Have you ever wondered what happens before you have your day in court? This article will flesh out exactly what to expect before you actually have a trial, the pre-trial procedures.

Case Management

To reduce the amount of time litigation takes generally, many courts have integrated case management into the principles on which the courts are founded. These systems of case management are characterised in the following ways:

  • Actions are commenced only when they satisfy the court’s standard timetable requirements for hearing and preparation;
  • Certain documents need to be given to the other side at the beginning of the action, such as medical certificates in a personal injury claim that the plaintiff intends to use;
  • Extensions and adjournments are rarely granted;
  • Matters are resolved through methods of alternative dispute resolution wherever possible.

Settlement

Parties may choose to settle the matter at any stage before the matter is determined. Some Courts have certain procedures that must be followed if a party wishes to make an ‘offer of compromise’, which is a method for encouraging early settlement. While offers of compromise are not to be taken into account if the matter goes to a hearing, they will have an impact on the court orders relating to party costs. Any party’s failure to agree to an offer of compromise that falls inside a range of the award made by a judge at a hearing will lead to a ‘special costs order’ being made in favour of the party that made the offer of compromise.

Interlocutory Applications

Before going to a hearing, the parties are required to make interlocutory applications. To make such an application, parties normally file a ‘notice of motion’, which is served on the parties involved in the matter. An affidavit typically accompanies notices of motion. An affidavit is a sworn statement of what evidence will support a motion. It is sworn in the presence of a justice of the peace or a solicitor. There are many different applications a party may make during the interlocutory stages of a hearing, including:

1) Particulars

If one party seeks to clarify information in any of the pleading documents, such as the statement of claim, and the other party will not agree to release the documents, an application to the court may be made for an order to release this information.

2) Discovery

Discovery is an opportunity for each party to look at the relevant documents that the other party holds. Sometimes, in certain jurisdictions (courts), one party may request to inspect particular documents or otherwise an application to the courts may be made to gain access to certain documents. Some documents are privileged, i.e. they’re confidential between lawyer and client. This might refer to any documents used in getting or giving legal advice.

3) Interrogatories

If you need the other party to answer certain questions, you can serve the counterparty with ‘interrogatories’ to obtain sworn answers. These answers may then form part of the evidence to be submitted at a hearing. The rules about what questions you can ask are stringent. Objections can be made if the interrogatory questions are irrelevant, oppressive, confidential or vexatious (which means annoying and a waste of time). If one party is not forthcoming, a court may order them to provide further answers. Failure to do so can result in a party’s case being ‘struck out’ altogether.

4) Medical Examination

If there is some issue relating to the medical condition of a party, normally both sides will demand a medical examination of the person. These examinations are ordinarily conducted informally, although a court has powers to order such an examination. Whichever party serves the notice to have a medical examination is required to pay all reasonable expenses of that party, including travel.

5) Withdrawal and discontinuance

If you wish to end the proceedings as the plaintiff, you may do so at any time prior to a hearing with the approval of the court.

6) Setting Aside Default Judgment

A fairly common type of interlocutory application is to have a court set aside the default judgment. A default judgment occurs when the defendant fails to meet the time requirements of the Court rules, such as not filing a defence in the District Court within the prescribed 28-day period. If you want to have the default judgment set aside, you must apply to the relevant court and provide affidavit evidence detailing the reasons for having defaulted, and you must have a reasonable defence.

7) Subpoenas

Subpoenas require a party to attend court in order to provide documents or give evidence. It is part of the court’s rules that subpoenas are served within a reasonable time of the compliance date. The Court in certain circumstances will prescribe specific time periods.

Conclusion

The pre-trial procedures can be complex in nature, which is why it is important to have legal advice every step of the way. If you are looking at starting litigation, or need legal assistance with a matter, contact LegalVision on 1300 544 755 and one of our litigation specialists will be happy to assist.

Lachlan McKnight

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