Chapter 7.6

Question 1

Roles of the parties

Answer 1

The parties have various roles in a civil dispute. The plaintiff has the special role of proving the facts of
the case, given that they have the burden of proof. The defendant has to prove that the defence has a
good answer to the claim. A defendant who has filed a counterclaim will also have to prove their claim.
The facts will need to be established on the balance of probabilities
- Make decisions about the conduct of the case
- Disclose information to the other party
- Exchange evidence
- Participate in the trial

Question 2

Make decisions about the conduct of the case

Answer 2

In Victoria’s trial system, each party has full control over how to run their case, a concept known as “party control.” As long as they follow the rules of evidence and procedure, parties decide which claims to make, what defences to raise, and which witnesses to call. This differs from systems where an external investigator seeks the truth to determine liability.

Question 3

party control

Answer 3

(in relation to criminal
and civil cases) a term
used to describe the
power that each party
in a legal case has to
decide how they will run
their case

Question 4

Disclose information to the other party

Answer 4

In civil proceedings, one of the key pre-trial procedures is the discovery of relevant documents. Both parties are responsible for providing key documents, with some exceptions (e.g., if documents are legitimately lost). For example, medical records may be relevant if the plaintiff claims physical injuries, or emails could be crucial if the plaintiff alleges defamation. If a defendant claims they fulfilled a contract, they must provide evidence supporting this. The obligation to discover documents continues up until and during the trial.

Question 5

Exchange evidence

Answer 5

To prove their case, the plaintiff and defendant will generally need to rely on evidence. This is
particularly the case where the documents are unable to speak for themselves, or where someone has to
prove something that is contained within the emails.
- lay evidence
- expert evidence

Question 6

lay evidence

Answer 6

evidence (testimony)
given by a layperson (an
ordinary person) about
the facts in dispute

Question 7

expert evidence

Answer 7

evidence (testimony)
given by an independent
expert about an area
within their expertise

Question 8

Participate in the trial

Answer 8

The parties will be required to participate in the trial. This includes:
* making opening and closing addresses. If a party is legally represented, the legal practitioner will
ordinarily present the opening and closing addresses (or submissions). The solicitor (and barrister)
will prepare the submissions, and the barrister will present them orally in court
* presenting the case to the judge or jury. If witnesses give evidence orally, then the barristers will
ask the witnesses questions through examination-in-chief
* cross-examination of the other side’s witnesses. This will involve the barrister asking the other
party’s witnesses questions, in the hope of challenging the credibility (truthfulness) of the witness
or identifying ‘holes’ or ‘gaps’ in their evidence.

Question 9

examination-in-chief

Answer 9

the questioning of one’s
own witness in court
in order to prove one’s
own case and disprove
the opponent’s case

Question 10

summary of the similarities and differences between the role of the parties in
a criminal and civil case.

Answer 10

Similarities
* Both the prosecution and the parties in a civil case have ongoing
disclosure obligations, which require them to disclose relevant
documents, even if they are detrimental to their own case.
* Both criminal and civil trials provide an opportunity for the parties
to present their case, including allowing them to make opening and
closing addresses and examine and cross-examine witnesses.
* The parties in both types of trials must not mislead the court and must
cooperate with each other.

Differences
* The defendant in a civil case has an ongoing discovery obligation, but
this does not apply to an accused in a criminal case.
* As there is normally no jury in a civil trial, the parties in a civil trial will
generally not have to give opening and closing addresses to the jury or
consider other jury issues (such as what instructions need to be given
to a jury).
* The concept of ‘party control’ does not generally extend to many parts
of the criminal trial process in that the prosecutor cannot always
‘choose’ what evidence to lead or not lead in a criminal trial.

Question 11

strengths of the parties

Answer 11

• The parties have an ongoing obligation to disclose and
  ‘discover’ all relevant documents to each other. This
  ensures there are no surprises as to the documents that
  may be relevant to the issues in dispute.
• Both parties have the opportunity to present their cases,
  including making opening and closing addresses. This also
  includes the opportunity to examine and cross-examine
  witnesses.
• The parties have complete control over how they run their
  case. They are not forced to do or say anything and can
  decide whether to make certain claims or defences, or
  what evidence to rely on.

Question 12

weakness of parties

Answer 12

• Some parties may be more familiar with their disclosure
  obligations than others; others may have less
  understanding of the requirement to disclose relevant
  documents, even those that are not helpful to their case.
• The processes involved are complex and difficult to
  understand without the use of a lawyer, thus making it
  difficult for self-represented parties.
• ‘Party control’ mean that the parties need time to prepare
  their case, and make decisions about how to run their
  case, which can add to the delays. This can be stressful
  and cost money.