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ACT Legal Question on Filing in the Supreme Court

Discussion in 'Other/General Law Forum' started by DamienB, 23 February 2015.

  1. DamienB

    DamienB Member

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    Hi everyone,
    I'm writing a novel. The story line is about a son who is 37 and suing his parents because he has lung cancer and was allowed to smoke as a child. I am looking for a few legal questions I need answered in relation to procedures on filing in supreme court under Australian Law.

    Thanks for looking at my question.
     
  2. Sophea

    Sophea Well-Known Member

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    Hi Damien,

    What information are you seeking specifically? I will outline a few things but please let me know if there is something specific you want to know.

    In order to file proceedings in the Supreme Court, that court needs to have jurisdiction to hear the case. The Supreme Court has unlimited monetary jurisdiction - which means there is no limit to the amount of money it can award in its judgements. It also has the unique jurisdiction to hear equitable matters. A large personal injury action would appropriately be filed in the Supreme Court.

    In terms of physically filing a document - the following two forms need to be completed. The first is an Originating Claim document which contains details of the parties etc. The second document which is normally stapled to the back of the Originating Claim is the Statement of Claim which sets out all the facts and details and legal arguments to support the case. Here are links to the forms.

    http://www.legislation.act.gov.au/af/2006-246/current/pdf/2006-246.pdf
    http://www.legislation.act.gov.au/af/2006-447/current/pdf/2006-447.pdf

    At least 3 copies of these 2 documents (depending on how many parties are involved) together with a filing fee (which is $990 in the ACT for an individual) are taken by the lawyers of the plaintiff to the Supreme Court registry and handed over to the registry staff member. They take the documents stamp them with the date, allocate a file number etc and enter them into their computer system. They then keep a copy to start their court file and provide at least 2 sealed (stamped) copies back to the plaintiff. The Plaintiff will then need to serve a copy of the Originating Claim and Statement of Claim on all the defendants / third parties to the action.

    Please let me know if you require further details of anything.
     
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  3. Sophea

    Sophea Well-Known Member

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    Hi DamienB,

    But do I as the lawyer write to the parents Who are the defendants? p.s, they are separated, does that make a difference?

    No it doesn't make any difference that they are separated. Each defendant as an individual (whether they live in the same house or not) must be personally served with the proceedings. Normally the lawyer would write letters enclosing the proceedings to each of the defendants and then personally serve the letter with the proceedings (the documents). In order to personally serve a document on an individual (as opposed to a corporation or a business), Rule 6405 of the Civil Procedure Rules in the ACT, states as follows:

    (1) To serve a document personally on a person, the person serving the document must give the person—

    (a) if the original of the document is sealed—a sealed copy of the document; or

    (b) in any other case—a stamped copy of the document.

    (2) However, if the person does not accept the copy, the person serving the document may serve it by putting the copy down in the person's presence and telling the person in general terms what it is.

    (3) Also, if the person serving the document is prevented from approaching the person by violence or threat of violence, the person serving the document may serve it by putting the copy down as near as practicable to, but in the sight of, the person being served.



    Is it a Judge or Jury trial?

    If the claim proceeds to a hearing, the matter will be decided by a single judge. Section 22 of the Supreme Court Act 1933 (ACT) states that: all civil claim trials in the Supreme Court, "must be by the court without a jury".

    Do the Defendants get a copy of the affidavit?

    Generally, the defendants always get a copy of whatever is filed with the court in the proceedings. Many documents are filed by the parties over the duration of the matter, by physically taking several copies of the the document to be filed to the Supreme Court registry, where someone will take the document and any fee for filing it, stamp the copies, keep a copy and return the others to serve on the other party. Note that for any documents after the initial proceedings (the originating claim and statement of claim documents) have been served on the defendants, after that all documents are usually served by just faxing or posting to their lawyer. That is a valid way of serving documents which are not the originating claim etc.

    Is the first written affidavit the final one? Or is the info limited as much as possible at the start?

    I"m not entirely sure what you mean by this. Usually many affidavits are filed over the course of proceedings. For example, if one of the parties wants to make an interlocutory application to the court (this is an application made during the proceedings before the actual trial) for example - to get the other party to take some step or to disclose something. They will file an application together with an affidavit. An affidavit is just the means by which you give evidence to the court - it is usually via testimony but you also attach documents as exhibits to the affidavit to back up what you are saying. In the trial of a matter, there may be many affidavits filed by the plaintiff and defendants in relation to different things.

    Civil proceedings progress in stages. The first stage is the pleadings. The plaintiff's pleadings are the Statement of claim, the defendant's pleadings are the Defence and where relevant a Counterclaim (which are filed with another document called a notice of intention to respond). After the pleadings are finished, the parties intensify their investigations and gather all the evidence that they can from third parties etc. The parties undertake "discovery" or "disclosure". This is where the parties exchange lists of all documents and evidence in their possession which relate to the proceedings, whether the documents are favourable to their case or not. Then they request documents and evidence from each others' lists. The parties will then often retain "experts" such as doctors or scientists to provide "expert evidence" on the plaintiff's medical condition and what caused it. Once all the evidence has been exchanged the parties move toward trial. They must prepare witnesses etc and all the other evidence. Its much more complex than this and often many interlocutory applications need to be made. Settlement negotiations may also occur during the proceedings, especially after discovery once both parties know where they stand legally.

    Does that answer your question?
     
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  4. Sophea

    Sophea Well-Known Member

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    DamienB likes this.

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