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legal studies 3/4 > 7 the principles of justice in a civil dispute > Flashcards

7 the principles of justice in a civil dispute Flashcards

1
Q

fairness

A

all people can participate in the justice system, and the processes should be open and impartial

  • impartial processes: all court personnel remain impartial w no apprehended bias
  • open processes: open to the public however many disputes are resolved in private
  • participation: know the case, present their side of the case, no unreasonable delays, use of an interpreter
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2
Q

conciliation (name n role of 3rd party, are there rules abt evidence & procedure, who makes decision, name of final order, is order legally binding)

A

name of 3rd party? conciliator
role of 3rd party? facilitates discussion, suggests options & possible solutions. usually someone w specialist knowledge in the field
are there rules about evidence & procedure? no
who makes the decision? the parties
name of final order? terms of settlement
is the order legally binding? if the parties settle the case, the terms of settlement can be enforced

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3
Q

mediation (name n role of 3rd party, are there rules abt evidence & procedure, who makes decision, name of final order, is order legally binding)

A

name of 3rd party? mediator
role of 3rd party? facilitates discussion b/w the parties and ensure all parties are being heard. DOESN’T need to be an expert in the field
are there rules about evidence & procedure? no
who makes the decision? the parties
name of final order? terms of settlement
is the order legally binding? if the parties settle the case, the terms of settlement can be enforced

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3
Q

reasons for a court hierarchy

A
  • administrative convenience
  • appeals
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3
Q

access

A

all people should be able to engage with the justice system and its processes on an informed basis

  • engagement: range of dispute resolution methods, physical access, technological access, financial access &delays can impact access
  • informed basis: education, access to info, legal services, adequate legal rep
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4
Q

equality

A

all ppl engaging w justice system and its processes should be treated in same way, unless this causes disdvantage

  • same treatment: enforcing both parties to complete pre-trial procedures
  • diff treatment: ensure self-rep is on same level as party who has legal rep, judge may offer extra direction

e.g. assistance to self-rep by judge/magistrate, interpreters, providing info in diff way, changes to court or tribunal processes, diff form of giving evidence

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5
Q

arbitration (name n role of 3rd party, are there rules abt evidence & procedure, who makes decision, name of final order, is order legally binding)

A

name of 3rd party? arbitrator
role of 3rd party? listens to both sides and makes a binding decision on the parties. usually someone w specialist knowledge in the field
are there rules about evidence & procedure? the parties may agree how it is to be conducted
who makes the decision? the arbitrator
name of final order? arbitral award
is the order legally binding? yes

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6
Q

administrative convenience

A

cases distributed based on complexity & seriousness

  • less serious + less complex cases go to lower courts
  • more serious + more complex cases are heard in higher courts
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7
Q

appeals

A

dissatisfied with a decision made in a civil trial can
appeal, but only if they have grounds to do so.

grounds in a civil case include:

  • point of law: if law has not been followed in court
  • question of fact: if facts of the case have been applied appropriately
  • remedy awarded: how the court enforced a right
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7
Q

why appeals are an important reason for hierarchy

A
  • If there was no court hierarchy, there would be no higher court to review a decision that is being viewed as incorrect or unfair. They would be stuck with the decision as final regardless of the circumstances.
  • A court hierarchy allows a superior court with greater expertise to review the decision and rectify the issue or dismiss it.
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7
Q

Roles of judge and magistrate

A
  • act impartially (oversee the case & make a decision on liability without any bias toward or against either party)
  • case management before trial/hearing (give directions to the parties e.g. discovery - get copies of each other’s documents & mediation - try to resolve dispute before trial)
  • case management during trial/hearing (change procedure of final hearing - limit time, examination of witnesses, no. of witnesses, no. of documents)
  • determine liability and remedy (if there is no jury, the judge decides whether the plaintiff has established their claim against the defendant, and what remedy should be awarded (MC always no jury))
  • decide on costs (decide which party should bear the costs)
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8
Q

Act impartially

A
  • oversees cases and decides w/o any bias towards or against parties
  • independent of government and parliament
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8
Q

The civil jurisdiction of the Victorian courts

A

MC

  • original: claims of up to $100,000
  • appellate: no

CC

  • original: unlimited
  • appellate: no, unless given power under a specific Act of Parliament

SC (TD)

  • original: unlimited
  • appellate: question of law from MC & VCAT

SC (CA)

  • original: no
  • appellate: all appeals from CC or SC, questions of law from MC & VCAT
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8
Q

Key personnel involved in a civil dispute

A
  • judge or magistrate
  • jury (if there is one)
  • parties (plaintiff & defendant)
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9
Q

Case management (before)

A

judge or magistrate makes orders and direction in the proceeding

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9
Q

strengths of judge and magistrate

A
  • act as an impartial umpire - oversee the trial process, but do not overly interfere in a trial so no party is advantaged/disadvantaged bc they don’t take sides
  • experts in law, process and cases, and can use this expertise in managing the case and in making a decision on liability
  • can assist self-represented, such as explaining cross-examination processes or what discovery is
9
Q

determine liability and the remedy

A
  • if no jury, judge is the decider of facts
  • they must decide whether plaintiff has established their claim against the defendant + what remedy should be awarded
9
Q

decide on costs

A

decide which party should bear the costs

10
Q

Roles of the jury

A
  • be objective
  • listen to & remember the evidence
  • understand directions & summing up
  • decide on liability, and in some cases, damages
10
Q

weaknesses of judge and magistrate

A
  • some risks that they may have actual or apprehended bias that impacts their decision-making, e.g. when fatigued
  • cultural and general diversity of judges and magistrates has been criticised, which may increase any distrust felt by some people in the community about whether the outcome will reflect a ‘just’ outcome
  • cannot interfere excessively in their cases, including those involving a self-represented party, even though the judge or magistrate is one of the most experienced people in the room
11
Q

The jury (6)

A

juries may be used in 2 situations:
1. plaintiff or defendant specifies during the pleading stage that they want a jury - must pay fee
2. court may order that proceeding be tried w a jury

12
Q

Be objective

A
  • unbiased and putting aside any prejudices or preconceived ideas
  • no connection w any of the parties
12
Q

Understand directions and summing up

A

jury must listen to the directions the judge gives and sum up the case at the end

13
Q

Listen to and remember the evidence

A
  • can take notes if it helps them to rmb info
  • must NOT undertake their own investigation
14
Q

strengths of the jury

A
  • randomly picked so no connection to parties + make a decision based on facts, not on biases or their enquiries
  • participate in civil justice system processes & ensures that justice is ‘seen to be done’.
  • collective decision-making reduce possibility of bias bc any personal, subconscious bias identified during the deliberation
  • represent cross-section of the community - decision reflects the views & values of society
15
Q

Decide on liability and, in some cases, damages

A
  • decide whether the plaintiff has established their case on the balance of probabilities + whether the defendant has established a defence
  • try to reach a unanimous verdict (majority verdict may be accepted)
16
Q

weaknesses of the jury

A
  • unconscious bias & bc they dont give reason for decisions, there’s no way of knowing whether a bias played a role in their decision
  • complex so may not understand legal principles & evidence given to make a decision based on the facts
  • may result in delays as matters need to be explained & may require some time to deliberate.
  • several people cannot participate bc ineligible, excused or disqualified so large section of the community may not be represented
16
Q

disclose info to the other party

A
  • discover relevant documents in the pre-trial procedures
  • responsibility of the parties to hand over key relevant documents
17
Q

roles of the parties

A
  • make decisions about the conduct of the case
  • disclose info to the other party
  • exchange evidence
  • participate in the trial
17
Q

make decisions about the conduct of the case

A
  • each party has complete control over decisions about how the case will be run, as long as the rules of evidence and procedure are followed (party control)
18
Q

participate in the trial

A
  • making opening and closing addresses
  • presenting the case to the judge or jury
  • cross-examination of the other side’s witnesses
18
Q

the parties

A
  • plaintiff
  • defendant
18
Q

exchange evidence

A
  • lay evidence: evidence given by a layperson about the facts in dispute
  • expert evidence: evidence given by an independent expert about an area within their expertise
19
Q

strengths of parties

A
  • ongoing obligation to disclose & ‘discover’ all relevant docs to each other - ensures there are no surprises as to the documents that may be relevant
  • both parties have the opportunity to present their cases (participate in the trial)
  • control over how they run their case - not forced to do or say anything & can decide whether to make certain claims/defences or what evidence to rely on
20
Q

weaknesses of parties

A
  • some parties may be more familiar with their disclosure obligations than others
  • complex & difficult processes to understand w/o the use of a lawyer, making it difficult for self-represented
  • ‘party control’ means parties need time to prepare their case & make decisions about how to run their case, which can add to the delays - can be stressful and cost money

legal studies 3/4 (15 decks)

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