Does Civil Procedure Contribute to an Effective Legal System:
The following are notes on whether or not civil procedure contributes towards an effective legal system. They do NOT explain what an effective legal system is, you should have previous knowledge of that from the earlier SAC:
Fair and Unbiased:
One way in which civil procedure contributes towards a fair and unbiased hearing is through pre trial procedures. Stages in pre-trial procedures such as pleadings (whereby parties exchange documents) assist each side to establish and be aware of the case before them. Discovery of documents allows both sides to find out more information and determine the strength of the opposing side's case prior to reaching trial. These processes allows both parties in a civil dispute to be on an even footing as they gain information about the opposing side's case.
Another way in which civil procedure promotes a fair and unbiased hearing is through rules of evidence and procedure. Similar to a criminal trial, a judge presiding over a civil dispute must apply certain rules of procedure and admissibility of evidence to both sides evenly. This ensures that one side does not receive an advantage over another.
Despite these advantages of fairness, civil procedure can hinder the notion of a fair hearing. This is due to the complex and lengthy nature of pre-trial procedures which necessitate (make it necessary) for the use of legal representation. This prevents the notion of a fair and unbiased hearing because not all parties can afford legal representation and those that can't will be at a disadvantage to prepare their case. Legal Aid, although generally available for criminal procedure, is not available to the same extent for criminal disputes which can discourage people taking their case to court.
Effective Access:
One way in which civil procedure provides effective access is through the availability of tribunals such as VCAT. Unlike criminal procedure whereby parties have no choice but to go to court as they are prosecuted, parties in civil disputes have the ability to access tribunals to resolve minor disputes such as VCAT. The existence of tribunals contribute to effective access as it provides an accessible avenue for people to have their minor issues resolved without having to hindered by lengthy pre-trial procedure and high costs.
Another way in which civil procedure provides effective access is through the system of appeals. Parties that believe that there are errors in their case may seek the ability to have their case re-examined by a more senior and experienced judicial officer. This ensures that parties can gain effective access to the legal system.
However, a barrier that prevents certain people from accessing the legal system is that of legal representation. Unlike criminal procedure, legal aid is not readily available for civil disputes and this may prevent people from accessing the system effectively. Also, VCAT and certain tribunals are not readily available for all disputes. VCAT have lists which only allow them to hear certain cases that fall within those criteria and a certain dispute doesn't, parties may still have to engage in litigation.
On the other hand, appeals in tribunals are very limited. For example, if a party believes that an outcome of their case was incorrectly decided in a VCAT hearing, they must seek a 'leave of appeals'. This is further narrowed by the notion that they can only appeal on point of law to the Supreme Court. Despite engaging in VCAT and tribunals for a cost effective manner to resolve disputes, the difficulty of appeals and costs associated hinders the ability for parties to gain effective access.
Timely resolution of disputes:
Civil procedure up hold the notion of resolving a dispute in a timely manner due to the notions of pleadings and discovery. Throughout the whole litigation process, stages enforced to encourage out of court settlement. As parties go through the process of pleadings and discovery, they get to find out more about the case at hand and the strength of the opposing party's case. This may encourage out of court settlement and avoid courts altogether if a party is then convinced that an outcome will not be reached in their favour and therefore settling outside of court is most effective. This saves time and further costs.
Despite this, pre-trial procedures are lengthy and can cause delays in relation to the evidence that needs to be collected and witnesses that need to be made available. There may be documentation that needs to be examined and parties may not find this process easy to understand or may use this opportunity to purposefully delay the process in order to strengthen their case. This causes the dispute to be drawn out unnecessarily and creates issues to providing justice.
The following are notes on whether or not civil procedure contributes towards an effective legal system. They do NOT explain what an effective legal system is, you should have previous knowledge of that from the earlier SAC:
Fair and Unbiased:
One way in which civil procedure contributes towards a fair and unbiased hearing is through pre trial procedures. Stages in pre-trial procedures such as pleadings (whereby parties exchange documents) assist each side to establish and be aware of the case before them. Discovery of documents allows both sides to find out more information and determine the strength of the opposing side's case prior to reaching trial. These processes allows both parties in a civil dispute to be on an even footing as they gain information about the opposing side's case.
Another way in which civil procedure promotes a fair and unbiased hearing is through rules of evidence and procedure. Similar to a criminal trial, a judge presiding over a civil dispute must apply certain rules of procedure and admissibility of evidence to both sides evenly. This ensures that one side does not receive an advantage over another.
Despite these advantages of fairness, civil procedure can hinder the notion of a fair hearing. This is due to the complex and lengthy nature of pre-trial procedures which necessitate (make it necessary) for the use of legal representation. This prevents the notion of a fair and unbiased hearing because not all parties can afford legal representation and those that can't will be at a disadvantage to prepare their case. Legal Aid, although generally available for criminal procedure, is not available to the same extent for criminal disputes which can discourage people taking their case to court.
Effective Access:
One way in which civil procedure provides effective access is through the availability of tribunals such as VCAT. Unlike criminal procedure whereby parties have no choice but to go to court as they are prosecuted, parties in civil disputes have the ability to access tribunals to resolve minor disputes such as VCAT. The existence of tribunals contribute to effective access as it provides an accessible avenue for people to have their minor issues resolved without having to hindered by lengthy pre-trial procedure and high costs.
Another way in which civil procedure provides effective access is through the system of appeals. Parties that believe that there are errors in their case may seek the ability to have their case re-examined by a more senior and experienced judicial officer. This ensures that parties can gain effective access to the legal system.
However, a barrier that prevents certain people from accessing the legal system is that of legal representation. Unlike criminal procedure, legal aid is not readily available for civil disputes and this may prevent people from accessing the system effectively. Also, VCAT and certain tribunals are not readily available for all disputes. VCAT have lists which only allow them to hear certain cases that fall within those criteria and a certain dispute doesn't, parties may still have to engage in litigation.
On the other hand, appeals in tribunals are very limited. For example, if a party believes that an outcome of their case was incorrectly decided in a VCAT hearing, they must seek a 'leave of appeals'. This is further narrowed by the notion that they can only appeal on point of law to the Supreme Court. Despite engaging in VCAT and tribunals for a cost effective manner to resolve disputes, the difficulty of appeals and costs associated hinders the ability for parties to gain effective access.
Timely resolution of disputes:
Civil procedure up hold the notion of resolving a dispute in a timely manner due to the notions of pleadings and discovery. Throughout the whole litigation process, stages enforced to encourage out of court settlement. As parties go through the process of pleadings and discovery, they get to find out more about the case at hand and the strength of the opposing party's case. This may encourage out of court settlement and avoid courts altogether if a party is then convinced that an outcome will not be reached in their favour and therefore settling outside of court is most effective. This saves time and further costs.
Despite this, pre-trial procedures are lengthy and can cause delays in relation to the evidence that needs to be collected and witnesses that need to be made available. There may be documentation that needs to be examined and parties may not find this process easy to understand or may use this opportunity to purposefully delay the process in order to strengthen their case. This causes the dispute to be drawn out unnecessarily and creates issues to providing justice.