Week 08 Study Guide MLL 391 Civil Procedure Topic 9 The Trial PDF

Preview

Summary

Download Week 08 Study Guide MLL 391 Civil Procedure Topic 9 The Trial PDF

Description

M L L 3 9 1 C I V I L P R O C E D U R E A LTE R N ATI V E D I S P U T E R E S O L U T I O N A N D P O L I C Y

THE TRIAL

M L L 3 9 1 C I V I L P R O C E D U R E , A LTE R N AT I V E DISPUTE RESOLUTION AND POLICY THE TRIAL 1 Introduction In this topic we look at peripheral procedural matters involving the trial, principally issues surrounding judgment and its effect. [NOTE: procedural matters on the conduct of the trial itself are dealt with in Evidence Law.] 2 Objectives After completing this topic you should: 

know the nature, purpose and function of Interlocutory Proceedings;



be able to distinguish between verdict and judgment;



be able to explain the consequences where there is no evidence to support a jury verdict;



be able to explain what is meant by ‘entry of judgment’;



recognise when a judgment can be set aside or corrected;



be able to apply the slip rule.

3 Learning resources Textbook Bozzi, Claudio Principles of Civil Procedure in Victoria, Lexis Nexis 2016.

4 Interlocutory Procedures: Its Purpose 

What is the nature of an interlocutory order and how is it different from “final orders”? Textbook p 424;



What is an Injunction?

5 Mode of trial

1



Read r 47.02 of the SCR;



Textbook p 371;

2

MLL 391

C I V I L P R O C E D U R E A LT E R N AT I V E D I S P U T E R E S O L U T I O N A N D P O L I C Y



How does the plaintiff nominate the mode of trial?



Read Gerlach v Clifton Bricks Pty Ltd (2000) 209 CLR 478

T HE TRIAL

o If a plaintiff opts for a trial by jury, what is the function of the jury? 

Can the defendant seek a trial by jury?



Why is a jury inappropriate for an equity action?



When are jury trials appropriate? (s 47.02 of the SCR)

6 Proceedings at trial (a) Default Judgment on Failure to Appear at Trial 

Read r 49.02 of the SCR.



Read Textbook p 380; Textbook p 403; see also Textbook p 562.



Answer the following Questions: o If the defendant fails to appear at the trial, is judgment entered for the plaintiff by ‘default’? o If not, what does the plaintiff have to do? o If the defendant fails to appear at the trial, can the plaintiff treat the defendant’s absence ‘as an admission of the allegations contained in the statement of claim’? see also Textbook ‘Judgment on Admissions’ p 605. o If not, when can the plaintiff ‘assume’ an admission of the allegations contained in the statement of claim? o Are there any other procedures available for the plaintiff to obtain judgment in the absence of the defendant? o What is the position and procedure available if the plaintiff fails to appear at the trial? Textbook p 404. o Can judgment be set aside on the grounds of the plaintiff’s or defendant’s absence? Refer r 49.02(2) of the SCR; see Textbook p 404; Textbook p 561. o If so, what are the considerations that the court takes into account in deciding whether to set aside a judgment? o When can a trial be adjourned? Textbook p 405+ o What are some of the factors that the court consider in exercising its discretion to adjourn a trial?

© Deakin University

M L L 3 9 1 C I V I L P R O C E D U R E A LT E R N AT I V E D I S P U T E R E S O L U T I O N A N D P O L I C Y

THE TRIAL

(b) Venue of Trial 

Read r 47.01 of the SCR: ensure that you understanding the nature and significance of the rule.



Read r 5.08 of the SCR: ensure that you understanding the nature and significance of the rule.

(c) Re-Opening of a Case 

Read o Textbook p 433+ o Soyza & Anor v Adolphus [2007] VSC 549 (20 December 2007) o Spotlight Pty Ltd v NCON Australia ltd [2012] VSCA 232 (27th of September 2012) for an interesting application of the ‘finality of judgment’ principle.



Answer the following Questions: o What is meant by the concept of ‘finality of judgment’? o When can a party be allowed to re-open a case? o What is the test to be applied? o Is there a difference if the request to re-open a case is made before or after judgment? o If a request to re-open a case is made after judgment and such request is granted, how does that sit with the concept of “finality of judgment”?

7

Verdict and Judgment

(a) Position where there is no evidence to Support a Verdict 

Read o r 59.01 of the SCR (ensure that you understand the nature and significance of the rule); o Textbook p 423+



Answer the following Questions: o What is the difference between a ‘verdict’ and a ‘judgment’? Explain the difference. o Does a verdict from the jury conclude the hearing? o What is the difference between a ‘judgment’ and an ‘order’?

3

4

MLL 391

C I V I L P R O C E D U R E A LT E R N AT I V E D I S P U T E R E S O L U T I O N A N D P O L I C Y

T HE TRIAL

o What is the difference between a ‘general verdict’ and a ‘special verdict’ from the jury? Textbook p 426+ o If there is a difference between a ‘verdict’ and a ‘judgment’, can the court enter judgment contrary to a jury verdict? o In this regard, what are the different views of the High Court on this issue? o Which view do you think is correct? (b) Judgment and the Entry of Judgment 

Read o r 59.01 of the SCR o r 60.02 of the SCR o Textbook p 433



What is the difference between ‘pronouncing’ judgment and ‘entering’ judgment?

8 Setting aside judgment where fraud or new evidence 

Read Wentworth v Rogers (1986) 6 NSWLR 534 o Note the principles set out by Kirby J in that case



Read Soyza &Anor v Adolphus [2007] VSC 549

9 The ‘Slip Rule’ and Amending and Reviewing judgments 

Read o r 36.07 of the SCR o Textbook p 452+

10 Interest on judgment Interest on judgments includes these 2 heads: 

Interest in the nature of damages; (that is, the court has a discretion to include interest, at a rate the court determines, for the period between the cause of action and the pronouncement of judgment ;) (see s 60 of the Supreme Court Act)



Interest on the judgment itself until it is satisfied (that is, once the court enters judgment for a specific amount, the judgment debt carries

© Deakin University

M L L 3 9 1 C I V I L P R O C E D U R E A LT E R N AT I V E D I S P U T E R E S O L U T I O N A N D P O L I C Y

THE TRIAL

interest until the judgment debt is paid); (see s 101 of the Supreme Court Act). 

Read o s 60 of the Supreme Court Act 1986 (Vic) (ensure that you understand the nature and operation of this rule). o s 101 of the Supreme Court Act 1986 (Vic) (ensure that you understand the nature and operation of this rule).

11 Further reading 

Read sections 1-46 of the Civil Procedure Act 2010 (Vic) o Note in particular the ‘overarching purpose’ and the ‘overarching obligations’ provisions. o Note also the certification requirements of the Act.



You are required to know and understand these provisions if you desire to practice in litigation in the future.

REVIEW QUESTIONS

There are no review questions for this topic.

5...