UNIT 3 AOS2; Civil Law B

Question 1

Court Hierarchy

Answer 1

1. Supreme Court (Court of Appeal)
2. Supreme Court (Trial Division)
3. County Court
4. Magistrates’ Court

Question 2

Magistrates Court

Answer 2

• Hears claims of up to $100,000
• Hears no appeals

Question 3

County Court

Answer 3

• Hears unlimited civil claims although usually less complex than Trial Division
• No appeals, unless under a specific act

Question 4

Supreme Court (Trial Division)

Answer 4

• More complex civil claims
• Only hears appeals on a question of law from the Magistrates’ Court and VCAT

Question 5

Supreme Court (Court of Appeal)

Answer 5

• No original jurisdiction

Question 6

Reasons for a Court Hierarchy?

Answer 6

• Appeals
• Administrative Convenience

Question 7

Appeals

Answer 7

• Allows parties who are dissatisfied in a civil trial to take the matter to a higher court
• Without there would be no superior court ti review decisions of inferior courts
• Those wishing to appeal must convince courts to hear them, seek leave.

Grounds for Appeal?
- A point of law (laws have not been followed)
- A question of fact (incorrect evidence)
- The remedy awarded (lenient or not appropriate)

Question 8

Administrative Convenience

Answer 8

• Manages cases efficiently (timely and cost effective will lead to expertise being learnt)
• Court hierarchy means that cases can be distributed according to their seriousness and complexity, allows courts to allocate their resources to achieve an efficient resolution

Question 9

Roles of the Judge

Answer 9

Act impartially
- Case management (before and during)
- Determining liability
- Make a decision on costs

Question 10

Act Impartially

Answer 10

Impartial and independent referee who ensures all parties are treated fairly and equally. No advantages or disadvantages. Doesn’t know either party.

Question 11

Case Management

Answer 11

Before:
- Enforce rules of procedures and can make orders
- May order parties to attend mediation (out of court settlement)
- Discovery; order the parties to get copies of each others documents (how much time is given)

During:
- If jury instruct them on the concept of balance of probabilities being the standard of proof
- Can limit the time spent in discovery
- DECIDES THE ADMISSIBILITY (quality) OF EVIDENCE

Question 12

Determining the Liability and the Remedy

Answer 12

• If no jury, judge decides whether the plaintiff has established the case on the balance of probabilities, and if so, the quantum of damages
• Delivers a written judgement

Question 13

Make a Decision on Costs

Answer 13

Judge decides which party bears the costs of the case. In most cases, the successful party has some or all their costs covered by the unsuccessful party.

Question 14

Strengths of Judge

Answer 14

• Judges are experts in civil law, legal processes and civil cases. And can use this expertise in managing the case (discovery) and making a decision on liability (whether plaintiff has established the case on balance of probabilities).
• Judges have significant management powers to ensure an efficient and cost-effective resolution. For example they can limit time spent on discovery or limit the time people have to make submissions at trial.
• Are able to help self-assisted parties, such as explaining terms like discovery and the benefits of mediation.

Question 15

Limitation of Judge

Answer 15

• Chances of actual or apprehended bias that impacts their ability to make decisions and hand down a sentence. Such as a misjudgement on the balance of probabilities or matters on deciding who bears the costs in a case.

Question 16

Civil Judge Similarities with Criminal

Answer 16

• Both expected to act impartially, making decisions during the case based on facts.
• Both have the role of instructing a jury and giving them directions if there is one.
• Assisting self-represented parties or accuseds.

Question 17

Civil Judge Differences with Criminal

Answer 17

• ## Judges in higher courts in criminal do not decide guilt, this is always left to the Jury. Whereas in Civil it’s a decision whether a Jury is present or not.

Question 18

Roles of Jury

Answer 18

• Most civil trials do not involve a jury, only if requested by a party (who pays the jury) or if ordered by the court on rare occasions

Be Objective
- Listen to and understand evidence
- Understand judges directions and summing up
- Determine liability and remedy

Question 19

Be Objective

Answer 19

• Unbiased and open-minded
• No connections to parties
• Determine a verdict based only on facts / balance of probabilities

Question 20

Listen to and Understand Evidence

Answer 20

• Listen in court and take notes as civil cases can be complex
• Cannot do any research outside of the courtroom

Question 21

Understand Judges directions and summing up

Answer 21

• Must listen carefully to all of the instructions from the judge

Question 22

Determine liability and Remedy

Answer 22

• Decides who wins based on a balance of probabilities
• Verdict must be unanimous (6/6), although judge may accept a majority verdict

Question 23

Strengths of Jury

Answer 23

• Jury members being randomly picked with no connections to either party with civil law ensures neither party is at an advantage because of personal reasons.
• Decides who wins the case based on a balance of probabilities not their own personal opinion. This leads to a fair process that isn’t limited to subjectiveness.

Question 24

Weaknesses of Jury

Answer 24

• As civil cases are very complex, a lot of time is taken for Jurors to understand the evidence and complex information resulting in delays. Such as what the term balance of probabilities entails
• Not clear whether jury will understand legal principles involved when it’s time to determine liability since the information can be very complex.

Question 25

Civil Jury Similarities with Criminal

Answer 25

- Both expected to be impartial when making their decisions and not on preconceived ideas or prejudices. Must also not undertake any outside research as it may affect their decisions - Both must listen to and concentrate on evidence. Can ask judge questions for clarification and can take notes

Question 26

Civil Jury Differences with Criminal

Answer 26

- Jury in criminal decides on guilt, jury in civil decides on liability - Different levels of the standard of proof. Beyond reasonable doubt has higher standards than the balance of probabilities - Jury may determine the damages to be awarded to a successful plaintiff in civil, but in a criminal trial the jury never decides a sanction.

Question 27

The Parties

Answer 27

Plaintiff - Specific responsibility of proving the facts of the case Defendant - Has to prove the defence gives a good answer to the claim

Question 28

Role of the Parties

Answer 28

- Make decisions about the conduct of the case - Disclose information to the other party - Exchange evidence / participate in the trial

Question 29

Make decisions about the conduct of the case

Answer 29

Have complete control over decisions about how the case will be run, otherwise known as party control Plaintiff - Bring matter to trial or seek an out-of-court settlement Defendant - Contest the case or seek an out-of-court settlement

Question 30

Disclose information to the other party

Answer 30

- Parties hand over key relevant documents at discovery, including records if the plaintiff has suffered injuries.

Question 31

Exchange evidence / participate in the trial

Answer 31

- Lay evidence (primary source) - Or expert evidence (professional opinion about issue, such as finance or medicine) Opening and closing statements. Present case. Barristers ask questions of own witnesses (examination-in-chief) - Cross examine witnesses

Question 32

Strengths of Parties

Answer 32

- Parties have an ongoing obligation to discover all relevant documents to each other. This ensures there are no surprises to the evidence given to prove their point.

Question 33

Weaknesses of Parties

Answer 33

- 'Party control' means that the parties need time to prepare their case and make decisions about how to run their case which can add to delays. Can be stressful and cost money.

Question 34

Civil Parties Similarities with Criminal

Answer 34

- Ongoing disclosure responsibilities, disclosing relevant documents - Both parties get an opportunity to present their case, allowing them to make closing and opening statements

Question 35

Civil Parties Differences with Criminal

Answer 35

- In civil, parties don't usually have to give opening and closing statements if no jury is present.

Question 36

Need for Legal Practioners

Answer 36

- Present their case in the best possible light - Ensure parties understand their real chances of success

Question 37

Present Case in Best Possible Light

Answer 37

- Since they are experts (familiar with civil trials), can convey a quicker, beneficial trial even if procedure is complex - Need legal representation to make effective submissions of the evidence, need to understand what law to argue and what evidence to lead.

Question 38

Ensure Parties Understand their real chance of Success

Answer 38

- Looks at facts of the case and assesses the likelihood of success. - Individuals can often be misled by emotions - Counsel offered to both plaintiff and defendant Plaintiff: - Dissuade client from pursuing an unjust cause of action. And to abandon if they are in the wrong. Defendant: - advises client on consequences of failing to engage in pre-trial negotiation

Question 39

Strengths of Legal Practitioners

Answer 39

- Are experts who will be able to help parties navigate the civil justice system. Including assisting and conducting opening statements and examining witnesses as well as going to discovery. - Can help avoid delays associated with self- represented parties as participating in trial can be complex when uncovering evidence from other party.

Question 40

Weaknesses of Legal Practitioners

Answer 40

- Even if a self-represented party can afford a lawyer, this could potentially be at great expense to them or their family, especially if they lose as they can be ordered to pay the other parties legal costs.

Question 41

Costs

Answer 41

- Everyone has the right to legal representation, although not everyone can afford this right. - Court system relies on parties having good legal representation for a fair trial - Some people are forced to settle or withdraw their claims because of the costs involved.

Question 42

Costs Impact on Fairness

Answer 42

- Good legal representation is out of reach for many, therefore unable to engage appropriately - Pressured into unfair settling or less favourable outcome if can't afford legal representation

Question 43

Costs Impact on Equality

Answer 43

- Some people will have better access to advice or defence than others

Question 44

Costs Impact on Access

Answer 44

- Inadequate legal advice means reduced meaningful engagement in the system

Question 45

Measures to Address Costs

Answer 45

- Avoid significant costs by using mediation or conciliation to avoid final hearing - Earlier resolved = more money saved - CAV or VCAT - Case management powers (try to narrow the issues in dispute and ensure a cost-effective resolution

Question 46

Time

Answer 46

- Quick and efficient = fairness - If dispute is lengthy then it can become increasingly unfair to one or more parties - Time depends on complexity of case - Delays can cause stress and wasted time

Question 47

Time Impact on Fairness

Answer 47

- Delays of months or years have a significant impact on the life, physical and mental health of the parties and their families - Quality of evidence degrades over time

Question 48

Time Impact on Equality

Answer 48

- Delays will not impact on every person in the same way

Question 49

Time Impact on Access

Answer 49

- Delays can encourage parties to settle in a way that derives them justice; parties may also exhaust their funds before the end of the case and lose their ability to properly represent themselves

Question 50

Measures to Address Time

Answer 50

Case Management: - Used at courts, significant modification of procedure rules such as discovery and evidence preparation - Pro-active judge narrows the issues in dispute The Courts - Orders parties to attend mediation or some other form of cost efficient dispute resolution - Limit discovery - Restrict time for final hearings Other Measures: - Court increasingly using online methods to resolve dispute, including hearings and even mediation online

Question 51

Remedy

Answer 51

An order made by court designed to address a civil wrong or breach. It is what is sought and awarded to end civil dispute. - Remedies awarded income and damages and injunctions

Question 52

Purpose of Remedies

Answer 52

To provide a legal solution to the plaintiff and attempt to restore the plaintiff to their original position prior to the breach of their rights.

Question 53

Remedy Examples:

Answer 53

- Damages - Injunctions

Question 54

Damages

Answer 54

Is an amount of monetary compensation awarded to the plaintiff to be paid by the defendant

Question 55

Damages Purpose

Answer 55

Is to compensate the plaintiff for losses suffered. Includes financial loss, physical or mental loss and reputational loss

Question 56

Compensatory Damages

Answer 56

Aim to restore the party whose rights have been infringed as far as possible to the position they were in before the infringement, compensating them for losses -> Specific -> General -> Aggravated

Question 57

Specific Damages

Answer 57

Bills, easy to calculate / quantify. - Returns plaintiff to original financial position. Reflects the financial loss endured by the plaintiff

Question 58

General Damages

Answer 58

Some money as compensation to recognise harm suffered. Stuff that is difficult to quantify, the mental and physical impacts. - Although cannot value the pain suffered

Question 59

Aggravated Damages

Answer 59

Suffered humiliation but not defamation, loss of reputation. - Does not reverse humiliation, insult and hurt feelings

Question 60

Injunctions

Answer 60

Court orders directing someone to stop doing a certain act or compelling someone to do a certain act

Question 61

Purpose of Injunctions

Answer 61

Aims to rectify or fix a situation caused by the wrongdoings of the defendant

Question 62

Mandatory Injunctions

Answer 62

The defendant is forced to start / complete an action to benefit the plaintiff - Change occurred too late to save the plaintiff from suffering harm through the defendants' inaction

Question 63

Restrictive Injunctions

Answer 63

The defendant must stop doing an action, preventing harm to the plaintiff. Refraining. - Harm may have already occured