chapter 7-8 Flashcards
pre trial procedures
purposes of pre-trial procedures
- Inform the parties
- Inform the Courts
- Encourage out of court settlement
- pleadings
The purposes of pleadings are to: How do the above meet the purposes of pre-trial procedures.
ensure both parties know the claim/defence of the other – this avoids risk of surprise during the trial
provide a written record of the information for the court
promote chances of an out-of-court settlement as parties can assess the strength of their opponent’s case
assist in reaching an out-of-court settlement.
pleadings include a statement of claim as well as a defence
- discovery
The discovery phase is where parties exchange documents that they will rely on in their case. These might include agreements, medical records, invoices and receipts, emails and images.
The purposes of discovery are to:
ensure both parties know the documents that will be used – this allows parties to be prepared and avoids risk of surprise during the trial
promote chances of an out-of-court settlement as parties can assess the strength of their opponent’s case
promote fairness and justice as all parties and the court have access to all of the relevant material.
Enables parties to get copies of documents that are relevant to the issues in dispute.
Ensures both parties know the documents that will be used – parties can be prepared and avoids the risk of surprise during the trial
Promotes chances of an out-of-court settlement as parties can assess the strength of their opponent’s case
Promotes fairness and justice as all parties and the court have access to all relevant material
Assists in reaching an out-of-court settlement
- exchange of evidence
There are generally two types of evidence:
lay evidence - given by a layperson about the facts in dispute.
expert evidence - given by an independent expert about an area within their expertise.
purposes of exchange of evidence is to reduce the element of surprise at trial, allows each party to determine the strength of the opposing case, allows each party the chance to ‘rebut’ the other parties’ expert evidence, allows the defendant to understand the amount of damages the plaintiff is seeking
reasons for a victorian court hierarchy
reasons for a court hierarchy:
- administrative convenience - cases are distributed according to the complexity of the case. as courts are specialised in specific areas, there is efficiency
- appeals. someone who is not satisfied with a decision in a civil trial is able to appeal and take the matter to a higher court
grounds for appeal include - a point of law - where the law has not been correctly applied
- a question of fact - whether the facts of the case had been applied appropriately to reach the decision
- the remedy awarded - the way in which a court-enforced a right or the order that was made by a lower court
responsibilities of the judge and jury in a civil trial
responsibilities of the judge
- 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
responsibilities of the jury:
- be objective
- listen to and remember the evidence
- understand directions and summing up
- decide on liability and in some cases, damages
responsibilities of parties and legal practitioners
responsibilities of parties:
in a rep proceeding, the lead plaintiff will represent the group members
plaintiff has the responsibility of proving the facts of the case, given that they have the burden of proof. the defendant will need to prove that the defence gives a good answer to the claim. a defendant who has filed a c ounterclaim will also prove their claim,
- make decisions about the conduct of the case
- discover relevant documents
- comply with overarching obligations (civil procedure act 2010 vic) - eg act honestly, cooperate, don’t mislead etc
responsibilities of legal practitioners
- comply w ith their duty to the court
- make opening and closing addresses
- present the case to the judge or jury - best interests of their client
- comply with overarching obligations
judicial powers of case management
two case management powers given to judges
1. power to order mediation
assists in a prompt and economical resolution of a dispute
- power to give directions
during or before trial
timetables, expert evidence, discovery etc (before trial)
limiting time taken by a trial, limiting number of witnesses etc (during trial)
remedies (damages and injunctions)
general purpose of a remedy is to restore the plaintiff to the position they were in before the wrongdoing occurred.
purposes of damages is to compensate the plaintiff for losses suffered.
damages: compensatory (specific, general or aggravated), exemplary, nominal, contemptous
nominal damages: upholds plaintiff’s rights without awarding any substantial amount of damages
contemptuous damages: plaintiff might have a legal right to damages but does not have a moral right, plaintiff doesn’t deserve to be paid damages
exemplary damages: some way seeks to punish the defendant for extreme infringement of rights, to deter others fro,m undertaking the same type of actions. also known as punitive or vindictive.
cannot be awarded for plaintiff for defamation
injunctions: a court order directing someone to stop doing a certain act or compelling someone to do a certain act. purpose of an injunction is to rectify a situation caused bu the person who was found to be in the wrong.
it be can either
restrive/prohibitve - ordering a person to refrain from undertaking an action
or
mandatory - ordering a person to do particular acr
cost factors
cost factors:
1. legal costs
may be forced to self-represent or withdraw claim if they are unable to pay for legal costs - fairnes not achieved
self represented parties may still struggle to understand legal procedures - fairness not achieved
limits access to legal system
- increased use of alternative dispute resolution methods
Increased use of dispute resolution methods:
The increased use in alternative dispute resolution methods such as mediation and conciliation avoid a final hearing or trial.
This increased use has assisted in reducing the costs involved with a legal dispute as:
the earlier the dispute is resolved, the more money that is saved
third party monitor skilled ensutrs rwual opportunity
time factors
- court and vcat delays
- backlogs, pretrial procedures, evidence gathering a preparatiob
delays can affect reliability of evidence
- use of case management powers
Case management involves transferring some of the control and initiation of case preparation from the parties to the court.
This can reduce delays and proactive judges will help the parties narrow the issues and ensure that they are on track with the given timeline.
accessibility factors
- barriers to communication
prevents a person from understanding their legal rights
- reduces a person’s understanding of the methods and bodies used to resolve disputes
- reduce a person’s understanding of the processes involved in pursuing their rights
- may struggle to tell their side of the story
- may abandon their claim or defence - services in rural and remote areas
People living in rural and remote Victoria often find it more difficult to access legal and dispute resolution services than those in larger cities.
affects individuals’ ability to seek legal assistance - use of representative proceedings
The use of representative proceedings can increase access to dispute resolution because it can spread the cost of civil action across many plaintiffs.
recent reforms
- Group class orders in class actions
The passing of the Justice Legislation Miscellaneous Amendments Act 2019 (Vic) allowed plaintiff law firms in class actions to receive a percentage of the damages awarded to all class members.
does not address procedural fairness issues - such as if a part is self-representing in a class action - supreme court has to approve it - the lawyer gives reasons for it
allows individuals who are from low socioeconomic backgrounds to have access to the courts.
however lawyer may work in their best interest rather than th client as there is a stake, may try harder as there is a stake
may be overlooked by supreme court
- expansion of vcat’s fast track mediation and hearing processes
threshold increased from 3000 to 10 000 $, however for regional vic it is a threshold of 5000, not achieving access
process is limited to the civil claims list
recommended reforms
- Allowing contingency fee agreements
Contingency fee agreements are arrangements whereby the lawyer will agree to provide legal services in return for a share of the amount recovered if the proceeding is successful.
It is argued that allowing contingency fees would provide another avenue of funding for clients who may be unable to pursue proceedings due to the costs.
However, there is concern that there may be a conflict of interest if a lawyer is both providing legal services and has a vested interest in winning.
may be working in their own best interest rather than the clients (getting them to settle for something lower as they know they will gain either way….)
- language barriers etc are not addressed, only a cost issue is addressed
enables individuals who are of low socioeconomic background to have access to the courts
better than litigation funder as litigation funder is solely for the money, law firm may do it to help individuals have access to system
- introduction of a national justice interpreter scheme
however may not be available in some languages hence not allowing access for everyone
- wants to implement a system whereby people with non English speaking backgrounds would have access to free, professional and qualified interpreters,
allows access to rights/understanding processes is fair as they can present their case properly
