The Victorian Civil Justice System SAC2B Flashcards
(53 cards)
What are judical case management powers
power/ abilities that judges have in order to manage a case within civil law to ensure that costs and delays are reduced
purposes of judical case managment powers
- parties are req to consider ADR
- resolution is in a more timely manner
-resolution is cost effective
-courts resources are prioritized for cases x resolved w/o lit
JUDICAL POWER
ordering that parties attend compulsory mediation
judge make an order referring a civil proceeding to attend mediation. most sup crt cases have attended mediation before trial
- promotes an efficent and cost eff dis res
- judge can order matter referred to med
- crt can order associate judge act as mediatior
-more than one session may be ordered if prospects that further med may resolve the dispute
JUDICAL POWER
ordering parties attend a directions hearing
judges can give directions to parties that they believe is app in resolving the dispute
eg. filling doc by certain date, attend crt on certain date, limits on evidence
what is a direction
instruction by crt that imposes obligation on party to do something within a certain time
examples of pre trial directions
timeline for parties for any steps eg on medical reports
participate in ADR
limit scope of evidence eg to part area or only prof testimony
allow amending pleading
examples of during trial directions
placing an order on evidence - who goes first in evid/ adress court
limit time taken by trial
limit exam of witn
limit number of witn
limit length of parites submissins
limit no of doc into evidence
mediation
impartial third part helps parties to identify the issues in dispute and facilitates discussion of possible solutions but parties make final decision
used in SMAH of VCAT, Mag crt, CC and sup crt
mediation features
third party is indep and impartial that facilitates discussion b/w parties
confidential
voluntary
x lbd
outcome may x be reached
med X make suggestions re outcomes or decision
mediator ensures cooperative and civ approach but may or may x expertise in matter
mediation appropriate
-a party is limited by costs b/c med avoids trial costs
-mediation = faster/ quicker than trrial
-winwin solution as less adversarial and allows both parties to try and resolve dispute= contorl over outcome
-informal atmosphere= less stress
-ongoing relationship is req b/c less adv and inforaml
conciliation
impartial third part listens to both sides and suggests ways that can resolve
used in cav, vcat, mag crt, cc and sup crt
concilation features
third party listens to evid and arg
third party = concilator
conc = has legal expertise in area
conc= suggest solutions but cannot force part to reach agreement
x lbd
outcome may x be reached
conciliation appropriate
legal complexity blc conc has legla expertise
parties are willing and cooperative
desire low costs b/c x length proc = less costs
informal atmosphere = less confronting
maintian r/ship
conciliation inappropriate
power imbalance
parties want courts formality or jury
unlikely to reach or agree on decision and t/f may prolong resolutions may engage w courts
want lbd
arbitration
3rd party listens to evid and arg presented by both parties and makes a descion that is legally binding
use din vcat, mag crt compulsory arb if less than 10 000, county and sup crt
arbitration features
arbitrator is indep impartial 3rd party
arbitrator resolve dispute by listening to arg, evid etc and make decision in favor of one party
arbitration may be voluntary or court ordered
contracts may feature arbitration as method to resolve
legally binding’
provides certainty
limited rights to appeal
arbitration appropriate
provides a binding and final decison
minor disputes less than 10 000
costs b/c lower than courts and less formal enviro
parties benefit from expertise and advice of arb
arbitration inappropriate
complex evidence is required
win-lose scenario
requires an interpretation of law or legal ruling b/c limited right to appeal
costs are factor b/c can be expensive w legal rep
judical determiantion
formal process whereby mag, judge, vcat president or vicepres makes a legally binding decision enforceable by courts by listening to evid and arg
judicial determination appropriate
complex evidence or areas of law are involved
a power imbalance exists b/w parties
mediation or conciliation has been unsuccessful
parties rely on formality and strict rules of the courtroom
parties would like a transparent outcome/decision made by judicial officer
judical determination inappropriate
cost is a barrier for parties
an ongoing r/ship is required
other alternative methods of resolution have not been attempted
parties may feel intimidated or overwhelmed by a public court environment
parties would prefer a discrete outcome as a public outcome may draw media attention and discredit image
judicial determination features
a formal process whereby matter is det by mag, judge or vcat pres or vicepres
involves lengthy and complex pre trial pro
may involve jury
legally binding decision and enforceable
public and published decision
strict rules of procedures and evidence
legal representation
leave for appeal can be granted based on nature of application
remedies
award by court in order to return the plaintiff (usually) to their original position prior to harm and infringement occurred
damages
sum of money ordered by court for defendant to pay the plaintiff in order to restore them to their original position
