Legal AOS2 PB Unit 3 - Mostly!

Key Personnel in a civil dispute:

• The judge or magistrate, depending on the court

• The jury (if there is one)

• The parties (the plaintiff and the defendant).

Key Personnel and where they are most applicable in Civil Disputes:

• Plaintiff issues claim in County/Supreme Court → Judge is central figure, authority over case

• Plaintiff issues claim in Magistrates' Court → Magistrate has primary role.

• Civil cases generally involve only one court - of which the case is initially issued

• Judge / Magistrate acts as an impartial + independent 'umpire' in a trial, ensuring the court follows rules of procedure and that each of the parties is treated fairly.

• Jury - decides liability! (only if applicable)

• If no jury =  the judge must make a decision on liability based on facts + assess damages.

• Never Jury = Magistrates' Court - Magistrate decides liability and remedy.

*Same naming system as Criminal law → Supreme + High Courts = Justice ….

Role of Judge and Magistrate - LIST

DRAMA CDD

1. Case management

2. Manage trial/hearing

3. Apply rules of evidence and procedure

4. Direct the jury (JUDGE)

5. Decide on costs

6. Remain Unbiased

7. Determine liability of defendant

8. Award remedies

Role of Judge and Magistrate - CASE MANAGEMENT

Prior to a trial or hearing, judge/mag. actively manages a dispute to ensure the efficient and effective use of resources in reaching resolution. 

• Involves directions to parties to complete pre-trial procedures

Role of Judge and Magistrate -MANAGE TRIAL/HEARING

A judge/mag. will ensure proceedings (trial/hearing) operate efficiently with an effective use of resources. 

• Involves using powers to control how evidence is presented (oral or written).

A judge can improve the efficiency of a trial by:

• Ensuring correct procedures are followed.

• Monitoring + adjusting the processes of a trial as appropriate.

• Limiting the number of witnesses or topics they may be questioned on.

• Limiting examination-in-chief, cross-examination time, and re-examination.

Role of Judge and Magistrate - Apply rules of evid. + proced.

Judges are required to make rulings relating to evidence and procedure, such as:

• Ensuring only admissible evidence is presented in court.

• Ensuring witnesses are examined and cross-examined lawfully.

• Giving directions on evidence presentation + documents jury is permitted to see.

• Providing clarity on rules of evidence and procedure.

Role of Judge and Magistrate - Direct the Jury: (judge only)

Judges will instruct the jury on their role in a civil trial, if one is used. They will direct jury by explaining who has the onus to meet the standard of proof. Prior to deliberations, the judge can summarise the evidence presented during the trial for the jury. 

Magistrates’ Court - No juries!

Role of Judge and Magistrate - Decide on Costs:

After hearing - the judge/mag. will decide which party should bear the costs (adverse cost orders). Working out the costs is left to the end → A successful party is entitled to costs, but that is not always the case. *Based on evidence. Plaintiffs can also be partly responsible for breach

Role of Judge and Magistrate - Remain Unbiased:

A judge/mag. must remain impartial throughout entire proceeding. Must not favour either party, act as an umpire of the courtroom to oversee the case and ensure it is conducted fair.

Role of Judge and Magistrate - Determine the liability of a defendant (Mag. sometimes Judge)

In the absence of a jury, the judge must determine whether the plaintiff has proven, on the balance of probabilities, that the defendant caused their injury or loss. 

(no jury = judge determines liability)

*Most civil cases there is no jury → judge or magistrate plays a central role in the case.

County and Supreme Court cases, the judge will determine liability as a jury is rarely used.

Magistrates’ Court, the magistrate will always decide liability, as juries are never used.

Role of Judge and Magistrate - Award Remedies:

The judge/mag. has the responsibility of ordering the appropriate remedy once a verdict is determined for the wronged party. In the form of damages, an injunction, other remedies

Differences Between the Judge and Magistrate in a Civil Dispute: LIST

1. Court

2. Dispute Type

3. Award Remedies

4. Jury Directions

Differences - Judge and Magistrate - COURT

Differences Between the Judge and Magistrate in a Civil Dispute:
Role:	Judge:	Magistrate:
Court:	Appointed to higher courts of Vic. (eg:Supreme Court/County Court). Their appointment is determined by considering their expertise and understanding of the law.	Preside over the lower courts in Vic. (eg: Magistrates’ Court + Children’s Court). They are appointed based on their experience and knowledge of the law.

Differences - Judge and Magistrate - DISPUTE TYPE

Differences Between the Judge and Magistrate in a Civil Dispute:
Role:	Judge:	Magistrate:
Types of Dispute:	Deal with more serious civil claims, where parties are seeking a large amount of damages.	Deal with less serious civil claims (Mag. Court’s jurisdiction only cases seeking between $10,000 to $100,000.) Claims below $10,000, Magistrate will refer the parties to arbitration.

Differences - Judge and Magistrate - AWARDING REMEDIES

Differences Between the Judge and Magistrate in a Civil Dispute:
Role:	Judge:	Magistrate:
Award Remedies:	Have more discretion than magistrates in awarding remedies. Expected to exercise judgement and discretion in accordance with the law and legal precedent. If the parties request a jury, the jury may determine the amount in damages.	Bound by precedent as the lowest court + have minimal discretion when awarding remedies. They must follow statutory restrictions on damages + decisions from previous courts.

Differences - Judge and Magistrate - JURY DIRECTIONS

Differences Between the Judge and Magistrate in a Civil Dispute:
Role:	Judge:	Magistrate:
Jury Directions:	Juries are rare in civil proceedings - in most cases the judges decide the verdict + remedy.  When a jury is present, judges must direct the jury and ensure they understand the law + evidence presented. Judge does not decide the verdict when there is a jury.	There is no jury in the Magistrates’ Court - magistrate does not need to direct a jury and instead determines both the verdict and remedy.

Juge + Mag Case Management Powers:

• Judges + Magi. in civil cases have pre-trial case management powers - give orders and directions about the proceedings, with the aim of ensuring justice is delivered efficiently. → (eg: ordering mediation)

• Under the Civil Procedure Act 2010 (Vic), judge/mag. have power to make orders + actively intervene in how parties conduct disputes prior to, and during, a trial.

• Make directions with goal of resolving dispute in the most efficient + cost-effective manner

• Overarching obligations outlined in Civil Procedure Act 2010 (Vic) is ‘to facilitate the just, efficient, timely, and cost-effective resolution of the real issues in dispute’.

If a party does not comply with a judge’s directions over course of matter, the court may:

• dismiss the plaintiff’s claim.

• dismiss the defendant’s defence, in favour of plaintiff.

• reject any evidence party wishes to present to court.

• direct one party to pay part/all of the other party’s costs (an adverse cost order).

Judge/ Mag Case Management Powers - LIST

1. Direct Parties to attend Directions Hearings:

2. Direct Parties to attend Mediation

3. Give directions to relating to discovery

4. Determine Deadlines

5. Control the trial or hearing process

Judge/ Mag Case Management Powers - Direct to attend directory hearings

Case Management Power:	Explanation:
Direct Parties to attend Directions Hearings:	Directions hearings allow a court to take an active role in the conduct of proceedings. Aim to establish a timeframe for proceeding + includes instructions regarding collection of evidence, referrals to mediation, and establishment of the final trial date.

Judge/ Mag Case Management Powers - Direct Parties to attend Mediation:

Case Management Power:	Explanation:
Direct Parties to attend Mediation:	If a judge/mag. have the power to order the parties to attend mediation (if believe case could be settled out of court). Results in a less costly resolution for the parties - do not have to incur the cost of court fees. Failure to attend judge-ordered mediation = may result in fine from the court. An out-of-court settlement = saves court time + money, freeing up resources.

Judge/ Mag Case Management Powers - Give directions to relating to discovery:

Case Management Power:	Explanation:
Give directions to relating to discovery:	A judge/mag. can impose obligations on parties in relation to discovery - an order to provide evidence or documents, relevant to the issue in dispute, to the other party.

Judge/ Mag Case Management Powers - Determine Deadlines:

Case Management Power:	Explanation:
Determine Deadlines:	The judge/mag. can set deadlines for the parties to submit documents or evidence (eg: witness statements, expert reports), to ensure the trial is organised and timely.

Judge/ Mag Case Management Powers - Control the trial or hearing process:

Case Management Power:	Explanation:
Control the trial or hearing process:	The judge/mag. can control the trial or hearing process. (Eg: direct the order and timeframe of evidence presentation by each party). Issue orders to regulate the conduct of the trial or hearing - (eg: limits on the number of witnesses. length of opening statements).

SIMILARITIES of Judges/Magistrates CIVIL vs CRIMINAL

(AAAEI)

• Act impartially and without bias, decisions based on facts

• Assisting a self-rep party if accused/parties is not rep. by a lawyer.

• Acting as the independent umpire of the court - must remain impartial, regardless of whether they are presiding over the case.

• Ensure correct procedures followed - apply rules of evidence

• If there is a jury, the judge must instruct jurors and give them directions

DIFFERENCES of Judges/Magistrates CIVIL vs CRIMINAL

(LG,RS,C)

• LIABILITY CIVIL - A judge/mag. have to decide on liability (judge = no jury) 

• GUILT Criminal =  judges will not decide guilt; this is left to the jury.

• REMEDY - Judge in a civil trial may have to decide on remedy + magistrate will decide on remedy if party proves their claim.

• SANCTION CRIMINAL case = judge/mag. decides  sanction if the accused is guilty.

• CASE MANAGEMENT A judge/mag. can order both parties to undertake procedures (eg:mediation and discovery. → CRIMINAL judge/mag. Have case cannot order procedures

Judge/Mag - Fairness

FAIRNESS:
Strengths:	Limitations:
Independent judge/mag. ensure trials are conducted without bias - according to rules of evidence = contributing to fairness (decisions are based on law and facts alone)	Judge/mag. rely on the parties to present all of the evidence and facts of the dispute during a trial. If parties have no legal rep. this may prevent all of the relevant facts from being presented to the court, or in their best light, thus leading to an unfair trial.

Judge/Mag - Equality

Equality:
Strengths:	Limitations:
Judge/mag. ensure rules of evidence and procedure apply equally to all parties during a civil dispute.	Judges/mag are impartial, judicial officers, they are still subject to personal bias and may unconsciously discriminate against certain parties and personal characteristics, limiting equality.

Judge/Mag - Access

Access:
Strengths:	Limitations:
Judge/mag. case management powers (eg: setting time limits for evidence, ordering mediation), minimise the cost of civil disputes= enhance accessibility of the civil JS..	Accessing a hearing or trial presided by a judge/mag. = challenging due many factors,   (eg:  high costs, time-consuming proceedings). The courts + expertise of judicial officers may be inaccessible for many.

Juries initiation:

1. The plaintiff / defendant specifies during pleadings that they wish to have proceedings tried by a jury. The court can still direct the trial be without a jury if it decides a jury is not required

2. The party who wishes a civil dispute to be tried by a jury must pay the applicable fee

Jury Overview:

• The court may order that a proceeding be tried with a jury, though this is rare.

• LIKE CRIMINAL- Civil jury decides which facts it believes to be true + applies facts to law as explained by the judge.

• The judge makes decisions on points of law.

• The jury may also be required to assess damages.

• **Defamation cases - Jury cannot decide on the amount of damages - limitations by law of what can be awarded - This is only a role for the judge in those types of disputes.

Composition of Civil Jury:

• If a civil trial is to be tried by a jury, the jury is made up of six jurors.

• The jurors are chosen randomly from persons eligible to vote and who are on the electoral roll, and following a lengthy selection process.

• The court can order the empanelment of up to two additional jurors, (total up to eight jurors)

• When it comes to the jury deliberating on the verdict, only six jurors can deliberate.

Role of a Jury LIST

1. Remain objective

2. Listen to evidence, judge directions, submissions by reps

3. Determine liability and damages

Role of a Jury - Remain / Be Objective:

Role:	Explanation:
Remain / Be Objective:	The jury should be independent + unbiased throughout proceeding and when determining verdict. Potential jurors who believe they cannot remain impartial must ask to be excused during the process of jury empanelment.

Role of a Jury - Listen to evidence, judge directions, submissions by reps:

Role:	Explanation:
Listen to evidence, judge directions, submissions by reps:	Must listen to all evidence presented at trial = ensure verdict is based on all relevant evidence and the facts of the case. Jurors must be alert, take notes, and keep track of info. throughout the trial. *Involves listening to directions given by the judge, and explanations of key legal concepts.

Role of a Jury - Determine Liability and Damages:

Role:

Explanation:

Determine Liability and Damages:

The main role of the jury = determine if  the defendant is responsible for the plaintiff’s harm (if plaintiff has proven their case on the balance of probabilities). Jury will need to reach a unanimous verdict. *In some cases a majority verdict - 5/6 - may be accepted by court. Jurors are not required to provide a reason for verdict. In some disputes, jury may also have a role in calculating damages.

CIVIL VS CRIMINAL JURY COMPARISON - Similarities

• Both expected to be impartial when making their decision. Decide based on facts + evidence, no pre-conceived ideas/prejudices. MAKE A DECISION

• Both must listen + concentrate on evidence. Follow judge direction,  can ask clarifying questions to judge + can take notes.

• Both have role of ensuring they comply with obligations → include ensuring they don’t undertake outside research/read about case.

CIVIL VS CRIMINAL JURY COMPARISON - Differences

• Criminal trial Jury: Decide on guilt → Civil trial Jury: Decide on liability.

• Standard of proof is different - Criminal jury: decide on guilt beyond reasonable doubt → Civil jury: decide liability to a lesser standard, on the balance of probabilities.

• Criminal trial jury: never decides sanction → Civil trial Jury: ONLY SOME may determine the damages awarded to successful plaintiffs

Civil Jury - FAIRNESS

FAIRNESS:
Strengths:	Limitations:
Randomised cross-section of the community used to determine the verdict → parties should feel their case has been decided by peers in according to a diverse range of views, promoting fairness. Juries cannot seek additional info. about the case beyond the courtroom, are instructed to disregard any prior knowledge of the dispute. Encourages impartiality.	Making decisions in legal cases is a complex task - undertaken by people with no legal training =  greater risk of an unfair verdict. Jurors are not required to provide rationale for their verdict = no guarantee the law has been correctly applied based on the facts presented.

Civil Jury - Equality

Equality:
Strengths:	Limitations:
Both parties have the capacity to request a jury trial in a civil dispute regardless of personal characteristics, therefore upholding equality.	A party may wish to have a jury trial, but may be unable to bear the cost. Those of a low socioeconomic status are less likely to utilise a civil jury trial - limiting equality. Some individuals are ineligible /disqualified from jury service = parties may not feel the jury is a true cross-section of the community. May undermine equality to a trial by one’s peers.

Civil Jury - Access

Access::
Strengths:	Limitations:
Presence of juries increases use of plain English, instead of legal jargon = ensures jury understands the court’s procedures + evidence they will make a decision upon. Allows both parties to understand the processes used to determine their case, promoting access to justice.	Additional fees are required for jury trials - may not be financially viable for some parties. Financial constraint makes trial by jury inaccessible for some parties. Access to efficient dispute res. may be delayed by the use of a jury - extra time is required to empanel jury + throughout dispute where judge may need to spend more time explaining key legal concepts/evidence to jurors. Hung juries and mistrials due to juror misconduct, can require a retrial and further delay the achievement of justice. This hinders efficient and timely access to justice.

Overview: Key Personnel parties- types + general roles

• Parties in a  civil dispute control how they present their case to an impartial judge/mag.

• Each party to a civil dispute is responsible for preparing their case + bringing it before court.

• Includes all  necessary pre-trial procedures, considering enforcement issues, assessing costs, and applying for an appeal if appropriate.

• The main parties in a civil trial are the plaintiff and the defendant - in some situations, there can be more than one plaintiff / defendant.

The Role of the Plaintiff:

• The plaintiff is the party bringing a civil action against the defendant, their primary focus is to prove the defendant is liable.

• The defendant is the party who is alleged to have breached the plaintiff ’s civil rights - aiming to convince the jurors/judge (or jury), that they are not liable.

Role of the Plaintiff - List

1. Control their own Case

2. Disclosure

3. Exchange/Present Evidence

Role of Plaintiff - Control their own case

Control their own Case:

The civil trial system in Victoria allows the plaintiff (often via legal reps) to have full control over their case - aka party control. When bringing a claim to court, they have the authority to determine their cause of action, the selection of evidence + choice of witnesses, with adherence to rules of evidence + procedure Eg: Plaintiff has the freedom to pursue multiple actions for various matters or focus on one claim they believe will be successful, even if other breaches have occurred.

Role of Plaintiff - Disclosure

Disclosure:

Parties responsibility to ensure all relevant documents are presented to the court - as per the Civil Procedure Act 2010 (Vic) - stating the overarching obligation of parties in al dispute is to disclose the existence of documents that are critical to the dispute. *All evidence presented

Role of Plaintiff - Exchange and present evidence

Exchange/Present Evidence:

Parties must present all evidence to the judge (and jury, if one is initiated) throughout trial. The presentation of evidence + legal arguments is conducted by legal prac. on plaintiff’s behalf.

The Role of the Defendant: Overalll

• The defendant is the party who is alleged to have breached the plaintiff’s civil rights.

• They are able to defend themselves against the plaintiff’s claims.

• Their aim is to convince the jurors, or judge in a trial without a jury, that they are not liable.

Role of Defendant - List

1. Control their case

2. Disclosure

3. Exchange Evidence

Role of the Defendant - Control their case

Control their own Case: *Present defence or counter claim.

The Vic. civil trial system allows defendant to have full control over their defence case. They have the ability to raise relevant defences + call their own witnesses, with adherence to the rules of evidence and procedure. Eg: Defendant has no obligation to present defences if they believe the plaintiff has not sufficiently proven case on the balance of probabilities. Have OPTION to raise defences to protect themselves from liability.

Role of the Defendant - Disclosure

Disclosure:

It is the role of the parties to ensure all relevant documents are presented to the court as per the Civil Procedure Act 2010 (Vic).

Role of the Defendant - Present evidence and Exchange

Exchange/Present Evidence (lay and expert):

The defendant is able to present defences to the judge throughout the trial (and jury if one has been selected). Legal prac. present evidence on  defendant’s behalf.

The parties will be required to participate in the trial. This includes:

• Making opening and closing addresses: If a party is legally rep. the legal prac. will ordinarily present the opening and closing addresses (or submissions). The solicitor (and barrister) will prepare the submissions, and the barrister will present them orally in court

• Presenting the case to the judge or jury. If witnesses give evidence orally, barristers will ask the witnesses questions through examination-in-chief

• Cross-examination of the other side's witnesses. The barrister asking the other party's witnesses questions, in the hope of challenging the credibility of the witness or identifying "holes' or 'gaps' in their evidence.

Overarching obligation of the parties to a civil dispute:

*Civil Procedure Act 2010 (Vic) is designed to ensure all civil matters are resolved in the most timely and cost-effective manner possible. Parties + legal reps. have certain obligations during trial:

• Act honestly

• Only make claims that have a proper basis

• Only take steps to resolve or determine the dispute

• Cooperate in the conduct of the civil proceeding

• Not mislead or deceive

• Use reasonable endeavours to resolve the dispute

• Narrow the issues in dispute

• Ensure costs are reasonable and proportionate

• Minimise delay

• Disclose the existence of documents critical to the dispute

CIVIL vs CRIMINAL Parties - Similarities

• Both prosecution + civil parties have ongoing disclosure obligations, which require them to disclose relevant documents, even if they are detrimental to their own case.

• Both criminal + civil trials provide an opportunity for parties to present case, including allowing them to make opening and closing addresses, examine + cross-examine witnesses.

• The parties in both must not mislead the court, must cooperate with each other.

CIVIL vs CRIMINAL Parties - Differences

• CIVIL defendant has an ongoing discovery obligation, not applicable to criminal accused.

• Normally no jury in a civil trial, civil parties will generally not have to give opening and closing addresses to the jury or consider other jury issues (instructions need, etc..)

• The concept of 'party control' does not extend to many parts of  criminal trial process - prosecutor cannot always 'choose what evidence to lead or not lead in a criminal trial.

Parties - FAIRNESS

FAIRNESS - The Paries:
Strengths:	Limitations:
Civil parties have control of their own case - are responsible for deciding facts to present + how to present them. Party control contributes to fairness = parties can participate in, + have control over, court processes.	Self-rep. parties may not understand which documents are relevant, therefore may fail to disclose all relevant evidence to court = may jeopardise achievement of a fair case outcome = not all evidence has been assessed. Self-rep. parties may struggle to understand how to present legal arguments + evidence in the best possible light, may lead to an unjust outcome.

Parties - EQUALITY

Equality - The Paries:
Strengths:	Limitations:
Both parties are given equal opportunity to present their case to the court, contributing to the principle of equality. Both the plaintiff + defendant must abide by court processes and procedures, achieving equality = both parties are treated the same before the law.	Not all parties are equally equipped to present their case to a judge / jury without the assistance of legal pracs. Some parties, (eg: low socioeconomic status), may not be able to defend themselves effectively, (eg: due to the expense of legal rep.), hindering equality.

Parties - ACCESS

Access - The Paries:
Strengths:	Limitations:
Courts provide some general guidance to parties who are self rep, on court procedures, to allow them to better engage with the JS and its processes on an informed basis, enhancing access.	Institutions that promote access to justice for parties of low socioeconomic status in a criminal case (eg: VLA), are often unable to support parties in civil disputes, leaving defendants without legal rep. Parties without legal rep.n may struggle to understand their legal rights, and how to present legal arguments and evidence, limiting access.

Legal Practitioners Overview:

• Civil js.= complex + difficult to navigate processes, methods, institutions involved in resolving civil disputes

• Parties often engage legal prac. to assist in resolving their civil legal matters.

• Legal prac. have a duty to seek the best result for their clients - must comply with rules of courts, tribunals, or other dispute resolution processes.

• Allows party to gain a better understanding of  legal rights + obligations = fairer result

• If a party self-reps, the outcome of their dispute may be unjust and unfavourable.

Solicitors: 

• Solicitors: Legal practitioners who primarily focus on assisting clients with various day-to-day legal matters and concerns.

• Bears responsibility of fulfilling numerous legal obligations + duties → offering clients advice and strategies to address a wide range of legal issues.

• The main difference between barristers and solicitors is that solicitors advise clients on a broad range of legal issues, whilst barristers present arguments in court.

Barristers:

• Barristers primarily serve as legal reps. for clients in court, involved in significant civil dispute

• Must present arguments and evidence before a judge + some circumstances a jury.

• Utilised in out-of-court settlements → mediation, conciliation, or arbitration. _{^{(parties often self-rep = don’t need prac.)}}

*Both plaintiff + defendant may seek the guidance of solicitor.

• The main difference between barristers and solicitors is that solicitors advise clients on a broad range of legal issues, whilst barristers present arguments in court.

Criminal Vs Civil Representation:

• Criminal cases - accused person’s trial may be adjourned in order for them to gain legal rep.

• This same right is not afforded to parties in a civil dispute, although judges have a duty to help self-represented litigants understand court processes.

Legal Assistance: (Need for legal Prac)

• Difficult for parties of low socioeconomic status to obtain rep. from VLA in civil cases compared to criminal.

• VLA may grant legal assistance to a plaintiff if the amount of their claim is $5,000 or more.

• A defendant may also be able to receive legal assistance if all of the following factors apply:

  • Civil claim is for an amount of $5,000 or more.

  • Defendant’s sole home is at immediate risk in action.

  • Strong prospect that defendant can defend action.

Community Legal Centres: (need for legal prac)

• Community legal centres (CLCs) may provide legal advice or rep. in a civil dispute.

  • AED Legal Centre in Melbourne assists people with a disability with employment and education-related legal problems, such as an unfair dismissal claim.

  • Disability Discrimination Legal Service (DDLS) specialises in disability discrimination matters.

  • Eastern Community Legal Centre provides free legal advice to people in Melbourne’s East in civil matters relating to family law, divorce, discrimination, neighbourhood disputes, and more.

Need for Legal Practitioners - LIST

1. Advise clients on their legal rights:

2. Provide objectivity

3. Present evidence And cross-examine Witnesses

4. Ensure documents are properly drafted and handled

5. Provide support

Need for Legal Practitioners - Advise clients on their legal rights:

Advise clients on legal rights:

Gaining legal advice from a solicitor = enables civil party to understand rights + obligations = able to make an informed decision about how to handle dispute. — Lawyers can read through past cases + legislation, synthesising this info. into concise, easy-to-understand advice for clients. Gaining clear and concise info. helps plaintiff determine whether to initiate a civil action in court, or resolve dispute out of court (res. methods.)

Need for Legal Practitioners - Provide objectivity

Provide objectivity

A lawyer will be able to look at the dispute through an impartial lens - they are not emotionally impacted by outcome. An objective lens can allow a lawyer to better perceive the strengths + weaknesses of cases.

Need for Legal Practitioners - Present evidence And cross-examine Witnesses

Present evidence and cross-examine witnesses (question witnesses)

Presenting evidence + cross-examining requires procedural standards to be abided by = ensures irrelevant questions are not asked. A barrister who is familiar with rules will be able to ask relevant questions + present compelling evidence to support their client’s case. —- Family Law Act 1975 (Cth) bans parties from conducting a cross-examination in family civil matters where family violence occurred. A firm must be appointed to represent the party banned from cross-examining. The lawyer appointed will complete the questioning on behalf of the party.

Need for Legal Practitioners - Ensure documents are properly drafted and handled

Ensure documents are properly drafted and handled

Civil dispute affidavits + subpoenas may be required to receive evidence relevant to case. Those not familiar with court proceedings may struggle to ensure documents are handled or acquired correctly - therefore need legal prac. — A lawyer ensures a legally binding agreement is binding and that the agreement is not unfair to their client.

Need for Legal Practitioners - Provide support

Provide support

Being a party to a civil dispute, (eg: family civil dispute), can be an emotional experience. Having a lawyer whom a party can confide in about troubles can be comforting. A party may find it difficult or traumatic to hear about the facts of their civil dispute in court - having a lawyer sitting next to them while hearing  facts = emotional support.

Legal Practitioners - Fairness

FAIRNESS - The Parties:
Strengths:	Limitations:
Legal prac. helps parties navigate a dispute by advising them about the law + legal proceedings. Helps to ensure parties can participate in proceedings in an open + informed manner - understand what is expected of them. Legal pracs representing parties allow a quicker court process -  judge/mag does not have to stop to explain the processes to parties. Disputes lasting a short amount of time = more people to participate in civil disputes - courts can hear more cases in a shorter time. The duty of both parties’ legal reps to present all relevant evidence and legal principles to the court helps ensure the whole truth emerges and a just outcome is produced, promoting fairness. Legal practitioners have greater objectivity when making decisions in a civil dispute - they do not have a personal or emotional connection to the issues. As a result, evidence collated and questions to witnesses can allow an impartial account of events to emerge. If a self-rep. litigant questions witnesses - their emotions + biases may skew examination process and prevent the truth from emerging.	When only one party has legal rep. it may lead to an unfair outcome, as each party cannot prepare and present a case of the same quality. Quality lawyers are expensive, - a party may only be able to seek a lower- quality lawyer. The quality of the case presentation may influence the outcome, = not solely based on judge/jury’s impartial assessment of facts - unfair to poorly rep. party. A party’s ability to participate in the appeals process after a dispute, if dissatisfied with the outcome, may be limited if they do not have legal rep. = may find it difficult to understand the process of filing for appeal + going through court process again for appeal.

Legal Practitioners - Equality

Equality - The Parties:
Strengths:	Limitations:
All parties in a civil proceeding have the same ability to choose their own legal rep. Judges/mag. in a civil dispute have a duty to assist all self-rep. litigants by informing them about legal practices and proceedings involved in dispute. This can ensure a self-rep.party is not at a significant disadvantage to a party that has rep. promoting equality.	Not all parties are equally equipped to present their case to a judge/jury without  assistance of legal prac = some parties, (eg: low socioeconomic status), may not be able to defend themselves effectively, (eg: due rep. expense) hindering equality. Some financially-disadvantaged parties may be unable to afford good quality legal rep, or any at all = may cause cases to not be equally prepared and presented, creating power imbalances between parties. If both parties choose to self-rep. in-court/out-of-court settlement, one party’s legal knowledge may be better than the other parties (studied law or worked closely with lawyers) = although parties may appear to be on equal footing, one party will have greater experience + knowledge than another - imbalance in power between parties.

Legal Practitioners - Access

Access - The Parties:
Strengths:	Limitations:
Legal prac. help parties to prepare + present their case, increasing access to justice - party’s understanding of the law and legal proceedings is increased. Some law firms use a ‘no win, no fee’ arrangement which may encourage a plaintiff to seek justice as, where they lose the dispute, no financial burden is incurred = improves access to justice, more people are likely to engage legal rep, preventing the cost of rep acting as a barrier to justice. A party in a civil dispute may have improved access to the appeals process if they hire a legal prac. - a lawyer can complete the documentation required for appeal + prepare and present arguments for the party during the appeal.	The costs of legal prac. make it less accessible for many individuals. Access to justice includes understanding one’s legal rights - parties without rep. may not understand the procedures used in court and other dispute res. processes, limiting access to justice.

Class Actions - Overview: what they allow

• An avenue for individuals to access remedies collectively.

• Enables more people w. similar claims come together = mechanism empowers wider community to obtain justice.

• Group court cases = save valuable court time and resources + allow for a more cases to be heard, benefiting everyone involved, fostering a fairer legal system.

• Holdings companies/corporations accountable for actions

What is a Class Action?

• Class action: a group of people with the same legal grievance come together to initiate a civil action.

• In Australia Class actions are heard in Federal Court (Federal law issue) + State Supreme Courts.

• Three criteria that must be satisfied for an action to be classified as a class action.

• Class actions appropriate when a large number of claimants suffered a relatively small loss.

*Alleviates court backlog, administrative convenience.

Class Action Criteria:

1. Seven + people, claiming against the same defendant(s).

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

3. Claim must give rise to a common issue of law or fact - same issues are determined by the court for all claims.

Members of a Class Action:

• Class actions commenced by a single person who represents' the group - the lead plaintiff

• People who form the group = group members.

• Group members do not actively participate in proceedings - not named in court documents.

• G.m may not be known to lead plaintiff/law firm - may not know about class action or they form part of group.

• Don’t have to instruct law firm, appear in court, discover documents or give evidence.

• Primary role: deciding to 'opt in' or 'opt out' and participate in settlement if applicable

Opting in or out: Class Action

• The 'group' is broadly described in the statement of claim.

• Every person in group is assumed to be part of the proceeding unless they decide to 'opt out' - filing a notice with the court in a specified form.

• Opts out = not be bound by decision/settlement, able to pursue defendant in separate proceedings.

• The group may be described in a way that requires people to 'opt in' rather than 'opt out’.

_{^{*May be in class action until you opt out or other way round - as simple as filling out a form.}}

The Lead Plaintiff:

• Lead plaintiff - same obligations as any plaintiff, but additional obligations specific to class.a.

Responsibilities of the lead plaintiff include:

• Assuming the risk + cost of litigation on behalf of group.

• Ensuring claim serves the interests of the group members - not pursued solely for personal benefit.

• Providing instructions to lawyers on conduct of claim + make decisions regarding settlement offers /negotiations.

• Filing the case under their own name.

Court’s Role in Class Actions: 

• The court actively manages + supervises class actions → case management power of j/m.

• Important role of approving any settlement reached, and approving costs + fees for litigation funders.

• Courts have oversight over settlement = ensure group members are protected, that settlement is fair for them.

• Most class actions settle at mediation or prior to trial, the role of the court = approve settlement rather than deciding on liability and damages.

Class Action Division of Damages:

• Companies whose service is to fund a class action - if successful = take a portion of damages. 

• Courts must approve how much they take from damages, and approve settlement between parties.

• Damages divided equally between group - no matter situation of different members.

Costs in Class Actions: Failure of Class Actions

• If a class action fails - lead plaintiff is responsible for the costs of the proceeding + potential adverse costs order - not everyone may be prepared to be lead plaintiff.

• Although lead plaintiff is responsible for costs if class action fails, not often the case = law firm will act on a 'no win, no fee' basis, or a litigation funder is involved.

Funding By Law Firms and Litigation: Class Actions

• Law firms act on a 'no win, no fee' basis, or a litigation funder is involved - assume the risk.

• Litigation funder: third party that agrees to pay the legal costs associated with action in return for a percentage of settlement awarded.

_{^{Percentage= 20 - 40 % of the total amount awarded, but that varies for cases}}

• Litigation funder - agrees it will pay the costs of c.a if fails

• Use of litigation funders in= regular feature c.as

*Pick cases believe will be successful - otherwise will pay

Plaintiff Law Firm: Class Actions

• Plaintiff law firm can "fund” the class action + obtain an order from court to charge a fee (percentage of settlement.) - no exact fee

• Positive, as it allows plaintiff law firms to fund smaller claims when a litigation funder is not prepared to, thus increasing access to justice.

• If class action is successful -group members share the costs of bringing the proceedings, 'taken out' of any damages awarded = the costs are 'shared'.

Class Actions success vs failure table:

Financial Impact:	Explanation:
If a class action fails:	Lead plaintiff is solely responsible for costs of proceedings + adverse costs orders. Generally, group members are under no obligation to contribute to proceeding costs unless a successful outcome is known.
If a class action is successful:	The class members will share the costs of bringing the proceedings. The costs of winning a class action are shared among the class members.

Appropriateness of Class Actions: 

Whether or not there is….

Seven or more people, a claim against the same defendant arising out of same/ similar circumstances A plaintiff law firm / litigation funder is prepared to fund claim = avoid l.plaintiff from having the burden of costs. claims less than $1 million = less likely funded, more than $5 million = likely to be funded IF someone willing + able to be lead plaintiff for the nature and size of the claims. Eg: Very small claims - may not be economical  IF one group member has suffered significantly more than other group members - if prepared to conduct + fund own proceeding, rather than having to 'share' settlement.

Class Actions - Fairness

Fairness:
Strengths:	Limitations:
Class actions may provide a remedy for those who have suffered a loss that would be too small to recover individually in the courts, enabling individuals to participate in the JS. promoting fairness. Class actions are managed by experienced and impartial judges - ensuring the case is conducted efficiently and impartially. Class actions are usually supported by experienced lawyers - ensuring the case is presented in the best possible light for all group members. Juries are available in the Supreme Court for class actions, enabling the case to be determined by an impartial cross-section of society, achieving fairness. The use of litigation funders can enable more class actions to be brought in circumstances where individual litigants may lack the funds, allowing increased participation in JS.	Fairness can depend on the settlement reached. If the amount of comp. received is less than anticipated, the group members may not be compensated sufficiently. The lead plaintiff is required to assume the risk and cost of the litigation on behalf of the entire group - may be seen as unfair. Group members who ‘opt-out’ are not bound by the settlement, meaning they will receive no benefit if the outcome is favourable for group members. Juries are not available if a class action is commenced in the Federal Court - the case will not be determined by an impartial cross-section of society, limiting fairness.

Class Actions - Equality

Equality:
Strengths:	Limitations:
If litigation funding is obtained, this may allow a class action to commence as the costs are covered, ensuring group members are not disadvantaged on basis of socioeconomic status.	If litigation funding is not obtained, a lead plaintiff may be unwilling/unable to bear costs associated with class action, disadvantaging them on basis of socioeconomic status. The lead plaintiff must assume the risk+ cost of the litigation on behalf of group, whilst the other group members are not required to do so. This may be seen as unequal as the plaintiffs are not treated in the same way.

Class Actions -Access

Access:
Strengths:	Limitations:
Individuals who cannot afford to initiate a civil claim by themselves can still access the JS. by joining a class action. Class actions save courts’ time + resources by grouping together numerous claims, reducing the number of cases the court would have to hear individually, promoting access to justice by reducing court delays. Litigation funding allows some litigants to bring class actions who could not afford to.	Access to justice may be reduced, depending on settlement reached + share given to each plaintiff, particularly where a large percentage of damages is provided to litigation funders. Class actions can be extremely costly, consequently, third-party funders are often required. Without funders, some class actions may not commence, reducing access. Class actions can take time to be heard, sometimes several years, thus delaying access to a potential remedy. Group members, other than the lead plaintiff, may not understand the processes as they are not directly involved with the legal rep, reducing their ability to engage with the JS and its processes on an informed basis.

Cost and Time Overall Impacts: 

• The costly and time-consuming nature of civil disputes must be considered by parties before initiating a civil claim, as it can be a significant factor that shapes the case + its outcome.

• From the high cost of legal rep to the extensive time required to hear + determine the case, the achievement of the principles of justice can be limited by these factors in civil law.

COSTS - Overview

Parties often incur high costs when resolving civil disputes, whether it be court fees, engaging expert witnesses, or using legal representation.

Legal Rep - Costs

• Complex claims - legal rep. is often necessary. Associated fees can discourage individuals from pursuing civil claim

• Legal rep. is one of the most significant costs by the parties in resolving a civil dispute.

• Everyone has right to rep = not everyone can afford it

• Nature of court system relies on both parties having good legal rep. = chance of each party winning case is maximised, a fair outcome will be achieved.

• Amount spent on rep. depends on nature of the dispute + way the case needs to be resolved.

  • Eg: complaint through CAV is free, whereas a more complex claim in Supreme Court will result in both parties spending a significant amount of money on legal costs.

Self Rep - Costs

• Costs are one of the reasons for the increase in self-represented parties in the courts. Many people need some assistance to help them navigate the system.

• The assistance given by the courts / tribunals to self-rep. parties can help overcome some of the issues faced by a party who cannot pay for private legal rep, not eligible for legal aid.

• However, the assistance does not completely overcome the issues faced by a self-rep. party.

• The assistance given cannot extend to the legal personnel advocating that specific party.

Court Fees - Costs

• Court fees vary between the courts. Significant delays can increase cost of resolving disputes

• Courts may make adverse cost orders → Order to losing party to pay their own costs + some or all of the other party’s costs.

• Court costs and disbursements associated with:

  • engaging expert witnesses and mediators

  • filing and hearing fees

  • using a jury (if a party requests one).

Out of Court Settlement - Costs

• Given cost of court, some parties are forced to settle out of court.

• Out of court settlements = plaintiff receives some form of compensation but a lesser amount than what a court would have ordered.

• Disadvantageous for parties of low socio-economic status - do not have the capacity to pursue full court proceedings + must compromise on outcome of their dispute.

VLA - Costs

• VLA is available for financially disadvantaged parties in civil cases, only to a limited degree.

• VLA can provide some assistance for parties with migration matters, Centrelink payments, and parties with cognitive disabilities.

• VLA’s resources are limited and it can only provide legal rep. in court for persons charged with serious indictable offences, rather than for civil proceedings.

VCAT - Costs

• VCAT is a low-cost alternative to the courts, BUT there can still be costs associated.

• COSTS: Filing fees, hearing fees, three tiered fee system.

• Corporate (highest fees), standary (middle), health care card holders (low income earners = lowest) claim costs vary and legal rep. may still be required

• While VCAT encourages self-rep. it is not suitable for everyone → many people need some assistance to help them navigate the system.

Types of Costs - List

1. Legal Rep (Barrister and Solicitor) fees

2. Expert witness fees

3. Court fees

4. Use of a jury

5. Fees for Filing Court Documents

6. Appeals

Types of Costs - Barrister fees

• Civil cases that go to trial often require a barrister to present legal arguments and examine witnesses. 

• Depending on the level of experience of a barrister, the costs of a full day in court can range from $3,000 to $5,000