1. CIVIL PROCEDURE

2. Case study
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 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.

3. 1. January 2000: Kathleen Robertson of Austin Texas was awarded $780, 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, 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. 4. October 1999: Jerry Williams of Little Rock Arkansas was awarded $14, 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, 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, and dental expenses.

5. Key knowledge YEW

6. Supreme Court pre-trial procedures

7. Purpose:
1.) Make sure both parties are informed about the legal action and exchange documents – informs defendant case is brought against them
2.) Allows parties to determine whether to reach out- of-court settlement or to drop case
3.) Helps clarify issues if case proceeds to court

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

9. 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

10. 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

11. Statement of claim
This document is written by the plaintiff’s solicitor and sent to the defendant
It explains the specific details of the plaintiff’s claim, such as the facts alleged by the plaintiff and the remedy being sought
It is generally attached to the writ.

13. 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

15. 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

16. 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

17. Further and better particulars
The particulars or set of facts each party has outlined during the pleadings stage in either the statement of claim, defence or counterclaim, may not be enough to clarify the facts of the case, so further and better particulars may be requested by either party.
For example, in a dispute over a contract it may be argued in the statement of claim that the defendant broke the contract.
If the contract was an oral agreement, further and better particulars might include additional details of conversations that took place and the dates they occurred, as well as the terms that were allegedly agreed upon.

18. 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’.

19. Purpose
Assist parties to prepare for trial by gaining further information relating to case
Facilitate the settlement of the dispute
Reduce time and expense associated with the trial and settlement of the dispute as documentary evidence has already been seen
Narrow down the issues in dispute
Prevent either party from being taken by surprise by evidence at the trial and help ensure the case is determined on merit rather than tactics.

20. 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

21. 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

22. 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.

23. 9.2 and 9.3
9.2 question 3
9.3 Questions 3, 4, 5

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

25. 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.

26. 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.

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