U402 Part B civil procedures and the jury system

P A R T B C I V I L P R O C E D U R E S & T H E J U R Y S Y S T E M

C H A P T E R S 9 , 1 0 & 1 1

U N I T 4 R E S O L U T I O N & J U S T I C E

Area of Study 2 Court Processes & Procedures &

Engaging in Justice

Outcome U402 Part B

! You should be able to explain the processes and procedures for the resolution of criminal and civil disputes, and evaluate their operation and application, and evaluate the effectiveness of the legal system

Key Knowledge

!  Elements of an effective legal system: entitlement to a fair and unbiased hearing, effective access to the legal system and timely resolution of disputes

!  Supreme Court pre-trial procedures, including pleadings, discovery and directions hearings and the purposes of these procedures

!  The purpose of civil remedies !  Types of civil remedies, including damages and injunctions !  Problems and difficulties faced by individuals in using the legal system !  Recent changes and recommendations for change in the legal system designed

to enhance its effective operation !  Role of juries, & factors that influences their composition !  Strengths and weaknesses of the jury system !  Reforms and alternatives to the jury system

Key Terms

!  Civil action !  Civil law !  Damages !  Defendant !  Directions hearing !  Discovery !  Injunction !  Interrogatories !  Notice of appearance !  Plaintiff !  Pleadings !  Remedy !  Statement of claim !  Statement of defence !  writ

•  challenge for cause •  disqualified jurors •  excused jurors •  foreperson •  hung jury •  ineligible jurors •  jury •  majority verdict •  peremptory challenge •  unanimous verdict •  Alternative dispute resolution •  class action •  collaborative law •  Justice Statement 2 •  legal aid •  representative proceedings

C H A P T E R 9

I N T R O D U C T I O N T O C I V I L L A W B R I N G I N G A C I V I L A C T I O N

S U P R E M E C O U R T P R E - T R I A L P R O C E D U R E S T R I A L P R O C E D U R E

A P P E A L S E F F E C T I V E N E S S O F C I V I L P R O C E D U R E S

Civil Procedures

Introduction to Civil Law

Standard of Proof – Balance of Probabilities

Burden of Proof – lies with the Plaintiff

Civil Disputes

Bringing a Civil Action

!  Main reason for bringing a civil action is that the plaintiff wishes to be compensated for the wrong they have suffered, often by the way of receiving a remedy in the form of damages

!  Bringing a civil action is also known as ‘issuing proceedings’ or ‘suing’

Supreme Court Pre-Trial Procedures

!  Purpose: !  Inform both parties of the details of the case !  Exchange documents !  Inform defendant that legal action is being taken against them !  Offer out-of –court settlement opportunities !  Clarify issues !  Prepare case

!  Stages !  Pleadings !  Discovery !  Directions Hearings


!  Pleadings Definition •  Documents filed with the court and exchanged between parties so

that the details of the claim be known

Purpose •  Encourage out-of –court settlement, make sure that both parties are ready for trial and limit the area of the dispute by encouraging them to agree on as many points as possible

Details •  Pleadings commence when the plaintiff files a writ. A statement of claim is usually attached •  The defendant gives notice that they will defend the action by filing a notice of appearance and a statement of defence. A counterclaim may also be made by the defendant. •  Pleadings may conclude with a reply


!  Discovery

Definition •  Both parties give complete and honest disclosure of all their evidence

Purposes •  To encourage out-of-court settlement by showing each party the strength of the other side’s case •  To minimise surprises for each party once the trial starts

Details •  Interrogatories are detailed written questions about the other side’s evidence •  Each party will supply a list (affidavit) of their evidence, and must give the other side copies of anything they request. This is called ‘discovery of documents’.


!  Directions Hearings

Definition •  Hearings conducted with the judge who will try the case, where issues of law can be settled and an efficient timetable can be set for the trial

Purpose •  To identify whether there is any final chance for out-of-court settlement. •  To speed up the resolution if the case does proceed to trial.

Details •  The judge may refer the parties to mediation with or without their consent. •  Parties should estimate the number of witnesses they will call, and highlight any problems with the witnesses’ availability

Effectiveness of Pre-Trial Procedures

Strengths Weaknesses Provide parties with various opportunities to reach an out-of court settlement

Long and complex

Allows parties to determine the strengths and weaknesses of each others case

Cost be high particularly in the discovery stage

Allows parties to determine whether it is worthwhile proceeding with their case

Stressful and inconvenient

Provides the court with information about the case before it begins, leading to a quicker trial

Complex and often require legal representation

Might result in some issues being conceded by the parties thereby saving court time in trial

Lengthy process leads to delay in damages and availability of witnesses

Supreme Court Trial Procedures

!  You are not required to have a detailed understanding of the processes and procedures followed in court during a civil trial.

!  However, an understanding will be beneficial in understanding rules of procedure in the adversary system of trial

!  See handout …

Remedies

Name Description Purpose

Damages •  A sum of money paid to the successful plaintiff by the defendant

•  Compensatory damages aim to return the plaintiff to the position they were in before the harm occurred. Can be specific, general or aggravated •  Nominal damages aim to make a point of being lawfully right •  Contemptuous damages aim to show a legal right to damages but not a moral right •  Exemplary/Punitive damages aim to punish the defendant for their wrongdoing

Injunction •  A court order compelling the defendant to do something or stop doing something

•  Mandatory injunctions force the defendant to do something to repair the harm •  Restrictive injunctions compel a defendant to stop doing something, often to prevent further harm

Civil Appeals

Court Appellate Jurisdiction

Magistrates’ Nil

County Nil

Supreme •  Magistrates’ on point of law •  VCAT (excluding President or Vice President cases)

Court of Appeal •  County and Supreme on points of law, points of fact or amount of damages •  VCAT (President or Vice President) •  Applications for new trials •  Applications to set aside decisions •  Cross-appeals (decisions made on appeal)

Effectiveness of Civil Procedures

Fair and unbiased hearing

Processes for

•  Both parties are on an equal footing in the case due to exchange of documents

•  The rules of evidence and procedure ensure that both are treated equally

•  The existence of an impartial and unbiased judge, magistrate and jury helps to uphold fairness

Processes against

•  The complicated an extended pre-trial stages in civil cases necessitate the use of legal representation.

•  They may appear to be inconsistencies in the damages payouts causing unjust outcomes


Accessibility

Processes for:

•  Case heard by experts who are specialised in their field

•  Option to appeal

•  Tribunals such as VCAT

•  Increased use of ADR methods provide low-cost access to dispute resolution

Processes against:

•  Potential litigants may not be aware their rights have been infringed

•  High costs associated with court fees and legal representation as well as the steady increase as the case develops up the hierarchy limiting appeal options


Timely resolution of disputes

Processes for:

•  Many opportunities for out-of-court settlements

•  Issues are clarified prior to trial

•  Directions hearings speed up the processes and set time limits for further stages

Processes against:

•  Delays can occur in initial stages with hesitation to pursue a case

•  Lengthy pre-trial procedures add to the delay resolving dispute

•  Increased workload in courts

•  Lack of sufficient court resources

C H A P T E R 1 0

R O L E O F T H E J U R Y C O M P O S I T I O N O F J U R I E S

S T R E N G T H S & W E A K N E S S E S O F J U R Y R E F O R M S T O T H E J U R Y S Y S T E M

E F F E C T I V E N E S S O F J U R Y S Y S T E M

The Jury System

Role of the Jury

A jury is a random selection of people

from the community, who give parties a trial by their peers

They listen to, and try to understand, the law as explained to them by

the judge

They decide the facts of the case and apply the

facts to the law to see if the case has been proved to the standard

of proof

They reach a unanimous or majority verdict, and in most civil cases they decide the amount of

damages

They listen to and weigh up the evidence

and arguments put by each

side, with an impartial and

unbiased mind

Composition of Juries

!  A questionnaire is sent to everyone enrolled to vote for the House of Representatives

!  Selecting a jury pool:

Disqualified: If they have done something in the past that makes them inappropriate (e.g. being in jail for more than 3 years), they will be disqualified

Ineligible: If their job is too closely connected to the legal system or they cannot perform the task of juror, they will be ineligible

Excused: If they fit a certain criteria for hardship or can make a valid request, they may be excused

Liable: Anyone left will be liable for service and will receive a date to attend court. Failure to attend may result in a fine or imprisonment

Empanelling a Jury

Potential jurors may be sent to a courtroom that needs a jury

The judge will give them information about the case such as key witnesses. Potential jurors can ask again to be excused.

If they are not excused and their name is picked, they are empanelled on the jury unless one of the parties makes a challenge against them

Peremptory challenge: 6 (criminal) or 3 (civil) per party,

with no reason given

Challenge for cause: Unlimited, but the judge must accept the reason

This continues until 12 (criminal) or 6 (civil) jurors are empanelled

Comparison of criminal jury and a civil jury

Feature Criminal Civil

Jury Present Compulsory in County Court and higher

Optional

Number of jurors 12 (up to 15) 6 (up to 8)

Empanelment Six peremptory challenges and unlimited for cause challenges

Three peremptory challenges and unlimited challenges for cause

Differences in Role of Jury

•  Find accused is guilty or not guilty beyond reasonable doubt •  Unanimous decision not met within 6 hours 11:1 majority acceptable

•  Find for either the plaintiff or the defendant on the balance of probabilities •  Unanimous decision not met within 3 hours 5:1 majority acceptable •  Added role of deciding on the amount of damages awarded to the plaintiff if they find for them.

Strengths & Weaknesses of the Jury System

Strengths Weaknesses

•  Trial by peers •  Independent and impartial •  Community values •  Community participation •  Intelligible •  Decision-making is spread •  Guard against misuse of power •  Take role seriously

•  Not necessarily a true cross-section •  Preconceived ideas or bias •  Influenced by media •  Lack of ability recall evidence presented •  Unfamiliar with rules of evidence and legal procedure •  Do not give reasons for their decision •  Increase in cost and length of a trial •  Make wrong decision

Recent Reforms to Jury System

!  Extra jurors !  Majority verdicts !  Making the jury more representative !  Jurors not allowed to make their own enquiries

NOTE Be sure to know the differences between a recent reform, suggested reform and an alternative

Suggested Reforms to the Jury System

Future Reforms •  Appoint a specialist foreperson such as lawyer, ex-judge or expert in the field to advice the jury in complex cases •  Make the jury give written reasons for their decision, showing they understand the law and evidence •  Allow the jury to return a ‘not proven’ verdict that would delay the trial to gather more evidence

Alternatives •  Replace the jury with a panel of judges • Replace the lay-person jury with a professional jury of people trained by the state to be jurors • Have very complex cases heard by professionals in the field. For example, medical negligence cases heard by a panel of doctors

Effectiveness of the Jury System

Element of an effective system

Processes for Processes against


•  Jury selection process ensures independence and impartiality •  Once empanelled jurors must disclose any connection with case/witnesses ensuring unbiased hearing •  Challenge process allows biased jurors to be removed

•  Some jurors may be influenced by media or personal bias •  Some groups within society are unrepresented (e.g. Aboriginal people) •  Jurors may not understand the nature of the law/courts

Accessibility •  In criminal cases the cost of a jury is on the state

•  In civil cases the cost of a jury is on the plaintiff (range $560 - $810 a day)


nil •  Empanelment is time consuming •  Questions of law delay trial •  Jury deliberations time consuming

C H A P T E R 1 1

F A I R A N D U N B I A S E D H E A R I N G A C C E S S I B I L I T Y

T I M E L Y R E S O L U T I O N O F D I S P U T E S P R O B L E M S / D I F F I C U L T I E S I N L E G A L S Y S T E M

R E F O R M S T O L E G A L S Y S T E M

Effectiveness of Legal System (summation)

Effectiveness of the legal system

Element Meaning Ways it is achieved Fair and unbiased hearing

•  Nature justice means a fair and equal chance to present your case, with a decision based on evidence only

•  Independence of the judiciary •  Strict rules of evidence

Accessibility •  People need to have the time, money, knowledge and physical access to resolve disputes

•  Tribunals •  County court sittings •  Legal Aid •  Interpreters


•  Disputes must be resolved in an appropriate time •  Parties also need adequate time to prepare

•  Case management •  Pre-trial procedures •  ADR

Problems/Difficulties with Legal System


•  Increasing media reporting on trials can influence jurors •  Important evidence can be excluded on technicalities by experienced barristers

Accessibility •  Strict merit test for Legal Aid usually requires the defendant to plead guilty to get funding •  Free interpreters have been removed from the County Court and the Supreme Court


•  Mediation is often compulsory before civil trials but can prolong proceedings if unsuccessful •  Insurance companies often delay until injuries have stabilised or the plaintiff has died, which also reduces damages

Recent reforms to the Legal System


•  Judicial training in issues relating to race, ethnicity and use of interpreters •  Broadening the pool of jurors by decreasing the prosecution’s peremptory challenges, and limiting the categories of excused and ineligible

Accessibility •  Increased funding for Legal Aid •  Koori Courts for sentencing •  Inquisitorial elements brought into the Family Court


•  Compulsory mediation before Supreme Court civil trials •  Directions hearings •  Increased jurisdiction of the Magistrates’ Court

Possible Future Reforms to Legal System


•  Allow deaf and blind people to sit on juries •  Provide guidelines for juries calculating damages to achieve more consistency

Accessibility •  Re-introduce free interpreters into the County Court, Supreme Court and Court of Appeal •  Increase VCAT jurisdiction to include more matters such as fencing disputes


•  Introduce compulsory mediation for County Court civil trials as well • Allow simple trials to be conducted on the basis of documentary evidence

End of U402 part B

!  SAC Thursday 11th Sept/ Friday 12th Sept

References

!  Beazer, Humphreys & Filippin (2012) Justice & Outcomes 12e, Oxford University Press

!  Aldous (2008) Making & Breaking the Law, 8th edition, Macmillan Education Australia

!  Humphreys (2011) Legal Notes Units 3 & 4, 2nd edition, Nelson Cengage Learning

!  Jacaranda online, www.studyon.com.au

U402 Part B civil procedures and the jury system

Documents

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civil action