1. Civil Procedure

2. Learning Intention Success Criteria Civil Proceedings
Elements of an effective legal system
Supreme Court civil pre-trial procedures, including pleadings, discovery and directions hearings, and the purpose of these procedures
The purpose of civil remedies
Types of civil remedies, including damages and injunctions
Problems and difficulties faced by individuals in using the legal system
Recent changes and recommendations for change in the legal system designed to enhance its effective operation
Justice & Outcomes 13e ISBN © Oxford University Press Australia, 2015

3. Elements of an Effective Legal System
Effective Access to the legal system
Entitlement to a Fair and unbiased hearing
Timely resolution of disputes
FAT!!
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4. Introduction to civil law
What is civil law?
A civil action arises when an individual suffers damage as a result of their rights being infringed by the actions or omissions of another.
Aim of a civil action
Restore the party whose rights have been infringed back to the position they were in before the act or omission occurred
Plantiff
(Complainant in Magistrates Court)
Defendant
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5. Areas of Civil Law
Torts (Wrong) Actions for negligence, defamiation, trespass or nuisance. Remedy is usually damages or compensation. Contract A breach of contract occurs when one party has broken the terms of the agreement.
Justice & Outcomes 13e ISBN © Oxford University Press Australia, 2015

6. Key Features of a Civil Case
Dispute between two individuals
Balance and burden of proof
Plaintiff myust prove on the balance of probabilities that their account of facts is right.
Purpose
To restore the injured partyt to their original position by providing a remedy to the dispute.
Justice & Outcomes 13e ISBN © Oxford University Press Australia, 2015

7. Types of Civil Disputes
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8. Activity
Conduct an internet or media investigation and find one recent dispute that has occurred between individuals or groups realting to two separate types of civil law.
Justice & Outcomes 13e ISBN © Oxford University Press Australia, 2015

9. Deciding to Take Civil Action
Questions to ask:
Am I likely to succeed? (should you lose, you will be required not only to pay compensation but also the costs. is it worth the time and inconvenience?
Which court will hear the case?
What will it cost?
Will I recover the costs?
Will the defendant be able to pay the costs?
What about publicity?
Who is to be sued?
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10. Class Actions
When several people have each suffered the same type of damage as a result of an infringement of their rights. It may be possible for a single legal action to be started on behalf of all people affected. Prevents individuals from being discouraged from takin action due to lack of resources, cost barriers or ignorance of legal rights.
Representative must demonstrate on behalf of the group that:
the claims arise from the same transaction or series of transactions.
there is a common question of fact or law.
it is convenient for the claims to be heard together.
In Victoria, representative proceedings are permitted in claims of damages.  All group members must consent in writing to be named in the case.
Justice & Outcomes 13e ISBN © Oxford University Press Australia, 2015

11. Activity
Read the article ‘Power to the people’ and answer the following questions:
Outline the key features of a Civil action. How do these differ from the features of a criminal case?
What factors would a person need to consider when thinking about taking legal action to enforce their rights?
Whjat is a representative proceeding?
What do you consider to be the main advantage of representative proceedings? Justify you view.
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12. Litigation – taking legal action in a civil case
Plaintiff decides to sue somebody
May obtain legal advice
May send a letter of demand to the defendant
Dispute resolution methods that can be used
Alternative dispute resolution – negotiation, mediation, conciliation, arbitration or collaborative law
Tribunal (VCAT)
Courts
Justice & Outcomes 13e ISBN © Oxford University Press Australia, 2015

13. Civil pre-trial procedures
Procedures that occur before a trial commences in a civil case in the County or Supreme Court
Justice & Outcomes 13e ISBN © Oxford University Press Australia, 2015

14. Pleadings
Series of documents exchanged by the parties, setting out the claims and defences
Purposes of pleadings
Require parties to state main claims and defences, allowing procedural fairness
Compel each party to state material facts and particulars they are relying on – avoids surprise
Give court a written record of the case
Sets the limits to the disputes
Justice & Outcomes 13e ISBN © Oxford University Press Australia, 2015

15. Pleadings Writ Statement of claim Notice of appearance
Commences the proceeding
Explains to the defendant that an action has been taken
Explains the mode of trial and where trial will be heard
Usually has a statement of claim attached or a general statement giving details of the nature of the claim
Statement of claim
Informs the defendant what the claim is about
Provides facts about the claim – the date of the wrong and the remedy being sought
Notice of appearance
First document filed by defendant
Informs the court and the plaintiff the defendant wishes to defend the claim
Time limits for filing
Justice & Outcomes 13e ISBN © Oxford University Press Australia, 2015

16. Pleadings Defence Counterclaim (optional) Reply (optional)
Responds to each allegation in the statement of claim
Informs the court and the plaintiff why the defendant says they are not responsible or liable, or why the claim is being denied
Counterclaim (optional)
Defendant may also make a claim against plaintiff
If counterclaim made, plaintiff will need to file a defence
Reply (optional)
Plaintiff may reply to certain parts of the defence
Further and better particulars (optional)
One party may file a request for further and better particulars (want more details of claim or defence)
Other party must respond
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17. Directions Hearings Heard before judge or associate judge
Discuss progress of case and allow directions to be made
Directions can include an order to:
file a particular pleading document by a certain time
file a particular application or a subpoena by a particular time
disclose certain documents
exchange written submissions
organise and attend mediation
Purposes include:
giving directions
setting a timetable for future steps
hearing any applications
determining whether it is appropriate for mediation to occur
allocating a date for trial
Justice & Outcomes 13e ISBN © Oxford University Press Australia, 2015

18. Discovery Facts and documents are disclosed
Main stage is called ‘discovery of documents’ – discloses existence of relevant documents
Purposes:
requires parties to disclose all relevant material and documents
reduces element of surprise and avoids a ‘trial by ambush’
ensures all parties have copies of relevant documents
allows each party to determine strengths/weaknesses of case
ensures each party has relevant documents
may assist in reaching out-of-court settlement
Justice & Outcomes 13e ISBN © Oxford University Press Australia, 2015

19. Discovery Discovery of documents Interrogatories
Party discloses all relevant documents
Usually files an affidavit of documents listing all relevant documents
Includes letters, s, notes, videotapes, films, recordings
Other party is allowed to inspect the documents
Interrogatories
Questions about the facts of the case which a person must answer
Can save time and avoid surprise
Discovery by oral examination
Follows interrogatories
If consented to by the court, the witness is examined
Medical examination and provision of medical reports
Normally involving personal injury, may require plaintiff to undergo medical examination
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20. Mediation Court may order the matter to be referred to mediation
Independent third party assists the parties to reach a resolution
Purposes:
provides opportunity to reach an out-of-court settlement
reduces costs if matter settles
allows parties to explore options not available in court
ensures parties can control and are certain of the outcome
eliminates risks involved in going to court
uses experience of an independent mediator
Justice & Outcomes 13e ISBN © Oxford University Press Australia, 2015

21. Strengths and weaknesses of pre-trial procedures
Justice & Outcomes 13e ISBN © Oxford University Press Australia, 2015

22. Comparison of purposes of criminal and civil pre-trial procedures
Justice & Outcomes 13e ISBN © Oxford University Press Australia, 2015

23. Remedies Desired outcome in a trial
General purpose is to restore the plaintiff to the position they were in before the wrong occurred
Main types of remedies
Damages
Injunctions
Damages: sum of money granted to the plaintiff to be paid by the defendant
Injunction: court order directing someone to stop doing something or to do something
Justice & Outcomes 13e ISBN © Oxford University Press Australia, 2015

24. Damages
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25. Injunctions
Can be either restrictive/prohibitive (ordering a person to stop or refrain from doing something) or mandatory (ordering a person to do a particular act)
Can be either temporary (interlocutory) or perpetual (permanent)
Examples:
Underbelly television series
McDonald’s Australia Ltd v. Watson [2013] VSC 502
pg 519
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26. Ability of remedies to achieve their purposes
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27. Supreme Court – List of Civil Cases
Justice & Outcomes 13e ISBN © Oxford University Press Australia, 2015