VCAA Legal Studies The Victorian civil justice system

The burden of proof is the responsibility of the party to prove the facts of the case. In this case the burden of proof is on the clients as they are the plaintiffs who want to sue Louise. The standard of proof is the strength of evidence required to prove the facts of the case. Because the clients want to sue Louise, as it is a civil action and therefore the standard of proof is on the balance of probabilities which means that both parties must provide sufficient evidence to prove that their version of the facts is more probable than not.

It may be somewhat appropriate for Louise's clients to initiate a class action against Louise. 22 clients were affected by the matter, which fulfills the criteria of seven or more people affected by the same matter to initiate proceedings against the same party, a class action encompasses. Additionally, they are all equally effected by the matter which would ensure that they are compensated through the damages as all plaintiffs are awarded the same amount of damages. However, one client must be willing to be the lead plaintiff and represent the other clients, including bearing the burden of costs and engaging in legal practitioners and participating in court processes, which may make a class action inappropriate if there is no willing plaintiff.

Alternative dispute resolution methods within the civil justice system uphold the principles of fairness, equality and access to a moderately high extent.

Firstly the principle of fairness is upheld by the increased party control offered by mediation and conciliation due to the ability of the parties to achieve their own outcome. As mediation and conciliation both see parties reach a mutually beneficial outcome through negotiation, it is likely to be agreed upon and therefore accepted by both parties. As such the outcome is likely to be fair for both and not disadvantage one party as it is beneficial for both parties and is thus likely to be followed without having to utilize a deed of settlement or other extensive processes to make the outcome binding.

Fairness is also upheld as during arbitration and court trials, an independent third party makes the decision free from bias or prejudice and therefore allows for a fair outcome for both parties that they are bound to follow by an arbitral award or the judges remedy awarded.

I agree with this statement to a moderate extent. VCAT is an independent body that aims to provide access to a just, timely, cost-effective dispute resolution service, VCAT may "always" be appropriate if either parties are seeking a legally binding outcome. VCAT offer a final hearing which involves both the plaintiff and the defendant to have equal opportunities to present their case including evidence to a VCAT member. This final hearing comes to the resolution through legally binding decision that the VCAT member will decide after giving both parties equal opportunities to present their case. This means that if a member prefers a legally binding outcome as it ensures that the remedy proposed will be fulfilled. VCAT may "always" be an appropriate body moreover because the final hearing is less costly and formal.

The right to silence offers an accused person the ability to refuse to answer questions and give information during police questioning and prosecution as well as to choose not to provide a defense at trial without their silence or un-cooperation being interpreted as a sign of guilt. In exercising their right to silence, Emma’s presumption of innocence was upheld as it means that the jury in her County Court trial (on instructions from the judge) would not have been able to assume guilt based off her silence.

Community legal centres are general or specialised bodies that aid both victims and accused persons with legal issues. For Agu and Kim, their access to justice is upheld through the legal advice that CLCs provide. It was mentioned that the victims wished to file a civil claim and an insurance claim. CLCs can aid with filling out forms or preparing letters for legal reasons like contacting an insurer moreover CLCs can give advice on how to assist a civil claim going forward.

The judge will impose the sanction of imprisonment on Emma most likely. Because Emma has committed a category two offence, she is subject to up to 25 years of imprisonment for the cultivating of a commercial quantity of drugs. A term of imprisonment involves removing Emma from the community and placing her in prison for a specified period of time.

One factor the judge is likely to consider is the impact her crimes had on Agu and Kim. If Agu and Kim provided victim impact statements in court this would act as an aggravating factor on the judge’s sentence for Emma. Because of the extensive loss that has occurred to their lives and loss of income the judge may be more influenced to employ a harsher term of imprisonment on Emma because she took advantage of Kim and Agu’s property.

Enforcement issues refers to the ability of the defendant if found liable to comply with the court orders such as paying damages. One enforcement issue that should be considered is whether Emma has the ability to pay for the damages that Agu and Kim wish to seek. If Emma cannot afford to pay the damages, Agu and Kim should decide whether it is worth initiating a civil claim as there is a chance they will receive nothing in return and the trial will become a waste of time and costs for them.

Damages are able to achieve their purposes in this case to a moderate extent. One way in which compensatory specific damages may achieve their purpose of restoring Agu and Kim to their original position is by compensating for quantifiable financial loss. For example the awarding of compensatory specific damages in a value which matches the financial losses of demolishing and rebuilding their property will be highly effective at restoring Agu and Kim to their previous economic position.

One purpose of plea negotiations in Grant’s criminal case would be to procure a guilty verdict without the need for a full trial in the court. A full trial would require costs, time and many resources as well potentially the victim of the aggravated assault, Andy and Maya, to give evidence, which could retraumatize them. Hence by being able to procure a guilty verdict through plea negotiations it would prevent the need to make them come to court and reduce stress for both the victims and the court resources.

Both the prosecution and the plaintiff, Andy have ongoing disclosure obligations. This means that they must disclose to Grant the relevant documents and evidence that they intend to rely on and use against Grant during their trial or hearing. Another similarity is that they both have the role to participate in the trial or hearing. This includes cross-examining and examining witnesses and opening and closing addresses to the jury panel (if one is present in Andy’s civil hearing).

On the other hand, the standard of probabilities with Andy and the prosecution differs since the prosecution must prove Grant’s guilt ‘beyond reasonable doubt’, which is a more higher and difficult standard to achieve.