U3 AO2 2b lesson 4 court Flashcards
(20 cards)
**purpose of courts: Provide a legal setting for precedents to be established
courts are the only body that can interpret the law with the impact
purpose of courts: Provide access to trial by jury
juries can only be accessed in the County and Supreme courts. If a party wishes to have their outcome and remedy determined by an impartial group of their peers (jury of 6), the only option to do so is via the courts
purpose of courts: Provide a method to resolve class actions
Class actions are complicated, often requiring large amounts of evidence and resources since the remedy being sought by parties is significant. As a result, class actions cannot be pursued anywhere else but in courts - specifically the Supreme Court TD
purpose of courts: Provide the avenue for an appeal
if a party is dissatisfied with the outcome of a case and, if there are legitimate reasons, parties can seek leave for appeal to have the decision reviewed by a judge in a higher court - appeals are very limited in other methods (e.g., VCAT - only on point of law)
pre trial procedure for civil matters
A civil proceeding is initiated by filing a writ, a document commencing the proceedings, and a statement of claim.
discovery process
accessing alternative methods before accessing courts
courts appropriate: complex
Courts are appropriate if the matter is a legally complex issue that may require the expertise of a highly experienced adjudicator
courts appropriate: predict
Courts are appropriate when parties want the predictability of precedent
courts appropriate: jurisdiction
Courts are appropriate if the claim falls within the jurisdiction of the courts and cannot be heard at any other avenue e.g., class actions
courts appropriate: already attempted
- Courts are appropriate when parties have attempted to resolve their dispute through other means such as mediation or negotiation and these attempts have been futile in resolving the dispute
courts inappropriate: negotiate
Courts may not be appropriate if parties want to negotiate and resolve the disputes themselves with the ability to influence the outcome
courts inappropriate: complicated pre-trial procedure
Courts may be inappropriate if one or both parties may not want to deal with the complicated pre-trial procedures, the requirement for filing a claim in court and the regimented rules of evidence and procedure
courts inappropriate: cost and time
Courts may not be appropriate if the parties would prefer a less costly and time-consuming dispute resolution method
courts inappropriate: relationship
Courts may not be appropriate if parties wish to maintain an ongoing relationship with each other since the adversarial nature of courts
strength of courts: interaction between courts and parties?
Court processes allow interaction between the court and the parties. for example, pleadings provide the court with a written record of the claim, and at directions hearings, the parties can raise issues with the judge and the other side that may need to be resolved.
strength of courts: court processes
Courts use processes to ensure procedural fairness. for example, the judge can give directions and orders to ensure the dispute is resolved in a timely manner and will ensure that parties undertake procedures such as discovery which ensures both parties know the case that is put against them.
strength of courts: pre trial proceedure
Various pre-trial procedures allow the parties to reach an out-of-court settlement. This includes mediation, which the judge can order the parties to attend before trial. This can potentially save the costs, time and stress of going to trial.
weakness of courts: delays
pre- trial procedures take a long time to complete.
discovery is of documents in particular has been criticised for adding to the time it takes for a trial to be heard and determined.
judges have sometimes been criticised for taking too long to deliver their decision, and if there is a jury, the trial may take longer.
weakness of courts: complexity + cost
Many of the procedures are complex and difficult to understand without a lawyer. These include pleadings and directions, and trial procedures such as cross-examination of
witnesses.
The costs in having a dispute resolved in court may restrict access to the courts, and may jeopardise parties being treated equally because of their socio-economic status. This
includes the costs of engaging a lawyer.
weakness of courts: no win win
Courts do not allow for ‘compromise’ or ‘win-win’ situations. Their decisions determine who bears responsibility for the plaintiff’s loss, if any, and what remedy should be awarded.
comparison of dispute resolution ?
