Dispute Resolution – Resolving Disputes

Define Civil Settlement

Occurs between Plaintiff and Defendant. Focuses on compensation and restoring parties to their original position.

Define Criminal Dispute

Between Prosecution (State) and Defendant. Addresses wrongs against society, emphasising punishment and rehabilitation.

Out-of-Court

Private compromises reached before a final verdict. Saves enormous time, public resources, and emotional trauma.

What is self help? Why might it not be a good method of dispute resolution?

Resolving the issue unilaterally. Danger: Can escalate into illegal conduct.

Why might a case be abandoned?

Action stops due to high expenses, minor offences, or "straw person" defendants.

What is a plea or charge bargain?

an agreement where a defendant pleads guilty to a less serious charge, or to fewer charges, in exchange for the prosecution dropping more severe allegations or saving the time and cost of a full trial

Outline how Mediation works

Alternative Dispute Resolution (ADR) involves independent third-party intervention without resorting to judicial litigation.

Voluntary: A neutral mediator assists communication. Does not take sides, offer legal advice, or impose solutions. Either side can get up, walk out, and say, "No deal." The mediator cannot force you to agree, and they cannot make a ruling like a judge would.

Outline the process of Conciliation

Compulsory & Structured

• Conciliator active role offering advice and options.

• They can recommend a solution, but they still cannot force the parties to accept it.

• Just like mediation, it only becomes binding if both sides agree to sign the final proposal.

Outline the process of Arbitration

Binding

Closest to a trial. The arbitrator examines evidence, hears witnesses, and makes a binding, legally recognised decision.

• Listens to both sides and makes decision (award)

• Both sides sign a contract before, agreeing to whatever the arbiter decides (no walking away/appeal)

What are the advantages of Dispute Resolution?

Cost & Efficiency: Drastically cheaper and faster than formal court trials, preserving legal aid resources. 

Party-Driven Dynamics: Allows both sides to voice "their story" directly, building long-term community harmony. 

Confidentiality: Kept strictly private, avoiding reputation damage associated with public open courts.

What are the disadvantages of Dispute Resolution?

Power Imbalance: An intimidated or vulnerable party may agree to an unfair compromise without lawyer support.

Lack of Finality: Good-faith agreements (especially in mediation) are not always legally binding or enforceable.

Emotional Roadblocks: Heated personal disputes might not be reconcilable through rational, voluntary discussion.

Briefly outline the steps in resolving a Summary Offence

If an adult is charged with a summary offence, their case will stay in the Magistrates' Court. A summary offence can only go to the Crown Court if a person is charged at the same time with a more serious offence.

Briefly outline the steps in resolving an Indictable Offence

The formal path from indictment to final verdict in the District or Supreme Court of South Australia.

1. Arraignment

The information is read to the accused in open court, and the formal plea of guilty or not guilty is entered.

2. Jury Empanelling

Twelve citizens are selected randomly. Challenges are made by both prosecution and defense to ensure impartiality.

3. Case Presentation

The Prosecution presents evidence first (burden of proof). Defence cross-examines; then defense presents their case.

4. Verdict & Judge

Closing addresses are delivered. The judge sums up the law. The jury delivers a unanimous or majority verdict.

What is Bail?

An undertaking by the charged person to comply with conditions to remain at liberty until their court trial.

Why someone might be refused bail. 

Bail Refusal Factors (Judicial Discretion)

● Offence Severity: Severity and violent nature of the alleged offence.

● Risk Assessment: Probability of absconding (flight risk) or re-offending.

● Public Safety: The vital need to protect victims, witnesses, and the public.

Outline the role of the Judiciary in the Pre-Trial Procedure

Once police investigate and charge a suspect with a serious indictable offence, the accused enters the judicial custody system.

What is the purpose of a Preliminary Hearing?

a court proceeding used to decide if there is enough evidence—known as probable cause—to send a criminal case to trial. It acts as a check and balance to ensure the state has valid reasons to prosecute a person before moving forward.

What is a sentencing hearing?

Sentencing Mechanics

If convicted, the judge holds a sentencing hearing considering the Sentencing Act 2017 (SA).

What role does a victim have in court proceedings?

Victim Impact Statements

Victims have the right to read a prepared statement detailing how the crime affected them, influencing the judge's assessment of harm.

What is a pre-sentence report?

an official document prepared for a judge or magistrate after a person pleads or is found guilty. It provides background details, assesses the risk of reoffending, and helps the court choose an appropriate penalty

What is the difference between a head sentence and a non parole period?

The Custodial Breakdown

Head Sentence: Maximum time spent in jail.

Non-Parole Period: Mandatory minimum time served behind bars before eligibility to apply for supervised parole.

Outline the different types of Sanctions available in Criminal law

Incapacitation (Incarceration), Community Sanctions, Financial Penalties, and Ancillary Orders.

Explain the two grounds for appeal

Appealing against a guilty verdict:

When appealing against a guilty verdict a defendant might say: there was something unfair about the way their trial took place a mistake was made in their trial the verdict could not be sustained on the evidence.

Appealing a sentence:

When appealing their sentence, the defendant might argue their sentence is much higher than other sentences that have been imposed for that type of offending. They might also argue that the judge didn’t properly consider their personal circumstances. Sometimes they might argue their sentence should have been suspended, or that they should have been allowed to serve the sentence on home detention.

Briefly outline the different principles of Civil law

Unlike criminal law, civil law exists to resolve private disputes between citizens or corporations and allocate liability fairly.

1. Finality

A dispute cannot be re-litigated once a court decision is made and appeals are exhausted. It provides societal certainty.

2. Open & Accountable

Proceedings are conducted in public (open court) to foster public confidence and clarify legal rights for the community.

3. Procedural Disclosure

Both parties must disclose all relevant documents during Discovery. No "trial by ambush"; fairness is prioritised.

4. Adversarial Privity

Only parties with direct interest can sue (standing). They retain complete control over initiating or abandoning actions.

Briefly outline the trial procedure for Civil law.

1. Pre-Trial Pleadings

Documentary evidence exchange defines issues in dispute.

Key Instruments: Statement of Claim, Summons, Discovery

2. Standard of Proof

The plaintiff must prove liability on the balance of probabilities (more likely than not).

Judicial Evaluation: Balance of >50% certainty required.

3. Awarding Damages

● Special: Quantified economic losses (e.g., medical fees).

● General: Non-quantifiable losses (e.g., pain & suffering).

Governed by the Civil Liability Act 1936.

4. Execution of Judgement

A favorable verdict does not guarantee payment; further actions may be needed.

Legal Instruments: Warrant for Sale, Garnishee Order

Outline the two types of damages available.

● Special: Quantified economic losses (e.g., medical fees).

● General: Non-quantifiable losses (e.g., pain & suffering).

Governed by the Civil Liability Act 1936.

What are avenues that can be undertaken if damages are not paid?

In a civil matter, a judicial officer can make a decision (known as a judgment), telling one party (the debtor) to pay money to the other party (the creditor). If the debtor does not pay, the creditor can apply to the Court to enforce the debt.

The Court does not automatically enforce civil judgments. If you are the creditor and want to enforce a judgment, you must request an Investigation or Examination summons.

You cannot lodge any enforcement proceedings in Higher Court cases using CourtSA. All enforcement proceedings for Higher Court cases must be lodged over the counter at Court Services.