AOS 2 Civil Justice System

• Civil law is the area of law that defines the rights and responsibilities of individuals and regulates disputes between them.
• The main aim of civil law is to remedy a civil wrong by returning the person whose rights have been infringed to their original position. This is done through remedies, often damages.
• Civil justice system is a set of methods, processes, and institutions used to resolve civil disputes. It includes dispute resolution bodies and processes such as pre-trial procedures, dispute resolution methods, bodies and remedies
• Plaintiff is the party that has the right to make the claim that their rights have been infringed. The party who commences a civil action (aggrieved party)
• Defendant is the party whom the plaintiff alleges has infringed upon their rights, has breached a civil law and is being sued by the plaintiff.
• Types of Plaintiffs, the aggrieved party, other victims (indirect victims) or insurers.
• Types of Defendants, employers (vicarious liability- responsibility of a third party for wrongful acts of another), individuals that cause the harm or loss or insurers
• A child under 18 can sue another person or group through a litigation guardian.
• The burdern of proof can either be the plaintiff or the defendant.

  • when plaintiff sues defendant, plaintiff has to show defendant was in the wrong
  • when there is a counterclaim, defendant makes a direct claim against the plaintiff and has the onus to prove
• Standard of proof is on the balance of probabilities to show defendant is liable. This means that it is more probable than not, that the plaintiff's version is the truth
• Mediation is a cooperative method of dispute resolution. It is tightly structured process in which the conflicting parties sit down and discuss the issues involved, develop opinions, consider alternatives and try to reach an agreement through negotiation.

  • Courts and VCAT can order mediation
• Outcome of Mediation is non-binding unless a deed of settlement is signed by both parties, then it becomes binding through the courts. Courts and VCAT may order mediation or parties can ask the court to refer them to a mediator.
• Role of mediator

  • trained in dispute resolution and conflict management
  • independent and impartial
  • do not interfere or make recommendations, instead act as facilitator of the conversation
• Mediation/Conciliation is appropriate when:

  • continuing relationship needs to be maintained (tenants/landlords)
  • parties are willing to negotiate the issues
  • admission of evidence
  • where facts are agreed upon and clear cut
  • parties prefer privacy and confidentiality
• Mediation/Conciliation is inappropriate when:

  • parties are highly emotional
  • parties are unwilling to discuss
  • history of violence and threats
  • power imbalance
  • when parties prefer formalities of court
• Mediation/Conciliation POJs:

  (F) = party control, but not suitable for all disputes

  (E) = legal representation is equal, but there may be power imbalances

  (A) = low-cost, informal, private, but parties may be self-represented
• Conciliation is a cooperative method of dispute resolution involving some assistance from a third party conciliator with knowledge/expertise that can give suggestions and recommendations to the parties. Non-binding.
• Arbitration is a dispute resolution method where a third party arbitrator will preside over the discussion, listen to both sides and make a binding decision called arbitral award which is binding.
• Arbitration is appropriate when:

  • parties want the benefits of a binding decision
  • evidence presented and determined by a third party
• Arbitration is not appropriate when:

  • parties want greater control ovr dispute
  • parties want their day in court
  • parties have ot agreed to arbitrate
• Arbitration POJs:

  (F) = less delays quicker resolution determination, but less avenues of appeal if parties want to appeal

  (E) = flexible process that is not bound by formal court procedures, but arbitrators base their decisions on personal perception rather than precedents

  (A) = saves time, costs for parties, but most expensive dispute resolution process
• Factors for initiating action: Costs

  • fees for legal representation, including expertise and complexity of case
  • disbursements (witness fees, court fees)
  • adverse court orders
  • legal aid
• Factors for initiating action: limitations of actions

  Restriction on the time within which a civil action can be comenced, the avenue of time of which the plaintiff must bring a case.

  • Defamation: 1 yr
  • Child abuse: no limits
• Rationale: limitations of actions

  • defendant does not have to face an action after a significant amount of time
  • evidence is not lost and people can still remember
  • disputes can be resolved quickly, achieves justice
• Factors for initiating action: enforcement issues

  does the defendant have the capacity to fufil their legal obligation to compensate the plaintiff.

  • bankrupt
  • unemployed
  • uncontactable
• Administrative convenience

  The distribution of resources according to their seriousness and complexity. Less serious heard in lower courts and more serious in higher courts. (Class actions in supreme)
• Appeals

  When a dissatisfied party can appeal their outcome/decision from a lower court to a higher court to have the matter reviewed by a higher court. Provides accountability for court decisions.

  • Point of Law
  • Question of Fact
  • Remedy awarded
• Judge/Magistrate

  • act impartially
  • case management powers
  • determine liability
  • decide on costs
• Case management allows magistrates and judges to make orders and provide directions to the parties about proceedings, with the aim of ensuring justice is delivered efficiently. (Just, timely, cost effective resolution)
• If parties do not comply with the orders from judges/magistrates, they can dismiss the plaintiff's claim, find in favour of plaintiff/defendant, reject evidence or order an adverse cost order
• Judges/Magistrates

  • power to give directions
  • control the trial
  • discovery: pretrial prrocess where each party in civil dispute obliged to share information and evidence about the case to make aware of documents and evidence
  • directions hearing: preliminary hearings take place before civil trial which judges/magistrates has authority to issue orders to ensure case is efficient.
  • power to order mediation
• Judge/Magistrate POJs:

  (F) = case management powers enable a timely resolution, but directions can be complex, leading to lack of understandings

  (E) = power apply to all cases, but judicial officers may show unbiased perceptions

  (A) = setting time limits for evidence, ordering mediation, but costs are high
• Jury

  • be objective
  • listen to and remember evidence
  • understand directions and summing up
  • decide on liability (and sometimes damages)

  Can be requested by a party during pleadings stage
• Jury POJs:

  (F) = trial by peers, independent and impartial, but complx processes and unconscious biases

  (E) = available to all parties, but burdern of the costs

  (A) = trials are conducted in plain english, but juries may not always be a true cross section of society.
• Parties

  • party control
  • discover relevant documents
  • comply with obligations/directions
• Parties POJs:

  (F) = party control, but parties may not understand how to present legal documents/evidence in the best possible light

  (E) = equal opportunity to present case, but sometimes need legal practitioners to help present

  (A) = courts can provide general guidance to aid self-rep parties, but legal institutions are limited so some defendants may not have representation
• Legal Practitioners

  Undertake the role of preparing and conducting a case on behalf of the parties.

  • barristers = present cases
  • solicitors = prepare case and relevant documentation
• Legal Practitioners POJs:

  (F) = cases can be presented in the best possible light, but depends on availability of legal aid and experience

  (E) = choice of parties, but costs and differing experience

  (A) = helps parties have a better understanding of legal processes, but costs make it less accessible
• Class actions

  when 7 or more people who have the same or similar case/circumstances against the same defendant. Lead plaintiff initiates case.

  • Litigation funders: third party that pays for some or all costs and expenses with initating a claim in return of a share of the amount recovered.
• Class actions POJs:

  (F) = managed by experienced and impartial judges in supreme court, but depends on settlement reached or if compensation is less than anticipated.

  (E) = litigation funders pay costs ensuring all individuals are ccounted for, but lead plaintiff may be unwilling to pay costs due to socioeconomic status

  (A) = socioeconomic statues accounted for, but extremely costly and third parties are often required