U3 AOS 2a lesson 7 Flashcards
Judge
an independent authority who presides over a trial,
ensuring procedural fairness by overseeing all personnel and evidence - a term used in the County and Supreme Courts
magistrate
an independent authority who presides over
hearings in the Magistrates’ court for less serious summary offences, committal proceedings and some civil disputes
Justice
a judge in a relatively superior court in the hierarchy
such as Supreme Court of Victoria - COA or High court of
Australia
Role of judge: case management
A method used by the courts to control the progress of legal cases more effectively and efficiently. It generally the judge presiding over the case making orders and directions in the proceedings (e.g., ordering parties to attend mediation).
This is granted to the judge under the Civil Procedures Act 2010
Role of judge: case management b4 trial
Giving directions to parties
This can include:
Discovery process
Attending mediation
Role of judge: case management b4 trial
giving directions to parties
poses an obligation on a party or both to do something by a certain time or, specifies how a
civil proceeding will be conducted. This can include:
Role of judge: case management b4 trial
discovery process
ensuring parties get copies of each other’s documents that are relevant to the issues in the disputes. This could be a copy of the contract, reports, photographs, emails etc. The judge can set boundaries to ensure that these documents are only ones relevant to the dispute.
Role of judge: case management b4 trial
attending mediation
a judge may order parties to attend mediation by a certain date to try and resolve the dispute.
Most matters heard in the superior court have gone through mediation prior to the trial.
purpose of case management b4 trial
The purpose of this stage is ensuring that the case is ready for trial or, to determine whether the matter can be resolved prior to trial commencing to save parties time + costs.
Role of judge: case management during trial
Should the matter not be resolved during the pre-trial stage, then during the trial the judge also manages the trial by:
- Limit the examination of witnesses or not allowing cross-examination of certain witnesses or time limits on examination in chief
- Hand down a ruling
*Ensuring parties who are self represented, understand their rights and obligations along with court processes by
Role of judge: remain unbias
A judge or magistrate must remain impartial throughout the entire proceeding. They must not favour either party and will act as an umpire for the courtroom to oversee the case.
Role of judge: determining liability + award remedies
- In the absence of a jury, the judge must determine whether the plaintiff has proven, on the balance of probabilities, that the defendant caused their injury or loss. In the Mag’ court, the Mag’ will always determine liability as juries x used
- The judge or Magistrate has the responsibility of ordering the appropriate remedy. Once a verdict is determined for the wronged party. This can be in the form of damages, injunctions, and/or other remedies.
difference between judge and Magistrate: types of disputes
judge
Judges deal with more serious civil claims, where parties are seeking a large amount of damages.
difference between judge and Magistrate: types of disputes
mag
Magistrates deal with less serious civil claims as the Magistrates’ Court’s jurisdiction only covers cases where the plaintiff is seeking between $10,000 to $100,000.
For claims below $10,000, a magistrate will generally refer the parties to arbitration.
difference between judge and Magistrate: award remedies
mag
Magistrates are hound by precedent as they are in the lowest court and have minimal discretion when it comes to awarding remedies. They must follow the statutory restrictions on damages as well as the decisions from previous
difference between judge and Magistrate: award remedies
judge
judges have more discretion than magistrates when it comes to awarding remedies
Judges are expected to exercise their judgment and discretion in accordance with the law and legal precedent.
However, if the parties request a jury, the jury may determine the amount in damages.
strength of role Judge: fairness
- Independent judges and magistrates ensure trials are conducted without bias and according to rules of evidence, thus contributing to fairness as the decisions are based on law and facts alone.
strength of role Judge: equality
Judges and magistrates ensure rules of evidence and procedure only equally to all parties during a civil dispute
strength of role Judge: access
Judges and magistrates case management powers, such as setting time limits for evidence and ordering mediation, minimise the cost of civil disputes and thereby, enhance the accessibility of the civil justice
weakness of Judge role: fairness
Judges and magistrates rely on the parties to present all of the evidence and facts of the dispute during a trial. If parties have no legal representation. this may prevent all of the relevant facts from being presented to the court, or in their best light, thus leading to an unfair trial
weakness of Judge role: equality
- Whilst judges and magistrates are impartial judicial officers, they are still subject to personal bias and mar unconsciously discriminate against certain parties and personal characteristics limiting equality
weakness of Judge role: access
accessing a hearing or trial presided by a magistrate or judge can be challenging due to a range of factors such as the associated high costs and fire consuming nature of the proceedings.
As a result the courts and the expertise of judicial officers may be inaccessible for many members of the community.
- diff btwn roles of crim + civ judges:
- diff btwn roles of crim + civ judges:
- similarities btwn roles of crim + civ judges:
remain impartial
- similarities btwn roles of crim + civ judges:
criminal procedures act 2010 (vic)
In Victoria, the Civil Procedure Act 2010 (Vic) is designed to ensure all civil matters are resolved in the most timely and cost-effective manner possible. This means parties and their legal representatives have certain obligations during the trial:
(2) Only make claims that have a proper basis
(4) Cooperate in the conduct of the civil proceeding
(S) Not mislead or deceive
(9) Minimise delay
role of the plaintiff: party control
the power to determine the course of proceedings by parties:
- Choosing which court to bring their claim (can be dependent on amount claimed)
- Choosing what evidence to present
- What defences they will raise
Whilst these decisions can be made by the plaintiff, it must comply with the rules of evidence and procedure.
role of the plaintiff: participating in trial
- Making opening and closing addresses
- Presenting the case to the judge and jury. If witnesses are used, then the barrister will ask them questions through examination in chief
- Cross examination of the other side’s witnesses in hope of challenging the credibility or identify holes or weaknesses in their evidence.
role of the plaintiff and defendant : disclosing info to the defendant
- It is the responsibility of the parties to ensure all relevant documents are presented to the courts as per the Civil Procedures Act 2010 (Vic)
If the plaintiff claims to have suffered physical injuries, this can be proven through medical records, text, emails, photographs of the injury
The party’s role to discover documents continues throughout the trial
role of defendant: party control
the defendant also has party control over how they wish to present their side of the case.
They can:
* Raise relevant evidence
* Call their own witnesses
*The defendant has no obligation to present defences if they believe the plaintiff has not sufficiently proven their case on balance of probabilities
role of defendant: present defences
- The defendant can present defences to the judge throughout the trial as well as the jury if one is selected.
strength of role of parties fairness
- Parties to a civil dispute have control of their own case and are responsible for deciding what facts to present and how to present them. Therefore party control contributes to fairness as parties can participate in, and have control over, the civil court processes.
weakness of role of parties fairness
self-represented part may not understand which documents are relevant and therefore, may fail to disclose all relevant evidence lo the court. This may jeopardise the achievement of a fair autcome to the case where not all evidence has been assessed
Self-represented parties may struggle fo anderstand how to present legal arguments and evidence in the best possible light, which may lead lo an unjust outcome
weakness of role of parties equality
Not all parties are equally equipped to present their case to a judge and jury withous the assistance of legal practitioners Tf some parties such as those who are of low socioeconomic economic status may not be able to defend themselses effectively such as due to the expense of legal representation
hindering equality
strength of role of parties equality
*Both parties are given equal opportunity to present their case to the court, contributing to the principle of equality.
Both the plaintiff and defendant must abide by court processes and procedures, achieving equality as both parties are treated the same before the law.
strength of role of parties access
- Courts provide some general guidance to parties who are representing themselves, regarding court procedures, to allow them to better engage with the justice system and its processes on an informed basis, enhancing access to justice
weakness of role of parties access
Institutions that promote access to justice for parties of low socioeconomic status in a criminal case such as Victoria Legal Aid, are often unable to susport parties in civil dispules, leaving defendants without legal representation,
Parties without legal representation may struggle to understand their legal rights, and how to present legal arguments and evidence, limiting access to justice
diff btwn roles of crim + civ parties :
diff btwn roles of crim + civ parties :
similarities btwn roles of crim + civ parties :
similarities btwn roles of crim + civ parties :
