AOS 2B Flashcards
The Judge role in civil proceedings
an impartial independent party that ensures court procedure is followed and parties are treated fairly. The judge must ensure that the principles of justice are upheld.
responsibilities of a judge in a civil dispute
- manage the trial
- decide on the admissibility of evidence
- attend to the jury (if there is one)
- determine liability and the remedy
- decide on costs
judge responsibility : manage the trial
significant powers of case management ensures the trial is conducted in a just timely and efficient manner. usually conducted in accordance to a set procedure, however the judge has the power to change that procedure.
responsibilities of a jury in a civil dispute
- be objective
- listen to and remember the evidence
- understand directions and summing up
- decide on liability and, in some cases, damages
responsibilities of a jury in a civil dispute
- be objective
- listen to and remember age evidence
- understand directions and summing up
- decide on liability and, in some cases, damages
responsibilities of the parties in a civil dispute
- make decisions about the conduct of the case
- discover relevant documents
- comply with over arching obligations
responsibilities of legal practitioners in a civil dispute
- comply with their duty to the court
- make an opening and closing address
- present the case to a judge or jury
- comply with overarching obligations
judicial powers of case management
- power to order mediation
- power to give directions, before and during the trial
- power to order mediation
Civil Procedure Act 2010 (VIC) section 66.
a court may make an order referring to civil proceedings or part of a civil proceeding to appropriate dispute resolution.
Rule 50.07 of the Supreme Court rules states that at any stage of proceedings the Supreme Court can order that the proceedings be referred to a mediator
- power to give directions, before the trial
- the conduct of proceedings
- timetables and timelines for steps undertaken
- participation in dispute resolution methods
- expert evidence, including limiting
- the allowance for parties to amend a pleading
- discovery, including relieving a party from the obligation to provide discovery or limiting.
- power to give directions, during the trial
- which evidence is given/ who will go first
- limiting the time to be taken to trial
- limiting examination of witnesses
- limiting the number of witnesses
- limiting the duration of party submissions
- limiting the number if documents
- evidence, whether it should be given orally or in writing
- decide if a particular party should bare the cost
courts as dispute resolution bodies - appropriateness
firstly whether it falls into the jurisdiction or if their are better ways to resolve the dispute
courts as dispute resolution bodies - jurisdiction
the power that courts have to hear cases
- the county and Supreme Court can hear cases from $100 000+
- the magistrates court can hear cases up to $100 000
- VCAT has exclusive jurisdiction over cases relating to ; domestic building, retail tenancies, residential tenancies, and planning disputes.
judicial determination
method used to resolve the dispute by the courts
mediation
cooperative method of resolving a dispute
- two disputing parties with possible representatives
- third party mediator - whose role is to facilitate conversation
- resolution is made by the parties voluntarily
- if a settlement is entered in to it is enforceable
- used extensively in Victorian courts and VCAT
conciliation
- two disputing parties with possible representatives
- third party conciliator - whose role is to facilitate conversation and offer suggestions and solutions
- resolution is made by the parties voluntarily - may be on the advice of the conciliator.
- if a settlement is entered in to it is enforceable
- used by CAV in Victorian courts and VCAT
arbitration
method of dispute resolution without formal court proceedings
- two disputing parties with possible representatives
- third party arbitrator - whose role is to listen to the evidence and arguments of the disputing parties and then make a decision
- resolution is decided by the arbitrator
- arbitral award is legally binding
- used in the magistrates court for claims less than - $10,000 an din private commercial disputes
remedies
damages
- compensatory
- specific
- general
- aggravated
- nominal
- exemplary
- contemptuous
injunctions
- restrictive/ proibitive
- mandatorycompensatory damages - specific
financial or monetary loss that can be easily calculated
ie medical expenses, loss of wages, ect
compensatory damages - general
assessed due to the magnitude of the wrong long term consequences taken into consideration
ie future loss of wages, long term job prospects, pain and suffering, ect. they are a general estimate not readily quantifiable.
compensatory damages - aggravated
awarded to compensate the plaintiff further if the court believes the defendant conduct intended to cause humiliation or insult.
nominal damages
upholds the plaintiffs rights without awarding any substantial amount of damages
contemptuous damages
the legal right to damages but not morally in the right
exemplary damages
a large sum of money to compensate for a severe infringement on the plaintiffs rights
injunctions
- mandatory
- restrictive
- interlocutory
- final
injunctions - mandatory
compel a party to undertake an action
injunction - restrictive
restrict a party from undertaking an action
injunction - interlocutory
to preserve the position of the parties while proceeding occur (temporary injunction for the duration of the trial)
injunction - final
a permanent injunction
general purpose of remedies
to return the plaintiff, as much as possible, to their original position before the harm was suffered or the loss occurred.
interrogatory
a written response to a written question given under oath
factors that effect the achievement of the principle of
justice
- cost
- time
- accessibility
limiting factor cost
fairness -
equality - lower financial economic status may put someone in disadvantage
access - high cost may restrict someone pursuing a case
cost of legal representation
- solicitor
- barrister >$1000 a day
filing fees
cost of litigations increased by lengthy complicated processes
limiting factor time
- 85% of disputes are resolved in an appropriate time period.
long process - extensive process and procedures extended by interrogatories that are extensively used but rarely essential to the case unnecessarily drawing out proceedings
limiting factor accessibility - cultural differences
- language barriers - lack of interpreters in civil disputes especially of immigrants
- indigenous Australians may struggle to access local support in remote communities or not understand the civil remedies available to them
- may not be aware of their access to the civil justice system and the ability to have the harm rectified as well as the cultural difference of acceptance of what has happened to them instead of seeking retribution
limiting factor accessibility - women
fairness - support for family matters in circumstances of domestic violence
access - the use of mediation and conciliation in family matters, where there has been domestic violence restrict access to these alternative methods to resolution hence not allowing them all available tools of the justice system
equality - the gender pay gap may cause a financial disadvantage to a party
recent reforms - group cost orders
Justice Miscellaneous amendments Act 2020 (Vic)
can be applicable in representative proceedings upon application by the lead plaintiff
allows for legal cost payable to the plaintiffs law firm to be calculated as a percentage of the amount of any award/ settlement, and that liability for payment of those costs of those costs can be shared among the plaintiff and all group members
increase access to justice because smaller and lower claims can be funded by the law firm. these types of claims are unlikely to attract a litigation funder but plaintiff law firms may be prepared to litigate them
recent reforms - new VCAT venue in Oakleigh, Koori Court hearing room
feb 2020 the venue officially opened that include VCAT’s first Koori hearing rooms that are designed to be more culturally appropriate and accessible to Aboriginal and TSI peoples. they display aboriginal art and have a oval wooden table where the Cat member meets with parties to resolve disputes
Koori Inclusion Action Plan to build stronger connections with the Koori community to ensure greater use of VCAT
recommended reforms - national justice interpreter scheme
to ensure professional and skilled interpreters are readily available and free, to people with culturally and linguistically diverse backgrounds including aboriginal and TSI people, asylums seekers and recent arrivals
access- ability to access the civil justice system and to understand evidence and participate in alternative methods of dispute resolution to avoid a trial.
equality- negating the financial burden of hiring and interpreter may remove a disadvantage due to the extra cost of an interpreter for a singular party
fairness- allows parties to adequately understand process and procedures of the court
recommended reforms - online dispute resolution for VCAT
to use a range of online option in solving small civil disputes 21/65 settled before a hearing using this technology in the Online Dispute Resolution (ODR) Pilot
online mediation and virtual hearings for all small claims under $10 000
people in rural and remote areas cannot easily access VCAT services/venues may find it easier to resolve their disputes online - not restricted by ‘business hours’ or location. ODR avoids people getting overly emotional as they are not in the same room and can often save cost over face to face mediation
