Chapter 7.4 Flashcards
The judge and magistrate
Introduction to the judge and magistrate
If the plaintiff issues the claim in the County Court or Supreme Court, the judge will be the central
figure with authority over the case. If the plaintiff issues the claim in the Magistrates’ Court, the
magistrate will have the primary role. Unlike criminal trials, where indictable offences start in the
Magistrates’ Court and then move to one of the higher courts, civil cases do not generally involve a
court other than the court in which the plaintiff issues the claim.
Roles of the judge and magistrate
- Act impartially
- Case management (before trial or hearing)
- Case management (during trial or hearing)
- Determine liability and the remedy
- Decide on costs
Act impartially
The judge or magistrate in a civil case must be impartial. This means the judge or magistrate must
ensure that they oversee the case and make a decision on liability without any bias toward or against
either party. Judges and magistrates are also independent of government and the parliament. They do not make decisions in favour of political parties or in favour of a particular interpretation of the law. The
use of an independent and impartial judge or magistrate ensures that the rule of law is upheld.
Case management (before trial or hearing)
Judges and magistrates play an active role in managing civil cases before trial to ensure efficient, timely, and cost-effective resolutions. They are given significant case management powers by Victorian law, including the authority to give directions during the pre-trial stage.
This may involve ordering pre-trial procedures like discovery, where parties exchange relevant documents, and mediation, where parties attempt to resolve the dispute before trial. Mediation is widely used in the Supreme Court and is considered effective in reducing court delays and encouraging dispute resolution.
case management
a method used by
courts and tribunals
to control the
progress of legal
cases more effectively
and efficiently. Case
management generally
involves the person
presiding over the case
(e.g. the judge) making
orders and directions in
the proceeding (e.g. an
order that the parties
attend mediation)
directions
instructions given by
the court or tribunal to
the parties about time
limits and the way a
civil proceeding is to be
conducted
directions hearing
a pre-trial procedure
at which the court
gives instructions to
the parties about time
limits and the way the
civil proceeding is to be
conducted
Case management (during trial or hearing)
The judge (or magistrate) also has the role of managing the trial or hearing. Generally, a final hearing will be conducted according to a set procedure (e.g. the plaintiff will present the case, followed by the defendant), but the judge or magistrate has the power to change this procedure. For example, judges and
magistrates have the power to:
- change the order in which evidence is to be given, or who will go first in addressing the court
- limit the time for the hearing or trial
- limit the examination of witnesses, or not allowing cross-examination of particular witnesses
- limit the number of witnesses that a party may call
- limit the length or duration of the parties’ submissions to the court
- limit the number of documents that a party may tender into evidence.
Judges and magistrates can ask witnesses questions to clarify evidence and make rulings during a trial, such as deciding if hearsay evidence is admissible. These rulings are more common in complex cases in higher courts. Most civil trials in higher courts do not involve a jury, and there are no juries in the Magistrates’ Court. When a jury is present, the judge provides guidance and sums up the case. If a party is self-represented, the judge or magistrate has the added duty of ensuring they understand the trial process, their obligations, and their rights.
hearsay evidence
evidence given by a
person who did not
personally witness
the thing that is being
stated to the court
as true
similarities and differences between the role of the judge or magistrate in a criminal
and civil case
Similarities
* A judge or magistrate in a criminal case and in a civil case is expected
to act impartially and without bias, making decisions during the case on
facts.
* Both judges/magistrates will have the role of assisting a self-represented
party if the accused or one of the parties in the civil dispute is not
represented by a lawyer.
* Both criminal and civil judges and magistrates have the role of instructing
a jury and giving directions to the jury, if there is one in a civil case. This is
not applicable to magistrates as there is no jury in the Magistrates’ Court.
Differences
* A judge in a civil trial may have to decide on liability if there is no jury, and
a magistrate in a civil case will decide on liability if the case is heard in the
Magistrates’ Court. However, a judge in a criminal trial in the higher courts
will not decide guilt; this is left to the jury.
* A judge in a civil trial may have to decide on a remedy (and a magistrate
will decide on a remedy if a party proves their claim), whereas in a criminal
case a judge or magistrate decides the sanction if the accused is guilty of
committing a crime.
* A judge/magistrate can order both parties to undertake procedures such
as mediation and discovery. While a judge or magistrate in a criminal
case also has case management powers, they do not extend to ordering
procedures such as these, which are civil dispute procedures.
Determine liability and the remedy
In civil trials without a jury, the judge decides if the plaintiff has proven their case and determines the remedy, if any. In the Magistrates’ Court, where there is no jury option, the magistrate handles both liability and the remedy. Judges and magistrates typically “reserve” their decisions and provide written judgments later. These judgments, which explain the decision, should be delivered in a timely manner, though the time taken depends on the complexity of the case. Parties shouldn’t have to wait excessively long for the judgment.
Decide on costs
After each hearing in a civil case the judge or magistrate will decide which party should bear the costs. The general rule is that working out the costs is left to the end, and the successful party is entitled to
costs, but that is not always the case.
Strengths of the judge and magistrate
- Judges and magistrates act as an impartial umpire. They
oversee the trial process, but they do not overly interfere
in a trial, nor do they ‘enter the arena’. Therefore, no one
party is advantaged or disadvantaged because the judge
or magistrate ‘takes sides’. - Judges and magistrates are experts in law, legal
processes and cases, and can use this expertise in
managing the case and in making a decision on liability. - Judges and magistrates manage the case both
before and during the trial. They have significant case
management powers to ensure that disputes are resolved
in a just, efficient, timely and cost-effective manner. For
example, they can limit discovery, or limit the time people
have to take to make submissions at trial. - Judges and magistrates are able to assist self-represented
parties, such as explaining cross-examination processes,
or explaining what discovery is.
weakness of the judge and magistrate
- Judges and magistrates are human, and there are some
risks that they may have actual or apprehended bias that
impacts their decision-making, such as when they are
fatigued. - The cultural and general diversity of judges and magistrates
has previously been criticised by some, which may increase
any distrust felt by some people in the community about
whether the outcome will reflect a ‘just’ outcome. - The extent to which a case is managed by a judge
or magistrate may depend on the case and who is
overseeing it. Some cases may be less actively managed
than others, or there may be situations where the parties
continually fail to comply with pre-trial steps but no
consequences arise, which means there will be a delay in
the case being heard. - Judges and magistrates 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.
