U3AOS2A - Civil Justice System (Key Concepts) Flashcards
1
Q
What is an adverse cost order and what should be considered?
Factors; Costs
A
- Court order that a party pay the other party’s costs
- Considerations include:
- How much it will cost to have the dispute resolved
- Whether they have the money
- Whether damages awarded outweigh the costs for making the claim
- Whether they are eligible for legal aid or free legal assistance
2
Q
Define limitation of actions and name 3 examples
Civil Factors
A
- The restriction on bringing a civil claim after the allowed time - Limitations of Actions Act 1958
- Defamation - 1 year
- Breach of Contract - 6 years
- Physical/ Sexual Abuse as a Minor - No Limit
3
Q
What might impact the enforcement of a civil outcome?
A
- Whether the defendant has the assets or money to pay anything to the plaintiff
- Even if the defendant is not bankrupt, they may still be unable to pay
- Defendant may be in jail, more difficult to enforce the remedy
- If the defendant is a company, whether the company has any assests
- If the defendant has no assets or money, whether they have access to any other money to be able to pay the plaintiff
4
Q
What are the fees for legal representation and what do they depend on?
Factors; Costs
A
- Costs of engaging a solicitor and a barrister (depends on the case and which DRB is used to resolve the dispute)
- Cost of solicitor/barrister depends on…
- Complexity of case, duration until solved
- Which DRB is used
- Size of the case
- Expertise of legal practitioner
5
Q
Define the burden of proof
A
- Refers to the onus (responsibility) that one party has to prove the facts of the case; lies with the party who brings the case to court
- Can change to defendant in a counterclaim
6
Q
What is a disbursement and what does it include?
Factors; Costs
A
-
Out-of-pocket expenses or fees incurred as a part of a legal case
Includes:- Fees paid to expert witnesses
- Court fees or tribunal fees
- Mediation fees
- Costs involving technology to manage relevant documents
7
Q
Define the standard of proof
A
- Refers to the strength of evidence needed to prove the case
-
Balance of Probabilities → Prove one party is more right than the other
- Less strict than beyond reasonable doubt
8
Q
Outline the factors to consider when initiating a civil claim
A
LEC
-
Limitation of Actions
- The restriction on bringing a civil claim after the allowed time
-
Enforcement Issues
- Whether the defendant cannot pay or refuses to pay damages
-
Costs
- Costs of engaging a solicitor and a barrister (legal rep.)
- Out-of-pocket expenses (disbursements)
- Court order that a party pay the other party’s costs (adverse court order)
9
Q
Define and provide examples for fairness (3 element)
A
- All people can participate in the justice system and its processes should be impartial and open
- Participation
- Opportunity to know case put against them
- ” present their version of the case
- Use of an intepreter
- No delays
- Impartial processes
- Courts and personnel must refrain from biases and remain impartial
- Open Processes
- Civil trials and hearings should be open to the public and the court’s judgement should be given in public
10
Q
Define and provide examples for equality
A
- People should be treated in the same way, but if the same treatment causes disparity or disadvantage, adequate measures should be implemented
- Same Treatment
- Parties in a civil dispute should be treated in the same way
- Formal Equality - same levels of support regardless of who they are
- Diff. Treatment
- Substansive Equality - if same treatment causes disparity or disadvantage, it is changed
11
Q
Define and provide examples for access
A
- All people should be able to engage with the justice system and its processes on an informed basis
- Engagement
- People should be able to use and participate in the civil justice system and its processes
- Informed Basis
- Should be able to get information and use the procedures, methods and institutions that resolve a civil dispute
12
Q
Outline the alternative dispute resolution methods
A
- Mediation
- Disputing parties reach solution
- Mediator cannot give input but can facilitate and help parties reach solution
- Terms of Settlement
- Conciliation
- Conciliator listens to facts and makes suggestions
- More influence over outcome
- Specialist knowledge
- Terms of Settlement
- Arbitration
- Arbitrator makes legally binding decision (arbitral award) entirely
- More formal than M+C but less formal than courts
13
Q
Describe when mediation is used
A
- Plaintiff issues claim in court, mediation is ordered with or without consent
- Used to save time & costs that would’ve been otherwise used in a trial
14
Q
Describe when conciliation is used
A
- Not used as much as mediation but is an option
- Parties can choose this as a resolution method at anytime
15
Q
Describe when arbitration is used
A
- Need parties to consent (court order)
- Commonly private
16
Q
Outline the reasons for a Victorian court hierarchy in determining civil cases
A
- Administrative Convenience
- Cases can be distributed according to seriousness and complexity; less serious-low, more serious-high
- County & Supreme are able to manage time for cases better
- Appeals
- Dissatisfaction in outcome, seek exposure to higher court and reevaluation
17
Q
State the roles of a judge/magistrate in a civil trial
A
- Judge/ Magistrate
- Act impartially
- Case Management (before/during trial or hearing)
- Determine liability and the remedy
- Decide on costs
18
Q
State the roles of the jury in a civil trial
A
- Jury
- Be objective
- Listen to & remember evidence
- Understand directions and summing up
- Decide on liability and damages
19
Q
State the roles of the parties in a civil trial
A
- Parties
- Make decisions about conduct
- Disclose info. to other party
- Exchange evidence
- Participate in trial
20
Q
State the strengths and weaknesses of a judge/magistrate in a civil trial
A
- Strengths
- Impartial umpire, AKA no interference so no party is advantaged or disadvantaged
- Experts in Law
- Weaknesses
- Actual or apprehended bias
- Cannot interfere excessively (bad for self-represented party)
21
Q
When would mediation and conciliation be appropriate?
A
- When the relationship between the parties will continue (used to conserve relo.)
- Whether the parties are willing to meet in a spirit of compromise and stick to any agreement reached
- When 1 or both of the parties want the dispute to be resolved privately
22
Q
When would mediation and conciliation be inappropriate?
A
- When there is a history of violent and threatening behaviour
- When the M/C is to be held -> too early = risk not solving, too late = already spent $$
- When the matter is urgent
- When there is a gross imbalance of power
23
Q
When would arbitration be appropriate?
A
- Claim is less than 10k and issued in the Magistrates’ Court
- When parties want the benefit of a binding and enforceable decision made by an independent 3rd party
- When they wish to have their dispute considered by a third party
- When parties have agreed to arbitrate the dispute
24
Q
When would arbitration be inappropriate?
A
- Parties want a public record
- Claim is more than 10k
- Parties do not want the benefit of a binding decision
25
What is the civil jurisdiction for each Victorian Court?
* Magistrates' Court
* Original - **claims up to $100 000**
* *No appellate*
* County Court
* **Original - unlimited**
* *No appellate* unless given power under a specific Act of Parliament
* Supreme Court (Trial Div.)
* **Original - unlimited**
* Appellate - **on a question of law from MC and from VCAT**
* Supreme Court (Court of Appeal)
* *No original*
* Appellate - **all appeals** from a single judge of the **County Court/ Supreme, question of law from MC from VCAT**
26
State the strengths and weaknesses of the jury in a civil trial
* Strengths
* Jury members **randomly picked**
* Jury members can **participate** in the civil justice system
* Weaknesses
* May have **subconscious biases**
* Civil trials are **complex**, **not ensured that jurors understand directions**
27
State the strengths and weaknesses of the parties in a civil trial
* Strengths
* Parties have **ongoing obligation** to **disclose and discover all relevant documents** to each other
* Both parties have **opportunities to present cases**
* Weaknesses
* **Some parties more familiar w/ disclosure obligations** than others
* **Processes involved are difficult to understand w/o lawyer**
28
Compare the role of a judge/ magistrate between civil and criminal law
* Similarities
* J/M are **expected to act impartially and without bias**, making decisions during case based on facts
* **Role of assisting a self-represented party** if the accused or one of the parties in the civil dispute is not represented by a lawyer
* Role of **instructing and giving directions to the jury**
* Differences
* CIVIL - J **decide on liability** if there is **no jury**
CRIM - J **does not decide guilt**, jury does
* CIVIL - J may have to decide on **remedy**
CRIM - J decides the **sanction** if accused is guilty of commiting a crime
* CIVIL - J can **order both parties to undertake procedures** such as **mediation and discovery**
CRIM - J also has case management powers but **cannot do** " because they are **specific to civil** dispute procedures
29
Compare the role of a jury between criminal and civil law
* Similarities
* Expected to be **impartial**
* Must **listen to** and concentrate on **evidence**
* Have to **comply with obligations**, including that they do not undertake any outside research or read anything about the case
* Differences
* CIVIL - Jury decides on **liability**
CRIM - Jury decides on **guilt**
* CIVIL - **Balance of Probabilities**, **lesser** standard
CRIM - **Beyond Reasonable Doubt**, **higher** standard
* CIVIL - Jury **may determine damages** awarded to a successful plaintiff
CRIM - Jury will **never decide the sanction**
30
Compare the role of the parties between criminal and civil law
* Similarities
* Ongoing **disclosure obligations** which require them to disclose relevant documents, even if they are detrimental to their own case
* Opportunity for **parties to present their case**
* **Must not mislead court** and **must cooperate** with each other
* Differences
* CIVIL - **Defendant** has **ongoing discovery obligation**
CRIM - **Accused does not have** "
* CIVIL - Generally no jury, therefore **parties generally do not have to give opening and closing addresses to the jury** or consider other jury issues
CRIM - **Required** to do so
* CIVIL - **Party control**, the power that each party has to decide how they will run their case
CRIM - **Generally not present** in relation to the fact that the prosecutor cannot always 'choose' what evidence to lead or not lead in a crim. trial
31
Describe pre-trial case management
* Judges and Magistrates give **directions** to parties; directions are an instruction given by the court to one or more of the parties, **imposing an obligation for a party to do by a certain time...** for example:
* **Discovery** - enables parties to get **copies of each others documents** that are **relevant to issues** in a dispute
* **Mediation** - may order parties to **attend mediation by a certain date** to **try to resolve the dispute before the trial**
## Footnote
PSA Directions can be given at anytime but can also be given at directions hearings, a pre-trial hearing.
32
Describe during trial case management
## Footnote
HINT: Final Hearing = 1+ 5 (3 time, 2 number)
* **Final hearing** will be conducted according to a set procedure... which the judge/ magistrate has the power to change
* **change the order** in which **evidence** is given/ who will go first in addressing the court
* **limit the *time* for the hearing or trial**
* " the ***time* for examination of witnesses** or not allowing cross-examination of particular witnesses
* " the **length or duration/*time* of the parties' submissions to the court**
* " the ***number* of witnesses that a party may call**
* " the ***number* of documents** that a party may tender into evidence
* J/M also have the power to **ask a witness some questions** to **clarify their evidence**
* Can make a **ruling at anytime** during the trial where necessary e.g hearsay evidence
* **May need to address jury** if present, **give directions and sum up the case** to the jury at the end of the trial
## Footnote
PSA If one or both of the parties is self-represented, the J/M has the additional responsibility of ensuring they understand processes and their obligations and rights.
