Sample evaluate question• Critically evaluate the effectiveness of the adversary

system. (10 marks)

• How will you answer?• Spend five minutes planning an answer to this question.

How would you break down the marks?• Content? Structure?

Answer• 10 marks: 2 marks for intro, 8 marks for

strengths/weaknesses (e.g. S/W, S/W, W/S, W/S), 2 marks for conclusion

• Content: • Intro – general statement about the adversary system; could

describe/define what it is• S – parties are in control therefore motivated to present best case;

W – may deliberately or inadvertently omit evidence resulting in the truth not being discovered

• S – judge is independent and impartial ensuring trial is fair; W – judge is not able to take an active role in the case e.g. gathering evidence or assisting parties.

Answer (cont.)• W – strict rules of evidence and procedure are complex, necessitating

the use of legal representation; S – strict rules ensure fairness to both parties

• W – the need for legal representation means that the system is only accessible to those who can afford it; S – legal representatives ensures cases are presented in the most effective way

• Conclusion: statement about the overall effectiveness of the system (agree or disagree)

Consolidation• In textbook, work through the Skill Drill on pp 321-322.

Complete questions (b) and (e) – both ‘Discuss’ questions.

• What does a ‘discuss’ question require? Consideration/examination of the idea. Can include discussion of strengths and weaknesses but doesn’t require the same structure of an evaluate or critically evaluate question.

Civil procedure – key knowledge• Key knowledge:

• Supreme Court civil pre-trial procedures, including pleadings, discovery and directions hearings, and the purposes of these procedures (Pre-trial procedures only)

• The purpose of civil remedies• Types of civil remedies, including damages and injunctions

Civil procedure – key skills• Key skills:

• Describe the pre-trial procedures for the resolution of civil disputes, and compare their relative purposes

• Discuss the ability of civil remedies to achieve their purposes• Evaluate the extent to which court processes and procedures

contribute to an effective legal system

Types of civil disputes• Brainstorm a list of types of civil disputes• What else do you already know about civil disputes?

(Think back to outcome 1 of Unit 4)

Definition• A civil dispute occurs when one party believes that their

private rights have been infringed by another party, and they take action against that party.

• Parties involved can be individuals, companies or governments.

• Aim of taking action is to restore the person whose rights have been breached to their original position, and compensate them for any loss suffered (damages).

• Types of injuries which can be claimed: physical, emotional, psychological, financial damage or loss

Some examples• Woman sues a CBD bar after being blinded in the eye by

a stick protruding from a pot plant (negligence)• Man takes action against his neighbour for doing

something that interferes with his enjoyment of the land, for example, a barking dog (nuisance)

• Woman takes action against a building company for failing to complete renovations to her house to the agreed standard (contract)

• Man takes action against a magazine for printing articles claiming that he was involved in criminal activities (defamation)

Terminology• The person bringing the action is called the plaintiff

(complainant in the Magistrate’s Court)• The person against whom the claim is made is called the

defendant• Burden of proof is on the plaintiff. Standard of proof is ‘on

the balance of probabilities’ (lower standard than criminal cases)

• Verdict – defendant if found liable or not liable• Remedy – the solution to the problem e.g. payment of

damages

When to bring action - factors• Costs, including legal fees and how much damages are

likely to be (i.e. will they cover your costs)• Likelihood of winning• Possible publicity. This is a significant factor for public

figures as well as companies• Personal circumstances – do you have the time and

energy to see a case through legal proceedings?• Defendant’s ability to pay – if case is successful, will

defendant be able to pay damages?• GM test case: http://www.youtube.com/watch?v=

IzenLY_qYK4

Civil dispute resolution options1. Talk to other party and try to resolve dispute through

direct negotiation (e.g. make complaint, discuss, parties agree to a solution)

2. Resolve dispute through mediation, conciliation or arbitration

3. Resolve dispute by reaching an out-of-court settlement e.g. payment of an amount of money or agreement to abandon any legal action

4. Pre-trial procedures are also intended to help parties resolve their dispute before reaching court e.g. through exchange of documents

5. Legal action

Letter of demand• A letter of demand is the first stage of a civil action. This is

a letter sent by the plaintiff to the defendant outlining the alleged breach of rights and what the defendant needs to do to avoid legal action.

• Read the example on p 335 of the textbook. What do you notice?

• Sometime a letter of demand is sufficient to resolve the dispute e.g. Krispy Kreme

• http://www.theage.com.au/victoria/victoria-police-settle-racial-harassment-case-20130218-2emfd.html - Why do you think this case was settled?

Civil procedure rules• Here’s a good reason why legal representation is needed

in civil disputes:• http://www.legislation.vic.gov.au/Domino/Web_Notes/LDM

S/LTObject_Store/LTObjSt7.nsf/DDE300B846EED9C7CA257616000A3571/1F503E2038C7E940CA257B6000215003/$FILE/05-148sra045%20authorised.pdf

• The rules and procedures are very complex. You only need to know three of them: • Pleadings• Discovery• Directions hearings.

The purpose of pre-trial procedures• To inform both parties of information relating to the case —

the plaintiff will find out information relating to the defence, and the defendant will find out information relating to the claim

• To determine whether it is worthwhile proceeding with the case

• To find out the strengths and weaknesses of each other’s case • May lead to an out-of-court settlement negotiated between the

parties, meaning the cost, stress and inconvenience of going to court is avoided

• To provide the court with information about the case before it begins, leading to a quicker trial

• May result in some issues being conceded by the parties, therefore only those issues in dispute are heard at trial.

Pleadings• Involves the exchange of written documents prior to trial

to help clarify the issues.• Pleadings include all the details of the case including:

• The claims made (writ)• Defences• Counterclaims• Remedies sought

Writ• A formal court document that notifies the defendant that legal

proceedings are being taken against them. Prepared by the plaintiff’s solicitor and lodged with the Supreme Court.

• Sets out:• The case against the defendant (the nature of the claim)• The remedy being sought• The date and time at which the defendant needs to appear in court• A time limit for the defendant to respond to the plaintiff

• Once the writ is lodged with the court, it needs to be served on the defendant (delivered by hand, or posted if defendant is a company)

• Can also use an originating motion to commence proceedings where there is not defendant or where facts are unlikely to be disputed

Statement of claim• Sets out the claim made by the plaintiff against the

defendant, and the remedy that is being sought• Usually lodged with the court at the same time as the writ.• Summarises the facts of the case (sometimes called the

‘particulars’) but not the evidence

Notice of appearance• Once a writ has been served on a defendant, they have

ten days to respond. Their response will be in the form of a notice of appearance.

• Also a formal legal document, generally drawn up by the defendant’s solicitor

• Acknowledges that the writ has been received, and that the defendant will defend the claims

• Must respond within the timeframe given in the writ

Defence• The defendant’s response to the allegations made in the

statement of claim• Normally admits or denies the allegations e.g. might

acknowledge that a particular action occurred but explain valid reasons why this happened

• Deals with the facts of the case• (Formerly known as a statement of defence)

Counterclaim and Reply• Defendant can make a claim back against the plaintiff• See top of p 339 for an example

• Plaintiff can reply to the defence if they wish to acknowledge certain facts.

• A reply would also incorporate their defence to a counterclaim, if one has been made

Discovery• This is the second of the procedures you need to be

familiar with• Once both parties have been informed of the legal

proceedings through pleadings, discovery gives them the opportunity to request documents and other information from the opposing side – focus on fact finding

• Defined as ‘discovery and inspection of documents and discovery by written interrogatories or oral examination’

• Each party needs to reveal all their relevant documents

Purpose of discovery• To allow the parties to get further information about the

facts of the case• Requires the parties to disclose all relevant material and

documents to the other side • Reduces the element of surprise at trial and saves time

because evidence has already been seen• Ensures all parties have copies of relevant documents • Allows each party to determine the strength of the other

side’s case and determine the likelihood of their success • Assists in reaching an out-of-court settlement• Narrows down issues in dispute

Steps• Interrogatories: a list of specific questions relating to the

dispute. Opposing party must answer in writing within a set timeframe. Evidence from this process can be used at trial → saves time

• Discovery and production of documents: either party can request the other party to provide access to documents they intend to use in the case.

• Some examples of types of documents that can be requested: contracts, letters, receipts, emails, videos, audio

Directions hearings• Held before a judge or associate judge• Aim is to identify the main issue and set directions for how

the case should proceed including setting a timeframe for future actions (e.g. steps that need to be taken before the trial – filing of certain documents)

• Give direction for any steps the court believes will assist the matter to be resolved in the most ‘effective, complete, prompt and economical’ way

• This is the stage when the parties might be sent to mediation or arbitration (does not need consent of the parties)

Purpose of directions hearings• To set a timetable for future steps in the pre-trial

proceedings stage • To hear any applications made by the parties prior to

going to trial • To establish further orders in the proceedings to ensure

an effective, complete, prompt and economical determination of the case

• To allocate a date for trial.