SAC 4 Flashcards
(57 cards)
key personnel in civil trial
judge
jury (maybe)
parties
legal practitioners
role and responsibility of judge in civil
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
when is a jury used in a civil case
- one of the parties during pleading specifies they would like a jury those the court may deny
- the court orders a jury (rare)
role and responsibilities of jury in civil
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
role and responsibilities of parties in civil
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
roles and responsibilities of legal practitioners in civil
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
judicial powers of case management: power to order mediation (civil)
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
judicial powers of case management: power to give directions (civil)
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
appropriateness of the courts as dispute resolution bodies
depends on:
whether the dispute falls in the courts jurisdiction
whether there are other or better ways to resolve a dispute
strengths of courts as dispute resolution body (civil)
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
weaknesses of courts as dispute resolution bodies (civil)
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
methods to resolve disputes (3)
mediation
conciliation
arbitration
mediation
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
conciliation
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
disputes suitable for mediation and conciliation
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
disputes not suitable for mediation and conciliation
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
strengths of mediation and conciliation
much less formal and intimidating may suit parties needs better conducted in safe and supportive environment saves time and costs private and confidential voluntary
weaknesses of mediation and conciliation
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
arbitration
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
disputes suitable for arbitration
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
disputes not suitable for arbitration
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
strengths of arbitration
decision is binding and enforceable held in private parties have control over process arbitrator is expert more timely and flexible process
weaknesses of arbitration
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
remedy definition
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
