Legal Studies Unit 3 AOS 2 SAC

civil justice system

a set of processes, bodies, and institutions used to resolve civil disputes

civil dispute

a disagreement between two or more individuals (or groups) makes a legal claim against the other

remedy

any order made by a court (or tribunal) designed to address a civil wrong or breach

should include a legal solution for the plaintiff for a breach of civil law by the defendant

liability

legal responsibility for one’s acts or omissions

pleadings

a pre-trial procedure during which documents are filed and exchanged between the plaintiff and the defendant that states the claims and the defences in this dispute

statement of claim

a document filed by the plaintiff in a civil case to notify the defendant of the nature of the claim, the cause of the claim and the remedy sought

defence

a document filed by the defendant which sets out a response to each of the plaintiffs claims presented in the statement of claim; parts of the pleadings stage of a civil dispute

discovery of documents

a pre-trial procedure which requires the parties to list their documents relevant to the issues in dispute

copies are normally provided to the other party as well

civil law

an area of law that defines the rights and responsibilities of individuals, groups and organisations in society and regulates private disputes

plaintiff

the party who makes a legal claim against another person

defendant

a party who is alleged to have breached a civil law and is being sued

sue

to take civil action against another person, claiming they infringed some legal right of the plaintiff

damages

an amount of money that one party is ordered to pay another party for loss or harm suffered

lead plaintiff

the person who is named as the plaintiff in a class action and represents the group members

class action

legal proceeding where a group of at least 7 people who have a claim against the same person based on similar or related facts bring the claim to court in the name of one person

Key purposes of the civil justice system

• enable a person to enforce their legal rights or act over civil wrongs

• determine whether the defendant has liability to that person

• award a remedy where the defendant has been found liable

Process of civil disputes

• Attempt to resolve dispute

• decision to initiate a civil claim

• resolution of dispute through mediation or at trial

• remedy awarded or resolution reached

• enforcement procedures

How can employers become a party in a civil dispute?

through vicarious liability over their employees

How can kids become a party in a civil dispute?

can sue through a litigation guardian (often their parents)

Types of civil disputes

• Defamation

• Tresspass to Land

• wills and inheritance

• breach of contract

• nuisance

• negligence

Balance of probabilities

the standard of proof in civil disputes, requires the plaintiff to establish that it is more probable than not that their claim is true

burden of proof in civil dispute

falls on plaintiff

when might the defendant have the burden of proof in a civil case

when filing a counter claim or raising a defence

Ratio of balance of probabilities

51% or more :49% or less

disbursements

out-of-pocket expenses or fees incurres as part of a legal case

adverse costs order

a court order that a party pay the other party’s cost

limitation of actions

the restriction on bringing a civil claim after the allowed time

Costs of civil disputes depend on

• the complexity and size of the case, and the time it will take to resolve

• which dispoute resolution body is used

• the expertise of legal practitioners

cost factors plaintiff should consider

• how much it will cost to have the dispute resolved

• whether they have the money to pay for those costs

• whether the damages that may be awarded outweigh the costs involved in making the claim

• whether they are eligible for legal aid or free legal assistance through other means

• whether they have the money to pay for the defendant if an adverse costs order is made

• what the risks are if they are ordered to pay the other side’s costs and cannot afford to do so

reasons for limitation of actions

• defendant does not have to face action after a significant period of time

• evidence is not lost and people can still remember the facts (ensures a fair hearing)

• disputes can be resolved as quickly as possible

enforcement issues

before initiating a claim, the plaintiff needs to consider whether the defendant is able to play, and if so, whether the defendant will pay

enforcement issues factors that plaintiff should consider

• whether the defendant has assets or money to pay anything to the plaintiff (incuding whether they are bankrupt)

• if the defendant is in jail, overseas or uncontactable

resolution to enforcement issue even if defendant has financial means to pay damages

plaintiff may have to isse enforcement proceedings to force a defendant to comply with a remedy

Summary of Factors to Consider when Initiating a Civil Claim

• what are the costs involved?

• will the defendant say that the plaintiff is out of time to isse a claim?

• are there any issues with enforcing the remedy?

fairness

means all people can participate in the justice system and its processes should be open and impartial

equality

means people should be treated in the same way, but if the same treatment causes disparity or disadvantage, then adequate measures should be taken to allow all people to engage with the justice system without any disparity or disadvantage

access

all people should be able to engage with the justice system and its processes on an informed basis

Examples of Fairness in the Civil Justice System

• courts and personnel must be independent, impartial and unbiased

• hearings must be public and court judgements avaliable to the public, allowing the community, media and victims to attend court hearings

• parties should have the oppourtunity to know the case against them and present their version of the case

Examples of Equality in the Civil Justice System

• assistance to self-represented parties

• interpreters

• providing information in different ways → such as different languages or without legal jargon

• changes to court processes or allowing breaks and adjournments

• allowing different forms of oath or affirmation

Examples of Access in the Civil Justice System

• people need the means and ability to be able to use and participate in the justice system, including physical, financial, and technological access

• a range of dispute resolution methods avaliable

• people should be able to understand their legal rights and processes involved in their case, and they should be able to obtain information to make reasoned decisions

alternative dispute resolution methods

ways of resolving or settling civil disputes without a court or tribunal hearing

mediation

a method of dispute resolution that uses an independant third party to help the disputing parties reach a resolution

mediator

an independant third party who does not interfere or persuade but helps the parties in a mediation as they try to reach a settlement of the matter

terms of settlement

a document that sets out the terms on which the parties agree to resolve their dispute

conciliation

a method of dispute that uses an independant thrid party to help the disputing parties reach a resolution

conciliator

independant third party who helps the parties reach an agreement that ends the dispute between them and is an expert on the subject of dispute

can make suggestions and offer advice to assist in finding a mutually acceptable resolution, parties still reach the decision themselves

arbitration

a method of dipsute resolution in which an independant person is appointed to listen to both sides of a dispute and make a legally binding decision on the parties

arbitral award

a legally binding decision made by an arbitrator

Factors of Mediation

• two disputing parties with possible representitives

• third party = mediator; whose role is to facilitate communication between the parties

• resolution is made by the parties, voluntarily

• resolution may be enforceable if outlined in terms of settlement

• used extensively in Victorian Courts and VCAT

Factors of Conciliation

• two disputing partes, with possible representitives

• third party= conciliator; whose role is to facilitate communication between parties, and offer suggestions and solutions

• resolution is made by the parties, voluntarily- it may be on the advice of the conciliator

• resolution may be enforceable if outlined in the terms of settlement

• used primarily by VCAT and CAV

• not generally used by the Courts

Factors to Consider When Determining Whether Mediation and Conciliation are Appropriate

• whether the relationship between the parties will continue

• whether the parties are willing to meet in a spirit of compromise

• whether there is a history of violent and threatening behaviour

• whether one or both parties want privacy and confidentiality

• when the mediation or conciliation is to be held

• whether the matter is urgent

• whether there is a gross imbalance of power

Factors to Consider When Determining Whether Arbiration is Appropriate

• whether the parties have agreed to arbitrate the dispute or the claim is less than $10,000 and has been issued by the Magistrates’ Court

• whether the parties want a binding and enforceable decision made by an independant third party, or whether they would prefer to have control over the outcome and decide on the outcome themselves

• whether the parties wish to have the dispute considered by a Third Party and want evidence to be presented to that Third Party as part of the dispute

• whether both or one of the parties want the dispute to be resolved privately or confidentially or whether they want a public record about what has happened

Features of Arbitration

• two disputing parties, with possible representitives

• third party = arbitrator; whose role is to listen to the evidence and arguments of the disputing parties, then make a decision

• resolution is decided by the arbitrator

• arbitral award is legally binding

• used in the Magistrates’ Court for claims of less than $10,000, and in private and commercial disputes

Strengths of Mediation and Conciliation

• Involve an independant and impartial third party who does not take sides but facilitates the discussion and may assist the parties to reach a resolution themselves

• Much less formal than a court hearing, and therefore likely to be less intimidating, stressful and daunting for the parties

• Conducted in a safe and supportive environment, in a venue that is suitable for both parties rather than a venue like a courtroom which may be confronting or difficult to attend

• If successful, they can save a significant amount of time in waiting for a trial or hearing, can also save the costs of a full trial or hearing

• Normally conducted in private- can benefit parties who wish to keep the settlement confidential

Weaknesses of Mediation and Conciliation

• One party may refuse to attend, or may refuse to participate, in which case it may be a waste of time or money

• Decision reached may not be enforceable, or might be difficult to enforce, depending on the terms of settlement. Plaintiff will need to continue with their case anyway if the defendant fails to comply, spending more money and time on the dispute

• For high-profile disputes where the community may have interest in the outcome, there is no “open justice” or no ability to know what the outcome was, or whether the defendant admitted liability

• If the matter does not resolve, then it may be a waste of time and money. Often the parties have to spend money on legal fees preparing for and attending the negotiations only for it be unsuccessful

• Since the court is not deciding the case, one party may compromise too much, or one may be more manipulative or stronger, so the other party may feel intimidated

Strengths of Arbitration

• the decision is binding and fully enforceable through the courts- ensures certainty of the outcome

• normally held in private and will be confidential, and can be beneficial for parties wishing to avoid the publicity of a trial

• parties have control over how the arbitration is conducted by determining how evidence is to be presented and when steps are to be undertaken

• arbitrator is generally an expert on the subject matter and required to act impartially when making a binding decision

Weakensses of Arbitration

• Parties have no control over the outcome that is imposed on them by the arbitrator

• Not avaliable method if the parties have not agreed to use it, or if the claim is not a small claim in the Magistrates’ Court

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

• Can be formal if the parties have a agreed on a formal method of arbitration, adding to the stress, time and costs on both the parties i.e. if parties choose to exchange evidence during the hearing

general damages

an amount of money that one party is ordered to pay another party to compensate for losses that are not easily quantifiable (e.g. pain and suffering)

special damages

an amount of money that one party is ordered to pay another party to compensate for losses that are easily quantifiable (e.g. medical expenses or loss of wages)

reasons for court hierarchy

• administrative convenience

• appeals

Administrative Convenience in Civil Court Hierarchy

• disputes can be distributed accordingly to their seriousness and complexity

• minor disputes can be heard quickly and less expensively in the magistrate’s court

• class actions that can take longer and require judges to have greater expertise are heard in the supreme court

Grounds for appeals in civil disputes

• a point of law, where the law has been incorrectly applied

• a question of fact, whether the facts of the case had been applied appropriately to reach the decision

• the remedy awarded, the way in which the court enforced it

Civil Jurisdiction of the Magistrates’ Court

Original: up to $100,000

Appellate: none

Civil Jurisdiction of the County Court

Original: unlimited

Appellate: no appeals, unless given power under a specific act of parliament

Civil Jurisdiction of the Supreme (Trial Division) Court

Original: unlimited

Appellate: on a question of law from the Magistrates’ Court (unless order made by the chief magistrate) and from VCAT (unless presidnet of VP made the order)

Civil Jurisdiction of the Supreme Court of Appeals

Original: unlimited

Appellate:

• all appeals from a single judge of the County or Supreme Court

• on a question of law from the Magistrates’ Court when the Chief Magistrate made the order

• on a question of law from VCAT when President or VP made the order

Strengths of the role of a Judge or Magistrate in Civil Disputes

• act as an impartial umpire, oversee the trial process but do not overly interfere - no party is disadvantaged because of “side-taking” form the judge or magistrate

• experts in law, legal processes and cases, and can use this experise in managing the case and in making a decision in liability

• manage the case both before and during the trial, have significant case management powers to ensure disputes are solved in a just, efficent, timely, and cost-efficent manner

• Able to assist self-represented parties, such as explaining cross-examination processes, or explaining what discovery is

Weaknesses of the role of a judge or magistrate in resolving a civil dispute

• they are human and there are some risks that they may have an actual or apprehended bias that impacts their decision-making, such as when they are fatigued

• cultural and general diversity of judges and magistrates has previously been criticised by some which can increase distrust felt by some people in the community

• extent to which a case is managed by a judge or magistrate may depend on the case and who is overseeing it, some be less actively managed than others, or may be situations where the parties continually fail to comply with pre-trial steps by no consequences arise, which means there will be a delay in the case being heard

• cannot interfere excessively in their cases, including those involving a self-represented parties, even though the judge or magistrate is one of the most experienced in the room

case management

a method used by courts and tribunals to control the progress of legal case more effectively and efficently.

Generally involves the person presiding over the case making orders and directions in the proceeding

directions

instructions given by a court or tribunal to the parties about time limits and the way a civil proceeding is to be conducted

directions hearing

a pre-trial procedure at which the court gives instructions to the parties about time and the way a civil proceeding is to be conducted

hearsay evidence

evidence given by a person who did not personally witness the thing that is being stated to the court as true (like gossip)

court judgement

a statement by the judge that outlines the decision of the court and the legal reasoning behind the decision

Roles of the Judge or Magistrate in resolving a civil dispute

• act impartially

• case management (before trial or hearing)

• case management (during trial or hearing)

• determine liability and the remedy

• decide on costs

Judge or magistrate acting impartially in civil dispute

• must be impartial

• act independently of government and the parliament

Case management powers of a judge or magistrate in civil dispute

• given powers to ensure the just, efficent, timely and cost-effective resolution of the real issues in dispute

• include the power to give directions to parties

example of case management powers of a judge or magistrate in civil dispute

directing to the parties to complete pre-trial procedures by a certain date, or to attend mediation

judge has the power to make decisions before the trial relating to

• conduct of proceedings

• timetables ot timelines for any steps to be undertaken e.g. discovery

• particiapting in any method of dispute resolution

judge has the power to make decisions during the trial relating to

• the order to which evidence is to be given

• limiting the time to be taken by tiral

• limiting the examination of or number of witnesses

• limiting the length or duration of a party’s submissions

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

• jury matters

strengths of court hierarchy in resolving a civil dispute

• allows courts to adopt different processes and use their resources in a way that ensures cases can be resolved efficently

  • e.g. given the volume of similar cases heard in the Magistrates’ Court, there are more magistrate’s and more court venues

• allows appeal to be made by both parties if there is an error in the original decision

weaknesses of court hierarchy in resolving civil disputes

• different courts may be confusing for people who do not understand the civil justice system, especially when there are overlapping jurisdictions or for self-represented parties

• no automatic right to appeal, appeals processes are difficult to understand without lawyer, especially for appeals

when may juries be used in a civil dispute

• the plaintiff or defendant can request a jury

• the court may order that a proceeding be tried with a jury (rare)

Roles of the Jury in a Civil Dispute

• be objective

• listen and remember the evidence and not undertake their own investigation

• understand directions and summing up

• decide on liability, and in some cases, damages

Similarities between civil and criminal juries

• both are expected to be impartial and base decisions on evidence presented

• must listen to and concentrate on the evidence, can ask clarifying questions of the judge and can take notes if needed

• role of ensuring they comply with their obligations - includes ensuring they don’t undertake any external research or read anything about the case

differences between civil and criminal juries

• one decides guilt, the other decided liability

• standard of proof is different

• criminal jury will never decide on a sanction, some civil may determine the damages to be awarded to a successful plaintiff

Strengths of Civil Juries

• members are randomly picked, have no connection to the parties and make a decision based on facts, not on biases or on their own enquiries

• allows members of the jury to participate in the civil justice system processes and ensures that justice is ‘seen to be done’

• collective decision-making can reduce the possibility of bias, as it means any personal, subconscious biases can be identified during the deliberation process and addressed by the group

• juries represent a cross-section of the community- made up of a diverse group of people which can lead to the decision reflecting community views and values

Weaknesses of Civil Juries

• may have an unconscious biases or prejudices, and they do not have to give reasons for their decisions, there is no way of knowing whether a bias played a role in their decision-making

• civil trials can be complex, including directions given to the jury and particular types of civil disputes such as defamation claims

• may result in further delays as matters need to be explained to the jury, and a jury may require some time to deliberate

• number of people cannot participate in the jury because they are ineligible, excused or diqualified therefore it is possible a large secions of the community goes unrepresented

counter claim

a seperate claim made by the defendant in response to the plaintiff’s claim (usually heard at the same time in the same court)

party control

the power that each party in a legal case has to decide how they will run their case

lay evidence

evidence given by a byperson (ordinary person) about the facts in dispute

expert evidence

evidence given by an independent expert about an area in their expertise

examination-in-chief

the quesioning of one’s own witness in court to prove one’s own case and disprove the opponent’s case

roles of the parties in a civil dispute

• make decisions abut the conduct of the case

• disclose information to the other party

• exchange evidence —> expert/ lay

• participate in the trial

role of the plaintiff in a civil dispute

providing the facts of the case as they carry the burden of proof

role of the defendant in a civil dispute

responsible for proving they are not at fault

party control in a civil dispute

each party controls what claims they will make, what defences they will raise, and which witnesses they will call

disclose information to other party in a civil dispute

they must hand over key relevant documents

how parties can participate in a civil trial

• make opening and closing statements

• present the case to the judge or jury

• cross-examination of the sides’ witnesses

strengths of the parties in a civil dispute

• have an ongoing obligation to disclose and ‘discover’ all relevant documents to each other- ensures theres not surprises as to the documents that may be relevant to the issues in dispute

• both parties have the oppourtunity to present their cases, including making opening and closing addresses- also includes the oppourtunity to examine and cross-examine witnesses

• have complete control over how they run their case - not forced to do or say anything and can decide whether to make certain claims or defences, or what evidence to rely on

weaknesses of parties in a civil dispute

• some parties may be more familiar with their disclosure obligations than others

• processes involved are complex and difficult to understand without the use of a lawyer, making it difficult for self-representing parties

• party control means that the parties need time to prepare their case, and make decisions about how to run their case, which can add to delays. This can be stressful and cost money