U3 AOS2 The Australian Civil Justice System (3)

Question 1

Purposes of exchange

Answer 1

To determine the strength of each case, understand the remedy an amount being sought and offer the opportunity to contest evidence presented. This helps to allow both parties to prepare for cross examination, because they can consider weaknesses in the evidence that witnesses for the other side will present. The exchange of evidence stage enables parties to access the evidence that will be submitted in court, allowing them to strategize and avoid being surprised at trial. Furthermore, it gives the defendant clarity on the remedy and the amount being sought enhancing their ability to consider an out of court settlement.

Question 2

Pleadings

Answer 2

A series of documents lodged in court by both parties that outlines each party’s claim.

Question 3

Viva voce

Answer 3

Orally rather than in writing.

Question 4

Civil pre-trial procedures

Answer 4

Compulsory legal steps that both the plaintiff and defendant must undertake before a trial.

Question 5

Lay evidence

Answer 5

Evidence on the fact that ir provided by ordinary people.

Question 6

Expert evidence

Answer 6

People with particular areas of expertise can provide opinions on an issue in a case. Expert witnesses are obliged to act independently of any party.

Question 7

List the purposes of pre-trial civil procedures

Answer 7

Encouraging an early settlement;
Ensuring the trials run smoothly as parties and the courts are fully informed

Question 8

Encouraging an early settlement

Answer 8

Each party develops an understanding of the strength of the opposing party’s case. This encourages parties to settle before a trial (e.g., perhaps at mediation).

Question 9

Ensuring the trials run smoothly as parties and the courts are fully informed

Answer 9

The legal issues are clarified, and the facts or evidence are stated. There are no surprises during a trial (i.e., as stipulated by the Supreme Court Rules). Parties (i.e., and their legal representatives) are able to better prepare their arguments and how to examine and cross-examine witnesses. Therefore, the hearing runs more smoothly. Pre-trial procedures ensure the court is informed about all legal arguments and evidence to be presented in a trial, better allowing the judge to give directions about how the trial should be conducted.

Question 10

What are acceptable grounds for an appeal?

Answer 10

Appealing on points of law;
Questions of factor or the remedy awarded;

Question 11

Appeal

Answer 11

The legal process that a dissatisfied party should peruse to have the court’s decision reviewed in a higher court through an application to have a higher court review a ruling made by a lower court, in which the appellant has to prove they have the grounds or reason to appeal, as an appeal is not an automatic right.

Question 12

Appellant

Answer 12

A party to a case seeking an appeal.

Question 13

Jurisdiction

Answer 13

The boundaries of power a particular court or organisation has to hear and determine disputes or deal with particular types of issues.

Question 14

Court hierarchy

Answer 14

The arrangement or rank of courts closely related to their jurisdiction in order from least formal and superior to most formal and superior.

Question 15

Administrative convenience

Answer 15

The benefit we derive from the organisation of cases according to how serious or complex matters are. It refers to the efficiency grained by separating cases into different courts. Superior courts are free to devote time to long and complex matters, without these courts being clogged up with lots of minor disputes. Additionally, tt provides for greater logistical efficacy as the majority of civil cases can be heard in the Magistrate’s court and resolved more quickly than if only higher courts had this jurisdiction.

Question 16

Specialisation

Answer 16

The courts’ judges and staff developing expertise in particular criminal disputes and criminal procedures. This specialisation develops as a result of each court regularly conducting criminal trials (or appeals) of a particular kind.

Question 17

Judge

Answer 17

A public officer, or ‘umpire of the courtroom’ that is appointed to conduct and decide trials or hearings and resolve legal disputes in court. Additionally, judges oversee all personnel, rules of evidence and procedure.

Question 18

Civil Procedure Act 2010 (Vic)

Answer 18

Outlines the overreaching obligations as its purpose stated in section 7 of the Act to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. This act empowers judges to actively intervene in how parties (and their legal representatives) conduct their disputes prior to a trial and during a trial. Judges will intervene in ways that are designed to ensure cases are resolved in as fast a manner as possible, minimising costs and delays for all parties to a dispute.

Question 19

List the judge’s responsibility in a civil trial

Answer 19

Managing trial, determining the defendant’s liability, directing a jury if present, and remaining impartial.

Question 20

Managing trial

Answer 20

Judges use their power of case management to ensure that the trial is run on time and resources are used efficiently which can include setting a time limit for how long a witness may be questioned, limit cross-examination time and direct which evidence must be given orally, and which may be presented in written format.

Question 21

Determining the defendant’s liability

Answer 21

In the absence of a jury, the onus falls on the judge to determine whether the plaintiff has proven that the defendant caused their injury on the balance of probabilities. Additionally, judges provide written and publicly available reasons for their decisions at the conclusion of the trial which contains information about legal principles applied as well as who is responsible and what damages, and remedy is to be awarded.

Question 22

Directing a jury

Answer 22

Instructs a jury on what decision they must reach based on the judges direction of a jury through who has the burden of proof in the case, and what standard of proof must be met. Additionally, this involves summarising the evidence presented during trial.

Question 23

List the jury’s responsibilities

Answer 23

Being objective, listening to the evidence, listening to the judge’s directions, listening to legal representatives’ submissions, and deciding the liability and damages.

Question 24

Being objective

Answer 24

To be independent and unbiased when reaching decisions. Potential jurors who believe they cannot remain impartial must ask to be excused during the process of jury empanelment.

Question 25

Listening to the the evidence

Answer 25

Be alert, take notes, and keep track of often complex information. Furthermore, determine which witnesses and evidence they believe or accept as accurate and reliable.

Question 26

Listening to the judge’s directions

Answer 26

Listen to the judge’s directions regarding the law, the evidence, and the decisions they must make.

Question 27

Listening to legal representatives’ submissions

Answer 27

Listen to legal representatives’ presentations summarising the plaintiff’s and defendant’s cases, that is the evidence they want the jury to accent and the law they want the jury to consider in reaching their decision.

Question 28

Deciding the liability and damages

Answer 28

Decide whether the defendant is responsible for the plaintiff’s harm based on whether the plaintiff has proven their case on the balance of probabilities. Additionally, juries are required to calculate the damages in some matters.

Question 29

Jury

Answer 29

A group of 6 people representing a cross-section of the community, randomly selected from the electoral roll required to deliver a verdict of liable or not liable in civil trials for summary offences, on the basis of evidence presented in court. It is not common for juries to be used in civil trials in Victoria.

Question 30

Describe three reasons for the implementation of the jury system

Answer 30

In the case of a single sitting judge, there are six minds opposed to one, which means that a group decision such as that of a jury is more likely to be correct if all or a majority of a group of people agree on an outcome, it is more likely to be right;

Juries are supposed to represent Victorian society, so the process of random selection and empanelment is designed to ensure a civil jury reflects Victoria in terms of ethnicity, culture, age, gender and socio-economic status. Consequently, decisions can be more likely to be said to reflect the values of the community;

They allow the community to participate directly in the administration of justice, enhancing understanding of and confidence in the legal system;

Question 31

List the responsibilities of the plaintiff in a civil trial

Answer 31

To file the claim, to seek a civil remedy, to liaise with legal representation, and to be present at all court proceedings (i.e., except in class action lawsuits, not all plaintiffs need to be present).

Question 32

List the responsibilities of defendants in civil trial

Answer 32

To file a counterclaim, liaise with legal representation, and be present at all court proceedings.

Question 33

Legal practitioner

Answer 33

An individual with legal training is qualified to give evidence and appeal in court. Generally, a solicitor prepares legal documentation (e.g., the hand-up brief presented during a committal proceeding), and a barrister is responsible for representing a party in a trial (e.g., making legal arguments etc).

Question 34

A party

Answer 34

A person or company bringing their case or defending their case in court. There can be multiple plaintiffs and defendants.

Question 35

Presentation of a case to a judge and/or jury

Answer 35

In practise the presentation of evidence and legal arguments is conducted on the parties’ behalf by their legal representatives.