Civil Law Unit 3 AOS 2

Standard of proof

refers to the strength of evidence needed to prove the case, which is on the balance of proability

Burden of proof

• refers to the responsibility that one party has to prove the factors/facts of the case

• lies with the person or party bringing the case. lies on the plaintiff

difference between balance of probabilities and beyond reasonable doubt

beyond reasonable doubt = undenaible proof

balance of probabilities = probable that the party did it

Factors to consider when initiating a civil claim

Costs, limitation of actions, enforcement issues

Costs

party involved may incur costs such as fees for legal representation, court costs etc.

fees for legal representation

costs of legal rep depends on complexity of case, if the court needs it to go, size of the case

Disburments

is out of pocket costs or fees excluding legal fees

Limitation of actions

refers to the restrictions placed on the time which a civil action can be commenced

Reasons for the limitation of actions

• def doesnt have to face an action after a sig period of time

• evidence is not lost and ppl remember

• disputes can be resolved as quick as possible

Enforcement issues

this is considering whether defendant i sable to pay or whether they will pay, even if def is able to pay, plaintiff may find trgetting def to comply w remedy

Considerations for enforcement issues

• def may be bankrupt

• def may be in jail

• if def is company, comp may not have assets or uncontactable

Principles of Justice

Fairness, Access and Equality

Fairness definition

All people should participate in the justice system & its proccesses should be open & impartial

Participation

ensures opportunites for parties to participate, interpret with unreasonable delays

Open processes

Civil trails should be open to the public, can be in private if it has sensitive information such as contract disputes

Impartial proccesses

justice must be free from bias and must be impartial

Access definition

All people should be able to engage with the justice system & its proccesses on an informed basis

Engagement

different ranges of dispute resolution method bodies for example physical access and tech access

Informed Basis

people engaged, should recieve relevant &constructive information related to that issue

Equality definition

All people should be treated in the same way

Same treatment (formal)

laws that apply to all people equally, all people treated in the same way

Different treatment (substantive/informal)

if results in disadvantage, measures should be taken to remove disadvantage

Mediation characteristics

• is a cooperative method of resolving disputes, used in courts

• structured, joint problem solving considers alternative to try agreement

How mediation is used

• courts refer civil disputes to mediation

• VCAT often refers a claim to mediation before final hearing

• used in privately before or after claim

Conciliation characteristics

• experts in dispute resolution management

• more influence than mediation

How conciliation is used

• do not generally send cases to conciliation

• parties may be ordered to take part in a compulsory conference which identifies the natures of the issues

when conciliation and mediation is appropriate

• relationship between parties will continue

• meet in the spirit of comprimise

• defendant admits liability, only issue is may not pay

• private and confidential

• combination of remedies to achieve plaintiff outcome

when conciliation and mediation is innappropriate

• overwhelming emotions

• list of broken promises

• violent threatening behaviour

• power imbalance

• urgent

• unwilling to reach an agreemen

Strengths of mediation and concilliation

• independant & unbiased + impartial

• cheaper

• less formal

• private +confidential

• voluntary

Weaknesses of mediation and concilliation

• high profile cases that is resolved in priv, society may want to know process

• not enforceable

• power imbalance

• one may refuse to attend

• may not be resolved so needs to be litigated

Arbitration characteristics

• independant 3rd party will listen to both sides & make a decision that is binding + enforceable

• private, allows parties to decide how casual or formal, cheaper than courts

• if want a formal process of evidence the loss can add up, will have to pay

how arbitration is used

• not bound by rules of evidence but may inform themselves

• impartial & unbiased

• ensures parties are treated equally

• not required to continue if parties do not want

when arbitration is appropriate

• parties agree to settle that dispute want to be in control of rules of evidence & procedure

• stated in contract

• court orders parties to arbitration

• claim w mag, if 10k or less refer to arbitration

when arbitration is innappropriate

• parties may not agree to arbitrate the dispute

• parties want greater control over the outcome

• parties wish yo have their day in court

• more comfortable w formal rules

strengths of arbitration

• binding & fully enforceable

• held in private

• an expert on matter

• have control over the proceedings such as formalities & rules of evidence

• ussually less costly

Weaknesses of arbitration

• have no control of the outcome which is imposed by the arbitrator

• right to appeal is limited

• can be formal if parties have agreed on formal method of arbitration

• may not want to undertake arbitration but may be forced to

• may not fit the criteria (under 10k)

Reasons for a court hierarchy

Administrative convinience and appeals

Administrative Convinience

• less serious & less complex cases heard in lower courts, while more seroious & more complex cases heard in higher courts

• minor civil (under $100,000) can be heard in mags court, heard quickly & less exclusively

• more serious & complex cases heard in county & supreme have unlimited juristiction class actions go to supreme

strength & weakness of admin convinence

Strength:

• court hiearchy allows courts to adapt diff processes & case resources in away for efficiency

Weakness:

• diff courts may be confusing

Appeals

• ppl who disatisfied w a decision in civil trail can, if there are grounds for appeal, take manner to a higher

Grounds for appeal are when

• point of law, some law hasnt been followed

• question of fact, whether facts of the case has been app propriate

• rem awarded, way in which a court enforced right

strength and weakness of court hierarchy

Strength:

• court hiearchy allows appeals to be made by both parties if there is an error in original decision

Weakness:

• no automatic right to appeal & appeal processes are difficult to understand w/o a lawyer

• need grounds for appeal

role of the judge/magistrate in a civil trail

Determine liability/remedy, decide costs, case management during and before trail

Determine liability/remedy

• magistrate will always have this role & if there is no jury, the judge must also do this

• establish whether plaintiff has established claim against defendant, what remedy should be awarded

• resolve decision for later, prov written decision, timely and accessible

Decide costs

decides who bears costs, generally winning party

Case management (Before)

• ensures civil trail are managed appropriately, can take place before or during

• parties to undertake mediation

• setting timelines for discovery (evidence)

• limiting expert evidence

• civil procedure act

• directions given at anytime, known direction hearings, pre trail

Discovery

• both parties seeking relevant documents

Case management (during)

• order in which evidence is to be given

• limiting the time to be taken by a trail

• limiting exam of witnesses

• limiting teh no. of wit a party may call or no. of does they enter as evidence & setting dates & times limits of witnesses

• Ass self rep parties

• ordering parties to undertake mediation

Strengths of the role of the magistrate/judge in a civil trail

• impartial, do not overing interfere in case

• experts in law, legal processes & cases. use this in managing cases & determining liability

• manage the case both before & after, have significant man powers to ensure disputes resolved timely manner + costly

• able to assist self rep parties

Weaknesses of the role of the magistrate/judge in a civil trail

• some risks, may have bias that impacts decision makinhg

• cultural, diversity, critisised , increases distrust

• some cases may be less actively managed

• some cases may fail to comply so delays may occur

• cannot interfere excessively, therefore not helping w self rep partie, even though they are experienced

role of the jury in a civil trail

• to be objective, must be unbiased + bring an open mind. cant have prejudice

• listen to & remember the evidence, can take notes, must not make any investigation

• understand directions & summing up, judge gives directions or issues about points of law

• decide on liability and in some cases damages,

• In defamation, jury does not decide remedy

juries are used in 2 situations

• either plaintiff/defendant requests (party who requests must pay)

• The court wants the jury (court pays for jury)

Strengths of a jury in a civil trail

• Randomly picked, has no connection to parties

• allows members of the public to participate, enables to be more informed

• collective decision making can reduce the possibility of bias

• represents a cross section of the community, diverse

Weaknesses of a jury in a civil trail

• may have subconscious bias or prejudice towards a case

• can be complex incl directions given

• may result in delays as matters need to be explained

• a no. of people cant participate as they are ineligble, not making true cross sect of society

Role of the parties in a civil trial

make decisions about the conduct of the case, disclose info to the other party, exchange evidence, participate in trail

make decisions about the conduct of the case

which evidence will be presented, which claims they will make, what defences they will use and which wittnesses they will call

disclose info to the other party

may through pre-trail procedures such as discovery

Exchange evidence

is another pre-trail procedure when evidence cannot speak for itself & a person needs to provide evidence

Participate in the trial

Parties will need to……

• give opening & closing statements

• present the case to the judge/jury

• cross examine the other witnesses

strengths and weaknesses of the role of parties in a civil case

Strengths:

• have ongoing obligation to disclose & discover all relevant docs to each other, this ensures there are no suprises as to the documents that may be relevant

• both have the opportunity to present cases including opening and closing, includes opportunity to examine and cross examine

• control of how they run their case. Not forced into anything

Weaknesses:

• parties may be more familiar w their disclosure obligations than others, ensures there are no suprises as to the docs that are relevant

• process complex difficult to understand w/o use of a lawyer making it difficult for self-rep parties

• ‘party control’ mean that the parties need time to prep case and make decisions about how to run their case which can add to delays. This can be stressful & cost money