Civil Procedure Essay Example

  • Category:
    Law
  • Document type:
    Assignment
  • Level:
    Undergraduate
  • Page:
    5
  • Words:
    3401

In acting for any client seeking relief for a particular matter, a solicitor must be able to fully comprehend and understand the facts given by the client. A firm through its solicitors ought to retain a client who has a sufficient and valid claim as opposed to frivolous and vexatious cause of action. In preparing for this case; one would seek to;

  • Ask Bill to give the full and unadulterated version of the story, how it begun, the nature of the relationship with the defendant as well as the current status of the case.

  • One also needs to record all the information given by the client, reducing it to writing in order to have a full account of the story and for easy reference.

  • I would also ask Ben to give any documents that would support his cause of action such as receipts for all the services he has rendered, and even documents that can be detrimental to his case.

  • I would also ask whether he has any witnesses who would validate his claim against his brother Ben

In confirming whether Bill is authorized and has the capacity to give the instructions I would seek to ensure that;

  • I have a direct conversation with Ben preferably face to face communication as opposed to phone calls or email.

  • Confirm the identities of the defendants.

  • I would also ask Bill to sign a written statement of proofing the statement that have been given.

In the first instance, a law firm is a business and I would not allow myself to be blinded with the emotional aspects of any case and my financial matters should be taken care of before I embark on the case.

  • I would give Bill a statement of the potential cost of the legal suit disclosing the whole cost of the suit as per section 260 of the Legal Profession Act (LPA) 2008

  • I would draft a cost agreement to give certainty that Bill will pay the cost of the suit under the LPA 2008 evidenced in writing section 282.

  • The most important aspect of protecting my clients’ interests and costs would be to set up a trust account where the trustee will hold the cost with me being the beneficiary of the trust fund after I have finished my obligation in representing Bill. This is according to section 205 if the LPA.

In any proceedings it is mandatory under statute law and legally to give the other party sufficient time to determine whether they would consider an out of court settlement or proceed with the suit. The out of court settlement can include arbitration, mediation or family reconciliation before litigation.

A notice usually gives the defendants to determine whether it is prudent to continue with the suit since they will know whether it has merits or not.

It is an ethical duty imposed on any solicitor that they must give notice to the other party as professional obligation in relation to costs. A notice is also important since it is contrary to the interest of justice to ambush a defendant with a legal suit.

The only time that a plaintiff can be exempted from giving a notice is when the defendant resort to violence, destroy the assets or dissipate the asset in anticipation of the suit.

The court according to the Civil Dispute Resolution Act 2011 and under section 182 of the Civil Procedure Act (NSW) 2005 that a court can entertain a matter as long as all other avenues of dispute resolution.

  • Family reconciliation would be ideal in this situation since Ben and Bill are members of the same family. Reconciling the parties and coming to an agreement would prevent the rigor of litigation.

  • The out of court settlement arrived at either through mediation, negotiation, conciliation or arbitration.

  • Conflict of interest between the client and the solicitor can be a limitation to the proceedings since it will affect the client-solicitor relationship.

  • Jurisdiction is a limitation to the suit if the case is not filed and the proper and appropriate court.

  • If the suit is statute barred due to being filed after the expiry of the limitation period it cannot be heard and determined by a court.

  • The failure to carry out due diligence and giving proper advice to a client can be a limitation to the suit.

  • Proper and ethical notification of intention to sue can be a limitation to the suit since one would be acting in bad faith to the detriment of the other party.

  • Failure to exhaust of all other avenues of dispute resolution section 18E of the Civil Procedure Act 2005

An originating process is a document issued out of the court that commences proceedings usually as a writ and is considered to be an administrative process and not a judicial process (Clarke v Bradlaugh (1981) 8 QBD 63. In Ben’s case the best originating process would be a statement of claim since it sets out the material facts and relief sought.

It is highly probable that there would be a contest between Ben and Bill since there was a breach of agreement especially since Bill failed to meet the obligations of a contract deed he had not even read. A statement of claim would state the facts in issue and the disputed facts, set out the particulars of each case and the relief sought by the parties.

In the case of Elsum v Jameson (1974) VR 529 it was held that an endorsement must concisely state the nature of the claim, the cause and the remedy.

The defects are;

  • It fails to concisely state the nature of the claim and it generalizes the matters.

  • It does not give the date when the cause of action arose.

  • It does not precisely state the nature of the relief sought by the parties according to Order 6 Rule 1(1) of the Supreme Court Rules.

  • The endorsement contravenes Order 20 Rule 2(2) since it contains allegations or claims in respect of a cause of action since they are facts that gives rise to the cause of action

  • It is not signed.

Ben can be served is through personal service by giving Bill a writ showing him an original copy or an office copy of the writ according to Order 72 rule 2 provides that one way.

If Ben is out of the jurisdiction of the court, Bill can seek leave from the court to effect service out of Jurisdiction even though Perth is not outside WA but within Australia under the Service and Execution of Process Act 1992 (Cth)

Substituted service is also allowed under order 72 rule 4 (1) of the SCR when personal service is impracticable supported by an affidavit. Leaving a notice at Ben’s last personal address, a public notice through the newspaper, short message code or Facebook as held in the case of Bulldogs Rugby League Club v Williams [2008] NSWSC 822. This can also be done according to Rule 105 (d) of the MCCPR that service can be by leaving the process with a person at the defendant’s premises above the age of 18.

In this case Ben’s solicitor can seek leave from the court to strike out the suit through a preliminary objection or a summary dismissal of the suit for failure of meeting the legal threshold for filing a valid endorsement claim since it is an unsigned writ.

The failure of effecting proper service is also aground for summary dismissal since the law requires that a defendant must be served effectively.

  • The pleadings must be divided into separate paragraphs with each allegations contained in a separate paragraph

  • It failed to name the specific properties that are the subject matter of the dispute

  • The first paragraph fails to name the plaintiff and defendants personally, giving their names, address as well as whether they have appointed solicitors to represent them.

  • The paragraph 2 fails to give relevant facts about the agreement that was breached

  • It fails to specifically plead matters in issues or the cause of action

  • It fails to address the factual surroundings of the clients claim for damages and its particulars

  • Failing to specifically state the loss incurred, too generalized

  • No sum for damages has been stated

  • Interest on liquidated sum/special damages pursuant to what act is not stated

  • Use of particulars in support of the damages pleaded

In respect of a defective statement of claim a defendant can seek an out of court settlement or it can avoid the litigation costs. The defendants can also seek to have an order of summary dismissal or a summary judgment since the suit does not state correctly the cause of action, material facts and the specific remedies sought.

The failure of filing any defence or statement of claim would lead to the issuance of a notice to the plaintiff and the defendant that the suit is an abuse of the court process. The court will issue a notice to show cause so that the parties can tender evidence why the statement of claim or the defence should not be struck out.

The court can also penalize the defendants and plaintiff with cost orders payable forthwith for breach or the rules and directions of the court. This is done through filing of an affidavit and if the court is satisfied with the reasons it can order for the case to continue.

Order 21 Rules 1 and 3 gives provision that the plaintiff may amend the writ once without leave before the close of pleadings except if it is to substitute a part, alter the capacity for which the a party is suing or a statement of claim attached to the writ. The Civil Procedure Rules at order 21 Rule 3(1) and 2 that a plaintiff is entitled to amend a pleading without leave of the court up to 7 weeks before the commencement of trail and the other party may filed an amended pleading 10 days of being served with the amended pleading.

According to Lord Brandon in Ketteman v Hansel Properties Ltd [1987] AC 189 that an amendment to a statement of claim cannot be denied since it allows for the real questions to be decided, it is an honest, free of fault or mistake of one party as long as the amendment would not prejudice the rights of the defendants.

A summary judgment is awarded before the commencement of the suit since it determines that no purpose would be served if the suit goes full trial. Summary judgment would be given by a court of law if;

  • The plaintiff would still be successful even if evidence was admitted to prove the assertions alleged in the defence.

  • For the defendant even if evidence was admitted to prove all the assertions alleged in the statement of claim the defendant would be successful.

The party must file a notice of motion seeking for summary judgment accompanied by an affidavit to support the application such as correspondence of faults of defence or annexure. The application must satisfy that; the defence is faulty and cannot succeed, there is no possibility of a good cause of action, if the proceedings continue it would be causing undue expense. In Rajski v Powell [1987] 11 NSWLR 522 the court stated that the case must be obvious that the court must only look at the statement of claim and know that it cannot succeed. A summary judgment is a final judgment; it can be appealed against and is available if the matters are undefended in their substance

The first instance of case management is through the court process where the parties file the documents necessary for the case with the Registrar. If the solicitor has not filed a statement of claim the defendant can apply for a notice to show cause hearing in the court so that the plaintiff can explain why they have failed to file the statement of claim. The defendant can apply for summary dismissal or a summary judgment.

The main aim or objective of case management is to ensure that the Court manages the action of parties to ensure the case is concluded efficiently, economically and expeditiously. The advantages of case management are;

  • To promote a just resolution to the litigation process

  • Cost efficient since the cost is proportionate to the value and the complexity of the case.

  • Maximize the use of limited and scarce judicial resources in the case

  • Avoids any undue delay to expeditiously dispose the case

  • Maintains public confidence with judiciary in dispensing justice

The case of Weldon v Neal (1887) 19 QBD 394 states that a general rule exists that bars the amendment of a pleading adding a cause of action that is already statute-barred. The doctrine of relation-back bars a proposed addition of a cause of action in the commencement of the action. The SCR order 21rule 5(5) that an amendment can be allowed if it arises out of the same facts or substantially the same facts as a cause of action in respect of the relief sought as already claimed by the parties in the action. An addition of negligence would be valid since it relies on the same facts already presented in the statement of claim.

Q1 b 10 documents in Ben’s Form 17 List of discoverable documents

  • Thank you card

  • Income statement showing his salary

  • Documents showing his ownership of the 1969 Corvette worth $55,000

  • Bank statement showing transfer of $800000.

  • Weekly Lotto tickets

  • Winning Lotto Ticket of $20million

  • Deed of the Property purchased by the $800000

  • Phone Records

  • Ben ‘s written and signed testimony of the account of the events

  • Legal advice from Ben’s lawyer however it is subject to legal professional privilege

The roles of interrogatories are to provide the parties to the suit a means of giving relevant information on the case. Interrogatories are mainly used in the giving of verbal terms of a contract or agreement as opposed to one reduces to writing. The agreement claimed to have been entered by Bill are all verbal and there is no way the court can prove it really existed hence interrogatories would be appropriate.

A person cannot make false statement to the court hence Ben cannot lie to the court since he would be held in contempt. An interrogatory must be answered without any evasion according to order 27 and an objection can only be made under Rule 5. Ben would be compelled to anwer all the interrogatories unless it is; scandalous or irrelevant, it is oppressive, the inquiries are not sufficient for the case or it is subject to legal professional privilege. An affidavit must also be sworn since the answers are tendered as evidence before the court.

A party must fill Form 2 before commencing the suit at the SCR. The Primary court must be notified to provide the documents that were used in the trail this includes the final judgment rendered by the court, evidence used and the parties. The other documents are;the appellants ground for appeal, the appellant submission, appellants legal authorities, a draft chronology, the orders sought and the draft appeal book indexes.

One of the differences in how proceedings are to be commenced at the District Court and at the Supreme Court is that the District Court has original jurisdiction to hear and determine cases while the Supreme Court has an appellate jurisdiction to hear and determine an appeal.

A DC suit is commenced by way of a statement of claim, originating summon or a petition while an appeal is commenced by a memorandum of appeal issued 7 days after the notice to appeal is filed. In the SCR 21 days is the limit for which an appeal can be lodged whereas in the DC there is no limit except under the statute of limitation. The DC proceeding involves a complete hearing of the matter while a SCR involves an evaluation of an already completed judgment by a lower court.

The Plaintiff opening address. The Plaintiff’s examination in chief of its witness. The Plaintiff’s closing address. The Defendant’s opening address. The defendant’s examination in chief of its witness. The Defendant’s closing address.

A summary judgment would be given for the facts that are agreed to be true by the parties and the court would proceed to hear the case of the defendant in relation to the agreement.

The judge left it open for the plaintiff to move for judgment rather than enter it since this allows room for the parties to enter into a settlement. In this case since there is a high chance that the plaintiff will lose the case, this period would be open for the parties to offer a compromise and Calderbank letters to give a settlement and offer a party protection from costs. In a compromise the parties can agree to bear its own costs as opposed to only the losing party meeting the cost of the suit. A Calderbank letter is headed with a ‘no prejudice save as to costs’ as stated in Calderbank v Calderbank exclusively to shelter the opponent from costs.

Section 37 of the Supreme Court Act gives court’s jurisdiction to award costs. This has also been held in the case in Ritter v Godfery [1920] 2 KB 47 the courts can have the jurisdiction to award costs to any person with the courts awarding courts to the successful party. A court is justified to award a solicitor to pay ‘wasted costs’ where a party’s conduct is improper, unreasonable or negligent and has caused an unnecessary waste of costs as held in Ridehalgh v Horsefield [1994] Ch 205 this is spelt out at Order 66 Rule 5 (1).

Order 66 Rule 5 (2) states that no costs order is to be made against a practitioner before he or she has reasonable opportunity to show course why the court should not make the order.

If the court awards $250,000 to Bill by way of Order 24A which is an offer of compromise through a written notice which must be accepted within 28days. The court is not privy to the offer until all the issues regarding the quantam and liability have been determined. The court is bound by this settlement and is entitled to enforce it. A Calderbank is used when a party does not want a formal judgment entered against it. It is not automatically enforced since the court can still exercise its discretion to justify an indemnity cost order.

In every suit when a judgment has been entered in favour of a plaintiff, the plaintiff will be the judgment creditor. Failure of a judgment debtor to pay, a judgment creditor can commence a process through an examination notice of the judgment debtor ability to pay the awarded amount. A judgment creditor can through a garnishee order given by the court direct a party who holds funds or on behalf of judgment debtor that is either the bank or the employer under subdivisions 1 and 2 of the Civil Procedure Act to pay the judgment creditor.

Execution is another way if a judgment debtor fails to comply with a garnishee order and this is against the property through a notice of motion. The parties can also negotiate an installment agreement in court.

Q2 h Appeal

It is a right of any party to a suit to appeal against a judgment of the court. In this case the strict appeal would not be in favour of Ben since the court would only restrict itself to the evidence that was before the lower court and would not allow for introduction of new evidence. A rehearing allows for the appellate court to hear and determine the appeal with the introduction of new evidence not available during the other court hearing.

There is also a high chance of success of on appeal if it is treated as an originating proceeding. This is considered as an appeal by way of hearing de novo if the court deciphers whether the judgment under appeal was correct given the state of law and evidence presented to it afresh. Ben must be able to prove that the new evidence available is highly probative and decisive and could not have been obtained with reasonable diligence at first instance. The courts have also stated that if a new point arise safer judgment which would amount to an injustice or fraud would be admitted as a matter of common sense.

REFERENCES

Supreme Court Rules