unit 3 aos2 SAC1- victorian civil justice

what are the parties in a civil dispute?

plaintiff and defendant

what is the burden of proof in a civil case, which party has it and what does it mean?

the plaintiff must prove their case on the balance of probabilities, meaning that the plaintiff is most probably in the right and the defendant is most probably in the wrong

what factors should be considered before initiating a civil claim?

costs, limitation of actions and potential enforcement issues

what can contribute to costs in resolving a civil dispute?

• legal advice and representation

• disbursements

• adverse cost orders

what is adverse cost orders?

paying the other party’s legal fees as ordered by the court

what are disbursements?

fees such as court fees, mediation fees, fees for a jury trial (paid by the party who requests it)

how much does a jury ( cost per day?

approx $800

how much does a solicitor cost per hour?

approx $200-$600

what does the limitation of actions refer to and mean?

refers to the Limitation of Actions Act 1958 (VIC) which specifies the time limits/ limitation period for certain civil claims to be filed

what are the two ways a plaintiff can obtain a settlement/remedy?

• settling with the defendant before a decision is reached by the dispute resolution body

• obtaining a remedy from the dispute resolution body

what creates enforcement issues of a remedy?

• if the defendant can afford to pay the amount claimed by the plaintiff

  this could be because they have no money/assets, are oversees or in jail

• if the defendant refuses to pay

  the plaintiff may have to pay additionally money on legal proceedings to enforce the remedy

what are the types of alternative dispute resolution methods?

mediation, arbitration, conciliation

what are distinguishing features of mediation?

• resolution is reached by parties voluntarily (mediator only helps discussion occur but cannot suggest or advice)

• terms of settlement makes resolution enforceable

• cheapest alternative dispute resolution method

• private

what are distinguishing features of conciliation?

• resolution is reached voluntarily but is made on the advice of the conciliator

• terms of settlement makes the resolution enforceable

• attendance is not enforceable

• private

what are strengths of mediation and conciliation?

• less formal/intimidating which ensures each party has their say

• cheaper

• quicker and more flexible

• flexibility with solution

• facilitates maintenance of ongoing relationship

what are the weaknesses of mediation and conciliation?

• one party may argue more effectively

• decision is not enforceable unless terms of settlement is signed

• might be additional cost as the dispute may still require a hearing/trial to settle it

what are distinguishing features of arbitration?

• decision and attendance is enforceable

• decision (award) is binding and made by the arbitrator

• arbitrator has expertise in specific subject matter

• more formal

• private

what are reasons for the court hierarchy?

• administrative convenience

• appeals

what civil cases are heard in the magistrates court?

claims up to $100,000

what civil cases are heard in the county court?

claims of unlimited value but no appeals

what civil cases are heard in the supreme court (trial division)

claims of unlimited value and appeals on a question of law from the magistrates court

what civil cases are heard in the supreme court (court of appeal)

appeals from county and supreme court

what does administrative convenience mean?

allows for the efficient use of limited financial and physical resources based on complexity of cases to reduce delays

what are the 3 grounds for an appeal?

• point of law- where law has not been correctly applied

• question of fact- whether the facts of the case have been applied appropriately

• remedy awarded- the way the court enforced right/order

what is the role of judge/magistrates?

• act impartially- maintain independence from government and political bias

• case management- control the progress of legal cases more effectively and efficiently

• directions- instructions to parties

• determine liability and remedy with a court judgement

• decide on costs- decide which party bears the costs of trial/hearing

what is a court judgement?

a statement given by the judge hat outlines the decision of the court and legal reasoning behind it

what directions can be given by the judge/magistrate?

• discovery- a copy of the documents that the other party possesses that is relevant to the issues in dispute (can be limited by judge/magistrate)

• mediation- parties can be ordered to attend mediation before trial in attempt to resolve dispute

how can the judge/magistrate manage the case?

• limit the time for a hearing/trial

• limit the examination of witnesses

• limit the number of witnesses a party may call

• limit the number of documents that a party may submit as evidence

• address jury and give directions

• ensure self represented parties understand processes, rights ect

strengths of role of judge/magistrate

• impartial umpire- doesnt overly interfere in trial/ hearing

• experts in law

• manage case before, after and during the trial to ensure administrative convenience is achieve

• can assist self represented parties by explaining processes such as cross examination

what are weaknesses of the role of judge/magistrate?

• risk of apprehended bias

• lack of diversity of judges/magistrates

• scale of management is dependent on who is the magistrate/judge

• judge/magistrate cannot interfere excessively in their cases and help self represented

what is the role of the jury?

• be objective- be unbiased and independent and make decisions based on facts of case

• listen to and remember the evidence- take notes and not conduct own investigation

• understand directions and summing up- listen

• decide liability/ damages- make confidential deliberation to form decision based on facts on the balance of probabilities

when is a jury used?

• when requested by the plaintiff/defendant who have to pay for its cost but can request can be rejected by court

• when the court orders a jury

what are the strengths of the role of the jury?

• randomly picked and have no connection to parties

• community engagement

• collective decision making reduces possibility of bias

what are weaknesses of the role of the jury?

• risk of unconscious bias and no way of knowing if it impacts decision

• can result in further delays

• some people cannot participate in the jury because they are ineligible, excused or disqualified (views arent represented)

role of the parties in civil disputes

• make decisions about the conduct of the case- such as what claims/ defences to raise and what witnesses they will call through party control (controlling own case)

• disclose evidence to the other party- participate in pre trial procedure of discovery (exchange of documents)

• exchange evidence- such as lay evidence (witnesses) or expert evidence (doctors, lawyers ect)

• participate in trial- make opening and closing addresses, cross examination of witnesses, present case to judge/jury

what are the strengths of the role of parties?

• ongoing obligation to disclose all relevant documents

• both have opportunity to participate in trial/hearing

• have party control (control over how they manage their case)

what are some weaknesses of the role of parties?

• processes can be especially complicated for self represented parties

• party control means that parties need time to prepare their case which can add to delays, be stressful and cost money

what are the purposes of the CAV?

• help people resolve disputes efficiently without cost to them

• help reach a resolution consistent from the law