SAC 2A

parties in a civil case

plaintiff

defendant

civil dispute

a disagreement between two or more individuals in which one of the idnividuals make a legal claim against the other

liability

legal responsibility for one’s acts or omissions

remedy

an order made by the court designed to restore the plaintiff and address a civil wrong or breach by the defendant

key purposes of civil law

• enable a person to enforce their legal rights to take action over legal wrongs

• determine whether defendant has liability

• award a remedy & compensate individuals for loss

burden of proof

plaintiff

standard of proof

on the balance of probabilities

more probably than not that the plaintiff’s claim is true

factors to consider before initiating a civil claim

costs

limitation of actions

enforcement issues

costs

fees for legal rep

disbursements

adverse cost orders

fees for legal representation

• costs of engaging a solicitor or barrister - provide advice, draft court documents, advocate for client

• how much they cost depends on

  • complexity of case

  • which dispute resolution body is used

  • size of the case

• plaintiff must consider whether the cost will be more than the amount the plaintiff is seeking

disbursements

out of pocket expenses

• filing fees - cost of initiating the action

• hearing fees

• jury fee

• tribunal fees

• mediation fees

• fees for expert witnesses

adverse cost orders

• if plaintiff is unsuccessful in a claim, they will not only pay for their own legal costs, but may be ordered to pay for some of the defendant’s costs

• risk/fear of having adverse costs order could deter a plaintiff from initiating a claim

limitation of actions

restriction placed on the time within which a civil action can be commenced

once that time has passed, plaintiff may be ‘time-barred’ from seeking remedy

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

• evidence is not lost

• disputes can be resolved as quickly as possible

enforcement issues

plaintiff must consider whether defendant is able to pay a court ordered remedy or out-of-court settlement reached and whether they will pay

• defendant may be bankrupt or experiencing financial hardship and be unable to pay

• defendant may be in jail

• adefendant may be overseas or uncontactable

• if defendant is a company, whether company has any assets

• if defendant has no assets or money, whether they can access money (loans)

mediation

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

• role of mediator is to facilitate discussion between parties and encourage them to reach their own agreement

• if parties come to a decision, they may sign a terms of settlement

conciliation

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

• conciliator generally has specialist knowledge, can offer suggestions

• parties may sign a terms of settlement

disputes suitable for mediation and conciliation

• parties wish to preserve the relationship after the dispute is resolved

• parties are prepared and willing to compromise

• parties seek privacy in resolving the dispute

• parties wish to avoid costs associate with a court hearing/trial

• parties wish to remove formalities of court

disputes not suitable for mediation and conciliation

• one or both parties not willing to work together

• imbalance of powerr between parties

• dispute involves overly complex or technical legal matters

• parties are too emotional about the dispute

• matter is urgent and requires swift intervention

strengths of mediation and conciliation

• involve an independent, impartial third party who assists parties to reach a resolution themselves

• less formal than court

• conducted in a safe and supportive environment

• save time waiting for a final hearing/trial

• normally conducted in private

weaknesses of mediation and conciliation

• decision reached may not be enforceable

• one party may compromise too much or may be manipulated

• one party may refuse to attend - waste of time & money

• if matter doesnt resolve, may be waste of time and money

• no open justice for community

arbitration

a method of dispute resolution, where an independent third party (i.e., arbitrator) is appointed to listen to both sides of a dispute and make a decision that is legally binding on the parties.

• the arbitrator makes a final and binding decision - arbitral award

• parties can control process and evidence procedures

• Magistrates’ Court (less than $10000), can refer a dispute to arbitration by a magistrate

disputes suitable for arbitration

• parties have agreed to arbitrate

• plaintiff is seeking $10,000 or less, claim is filed in Magistrates Court, court will normally refer the case to arbitration

• parties are seeking a binding and enforceable arbitral award

• parties want evidence presented to a third party - subject to rules of evidence

• parties want dispute resolved privately & confidentially

disputes not suitable for arbitration

• parties are not willing to arbitrate the dispute

• parties would prefer to have control over outcome

• plaintiff wants a public record of what occurred

strengths of arbitration

• decision is binding and is fully enforceable

• held in private

• parties have control over how the arbitration is conducted

• generally an expert on subject matter

weaknesses of arbitration

• no control over outcome

• not available if parties have not agreed

• costly & time consuming

• can be formal

court hierarchy

reasons for court hierarchy

appeals

administrative convenience

court hierarchy: appeals

without a ranking of courts, there would be no process to appeal a case to higher, which would create unfairness if court incorrectly decided a civil dispute

grounds for appeal

1. appealing because of remedy

2. appealing on a question of fact

3. appealing on a question of law

leave for appeal

need the court’s permission to have your appeal heard

if you are not given leave to appeal your case will be dismissed

reasons for court hierarchy: administrative convenience

• ranking of courts in a vertical hierarchy allows cases to be distributed based on their seriousness and complexity.

  

administrative convenience: magistrates’ court

• less serious and complex (plaintiff seeking less than $100,000)

• cases are heard more quickly & lower cost

• do not require complicated forms or physical facilities

• filing & hearing fees are lower

• more magistrates and locations

• allows for better allocation of resources

administrative convenience: county & supreme court

•handle more serious and complex civil disputes, with both courts having unlimited jurisdiction.

•take longer to hear civil matters due to their complexity, and these courts can devote greater time and resources to resolve the matter.

•The hierarchical structure allows them to easily manage the allocation of time for longer, more complicated cases.

court hierarchy strengths & weaknesses

roles of the judge/magi

• act impartially

• case management (before)

• case management (during)

• determine liability & remedy

• decide on costs

judge/magi: act impartially

• no bias toward or against plaintiff or defendant (in deciding liability & exercising powers)

• no apprehended bias (perception that judge is partial)

• independent of government or parliament

• no connection to parties or case

judge/magi: case management (before trial or hearing)

Civil Procedures Act 2010 (Vic)

• judges/magis can make any order or direction they believe will help create a just, efficient, timely and cost-effective resolution of a civil dispute

eg.

• order parties to attend mediation (s.66)

• fixing timetables - imposing deadlines on the parties

• during discovery (where parties exchange relevant documents) - limit discovery to certain categories of documents

judge/magi: case management (during trial or hearing)

• limiting the time for hearing/trial

• restricting examination of witnesses

• limiting number of witnesses

• restricting number of documents used as evidence

judge/magi: determine liability & remedy

magistrates

• will decide whether plaintiff has established their case of balance of probabilities

• also determines an appropriate remedy

judges

• (if no jury) decides liability on the balance of probabilities

• (if no jury) determines remedy

judge/magi: decide on costs

• judge or magistrate will decide which party should bear the costs - can issue adverse cost order

• generally, successful party is entitled to costs

strengths & weaknesses of judge/magi

roles of the jury

• be objective

• listen to and remember evidence

• understand directions and summing up

• decide on liability (sometimes damages)

jury - be objective

• must be unbiased and put prejudice aside

• jury members have no connection to parties

• must decide liability on BOP based on fact, not bias

jury - objectively listen to and assess the evidence

• jury members must collate and make sense of evidence

• can often be difficult for ordinary laypeople to understand

• jury must not undertaken personal research

jury - understand directions and summing up

• trial judge will give directions to jury

• jury members must listen to directions & summing up

• can ask for explanation on legal point they don’t understand

jury - participate in deliberations to reach a verdict

• jury will enagge in deliberations to form an opinion on who they believe

• civil jury must try to get unanimous verdict, but court can accept majority

• confidential

• act to challenge each other to ensure no bias

jury - decide on damages

• jury will assess the amount of damages to award the plaintiff (if defendant is liable)

• in defamation cases - jury cannot decide on damages as reputational harm is too difficult to quantify

strengths & weaknesses of jury