1. 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

2. 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

3. 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

4. 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

5. 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

6. Introduction to Civil Law
Standard of Proof –
Balance of Probabilities
Burden of Proof – lies with
the Plaintiff
Civil Disputes

7. 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’

8. 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

9. Supreme Court Pre-Trial Procedures
! 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

10. Supreme Court Pre-Trial Procedures
! 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’.

11. Supreme Court Pre-Trial Procedures
! 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

12. 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

13. 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 …

14. 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

15. 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)

16. 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

17. Effectiveness of Civil Procedures
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

18. Effectiveness of Civil Procedures
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

19. 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

20. 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

21. 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

22. 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

23. 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.

24. 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

25. 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

26. 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

27. Effectiveness of the Jury System
Element of
an effective
system
Processes for Processes against
Fair and
unbiased
hearing
• 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)
Timely
resolution of
disputes
nil • Empanelment is time consuming
• Questions of law delay trial
• Jury deliberations time consuming

28. 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)

29. 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
Timely resolution of
disputes
• Disputes must be
resolved in an appropriate
time
• Parties also need
adequate time to prepare
• Case management
• Pre-trial procedures
• ADR

30. Problems/Difficulties with Legal System
Fair and unbiased
hearing
• 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
Timely resolution of
disputes
• 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

31. Recent reforms to the Legal System
Fair and unbiased
hearing
• 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
Timely resolution of
disputes
• Compulsory mediation before Supreme Court civil
trials
• Directions hearings
• Increased jurisdiction of the Magistrates’ Court

32. Possible Future Reforms to Legal System
Fair and unbiased
hearing
• 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
Timely resolution of
disputes
• Introduce compulsory mediation for County Court
civil trials as well
• Allow simple trials to be conducted on the basis of
documentary evidence

33. End of U402 part B
! SAC Thursday 11th Sept/ Friday 12th Sept

34. 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