Pre-trial procedures include: Pleadings Discovery Directions Hearing

In 2012, Nathan Bracken, a former member of the Australian Cricket Team, sued Cricket Australia for negligence after three of Cricket Australia’s medical staff (including two doctors and head physiotherapist) failed to competently investigate, diagnose and treat an injury he sustained to his right knee prior to a one-day international match against England in January 2007. In a statement of claim, lodged at the Supreme Court, Mr Bracken claimed the medical staff should have more promptly diagnosed his injury and recommended knee surgery, and their failure to do so cost him at least $1 million in potential lost earnings because he was forced into early retirement.

Ridiculous Civil Cases 1. January 2000: Kathleen Robertson of Austin Texas was awarded $780,000.00 by a jury of her peers after breaking her ankle tripping over a toddler who was running amuck inside a furniture store. The owners of the store were understandably surprised at the verdict, considering the misbehaving tyke was Ms. Robertson's son. 2. June 1998: A 19 year old Carl Truman of Los Angeles won $74,000.00 and medical expenses when his neighbor ran his hand over with a Honda Accord. Mr. Truman apparently didn't notice someone was at the wheel of the car whose hubcap he was trying to steal. 3. October 1998: A Terrence Dickson of Bristol Pennsylvania was exiting a house he finished robbing by way of the garage. He was not able to get the garage door to go up, because the automatic door opener was malfunctioning. He couldn't re-enter the house because the door connecting the house and garage locked when he pulled it shut. The family was on vacation, so Mr. Dickson found himself locked in the garage for eight days. He subsisted on a case of Pepsi he found, and a large bag of dry dog food. This upset Mr. Dickson, so he sued the homeowner's insurance claiming the situation caused him undue mental anguish. The jury agreed to the tune of half a million dollars and change.

4. October 1999: Jerry Williams of Little Rock Arkansas was awarded $14,500.00 and medical expenses after being bitten on the buttocks by his next door neighbor's beagle. The beagle was on a chain in its owner's fenced-in yard, as was Mr. Williams. The award was less than sought after because the jury felt the dog may have been provoked by Mr. Williams who, at the time, was shooting it repeatedly with a pellet gun. 5. May 2000: A Philadelphia restaurant was ordered to pay Amber Carson of Lancaster, Pennsylvania $113,500.00 after she slipped on a spilled soft drink and broke her coccyx. The beverage was on the floor because Ms. Carson threw it at her boyfriend 30 seconds earlier during an argument. 6. December 1997: Kara Walton of Claymont, Delaware successfully sued the owner of a night club in a neighboring city when she fell from the bathroom window to the floor and knocked out her two front teeth. This occurred while Ms. Walton was trying to sneak through the window in the ladies room to avoid paying the $3.50 cover charge. She was awarded $12,000.00 and dental expenses.

Key knowledge YEW

Supreme Court pre-trial procedures

Purpose: 1.) Informs both parties about the legal action and exchange documents – informs defendant case is brought against them – provides access to legal system 2.) Allows parties to determine whether to reach out- of-court settlement or to drop case due to evidentiary support from opposing party 3.) Helps clarify issues if case proceeds to court to avoid delays and allow timely resolution of dispute – time is not taken up clarifying issues at trial

Pre-trial procedures for the Supreme Court: Supreme Court (General Civil Procedure) Rules 1996 (Vic)

Pleadings As the name implies, the pleadings stage of the civil pre-trial process involves both parties exchanging written documents stating and clarifying the details of the case, including the claims being made by the plaintiff, the defences and the remedy being sought. The steps involved in the pleadings stage include the exchange of the following documents: writ including statement of claim notice of appearance Statement of defence counterclaim (if made) Further and better particulars

Definition: pleadings Pleadings sets out the nature of the claim made by the plaintiff, informs the defendant of the case against them including the remedy being sought and the defence being raised by the defendant. The emphasis is on raising points of law. Steps include writ, statement of claim, notice of appearance, statement of defence and counterclaim.

Writ – or Origin Motion A standard legal document that is prepared by the plaintiff’s solicitor and lodged in the Supreme Court, with another original document being given to the defendant The writ 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 the time limit within which the defendant is expected to reply to the plaintiff

Statement of claim Attached to writ this is written by plaintiff’s solicitor and is sent to defendant explaining specific details of plaintiff’s claim such as facts alleged and remedy sought.

Notice of appearance If the defendant wants to defend the case being brought against them, they must enter two copies of a notice of appearance with the court, the court forwards a copy to the plaintiff. This informs the plaintiff and the court that the defendant intents to defend the claim

Statement of defence This is the defendant’s response to the allegations made by the plaintiff in the statement of claim. It is written by the defendant’s solicitor and sent to the plaintiff. This provides details of the defendant’s defence, including any allegations admitted or denied and their version of the facts

Counterclaim The defendant may bring a separate action against the plaintiff, suing them for damage or injury The two matters are usually dealt with together

Discovery Discovery is a stage in civil pre-trial procedure where both parties have the opportunity to inspect and exchange any of the opposing party's documents and additional information, and ask questions of the opposing party to establish the facts of the case According to the Supreme Court (General Civil Procedure) Rules 2005, discovery includes ‘discovery and inspection of documents and discovery by written interrogatories or oral examination’.

Discovery: Purpose Assist parties to prepare for trial by gaining further information relating to case through interrogatories and discovery of documents. This may facilitate the settlement of the dispute and reduce delays if the matter proceeds to court by clarifying legal issues

Steps Interrogatories – specific written questions concerning issues of fact that either party can serve on the other Must be answered within 60 days Any evidence obtained during interrogatories can be used at trial – this may save time at trial Discovery and production of documents – either party can request that the other party provides them access to any documents they intent to use in the case

During discovery either party can ask to see the following items: Electronic information stored on a computer Videotape, audiotape, discs Photographs Contracts Maps Plans Letters Receipts

Directions Hearings Definition: A directions hearing is a pre-trial hearing in which the presiding judge gives instructions and orders the parties to undertake certain actions, such as attend compulsory mediation, deemed necessary to prepare the parties for trial and prompt an efficient settlement of the dispute Purpose: Their aim is to reduce the time taken for the process before and during the trial, which results in a quicker, cheaper and more efficient resolution for the parties as well as the court system.

Task Create a visual diagram of civil pre-trial procedures with a brief explanation of each stage beside it

9.2 and 9.3 9.2 question 3 9.3 Questions 3, 4, 5 9.4 questions 1, 3, 4

Exam question Describe one purpose of a directions hearing in a civil proceeding (2 marks)

Answer: A directions hearing is designed to allow for a timely resolution by speeding up civil proceedings. It does this by ensuring all parties are informed about the case, therefore if it does proceed to court, it will save the time spent on clarifying issues. A judge may direct parties to attend compulsory mediation, further facilitating the possible early settlement of a case, allowing for a timely resolution of dispute as well as access to the legal syste.

9.2 answer Q. 3. A letter of demand is generally the first formal step taken in a process of litigation, and is a letter sent by the plaintiff (or their legal practitioner) to the defendant outlining the alleged breach of rights, the remedy being sought by the plaintiff and a time frame for the defendant’s response. It informs the defendant of the plaintiff’s intention to commence legal proceedings against them if the defendant does not satisfy the plaintiff’s demands.

Describe one pre-trial procedure that would have taken place before a civil trial in the Supreme Court 2 marks.

Distinguish between the purpose of civil and criminal pre-trial procedures (4 marks)

Sample Answer One purpose of criminal pre-trial procedures is to allow for a timely resolution of dispute. This is achieved through committal hearings, where cases that are not prima facie (do not have strong evidentiary support against the accused) do not proceed to superior courts if it is unlikely that a guilty verdict will be achieved. Whereas the general purpose of civil pre-trial procedures is to ensure both parties are informed about the action taken place and to clarify issues before trial, for example in discovery, where documents are exchanged between parties and parties are able to ask clarifying questions of the other side, enabling a timely resolution of dispute.

Discuss how do civil pre-trial procedures allow for an effective legal system (8 marks) Discovery, directions hearing and pleadings Civil pre-trial procedures allow for an effective legal system to an extent. One way in which civil pre-trial procedures allow for an effective legal system can be seen through directions hearings

Civil pre-trial procedures allow for an effective legal system to an extent. One way in which civil pre-trial procedures allow for an effective legal system can be seen through directions hearings. During this pre-trial procedure the judge gives directions to the parties in order to allow their case to be resolved in a timely manner. One such direction could be compulsory mediation. In this manner, both parties get an equal opportunity to discuss their case in the presence of a third, impartial mediator who facilitates conversation, allowing for a fair and unbiased hearing. However, if parties are sent to mediation, as it is so informal, a fair an unbiased hearing may not be ascertained due to a more experienced party dominating another. Civil pre-trial procedures also allow for timely resolution of dispute and access to the legal system through discovery. Through interrogatories and the discovery of documents, parties access evidence regarding the case which may in turn facilitate an out of court settlement. This resolves the dispute in a far more timely manner than if it were to go to court, and allows access to the legal system through the discovery of this evidence. However, this procedure may actually hinder the timely resolution of a dispute if there are a plethora of documents to be discovered, particularly if one party purposefully delays proceedings through these measures. Therefore, civil pretrial procedures such as discovery and directions hearings allow for an effective legal system, to an extent.

Explain what a directions hearing is and why it is held. (4 marks)

A directions hearing is a pre-trial hearing in which the presiding judge gives instructions and orders the parties to undertake certain actions, such as attend compulsory mediation, deemed necessary to prepare the parties for trial. In turn, this may facilitate an out of court settlement and allow for a timely resolution of dispute. The aim of a directions hearing is to reduce the time taken for the process before and during the trial, which results in a quicker, cheaper and more efficient resolution for the parties as well as the court system.