Key Concepts in the Civil Justice System

Identify the party who holds the burden of proof in a civil trial

(a)  

The standard of proof in a civil proceeding is:

• On the balance of liability

• On the balance of probabilities

• Beyond probable doubt

• Beyond reasonable doubt

Holly, 18, is a defendant in a civil proceeding. The plaintiff is represented by a large law firm, but Holly is unrepresented. Holly has difficulties with understanding court proceedings and has been given little assistance from the judge when attending court hearings.

• Access, because Holly is likely to have difficulties accessing information about her rights and the processes, and accessing the court’s dispute resolution methods such as mediation.

• All of the principles of justice have been affected for the reasons stated in the options.

• Equality, because Holly is likely to be on an unequal footing due to her age and socioeconomic status.

• Fairness, because it is possible that Holly will have difficulty presenting her side of the story and rebutting the other side’s case.

Describe one benefit of representative proceedings

Which of the following is the most accurate definition of ‘representative proceedings’?

• A legal proceeding in which a group of people who have a claim based on similar or related facts bring that claim to court in the name of one person.

• A legal proceeding in which an individual sues a group of people because of similar or related facts.

• A legal proceeding in which both parties are represented, and their representatives run the case on their behalf.

• A legal proceeding in which a group of people sue the government.

Karen has sued Felicia for defamation. Felicia has launched a counterclaim, alleging that Karen has also made defamatory comments about Felicia. Who does the burden of proof lie with?

(a)  

Representative proceedings can increase access because:

• the group members will be able to see the defence raised through pleadings.

• a litigation funder may be prepared to fund the proceeding which allows the group members to pursue a claim if they cannot fund it themselves.

• the parties will be able to put their case forward to an experienced judge.