CIVIL PROCEDURE 2011 SEMESTER 1

Laura Marie Clare

Why Study Civil?

Well…what’s the use of knowing the law if you don’t know how to bring it to court

Things to Keep in Mind

What is the main aim of civil procedure?

Efficiency – e.g. summary/default judgment – remember “dismissal for want of prosecution”

Things to Keep in Mind Who are we advising? – don’t get

caught up – most past exams ask you to advise the PLAINTIFF but….

Semester 1, 2010 – this exam looked at the defendant’s point of view

Things to Keep in Mind What are we up to?

The facts are always in chronological order! Gives you a hint of what the examiner might be looking for (but not always….)

ALWAYS read the first line carefully – maybe make a timeline

They will tell you if you are to assume something or not (e.g. assume your answer to the question above was that H cannot transfer proceedings)

What Topics Are Covered? Jurisdiction Transferring proceedings Instituting proceedings Capacity Originating processes Limitations of actions Multiple parties & causes

of action Representative

proceedings (class actions) Service Appearance

Pleadings Discovery Interrogatories Notices to admit Subpoenas Interlocutory procedures Disposition without trial Settlement Trial Costs (enforcement)

CAREFUL! My notes DO NOT cover

the new Civil Procedure Act 2010 (Vic) OR

Enforcement/Appeals

Now - Some Revision I have put together a list of past exam

question and some original questions. I have not reproduced any ENTIRE exam in these slides

Revision Question #1 Semester 1, 2010 Can we move the proceeding to

Victoria?

Revision Question #2, Semester 2, 2007 What is a stale writ? What is the difference between Form 8A

and 8B? What are party/party costs and how do

they differ from indemnity costs? In light of Re Wakim – is the Federal

Court able to hear matters that ordinarily fall within the State SC jurisdiction?

Revision Question #3, 2000

Revision Question #3, cont

Revision Question #4, 1997

Revision Question #4, 1997

Revision Question #5, original X wants to sue Y for negligence. They

get their lawyers to prepare a Form 5A and SOC. They get a process server to go to Y’s house but he isn’t home. Instead, his friend Sally is home. They give the form 5A and SOC to Sally and explain that this is valid service of Y.

Is this effective personal service?

Revision Question #5(a) Would the answer be different if instead

Y was home but refused to unlock the door and let the process server actually hand him the documents – is it enough for the process server to

(a) slip it under the door? (b) put it in the letter box?

Revision Question #5(b) What else does the process server need

to do?

Revision Question #7 If costs are NOT reserved until the end –

when should you raise the issue of costs for interlocutory procedures?

Revision Question #8 The D realises that they might not win

against P and decide to quickly try and settle the matter. They go to P and offer him $100,000 in accordance with Order 26. The P ignores the letter and does not accept within 14 days.

The matter goes to trial and P gets $90,000 in damages and costs.

Revision Question #8 cont What is the significance of “in

accordance with Order 26?” When can the contents of the settlement

be disclosed in court? What cost orders might D ask for? What if it was P who asks the D for

$100,000 – what costs orders might P ask for?

Revision Question #9 P believes D has some really important

DVD’s that are relevant in evidence. If D shows these tapes, P is 100% sure the judge will find in his favour because they are VERY damaging to D’s case. P also believes that D might try and find ANY excuse he can not to disclose the fact that these DVD’s exist and might even try and throw them out or give them to his friend C to hold onto until the trial is over.

Revision Question #9 If D gives them to C – what could P try

and do? Because P is worried D might throw

them out – what order might P try and get?

If D disposed of the evidence – what sort of offence could he be guilty of? What would P need to prove? Is he likely to succeed?

Revision Question #10 P believes D pushed him down the

stairs at work (Edward’s Funeral Parlour) because he was worried P would finish all the lovely black tea in the work tea room if D didn’t get there first. P severely hurt his head and now suffers from neglect syndrome.

Assume you are D - answer the following Interrogatory written by P

Revision Question #101. Why didn’t you give me back my DVD of

Being Human Season I? 2. How long have you worked at Edward’s

Funeral Parlour?3. How did you come to work at Edward’s

Funeral Parlour?4. Who do Edward’s Funeral Parlour receive

their tea supplies from? 5. How do the other staff at Edward’s Funeral

Parlour treat you?

Any questions?