Roles of Key Personnel: KK6

key personnel

• judge and magistrate

• jury

• the parties

overall role of the judge or magistrate

The judge or magistrate will oversee the case, act as an ‘umpire’ or ‘referee’ at trial or hearing, and ensure that court procedures are carried out in accordance with the court’s rules to uphold fairness.

other roles of the judge or magistrate

• act impartially

• case management (before the trial or hearing)

• case management (during the trial or hearing)

• determine liability and the remedy

• decide on costs

• admissibility of evidence

• if there is a jury: judge will have to attend to the jury

role 1 - act impartially

• must exercise their powers impartially and without bias

• make a decision on liability without any bias toward or against the plaintiff or defendant

• no apprehended bias

• helps promote fairness

apprehended bias

Apprehended bias occurs when there is a perception from a reasonable observer that a judge or decision-maker may not be impartial, even if they are not actually biased.

role 2 - case management (before the trial or hearing)

under the Civil Procedure Act 2010 (vic), judges and magistrates are empowered to make any order or direction that they believe will help facilitate a just, efficient, timely, and cost-effective resolution of a civil dispute

examples of case management

• Order parties to attend mediation (section 66) – This provides the opportunity for parties to settle the entire dispute, or part of it (if multiple issues), before trial. However, the order does not require parties to reach an agreement through mediation.

• Fixing timetables – The court may impose deadlines on the parties, requiring them to complete certain tasks (such as filing a document) by a specified time to ensure the case progresses and is trial-ready.

• During discovery – The process by which parties exchange relevant documents, e.g., the plaintiff producing a contract allegedly breached by the defendant. The judge has the power to limit discovery to certain categories of documents. This avoids ‘trial by ambush’

role 3 - case management (during the trial or hearing)

a judge has the power to modify the procedure or conduct of a trial, including:

• limiting the time for the hearing or trial

• restricting the examination of witness, which may include not allowing cross-examination of certain witnesses

• limiting the number of witnesses a party can at trial, such as permitting only one expert witness rather than multiple experts on the same issue

• restricting the number of documents a party may tender as evidence, ensuring that only the most relevant and necessary documents are submitted

conflict between party control v case management

a judge’s case management control can restrict party control

• eg. may limit what evidence and amount of evidence

limits fairness - not a fair opportunity to present your case how you want to

role 4 - determine liability and the remedy: magistrate

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

• will determine an appropriate remedy to restore a party, such as awarding damages

role 4 - determine liability and the remedy: judge

• if no jury is present, the judge decides liability on the balance of probabilities by making a finding of fact

• determines the remedy, if no jury is present

• expection: remedy in defamation case are always assessed by the judge, not jury. hard for jury to assess as they do not have legal knowledge.

role 5 - decide on costs

• after each hearing in a civil case the judge or magistrates will decide which party should bear the costs - and can issue an adverse cost order

• the general rule is that the working out of the costs is left to the end, and the successful party is entitled to costs, but that is not always the case

role 6 - must decide on the admissibility of evidence

• Judges and magistrates must decide on the admissibility of evidence; that is, whether evidence can be permitted or excluded.

• Some evidence, such as hearsay evidence is generally inadmissible (i.e., witnesses can only give evidence of what they personally saw or experienced, not about what another person said or thought)

• upholds fairness

role 7 - attend to the jury

• in most civil trials, there is no jury

• however if a jury is present, the judge will:

  • give directions to the jury

  • sum up the case to the jury at the conclusion of the trial

similarities between criminal and civil law judges and magistrates

a judge or magistrate in a criminal and in a civil case;

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

• have the role of assisting self-represented parties

• have the role of instructing a jury and giving directions to the jury, if there is one in a civil case. not magistrates

differeneces between criminal and civil law judges and magistrates

• a judge in a civil trial may have to decide on liability if there is no jury, and a magistrate in a civil case will decide on the liability if the case is heard in the magistrates. however, a judge in a criminal trial in the higher courts will not decide guilt; this is left to the jury.

• A judge in a civil trial may have to decide on a remedy (and a magistrate will decide on a remedy if a party proves their claim), whereas in a criminal case a judge or magistrate decides the sanction if the accused is guilty of committing a crime.

• A judge/magistrate can order both parties to undertake procedures such as mediation and discovery. While a judge or magistrate in a criminal case also has case management powers, they do not extend to ordering procedures such as these, which are civil dispute procedures.

strengths of judges & magistrates

• judges and magistrates act as an impartial umpire. They oversee the trial process, but they do not overly interfere in a trial, nor do they ‘enter the arena’. Therefore, no one party is advantaged or disadvantaged because the judge or magistrate ‘takes sides’.

• judges and magistrates are experts in law, legal processes and cases, and can use this expertise in managing the case and in making a decision on liability.

• judges and magistrates manage the case both before and during the trial. They have significant case management powers to ensure that disputes are resolved in a just, efficient, timely and cost-effective manner. for example, they can limit discovery, or limit the time people have to take to make submissions at trial.

• judges and magistrates are able to assist self-represented parties, such as explaining cross-examination processes, or explaining what discovery is

weaknesses of judges & magistrates

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

• The cultural and general diversity of judges and magistrates has previously been criticised by some, which may increase any distrust felt by some people in the community about whether the outcome will reflect a ‘just’ outcome.

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

• judges and magistrates cannot interfere excessively in their cases, including those involving a self-represented party, even though the judge or magistrate is one of the most experienced people in the room.

when is a jury used in a civil dispute?

• the plaintiff or the defendant can specify during the pleadings stage that they wish to have the proceeding tried by a jury, though the court can still direct that the trial be without a jury if it decides a jury is not required. the party who wishes to have a jury trial must pay the applicable fee

• the court may order that a proceeding be tried with a jury, though this is rare

roles of the jury

• be objective

• listen to and remember evidence

• understand directions and summing up

• decide on liability, and in some cases, damages

role 1 - be objective

jurors are:

• unbiased and put aside any prejudices or preconceived ideas

• no connection with any parties

• must decide whether the defendant is liable, on the balance of probabilities, based on the facts, and not their own biases

role 2 - objectively listen to and assess the evidence

• jury members must collate and make sense of the evidence presented at trail by the parties

• this evidence can be difficult fot ordinary lay people to understand

• are allowed to take notes to help them remember key information throughout the trial

• cannot undertake their own investigations into the facts of the case or conduct any research online

role 3 - understand directions and summing up

• the trial judge will give directions to the jury

• jury members must listen to the directions and the summing up given by the judge

• jurors can ask for an explanation about any legal point they do not understand

role 4 - participate in deliberations to reach a verdict - liability

• the jury will engage in deliberations (in the jury room) to reach a verdict on whether the defendant liable or not liable on the balance of probabilities

  • they must also decide whether the defendant has established any defence

• a civil jury must try to reach a unanimous verdict (six out of six juorous), but the court may accept a majority verdict in all cases (five out of six jurors)

• deliberations are confidential, so that jurors can feel free to discuss the issues with each other

• also an opportunity for jurors to act as a check on eachother, in that they can challenge each other if they are making decisions based on preconceived ideas rather than on the evidence

role 5 - decide on damages, in some cases

• the jury will assess the amount of damages to award the plaintiff, if they find the defendant liable

• however, juries in defamation cannot decide on the amount of damages

  • reputational harm is difficult to quantify, this is because how much money someone’s reputation is worth is vague, and therefore, is left to the judge to assess and award damages in a defamation case as it requires legal expertise to calculate

strengths of the jury

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

• allows members of the jury to participate in the civil justice system and process and ensures that justice is ‘seen to be done’. enables them to become more informed about our civil justice system

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

• represent a cross-section of the community, leads to the decision reflecting the views and values of our society

weakness of the jury

• jury members may have unconscious biases or prejudices, and as they do not 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, therefore it is not clear whether the laypersons on a jury trial will be able to understand the legal principles involved and the evidence that is given to then make a decision based on the facts

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

• a number of people cannot participate in a jury because they are ineligible, excluded, excused or disqualified. therefore, it is possible that a large section of the community is not represented

similarities between criminal and civil juries

• both juries are expected to be impartial when making their decision, they decide based on the facts and evidence, not on preconceived ideas or prejudices

• both juries must listen to and concentrate on the evidence. they can ask ask questions of the judge and take notes if it helps them

• both juries have the role of ensuring they comply with their obligations, which include ensuring they do not undertake any outside research or read anything about the case

differences between criminal and civil juries

• the jury in a criminal trial will decide on guilt, whereas the jury in a civil trial will decide on liability

• the standard of proof is different; the jury needs to decide on guilt in a criminal trial beyond reasonable doubt, whereas in a civil trial it is a lesser standard and is on the balance of probabilities

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

roles of the parties

• prove the facts of the case - plaintiff

• make decisions about the conduct of the case

• disclose information to the other party

• exchange evidence

• participate in the trial

role 1 - prove the facts of the case - plaintiff

as the plaintiff has the burden of proof they have the role of proving that the defendant is liable on the balance of probabilities

role 2 - make decisions about the conduct of the case

• each party controls its own case and has complete control over decisions about how the case will be run, as long as the rules of evidence and procedure are followed

• know as ‘party control’

• therefore, parties make their own decisions about:

  • what claims they will make

  • what defences they will raise

  • which witnesses they will call

role 3 - disclose information to the other party

• the parties must disclose all relevant documents in the proceeding

• for example;

  • if the plaintiff claims they have suffered physical injuries, they must disclose medical records and other documents such as texts and emails to show they did in fact suffer those injuries

role 4 - exchange evidence

• to prove their case, the plaintiff and defendant will generally need to rely on evidence.

• this is particularly the case where documents are unable to speak for themselves, or where someone has to prove something that is contained within emails

types of evidence

• lay evidence: evidence (testimony) given by a layperson (an ordinary person) about the facts in dispute

• expert evidence: evidence (testimony) given by an independent expert about an area within their expertise

role 5 - participate in the trial

the parties will be required to participate in the trial. this includes:

• making opening and closing addresses. if a party is legally represented, the legal practitioner will ordinarily present the opening and closing addresses (or submissions)

• presenting the case to the judge or jury. if witnesses give evidence orally, then the barristers will ask the witnesses questions through examination-in-chief

• cross-examination of the other side’s witnesses. this will involve the barrister asking the other party’s witnesses questions, in the hope of challenging the credibility of the witness or identifying ‘holes’ or ‘gaps’ in their evidence.

strengths of the parties

• the parties have an ongoing obligation to disclose and ‘discover’ all relevant documents to each other. this ensures there are no surprises as to the documents that may be relevant to the issues in dispute

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

• the parties have complete control over how they run their case. they are 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 the parties

• some parties may be more familiar with their disclosure obligations than others; others may have less understanding of the requirement to disclose relevant documents, even those that are not helpful to their case

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

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

similarities between criminal and civil parties

• both the prosecution in a criminal case and the parties in a civil case have ongoing disclosure obligations, which require them to disclose relevant documents, even if they are detrimental to their own case

• both criminal and civil trials provide an opportunity for the parties to present their case, including allowing them to make opening and closing addresses and examine and cross-examine witnesses

• the parties in both types of trials must not mislead the court and must cooperate with each other

differences between criminal and civil parties

• the defendant in a civil case has an ongoing discovery obligation, but this does not apply to the accused in a criminal case

• as there is normally no jury in a civil trial, the parties in a civil trial will generally not have to give opening and closing addresses to the jury or consider other jury issues (such as what instructions need to be given to a jury)

• the concept of ‘party control’ does not generally extend to many parts of the criminal trial process in that the prosecutor cannot always ‘choose’ what evidence to lead or not lead in a criminal trial

key personnel principles of justice

fairness

• achieves

  • the judge, a legal expert, can ensure proceedings are just and no party is favoured over the others

  • parties have control, meaning they ensure the best evidence is presented

• doesn’t achieve

  • juries (if used) are not trained to put aside their prejudices and biases

  • the judge is unable to help unrepresented parties

  • case management powers rest with one individual, increasing the risk of bias or prejudice

  • looking for a speedy resolution may not lead to a just resolution

equality

• achieves

  • both parties receive no help from the judge

  • both parties will be treated the same, attending the same hearings and following the same directions

• doesn’t achieve

  • juries are optional - therefore not all trials the same

access

• achieves

  • identifies issues at the earliest possible point in the dispute - saving time

  • parties can be ordered to mediation, which is more cost-effective and timely than trial

• doesn’t achieve

  • not everyone can afford legal representation

  • ordering mediation may create further delays, limiting access