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7.6

U3AOS2 - The Parties

QuestionAnswer
Who are the main parties in a civil dispute? The plaintiff and the defendant.
Who has the burden of proof in a civil dispute? The plaintiff has the burden of proving the facts of the case.
When does a defendant bear a burden of proof? When they file a counterclaim, they must prove it on the balance of probabilities.
What is 'party control'? A feature of the Victorian civil trial system where each party controls how their case is run, within rules of evidence and procedure.
How does party control differ from an investigative system? In an investigative system, an external body seeks out the truth rather than the parties managing the case.
What decisions do parties make under party control? What claims to make, what defences to raise, and which witnesses to call.
What is the purpose of disclosing information to the other party? To share documents relevant to the case and avoid surprises at trial.
What is discovery? A pre-trial process where parties exchange relevant documents.
What is an exception to discovery? When documents have genuinely been lost.
What are examples of documents a plaintiff might disclose? Medical records, emails, or texts showing injury or humiliation.
What documents might a defendant disclose if denying a contract? Records proving they fulfilled their obligations under the contract.
Why do parties exchange evidence? To support their claims or defences with proof.
What are the two types of evidence in civil trials? Lay evidence and expert evidence.
What is lay evidence? Evidence from ordinary people about what they saw or experienced, based on factual observations.
Give an example of lay evidence. A witness who saw the plaintiff slip in a negligence case.
What is expert evidence? Opinion-based evidence from professionals with expertise, e.g., doctors, accountants, or engineers.
When is expert evidence used? In cases involving injury, mental harm, or financial/business loss.
What are parties required to do at trial? Participate by presenting opening/closing addresses, examining witnesses, and cross-examining the other side.
Who gives opening and closing addresses if the party has legal representation? A barrister presents it, while a solicitor may prepare it.
What is examination-in-chief? When a party questions their own witness to prove their case.
What is cross-examination? When a barrister questions the other party’s witness to test their credibility and identify weaknesses in their testimony.
What are some similarities between criminal and civil trials? Both involve disclosure obligations, the opportunity to present a case, and the right to examine and cross-examine witnesses.
What is a key difference in discovery between civil and criminal cases? Only civil defendants have ongoing discovery obligations.
Is there usually a jury in civil trials? No, most civil trials do not involve a jury.
What is a key difference in party control between civil and criminal cases? Party control is limited in criminal trials as prosecutors can’t always choose what evidence to lead.
What is a strength of civil procedure? Parties must disclose all relevant documents, ensuring transparency and fairness.
What is another strength of party control? Parties can run their case how they like and choose which claims or evidence to present.
What is a benefit of allowing examination and cross-examination? It helps test the reliability of evidence and strengthen or weaken a case.
What is a weakness of disclosure obligations? Some parties may not understand what to disclose, potentially harming their own case.
What is a weakness for self-represented parties? Procedures are complex and hard to understand without legal help.
What is a weakness of party control? It can lead to delays, stress, and increased cost as parties must prepare their cases thoroughly.
Created by: nandistudies
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