff against the defendant and matters being raised by way of defence by the defendant.

Aim State the issues of their case Compel each party state material facts Gives the court a written record Saves the court time and expense Assists in out of court settlement

Pleadings - rules

Must be as brief as possible Point of law can be raised Should not contain evidence of fact

claimed Time limits

Stages of pleadings The writ or

originating motion with endorsement

of claim Notice of apearance (including

couterclaim if appropriate)Statement of claim

(if not endorsed on the writ or

originating motion)Statement of

defence

Reply

Further and better particulars

Home work

Summarise pages 419 to 428 Questions 12 to 23

Pleadings - Writ

Plaintiff will issue a writ against the defendant

It explains that an action is being taken against them

Informs about the place and mode of trial (whether their is a jury)

Writ sent to court – copy sent to plaintiff and defendant

Includes cause of action and remedy

Pleadings – Statement of claim Usually indorsed on the writ If not indorsed on the writ the Statement of claim

must be served within 30 days or receiving the notice of appearance.

Gives details of the claim An originating motion can be used when there is

little dispute over the facts

Filing of the writ – signifies commencement of proceedings

Valid for one year – can be extended if problem serving

Pleadings - Notice of appearance This indicates the defendant will defend case

against them The writ will give a specific time for the

defendant to enter an appearance Time limit (not less then 10 days if the writ is

served in Vic – 21 days elsewhere in Australia)

If the defendant does not enter an appearance within the time limit the plaintiff can obtain judgement

Pleadings – Statement of Defence Gives information about the defence Provides plaintiff with defendant’s

version of the facts Shows which facts are admitted and

which facts are denied

Pleadings - Reply

Plaintiff may issue a reply if they agree with the defendant on an issue or confirm some material facts.

Pleadings – Further and better particulars Each party may demand better

particulars, or further and better particulars of the other party’s claim.

If not received ‘summons in chamber’

DEFENDANT - Counterclaim

3. Discovery

Allows parties to get further information on matters that might remain unclear.

Pleadings – gain info about the claim Discover – discover detail about the

facts of the case

Discovery continued Interrogatories - 60 days – written responses to

questions. Saves time and expense in court reduces the element of surprise – if not answer ‘notice of default’

Notice of discovery – disclose all relevant documents – affidavit of documents – can request copy (videotape, audiotape, disc, film or other recording)

Discovery by oral examination – consented in writing to be put orally in court

Medical examination and provision of hospital and medical reports

Pre-trial continued... Notice of admission of facts

Expert evidence

Offer of compromise

Directions hearings

Certificate of readiness

Pre- trial conference

Mediation and arbitration