1. How Civil Procedure allows for FAT

2. How civil procedures allow for FAT
Fair and unbiased hearing
Access to the legal system
Timely resolution of disputes
During discovery and pleadings parties are able to gain all opposing party’s evidence, providing equality before the law
Pre-trial procedures are aimed at making both parties fully aware of case eg parties exchange documents in pleadings- provides access through information
At any stage of a proceeding an out of court settlement can be achieved reducing delays
Rules of evidence and procedure apply to both parties allowing equality before the law
Tribunals such as VCAT provide alternative to a court trial for minor civil claims saving time and money and are accessible (physically also)
If matter goes to court pre-trial procedures (eg discovery) ensure issues are clarified before trial by exchange of documents and evidence
Existence of impartial/independent adjudicator allows fairness
ADR also offers less intimidating measures to resolve disputes

3. Problems of civil procedures allowing for FAT
Fair and unbiased hearing
Access to the legal system
Timely resolution of dispute
Complex pre-trial procedures necessitate legal representative. If one party cannot afford this they are highly disadvantaged
Potential litigants may not realise rights have been infringed or where to go for assistance
Delays caused by litigants hesitating to start proceedings
Inconsistent damages payouts received by parties in similar cases is unfair – may be result of juries determining damages
Cost of legal fees for taking case to court and particularly for legal representative deters many litigants
Lengthy pre-trial procedures add to delays due to number of stages (pleadings) and documents that need to be examined during discovery
Increased rate of litigation means resources of courts are stretched – means delays in having cases heard

4. Suggested/actual changes
Justice Connect established in 2013 works with law firms to provide pro-bono legal services
E-discovery used in federal court for large number of electronic documents
Suggested change: removal of juries for long and complex trials

5. Suggested/actual changes
Justice Connect established in 2013 works with law firms to provide pro-bono legal services
Increase in court-conducted ADR – Vic government pledged 3.7 million dollars for judge-led mediation in County and Supreme Courts in Justice Statement 2 (2008)
E-discovery used in federal court for large number of electronic documents
Suggested change: removal of juries for long and complex trials
Increased use of ADR methods

6. Exam questions
1.) ‘Pre-trial procedures in criminal and civil cases serve different purposes’. Explain this statement by referring to one criminal and one civil pre-trial procedure. (6 marks)
2.) What is the purpose of discovery, and hos is this achieved? (3 marks)
3.) Distinguish between the roles of criminal sanctions and civil remedies. Illustrate your response by the reference to one criminal sanction and one civil remedy. (4 marks)
4.) Explain how the use of civil pre-trial procedures can both assist and limit the achievement of a timely resolution of disputes. (6 marks.)