the vic civil justice system

civil justice system

set of processes, bodies & institutions used to resolve civil disputes

• bodies (CLCS) providing advice & information

• pre-trial procedures

• dispute resolution methods (mediation, conciliation, arbitration)

• dispute resolution bodies (VCAT, courts, CAV)

• enforcement of remedies

civil disputes

disagreement between 2 or more individuals & a legal claim is made against the other

purpose of the civil justice system

• enable a person to enforce legal rights over legal wrongs

• determine whether defendant is liable

• award remedy if defendant is liable

remedy

any order by court designed to address a civil wrong/breach

civil law

defines right & responsibilities of individuals & groups & regulates private disputes

pre-trial procedures

try to narrow down issues in dispute and resolve before hearing

• pleadings

  → statement of claims

  → defence

• discovery of documents

• exchange evidence

• mediation

pleadings

documents filed and exchanged between plaintiff & defendant

statement of claims

filed with the court by plaintiff, sets out claims & remedies sought

defence

filed by defendant, setting out their response to claims

discovery of documents

enables parties to get copies of each other’s documents relevant to issues in dispute

exchange evidence

parties exchange evidence that will be given in court

plaintiff

party who makes a legal claim against another person

• aggrieved party/wronged party

defendant

party who is alleged to have breached a civil law and is being sued

• (ie. employers due to vicarious liability)

vicarious liability

legal responsibility for a third party for wrongful act of another

burden of proof

obligation of a party to prove a case, rests with the party who initiates the action (plaintiff)

• plaintiff must show defendant is wrong

HOWEVER, DEFENDANT MAY HAVE BURDEN OF PROOF IF:

• defendant makes a counterclaim

• defendant raises a defense

counterclaim

seperate claim made by the defendant in response to the plaintiff’s claim (usually heard at the same time)

standard of proof

degree to which a case must be proved in court (strength of evidence)

• balance of probabilities

balance of probabilities

requires plaintiff to establish that it is more probable (likely) than ot their claim is true

• allows for some reasonable doubt

factors to consider before initiating a civil claim

• costs

• limitation of action

• enforcement issues

costs

• fees for legal representation

• disbursements

• adverse costs order

• pre-trial procedure costs

• jury empanellment

• higher courts, higher costs

  → claims <$100,000 - magistrates’ court

fees for legal representation

• engaging with solicitor & barrier

  • costs depend on complexity, dispute resolution method, size of case, expertise of legal practitioner

disbursements

out of pocket expenses (other than lawyer fees)

• court/tribunal fees (hearing fees)

• mediation fees (mediator & venue)

• fees for expert witnesses (medical expert to give evidence on injuries)

• using technology for documents (photocopying)

adverse costs order

order that a party pays the other party’s costs

• successful party should receive an order that their costs are being paid by losing party

• plaintiff must consider

  • total costs to have dispute resolved

  • whether damages will outweigh costs

  • whether free legal aid is avaliable

  • whether they can pay adverse court order

  • what are the risks of they cannot pay the adverse court order (ie. selling assests)

limitation of actions

restriction on bringing a civil claim after the allowed time

• once period of time passes, plaintiff may be “time barred” (prevented) from seeking remedy

• may be extended in special circumstances (ie. plaintiff did not have funds to initiate case)

benefits to the defendant of the limitation of actions

• don’t have to face action after long time

• evidence is not lost & unreliable

• disputes can be resolved quickly

enforcement issues

• defendant may not be able to pay, therefore plaintiff must consider:

  • whether defendant has money/assests (or access to) to pay

  • if the defendant is in prison → difficult to enforce remedy

  • whether defendant is overseas

• defendant may not pay, therefore plaintiff must consider:

  • obtaining a warrant to direct court sheriff to take defendant’s assests and sell them

  • instalment order

  • attatchment earnings order (employer deducts money from debitor’s wage to pay)

  • attatchment of debt (compels debitor to pay)

example of limitation of actions

• 1 year defamation cases

• 3 years negligence (personal injury)

• 6 years contract

other factors to consider when initiating a civil claim

• stress

• publicity

• likelihood of success

• negotiation options

• scope of liability

fairness

impartial process:

• impartial and independent

• no apprehended bias

open processes:

• open to the public

• court judgements are available to the public

participation:

• opportunity to know the case put against them (pre-trial procedures)

• opportunity to present their version of the case (cross-examination)

• use of an interpreter

• no delays

equality

same treatment:

• treated the same regardless of gender

• given the same support

different treatment:

• if a party is self-represented, judge can explain pre-trial procedures

• changes made to avoid unequal footing between parties

• interpreters

• changes to court/tribunal processes

access

engagement:

• wide range of dispute methods

• physical, technological, financial access

• no delays

informed basis:

• education

• information

• legal services

• legal representation

dispute resolution methods

ways of resolving or settling civil disputes without having a court or tribunal hearing

• mediation, conciliation, arbitration

  → used by dispute resolution bodies (ie. courts & tribunals)

mediation

dispute resolution that uses an independent third party (mediator) to help parties reach a resolution

• parties sit down and discuss issues involved to try reach an agreement

• any decision is voluntarily made by parties

  → may enter a terms of settlement, which may be enforceable through a court

• cost is usually split

• legal representation usually not allowed

• cooperative

terms of settlement

binding document that sets out terms on which the parties agree to resolve their disputes

judicial mediation

associate judges in the county and supreme court can also mediate disputes

• court staff arranges mediation for parties

mediator

independent third party who does not interfere or persuade, but help parties reach a settlement

• facilitates communication

• can be appointed by court or agreed on by parties

how is mediation used?

• courts and VCAT often refer parties to mediation before final trial or hearing

• parties can initiate

conciliation

dispute resolution that uses an independent third party (conciliator) to help parties reach a resolution

• parties sit down and discuss issues involved to try reach an agreement

• any decision is voluntarily made by parties

  → may enter a terms of settlement, which may be enforceable through a court

• legal representation usually not allowed

• cooperative

SIMILAR TO MEDIATION!!

conciliator

independent third party who can make suggestions and offer advice to assist in finding a resolution

• listen to facts and make suggestions

• more influence over outcome than mediator (more directive)

• has specialist knowledge

how is conciliation used?

• used by CAV & VCAT

• parties can initiate

appropriateness of mediation & conciliation

• relationship between parties is to be continued

• parties are willing to cooperate & compromise & stick to agreements

• parties want a private resolution

• matter is urgrent

• there is no imbalance in power

strengths of mediation & conciliation

• involves impartial third party who does not take sides (mediator & conciliator) and facilitates discussion to help reach an agreement

• less formal and stressful on parties

• saves time and costs if successful (access)

• conducted privately, beneficial if parties wishes to keep the settlement confidential

• mediator & conciliator can help facilitate communication and balance out any disparity (equality)

limitations to mediation & conciliation

• decision reached may not be enforceable

  → plaintiff will need to spend more money and time to enforce settlement

• settlement may not be fair due to power imbalance

• if one party refuses to attend/participate, wasted money and time

• no open justice

arbitration

dispute resolution method in which an independent person (arbitrator) is appointed to listen to both sides and make a decision that is legally binding on parties (arbitral award)

• parties present their side of the dispute & have control how procedures will work

• legal representation allowed

arbitral award

legally binding decision made by an arbitrator

arbitrator

• makes arbitral award after listening to evidence

• ensures parties are treated equally & given the same opportunities

• has specialist knowledge

how is arbitration used?

• courts can order arbitration

  → must have consent by parties

  → except small claims in the magistrates’ court ($10,000>) will usually be refered to arbitration by magistrate

• arranged by parties

appropriateness of arbitration

• whether parties agree

• if parties want a binding decision made by an arbitrator

• whether parties want an arbitrator considering evidence

• if parties want a private resolution

strengths of arbitration

• decision is certain and fully enforceable through courts

• usually confidential, beneficial for parties who want a private resolution

• parties have control over how arbitration is conducted

• arbitrator is expert on subject matter, and is impartial when making a decision

limitations to arbitration

• parties have no control over the outcome (fairness)

• can be costly and time consuming depending on the nature of the case (access)

• more formal leading to stress

• limited grounds for appeal (fairness)

purposes of victorian court hierarchy

• administrative convinience

• appeals

administrative convinience

• cases can be distributed according to severity

  → less serious/complex cases heard in lower courts

  → supreme court can free up resources to hear larger cases

• courts built/designed for specific types of disputes

• court processes adapted for specific types of disputes

• allows for effective resource allocations

  → complex cases receiving more resources

• reduce delays

  → prevents lower courts from being overwhelmed by complex cases

appeals

• allows correction of a decision

• leave for appeal required

leave for appeal

permission from the court that would hear the appeal if granted to hear the appeal

→ must satisfy courts that there is prospects of success

grounds of appeal

• question of law (law has not been applied properly)

• question of fact (facts of case has not been applied appropriately)

• remedy awarded

appellate jurisdiction of county court

n/a unless under a specific act

appellate jurisdiction of supreme court trial division

• question of law from magistrates’ court

• VCAT

strengths of court hierarchy

• allows courts to adopt different processes and use their resources in an efficient way (ie. more smaller cases heard in the magistrates’ court, more magistrates, more court venues, more access)

• allows for appeals by both parties if they believe an error has been made

limitations to court hierarchy

• different courts may be confusing (access)

• no automatic right to appeal (access)

• appealing without a lawyer can be difficult (fairness)

role of the judge/magistrate

• act impartially

• case management (before trial/hearing)

• case management (during trial/hearing)

• determine liability & remedy

• decide on costs

act impartially

• oversee the case without any bias

• ensure law is followed

case management (before trial/hearing)

control the process of legal case

• manage case during pre-trial stages

• direction to parties (ie. complete pre-trial procedures)

case management (during trial/hearing)

• manage trial/hearing

  → make rulings

  → ensure self represented parties understand

• JUDGE may need to address jury if one

• change procedures

  → order which parties present evidence

  → limit number of witnesses

  → limit time for trial/hearing

determine liability & remedy

• if no jury, judge will decide on liability & remedy

• court judgement

decide on costs

• which party should bear costs

  → generally losing party

strengths of judges/magistrates

• impartial (fairness)

• experts in law and can use expertise (fairness)

• their power in case management ensures an efficient process (access)

• are able to explain processes to self-represented parties (equality)

limitations to judges/magistrates

• risk of bias (fairness)

• lack of diversity

• cannot overly interfere (fairness/equality)

similarities of judge/magistrate in civil/criminal cases

• both are impartial and unbiased

• both have roles to assist self-represented

• both have roles to direct jury (if one)

diffferences between judge/magistrate in civil/criminal cases

• in civil cases if no jury, judge would determine liability

  → in criminal cases, judge would not determine the guilty

• in civil cases, judge may need to decide on a remedy

  → in criminal cases, judges would decide on a sanction

• in civil cases, judges/magistrates can order parties to undertake procedures such as mediation

  → in criminal cases, judges/magistrates cannot order these type of procedures

role of the jury

• be objective

• listen to and remember evidence

• understand directions and summing up

• decide on liability & in some cases, damages

the jury in civil cases

• civil disputes usually have no jury unless:

  • a court order has been made

  • plaintiff or defendant specify during pleadings stage they wish to have a jury (paid by the party which wishes to have jury)

• 6 jurors

be objective

• unbiased, disregard prejudice

• decide on facts

listen to and remember evidence

• concentrate on evidence

• must not conduct research outside of trial

understand directions and summing up

• judge will give direction about issues and sum up the case

• jury must listen carefully

decide on liability & in some cases, damages

• jury must decide whether plaintiff has established their case on the balance of probabilities

  • unanimous verdict, but majority may be accepted

• sometimes decide on damages (not defamation cases)

similarities of jury in criminal/civil cases

• both are expected to remain impartial

• both must listen and concentrate on evidence

• both must comply with their obligations

differences of jury in criminal/civil cases

• in civil cases, jury decide on liability

  → in criminal, jury decide on guilt

• in civil cases, jury decide on the balance of probabilities

  → in criminal, jury decide beyond all reasonable doubt

• in civil cases, jury may decide on damages

  → in criminal, jury never decides on sanctions

strengths of jury

• have no connection to parties and make decision based on facts (fairness)

• ensure open justice (fairness)

• collective decision making can reduce possibility for bias (fairness)

• juries represent cross-section of community (fairness)

limitations to the jury

• may have unconscious biases (fairness)

• civil trials can be complex and may not be understood (fairness)

• jury trials can result in delays (access)

• number of people cannot participate as jurors because ineligible, excused or disqualified (equality)

role of the parties

• make decisions about the conduct of the case

• disclose information to the other party

• prepare evidence

• participate in the trial/hearing

make decision about the conduct of the case

• party control

• have choices to what claims they make, defences, witnesses to call

party control

power that each party has to decide how they will run their case

disclose information to the other party

• responsibility of parties to exchange relevant documents

• (ie. plaintiff claims to have suffered health issues, they are likely to present medical reports to show their claims)

prepare evidence

lau evidence

given by an ordinary person about facts in dispute

• give evidence based on their knowledge of the situation

expert evidence

given by an independent expert about an area within their expertise

• (ie. medical professional giving evidence on the nature of injury)

participate in the trial/hearing

• making opening & closing addresses

• presenting their case

  → examination-in-chief

• cross examination of other side’s witness

similarities of parties in criminal/civil cases

• prosecution and parties have ongoing disclosure obligations

• provides opportunities for parties to present their case

• must not mislead courts and must cooperate with each other

differences of parties in criminal/civil cases

• in civil law, party control is extensive

  → in criminal law, prosecution cannot always choose the evidence used in court

• in civil law, defendant has ongoing discovery oligation

  → in criminal law, accused ongoing discovery obligation is limited

strengths of the parties

• ongoing obligation to disclose, ensuring no surprises (fairness)

• both parties have the opportunity to present their case (equality)

• parties have complete control on how they run their case (fairness)

limitations to the parties

• processes involved are complex without a lawyer (fairness)

• party control means time is required to prepare their case, which can add to delays and stress (access)

strengths of case management

• allows for efficiency

• may mean the case does not have to go to court

  → reduce costs, backlog

• prepare case for trial

why are legal practitioners needed

• familiar with civil trials

  → present evidence in the best light → just outcome

  → understand procedures (ie. presenting evidence)

  → pre-trial procedures

• ensure law is applied fairly & equally

• ensure party understands

• party may be too emotional to be able to make objective decisions

• interpret statutes & precedents relevant to ensure case is strong

• give legal advice & help parties decide whether they should proceed the case or consider settlement options

strengths of legal practitioners

• experts and can help parties navigate the civil justice system (fairness/access)

• objectivity in being able to make decisions (fairness)

• legal practitioners can help avoid delays that may arise with self represented parties (access)

limitations to legal practitioners

• not all have equal skills which can imapct quality of legal service (equality)

• not everyone can afford (equality/access)

class action

legal proceeding brought by one or numerous plaintiffs acting for themselves as well as on behalf of a wider group of people who have a claim with similar facts

• single civil action

• heard by the federal court and state supreme courts

criterias for a class action

1. 7 or more plaintiffs claiming aginst the same defendant

2. claim must be in respect of, or arise from, the same or similar circumstances

3. claim must give rise to a common issue of law or fact

   → same issue is determined by the court for all claims

lead plaintiff

individual in a class action who represents an entire group of people who were allegedly harmed by a defendant’s wrongdoing

• initiates proceedings on behalf of the entire group

• assumes risk and cost of the legal action

• ensure claim serves interests of group members

• provide information to lawyers regarding the conduct of the claim & decisions regarding settlement negotiations

(group members do not actively participate, primary role if to ‘opt in’ or ‘opt out’ of settlement)

financial impact if class action fails

• lead plaintiff responsible for costs and adverse costs order (however, law firms usually act on ‘no win, no fee’ basis or litigation funder is involved)

litigation funder

third party who pays some or all costs associated with initiating claim in return for a share of the amount recovered

financial impact if a class action is successful

• class members will share the costs of bringing the proceedings - if no adverse costs order (access)

• costs of winning shared (access)

appropriateness of class actions

• whether there is enough people who have a claim against the defendant which arises out of the same/similar circumstances

• whether there is funding provided to avoid lead plaintiff having to pay

• whether someone is willing to be lead plaintiff

• nature and size of claim (whether it is economically beneficial)

• whether members are happy to share settlements (or rather conduct a case on their own)