LEGAL SAC AOS2A

Types of pre-trial procedures

Types of pre-trial procedures

• pleadings

• discovery of documents

• exchange of evidence

pleadings

• a series of documents filed and exchanged between to a court proceeding - sets out & clarifies the claims & defences of the parties & helps define the issues in dispute.

• 2 main documents in pleadings:

• statement of claim: document filed by the plaintiff → sets out in detail the plaintiff’s claim and remedy sought.

• defence: document filed by the defendant → sets out the defendant’s response to each of the plaintiff’s claims.

if claims and defences not included in the parties’ pleadings - cannot make new claims and raise new defences later in court.

purposes of pleadings

• Achieve procedural fairness: require the parties to state the main claims & defences → ensures that the other party knows what the claim or defence is about.

• Reduce the element of surprise: by compelling the parties to state material facts & particulars they are relying on to prove their claims & defences, avoids taking an opponent by surprise (esp if the case proceeds to trial).

• Give the court a written record of the case: allows the courts to understand the issues so that it can manage the trial & pre-trial procedures.

• Set limits to the dispute: enables other procedures, eg discovery, to be confined to the issues in dispute.

• Promote/assist in an out-of-court settlement: gives parties opportunity to assess strengths of their opponent’s case → parties may decide to pursue another strategy to settle claim before trial, where appropriate.

discovery of documents

• enable parties to swap copies of documents that are relevant to issues in dispute. eg written contracts, medical records, emails, videos. → other side is entitled to inspect these documents.

purposes of discovery

• Disclose/reveal all relevant documents: promotes fairness and justice as all parties & the court have access to all relevant material (access to info) required to achieve a just outcome.

• Reduce element of surprise/avoid trial by ambush: ensures both parties know the documents that will be used → parties can be prepared & avoids risk of surprise during trial.

• Out-of-court settlement/determine strength of opp’s case: promotes chances of an out-of-court settlement as parties can assess the strength of their opponent’s case and their own likelihood of success.

exchange of evidence

• refers to evidence/testimonies that the plaintiff and defendant generally need to rely on in order to prove their case.

• 2 types of evidence (given by witnesses):

• lay evidence: evidence given by an ordinary person. → lay person may testify what they saw/heard.

• expert evidence: opinion evidence given by an expert on an area in their expertise.

lay evidence can be given:

• as a witness outline - a brief description of the topics the witness will cover in testimony.

• by filing a witness statement - the written form of the witnesses’ testimony.

• orally at trial - the evidence is given via: examination in chief, cross examination, & re-examination → don’t have to give outline or statement if orally.

purposes of exchange of evidence

• Uphold procedural fairness as each party has access to information about the dispute and relevant documents.

• Reduce the element of surprise____/avoid trial by ambush, particularly where the evidence is disclosed in writing and before trial.

• Allow parties to determine the strength of opponent’s case and their likelihood of success by assessing the strength of the evidence .

• Provide the parties the opportunity to challenge/rebut opponent’s expert evidence by engaging their own expert.

• Promote an out-of-court settlement by allowing defendant understand amount of damages plaintiff is seeking to enable opp. to consider whether it may be better to settle dispute out of court.

Factors to consider when initiating a civil claim (NECLS)

1. negotiation options

2. enforcement issues

3. costs

4. limitation of actions

5. scope of liability

1. negotiation options

• involves the parties interacting directly with each other to try & resolve the dispute. → negotiation normally involves informal discussions about issues in dispute about what the plaintiff is seeking & what other party is prepared to do to resolve dispute.

• other possible negotiation options:

• use of an independent third party (eg mediator) → known as facilitated negotiation.

• arranging negotiation through a body (eg dispute settlement centre vic)

when negotiation may not be an option

• one/both parties does(n’t) want to resolve dispute or negotiate

• has already been failed attempts to negotiate dispute.

• harm/threats & violence, fear/distrust involved

• no issues/disputes to be negotiated

• unlikely negotiation will be successful

• urgency in having matter resolved through court

• significant power imbalance

benefits of negotiating

• cost, time & stress involved in commencing a formal civil action may be avoided.

• control over the outcome as opposed to being decided by 3rd party. → parties can choose how to negotiate & what they are prepared to accept as outcome.

• greater acceptance of outcome (win/win) → as they themselves had a say in/influenced outcome and not imposed by another.

2. enforcement issues

• difficulties enforcing the resolution

• 2 ways that a plaintiff can obtain a settlement or remedy:

→ out-of-court settlement: by settling with the defendant before the court/tribunal hands down a decision

→ dispute resolution body: by obtaining a remedy from a dispute resolution body such as a court

• once a settlement has been reached by the parties/remedy is imposed by the court, the settlement needs to be enforced.

• whether defendant pays [damages] depends on these factors:

→ bankruptcy

→ inability to pay

→ jail

→ overseas/uncontactable

→ knowledge of who defendant is (plaintiff might not know defendant)

→ willingness - leading to enforcement proceedings

3. costs involved

• fees for legal rep (CLECS): high costs of legal rep can be prohibitive.

cost depends on:

→ complexity of case

→ length of proceedings

→ expertise of the lawyers

→court in which case will be heard

→ size of case (witnesses, docs, etc)

• disbursements: ’out of pocket’ expenses/fees other than legal fees incurred as part of a legal case (eg expert witnesses, mediation, court fees).

→ expert witness fees - plaintiff’s claim may require expert to give their opinion depending on claim. expert will charge a fee for their work.

→ mediation fees - when plaintiff initiates claim in court, court will often order parties to attend mediation before trial. mediation vary between $2000 - $20,000 per day depending on nature of claim and mediator.

→ court fees - if plaintiff issues claim in court, court will charge certain fees (eg application, filing, hearing, jury fees)

• adverse costs order: a court order that a party pay the other party’s costs - the unsuccessful party usually pays for other party’s legal costs as well as their own.

→ fear of having adverse costs order made against them deters plaintiffs from initiating claim

• legal aid: eg VLA provides assistance to those seeking legal advice and rep for some civil disputes.

→ however, focuses on people who need it most & has limits on the amount of legal aid that can be provided to particular cases.

4. limitation of actions

• the restrictions placed based on the time within which a civil action can be commenced.

• for most claims, plaintiff will need to commence proceeding within certain no. of years/months → once period has passed, defendant may be able to raise defence that plaintiff is out of time/can no longer bring claim

• rationale for imposing limitations on plaintiff:

→ defendant doesn’t have to face action after significant amount of time.

→ evidence is not lost & people can still remember what happened

→ disputes can be resolved asap

• imposed by Limitations of Actions Act (VIC)

• Defamation = 1 year, Breach of contract = 6 yrs

5. scope of liability

• before initiating a claim plaintiff needs to determine: possible defendants & to what extent the defendant may be liable.

• possible defendants

defendant: the person who is alleged to have infringed plaintiff’s rights or has directly caused harm to plaintiff. - there may sometimes be 2 or more defendants.

parties other that may be liable & sued from whom compensation is sought (although didn’t directly harm/infringe plaintiff):

• employers (vicarious liability) - for employer to be liable, plaintiff must establish that employer was:

- an employer

- acting in course of employment

• insurers - insurers often run the case because they make the payment in the end. insurers agree to provide compensation to the insured if they suffer some form of loss.

→ vicarious types of insurance:

- insurance for directors & officers of companies

- public liability insurance (insurance for injury to 3rd party & their property)

- workers’ compensation (insurance that may be paid to employer who suffers injury during employment)

• persons involved in wrongdoing (accessorial liability):

- aided, abetted or procured the wrongdoing

- induced or urged the wrongdoing

- were in any way, directly or indirectly, a party to the wrongdoing

- conspired with others to cause the wrongdoing

Consumer Affairs Victoria (CAV)

• CAV is a complaints body that offers dispute resolution services to people who make a complaint about another party.

• Jurisdiction:

- Consumers & Traders - supply of goods/services $40,000 or less

- Landlords & Tenants - complaint by tenant (about rented property, room housings, caravan park disputes etc)

- Goods & services provided under contract in relation to Retirement villages

- Owner’s corporations

doesn’t deal with discrimination, employment & family.

• CAV uses conciliation

• mostly offers services over the phone

• parties can sign deed of settlement to make legally enforcable

CAV purpose

• resolve civil disputes efficiently and effectively

• ensure that any inappropriate conduct is stopped

• help any party that has been wronged seek compensation

CAV’s role:

1. Reviewing consumer legislation & making recommendations to the Victorian government

2. Providing info & guidance to educate people about consumer laws

3. Enforcing compliance with consumer laws.

4. Providing a dispute resolution process that can assist to settle disputes efficiently and constructively w/o any cost.

Appropriateness of CAV

1. whether dispute is within jurisdiction

2. whether dispute is likely to be resolved

3. whether there are other/better ways to resolve the dispute

4. whether issue has already been dealt with by courts, CAV or VCAT

5. whether the consumer has tried to resolve the dispute themselves first

6. whether the complaint warrants CAV’s involvement (not trivial)

7. if consumer is vulnerable/disadvantage

consider other/better ways if:

1. best resolved through binding order (eg court)

2. other party is unlikely to take it seriously/show up

3. one party prefers formality of court process

4. matter is too big/complex

5. resolution of matter is urgent

CAV strengths and weaknesses

→ strengths:

• free

• informal

• procedural fairness - both sides present and rebut

• assess disputes case by case - reduce wasting time and resources on disputes unlikely to resolve thru conciliation

• timely manner - compared to court

• parties reach resolution

→ weaknesses:

• role/jurisdiction is limited

• no power to compel parties to undergo conciliation

• no powers to enforce decisions reached

• not all cases accepted

• party(ies) may not take matter seriously

Victorian Civil and Administrative Tribunal (VCAT)

• VCAT is a tribunal, which is a dispute resolution bodies which deals w/ a limited area of law & build up expertise in that area.

• Purpose:

→ C (low) Cost -

• Filing fees low eg $3000 and under standard fee $67

• hearing fees lower than courts ie no hearing fee for under $15k

• represent themselves - don’t have to engage legal rep. = costs reduced

→ Accessible – informal atmosphere

• not bound by strict rules of evidence/procedure

• informal process

• docs can be lodged online + phone, vid conference instead of attending in person

→ Timely – hears cases in a ‘reasonable’ time (efficient) eg has typically resolved almost 85,000 cases per year.

• no pre-trial procedures

• usually heard & dealt w between 2-10 wks

• hearing usually a day or less

→ E (uses) Experts in each list (high quality dispute resolution) - VCAT members are independent and act as unbiased.

• Can’t hear:

→ Representative proceedings

→ Employees and employer

→ Neighbours

→ Drivers in car accidents

→ Tenants with other tenants

→ Under state or fed law

dispute resolution methods at used at VCAT

1. Mediation - preferred method of dispute resolution by VCAT

→ Fast track mediation & hearing also available:

• short mediation & hearing option for claims about goods/services under $3000

• parties able to compromise and reach agreement, avoid hearing - if outcome not achieved, matter heard at hearing same day and VCAT member makes decision.

2. Compulsory conferences - conciliation used

→ def: a confidential meeting between the parties in a dispute in the presence of 3rd party to discuss ways to resolve.

3. A final hearing - if matter not settled at mediation, compulsory conference or in any other way (basically uses arbitration)

→ parties present case → vcat member makes binding decision - vcat member has obligation to conduct proceedings w little formality & technicality but can adopt rules of evidence/procedure.

→ types of VCAT orders:

• orders requiring party to pay money

• “ “ do something eg perform work

• “ “ refrain from doing something

• orders declaring a debt is owing/not owing

• review, vary or cancel contract

• dismiss a claim (where applicant has been unsuccessful in providing claim)

VCAT pros, cons + appropriateness & other/better ways

in image lol

Representative proceedings

legal proceedings in which a group of people (7 or more) who have a claim based on similar/related facts bring a case to court in the name of one person

• pros:

• cons: