U3AOS2A Flashcards
Civil Law
What is civil law?
The civil justice system is a set of methods, processes and institutions used to resolve civil disputes. It includes pre-trial procedures, civil dispute resolution methods, complaints bodies and civil remedies.
What are the TWO parties in a civil dispute?
- Plaintiff
- Defendant
What are the THREE dispute resolution bodies?
- Mediation
- Conciliation
- Arbitration
What is the appropriateness with mediation and conciliation?
- Whether the relationship between the parties will continue. In this situation, mediation and conciliation may help to preserve the relationship
- Whether one or both parties want the dispute to be resolved privately or confidentially, or whether they want a public record of what occurred or the plaintiff want to ‘make a point’ about the defendant’s conduct
- Whether the parties are willing to meet in a spirit of compromise and stick to any agreement reached. If there is a history of broken promises or the parties do not show a willingness to compromise, they may be less appropriate.
What is the appropriateness of arbitration?
- Whether the parties want the benefit of a binding and enforceable decision made by an independent third party, or whether they would prefer to have control over the outcome and decide on the outcome themselves
- Whether the parties wish to have the dispute considered by a third party and want evidence to be presented to that third party as part of the dispute so that it can be finally decided on
- Whether the parties have agreed to arbitrate the dispute, or the claim is less than $10,000 and has been issued in the Magistrates’ Court. If so, then arbitration is appropriate
What are the SIX types of civil disputes?
- Defamation
- Trespass to land
- Wills and inheritance
- Breach of contract
- Nuisance
- Negligence
What is the standard of proof in a civil case?
Refers to the strength of the evidence needed to prove the case.
In a civil dispute, the plaintiff must prove the case on the balance of probabilities, meaning that they must prove which party was most likely in the right, and which was most likely in the wrong, in a situation.
What is the burden of proof in a civil case?
Refers to the onus (responsibility) that one party has to prove the fact of the case.
The burden lies with the party who brings the case to court, which in a civil dispute is the plaintiff.
What are the THREE factors to consider before initiating a civil claim?
- Costs
- Limitation of actions
- Enforcement issues
What are costs in a civil case?
Costs are the largest barrier in the Victoria justice system, (both criminal and civil) and can include things like:
- Fees for legal representation
- Disbursements
- Court fees
- Mediation fees
- Expert witness fees
- Adverse costs orders
What are limitation of actions in a civil case?
Is the restriction placed on the time within which a civil action can be commenced. The statute that imposes the limitation of actions is the Limitations of Actions Act 1958 (Vic).
Defamation - 1 year
Personal injury (general) - 3 years
Contract law - 6 years
What are enforcement issues in a civil case?
The plaintiff needs to consider whether the defendant is able to pay and whether the defendant will pay. Therefore consideration will need to be made as to:
- Whether the defendant is bankrupt
- Whether the defendant is able to pay
- Whether the defendant is in jail
- If the defendant is a company and what assets this company has
- The location of the defendant and whether they can be contracted
- Whether the plaintiff knows who the defendant is
What are the THREE PoJs?
- Fairness
- Equality
- Access
What does fairness mean in a civil case?
Means that “all people can participate in the justice system, and the processes should be open and impartial”.
What does equality mean in a civil case?
Means that “all people engaging with the justice system and its processes should be treated in the same way, unless it causes disadvantage”.
What does access mean in a civil case?
Means that “all people should be able to engage with the justice system and its processes on an informed basis”.
What are the TWO reasons for the Victorian Court Hierarchy in a civil case?
- Administrative Convenience
- Appeals
- Civil jurisdiction of the courts (very vague - not important)
What does administrative convenience mean in a civil case?
Using a hierarchy for courts means that cases can be distributed based on their complexity and seriousness.
- Less serious and less complex cases go to the lower courts
- More serious and more complex cases are heard in the higher courts
What does appeals mean in a civil case?
A person who is dissatisfied with a decision made in a civil trial can appeal, but only if they have grounds to do so. - question of law - a question of fact
If there was NO court hierarchy, there would be no higher court to review a decision that is being viewed as incorrect or unfair. They would be stuck with the decision as final regardless of the circumstances.
With a court hierarchy, it allows a more superior court with greater expertise to review the decision and rectify (correct) the issue or dismiss it.
What are the roles of the judge in a civil case?
Act impartially: Must ensure that they oversee the case and make a decision on liability without any bias toward or against either party.
Case management (before trial): The power to give directions to the parties. They may give directions to the parties to complete pre-trial procedures to ensure the case is ready for trial.
Case management (during trial): Has the power to: change the order in which evidence is to be given, or who will go first in addressing the court, limit the time for the hearing or trial, limit the number of witnesses that a party may call.
Determine liability and the remedy: Judge, not the jury, is the decider of the facts and will decide both liability and remedy.
Decide on costs: Will decide which party should bear the costs.
What are the similarities of the roles of judges in a criminal/civil case?
- is expected to act impartially and without bias, making decisions during the case on facts
- have the role in assisting a self-represented party if the accused or one of the parties in the civil dispute is not represented by a lawyer
- have the role of instructing a jury and giving directions to the jury, if there is one in a civil case
What are the differences of the role of judges in a criminal/civil case?
- may have to decide on liability if there is no jury, and a magistrate in a civil case will decide on liability if the case is heard in the Magistrates’ Court. However, in a criminal case a judge in a higher court will not decide guilt
- may have to decide on a remedy, whereas in a criminal case a judge or magistrate decides the sanction if the accused is guilty of committing a crime
- a judge/magistrate can order both parties to undertake procedures such as mediation and discovery. While a judge or magistrate in a criminal case also has case management powers, they do not extend to ordering procedures such as these, which are civil dispute procedures
What are the strengths of the role of a judge in a civil case?
- act as impartial and **unbias **
- are experts in law, legal processes and cases, and can use this expertise in managing the case and in making a decision on liability
- are able to assist self-represented parties, such as explaining cross-examination processses, or explaining what discovery is
What are the weaknesses of the role of a judge in a civil case?
- are human, so they may naturally have bias and not stay objective
- cultural and general diversity of judges have been criticised and some may feel distrust by some people in the **community **
- cannot interfere excessively in their cases, including those involving a self-represented party, even though the judge or magistrate is one of the most experienced people in the room
What are the roles of the jury in a civil case?
Be objective: Must be unbiased and bring an open mind to the task, putting aside any prejudices or preconceived ideas.
Listen to & remember evidence: Can take notes if it helps them to remember information, but they must make sure they still concentrate on what is taking place in the courtroom.
Understand directions & summing up: During the trial the judge will give directions to the jury about issues or points of law and will sum up the case at the end.
Decide on liability: Must decide who or what to believe, and whether the plaintiff has established their case on the balance of probabilities.
What are the similarities to the role of a jury in a criminal/civil case?
- expected to be impartial and unbias when making their decisions
- must listen to and concentrate on the evidence
- have the role of ensuring they comply with their obligations, which include ensuring they do not undertake any outside research or read anything about the case
What are the differences to the role of a jury in a criminal/civil case?
- the jury in a criminal case will decide on the guilt, whereas the jury in a civil case will decide on liability
- the standard of proof is different: the jury needs to decide on the guilt beyond reasonable doubt, whereas in a civil trial it is a lesser standard and is on the balance of probabilities
- a jury in a criminal trial will never decide the sanction, but in some civil trials a jury determine the damages to be awarded to a successful plaintiff
What are the strengths of the role of a jury in a civil case?
- jury members are randomly picked, have no connection to the parties and make a decision based on facts
- allows members of the public to participate in the justice system and represent the community/society
- collective decision-making can reduce the possibility of bias, as it means any personal, subconscious biases can be identified during the deliberation process and addressed by the group
What are the weaknesses of the role of a jury in a civil case?
- may have unconscious biases or prejudices, and as they do not give reasons for their decisions, there is no way of knowing whether a bias played a role in their decision-making
- jury trials may result in longer delays as matters need to be explained to the jury
- a number of people cannot participate in a jury because they’re ineligible, excused or disqualified
What are the roles of the parties in a civil case?
Make decisions about the conduct of the case: Each party controls its own case and has complete control over decisions about how the case will be run, as long as the rules of evidence and procedure are followed.
Disclose information to the other party: If the defendant claims that they did not breach a contract but in fact fulfilled their obligations under the contract
Exchange evidence: Lay evidence: given by laypersons or ordinary people about what happened or what they say
Expert evidence: given by people to give a professional opinion about an issue in the case
Participate in the trial: Making opening and closing addresses (either self-represented or by a legal practitioner)
- Ask the witness questions through examination-in-chief
- Cross-examination of the other side’s witnesses
What are the similarities of the role of the parties in a criminal/civil case?
- both the prosecutions and the parties in a civil case have ongoing disclosure obligations, which require them to disclose relevant documents
- provide an opportunity for the parties to present their case, including allowing them to make an opening and closing addresses and cross-examine witnesses
- must not mislead the court and must cooperate with each other
What are the differences in the role of the parties in a criminal/civil case?
- defendant in a civil case has an ongoing discovery obligation, but this does not apply to an accused in a criminal case
- normally no jury in a civil trial, the parties in a civil trial will generally not have to give opening and closing addresses
- 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
What are the strengths to the role of the parties in a civil case?
- have an ongoing obligation to disclosure and ‘discover’ all relevant documents to each other
- have the opportunity to present their cases, including opening and closing addresses
- 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
What are the weaknesses to the role of the parties in a civil case?
- some parties may be more familiar with their disclosure obligations than others; others may have less understanding of the requirement to disclose relevant documents
- 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 delays
