Legal studies unit 3 AOS 2

burden of proof in a civil case

On the party who initiates the claim - the plaintiff

Plaintiff's responsibility

Must prove that the defendant is liable for the alleged tort. Needs to provide sufficient evidence to estblish their claim against the defendant.

Defendant's burden

If they file a counterclaim, they must prove it, alike with specific defences like contributory negligence.

Standard of proof

the degree or extent to which a case must be proved in court - the balance of probabilities

Balance of probabilities

their claim is more likely to be true than not. Much lower threshold for proving it than in criminal cases.

Costs in initiating a civil claim

- Legal representation fees

- Disbursements

- adverse cost orders

Legal representation fees

vary depending on case complexity, dispute resolution body, volume of evidence and documents, the legal expertise.

Disbursements costs

"out of pocket" fees: tribunal fees, mediation fees, fees for expert witnesses

Adverse Cost orders

if the plaintiff is unsuccessful, they might not only have to cover their own legal fees but also might be liable for some of the defendant's costs.

Limitation of actions

Refers to the period of time (limitation) in which a civil claim (action) may be lodged after which the suit may no longer be filed. The limitation for a particular action depends on the nature of the claim

Enforcement issues in civil remedies

Plaintiff must consider the defendant's ability to pay the awarded amount.

Assessing defendant's financial status, bankruptcy, sufficient assets

Mediation

Cooperative method of resolving disputes with the help of a neutral third party called a mediator. They facilitate discussion, ensure both parties are heard. It is not binding and a mediator does not suggest resolutions

Conciliation

Method of nonbinding dispute resolution involving a third party called a conciliator who tries to help disputing parties reach a mutually agreeable decision

mediation and conciliation is appropriate with:

- when there is an ongoing relationship

- Parties are prepared to meet in compromise

- Parties are focused on resolving dispute and moving on

- defendant admits liability

- parties want privacy and confidentiality

- court referred to parties to mediation

Mediation and conciliation is not appropriate when:

- there is history of broken promises

- There is a history of violent and threatening behaviour

- Parties are unwilling to try reach a mutual agreement

- There is a gross imbalance of power

- when there is a clear debt owed by the parties

- the matter is urgent

Strengths of mediation and concilaition: less formal

(access)

- no strict rules of evidence and procedure

- less intimidating for parties

- allows more people to access dispute resolution

- reduces burden on courts

Less formal, however,

Equality may be impacted

- one party may exert too much influence over the other which may impact equality

-one party may compromise too much

Strengths of mediation and concilaition: Faster and cheaper

(fairness)

- lower fees and generally no need for legal representation

- able to resolve disputes much faster than courts

- parties are generally committed to the resolution

Faster and cheaper, however,

- if decision can't be reached, matter may still need to go to court (increase time)

- If legal representation is present, costs may present

Strengths of mediation and concilaition: not adversarial

- Parties come to an agreement themselves

- more likely to abide by the decision and be satisfied with the outcome

Not adversarial, however,

- agreement reached is not automatically binding so it cannot be ensures that the parties will honour the decision (limit fairness)

- not suitable for all cases

Strengths of mediation and concilaition: confidential

(access)

- Decisions reached are confidential which may suit the parties

- as opposed to court which is public

- More suitable for sensitive disputes such as divorce and commercial disputes

Confidential, however,

it cannot be assured that both parties will attend. agreements reached are not binding.

Arbitration

- more formal cooperative method of dispute resolution

- often used in commertial disputes

- Arbitrator generally has specialist knowledge

- Arbitrator helps the parties negotiate and makes suggestions

- arbitrator can make a binding decision if needed

Arbitration is appropriate when:

- there is an ongoing relationship (escpecially commercial)

- claim is less than 10k in mags court

- Parties want the certainty of a binding decision

- Parties want some rules of evidence to apply

- Parties want the matter resolved confidentially and in private

Arbitration is not appropriate when:

- parties want greater control over process and outcome

- parties wish to have their "day in court" rather than private

- Parties prefer the formality of a court

- parties prefer increased avnues of appeal from court

Strengths of arbitration: binding decision

- the decision is binding

- this is fully enforceble through the courts

- access

Binding decision, however,

- parties have no control over the outcome

- a decision is imposed on them

- Right to appeal is limited

- fairness

Strengths of arbitration: private

- Normally held private and will be confidential

- beneficial for parties wishing to avoid the publicity of a trial

- access

Private, however,

- can be formal if the parties have agreed

- may aadd to the stress, time, and costs in resolving the dispute

Strengths of arbitration: parties have greater control over the process

- they determine how evidence is presented

-and when the steps are undertaken

Parties have greater control over the process, however,

- Can be costly

- Can take a long time depending on the nature of the dispute and the way the parties have decided to resolve it

Strengths of arbitration: Faster and cheaper

- costs generally less than courts

- able to resolve disputes much faster than courts

- Parties are generally committed to the outcome

- access

Faster and cheaper, however

- depending on the process may take a longer time to resolve

- if legal rep is present; costs may increase (access)

Reasons for a court hierarchy in civil law: Appeals

you can appeal on point law, fact, or remedy.

most require leave (permission) to appeal to a higher court is dissatisfied with decision.

- provides fairness

- allows for mistakes to be corrected

- not possible without court hierarchy

Reasons for a court hierarchy: administrative convenience

- Cases distributed according to seriousness and monetary amounts

- Mag courts usually handles less serious/complex cases.

higher courts can allocate more time to more complex cases.

Justify the existance of the court hierarchy

- having one court would create difficulties and delays mixing minor cases with more complex issues

the hierarchy works well and should be retained

Court hierarchy in upholding fairness

- cases categorised by complexity for appropriate handling

* Right to appeal allows mistakes to be corrected

- However, limited appeal opportunities (need to seek leave) may affect fairness

Court hierarchy in upholding equality

* consistent framework for all parties - all parties can appeal

* However, challenged in equality due to financial disparities in higher courts

Court hierarchy in upholding access

* courts at various levels in terms of geographic access and types of cases

* Lower courts more accessible for smaller disputes

* However, formality, complexity and costs can limit access in higher courts

Roles of a judge or magistrate in a civil trial

Act impartially, case management (pre and during trial), determine liability and remedies, decide on costs

Act impartially

• judge or magistrate must remain impartial in cases

• Ensures decision-making without bias toward any party

Case management (pre trial)

• Aim is to ensure the judge, efficient, timely and cost-effective resolution of the issues in dispute

• Can give directions to the parties such as:

Parties must file a particular document by a certain date

Both parties must attend mediation by a certain time

Rule on points of law or narrow the issues in dispute

Case management (during trial)

Judge and magistrates have the power to:

• limit the time for the hearing or trial

• Limit the examination of witnesses

• Not allow cross-examination of particular witnesses

• Limit the number of witnesses that a party may call

• Limit the number of documents a party may enter into evidence

• Ask questions to clarity witness testimony

• Rule on points of law

Determine liability and remedies

• if there is no jury, the judge (or magistrate) determines liability and what remedy should be awarded

• Must provide "timely judgements" (depends on case complexity)

Decide on costs

• judge/magistrate decided who should bear the costs

• the successful party is usually entitled to costs

Similarities in judge and magistrate criminal vs civil

- expected to act impartially and without bias, making decisions during the case on facts

• assists a self represented party if the accused or one of parties in the civil dispute is not represented by a lawyer

• instructs a jury and giving directions to the jury, if there is one in a civil case.

Differences in judge and magistrate criminal vs civil

judge/magistrate in civil decides on liability, remedy.

Judge/magistrate in criminal decides on sanction. Judge doesn't decide on guilt (if jury present), magistrate does

Evaluation of judge/mag: impartiality and expertise

• judges and magistrates act as impartial umpires

• Ensuring fair and unbiased hearing

• Expertise in law and legal processes

• Effective case management ensures just outcomes

Impartiality/expertise (judge/mag): however,

• risks of actual or perceived biases

• Impact on fair decision making

• Criticisms regarding diversity among judges and magistrates

• Influence on public trust and equality

Evaluation of judge/mag: case management and assistance

- significant powers in pre-trial and trial management

• Enhancing efficiency, timeliness and cost-effectiveness

• Guiding self-represented parties

• improving access in legal procedures

Case management/assistance (judge/mag): however,

• differences in how cases are managed depending on factors such as the judge, the jurisdiction, or the specific procedures in place

•may lead to inconsistencies, potentially affecting the speed of resolution and the level of support some cases receive.

• If some cases receive more proactive management while others face delays or procedural complications, it can create an uneven playing field.

Roles of the jury in civil trial

Objective decision-making, evidence analysis, understanding legal directions, deciding liability and damages, confidential deliberation and verdict

Jury roles: Objective decision making

- must remain open and impartial.

- no preconcieved bias

- no personal connection to the case

Jury roles: Evidence analysis

listens to, remembers, analyses complex evidence and facts of a civil case.

Jury roles: understanding legal directions

must understand and follow the directions given by the judge regarding legal issues and the points of law.

Jury roles: Deciding liability and damages

decides on liability and (sometimes) extent of damages

- determine the credibility of witnesses and evidence

- whether the plaintiff has established their case on balance of probabilities

- consider defences put forward by the defendant

Jury roles: Confidential deliberations and verdict

deliberations are confidential, allowing for open discussion and ensuring jurors can freely express their views

Similarities in jury crim vs civil

- impartiality in decision making

- focus on evidence

- obligations and conduct

Differences in jury crim vs civil

- decide on guilt vs liability

- standard of proof

- role in determining sanctions or damages

Strengths of jury in civil law

- impartiality and lack of bias

- community participation

- collective decision making

- representation of society

Weaknesses of jury in civil law

- unconscious biases and lack of transparency

- complexity of civil trials

- potential for delays

- limited representation

Roles of the plaintiff in a civil trial

proving facts of the case, carrying burden of proof, establishing claim against defendant

Roles of defendant in a civil trial

demonstate their defense is a valid response to plaintiff's claim, proving any counterclaims

roles of the parties in a civil trial

control and decision making in the clase, disclosure of information, evidence exchange, participation in the trial

similarities of role of the parties crim vs civil

ongoing disclosure obligations, presentation of the case, duty to the court

Difference of role of the parties crim vs civil

discovery obligations, interaction with the jury, party control in evidence presentation

Strengths of roles of the parties in civil

ongoing disclosure obligation

opportunity to present cases

control over case management

Weaknesses of roles of the parties in civil

varies familiarity with disclosure obligations

Complexity and accessibility for self represented parties

Delays and costs due to party control

Need for legal practitioners in a civil dispute

- Advise clients on their legal rights

- Present Evidence and Cross-Examine witnesses

-Provide Objectivity

-Ensure Documents are Properly drafted and handled

-Provide support

How the use of legal practitioners in achieves fairness

• ensures both parties can navigate complex legal processes

• ensures cases are presented effectively and equitably with expertise

• objectivity aids in making impartial decisions, which contributes to a fair trial

Limitations to the use of legal practitioners in achieving fairness

The variance in skill and experience level

If one party has a more competent barrister, it may lead to an imbalance in the presentation of cases

How the use of legal practitioners in achieves equality

• legal practitioners help level the playing field between parties in presenting their case effectively

Limitations to the use of legal practitioners in achieving equality

Not all legal practitioners have the same level of experience

Not everyone can afford legal representation

How the use of legal practitioners in achieves access

Guides parties through the legal process, reducing delays. Helps those daunted by the complexity and formality of the legal system

Limitations to the use of legal practitioners in achieving access

limited by high costs of legal services

Financial constraints can prevent individuals from obtaining representation

Restricts access for those who can't afford representation

class action suit

Lawsuit brought by an individual or group of people on behalf of all those similarly situated.

A class action can be commenced if:

- seven or more people have claims against the same person

- those claims relate to the same, similar or related circumstances

- the same issues need to be decided

Lead plaintiff

the person named as the plaintiff on behalf of the group members in a representative proceeding (i.e. class action)

Group members

People who are part of the class action suit with similar claims

Group member roles

- not required to instruct lawyers or pay legal fees

- not required to take an active role in the case at all

cannot be ordered to pay costs of the opposing party

- not subjected to pre-trial procedures

litigation funder

a third party who pays for some or all of the costs and expenses associated with initiating a claim in return for a share of the proceeds. Litigation funders are often involved in representative proceedings

Costs of a class action

• if a class. Action fails, then the lead plaintiff alone is responsible for the costs of the proceeding and any potential adverse costs order

• This means that people may not be prepared to be the lead plaintiff

• However, law firms will usually act on a 'no win, no fee' basis, or a litigation funder will be involved

Appropriateness of class actions

• whether there are seven or more people who have a similar claim

• Whether there is someone willing and able to be the lead plaintiff.

• Whether a plaintiff law firm or a litigation funder is prepared to fund the claim

• The nature and size of the claims. Very small claims may not be economical

Class action evaluations : Increased access to justice

- increase access to justice, especially for individuals who might not afford the costs of litigation on their own

• Group members are not responsible for the payment of any costs

Class action evaluations : Increased access to justice HOWEVER

• If the class action fails,the lead plaintiff can face significant costs

• Especially if there is no litigation funder or a 'no win, no fee' agreement

• This risk might deter individuals from volunteering as lead plaintiffs.

Class actions evaluation: efficiency in handling costs

• handling numerous similar claims through a similar lawsuit is more efficient

• saves significant court time and resources, as the court deals with on collective case rather than multiple individual ones

Class actions evaluation: efficiency in handling costs HOWEVER

• class actions are complex and can be resource-intensive

• they often require significant court resources and time, particularly large class actions, which might counteract some of the efficiencies gained.

Class actions evaluation: support from litigation funders and law firms

• the involvement of litigation funders and law firms willing too operate on a 'no win, no fee' basis removes much of the financial risk for plaintiffs

• This is particularly so for the lead plaintiff, encouraging more people to initiate class action lawsuits

Class actions evaluation: support from litigation funders and law firms HOWEVER

- litigation funders have been criticised from taking a large percentage of the total amount awarded to the group members

• This can then substantially reduce the amount paid to group members and does not reflect their actual loss

Consumer affairs Victoria (CAV)

the consumer affairs regulator in Victoria, with advisory, information, compliance and enforcement roles

Roles of CAV

Advise the government on consumer legislation

Educate people about consumer law

Enforce compliance with consumer law

Provide consumers and traders, and landlords and tenants with a dispute resolution process

Role of CAV in dispute resolution

helps people settle disputes efficiently and constructively without any cost

Assists them to agree on the resolution

Does not impose a decision

only accepts complaints from consumers and tenants

CAV is appropriate when

• if the dispute is within CAV's jurisdiction

• If the complainant has attempted to resolve their dispute independently

• Willing to cooperate, ongoing relationship

• Consumer and suppliers, and tenant and landlords

• Parties want to come to their own decision

CAV is not appropriate when

• if they want a binding decision

• If landlord or supplier

• Unequal power imbalance

• Not willing to cooperate

• Not in CAV's jurisdiction

• If matter is urgent

Strength: CAV is free

• CAV's conciliation service is free

• Increases access for all victorians, regardless of ability to pay

CAV is free, however

• CAV's role is limited mainly to.consumer and landlord disputes

• It has no power to assist with the other civil disputes

• It's ability to reduce delays in legal system is limited (access)

Strength: CAV is informal

• the conciliation process is informal

• Can be conducted over the phone

• Removes many anxieties people have with court

• Increases access and chances of a fair outcome

CAV is informal, however

• not appropriate for large and complex disputes

• Not suitable if there is a power imbalance, a history of violence or distrust

• Informality may mean a party accepts a resolution they are unhappy with

Strengths of CAV: procedural fairness

Both sides are able to present their case, and rebut the other side case