Unit 3 AOS 2 Civil law - 3.2.12 Courts as Resolution Bodies Flashcards
2 main roles of courts in civil law
- Determine the liability
- Determine remedies
Courts jurisdiction
Magistrates jursidiction - $100,000
Suprme and county court- unlimited jurisdiction
VCAT’s exclusive jurisdiction, cases courts cannot hear
Domestive building disputes
Resedential tenancies disputes
Retail tenancies disputes
Planning disputes
When is the courts preferable
Parites can afford legal rep
Formality of courts are prefered
legally binding decision
Avenue of appeals
Power imbalance or hostility
When are courts not appropriate
If parties want a say in their outcome
If they don’t want the risk of an adverse cost order
If parties want confidentiality
Strength of courts: Legally binding
Judge and juries decision is legally binding and fully enforcable
Provides certainty to the parties
Achieves open justice by providing an open court to the public, handing down a decision published by the court to ensure transperence - fairness is achieved
Weakness of courts: Adversial nature
Adversial nature of courts (argumentative, formaly, intense) can increase animosity
A win-loss situation
Might prevent people from enaging with the legal system due to feelings of anxiety, intimidation or stress
Reduces access
Strength of courts: Procedural fairness
Both parties have the same opportunity to participate in their case
Rules of evidence allow a fair trial, gives both parites a chance to participate and present their claim
Judge’s directions ensure parties are aware of each other’s cases
pre-trial procedures allow parties to reach an out-of-court settlement
Parites can participate in all these processess through procedural fairness to ensure thay have the opporuntity to participate their case
Fairness
Weakness of courts: Delays
Delays are often in the courts
Pre-trial procedures and an extensive discovery of documents have been criticised for adding time it takes for cases to be trialed and heard
Delays may force parties to abonden their case, limiting access
Strength of courts: Impartial
Impartiality is a key pillar of a fair trial
Requires the decisoin maker to be unbiased and have an open mind
Upholds fairness
Weakness of courts: Costly
Courts require a significant amount of money in legal fees, particularly when legal rep and appeals are invovled
Limits access, as parties may have to self-represent which can limit their ability to engage on an informed basis.
