U3, AOS2A

Question 1

Civil justice system

Answer 1

• Is a set of methods, processes and institutions that provide mechanisms for people to assert their legal rights, and to help people resolve civil disputes.

Question 2

Who holds law-making power?

Answer 2

• States and territories

This means that they have their own system of resolving disputes, civil law, rules for resolving disputes, courts and dispute resolution bodies

Question 3

Parties in a civil dispute

Answer 3

• Plaintiff → the party who alleges their rights have been infringed and who begins legal action
• Defendant → the party that is alleged to have infringed the plaintiff’s rights in some way

Question 4

Minors

As a party in a civil dispute

Answer 4

• Minors cannot directly sue the defendant, or be a defendant.
  
  • They must have a litigation guardian.
  • Civil action is brought in the name of the litigation guardian, not the minor.

Question 5

Employers

As a party in a civil dispute

Answer 5

• Employers have vicarious liability → are responsibile for the actions of the employees under their care.
• If an employee infringes a person’s rights while acting in the course of their employment, the employer may be sued.

Question 6

Factors to consider before initiating a claim

Answer 6

• Enforcement issues
• Costs
  
  • E.g. Legal representation, disbursements, adverse costs orders
• Limitation of actions

(ECLairs)

Question 7

Enforcement issues

Answer 7

• Considerations of whether a defendant
  
  • Is able to pay
  • Is in jail
  • Can be contacted in their geogrpahical location
  • Is known by the plaintif

Question 8

Costs

As a factor to consider before initiating a civil dispute

Answer 8

• Legal representation
  
  • Costs of engaging with a solicitor or barrister can be expensive depending on the complexity and size of the case, seniority and expertise of the legal practitioner.
• Disbursements (pre-trial)
  
  • Are out-of-pocket expenses → fees paid to expert witnesses, hearing fees, filing fees and photocopying costs.
  • Fewer disbursements are seen in smaller claims.
• Adverse Costs Order (post-trial)
  
  • A court order that a party pay the other party’s costs.
  • Plaintiff must consider whether → they have the money to pay, the damages that may be awarded outweigh the costs involved in making the claim, if they are eligible for legal aid.

Question 9

Limitation of actions (LoAs)

(Define, which statute it is under, different LoAs for civil laws)

Answer 9

• Refers to the restriction placed on the time within which a civil action can be commenced.
• In Victoria the main statute that imposes limitations on actions is the Limitation of Actions Act 1958 (Vic).
• LoAs for different civil laws:
  
  • Defamation → 1 year
  • Contract law → 6 years from breach of contract
  • Personal injury (general) → 3 years

Defamation can be extended to 3 years if applied to the judge, personal injury for underlying conditions is 12 years.

Question 10

Rationale for imposing LoAs

Answer 10

• The defendant does not have to face an action after a significant amount of time
• Evidence is not lost and people can still remember what happen
• Disputes can be resolved as quickly as possible, to promote social cohesion. That is, it is in the best interests of the community that disputes be settled quickly so that they do not ‘linger’ or ‘fester’ in the community.

Question 11

Terms of settlement

Answer 11

• May be signed in mediation and conciliation if both parties want to.
• This may become a final order (and therefore legally binding) if VCAT formulates it into one.

Question 12

Mediation

As a dispute resolution method

Answer 12

• Role of the mediator is to facilitate communication and encourage the parties to reach a settlement on the matter.
• There are no rules about evidence and procedure.
• Resolution is made by the parties, voluntarily.
  
  • A terms of settlement may be signed.

Question 13

Conciliation

Answer 13

• Role of the conciliator is to facilitate discussion, suggest options and possible solutions.
• There are no rules about evidence and procedure.
• Resolution is made by the parties, voluntarily – it may be on the advice of the conciliator.
  
  • A terms of settlement may be signed.

Question 14

Arbitration

Answer 14

• Role of the arbitrator is to listen to the evidence and arguments of the disputing parties, then make a decision.
• The parties may agree on how it is to be conducted.
• Resolution is decided by the arbitrator.
  
  • The final order is known as an arbitral award, and it is enforceable.
• Used in the Magistrates’ Court for claims of less than $10 000, and in private and commercial disputes.

Question 15

Appropriateness of arbitration

Answer 15

• When the parties have agreed to arbitrate the dispute
• When the claim is less than $10,000 and has been issued in the Magistrates’ Court.
• When there is a power imbalance
• When one party may ot be open and willing to compromise
• When the parties want a binding and enforceable decision made by an independent third party
• When both or one of the parties want the dispute to be resolved privately.

Question 16

Appropriateness of mediation and conciliation

Answer 16

• When the relationship needs to be preserved (e.g. a friendship, neighbours, employee and employer)
• When the the parties are open and willing to compromise (there is no history of broken promises)
• When there is no history of violent/threatening behaviour
• When the dispute needs to be resolved privately
• When the matter isn’t urgent (as they need to wait for mediation/conciliation)
• When there is no power imbalance

Question 17

Fairness

Answer 17

• Impartial and unbiased processes:
  
  • No preconceived ideas about or ties to any parties.
  • No apprehended or real bias
• Open processes:
  
  • Civil cases should be open to the public, including the court’s judgment.
  • However, many civil disputes may be resolved in private (such as conciliation), which may not show justice as being served.
• Participation:
  
  • Opportunity to know the case against them
  • Opportunity to present their side of the case
  • No unreasonable delays in the case
  • The use of an interpreter in instances when the parties don’t understand English.

Means all people can participate in the justice system and all processes are open and impartial.

Question 18

Equality

Answer 18

• Same treatment:
  
  • Enforcing that both parties must complete the pre-trial procedures regardless of whether or not they have a lawyer.
• Different treatment:
  
  • To ensure that a self-represented party is on an even ‘playing field’ to a party who has legal representation, the judge may offer extra direction during the pre-trial procedures (i.e. pleadings).
  • E.g. Use of interpreters, providing information in a different way (e.g. language, simpler English), changes to court or tribunal processes (e.g. zoom links), different form of giving evidence (e.g. Oaths/affirmations).

Means all people engaging with the justice system and its processes should be treated in the same way, unless this causes disadvantage.

Question 19

Access

Answer 19

• Engagement:
  
  • Providing a range of dispute resolution methods (and bodies, like VCAT)
  • Physical access to the courts and other dispute resolution bodies
  • Offering technological access for those able to use it → not always accessible for the elderly, those with intellectual disabilities
  • Financial access can restrict those with limited funds available
  • Delays can impact access - particularly memories of the events may fade
• Informed basis:
  
  • Education can help those who do not understand the system or their rights. Those with low literacy are most at risk.
  • People should have access to information about their case and the processes
  • Legal services should be available to all who need to know what their rights are
  • Having adequate legal representation is the most effective way for a person

Means all people should be able to engage with the justice system and its processes on an informed basis.

Question 20

Grounds for appeal

Answer 20

• A question of law → law has been applied incorrectly. For both parties.
• A conviction → challenging the verdict and sanction imposed. Only for the offender.
• The sanction/sentence imposed → challenging the length of the sentence. For both parties.

Question 21

Civil jurisdiction: Magistrates’ Court

Answer 21

• Original: claims up to $100,000
• Appellate: none

Question 22

Civil jurisdiction: County Court

Answer 22

• Original → unlimited
• Appellate → none, unless given power by an Act of Parliament

Question 23

Civil jurisdiction: Supreme Court (Trial Division)

Answer 23

• Original → unlimited; includes class actions
• Appellate → VCAT (unless order is made by President or vice-president) and point of law from the Magistrates’ Court (unless order is made by the Chief Magistrate)

Question 24

Civil jurisdiction: Supreme Court (Court of Appeals)

Answer 24

• Original → none
• Appellate → point of law from VCAT and the Magistrates’ Court when the order is made by president the Chief Magistrate respectively, all appeals from a single judge of the County and Supreme Court.

Question 25

Appeals as a reason for the Victorian Court Hierarchy

Answer 25

• A person who is dissatisfied with a decision made in a civil trial can appeal, but only if they have grounds to do so.
• Grounds in a civil case include:
  
  • A point of law - where a law has not been followed in court,
  • A question of fact - whether the facts of the case has been applied appropriately,
  • The remedy awarded - the way in which the court enforced a right.
• [Explain point]:
  
  • Without a court hierarchy, there would be no higher court to review a decision that is being viewed as incorrect or unfair. They would be stuck with the decision as final regardless of the circumstances.
  • With a court hierarchy, it allows a more superior court with greater expertise to review the decision and rectify the issue or dismiss it.

Question 26

Administrative convenience as a reason for the Victorian Court Hierarchy

Answer 26

• The hierarchy allows cases to be distributed according to their seriousness and complexity (i.e. people know where to take their case).
• Because there are a significant number of smaller disputes in Victoria, there are a greater number of magistrates and more Magistrates’ Courts across the state.
• [Explain point]:
  
  • If smaller claims had to be heard in the higher courts along with larger claims, then they would take longer to hear. With the Magistrates’ Court hearing smaller disputes, they can then allocate resources and create processes to ensure those disputes are resolved efficiently.
  • By being part of a court hierarchy, the County and Supreme Courts can more easily manage the allocation of time for the longer, more complicated cases as they only have to worry about the fewer larger claims (which take up more time).

Question 27

Burden of proof

In a civil dispute

Answer 27

• The burden of proof refers to the responsibility that one party has to proof the facts of the case.
• Lies on the plaintiff
• Can be reversed:
  
  • When the defendant makes a counterclaim against the plaintiff.
  • When the defendant raises a defence to the claim, so they must provide evidence to support their defence when resolving the dispute.

Question 28

Standard of proof

In a civil dispute

Answer 28

• The standard of proof refers to the strength of the evidence needed to prove the case.
• In a civil dispute, the plaintiff must prove the case on the balance of probabilities → meaning that they must prove which party was most likely in the right, and which was most likely in the wrong, in a situation.
• Most liable (instead of guilt, in criminal)

Question 29

Roles of a judge or magistrate

Answer 29

• The judge acts as an impartial and independent ‘umpire’ during a trial, ensuring that the court procedures are carried out in accordance with the court’s rules and that each of the parties is treated fairly.
• Their responsibilities:
  
  • Act impartially
  • Case management (pre- and post-trial)
  • Determine liability and remedy
  • Decide on costs

Question 30

Acting impartially

(as a role of a judge)

Answer 30

• They oversee the case and make a decision without bias toward or against either party.
• They are independent of the government or parliament, so they do not make decisions in favour of political parties or in favour of a particular interpretation of the law.
• [WEAKNESS] There is risk of apprehended bias if they are fatigued as they are still human.

Question 31

Case management (pre-trial)

(as a role of a judge)

Answer 31

• They have the power to give directions to ensure just, efficient, timely and cost-effective resolution.
• E.g. In pre-trial procedures like discovery and mediation….
  
  • They can limit discovery to a certain category or categories of documents.
  • They may order the parties to attend mediation by a certain date to try to resolve the dispute before trial

Question 32

Case management (post-trial)

(as a role of a judge)

Answer 32

• They have the power to change the final hearing procedure.
  
  • E.g. changing the order in which evidence is to be given, or who will go first in addressing the court, limiting the number of witnesses that a party may call.

Question 33

Determine liability and the remedy

(as a role of a judge)

Answer 33

• They write a court judgement → a statement that outlines the decision of the court and the legal reasoning behind the decision.
  
  • The statement should be delivered in a timely manner and in a way that is accessible and readable.
• Liability and remedy is not determined by the judge in the County and Supreme Court should a jury be involved, but always in the Magistrates’ Court.

Question 34

Decide on costs

(as a role of a judge)

Answer 34

• They decide which party is awarded damages (typically the successful party).

Question 35

When a jury may be used and its composition

Answer 35

• A civil jury may be used one of two situations:
  
  • Either the plaintiff or defendant specifies during the pleadings stage that they want a jury. The party who wants the jury must pay the fee.
  • The court may order that a proceeding be tried with a jury (but this is rare).
• A civil jury is composed of six jurors, (as opposed to the 12 jurors in a criminal jury).

Question 36

Roles of a jury

Answer 36

• Be objective
• Listen to and remember evidence
• Understand directions and summing up
• Decide on liability (and in some cases, damages)

Question 37

Strengths and weaknesses of a jury

Question 38

Roles of parties

Question 39

Strengths of parties

Question 40

Comparing the role of a judge in criminal and civil law

Question 41

Comparing the role of the jury in criminal and civil law