the civil trial process

pre-trial

• aim to clarify dispute + gather evidence

• cases managed by courts in WA

  • since 2010 in all courts

  • ensures parties don’t waste time or $

case management

• involves judges taking control of pleadings

• further + better particulars phrases

• inspired by “active judge” concept from inquisitorial system

aims of case management

• promote early dispute resolution

• promote timely resolution of cases

• incorporate principle of proportionality

  • where cost + time spent on a case is in keeping with its value + complexity

• increased public confidence in judicial process

• max efficiency for use of limited judicial resources

pre-trial procedure

• writ of summons

• memorandum of appearance

• statement of claim

• statement of defence

• optional counterclaim

• discovery

• interrogatories

writ of summons

• issued by plaintiff against defendant

• initiates proceedings

• notifies courts

• notifies defendant of legal action against them

memorandum of appearance

• lodged by defendant

• notifies plaintiff + court that defendant intends to contest

• if defendant cannot lodge MoA they may ask court to make judgement against them

statement of claim

• lodged by plaintiff

• itemised list of claim + facts

• outlines allegations against defendant

• helps ascertain what is in dispute

statement of defence

• lodged by defendant

• itemised list of responses to each claim by plaintiff

• helps clarify what is in dispute

optional counterclaim

• lodged by defendant

• claims may be made against plaintiff

• accompanies statement of defence

discovery

• by plaintiff + defence

• each party must prepare a list of docs relevant to case (digital/written/other forms)

• both parties may inspect other docs

interrogatories

• by plaintiff + defence

• formal written questions sent to each other

• parties must respond by writing under oath (affidavit)

• helps clarify facts and decide what evidence to be presented @ trial

trial process

• same as criminal except for SoP and verdict

• verdict

  • judge considers argument + evidence

  • determines judgement in favour of one party on BoP

  • may determine outcome + remedy on separate occasions

if defendant wins

• may be awarded $ payed by plaintiff to compensate for $ caused by legal action

monetary damages

• compensatory damages

  • general damages eg. pain and suffering

  • specific damages awarded for measurable economic/financial loss

• nominal damages

  • acknowledgment of a wrong

• aggravated damages

  • due to deliberate humiliation/harm

• punitive damages

  • designed to deter/punish offender/others

remedies for defamation

• damages

• injunction preventing a party from doing something wrong

• orders of specific performance forcing public apology