The document discusses key aspects of criminal and civil court processes and procedures. It outlines three elements of an effective legal system: entitlement to a fair hearing, effective access, and timely dispute resolution. For criminal cases, it describes important pre-trial procedures like bail, remand, and committal hearings; and explains their purposes. It also provides an overview of the general purposes of criminal sanctions and three types of sanctions - punishment, denunciation, and protection. For civil cases, it mentions pre-trial procedures like pleadings and discovery.

1. U402 A
Court Processes & Procedures
Criminal and Civil (Chapters 11, 8 and 9)
Thomas Fairbanks

2. Key Knowledge
• the elements of an effective legal system:
• entitlement to a fair and unbiased hearing;
• effective access to the legal system; and
• timely resolution of disputes.
• criminal pre-trial procedures and their purposes, including:
• bail and remand;
• committal hearings
• general purposes of criminal sanctions;
• an overview of three types of sanctions and their specific purpose;
• Supreme Court civil pre-trial procedures, including:
• pleadings;
• discovery;
• directions hearings; and
• the purposes of these procedures
• the purpose of civil remedies;
• types of civil remedies, including damages and injunctions.

3. Key Skills
• define key legal terminology and use it appropriately;
• discuss, interpret and analyse legal information;
• apply legal principles to relevant cases and issues;
• describe the pre-trial procedures for the resolution of criminal
cases and civil disputes, and compare their relative purposes;
• discuss the ability of criminal sanctions and civil remedies to
achieve their purposes;
• evaluate the extent to which court processes and procedures
contribute to an effective legal system.

4. SAC details
•Tuesday 18th August

5. Elements of an effective legal
system (FAT)
• When assessing the effectiveness of the legal system, we
need to consider three elements:
• Entitlement to a fair and unbiased hearing
• Effective access to the legal system
• Timely resolution of disputes
Fair Access Timely

6. F - Fair and unbiased hearing
• An effective legal system provides structures and procedures
that facilitate a fair hearing or trial, free from bias.
• People should not be discriminated against when appearing
before dispute resolution bodies, and should have an equal
opportunity to present their case.
• The court processes, including rules of evidence and
procedure, the adversary system and the jury system, should
operate so as not to disadvantage either party.

7. Ensuringa fair and unbiasedhearing
• The rules of evidence
• Hearsay and opinions excluded
• The rules of procedure
• Witnesses are questioned by both sides to bring out the truth
• The right to silence
• Accused is not obliged to say anything that might incriminate
• Consistency in sentencing
• Sentencing Act 1991 (Vic.) aims to increase consistency in sentencing
• The jury system
• Accused is tried by his/her peers – fairer and unbiased
• The adversary system
• Both sides battle to win the case on an equal footing

8. A – Effective Access
• All people should be aware of their right to take a matter to a
court, a tribunal or other dispute resolution body, and have
equal access to these legal bodies.
• The existence of a hierarchy of courts for both criminal and
civil disputes, and the availability of a range of dispute
resolution processes for civil disputes with each offering
specialised service
• All should have equal access to:
• Legal assistance,
• Legal advice or
• Legal aid

9. Ensuring a effective access
• Court hierarchy
• Specialist courts – Koori, Children’s, Drug
• Appeals
• Legal Aid Victoria (but limited)

10. T – Timely Resolution of disputes
• All people should be able to achieve a resolution to a civil case in a
timely manner so that any compensation can be paid as quick as
possible, and the stress caused by taking a matter to a court or
tribunal can be as short as possible.
• Similarly, criminal cases should be resolved in a timely fashion to
reduce costs and the distress of not knowing the outcomes.
• The desire to resolve matters quickly, but give both parties
adequate time to prepare and prosecute their case – balance
• NOTE: delays in dispute resolution do occur, and remain a significant
problem in our legal system.

11. Ensuring a timely resolution
• Court hierarchy
• Lower courts can hear minor cases quickly
• Directions hearings
• Resolve issues so they do not need to be discussed
during trial
• Committal hearings
• Ensure cases where there is insufficient evidence do
not proceed to trial

12. Criminal pre-trial procedures
• Must know:
• Two individual rights
• Two police powers
• General purpose of criminal pre-trial procedures;
• Purpose of bail and remand;
• Purpose of committal hearings;

13. Individual rights
• Right to silence
• The right to silence ensures the accused does not have to
answer police questioning or testify if committed to stand
trial. It is designed to protect the accused from saying
anything that may be incriminating. Police must ensure
the suspect understands this right; otherwise anything
said may be inadmissible at trial.
• Right to contact a lawyer
• A person has the right to communicate with a lawyer and
a relative or a friend unless it will result in the escape of
an accomplice, or the destruction of evidence. The
suspect should be given the opportunity to speak with the
lawyer in private, and have the lawyer present during
questioning.

14. Police powers
• Arrest without a warrant
• In order to arrest a suspect without a warrant,
police must reasonably believe the suspect
committed a crime and the arrest is necessary
to: preserve public safety, prevent the
continuation of the offence and ensure the
suspect appears in court.
• Search with a warrant
• Police may obtain warrant to search a
premises if they believe the search will
disclose stolen goods, evidence of a crime,
goods that might be used in a crime, or goods
relevant to commission of a crime.

15. Purpose of criminal pre-trial
procedures
• assist the police in identifying evidence for the prosecution of the
person or persons suspected of committing the crime under
investigation
• protect the rights of the accused and ensure that he or she is
treated as innocent until proven guilty
• provide rights to the police to facilitate police investigation
• provide an opportunity for the accused to be released pending
trial, although this right may be denied in certain circumstances
• determine whether a trial should proceed — that is, if the evidence
is of sufficient weight to support a conviction by a jury at trial
• determine if the accused wishes to plead guilty or not guilty —
provide the accused with the opportunity to plead guilty at an early
stage and thereby receive a lighter sanction. An early plea is also a
benefit to the legal system, because it can reduce the number of
trials and speed up the whole process.

16. Bail and remand
• Bail refers to the procedures that enable accused people to be released
from custody after being charged awaiting their hearing or trial.
• Conditions can be specified, and a guarantor (surety) can be required.
• A person who has been formally charged can ask to be released on bail.
• After being charged, a defendant can be:
• Released on bail
• Held in remand until case comes to trial
• Bail is usually granted, unless the defendant is:
• A flight risk
• A danger to society
• In custody for another offence

17. Purpose of bail
• The purpose of bail is to allow an
accused person to go free until the
hearing or trial.
• This allows them the best change to
prepare their case and puts them on an
equal footing with the prosecution.
• Bail also upholds the presumption of
innocence.

18. Purpose of remand
• The purpose of remand is to protect the
community against the actions of an
accused person the court believes may
reoffend, inflict harm, commit further
crimes, or fail to appear before the court
for justice to be served.

19. Committal hearings
• A committal hearing is held in the Magistrates’ Court prior to a
criminal case going to trial in the County Court or the Supreme
Court. The aim of a committal hearing is to:
• determine whether a prima facie case exists, that is, whether the
evidence is of sufficient weight to support a conviction by a jury
at trial
• clarify the issues prior to attending trial and thereby avoid taking
a matter to trial when the evidence is flimsy, saving the time and
resources of higher courts.
• allow an early guilty plea, which avoids the time and cost of a
trial.
• inform the defendant of all the evidence against them, putting
them on an equal footing with the prosecution and allowing them
to best prepare their case.

20. Committal hearings procedure
• Judge examines the ‘hand-up brief’ of evidence (Written
evidence, witness statements, et cetera)
• Can hear oral testimony if necessary
• Decides whether there is enough evidence to go to trial
• If prima facie case is established:
• Defendant is committed to trial
• Released on bail or held in remand
• Evidence collected forms depositions
• Presentment is drawn up containing details of the charges against
the accused

21. Criminal Sanctions
• Need to know:
• general purposes (aims) of
criminal sanctions;
• an overview of three types of
sanctions and their specific
purpose;

22. Purposes of criminal sanctions
Purposes
of
sanctions
Punish
DenunciateRehabilitate
Deter Protect

23. Punish
• The process of punishment through the courts avoids the
need for the victim of a crime to take the matter into their
own hands and seek revenge.
• Such action would cause disruption to society.
• The punishment given must therefore be appropriate to the
offence committed.
• The sanction should be:
• Fair to the offender
• Appropriate to the offence

24. Denunciate
• Denunciation refers to the disapproval of the court.
• A particular punishment may be given to show the community
that the court disapproves of the offender’s conduct.
• For example, the judge may give a harsher sentence for a
particularly violent rape and make comment about how the
court is showing disapproval of this type of behaviour.

25. Protect
• In some instances it is necessary to
protect the community from the
offender.
• In such cases the offender needs to be
removed from society (put in prison)
to be physically prevented from
reoffending.
• Previous wrong-doings can be taken
into account when sentencing the
offender.

26. Deter
• The sanction should deter the offender or other
people from committing the same or similar
offences.
• If people could commit crimes freely without the
threat of punishment, law and order would be
virtually impossible to maintain.
• Sanctions are therefore aimed at discouraging
other people from committing similar crimes. This
is known as general deterrence because it is
aimed at deterring the general public. Sanctions
can also be a specific deterrence in that they can
deter the offender from committing the same
offence again.

27. Rehabilitate
• One aim of sanctions is to assist offenders
to change their attitudes and be ready to
take their place in society.
• This could be by giving a bond or a
community-based order to encourage
rehabilitation rather than sending
offenders to prison.

28. Types of sanctions & evaluation
• Must know three sanctions and be able to evaluate how they
fulfill the aims of sanctions.
• Types of sanctions include:
• Imprisonment
• Combined custody and treatment order
• Drug treatment order
• Home detention
• Community correction order
• Suspended sentence
• Community based order
• Fine
Severity
Custodial
Non-Custodial

29. Imprisonment
• People who have been convicted of a
crime can be sentenced to be
detained in jail for a period of time,
which means a loss of their freedom
and liberty.

30. Imprisonment Punishes &
Protects
• Imprisonment is seen as the
sanction of last resort, as it results in
a loss of liberty and freedom.
• It removes the offender from society
as a punishment for offending
against society and as protection for
society.
• Having a prison system leads to a
safer society because serious
criminals are kept out of society.

31. Imprisonment rehabilitates &
denunciates
• Imprisonment may lead to rehabilitation because of the
various programs offered to prisoners, but it is more likely to
lead to further crimes because of the influence of other
prisoners and the difficulty of getting back into a normal life
after having spent time in prison.
• Courts can also impose long sentences on offenders by way of
showing disapproval of the acts committed (denunciation)

32. Imprisonment deters
• Imprisonment is likely to act as a general deterrence in that
most people would be deterred from committing a crime by
the possibility of going to prison.
• It may also act as a specific deterrence in that the offender
will not want to go to prison again. However, because they mix
with serious criminals while in prison, it may not be very
effective as a specific deterrence.

33. Community Corrections
Order (CCO)
• A Community Correction Order (CCO) is a flexible order that can have
different conditions applied based on: the circumstances of the
offence; the offender’s needs and situation; and the direction of the
court.
• A CCO must have at least one condition, based on the risk and needs
of the offender and the severity of the offence, including:
• supervision
• unpaid community work
• treatment and rehabilitation
• curfews
• bans on entering specified areas or places
• bans on entering many licensed premises and bans on drinking alcohol
in other licensed premises
• bans on contacting or associating with specific people or group
• residential restrictions or exclusions relating to the offender’s
accommodation.

34. CCOs specifically deter, punish,
protect & rehabilitate
• CCOs fulfill the aims of specific deterrence by restricting the
offender’s freedom.
• The offender is prevented from reoffending (protection) as
there are a number of restrictions on their freedom such as
doing unpaid community work or attending a compulsory
program.
• The offender is given the opportunity for rehabilitation
through special counselling and treatment.
• A CCO can also be seen as a fair punishment if it is appropriate
to the offence, thus avoiding victims seeking revenge.

35. Fine
• A fine is a monetary penalty paid by the offender to the court.
• There is often a prescribed fine for a particular offence
mentioned in the act that establishes the offence.
• If the fine is not paid, the offender can go to prison

36. Fines punish and deter
• A fine serves to punish the offender and may act as a specific
deterrence in that the offender may be deterred from
reoffending. Members of society may also be deterred
(general deterrence) from offending because of the possibility
of having to pay a fine.
• However, a fine is unlikely to help in the rehabilitation of an
offender. It also does not take the offender out of society by
way of protection. A court could give an extremely high fine as
a way of denouncing the particular crime. This is showing
disapproval of the crime committed.

37. Evaluation of criminal
procedures (FAT)
• Need to consider the extent to which each of the three
elements of an effective legal system can be achieved. For
each element, consider:
• Processes that help achieve the element
• Process that hinder achieving the element

38. Fair and unbiased ~ Bail
• Upholds the presumption of innocence and gives accused best
chance to prepare their case. Bail ensures the accused is given
the same opportunity as the prosecution.
• However, the accused may be placed in remand even though
they haven’t been found guilty. If bail is given too freely, it may
lead to accused absconding or causing further harm to
community.

39. Fair and unbiased ~ Rules of
evidence & procedure
• Apply to both parties and help to protect the accused. Rules of
evidence are designed to ensure both parties are treated
equally. Rules of procedure help to ensure the reliability of
witnesses and that the truth will emerge.
• However, rules of evidence and procedure may be confusing
for the accused. Court may be intimidating for some and may
lead to witnesses appearing unreliable which may lead to an
unfair result.

40. Fair and unbiased ~ Resources
• Prosecution evidence is gathered by the police who are
experts with considerable resources. On the other hand, the
accused will generally have limited resources and expertise.
Therefore the parties are on an unequal footing. This may lead
to an unfair result.
• However, the burden of proof is on the prosecution.

41. Fair and unbiased ~ Committal
hearings
• Committal hearings enable the accused to learn of the case
against them, thereby helping them to prepare their defence.
This puts them on an equal footing with the prosecution and
should ensure a fair hearing.
• However, committal hearings may actually add to the delays
of getting a case to trial, which may reduce the reliability of
witnesses. There have been calls to proceed directly to trial
and bypass the committal hearing.

42. Fair and unbiased ~ Role of the
judge
• The judge in a criminal case acts as an independent and
impartial arbitrator. This ensures the matter is heard by
someone who is not biased and can adjudicate in an impartial
manner.
• However, as the judge must remain impartial, they are unable
to help the parties if they are poorly represented. This may
lead to an unfair result and means the judge’s experience and
expertise is wasted.

43. Fair and unbiased ~ Juries
• Juries allow a trial by one’s peers. They ensure that the
decision is made by 12 people, not just a single judge. This
creates confidence in the legal system and should ensure the
decision made is correct.
• However, media coverage of high-profile cases may influence
jury members and lead to an unfair result. Jury members may
prematurely form opinions of the guilt or innocence of the
accused or hold other biases.

44. Fair and unbiased ~ Police
investigation
• Police powers of questioning, arrest, searches, and so on, are
balanced against individual rights, such as the right to silence,
questioning for only a reasonable period of time, and the right
to contact a legal representative, friend or relative. This is
done in an attempt to balance rights, and to make sure that
people are treated equally and fairly by the police.
• However, people argue that individual rights may result in
guilty people going free and that increased police powers may
be needed to deal with growing crime rates.

45. Effective Access ~Courts
• These are available for all to use in criminal matters, with
courts in both metropolitan and regional areas. Courts are
specialised in terms of the types of cases that they hear. For
example, the Magistrates’ Court hears summary or minor
criminal cases, while the Supreme Court hears only the most
serious criminal offences.
• However, overcrowding of courts may reduce access. In
addition, courts are expensive due to high court fees and the
need for legal representation which reduces access for those
with limited financial means. Distance and transport can
reduce access for people in rural areas.

46. Effective Access ~ Appeals
• The system of appeals means that if an incorrect or unfair
decision does appear to have been made in a case, then either
party is able to appeal the decision or sentence, provided that
they can establish grounds for appeal.
• However, there may be too many appeals in an attempt to
delay justice. This can reduce access by using up valuable
court resources.

47. Effective Access ~ Legal Aid
• Bodies such as Victoria Legal Aid (VLA) and community legal
centres can offer legal advice and representation to people
charged with criminal offences. This ensures everyone can
afford to have their case heard.
• However, Legal Aid is limited and if legal aid is increased, this
will increase the burden on the taxpayer.

48. Timely resolution ~ Committal
hearings
• These ensure that people who have been accused of a crime
do not have to wait a long time for a trial when there is
insufficient evidence to support a conviction by a jury at trial.
• This also results in the superior courts not being clogged up
with cases that are unlikely to succeed, thereby saving time
for the legal system as well.
• The hand-up brief method of committal hearing has resulted
in fewer traumas for the accused and victim, because they do
not have to go through an open court hearing for the
committal; it has also led to more court time being available
for other matters.
• However, committal hearing can actually add to delays
experienced in some cases by making it take longer to get to
trial. Some have called for committals to be abolished.

49. Timely resolution ~ Directions
hearings
• These are designed to speed up the process of getting an
accused person to trial and to reduce the length of the trial by
having some issues resolved before the trial begins.
• During a directions hearing, the judge will give directions as to
how the matter will proceed and will resolve some issues
before trial.
• However, an increase in the number of criminal cases being
heard by the courts has caused delays. The Supreme and
County Courts have longer delays than comparable courts in
other states

50. Timely resolution ~ Time
limits
• Criminal Procedure Act 2009 sets time limits at various stages
of the criminal process. This is designed to ensure the trial
does not drag on unnecessarily.
• However, a lack of court resources has led to some cases
being dismissed from the Melbourne Magistrates’ Court due
to lack of available police prosecutors.

51. Conclusion
• While there are a number of problems with criminal
procedure, overall it operates effectively and helps to achieve
an effective legal system.

52. Civil pre-trial procedures
• Supreme Court civil pre-trial procedures, including:
• pleadings,
• discovery and
• directions hearings
• mediation

53. Purpose of pre-trial
procedures
• they 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
• the parties determine whether it is worthwhile proceeding with
their case
• the parties find out the strengths and weaknesses of each other’s
case
• they might lead to an out-of-court settlement negotiated between
the parties, meaning the cost, stress and inconvenience of going to
court is avoided
• they provide the court with information about the case before it
begins, leading to a quicker trial
• they might result in some issues
• being conceded by the parties, therefore only those issues in
dispute are heard at trial.

54. Pleadings
• The purpose to of the pleadings is to gain information about the
claim.
• They require parties to state the main issues of the case and compel
each party to state the material facts
• They give the court a written record of the case
• They save court time and expense and can assist an out-of-court
settlement if possible.
• The pleadings contain details of the claim by plaintiff and matters
being raised as a defence by the defendant. They include:
• Writ
• Notice of appearance
• Statement of claim
• Statement of defence

55. Writ
• The writ is a formal written document.
• The plaintiff will issue a writ against the defendant which
explains the action being taken against them
• It informs them in which court the trial will take place and
whether there will be a jury.
• The writ is sent to court and a copy served on the defendant
by the plaintiff which indicates the cause of action and
remedies sought.
• The filing of a writ signifies commencement of proceedings.

56. Notice of Appearance
• The defendant must enter a notice of appearance to indicate
they will defend the case against them.

57. Statement of claim
• The plaintiff must enter a statement of
claim that explains the nature of the
claim; the cause of the claim; and sets
out the remedy or relief sought.
• The statement of claim is normally
attached to the writ.

58. Statement of defence
• The defendant enters a statement of
defence that sets out a response to each
of the allegations contained in the
plaintiff’s statement of claim.
• The statement of defence normally either
admits or denies the allegations

59. Discovery
• The purpose of discovery is to allow the parties to
get further information about the facts of the
case.
• require the parties to disclose all relevant material
and documents to the other side
• reduce the element of surprise at trial
• ensure all parties have copies of relevant
documents
• allow each party to determine the strength of the
other side’s case and determine their likelihood of
success
• assist in reaching an out-of-court settlement where
appropriate.

60. Discovery & Pleadings Same Same
but Different …
• Pleadings - Purpose is to gain information about
the claim
• Discovery - Purpose is to discover details about
the facts of the case

61. Discovery stages
• Interrogatories
• Discovery of documents
• Medical examination / reports

62. Interrogatories
• Either side may serve interrogatories (searching questions
relating to the known facts of the case) on the other party
requiring any information that might be useful in evidence.
• Usually a time period, such as 60 days, is set as the deadline
by which written responses to the questions must be received
by the other party.
• This process saves court time and expense by dealing with
matters before going to court and by reducing the element of
surprise.
• It can be useful to refer to answers given in the interrogatories
during the trial.

63. Discovery of documents
• Either side may ask the other side to disclose any relevant
documents that are or have been in their possession.
• This is done by serving a notice of discovery on the other side.
• All relevant documents must be disclosed.
• Either party can inspect relevant documents
• While some documents may be protected by privilege – their
existence must still be disclosed.

64. Medical examination
• If the plaintiff is claiming damages for
bodily injury, the defendant may ask
the plaintiff to submit to appropriate
examination by a medical expert or
experts at specified times and places
• This situation may be reversed if a
counterclaim has been made by the
defendant.

65. Directions hearing
• A directions hearing is held before a judge or an associate
judge
• At the directions hearing, the court may give any direction for
the conduct of the proceeding that it thinks will assist in an
effective, complete, prompt and economical determination of
the case.
• Most often a directions hearing is used to set a timetable for
the future steps to be undertaken by the parties before trial.
• It is at the directions hearing that the parties are often
referred to mediation before the case goes to trial.

66. Purpose of directions hearings
• set a timetable for future steps in the pre-trial proceedings
stage
• hear any applications made by the parties prior to going to
trial
• establish further orders in the proceedings to ensure an
effective, complete, prompt and economical determination of
the case
• allocate a date for trial.

67. Mediation
• Mediation is increasingly used as a civil pre-trial procedure.
• The Supreme Court Rules state that: at any time during the
pre-trial or trial proceedings, the court may order the matter
to be referred to mediation.
• More often than not, a court will order that the parties attend
mediation before trial.
• The purpose of mediation is to try to resolve the dispute
before trial, reducing the costs and delays of an unnecessary
trial. In addition, mediation helps to clarify the issues in
dispute, which should save time at trial.

68. Civil Remedies
• A remedy is the desired outcome of a civil trial. It is what the
plaintiff claims as a result of the civil wrong that has occurred.
• Purpose of civil remedies
• To restore the injured party (plaintiff) to the position they were
in before the harm occurred.
• Types of civil remedies
• Damages (must know)
• Injunctions (must know)
• Specific performance
• Specific restitution
• Costs and interest

69. Damages
• Damages are a sum of money granted to the plaintiff, to be
paid by the defendant, in satisfaction of a claim made by the
plaintiff.
• Different types of damages can be sought, including
compensatory, exemplary, nominal and contemptuous
damages.
• It is compensation for the infringement of their right and is
the most common remedy sought.

70. Compensatory damages
• The purpose of compensatory damages is to restore plaintiff
to original position. This might not be possible if there is
physical injury.
• Compensatory damages can be:
• Specific damages (precise monetary value)
• General damages (general estimate of loss)
• Aggravated damages (pain and suffering)

71. Nominal damages
• The purpose of nominal damages is to
make a legal point.
• The plaintiff seeks a small amount of
money to make a point about legally
being in the right
• They are common in defamation cases.

72. Contemptuous damages
• The purpose of contemptuous
damages is to show contempt for
plaintiff’s claim – that the plaintiff
may be legally right, but not
morally.
• Again, they are common in
defamation cases.

73. Exemplary (punitive) damages
• The purpose of exemplary damages is to
punish and deter the defendant.
• They are the only civil remedy that
seeks to punish the defendant in some
way.
• Exemplary damages are used where
conduct is wanton or malicious or
violent or cruel or insolent or in scornful
disregard of the plaintiff’s rights.

74. Injunctions
• The purpose of an injunction is to rectify a situation caused by
the person who was found to be in the wrong. An injunction is
a court order that can be either:
• Restrictive/prohibitive
• Orders a person to refrain from doing something
• Mandatory
• Orders a person to do something
• Injunctions can be:
• Interlocutory – temporary (until case is heard)
• Perpetual – permanent (after case has been heard)

75. Evaluation of civil
procedures (FAT)
• Need to consider the extent to which each of the three
elements of an effective legal system can be achieved. For
each element, consider:
• Processes that help achieve the element
• Process that hinder achieving the element

76. Fair and unbiased ~ Pre-trial
procedures
• Pre-trial procedures are designed to ensure all parties have
knowledge of each other’s cases and have access to
information and documents relevant to the case. They reduce
the element of surprise at trial and ensure both parties are on
equal footing
• However, pre-trial procedures are so complex they may
disadvantage parties with inferior or no legal representation

77. Fair and unbiased ~ Role of the
judge
• The judge acts as an independent and impartial arbitrator in a
civil dispute. They ensure the matter is heard by someone
who is not biased and can adjudicate in an impartial manner.
• However, as the judge must remain impartial, they are unable
to help the parties if they are poorly represented. This may
lead to an unfair result and means the judge’s experience and
expertise is wasted

78. Effective Access ~ Courts
• Courts are able to enforce civil rights. Each court has expertise
in its jurisdiction and should ensure that a fair outcome is
achieved.
• However, courts are expensive due to high fees and the need
for legal representation. This can reduce access for those with
limited financial means

79. Effective Access ~ ADR and
tribunals
• ADR and tribunals are able to resolve small civil disputes
quickly and cheaply as there is only a nominal fee and
generally no need for legal representation. This increases
access as more people are able to have their case heard
• However, ADR and tribunals are not suitable for all types of
cases or when there is animosity between the parties. Many
people are not aware of these alternatives to the court system

80. Effective Access ~ Complexity
of pre-trial procedures
• Pre-trial procedures are often complex and difficult to
understand. This makes it difficult for unrepresented litigants
who find it difficult to access the legal system to resolve their
disputes

81. Effective Access ~ Delays
• The increased backlog of court cases and extensive pre-trial
procedures cause delays. This often deters people from taking
cases to court and reduces access to the legal system

82. Timely resolution ~ Increased
litigation
• People are increasingly pursuing their rights when they have
been infringed. This places an increased burden on the courts
and causes delays which:
• increases the stress in not knowing the outcome and
• increases the costs involved

83. Timely resolution ~ Pre-trial
procedures
• The aim of pre-trial procedures is to reduce the time needed
to resolve dispute. Pleadings and discovery provide both
parties with opportunity to find out details about the case.
These promote an out-of-court settlement or lead to one
party deciding not to pursue their case. Directions hearings
help to save time in court by clarifying issues before trial
• However, long and protracted pre-trial procedures can lead to
delays in resolving a dispute

84. Timely resolution ~ ADR and
tribunals
• ADR and tribunals are able to resolve small civil disputes
quickly and cheaply. VCAT is often able to resolve disputes in
less than a day. This reduces stress on parties from not
knowing the outcome of their case and reduces the burden on
the courts.
• However, the matter may not be resolved or appealed to court
which will delay resolution and increase costs involved.

85. Conclusion
• While there are a number of problems with civil procedure,
overall it operates effectively and helps to achieve an effective
legal system.

86. End of U402 A