AOS 2 - Civil Law

Civil Law

An area of law relating to disputes that arise between two individuals due to a breach of one of the individual’s rights or who have suffered loss or damage.

What is the purpose of civil law?

To restore the plaintiff back to their original position (as much as reasonably possible)

How is Civil Law different to Criminal Law?

• The focus is on restoring the plaintiff, not punishing the defendant

• The ramifications of a breach of civil law generally are not as harsh as a breach of criminal law

• Civil Law seeks to provide remedies (damages and injunctions)

• A jury in a civil matter will consist of six people.

The principle of Fairness

Every person is entitled to be treated impartially and receive a just hearing by an independent third party, without fear or favour.

• Parties are entitled to impartial procedures without discrimination or favouritism.

Equality

The Rule of Law: “All persons are equal before the law. No one is above the law”

All parties are treated impartially before the law and given the same opportunity to present their case, regardless of personal factors.

• It does not always equate to fairness - it is important to discriminate between people to ensure that the process of resolution, as well as the outcome itself, is fair.

Difference between fairness and equality

• Fairness: Fairness is the impartial and just treatment/behaviour without favouritism and discrimination, free from bias and injustice. This often refers to the court practices itself, e.g. a judge must always be impartial and not hold a bias over the accused). Fairness also means that individuals DO NOT need to be treated the same - a key concept of fairness is that individuals need to be treated differently to ensure fairness.

• Equality: Equality is the concept that people should be equal under the law, and have the same opportunity, without advantage or disadvantage, to present their case. A big part of equality is that people are treated the same (or end up receiving the same outcome).

Access

The principle that all individuals should be able to initiate their case, understand their legal rights, and obtain legal representation, in light of financial, physical, mental, or social disadvantages they may face.

• Difference to criminal law: in civil law, since the parties can choose whether to initiate a case, this adds another potential barrier to access.

How to distinguish between the principles of justice

• Access is the ability to USE the legal system (e.g. can an individual initiate their case, can they obtain a lawyer, can they obtain knowledge of the case, etc.), and it requires an understanding of the factors that may prevent the party from USING the legal system (financial status, cultural differences, etc.).

• Fairness is where we look at one individual process or party in a case, and think about whether that particular thing is JUST (e.g, can an individual present their case in the best possible light, is the outcome of the case based on the facts and not some kind of bias, are we trying to reduce stress and anxiety for everyone involved in the case, etc.). 

• Equality is where we compare one process or party to another, and figure out whether they have the SAME treatment/opportunities (e.g., does one party have a lawyer, while one does not). 

Parties in a Civil case

Defendant: the person who is accused

Plaintiff - the person who accuses someone of breaking civil law.

Burden of proof

The party upon whom the responsibility lies to prove the claims in a legal dispute

• Rests with the plaintiff (the party bringing the allegation to court)

Reversal

• Counterclaim:

  • If the plaintiff has bought the case forward, the defendant can file a counterclaim and sue the plaintiff

  • This reverses the onus of proof onto the defendant

• Defences

  • When the defendant claims a defence to a tort they have been accused of, they carry the burden of proof in the courtroom.

Standard of proof

The level of certainty necessary to establish proof of the claims in a civil suit.

• On the balance of probabilities:

  • It is likely than not that the defendant is responsible for the loss

    • If the likelihood is 50% or lower, the plaintiff will lose

    • This is distinguished from the much higher threshold required in criminal cases (beyond reasonable doubt)

    • This is stated in section 140 of the Evidence Act 2008 (Vic)

Costs

Cost is a crucial factor in deciding whether to pursue a civil claim, as the expenses involved can be exorbitant. This is why many civil disputes are resolved out of court. Parties must evaluate whether the potential outcome justifies the financial investment.

• What will the costs be?

• Can the party afford to pay these costs?

Examples of costs

• Disbursements: Out-of-pocket expenses, such as court fees.

• Court Fees: Includes filing, hearing, and trial fees, which can range from $150 in the Magistrates' Court to over $4000 in the Supreme Court.

• Legal Representation: Lawyers charge between $200-$600 per hour, with costs depending on case complexity, court type, and the lawyer's expertise.

• Jury Costs: The party requesting a jury trial bears the cost, which can range from $500 to over $1000 per day.

• Pre-trial Procedures: These can significantly add to overall costs.

• Adverse Costs Orders: If unsuccessful, the plaintiff may have to cover both their own legal costs and a portion of the defendant’s costs, which can deter plaintiffs from pursuing claims.

Considerations about Costs before Court Action

• Whether the potential costs are affordable

• Eligibility for legal aid or free legal assistance

• The risk of an adverse costs order and the financial implications if unable to pay (e.g. selling assests)

Limitation of actions

Limitation of actions refers to the legally prescribed period within which a civil claim must be lodged. After this period expires, the claim may no longer be filed in court

• The Limitations Act 1958 (Vic) outlines the time limits for various types of civil actions. In some cases, a claim cannot be pursued regardless of the evidence if it falls outside the limitation period.

• Does the plaintiff still have time to initiate the case?

Reasons for imposing limitations

• To protect defendants from facing legal action after an excessive period of time.

• To prevent the loss or deterioration of evidence over time.

• To ensure that disputes are resolved promptly.

Limitation Periods

• Negligence: 6 years

• Defamation: 1 year

• Contract Law: 6 years

• Personal Injuries: 3 years

• Action to Recover Land: 15 years

Enforcement issues

Enforcement issues refer to the ability of a defendant, if found liable, to comply with the court's orders, such as paying damages or fulfilling other remedies.

• Ability to Pay: Before pursuing a civil claim, it is crucial to assess whether the defendant can actually pay the damages if the court orders them to do so.

• Circumstances Affecting Payment: A defendant may be unable to pay due to reasons such as bankruptcy, lack of assets, imprisonment, or being uncontactable (e.g., overseas).

  • Will the outcome be able to be enforced? 

  • Can the defendant pay the damages?

Enforcement mechanisms

• Garnishee Order: This is a court order that allows money to be deducted directly from a defendant’s bank account or wages to satisfy the debt. However, it cannot be issued if the defendant's income is from certain benefits like child support or government allowances.

• Examination Notice: This legal tool allows the plaintiff to examine the defendant’s financial status to identify available assets or income that could be used to fulfil the debt.

• Writ of Execution or Levy of Property (Court Warrant): This allows the sheriff to seize and sell the defendant’s property to satisfy the debt. This is usually a last resort, used after other measures have failed.

Challenges of enforcement issues

• Even if a court issues a judgment in favour of the plaintiff, enforcing the outcome can be difficult, especially if the defendant is financially insolvent or uncooperative.

• Plaintiffs must weigh the costs and likelihood of successful enforcement before proceeding with litigation. 

Class Actions

A class action (representative proceeding) is a civil lawsuit filed by a lead plaintiff on behalf of seven or more individuals who have similar claims arising from the same circumstances. These cases typically involve similar legal and factual issues.

• Most class actions are heard in the Supreme Court, which assigns personnel with expertise in these complex cases. Individuals can opt out of a class action by filing a notice with the court.

Types of Class Actions

• Shareholder Class Actions: Claims by shareholders against a company for misrepresentation.

• Product Liability Class Actions: Consumers suing over losses from defective goods or services.

• Natural Disaster Class Actions: Claims by individuals suffering losses from natural disasters.

Case Example - Williams v Aus Net Electrcity Services Pty Ltd (2014)

• Context: A class action representing 10,000 survivors of the 2009 Victorian bushfires, where 119 people died, and over 1,000 homes were destroyed.

• Plaintiff: Steven Elliot Williams, on behalf of those affected by the Mickleham-Kilmore bushfire, sued SP AusNet and Utility Services Group for the faulty electricity cable that caused the fire.

• Outcome: In 2014, a $500 million settlement was secured, making it the largest class action settlement in Australian history.

Strengths of Class Actions

Promote Access to Justice

• Class actions allow individuals who may not have the financial means to pursue legal action on their own to seek justice by sharing the costs. This includes legal representation, court fees, and expert witness expenses.

Cost Sharing

• By pooling resources, class action members can reduce the financial burden associated with civil litigation, making legal recourse more affordable

Efficiency and Resource Management

• Class actions streamline the legal process by consolidating multiple claims into a single case. This reduces court delays and saves time and expenses, benefiting both the parties involved and the court system.

Fairness and equality

• Class actions help level the playing field by allowing individuals to collectively challenge larger, more powerful entities. This collective strength ensures that individuals are not at a disadvantage due to the power imbalance.

Consistent Outcomes

• By resolving similar claims in a single proceeding, class actions promote fairness through consistent and equal treatment of all claims. This prevents disparate outcomes that might arise if cases were heard individually

Pro Bono Representation

• In some cases, pro bono lawyers may represent the class action for free, taking a percentage of the damages awarded. This can alleviate the financial burden on plaintiffs and encourage them to pursue justice

Weaknesses of Class Actions

Limited participation

• Not all individuals may be eligible to join a class action due to personal circumstances or slight differences in their claims. This can undermine access to justice for those who do not fit within the group criteria

High costs

• While class actions can spread costs among members, the overall expense of pursuing complex and lengthy cases can still be significant. High costs may reduce the compensation that the plaintiff receives and deter others from participating

One-size-fits all outcome

• The collective nature of class actions may result in a singe resolution that does not account for the unique circumstances of each member. This can be limit fairness for those with differing levels of loss or injury

Loss of individual control

• Participants in a class action must forfeit their right to sue individually and may have limited control over how the case is conducted. Decisions are often made by a majority vote, which might not align with every member’s preferences

Complex and lengthy proceedings

• Class actions can be time-consuming and stressful, particularly for complex cases. The process may drag on for years, leading to prolonged uncertainty for plaintiffs.

Minimal recovery

• Even if a class action is successful, the compensation awarded may be minimal once it is divided among all participants. This can be disappointing for those expecting a larger recovery.

Consumer Affairs Victoria (CAV)

CAV is a Victorian government body responsible for regulating Victorian consumer affairs. It educates consumers and businesses on consumer law, investigates complaints on behalf of consumers, conciliates in appropriate disputes, and ensures that consumer rights are upheld.

• Only uses conciliation to resolve disputes

• Only consumers and tenants may bring an action to CAV

• Cannot make legally binding decisions; can only offer advice

• If the parties come to a decision, they may sign a term of settlement or deed - this can be enforceable through a court if one party does not follow through

Jurisdiction of CAV

• Monetary limit: $45,000 in damages

• Types of disputes

  • Supply of goods and services (between consumers and suppliers)

  • Residential tenancies (between tenants and landlords)

  • Retirement villages

  • Owner’s corporations

  • Exclusions: CAV does not handle disputes related to discrimination or family law matters

Purposes of CAV

• Governing consumer affairs: Ensures consumer rights are upheld and businesses comply with regulations

• Education: Educates Victorians on their legal rights and responsibilities

• Encouragement: Promotes an effective consumer law framework and compliance by businesses

Dispute resolution process

• Initial step: CAV advises consumers to first contact the trader, landlord, or organisation directly to resolve the issue

• Conciliation: If the matter remains unresolved, CAV offers a free conciliation service

• Complaint Acceptance: CAV will accept writing complaints if:

  • The consumer has attempted to resolve the issue directly

  • The issue falls within CAV’s jurisdiction

  • There is evidence of a breach of a consumer legislation or contractual rights

  • The complaint has a reasonable chance of being settled

  • No court or VACT ruling has already been made on the matter.

Strengths of CAV

• CAV is free: CAV offers a free conciliation service, making it accessible to all Victorians, regardless of financial circumstances. This eliminates the financial barriers typically associated with legal processes. (access)

• Efficient process: CAV aims to resolve disputes in a timely matter, reducing the lengthy delays often associated with more formal legal processes, such as court trials. This can be particularly beneficial for parties seeking quick resolutions (fairness)

• Informal Atmosphere: CAV’s conciliation process is informal, often conducted over the phone, which reduces the stress and anxiety associated with formal courtroom settings. This informality encourages open communication and allows parties to feel more comfortable during the process (equality)

• Encourages mutual resolution: CAV encourages parties to reach their own resolution, which may increase acceptance and compliance with the outcome since it is mutually agreed upon rather than imposed. (fairness)

Weaknesses of CAV

• Limited jurisdiction: While the service is free, CAV’s jurisdiction is limited, and it cannot assist with many types of civil disputes outside of consumer and landlord issues. This limitation may force individuals to seek more costly legal avenues if their dispute is outside CAV’s scope.

• Strict acceptance criteria: despite the quick resolution process, CAV’s case acceptance criteria can result in some disputes not being taken up. This may prolong the process for individuals who need to seek alternative dispute resolution methods.

• May be too informal: The informal nature of the process may lead some parties to not take it seriously. Additionally, the lack of formal structure can result in an imbalance of power between parties, especially when one party is a large business and the other is an individual.

• No legally binding outcome: CAV cannot enforce the outcomes of its conciliations. If parties do not enter into a legally binding agreement, the resolution may not be upheld, leaving the parties in the same position as before. The lack of enforcement power can be a significant limitation, especially if one party chooses to ignore the outcome. conciliations.

Victorian Civil and Administrative Tribunal (VCAT)

• It is a quasi-judicial tribunal created by Parliament, that hears and determines relatively minor civil law matters using informal, efficient, and low-cost processes.

Jurisdiction of VCAT

Monetary limit: VCAT can only hear disputes involving amounts up to $26,710. It cannot award more than this amount in compensation

Types of divisions:

• Administrative Division: Handles disputes between individuals and government entities

• Civil Division: Resolves disputes between individuals

• Human Rights Division: Addresses discrimination and sexual harassment issues

• Residential Tenancies Division: Manages disputes between tenants and landlords.

Types of disputes VCAT cannot hear

• Representative proceedings (class actions)

• Employment disputes between employers and employees

• Disputes between neighbours (unless involving an owner’s corporation)

• Disputes between drivers in car accidents

• Disputes between tenants and tenants

Purposes of VCAT

• Accessibility: VCAT is designed to be easily accessible to the public, with locations throughout Victoria, including a central office in Melbourne. It encourages remote participation via telephone and video conferencing.

• Affordability: VCAT aims to be low-cost, with minimal filing fees and no hearing fees for small claims. Most parties represent themselves, reducing legal costs

• Efficiency: VCAT prioritises reducing waiting times. For example, the median wait time for civil claims is around 10 weeks, and residential tenancy cases are resolved in about 2 weeks.

• Informality: VCAT operates with less formality than traditional courts, making it easier for individuals to navigate the process without legal representation.

Dispute resolution process

• Application: Parties submit an application under the relevant list

• Dispute resolution: The dispute may proceed to mediation, a directions hearing, conciliation, or a compulsory conference before a final hearing.

• Final hearing: If unresolved, the case goes to a hearing where evidence is presented, witnesses are questioned, and a VCAT member makes a legally binding decision

  • Note: The final hearing is very similar to arbitration, but it is not the same.

Legally Binding Orders

VCAT can issue orders that are legally binding, including:

• Requiring a party to pay money

• Ordering specific actions (e.g. repairs)

• Requiring a party to refrain from certain actions

• Declaring debts

• Reviewing, varying, or cancelling contracts

• Dismissing claims

Appeals in VCAT

These can only be made on question of law, requiring permission (leave) to proceed. Appeals from decisions made by the President or Vice President go to the Supreme Court of Appeal; other appeals are heard in the Supreme Court’s Trial Division.

Administrative Divison

• Legal Practice

• Review and Regulation

• Planning and Environment

Types of disputes heard:

• Professional conduct inquires

• Reviews made by government and other authorities

Civil Division

• Civil claims

• Building and property

• Owners’ Corporations

Types of disputes heard:

• Consumer matters

• Domestic building works

• Retail tenancies

• Sale and ownership property

Human Rights Division

• Guardianship

• Human Rights

Types of disputes heard:

• Guardianship and administration

• Equal opportunity

• Racial and religious vilification

• Health and privacy information

• Disability matters

Residential Tenancies

• Has jurisdiction under the Residential Tenants Act 1977 (Vic)

• Residential tenancies

Types of disputes heard:

• Residential tenants and landlords

• Rooming house owners and residents

• Caravan park owners and residents

• Site tenants and site owners

Strengths of VCAT

• VCAT is cheap: VCAT is generally cheaper than courts due to low application and hearing fees, reduced need for expensive pre-trial procedures, and the option for parties to represent themselves. This cost-effectiveness makes it accessible to more people (access)

• Streamlined Process: VCAT usually offers a faster resolution of disputes, with its busiest list (residential tenancies) resolving cases in approximately two weeks. The streamlined process, with fewer pre-trial procedures, helps expedite the resolution of smaller claims (fairness)

• Informal Atmosphere: VCAT’s informal atmosphere allows parties to present their cases in their own way, which can reduce anxiety and make the process more accessible. VCAT encourages parties to resolve disputes themselves, often through mediation or compulsory conferences, which can save time and costs (equality)

• Legally binding outcomes: Decisions made in a final hearing at VCAT are legally binding and enforceable, providing a clear and definitive resolution to disputes. This legal enforceability ensures that parties comply with the outcomes of their cases and ensures certainty of a resolution. (fairness)

Weaknesses of VCAT

• Costs are increasing: Costs have been increasing, particularly for disputes involving goods and services, building issues, and owner’s corporations. The use of legal representation in VCAT has also become more common, which can make costs comparable to, or even higher than, court proceedings, particularly in complex cases

• Delays are increasing: Despite generally being quicker, VCAT has experienced delays in certain lists, such as Planning and Environment, where cases can take up to 25 weeks. These delays can have significant economic impacts, particularly for construction projects.

• May be too informal: The informality of VCAT can be a disadvantage for some parties who may feel uncomfortable or prefer a more structured, formal process. This lack of formality may also lead to inconsistencies in how cases are handled, and some parties might feel ill-equipped to navigate the less formal procedures.

• Limited avenue for appeals: VCAT decisions can only be appealed on points of law and must go to the Supreme Court, making the appeals process complex and expensive. Additionally, VCAT is not bound by precedent, which can lead to inconsistent deicisons over time. This lack of binding precedent may create uncertainty for parties regarding the likely outcome of their case.

Original Jurisdiction

The ability of a court to hear a case for the first time

Appellate jurisdiction

The ability of a court to hear a case on appeal from another court

The Magistrates Court

• Original jurisdiction: Civil claims under $100,000

• Appealate jurisdiction: None

The County Court

• Original Jurisdiction: Unlimited

• Appellate jurisdiction: None

The Supreme Court: Trial Division

• Original jurisdictions: Unlimited

• Appellate jurisdiction: Appeals from VCAT and Magistrates’ Court on question of law

The Supreme Court of Appeal

• Original jurisdiction: None

• Appellate jurisdiction: Appeals from County Court or Supreme Court trial division on question of law, question of fact, or amount of damages.

Reasons for a Court Hierarchy: Allows for appeals

Appeals allow a case to be reviewed in a higher court if there are reasonable grounds

• An appeal is possible if the plaintiff or defendant believes that the Magistrate or Judge made a mistake in interpreting the law or managing the case

• A court hierarchy ensures that decisions can be reviewed by a more experienced judge, which helps correct any unjust decisions in civil cases

• Without a hierarchy, appeals would not be possible, as cases would be reheard by judges with similar expertise, defeating the purpose of appeals

• The party requesting the appeal is the appellant, and the opposing party is the respondant

Grounds for appeal

• Question of law: if the court has incorrectly applied or interpreted the law, such as allowing inadmissible evidence

• Question of fact: concerns whether the facts of the case were correctly applied to reach the decision

• The remedy/amount of damages awarded: appeals may be based on disagreements with the enforcement of rights or the calculation of damages.

Reasons for a court hierarchy: Allows for administrative convenience

Courts develop expertise in specific types of cases, allowing them to handle cases according to their seriousness and complexity

• Higher courts focus on more complex and lengthy cases, while lower courts manage simpler, less serious matters

• Most civil cases are resolved in the Magistrate’s Court, enhancing efficiency and reducing the burden on higher courts

• Lower courts reduce pressure on higher courts, enabling them to focus on cases within their expertise

• The hierarchy allow for better management of time and resources, reducing delays and backlogs

Strengths for a court hierarchy

• The most formal method for resolving civil disputes, and parties must follow strict rules of evidence and procedure which provides consistency. This ensures parties are treated fairly. 

• Courts are specialised and deal with particular types of disputes. 

  • For example, the Supreme Court hears the most complex civil disputes, so judges have more expertise in these areas

• The long pre-trial procedures ensure that parties have every opportunity to present all of their evidence in the best possible light. 

Weaknesses of a court hierarchy

• Appeals increase costs and delays

  • Courts can be very expensive. The fees involved in lodging a claim, legal representation, and court hire are often too high for most people. 

• Confusion as to which court a case should be heard in 

• Administrative personnel are required to run courts, which adds to the costs of the justice system (which could be reduced if there was only one court)

• Judges in lower courts can distinguish a precedent 

• Judges may be bound by precedent that is irrelevant to a case

• Pre-trial processors can take a long time, which delays the matter from being resolved.

• The formality can be intimidating for parties, and so legal representation is essential. 

• The level of judicial expertise that parties receive in lower courts may not be as nuanced or specialised as that received in a higher court 

Power to order mediation

• Judges have the authority to refer any civil proceeding to mediation at any stage of the legal process. This can occur at the judge's discretion, with or without the parties' consent. The court may either assign the presiding judge as the mediator or require the parties to arrange private mediation.

• Purpose: The goal of ordering mediation is to resolve disputes quickly and efficiently, avoiding the need for a full trial. Under the Civil Procedure Act 2010 (Vic), mediation supports fair and economical dispute resolution, helping parties to settle early and save on trial costs

Power to give direction

• Judges, through case management, have the authority to direct a civil case by issuing court orders and ensuring party cooperation throughout the process. This power allows judges to make decisions at any point during proceedings, including before formal commencement. Judges can set timelines for pre-trial steps, determine the order of evidence presentation, and instruct parties on procedural matters. Sanctions may be imposed for non-compliance.

• Direction: A direction is a court order that imposes obligations on parties to perform certain tasks by a specified time or dictates how the proceedings will be conducted. This may include filing documents, attending court, or mediation. For example, judges can limit the number of witnesses a party may call during trial.

• Purpose: Directions enable judges to actively manage civil cases, promoting efficiency, timeliness, and fairness while minimising delays and ensuring that parties understand the required procedures

Differences between the Judge in Civil and Criminal cases

Civil Case:

• Determines the outcome (liability of defendant) on the balance of probabilities if there is no jury.

• Responsible for ruling on compensation or remedies for the plaintiff.

Criminal Case:

• Does not usually determine the outcome (the guilt of the accused) unless there is no jury.

• Handles sentencing if the accused is found guilty

Strengths of the judge (civil law)

Power of case management (fairness):

• The judge has the power to direct parties to provide certain evidence to the opposing parties prior to a trial. This enables the defendant to better understand the strength of the plaintiff’s case and better prepare their own defence

• Access: Judges and magistrates’ case management powers, such as setting time limits for evidence and ordering mediation, minimise the cost of civil disputes and thereby, enhance the accessibility of the civil justice system

Enforcing rules of evidence and procedure (fairness/equality):

• Judges are highly experienced in civil law and play a crucial role in enforcing the rules of evidence and procedure. They ensure that all parties adhere to legal standards, making sure that the evidence presented is both relevant and reliable, as outlined in the Evidence Act 2008 (Vic). 

• This ensures a fair trial by maintaining consistency and equality in the process. Additionally, judges oversee court procedures, give directions, and manage the conduct of witnesses and legal practitioners, ensuring that both parties have equal opportunities to present their cases.

Impartiality (fairness):

• Judges are impartial and independent, ensuring that their decisions are based solely on the evidence presented in court. This independence from the State means that the defendant can expect a fair trial, free from bias. 

• Judges also provide sentence indications objectively, ensuring that personal characteristics do not influence the decision. Their legal expertise allows them to navigate complex legal issues without being swayed by emotional arguments, ensuring a just outcome.

Gives jury directions (access):

• Judges use their extensive legal knowledge to determine the applicable law and explain it clearly to the jury. This guidance is essential in helping jurors understand the law and make informed decisions, which contributes to the fairness and accuracy of the trial process.

Weaknesses of the Judge (civil law)

Over-management:

• Judicial over-management could leave parties with excessive expenses if more money is spent on unnecessary directions hearings before parties commence the trial stage. This is particularly true if there is no resolution. 

Unconscious bias:

• Despite their training and experience, judges may still harbour unconscious biases that can inadvertently influence their decisions. This could lead to unequal treatment of individuals in the courtroom, where some might be unfairly exempt from certain procedures, or others subjected to harsher treatment.

Cannot offer assistance:

• Due to their role as impartial arbiters, judges cannot assist either party, even if one is unrepresented or if their legal representative is underperforming. This limitation means that the judge's expertise may not be fully utilized, potentially leading to an unfair trial, especially for those without adequate legal representation

Cannot determine verdict:

• Although judges have extensive legal knowledge, they are not responsible for determining the guilt of the defendant in jury trials. This responsibility lies with the jury, which can be seen as a disadvantage since the judge, being the most legally qualified individual in the courtroom, might be better equipped to assess the evidence and reach a verdict.

The role of the jury

The jury will review all evidence presented during the trial, determine which party is at fault and decide on the outcome of damages and remedies

• The use of a jury in a civil trial is optional and funded for by the requesting party, in the County or Supreme Courts

• They generally have 6 jurors, although a trial may proceed with 5 if the jury advises

• Only 2% of civil cases involve a jury

Jury selection process

Jurors are randomly selected from the electoral roll, and anyone eligible to vote in Victoria may be chosen for jury duty

• Selected individuals complete a questionnaire to determine their eligibility

Ineligibility for jury duty

• People working in law (e.g. police, lawyers, judges)

• Individuals who cannot speak or read English

• Those with certain mental or physical abilities

Disqualification for jury duty

• Individuals with a history of criminal activity

• People who have filed for bankruptcy

Excused from jury duty

Individuals with valid reasons, such as:

• Living far from the court

• Being self-employed

• Full-time caregivers

• Those who are very sick

• VCE or University students

Strengths of the jury

Community representation (fairness):

• Juries consist of a cross-section of the community, which helps ensure that the trial is conducted according to community values and standards. This enhances the perception of fairness, as defendants are judged by a panel of their peers.

Impartial decision-making (fairness):

• Jurors are randomly selected and are required to be impartial, which aims to ensure that verdicts are based solely on the evidence and law, rather than personal biases or external influences.

Spreads the weight of decision-making (fairness):

• Decision-making is shared among 12 jurors, reducing the risk of wrongful decisions compared to a single judge.

• The requirement for a unanimous or majority verdict helps ensure careful consideration and reduces the risk of misuse of power.

Equal opportunity for defence (equality):

• All parties have the right to choose a jury trial, ensuring that their case is heard by a group of their peers rather than a single judge, which supports equality before the law.

Comprehensive trial process (access):

• The presence of a jury promotes the use of simpler language and less legal jargon during a trial, helping jurors better understand their duties and the court's procedures. This clarity also benefits the parties, especially if self-represented, by making the case and trial process more comprehensible, thus enhancing access to justice.

Weaknesses of the jury

Potential bias:

• Despite efforts to ensure impartiality, jurors may still have unconscious biases or prejudices that could affect their decision-making. External factors, such as media coverage or the charisma of legal counsel may also influence their objectivity.

Lack of explanation:

• Jurors do not provide reasons for their verdicts, which can lead to concerns about whether decisions were made fairly based on the evidence presented.

Not legal professionals:

• Jurors lack legal training, which can be a disadvantage in complex cases, possibly leading to incorrect verdicts.

• Maintaining concentration and accurately recalling evidence can be challenging in long or complex trials.

Exclusions and disqualifications:

• Certain groups (e.g., legal professionals) are excluded from jury duty, which may affect the representativeness of the jury. Additionally, those with certain disabilities or language barriers may be ineligible, potentially skewing the jury composition.

• The ability of parties to challenge potential jurors can lead to strategic exclusions, which may affect the equality of the jury panel.

Delays and costs:

• The process of empanelling a jury and conducting a trial with jurors can be time-consuming and costly, potentially affecting access to timely justice for all parties involved

Plaintiff

The party filing the claim with whom the burden of proof rests upon, and who must prove the facts of the case

Defendant

The party who the claim is being brought against

Strengths of the parties

Comply with overarching obligations (fairness):

• The parties are responsible for complying with the 10 overarching obligations under the Civil Procedures Act 2010 (Vic). They include the obligations to use reasonable endeavours to resolve disputes, disclose the existence of critical documents at the earliest reasonable time, and act in a way that minimises dealy and does not mislead or deceive anyone in relation to the dispute.

Party control (fairness):

• Parties have control over how their case is presented, including selecting evidence and witnesses. This autonomy allows them to tailor their case strategy according to their strengths and preferences.

Present case to the court (fairness/equality):

• Both parties have the opportunity to present their case, submit evidence, and call witnesses. This allows for a comprehensive examination of the facts and testing of the opposing party's evidence through cross-examination, which contributes to a fair and equal trial.

Assist in empaneling jury (equality):

• Both the plaintiff and the defence can challenge potential jurors to help ensure the jury is as fair and impartial as possible. Each party has the same number of challenges, promoting an equal opportunity to influence the jury selection process.

Choose legal representation (access):

• Parties can select their legal representation based on their preferences and budget, choosing from various law firms or barristers, which can ensure that they have representation that aligns with their case needs.

Weaknesses of the parties

Obligations can be breached:

• The parties are required to comply with overarching obligations, but may be difficult to prove they are not

• For example, they may provide requested documents on time, but mixed in with a box full of documents, which causes more delays.

Knowledge disparities:

• While parties have control over their case, this can be problematic for those without legal expertise. Unsophisticated parties may struggle to effectively manage their case, potentially missing vital evidence or failing to follow complex procedures. This can also lead to unnecessary delays if parties lack experience or use delay tactics.

Imbalance of power:

• There can be an imbalance between the plaintiff and the defence, especially if the defendant cannot afford legal representation. This disparity can lead to an unfair trial for the defendant, as they may be at a disadvantage compared to the plaintiff.

Jury pool is already limited:

• The number of eligible jurors can be reduced by those excusing themselves or being ineligible, potentially limiting the pool and affecting the fairness of the jury selection process.

Financial disparities:

• The ability to choose legal representation can lead to disparities based on financial resources. Parties with more funds can afford better or more experienced legal representation, while those with limited resources may be left without adequate representation, affecting the fairness of the trial.

Strengths of legal representation

Comply with overarching obligations (fairness):

• Legal practitioners in civil cases have special duties imposed by law, with their primary obligation being to the court and the administration of justice. This means they must be honest, avoid misleading the court, and ensure that correct facts are presented. Their duty to the court takes precedence over their duty to their client. Under the Civil Procedures Act 2010 (Vic), they share overarching obligations with their clients, such as acting honestly and cooperatively. If they fail to uphold these duties, they may face penalties, including indemnity costs or restrictions on claiming legal fees.

Allow each party to present their case effectively (fairness/equality):

• Legal representatives are trained to present their client’s case in the best possible light. This includes preparing for trial by adhering to legal procedures and presenting arguments and evidence persuasively. This ensures that each party has a fair chance to present their case.

• Defence lawyers can hire experts to challenge the plaintiff’s evidence, while plaintiffs can employ experts to validate their case. This helps in achieving fairness by allowing a thorough examination of all aspects of the case.

Lawyers are experts (fairness):

• Skilled and experienced legal representatives can significantly influence the outcome of a trial. Better legal representation can improve the chances of a favourable outcome for their clients, contributing to a fair trial.

• A well-prepared defence lawyer can uncover inconsistencies in the plaintiff’s case, while a proficient defence lawyer can effectively argue the case against the defendant.

Allows parties to be informed and understand their case (access):

• Legal representatives help parties understand complex legal procedures, evidence, and their rights. This ensures that both parties are well-informed and can present their case with clarity.

• Solicitors manage case preparation, ensuring that all necessary documents are filed and evidence is organised, while barristers focus on presenting the case in court.

Weaknesses of legal representation

Can make process more adversarial:

• One limitation of lawyers is that they can sometimes make the legal process more adversarial. In their pursuit of a win for their client, lawyers may prioritize a combative approach over cooperation, which can hinder efforts to find a middle ground between the parties. This can lead to increased conflict rather than resolution. Additionally, a 2013 study found that law school culture may contribute to an ethic of delay and procrastination among lawyers, further complicating the process and potentially prolonging disputes.

• The competitive nature of legal representation can sometimes make the process more adversarial rather than cooperative. Lawyers may focus on winning the case rather than finding a fair resolution, which can complicate the legal process.

• Lawyers might engage in tactics that delay proceedings or create obstacles for the other side, contributing to prolonged trials and potentially increasing stress for all parties involved.

Imbalance of power:

• The high cost of legal representation can create an imbalance between parties. Wealthier individuals or entities can afford top-notch legal teams, while financially disadvantaged parties may struggle to secure adequate representation.

• A wealthy defendant might afford a senior barrister and multiple experts, while a less affluent defendant might be forced to self-represent or accept limited representation, affecting the fairness of the trial.

Financial disparities:

• Legal representation can be expensive, which may discourage financially disadvantaged parties from pursuing or appealing their cases. This impacts access to justice, as those who cannot afford legal representation may be left without recourse.

• High legal fees might prevent a party from initiating an appeal or pursuing a case, which undermines their ability to access justice.

Judicial powers of case management

Judges may be given the authority for judicial case management, which lets them be involved in the full processes of a court case, from pre-trial to trial stage

• Judges have more of a proactive role in the courtroom, as opposed to a retroactive role (doing things after the fact, after the damage has occurred)

• Case management is a collaborative process of assessment, planning, facilitation, and advocacy for options and services to manage a civil dispute through all processes leading up to the resolution of the dispute

Sources of powers for judges

• The Civil Procedure Act 2010 (Vic)

  • Overarching purpose of this act is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute

  • One way a court achieves this purpose is through the judges actively managing cases

Power to order mediation

A judge has the power to refer any civil proceeding to mediation

• Such a referral can occur at any time during proceedings at the discretion of the presiding judge/magistrate

• A court can either order that the presiding judicial officer preside as the mediator or order the parties to organise it privately

• The court can order this with or without the consent of the parties

When judges can order compulsory mediation

When judges can order compulsory mediation:

• The preliminary stage: where parties are preparing their pleadings

• The intermediate stage: the disclosure and discovery stages

• The advanced stage: where evidence is drawn up in preparation for trial

What is the purpose of power to order mediation?

The purpose of such a referral is to expedite the resolution of the dispute without taking up court time and resources

• The Civil Procedure Act 2010 (Vic) provides guidelines for case management, which includes the need to respond to each dispute in the same matter, making the resolution a fair process and treating each case equally

• The power to order parties to attend mediation can assist the prompt and economical resolution of a dispute

• Often with the assistance of a mediator, the parties may realise that there is a benefit to settling the dispute early and before the trial, without spending the costs of going to trial

Power to give directions

Judicial case management gives the judge the power to actively direct a case, instructing the parties to cooperate and issuing court orders as required

• Refers to the discretion of a judicial power to manage a civil case, meaning to make any order the court considers appropriate at any time during proceedings including prior to their formal commencement

• This includes judges setting timelines to complete pre-trial steps such as the discovery and production of documents, ordering the parties to prepare a set of agreed issues in the dispute, directing the order in which evidence is given and the order in which questions are asked by legal representatives.

• Can be made at any time during a proceeding

• Sanctions can be imposed on parties who fail to comply with a direction of the court

Direction

A direction is an instruction given by the court to one or more parties, which imposes an obligation on a party to do something by a certain time, or specifies how a civil proceeding is to be conducted

• It may be that they have to file a particular document, attend court, or attend mediation by a certain time

• For example, judges can make directions which limit the number of witnesses that a party may call at trial

Directions about discovery

A judge has the power to order the parties to disclose certain documents or limit the number of documents to be discovered by the parties (for example, by limiting the documents to be discovered to a certain type or category of documents).

• By doing this, the parties will not be caught by surprise about the documents the other side might produce to prove their case. 

• It puts both parties on a level playing field and does not create ‘trial by ambush’, thus increasing fairness in the process. 

What is the purpose of the power to give direction?

• Allows the judge to actively manage civil proceedings

• Assists on an effective, complete, prompt, and economical determination of a dispute

• Judges maintain control of a proceeding by giving directions along the way, so that delays can be minimised and the parties know what procedures they need to follow

Summary directions

• Relieving parties of certain obligations

• Imposing timelines

• Restricting witnesses

• Limiting examination/cross examinations

• Mode of providing evidence

Directions before trial

Directions can be given at any time, but can be given at directions hearings (pre-trial hearings before a judge or associate judge)

The judge has the power to give directions about:

• The conduct of proceedings

• Timetables or timelines for any steps to be undertaken

• Participating in any method of dispute resolution, such as mediation

• Expert evidence, including directions about limiting expert evidence to specific issues

• The allowance for a party to amend a pleading

• Discovery, including relieving a party from the obligation to provide discovery, or limiting discovery

Directions during trial

The judge has the powers to give directions about:

• The order in which evidence is to be given, or who will go first in addressing the court

• Limiting the time to be taken by a trial

• Limiting the examination of witnesses, or not allowing cross-examination of particular witnesses

• Limiting the number of witnesses that a party must call

• Limiting the length of a duration of the parties' submissions to the court

• Limiting the number of documents that a party may tender into evidence

• Evidence, including whether it should be given orally or in writing

• Costs, including whether a particular party should bear the costs

Civil Procedure Act 2010 - Section 47

(1) Without limiting any other power of a court, for the purpose of ensuring that a civil proceeding is managed and conducted in accordance with the overarching purpose, the court may give any direction or make any order it considers appropriate, including any directions given or orders made:

A) in the interests of the administration of justice 

B) in the public interest

(2) A direction given or an order made under subsection (1) nay include, but is not limited to, imposing any reasonable limits, restrictions, or conditions in respect of:

A) the management and conduct of any aspect of a civil proceeding

B) the conduct of any party

(3) Without limiting subsections (1) or (2), a court may actively case manage civil proceedings by 

A) giving directions to ensure that the civil proceeding is conducted promptly and efficiently

Advantages of case management

• It identifies issues at the earliest possible stage and commences within five weeks of serving proceedings

• All parties are treated equally through the process and can make suggestions to assist the needs of the parties and the nature of individual cases

• There is a variety of clearly depicted orders available to case management under the CPA, allowing for flexibility and access to the most suitable option for parties

• It allows for appeals where incorrect decisions can be reversed. If a party is dissatisfied with the outcome of their case, they may request for it to be reviewed by a higher court, providing they can prove reasons for appeal

• There is an expectation that parties and lawyers will be proactive in communicating with each other in a meaningful way, in the hope of minimising further hearings or trial.

Disadvantages of case management

• There is no control over the case manager's conduct of the court and the order made, it is the responsibility of one judge

• Judges are unable to use precedent or other decisions to assist in the pre-trial resolution of the matter before them

• Judicial over-management could leave parties with excessive expenses if more money is spent on unnecessary directions hearings before parties commence the trial stage. This is particularly true if there is no resolution

• There is a risk in changing the nature of a case through case management, creating unnecessary costs and more delays

• The notion of judges managing a case by forcing a quick judgement, despite what the lawyers or parties may say, may leave the parties dissatisfied with a decision

• The formality of the courtroom may intimidate parties in terms of the processes of strict rules of evidence and procedures

• There is a possibility that a judge's decision will not end the dispute.

Mediation

Mediation is an informal alternative dispute resolution (ADR) method where disputing parties meet before an impartial third party, the mediator, who facilitates discussion to help the parties reach a mutual agreement. The mediator cannot offer legal advice or make binding decisions. Instead, they guide the conversation and encourage non-confrontational dialogue.

• While mediation decisions are not legally binding, if the parties agree, they can formalise the agreement into a legally enforceable contract known as "terms of settlement." 

• Mediation is confidential, ensuring that discussions and agreements remain private. 

• The parties are not obligated to reach an agreement during mediation.

• The courts can order the parties to attend mediation. 

Strengths of Mediation

Lower costs:

• Mediation generally costs less than full court proceedings. This is due to the avoidance of extensive legal fees, court filing fees, and other litigation expenses. Since mediation is typically conducted before court proceedings or as a pre-trial procedure, parties often incur fewer costs.

Predictable expenses:

• The costs of mediation are typically fixed or capped, providing clearer financial expectations. This can help parties budget more effectively compared to the often unpredictable costs of a court case.

Quicker resolution:

• Mediation can often be scheduled and completed much faster than court proceedings. This rapid resolution is beneficial for parties who need to resolve disputes quickly and avoid the lengthy delays associated with court cases.

Informal setting:

• Mediation is less formal than court proceedings. This informal setting can reduce stress and allow parties to engage in open, non-confrontational discussions. The mediator facilitates dialogue without the rigid structures of a courtroom.

Terms of settlement:

• Although mediation itself does not produce legally binding decisions, any agreements reached can be formalized into a legally binding contract known as "terms of settlement." This allows the parties to create a legally enforceable resolution if they reach an agreement.

Flexibility in agreements:

• Parties have the freedom to create customised solutions that might not be possible in a court setting, potentially resulting in more satisfactory outcomes for both sides.

Weaknesses of Mediation

Additional costs:

• While mediation is less expensive overall, there can still be costs associated with hiring a mediator and potentially for any legal advice sought during the process. If parties are unable to reach an agreement and must proceed to court, these costs may add up.

Potential delays:

• If parties are not fully committed to the mediation process or if negotiations are prolonged, mediation can still be time-consuming. The process relies on both parties’ willingness to reach an agreement, which can lead to delays if progress stalls.

Lack of structure:

• The informal nature of mediation might not be suitable for all disputes, especially those requiring detailed legal procedures or formalities. Some parties might prefer the structured and procedural approach of a court for complex cases.

Non-binding nature:

• The outcomes of mediation are not inherently legally binding unless formalised into a contract. This means that if one party fails to adhere to the terms of the agreement, additional legal action may be required to enforce compliance. This can lead to further costs and potential delays if enforcement is necessary.

Enforcement issues:

• Even if a settlement is formalised, enforcement might still require additional legal action if one party fails to comply with the terms of the agreement. This can sometimes lead to further costs and delays

Conciliation

Conciliation is an alternative dispute resolution (ADR) method where disputing parties meet with an independent third party known as a conciliator. The conciliator facilitates discussions between the parties, actively helping them to reach an agreement. 

• Unlike mediation, the conciliator in conciliation plays a more active role and can offer legal advice and suggestions to assist in resolving the dispute. 

• However, like mediation, the conciliator cannot make a legally binding decision for the parties.

• The courts can order the parties to attend conciliation. 

Strengths of Conciliation

Can offer legal advice:

• Since the conciliator is a legal expert, they should be able to offer detailed advice to the parties to help them better understand their rights, responsibilities, as well as any points of law

Note: same as mediation strengths (the rest)

Weaknesses of Conciliation

May lack expertise:

• Although the Conciliators are legal experts, they do not have as much experience and knwoledge in hearing cases as Judges do, and so for complex cases the parties may be better off using the courts.

Note: the other weaknesses are the same as mediation

Arbitration

Arbitration is an alternative dispute resolution (ADR) method where disputing parties present their case before an independent third party known as an arbitrator. The arbitrator facilitates the resolution process and can offer legal advice and information. Unlike mediation and conciliation, the arbitrator has the authority to make a legally binding and enforceable decision, known as an 'arbitral award.'

• Legally Binding Decisions: If the parties cannot reach an agreement, the arbitrator will issue an arbitral award, which is legally binding and enforceable through the courts.

• Parties’ Agreement: The parties must agree to abide by the arbitrator’s decision before participating in the arbitration process.

• Enforcement: If a party fails to comply with the arbitral award, a court may impose sanctions to enforce the decision.

• Formality and Cost: Arbitration is more formal and costly than mediation and conciliation but less formal than a court hearing. It involves a structured process and may require payment for the arbitrator's services.

• Private Arbitrators: Arbitration can be conducted by private arbitrators chosen by the parties, and it is used for civil matters in the Magistrates' Court for claims under $10,000.

Strengths of arbitration

Legally binding outcome (fairness):

• Arbitration results in a legally binding decision (arbitral award) that is enforceable through the courts, ensuring that parties do not waste time without resolution. This upholds fairness by providing a definitive resolution to disputes, ensuring that parties are held to their agreements.

Expertise of arbitrators (fairness/equality):

• Arbitrators are often experts in the specific area of the dispute, providing knowledgeable and relevant decision-making. Enhances fairness and equality by ensuring that decisions are made by someone with expertise in the subject matter of the dispute

Confidentiality (fairness):

• Arbitration proceedings are typically private and confidential, protecting parties from public scrutiny and media exposure. Promotes fairness and respect for the parties privacy, avoiding the potential additional suffering from public trials.

Flexibility and timeliness (access):

• The arbitration process can be more flexible and faster than court proceedings, allowing for quicker resolution of disputes. Supports access to justice by reducing delays and expediting the resolution of disputes

Weaknesses of arbitration

Lack of control over outcome (fairness):

• Parties cannot control the final decision, which is imposed by the arbitrator. This can be problematic if one party is dissatisfied with the result. May impact fairness if parties feel that the outcome is not in their best interest and have no recourse to appeal.

Complex disputes and large claims (fairness):

• Arbitration may be less effective for complex disputes with extensive evidence or for large monetary claims. May impact fairness if the arbitration process is not adequately equipped to handle intricate or high-value issues.

Limited appeal rights (fairness):

• The right to appeal an arbitral award is restricted, making it difficult for parties to challenge the decision if they believe it is unjust. May undermine fairness by limiting the ability to contest potentially erroneous decisions.

Cost and formality (access):

• Arbitration can be more expensive than other ADR methods like mediation, and it often requires legal representation, adding to the cost. May limit access to justice for parties who cannot afford the costs associated with arbitration.

Similarities between dispute methods used to solve civil disputes

• All involve use of independent third party  

• Both are cheaper than taking a case to court.