SAC 4

Question 1

key personnel in civil trial

Answer 1

judge
jury (maybe)
parties
legal practitioners

Question 2

role and responsibility of judge in civil

Answer 2

to act as an independent and impartial umpire, ensures court proceedings are carried out accordingly and each party is treated fairly. roles are:
manage the trial
decide on admissibility of evidence
attend to the jury (if one)
determine liability and remedy
decide on costs

Question 3

when is a jury used in a civil case

Answer 3

1. one of the parties during pleading specifies they would like a jury those the court may deny
2. the court orders a jury (rare)

Question 4

role and responsibilities of jury in civil

Answer 4

makes a decision on facts it believes to be true and apply the facts of the law as explained by a judge, have no connection the parties and remain objective. role includes:
be objective
listen and remember evidence
understand directions and summing up
decide on liability and in some cases damages

Question 5

role and responsibilities of parties in civil

Answer 5

plaintiff has the burden of proof to prove their case and the defendant has to show the defence has a good answer to the claim, they have to control their case and make decisions over how it will be run. roles include
making opening and closing address
present case to judge/jury
comply with overarching obligations

Question 6

roles and responsibilities of legal practitioners in civil

Answer 6

preparing and conducting a case to ensure parties present their best possible case and achieve a just outcome. have big duty to the court and administration of justice roles are:
make and opening and closing address
present case to judge and jury
comply with overarching obligations

Question 7

judicial powers of case management: power to order mediation (civil)

Answer 7

a judge has the power to refer the parties to mediation and can either order a court officer to mediate or have mediation done privately. parties can be referred to mediation at any time and have more than one mediation. being able to order mediation can assist in the prompt and economical resolution of the case

Question 8

judicial powers of case management: power to give directions (civil)

Answer 8

civil procedure act states that a court may give directions or make an order where appropriate during proceedings and sanctions can be imposed if not complied. directions are instructions that impose obligations on parties to do something in a time limit or conduct themselves in a certain way, directions include:
conduct of proceedings
timetables + timelines
participating in a dispute resolution method (mediation)
order of evidence to be given
limiting examination of witnesses or cross examinations

Question 9

appropriateness of the courts as dispute resolution bodies

Answer 9

depends on:
whether the dispute falls in the courts jurisdiction
whether there are other or better ways to resolve a dispute

Question 10

strengths of courts as dispute resolution body (civil)

Answer 10

court hierarchy allows for convenience
provides opportunities to achieve an out of court settlement
allows parties to determine strengths and weaknesses of the other parties case
court seeks to achieve procedural fairness through proceedings
procedures and laws apply equally to all
interaction between courts and parties ensures equality and fairness

Question 11

weaknesses of courts as dispute resolution bodies (civil)

Answer 11

court system can suffer delays hindering fairness
high costs may jeopardise chances of fairness
procedures can be complex and confusing without lawyer
can be stressful and long
judges can not overly help or interfere
jurors are not experts which may hurt fairness

Question 12

methods to resolve disputes (3)

Answer 12

mediation
conciliation
arbitration

Question 13

mediation

Answer 13

is a cooperative method of resolving disputes and is a tightly structured joint problem solving process. it has two disputing parties with possible representatives, the third party is the mediator whose role is to facilitate communication between parties, the resolution is made voluntarily by the parties, resolution may be enforceable if settlement is entered into

Question 14

conciliation

Answer 14

is a process of dispute resolution involving the assistance of a third party with the aim of enabling parties to reach a decision between them, the third party does not make a decision but assists in discussions etc. the resolution is made voluntarily but may be on the advice of the conciliator and may be enforceable if settlement is entered into

Question 15

disputes suitable for mediation and conciliation

Answer 15

where relationship between parties will continue
where both parties are prepared to compromise and agree to terms
where defendant admits liability and the only discussion is on the amount to be paid
privacy and confidentiality is ideal
where matter can be resolved at an early stage

Question 16

disputes not suitable for mediation and conciliation

Answer 16

where emotions may interfere
where theres a history of broken promises
violent or threatening behaviour
one or both unwilling to meet mutual agreement
gross imbalance of power
matter is urgent

Question 17

strengths of mediation and conciliation

Answer 17

much less formal and intimidating
may suit parties needs better 
conducted in safe and supportive environment
saves time and costs
private and confidential
voluntary

Question 18

weaknesses of mediation and conciliation

Answer 18

decision may not be enforceable
one party may compromise too much
one party may be manipulative or stronger
one party may refuse to attend
matter may not be solved and need litigation anyway
may be conducted too early or late to be effective

Question 19

arbitration

Answer 19

an independent arbitrator listens to both sides and makes a binding decision on the parties, is often conducted in private and is less formal than the courts. parties have more control and are free to agree on procedure including timing and evidence. used in magistrates court for less than $10,000

Question 20

disputes suitable for arbitration

Answer 20

disputes where the parties agree and the claim is less than $10,000
disputes where the parties want a binding and enforceable award made by a 3rd party
disputes where parties want evidence presented
disputes where parties want to avoid public court

Question 21

disputes not suitable for arbitration

Answer 21

where parties have not agreed
where parties want greater control over outcome
where parties want their day in court
comfortable with more formal court rules

Question 22

strengths of arbitration

Answer 22

decision is binding and enforceable
held in private
parties have control over process
arbitrator is expert
more timely and flexible process

Question 23

weaknesses of arbitration

Answer 23

can be too formal adding to stress and time
parties have no control over outcome
can be costly and take a long time
not available unless parties agree and claim must be in magistrates under $10,000

Question 24

remedy definition

Answer 24

is a way the court will recognise a plaintiffs right. it is what a plaintiff will seek and what a court or tribunal ay award to legally end the dispute. generally a statement of claim will set out what the plaintiff wants as a remedy

Question 25

purpose of remedies

Answer 25

to restore the plaintiff, as far as possible, to the original position they were in before the wrong occurred. remedies aim to provide the plaintiff with the means to go back to how they were before they were wronged

Question 26

types of remedies

Answer 26

damages and injunctions

Question 27

define damages (civil)

Answer 27

is an amount of money awarded to the plaintiff to be paid by the defendant. the purpose of damages is to compensate plaintiff for losses suffered, types of losses could be financial, physical, mental or reputational. there are restrictions on damages on the certain amount that can be paid out.

Question 28

types of damages

Answer 28

compensatory (specific, general, aggravated)
exemplary
nominal
contemptuous

Question 29

compensatory damages

Answer 29

most common damages sought that aim to restore plaintiff to original position by compensating them for losses suffered, may not be possible for physical loss but can compensate for future loss of earnings. 3 types

specific: can be given a precise monetary value and listed
general: will be assessed by court according to wrong done and long term consequences e.g wages, job prospects, pain and suffering
aggravated: can be awarded to further compensate the plaintiff if the court believes that the defendants conduct injured the plaintiffs feelings by humiliating

Question 30

nominal damages

Answer 30

a small amount of money is paid by damages, the point is to uphold the plaintiffs rights without awarding a substantial amount of money. the plaintiff may only ask or the court may only award

Question 31

contemptuous damages

Answer 31

a court may feel that the plaintiff has a legal right to damages but not a moral right so the plaintiff doesn’t really deserve the damages. in such a situation small damages will be awarded to show contempt for the claim whilst admitting the plaintiffs right to make a claim

Question 32

exemplary damages

Answer 32

only consequence of a civil action that in some way seeks to punish the defendant in some way for an extreme infringement of rights and deter others from the same actions. are to punish or deter defendant where conducts where malicious, violent, cruel or in scornful disregard for plaintiffs rights

Question 33

injunctions

Answer 33

an injunction is a court order directing someone to stop doing a certain act or compelling someone to do a certain act. the purpose it to rectify situation caused by a person who was found to be in the wrong. their purpose is to rectify a situation

Question 34

types of injunctions

Answer 34

restrictive/prohibitive - ordering a person to refrain from undertaking an action
mandatory - ordering a person to do a particular act such as performing their part of a contract they breached

Question 35

three factors that affect the ability of the civil justice system to achieve the principles of justice

Answer 35

cost
time
accessibility

Question 36

main cost factors (civil) (3)

Answer 36

three factors are

• legal costs (reduce)
• VCAT cost (enhance)
• increased use of alternative dispute methods (enhance)

Question 37

legal costs (civil ability to achieve principles) COSTS

Answer 37

a number of costs associated with resolving a dispute such as legal representation, court costs and other disbursements such as filing and hearing fees, expert witnesses and mediation. not everyone can afford this right to legal representation which can result in unequal footing in court. although court and tribunals have an overriding obligation to ensure a fair trial by helping unrepresented parties

Question 38

VCAT costs (civil ability to achieve principles) COSTS

Answer 38

VCAT is a low cost alternative to the courts, it is intended to be quick and informal, is generally a better option for smaller claims. in most cases parties are self represented and pre trial procedures and other formalities can be avoided = greater access. but since 2013 there has been an increase in fees which can be argued has resulted in inequality.

Question 39

increased use of alternative dispute resolution (civil ability to achieve principles) COSTS

Answer 39

the availability of a number of dispute resolution methods has helped with costs associated in resolving civil disputes. generally the earlier a dispute is solved the less it costs, although this is not always true .

Question 40

legal costs relating to principles (civil cost factors)

Answer 40

fairness - if people do not have money to cover legal costs they may be forced to settle or self represent which can have unfair outcomes. a judge can help but doesn’t mean the self represented party will understand
equality - self represented parties/parties with less skilled representation can lead to unequal footing as they can’t argue their case successfully
access - costs can prohibit access to the legal system particularly courts and may deter people from submitting a claim

Question 41

VCAT costs relating to principles (civil cost factors)

Answer 41

fairness - VCAT costs remain low for most claims especially health care carders and VCAT tries to ensure fair system for everyone
equality - three tier system tries to give equal outcomes by charging more to businesses and less to health care carders
access - lost cost ensure greater access than courts, three tier system aims to help those who would be more impacted by costs

Question 42

increased alternative dispute resolution methods in relation to principles (civil cost factors)

Answer 42

fairness - using skilled third party allows both parties a say, informality allows active and safe engagement, parties take ownership thus avoided unwanted outcome
equality - third party is independent and impartial which makes the sides equal
access - cost saving can enable a party to access a wider range of methods to resolve the dispute, parties can also higher mediators or conciliators privately avoiding costs of a claim

Question 43

main time factors (civil) (4)

Answer 43

four main factors are

• court delays (restrict)
• VCAT waiting times (enhance)
• appeal processes (enhance)
• use of case management powers (enhance)

Question 44

court delays in relation to the principles of justice (civil time factors)

Answer 44

time is takes for courts to resolve disputes and can vary greatly depending on the complexity and are caused by court backlogs, pre-trial procedures and evidence gathering.

fairness: delay can impact reliability of evidence and deny fair and due process
equality: delays can seriously impact vulnerable parties by causing stress
access: delays can force withdrawal or settlement and not being able to access system

Question 45

VCAT waiting times in relation to principles of justice (civil time factors)

Answer 45

VCAT is intended to be speedier and more efficient and is generally faster.

fairness: short waiting times results in fair outcome with reliable evidence but some lists have long waiting times
equality: short waiting times can reduce risk of waiting but long lists can hurt vulnerable
access: short waiting times means people can easily access system and are not afraid to pursue a claim

Question 46

appeal processes in relation to principles of justice (civil time factors)

Answer 46

fairness: appeal must have grounds for it to be granted meaning no money is wasted on weak ones, both parties remain entitled to present arguments and appeal is determined by unbiased judge
equality: a reduction in delays can reduce impact on parties particularly disadvantaged
access: parties have greater access to appeal process without concerning themselves about oral hearings or about long delays waiting for the hearing

Question 47

use of case management powers in relation to principles of justice (civil time factors)

Answer 47

fairness: courts and tribunals can adapt processes to fit needs of parties ensuring parties can focus on resolving the dispute
equality: courts and tribunals can ensure flexibility without favour or discrimination as directions apply equally to both parties
access: case management enables greater access to courts and tribunals as there is flexibility in formalities in which rules the judge orders and time taken to undertake tasks

Question 48

main accessibility factors (civil)(3)

Answer 48

this is particularly important for vulnerable people who may need extra assistance main factors are:
barriers to communication (restrict)
lack of services in rural and remote areas (restrict)
use of representative proceedings (enhance)

Question 49

barriers to communication in relation to principles of justice (civil accessibility factors)

Answer 49

can include anything that prevents a person from receiving and understanding information, they can prevent a person understanding their rights or the methods used to resolve disputes and the processes involved.

fairness: people who are unable to communicate well one English may not understand their rights and reduces their ability to present their case in the best light possible
equality: people who can’t tell their side of the story are made unequal before the law
access: a person with little understanding of the civil justice system may abandon their case as they cannot understand how to pursue it

Question 50

lack of services in rural and remote areas in relation to principles of justice (civil accessibility factors)

Answer 50

fairness: decline or lack of services impacts a persons ability to use legal processes to ensure they put their case forward properly
equality: rural and remote areas before the law may not be equal before the law if they have unequal access to services and resources and courts/tribunals
access: inability to literally access the systems can inhibit the ability of a person to pursue their case and seek compensation

Question 51

use of representative proceedings in relation to principles of justice (civil accessibility factors)

Answer 51

fairness: people with claims are able to join a class and not be subjected to personally having to pay costs, class actions allow parties to be removed from court processes if they are unexperienced
equality: class actions are often conducted by experienced legal practitioners and law firms who can present the case in the best light possible
access: people who cannot afford are able to access justice through litigation

Question 52

recent reforms addressing cost factors

Answer 52

• introduction of 3 tier system; July 1 2016 VCAT has 3 tiers of fees: corporate, standard and health care carders meaning people with less money pay less regardless of the dispute
• use of technology assisted review (TAR) in Supreme; predictive coding to assist in discovery process and will be more efficient, cost effective and timely than a lawyer and just as accurate

Question 53

recent reforms addressing time factors

Answer 53

• introduction of Judicial Commission of vic; 2016 vic parliament passed that act that allows people to make complaints about judicial members and their conduct in relation to excessive delays. the JCV is expected to uphold higher standards with delays
• changes to high court appeal process; 2016 high court changed how it hears special leave applications for appeals meaning rather than than allowing every special leave application to have an oral hearing the high court determines if it is necessary which saves time if its not

Question 54

recent reforms addressing accessibility

Answer 54

• VLA online tool; 2017 and helps people determine whether their case is eligible for legal aid, advice and answers simple question
• use of technology; jan 2017 using technology in supreme courts to reduce costs and time and assist parties in accessing documents and information

Question 55

recommended reforms addressing costs

Answer 55

• increased use of alternative dispute resolution methods; those without a final hearing can increase access and reduce costs and delays, provides equal opportunity to present case. people may want day in court though
• more legal aid funding; increases access to legal aid ensuring equality and fairness, relieve pressure from other parts of legal system but it relies on government agreeing
• online system for small civil claims; provide greater access to resolve small claims and may avoid need for legal representation
• assistance to self represented parties

Question 56

recommended reforms addressing time

Answer 56

• improvements and increase in case management; which would reduce delays and costs and helps parties to deal with dispute and not focusing on steps but use of it varies from case to case causing inconsistency
• making enforcement of VCAT orders easier
  reduce time and costs if orders do not involve certification

Question 57

recommended reforms addressing accessibility

Answer 57

• expansion of information from VLA; enable access to info about basic legal rights and services and help non English speakers
• greater coordination between legal service providers; can ensure a whole system approach tp addressing civil disputes, allows users to be aware other available services
• publication of plain language guides and info
• improving access to interpreters