U3 AOS2 The Australian Civil Justice System (3) Flashcards
Purposes of exchange
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.
Pleadings
A series of documents lodged in court by both parties that outlines each party’s claim.
Viva voce
Orally rather than in writing.
Civil pre-trial procedures
Compulsory legal steps that both the plaintiff and defendant must undertake before a trial.
Lay evidence
Evidence on the fact that ir provided by ordinary people.
Expert evidence
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.
List the purposes of pre-trial civil procedures
Encouraging an early settlement;
Ensuring the trials run smoothly as parties and the courts are fully informed
Encouraging an early settlement
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).
Ensuring the trials run smoothly as parties and the courts are fully informed
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.
What are acceptable grounds for an appeal?
Appealing on points of law;
Questions of factor or the remedy awarded;
Appeal
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.
Appellant
A party to a case seeking an appeal.
Jurisdiction
The boundaries of power a particular court or organisation has to hear and determine disputes or deal with particular types of issues.
Court hierarchy
The arrangement or rank of courts closely related to their jurisdiction in order from least formal and superior to most formal and superior.
Administrative convenience
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.
Specialisation
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.
Judge
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.
Civil Procedure Act 2010 (Vic)
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.
List the judge’s responsibility in a civil trial
Managing trial, determining the defendant’s liability, directing a jury if present, and remaining impartial.
Managing trial
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.
Determining the defendant’s liability
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.
Directing a jury
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.
List the jury’s responsibilities
Being objective, listening to the evidence, listening to the judge’s directions, listening to legal representatives’ submissions, and deciding the liability and damages.
Being objective
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.
