Legal SAC AOS2

Question 1

The judge

Answer 1

An independent impartial party that ensures court procedures are followed and that parties are treated fairly.
The judge must ensure that the principals of justice are upheld.

Question 2

Responsibilities of the Judge

Answer 2

• Manage the trial
  So that the trial is conducted in a timely, just and efficient manner.
  Judges have the ability to control the case by making orders and giving directions throughout the proceedings known as ‘case management’, orders may include attending mediation or not permitting a piece of evidence.

*Deciding on the admissibility of evidence
Whether or not a piece of evidence is permitted ensures fairness in the trial process.

*Attending jury matters (if there is one)
May need to address the jury during trial, give directions to the jury.

*Determine liability and remedy
Decide whether the plaintiff has established his or her claim against the defendant and if so what remedy should be awarded.

Question 3

Legal practitioners

Answer 3

Are experts who are familiar with civil trials and undertake the role of preparing and conducting a case on behalf of a party.
Legal practitioners must ensure the rule of law is upheld and the law is applied equally and fairly.

Question 4

Responsibilities of legal practitioners

Answer 4

*Make and opening and closing address
A solicitor or brister will prepare submissions and present them orally through their opening and closing addresses.

*Present the case to the judge and or jury
Legal practitioners are responsible for presenting the case to the judge and jury by asking the witness questions and making submissions about matters that come up during trial.

Question 5

Jury

Answer 5

It is unlikely to have a jury for a civil trial but if the plaintiff or defendant or in some rare cases even the judge decides that they want a jury to be used it will be made up of 6 individuals who are chosen at random.

Question 6

Responsibilities of the jury

Answer 6

*Be objective
The jury must be unbiased and bring an open mind.

*Listen to and remember the evidence
Jurors can take notes if it helps them to remember the information, a jury member must not do their own investigation on the case at hand.

*Decide on liability and some cases remedy
Must decide who and what to believe on the balance of probabilities it must be a unanimous decision.

Question 7

Parties

Answer 7

The main parties in a civil trial are the plaintiff and the defendant. The plaintiff is the one bringing the case forward and who is claiming to have had their rights breached or infringed by the defendant.

Question 8

Responsibilities of the parties

Answer 8

*Make opening and closing addresses
Both parties will give an opening and closing address that summaries and outlines the case.

*Present the case to the judge and or jury
Most of the trial is taken up by presenting the facts and evidence to the judge/jury and interviewing witnesses either expert witnesses or lay witnesses.

*Comply with overarching obligations
Must act honestly, Cooperate and not mislead or deceive others.

Question 9

Judicial powers of case management

Answer 9

Case management refers to the powers given to Victorian judges and Magistrates to manage civil disputes through the ‘Civil Procedure Act’ and other statue.
These powers give judges power to order mediation and to give directions.

Question 10

Power to order mediation

Answer 10

The court can order parties to either arrange private mediation or a court officer to act as a mediator.

Parties can be referred to mediation at any stage of the proceeding.

Mediation is considered successful and allows parties to realise the benefit of settling out of court and without a trial.

Question 11

Power to give directions

Answer 11

Judges have the power to give directions before or after a trial, parties who don’t comply may have a sanction imposed.

Directions are instructions given by courts imposing obligations on parties such as attending court or mediation (this assists in minimising delays).

Directions before a trial can include the conduct of proceedings limiting expert evidence, allowing for a bleeding amendment and stipulating timelines for any step to be undertaken. (placing limits on time, limiting/examining the number of witnesses.

Question 12

Mediation

Answer 12

Independent 3rd party known as a “mediator” who initiates a conversation between the 2 disputing parties, the mediator does not put their input in and does not help them come to a decision.
(no interfering and not binding)

Question 13

Country court appropriateness

Answer 13

Can hear cases from $100,000 +

Question 14

Supreme Court appropriateness

Answer 14

Can hear cases from $100,000 +

Question 15

Magistrates court appropriateness

Answer 15

Can hear cases up to $100,00 (no more)

Question 16

VCAT appropriateness

Answer 16

Cases relating to…

• Domestic buildings
• Residential tenancies
• Planning disputes

Question 17

Purpose of civil remedies

Answer 17

To return the plaintiff back to the original position they were in before their rights were breached or infringed.

Question 18

Damages

Answer 18

A legal remedy involving an amount of money paid to the plaintiff.
Aim to compensate the plaintiff to the extent that money is able to do so.

Question 19

Types of damages

Answer 19

*Compensatory damages (most common)
Specific + General

*Aggravated damages

*Nominal damages
(small amount of money wanted )

*Contemptuous damages
(small amount is rewarded cause its unnecessary)

*Punitive damages
(large sums of money)

Question 20

Compensatory damages

Answer 20

Specific:
Can be calculated exactly such as medical expenses.

General:
Unable to be calculated, any future loss of earnings or suffering such as losing a hand.

Question 21

Aggravated damages

Answer 21

An added sum of money paid to a plaintiff in situations where there has been extreme insult or humiliation.
(the defendant has acted in a nasty or offensive way)

Question 22

Nominal damages

Answer 22

Where the plaintiff only request a small amount of money, they more so just want the satisfaction and moral victory of winning the case.

Question 23

Contemptuous damages

Answer 23

The court agrees and acknowledges that there has been a legal issue that has been breached but you don’t deserve money.
You’r doing it to just be a dickhead and annoying (bank suing an old lady for not paying on time).

Question 24

Punitive damages

Answer 24

Really large sum of money is paid to the plaitiff that might not be related to the magnitude of harm suffered.
The defendant has acted in a really malicious/reckless/cruel manner.

Known as exemplary damages.
Making an example of someone, punishing the other person rather than just retuning the plaintiff to their original state.

Question 25

Injunction

Answer 25

A court order handed down by a judge in the court room that either…
*Prevents the defendant form doing something, (restrictive injunction)
e.g Stopping you from contacting someone
or
*Makes/compels them do something
(mandatory injunction)
e.g Building something to fulfil a contract

Question 26

Recent reforms (within the last 4 years)

Answer 26

Justice Legislation Amendment: (access)

• Aimed at reducing the barriers to dispute resolutions and improving access to legal assistance.
• Reducing the complexity of VCAT, anything under $10,000 was considered a small claim which means that you couldn’t be given legal representation, it has been raised to $15,000.
• Equality + fairness reducing costs
• Access reducing barriers to access help
• It is still not increasing the amount of legal representation available.

E-Feling of Supreme Court documents: paperless system

• Decrease time taken to resolve a dispute and decrease the cost as well. (less delays)
• Reduces costs to the parties as they do not need to photo copy and store documents.
• Should reduce cost and delays (access)
• Easy access to relevant documents should aid case preparation (fairness)
• E-Feling requirements are for both parties (equality)
• It doesn’t reduce the cost of legal practitioners so access is still limited.

Question 27

Recommended reforms

Answer 27

Allowing Contingency Fees:
When starting a case you will draw up a costs agreement with the law firm that is helping you in regard to what fees you will have to pay such as dispersants, hourly rate, barrister costs, ect.
No win no fee, only need to pay if you win the case.
Contingency fees are where if you win and have a successful outcome you will pay us a percentage of damages or an amount out of the court settlement rather than just paying for the work that they have done.

• If you can’t afford the legal fees you might be able to negotiant a contingency fee where you pay a percentage of what you are rewarded.
• Very uncertain and legal practitioners may take advantage of their clients.
• Lack of equality (different clients will be paying different fees depending on the remedy they are seeking, there won’t be a lot of consistency)

Question 28

Cost

Answer 28

The cost of pursuing a civil case can be very high for both parties.

• Cost of “legal representation”
• Filing fees

The cost just adds up

Question 29

Time

Answer 29

85% of matters are resolved within a reasonable timeframe.

One party can increase delays by the “discovery” stage, therefor increasing costs and time.

Question 30

Accessibility

Answer 30

Due to economical and social factors some people can’t have the same Lebel of access to the justice system.

• Cultural barriers such as “language barriers”
• People may not even be aware that they have the right to pursue a civil case.

*Family law matters (domestic violence) to do with women who feel as though they do not have as great access to the justice system as males. (gender pay gap, gender stereotypes)