why cases don't get to court
Preliminary procedures might lead parties to realise that there isn't a case to pursue
They might decide or be persuaded to negotiate
There might already have been proceedings that deal with the dispute
Two part test:
1.Does the plantiff have a serious case to be tried - more likely to be granted if plaintiff has a good case.
2. Does the BALANCE OF CONVENIENCE favour granting the injunction e.g. holden commodore vs antique (rare) vintage car or footballer's affair being published (irreversible)
Doesn't necessarily end the case.
application to strike out
Does the plaintiff's claim reveal an arguable cause of action.
Even if the facts are correct, no legal issue or case to answer.
No evidence is heard, based on alleged facts.
Can the party seeking judgement show that the other party has no arguable case?
Limited written evidence may be considered but a significant disagreement about the facts will prevent the application being granted.
Has to be clear cut - must show judge there is no clear evidence.
McFadyen v Wineti 1908
Simple case that went to court due to the importance for the people in that area i.e. Waganui river and property ownership.
Case used to practise preparing a case brief
- structured summary and analysis of a case
Following judicial reasoning and basis for conclusion
To identify the rule that may form precedent