Roles of Key Personnel

• Aim of case management: JETCE (just, efficient, timely, cost effective)
• One role of the J/M is to Act impartially :

  • This means they must act without bias.
  • J and M are independent from government and parliament so they DO NOT make decisions in favour of political parties or in favour of a particular interpretation of the law.
  • Allows the rule of law to be upheld (no one is above the law)
• One role of the J/M is case management (before trial/hearing)

  • They become involved early on in a case being initiated with either court. 
  • This aims to ensure the JETCE resolution of the case
  • The Victorian Parliament has passed laws that allow J and M the powers of “case management” - allows J and M to do a range of things in managing a case, such as giving directions to the parties
  • Sometimes the M or J will call a directions hearing, meaning the parties get together before J or M to be given further directions.
  • Penalties can be imposed on a party who fails to comply with a court's direction. 
• Examples of directions given by J/M:

  • Limit the amount of evidence to a certain category. 
  • Instruct parties to attend mediation to help resolve the dispute. 
• One role of the J/M is Case management (during trial or hearing)

  • They have the power to: Change the order in which evidence is given (e.g. who will go first in addressing the court), Limit the examination of witnesses (e.g. they may disallow cross-examination of particular witnesses.), Limit the number of witnesses a party calls and limit the number of documents a party tenders as evidence.
  • Also generally aid jury or self represented party
• One role of the J/M is to determine liability and the remedy
• One role of the J/M is to determine the costs of a trial i.e: adverse cost order
• Strengths of the J/M:

  • Impartial umpire, they don’t take sides or overly interfere.
  • J and M are experts in law, legal processes and cases and can use this expertise to manage the case and decide liability.
  • J and M can manage the case both before and during a trial. These significant powers allow them to ensure the dispute is resolved in a JETCE fashion.
  • J and M are able to assist self-represented parties e.g. explaining what discovery is or explaining cross-examination processes.
• Weaknesses of the J/M:

  • J and M may have actual or apprehended bias
  • The cultural and general diversity of J and M has been criticised
  • Some cases may be less actively managed than others depending on the judge/magistrate, or parties may continually fail to comply with pretrial steps which can add to delays.
  • J and M cannot interfere excessively in a case even with a self-represented party, despite their level of expertise.
• The roles of the Jury include:

  • Being objective
  • Listening to and remember the evidence
  • Understanding directions and summing up
  • Deciding on liability and (in some cases) damages
• The strengths of the Jury include:

  • Juries remain impartial by: being randomly selected, having no connection to the parties, making a decision based on the acts and not their own enquiries, etc.
  • It allows jury members to participate in the civil justice system, allowing for transparency and helping members of the community be more informed about our civil justice system.
  • Collective decision-making can reduce the possibility of bias. Any subconscious bias can be addressed by others as they deliberate.
• The weaknesses of the Jury include:

  • Jury members may have unconscious bias and they do not give reasons for their decisions so there is no way of knowing whether this played a role in the final decision.
  • Civil trials are often complex. Legal principles and evidence can be difficult to understand and it may not be clear whether they understood all of this when making a decision.
  • Jury trials can result in further delays as matters need to be explained to the jury and they can take time to deliberate.
• The roles of the parties include:

  • Making decisions about the conduct of the case (ie: claims they will make, defences they will raise, witnesses they will call.)
  • Disclose information to the other party (hand over relevant documents)
  • Exchange evidence (expert or layperson)
  • Participate in the trial (opening and closing address, presenting the case to a judge or jury, including asking questions of witnesses and cross-examination
• Strengths of the parties:

  • The parties have an ongoing obligation to disclose and “discover” all relevant documents to each other. This ensures there are no surprises.
  • Both parties have an opportunity to present their case - opening/closing addresses, examining witnesses, etc.
  • The parties have complete control over how they run their case. They can choose what claims and defences to make and what evidence to rely on. Or whether they want a jury.
• Weaknesses of the parties:

  • Some parties may not understand what their disclosure obligations are e.g. they may not know they have to disclose all relevant documents, even if it is not helpful to their case.
  • It can be difficult for self-represented parties to understand these processes as they can be difficult and complex.
  • “Party control” means that the parties need time to prepare their case and make decisions about how to run it which can add delays, be stressful and cost money.