The purpose and operation of civil pre-

trial proceduresChapter 9.3

Why did this case not go to court?

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Out-of-court settlement

• Going to court is costly and time consuming• It is hoped an out-of-court settlement can be reached• This means;The defendant may offer the plaintiff a remedyThe plaintiff may drop proceedings against the defendantBoth parties may reach a compromise

Pre-trial procedures

• Steps taken before the case goes to trial• Aim is to get both parties to reveal what they know about the case

lots of written information is exchanged• The strengths and weaknesses of both sides becomes clear through

the exchange of this information• It is then more likely that a settlement may be reached• It is more likely the court case will run more smoothly and efficiently

Preliminary step - A letter of demandCanterbury Conway10 Collins Street

Melbourne 3000

Telephone: 9234 5678

Email: cancon@xmail.com.au21 July 2012Mr B Sampson

Services United

10 Beckers Road

Elsternwick 3185Dear Mr Sampson

I write on behalf of my client Mr George Sesnock who was in employment at your company, Services United, from 2000 to 2005 as a technician.My client is now in the later stages of alcoholism according to his psychologist and suffers from severe depression and is said to be suicidal. He is unlikely to ever work again. As part of Mr Sesnock's work he was required to travel in country Victoria and interstate and was away from home for prolonged periods of time. During such trips in his after work hours he was exposed to a work culture in which drinking and taking drugs was the ‘norm’.My client asserts that Services United breached a duty of care by requiring him to work away from home for lengthy periods of time and that during these absences he was subjected to a culture of drinking and drug taking that ultimately led to a major breakdown in 2004 and the cessation of his work in 2005.My client's loss and damage is $256 000 as a result of your company's negligence but Mr Sesnock is willing to settle for $190 000 if this amount is paid within 14 days. If you do not pay $190 000 within 14 days we have instructions to commence legal proceedings against you.Yours faithfullyRobin Canberbury

Solicitor for Canterbury Conway

Your Turn ! Now complete a letter of demand written for the Bellerini v. Berrigan Shire Council

Civil pre-trial procedures

Discovery of documents and Directions hearingDiscovery of documents e.g Videotapes, photographs, maps or plans may be of assistance • The discovery process may even lead to an out-of-court settlement as the evidence

revealed may be so strong that the case is dropped, • or a sum of money is paid to settle the matter without the need to go to trial. • At any time during the pre-trial stage, a directions hearing may take place where a

judge gives directions to the parties to assist them in their preparation for trial. Directions hearing may order both parties to participate in mediation by a certain date so that both parties have at least tried to settle the dispute before going to trial. • Another example is, if the case involves inspection of emails that were sent by the

defendant, the judge may facilitate the other party having access to view the electronic documents

Civil pre-trial procedures

• Using the diagram on page 235 complete the civil pre-trial procedures for the Ballerini v. Berrigan Shire Council.• Use the table provided for assistance

Vocabulary

• A writ is a legal document served on the defendant by the plaintiff, which states that legal proceedings have been commenced. The writ may contain an endorsement of claim and it informs the defendant how to respond to the writ.

• A statement of claim is a legal document filed by the plaintiff setting out the claims made against the defendant in a civil action.

• A notice of appearance is a document filed in the Supreme Court of Victoria by the defendant's legal counsel that acknowledges a writ has been received.

• A statement of defence is a legal document sent by the defendant to the plaintiff in response to the statement of claim. It sets out how the defendant plans to deal with claims made against them.

• A counterclaim is a claim lodged by the defendant in a civil action. It is usually the plaintiff who has a claim or claims against the defendant, but sometimes the defendant may wish to make a counterclaim to the effect that the plaintiff has in fact infringed the defendant's civil rights.

• Further and better particulars usually form part of the pleadings between both parties, but sometimes it is necessary to ask for further and better particulars if particulars have been too vague or perhaps non-existent.

• An interrogatory is a document containing the answers to a series of questions posed by the opposing party prior to a court hearing. The purpose is to gain information and agree on facts before the trial commences. It can also facilitate an out-of-court settlement.

A Writ

Statement of claim

Notice of appearance

Notice for Discovery

Complete questions 1-6 page 236