CIVIL PROCEDURE

1
CIVIL PROCEDURE
2
(No Transcript)
3
PLEADINGS

• WRIT In civil law a writ is sought by a
  plaintiff to require that a defendant redress a
  wrong for example by paying damages or to
  disprove the claim.
• STATEMENT of CLAIM A full description of the
  action between the two parties and a
  specification of the remedy being sought. (This
  elaboration states to the court why you actually
  have a case)

4

• SERVICE The formal writ is delivered to the
  defendant. (You have been served) Must be
  delivered in person. There is a time limit
  between lodgement of the writ with the court and
  the serving of the writ 12 months.
• NOTICE OF APPEARANCE When the writ is accepted
  by the defendant they lodge a notice of
  appearance with the court to acknowledge that
  they will defend the claim. If they do not
  respond to the writ, the court may enter a
  default judgement against the defendant.

5

• DEFENCE and/or COUNTERCLAIM The defence lodges
  a document which responds to the claims of the
  plaintiff. May admit to all, or some, or none of
  the claims. The defendant may also seek a
  counterclaim against the plaintiff.

6

• WRIT STATEMENT OF CLAIM SERVICE
  NOTICE/MEMORANDUM OF APPEARANCE
  DEFENCE/COUNTERCLAIM
• PLEADINGS

7
FURTHER AND BETTER PARTICULARS

• INTERROGATORIES A formal set of questions
  served by either the plaintiff or defendant on
  each other.
• - must be answered within 60 days by affadavit
  (under oath)
• - they are filed in court as evidence and can
  be used in the trial

8

• DISCOVERY Both sides have the right to serve a
  notice of discovery on each other.
• - documents, reports, photos, letters and any
  other information relevant to the case
• - a side can not refuse to provide discovery
  just because it may be detrimental to their case.

9

• CERTIFICATE of READINESS FOR TRIAL The
  processes so far are designed to clarify the key
  issues. If settlement can not be reached, the
  parties will seek a certificate of readiness for
  trial.
• - indicates the pre-trial process has been
  completed and how long the trial should take.

10
UNDERSTANDINGS

• The lengthy pre-trial process is designed to have
  the two parties settle their own dispute.
• Is designed to keep matters out of court
• When in court, only the key issues are being
  contested
• Is only once all pre-trial procedure in complete
  (Pleadings Further and Better Particulars) the
  court begins to play an active role the dispute
  resolution

11

• Other Issues
• Juries
• Case may be heard by a jury of 6
• Plaintiff may feel a jury will be sympathetic to
  their case
• EG1 Andrew Ettinghausen jury awarded him
  350,000 damages for defamation. On appeal the
  Judge reduced this by 100000
• EG 2 Catholic Schools in NSW had to pay 2.5
  million for strapping a lad
• Some plaintiffs will avoid juries especially
  large corporations with large volumes of funds
  EG McDonalds, Tobacco Companies and Banks

12

• 2. Remedies
• Different types
• 1. Damages
• 2. Orders
• 3. Injunctions

13
DAMAGES

• Compensatory damages-
• 1. Specific damages this is where a precise
  amount of damages are being sought by the
  plaintiff. For example, the recovery of medical
  expenses or the repair of damaged equipment.
• 2. General damages compensation for
  unquantifiable amounts. Often this will be used
  to claim for emotional distress.

14

• EXEMPLARY DAMAGES
• Can be awarded againinst a defendant in order
  that their conduct be made an example to the
  community.
• EG Exxon Valdez Judgement
• An Anchorage jury awarded 287 million for actual
  damages and 5 billion for punitive damages. The
  punitive damages amount was based on a single
  year's profit by Exxon at that time.
• These are punitive damages are designed to punish
  the defendant.

15
The Exxon Valdez ran aground in Alaska's Prince
William Sound in 1989, spilling more than 270,000
barrels of crude oil. The slick covered roughly
1,500 miles of Alaskan coastline.
16

• NOMINAL DAMAGES Damages are awarded only to
  prove a point of principle. Essentially, the
  plaintiff is not seeking financial compensation,
  but a judgment from the court.
• Perhaps the most famous nominal damages award in
  modern times has been the 1 verdict against the
  National Football League (NFL) in the 1986
  antitrust suit prosecuted by the United States
  Football League.

17
(No Transcript)
18
(No Transcript)
19
ORDERS

• ORDERS OF SPECIFIC PERFORMANCE orders made by
  courts and compel certain parties to fulfil their
  obligations.
• - maybe have to fulfil a contract
• - courts will generally not make an employer
  reemploy an employee but may award some level of
  financial compensation.

20

• ORDER OF RESTITUTION and RECISSION
• A court order to return property to the plaintiff
• Recission refers specifically to nullifying a
  contract if it becomes impossible for the
  contract to be completed