U3AOS2A - Civil Justice System (Key Concepts)

Question 1

What is an adverse cost order and what should be considered?

Factors; Costs

Answer 1

• 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

Question 2

Define limitation of actions and name 3 examples

Civil Factors

Answer 2

• 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

Question 3

What might impact the enforcement of a civil outcome?

Answer 3

• 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

Question 4

What are the fees for legal representation and what do they depend on?

Factors; Costs

Answer 4

• 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

Question 5

Define the burden of proof

Answer 5

• 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

Question 6

What is a disbursement and what does it include?

Factors; Costs

Answer 6

• 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

Question 7

Define the standard of proof

Answer 7

• 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

Question 8

Outline the factors to consider when initiating a civil claim

Answer 8

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)

Question 9

Define and provide examples for fairness (3 element)

Answer 9

• 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

Question 10

Define and provide examples for equality

Answer 10

• 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

Question 11

Define and provide examples for access

Answer 11

• 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

Question 12

Outline the alternative dispute resolution methods

Answer 12

• 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

Question 13

Describe when mediation is used

Answer 13

• 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

Question 14

Describe when conciliation is used

Answer 14

• Not used as much as mediation but is an option
• Parties can choose this as a resolution method at anytime

Question 15

Describe when arbitration is used

Answer 15

• Need parties to consent (court order)
• Commonly private

Question 16

Outline the reasons for a Victorian court hierarchy in determining civil cases

Answer 16

• 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

Question 17

State the roles of a judge/magistrate in a civil trial

Answer 17

• Judge/ Magistrate
  
  • Act impartially
  • Case Management (before/during trial or hearing)
  • Determine liability and the remedy
  • Decide on costs

Question 18

State the roles of the jury in a civil trial

Answer 18

• Jury
  
  • Be objective
  • Listen to & remember evidence
  • Understand directions and summing up
  • Decide on liability and damages

Question 19

State the roles of the parties in a civil trial

Answer 19

• Parties
  
  • Make decisions about conduct
  • Disclose info. to other party
  • Exchange evidence
  • Participate in trial

Question 20

State the strengths and weaknesses of a judge/magistrate in a civil trial

Answer 20

• 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)

Question 21

When would mediation and conciliation be appropriate?

Answer 21

• 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

Question 22

When would mediation and conciliation be inappropriate?

Answer 22

• 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

Question 23

When would arbitration be appropriate?

Answer 23

• 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

Question 24

When would arbitration be inappropriate?

Answer 24

• Parties want a public record
• Claim is more than 10k
• Parties do not want the benefit of a binding decision

Question 25

What is the civil jurisdiction for each Victorian Court?

Answer 25

• 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

Question 26

State the strengths and weaknesses of the jury in a civil trial

Answer 26

• 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

Question 27

State the strengths and weaknesses of the parties in a civil trial

Answer 27

• 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

Question 28

Compare the role of a judge/ magistrate between civil and criminal law

Answer 28

• 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

Question 29

Compare the role of a jury between criminal and civil law

Answer 29

• 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

Question 30

Compare the role of the parties between criminal and civil law

Answer 30

• 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

Question 31

Describe pre-trial case management

Answer 31

• 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

PSA Directions can be given at anytime but can also be given at directions hearings, a pre-trial hearing.

Question 32

Describe during trial case management

HINT: Final Hearing = 1+ 5 (3 time, 2 number)

Answer 32

• 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

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.