U3 Sac 2 Flashcards
(18 cards)
Case Management
A method used by courts and tribunals to control progress of legal cases more effectively and efficiently. This generally involves the person presiding over the case (e.g. the judge or magistrate) making orders and directions in the proceeding. This could include ordering parties to attend mediation or how much evidence is needed.
Fairness in Civil disputes
All people can participate in the justice system and its processes should be impartial and open.
Equality in Civil disputes
People should be treated in the same way, but if the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow all to engage with the justice system without disparity or disadvantage.
Access in Civil Disputes
All people should be able to engage with the justice system and its processes on an informed basis.
Burden of proof in a civil case
The responsibility of a party to prove a case. The burden of proof usually rests with the party that initiates i.e. the plaintiff in a civil case.
Standard of proof in a civil case
Standard of proof refers to the strength of evidence needed to prove a case. In civil law this is on the balance of probabilities. This means the party must prove their version of events is more probable to have occurred than not.
Factors to consider before initiating a civil claim- Costs
A party involved in a civil dispute may incur costs resolving that dispute. This costs include fees for legal representation, disbursements which is out-of-pocket expenses such as court fees and mediation fees. Costs could also include adverse court orders which is a court order that a party pay the other parties costs.
Factors to consider before initiating a civil claim- Limitation of actions
Refers to the restrictions placed on the time within which a civil case can be commenced. For most types of claims, the plaintiff will need to commence the proceeding within a certain period of time, if not they may be prevented from seeking remedy. The reason for this is because…
-The defendant does not have to face action after a significant amount of time.
-Evidence is not lost and people can still remember what happened.
A plaintiff has one year to bring a defamation claim, and six years to bring a breach of contract claim.
Mediation
A dispute resolution method. In mediation both parties sit down and discuss the issues and try to reach an agreement through negotiation and compromise.
They do this with the help of an independent mediator who encourages the parties to reach their own decision.
The resolution may be enforceable if a terms of settlement is entered into.
Conciliation
A method of dispute resolution that uses an independent third party to help the disputing parties reach a resolution. The independent third party called a conciliator will assist the parties by listening to the facts, making suggestions and assist parties in reaching a mutual agreement.
Arbitration
An independent arbitrator will listen to both sides and make a decision that is binding on the parties. The arbitrator makes the final decision. This is known as arbitral award.
Terms of Settlement
A document that sets out the terms on which the parties agree to resolve their dispute.
Reasons for a civil court hierarchy in civil cases.
Administrative Convenience-
Cases can be distributed based on its complexity and seriousness.
Minor civil disputes where the plaintiff is seeking 100k or less are heard in the magistrates court. These cases can be heard quickly and more cheaply.
The more serious and complex cases are heard in the supreme or county court. They both have unlimited jurisdiction. Class actions are only heard in the supreme court.
Appeals-
Someone who is dissatisfied with a decision in a civil trial can, if there is grounds for it, appeal to a higher court.
If there was no court hierarchy, there would be no higher court to appeal to.
The role of the judge and the magistrate
Act Impartially- The judge or magistrate must oversee the case and make decisions without any bias towards either party.
Case management- The ability of a judge or magistrate to give directions. These could include pre-trial orders such as making both parties attend mediation. The judge or magistrate during the trial can also…
-Limit the time for the hearing or trial.
-Limit the examination of witnesses.
-Limit the number of witnesses.
-Limit the number of documents used as evidence.
They also have the power to determine liability and the remedy as well as decide on costs.
Roles of the jury
-Be objective- jury must remain unbiased.
-Listen to and remember evidence
-Understand directions and summing up
-Decide on liability and some time damages- A civil jury must try to reach a unanimous verdict (6/6 jurors) or courts may accept a majority verdict (5/6 jurors)
Roles of the party and party control
-Make decisions about the conduct of the case- each party controls its own case and has complete control over decisions about how the case will be run, this is known as party control.
-Disclose information to the other party
-Exchange evidence
-Participate in the trial- includes making opening and closing addresses, presenting the case to the judge or jury, or cross examination of witnesses.
The need for legal practitioners
It is difficult for a party to present their own case in a civil trial without legal representation. They may not know how to present evidence or how to cross-examine. A party could be too emotionally invested in a case. If one party is better represented then the other this could lead to an unfair advantage and a possible incorrect outcome.
When is it appropriate to use courts to resolve a civil dispute.
-Whether the dispute falls within the courts jurisdiction- The county and supreme court have unlimited jurisdiction, however the magistrates court is limited to cases under 100k in damages being sought.
-Whether there are other or better ways to resolve the dispute such as VCAT or CAV, negotiation, mediation, arbitration.
