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Civil Procedure Theme And Case Management Notes

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I.II. Civil Procedure Themes and Case Management

Civil procedure is the body of law governing the process of litigation undertaken by private parties (mostly individuals or corporation). Criminal procedure governs cases where the State prosecutes an individual or corporation for offences or breaches of legislation. Substantial law is concerned with the establishment of a right.

Criminal Procedure

Civil Procedure

State vs Defendant

Private vs Private (include government

State more powerful

Party power can be uneven

Outcome is punishment or nothing (if defendant wins)

Many possible outcomes usually involving money

Police and courts have major role in enforcement Courts and individuals enforce (bailiff, sheriffs)

* The decision maker in the inquisitorial system takes a more ACTIVE role

* Witness called for by the judge therefore hopefully less biased

* Heavier reliance on written documents

* Less reliance on legal representation

* Cost of the inquisitorial is relatively cheaper than the Adversary system

Higher profile in media

Affects more people

Small body of law applies

Huge body of law applies

State bears most costs

Individuals bears most costs

Adversarial System v Inquisitorial System

Adversarial System

Inquisitorial System

Court decisions form precedent, binding on future decisions.

Mainly codified law. Prior cases are merely persuasive.

Trials are lengthy and involve extensive evidence.

No rigid separation between trial & pre-trial phases, as a consequence, cases are much shorter generally.

Judge as umpire --- impartial; role is reactive. Given the parties' opportunity and responsibility for mounting their own case the system is more participatory.

Judge's role is proactive and inquisitive. The greater directorial role of the judiciary allows less room for the parties to direct their own case. In this sense the system is more hierarchical than participatory.

Emphasis on oral argument and evidence especially Strong emphasis on documentary proof. cross-examination. Virtually no cross-examination and often no physical hearing. (i.e., entire matter heard "on the papers"). The judiciary possesses an inherent and separate power to adjudicate.

An officers of the state the judiciary possesses no separate and inherent power to adjudicate.

Court-room practice may be subject to rigid and technical rules.

Rules relating to court-room practice are intended to be minimal and uncomplicated.

Parties bear the costs.

A great proportion of the effort and expense of dispute determination through litigation falls on the state.

1 I.II. Civil Procedure Themes and Case Management

Perceived problems with civil procedure: cost delay lack of access (usually due to cost and delay) uncertainty unfairness excessive complexity Overriding purpose (s56 of CPA) The overriding purpose of civil procedure can be summarised as 'efficiency'.

* Section 56 of the Civil Procedure Act 2005 (NSW) prescribes the "just, quick and cheap" resolution of civil proceedings to be the 'overriding purpose' of civil litigation.

* The provision is overriding in the sense that when the court exercises procedural powers, it must always have regard to this purpose: s56(2).

* Furthermore, any parties or legal practitioners which are part of the proceedings must also assist the court in achieving this objective: s56 (3)(4). Civil procedure themes -- Balancing competing objectives Principle of Open Justice General Principle: In support of the 'overriding purpose' of civil proceeding, the public is free to observe all court proceedings. This acts as a safeguard to ensure that court proceedings are just as it allows the public to scrutinise the legal process and moreover creates the perception that justice is delivered which instils public confidence into the legal system: Enfield v R (No 2) [2008] NSWCCA 243. Exceptions:

* closed court orders (family law)

* non publication orders (defamation)

* pseudonym orders (migration/children)

* orders for anonymous witness, eg. use of screens, CCTV, pseudonym orders: Witness v Marsden (2000) 49 NSWLR 429

* confidentiality of documents: NAK Australia Pty Ltd v Starkey Consulting Pty Ltd [2008] NSWSC 1136; Seven Network (Operations) v James Warburton (No1)

* section 71 of the CPA provides a broad range of categories in which proceedings can be conducted in the absence of the public.

(a) on the hearing of an interlocutory application, except while a witness is giving oral evidence,

(b) if the presence of the public would defeat the ends of justice,

(c) if the business concerns the guardianship, custody or maintenance of a minor,

(d) if the proceedings are not before a jury and are formal or non-contentious,

(e) if the business does not involve the appearance before the court of any person,

(f) if, in proceedings in the Equity Division of the Supreme Court, the court thinks fit,

(g) if the uniform rules so provide.

* Court Suppression and Non-Publication Orders Act 2010 empowers Court to make a suppression or non-publication order 2

I.II. Civil Procedure Themes and Case Management

* Is in addition to inherent power (s4)

* s6 provides the court "must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice."

* s7 set out the power to grant orders

* s8 Grounds for making an order (1) A court may make a suppression order or non-publication order on one or more of the following grounds: (a) the order is necessary to prevent prejudice to the proper administration of justice, (b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security, (c) the order is necessary to protect the safety of any person, (d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency), (e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice. (2) A suppression order or non-publication order must specify the ground or grounds on which the order is made. Principle of a Fair Trial General Principle: The elementary right of every accused person to a fair and impartial trial. However, due to the courts' inherent ability to control its own processes, there is a duty on the courts to prevent the abuse of process. This helps to maintain public confidence in the justice system because justice delayed is justice denied, i.e., delay and cost prevent justice. Conflicts between: the right to a fair hearing and procedural equality. UCPR r51.53 Circumstances in which Court may order new trial (1) The Court must not order a new trial on any of the following grounds: (a) misdirection, non-direction or other error of law, (b) improper admission or rejection of evidence, (c) that the verdict of the jury below was not taken on a question that the trial judge was not asked to leave to the jury, (d) on any other ground, unless it appears to the Court that some substantial wrong or miscarriage has been thereby occasioned. (2) The Court may order a new trial on any question without interfering with the decision on any other question. (3) If it appears to the Court that some ground for a new trial affects part only of the matter in controversy, or one or some only of the parties, the Court may order a new trial as to that part only, or as to that party or those parties only..... The majority held that in spite of the principle of fail trial, not every departure from the rule of natural justice will entitle the aggrieved party to a new trial. An appellate court will not order a new trial if the denial of natural justice does not have a material effect on the outcome of the trial.

Stead v State Government Insurance Commission (1986) 161 CLR 141 The tension/conflicts between efficiency and justice All three have the power to cost money, waste time and cause negative emotions but the latter two can also cause injustice and unfairness.

* the dispute between parties.

* procedural justice vs substantive justice.

* The best procedure is the fastest and cheapest but this risks substantive injustice. 3

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