Civil Pre Trial Procedure

When one individual infringes the rights of another individual and that individual suffers damage as a result the aggrieved party has the right of action. Civil law deals with matters where persons who have been wronged seek to right that wrong or obtain a remedy (Milnes & Spindler 2004, p. 170).

The Australian civil pre-trial procedure to a large extent exists because of the encouraged opportunity to settle disputes outside the courts. This is mainly due to the large costs and lengthy time periods associated with trials.

To assist in the appropriate administration of cases the courts in Western Australia allocate specific courts on the basis of damages claimed by the plaintiff. Presently there are jurisdictional limitations on the WA courts as follows

• Magistrates Court- cases claiming up to $25 000
• District Court- cases claiming up to $250 000
• Supreme Court- cases claiming over $250 000

In initiating a legal dispute, the individual or organization that suffers the damage becomes the plaintiff (claimant) and the individual or organization defending the dispute becomes the defendant.

The adversarial system of trial in Australia administers that the plaintiff carries the burden of proof in the court. The standard of proof that the plaintiff is concerned is with the balance of probabilities, that being of a lower standard compared to criminal trials. However before this point is reached it is important to look at the process of the parties before they enter the court.

PLEADINGS: Pleadings describe the range of documentation that is involved in the beginning of the civil pre-trial process. They include the writ, statement of claim, memorandum of appearance, defence and counterclaim. These documents provide for both parties to outline their claims and plead to support their cases. Below they are in more detail.

Statement of Claim/Writ: Formal legal action can only commence when the plaintiff lodges a writ with the appropriate court. The writ will usually contain a full description of the legal action against the other party and specifies the remedy sought (Willmott & Dowse 2004, p. 327). The writ will also specify whether the case is to be heard judge or judge and jury alone.

Service: The defendant will be serviced with the writ in a legal manner typically this should happen within 12 months of the writ being lodged in court. When served, the defendant will become aware of the case against them and generally the amount of damages sought against them.

Memorandum of Appearance: The defendant will need to lodge a notice of appearance to the court within the time specified. If the defendant does not respond the plaintiff may seek to have the court enter a default judgment against the defending party. If the defendant performs the lodgment them they are accepting that they will defend the action sought against them.

Defence / Counterclaim: The reply by the defendant will then be the statement of defence which is a direct reply to the plaintiff’s statement of claim. The defence has a few options at this stage, accept to dispute all claims, part of the claims or produce a counterclaim which turns the responsibility of losses on to the plaintiff. It may also claim that the defendant has encountered losses because of the plaintiff.

FURTHER & BETTER PARTICULARS: The second major stage of the pre-trial process is the issuing of a further set of documents that collectively are known as further and better particulars (Willmott & Dowse 2004, p. 328). These documents give both parties once again to understand the details concerning the action at hand and also give them an opportunity outside of court to settle the dispute.

Interrogatories: Interrogatories are formal questions that can be initiated by either party after the pleading stage of the pre-trial. Interrogatories seek to reveal more about the issues already discussed in the pleading stage, these questions are prescribed to be answered in a specific time by affidavit and are made under oath. They promote a better understanding of the facts provided for the case and create cross checks for the party’s claims. This method also saves time in court as these will be used as evidence in the court.

Discovery: Once again, the defendant and plaintiff both have the opportunity to request inspection of documents in possession of the other party which can be called notice for discovery. Generally the main types of documents that are discovered will be reports, letters, photographs and any documents that have relation to the case. Both parties are required to disclose all documents in their possession, failure to do so will result in those documents being void in court.

Pre-Trial Conference System: After the facts of the case and all the evidence have been forfeited to both parties, there is an opportunity for both parties to offer a compromise to settle the dispute just before court. The pre-trial conference system seeks to accomplish a settlement before entering the court, because as is illustrated below, disputes that are settled out of court take away a considerable burden on the justice system by saving a large amount of time and resources.









Certificate of Readiness for Trial: If by this stage the parties are unable to reach a remedy, they may file a certificate of readiness with the court confirming that both parties have completed the pre-trial process. This certificate may also indicate how long the trial is expected to last, and the court will the n reply with a date set for commencement of the action in court.

Towards a Trial: There remain a few steps that occur before the trial is undertaken. If the plaintiff has elected for their trial to be heard by jury (which rarely come in to action), then the empanelling stage needs to occur, otherwise the judge will be the sole arbitrator for the dispute.
The court will then be summoned by the clerk of the court by announcing the details of the parties and then the formal legal proceedings will commence into a trial in the court.