U3 AOS 2a lesson 7

Question 1

Judge

Answer 1

an independent authority who presides over a trial,
ensuring procedural fairness by overseeing all personnel and evidence - a term used in the County and Supreme Courts

Question 2

magistrate

Answer 2

an independent authority who presides over
hearings in the Magistrates’ court for pre-trial proceedure and some civil disputes

Question 3

Justice

Answer 3

a judge in a relatively superior court in the hierarchy
such as Supreme Court of Victoria - COA or High court of
Australia

Question 4

Role of judge: case management

Answer 4

A method used by the courts to control the progress of legal cases more effectively and efficiently. It generally involves the judge presiding over the case making orders and directions in the proceedings (e.g., ordering parties to attend mediation).

This is granted to the judge under the Civil Procedures Act 2010

Question 5

Role of judge: case management b4 trial

Answer 5

Giving directions to parties
This can include:

Discovery process
Attending mediation

Question 6

Role of judge: case management b4 trial

giving directions to parties

Answer 6

poses an obligation on a party or both to do something by a certain time or, specifies how a civil proceeding will be conducted.

Question 7

Role of judge: case management b4 trial

discovery process

Answer 7

ensuring parties get copies of each other’s documents that are relevant to the issues in the disputes. This could be a copy of the contract, reports, photographs, emails etc. The judge can set boundaries to ensure that these documents are only ones relevant to the dispute.

Question 8

Role of judge: case management b4 trial

attending mediation

Answer 8

a judge may order parties to attend mediation by a certain date to try and resolve the dispute.
Most matters heard in the superior court have gone through mediation prior to the trial.

Question 9

purpose of case management b4 trial

Answer 9

The purpose of this stage is ensuring that the case is ready for trial or, to determine whether the matter can be resolved prior to trial commencing to save parties time + costs.

Question 10

Role of judge: case management during trial

Answer 10

Should the matter not be resolved during the pre-trial stage, then during the trial the judge also manages the trial by:

• Limit the examination of witnesses or not allowing cross-examination of certain witnesses or time limits on examination in chief
• Hand down a ruling
• Ensuring parties who are self represented, understand their rights and obligations along with court processes by

Question 11

Role of judge: remain unbias

Answer 11

A judge or magistrate must remain impartial throughout the entire proceeding. They must not favour either party and will act as an umpire for the courtroom to oversee the case.

Question 12

Role of judge: determining liability + award remedies

Answer 12

• In the absence of a jury, the judge must determine whether the plaintiff has proven, on the balance of probabilities, that the defendant caused their injury or loss. In the Mag’ court, the Mag’ will always determine liability as juries x used
• The judge or Magistrate has the responsibility of ordering the appropriate remedy. Once a verdict is determined for the wronged party. This can be in the form of damages, injunctions, and/or other remedies.

Question 13

difference between judge and Magistrate: types of disputes

judge

Answer 13

Judges deal with more serious civil claims, where parties are seeking a large amount of damages.

Question 14

difference between judge and Magistrate: types of disputes

mag

Answer 14

Magistrates deal with less serious civil claims as the Magistrates’ Court’s jurisdiction only covers cases where the plaintiff is seeking between $10,000 to $100,000.
For claims below $10,000, a magistrate will generally refer the parties to arbitration.

Question 15

difference between judge and Magistrate: award remedies

mag

Answer 15

Magistrates are bound by precedent as they are in the lowest court and have minimal discretion when it comes to awarding remedies. They must follow the statutory restrictions on damages as well as the decisions from previous

Question 16

difference between judge and Magistrate: award remedies

judge

Answer 16

judges have more discretion than magistrates when it comes to awarding remedies

Judges are expected to exercise their judgment and discretion in accordance with the law and legal precedent.

However, if the parties request a jury, the jury may determine the amount in damages.

Question 17

strength of role Judge: fairness

Answer 17

• Independent judges and magistrates ensure trials are conducted without bias and according to rules of evidence, thus contributing to fairness as the decisions are based on law and facts alone.

Question 18

strength of role Judge: equality

Answer 18

Judges and magistrates ensure rules of evidence and procedure apply equally to all parties during a civil dispute

Question 19

strength of role Judge: access

Answer 19

Judges and magistrates case management powers, such as setting time limits for evidence and ordering mediation, minimise the cost of civil disputes and thereby, enhance the accessibility of the civil justice

Question 20

weakness of Judge role: fairness

Answer 20

Judges and magistrates rely on the parties to present all of the evidence and facts of the dispute during a trial. If parties have no legal representation. this may prevent all of the relevant facts from being presented to the court, or in their best light, thus leading to an unfair trial

Question 21

weakness of Judge role: equality

Answer 21

• Whilst judges and magistrates are impartial judicial officers, they are still subject to personal bias and may unconsciously discriminate against certain parties and personal characteristics limiting equality

Question 22

weakness of Judge role: access

Answer 22

accessing a hearing or trial presided by a magistrate or judge can be challenging due to a range of factors such as the associated high costs and time consuming nature of the proceedings.
As a result the courts and the expertise of judicial officers may be inaccessible for many members of the community.

Question 23

• diff btwn roles of crim + civ judges: Jury

Answer 23

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 liability if the case is heard in the Magistrates’ Court.

however, a judge in a criminal trial in the higher courts will not decide guilt; this is left to the jury.

Question 24

• diff btwn roles of crim + civ judges: procedures

Answer 24

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.

Question 25

* similarities btwn roles of crim + civ judges: impartiality

Answer 25

A judge or magistrate in a criminal case and in a civil case is expected to act impartially and without bias, making decisions during the case on facts.

Question 26

* similarities btwn roles of crim + civ judges: assistance

Answer 26

Both judges/magistrates will have the role of assisting a self-represented party if the accused or one of the parties in the civil dispute is not represented by a lawyer

Question 27

civil procedures act 2010 (vic) for parties

Answer 27

In Victoria, the Civil Procedure Act 2010 (Vic) is designed to ensure all civil matters are resolved in the most timely and cost-effective manner possible. This means parties and their legal representatives have certain obligations during the trial: (4) Cooperate in the conduct of the civil proceeding (S) Not mislead or deceive (9) Minimise delay

Question 28

role of the plaintiff: party control

Answer 28

the power to determine the course of proceedings by parties: * Choosing which court to bring their claim (can be dependent on amount claimed) * Choosing what evidence to present * What defences they will raise Whilst these decisions can be made by the plaintiff, it must comply with the rules of evidence and procedure.

Question 29

role of the plaintiff: participating in trial

Answer 29

* Making opening and closing addresses * Presenting the case to the judge and jury. If witnesses are used, then the barrister will ask them questions through examination in chief * Cross examination of the other side's witnesses in hope of challenging the credibility or identify holes or weaknesses in their evidence.

Question 30

role of the plaintiff and defendant : disclosing info

Answer 30

* It is the responsibility of the parties to ensure all relevant documents are presented to the courts as per the Civil Procedures Act 2010 (Vic) * The party's role to discover documents continues throughout the trial

Question 31

role of the plaintiff and defendant : disclosing info example

Answer 31

* If the plaintiff claims to have suffered physical injuries, this can be proven through medical records, text, emails, photographs of the injury

Question 32

role of defendant: party control

Answer 32

the defendant also has party control over how they wish to present their side of the case. They can: * Raise relevant evidence * Call their own witnesses *The defendant has no obligation to present defences if they believe the plaintiff has not sufficiently proven their case on balance of probabilities

Question 33

role of defendant: present defences

Answer 33

* The defendant can present defences to the judge throughout the trial as well as the jury if one is selected.

Question 34

strength of party control fairness

Answer 34

* Parties to a civil dispute have control of their own case and are responsible for deciding what facts to present and how to present them. Therefore party control contributes to fairness as parties can participate in, and have control over, the civil court processes.

Question 35

weakness of role of parties fairness

Answer 35

self-represented part may not understand which documents are relevant and therefore, may fail to disclose all relevant evidence lo the court. This may jeopardise the achievement of a fair autcome to the case where not all evidence has been assessed Self-represented parties may struggle fo anderstand how to present legal arguments and evidence in the best possible light, which may lead lo an unjust outcome

Question 36

weakness of role of parties equality

Answer 36

Not all parties are equally equipped to present their case to a judge and jury withous the assistance of legal practitioners Tf some parties such as those who are of low socioeconomic economic status may not be able to defend themselses effectively such as due to the expense of legal representation hindering equality

Question 37

strength of role of parties equality

Answer 37

*Both parties are given equal opportunity to present their case to the court, contributing to the principle of equality. Both the plaintiff and defendant must abide by court processes and procedures, achieving equality as both parties are treated the same before the law.

Question 38

strength of role of parties access

Answer 38

* Courts provide some general guidance to parties who are representing themselves, regarding court procedures, to allow them to better engage with the justice system and its processes on an informed basis, enhancing access to justice

Question 39

weakness of role of parties access

Answer 39

Institutions that promote access to justice for parties of low socioeconomic status in a criminal case such as Victoria Legal Aid, are often unable to susport parties in civil dispules, leaving defendants without legal representation, Parties without legal representation may struggle to understand their legal rights, and how to present legal arguments and evidence, limiting access to justice

Question 40

sim btwn roles of crim + civ parties : disclosure obligations

Answer 40

Both the prosecution 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.

Question 41

sim btwn roles of crim + civ parties : present case

Answer 41

* 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.

Question 42

diff btwn roles of crim + civ parties : party control

Answer 42

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.

Question 43

diff btwn roles of crim + civ parties : jury

Answer 43

* 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). 11/42 supreme court matters in Vic consisted of a jury (2022-2023)