The Parties (VCE SSCE Legal Studies): Revision Notes
The parties
Introduction
In civil disputes, the main parties are the plaintiff and the defendant. The plaintiff is the person or organisation bringing the claim, while the defendant is the person or organisation defending against the claim. In some cases, there can be multiple plaintiffs or defendants involved in the same dispute.
Understanding the roles and responsibilities of parties is essential because they control how the case proceeds, what evidence is presented, and how the dispute is ultimately resolved.
The parties are the driving force behind civil litigation. Their decisions and actions shape every aspect of the case, from the initial claim through to the final resolution. This central role makes understanding their responsibilities crucial for anyone studying civil procedure.
Roles of the parties
Burden and standard of proof
The parties have distinct responsibilities when it comes to proving their case. The plaintiff carries the burden of proof, meaning they must establish the facts that support their claim. The defendant must demonstrate that their defence provides a valid answer to the plaintiff's allegations. If the defendant files a counterclaim (a separate claim in response to the plaintiff's claim), they too must prove their case.
In civil disputes, facts must be established on the balance of probabilities – meaning it is more likely than not that the alleged events occurred. This is a lower standard than the "beyond reasonable doubt" standard used in criminal cases.
Make decisions about the conduct of the case
Victoria's civil trial system operates on the principle of party control. This means each party has complete authority over how their case is conducted, provided they follow the rules of evidence and procedure. Unlike systems where an external investigator seeks out the truth, parties in Victoria control:
- What claims they will make
- What defences they will raise
- Which witnesses they will call to give evidence
- How they will present their arguments
This autonomy gives parties significant responsibility but also requires them to make strategic decisions that can significantly impact the outcome of their case. Party control ensures that the parties, rather than the court, drive the litigation process.
Party control is a double-edged sword. While it provides autonomy and allows parties to shape their case according to their strategy, it also means parties must take full responsibility for their decisions. A poor strategic choice – such as failing to call an important witness – can have serious consequences for the outcome of the case.
Disclose information to the other party
One of the most important responsibilities parties have is discovery – the obligation to disclose relevant documents to the opposing party. Discovery is considered a fundamental step in civil proceedings because it ensures both sides have access to key information and prevents unfair surprises during trial.
This obligation continues throughout the proceeding, up to and during the trial itself. There are limited exceptions, such as when documents have been legitimately lost.
Examples of Discovery Documents
Documents that may need to be disclosed include:
- Medical records and communications: If a plaintiff claims physical injuries, medical records, text messages, and emails showing the injury must be disclosed
- Emails and correspondence: If a plaintiff alleges defamatory emails were sent, those emails are relevant and must be handed over
- Contractual documents: If a defendant claims they fulfilled their contractual obligations, they should produce evidence demonstrating compliance
The discovery process ensures transparency and allows both parties to prepare their cases effectively, promoting the principle of fairness.
Parties must disclose documents even when those documents are harmful to their own case. This obligation promotes fairness but can be difficult for parties to understand and accept, particularly self-represented litigants.
Exchange evidence
To prove their case, parties must rely on evidence – information presented to the court to establish facts. Evidence is particularly crucial when documents alone cannot tell the complete story, or when someone needs to verify what is contained in written materials.
There are two main types of evidence in civil disputes:
Lay evidence is testimony given by ordinary people about what they witnessed or experienced. Lay witnesses do not provide expert opinions; instead, they testify about factual circumstances they observed firsthand. For example, in a negligence case where a plaintiff claims to have slipped on oil outside a shop, a bystander who witnessed the fall could provide lay evidence about what they saw.
Expert evidence is testimony provided by qualified professionals who offer specialized opinions on issues requiring technical knowledge. Experts may have qualifications in fields such as medicine, accountancy, finance, engineering, or law.
Expert evidence is commonly used in:
- Personal injury cases, where medical professionals assess the nature and extent of injuries
- Mental harm cases, where psychologists or psychiatrists provide professional opinions
- Financial or business loss cases, where accountants or financial experts calculate damages
For instance, in a breach of contract case involving a document with handwritten alterations marked with initials, either party might need expert evidence to establish who made those changes.
Participate in the trial
The parties play active roles throughout the trial process. Their participation includes:
Making opening and closing addresses: If legally represented, the party's barrister presents opening and closing submissions to the court. The solicitor and barrister work together to prepare these submissions, with the barrister delivering them orally. These addresses outline the party's case and summarize the key arguments and evidence.
Presenting the case: Parties (or their legal representatives) present evidence to the judge or jury. When witnesses give oral evidence, barristers conduct examination-in-chief – questioning their own witnesses to establish facts that support their case.
Cross-examination: Barristers question the opposing party's witnesses through cross-examination. This process aims to test the credibility (truthfulness) of witnesses and identify weaknesses, inconsistencies, or gaps in their testimony. Cross-examination is a critical tool for challenging the opponent's case.
Real-world example: defamation claim in the County Court
Real-World Case: Aurisch & Anor v Wilson [2022]
In this case, a dog breeding company and its owner (the plaintiffs) sued a defendant who published negative reviews on their Facebook page. The plaintiffs claimed the reviews were defamatory and damaged their reputation. They sought damages as a remedy.
The Trial:
- The defendant raised several defences, including that the posts represented her honest opinion and were substantially true
- The trial lasted six days in March 2022
- The plaintiffs were legally represented, but the defendant represented herself
Party Control in Action: During the trial, the plaintiffs called multiple witnesses, including employees, and also gave evidence themselves. The defendant called only one witness and chose not to call other potential witnesses who may have had relevant evidence. This decision illustrates the concept of party control – the defendant controlled which witnesses to call, even though additional witnesses might have strengthened her case.
Outcome: The judge found in favour of the plaintiffs and awarded $115,000 in damages plus interest. The defendant was also ordered to pay the plaintiffs' legal costs. The judge noted that the evidence did not establish why the defendant made the defamatory posts, describing the reason as "a mystery".
Key Lessons: This case demonstrates several key aspects of the parties' roles: the burden of proof on the plaintiff, the presentation of evidence through witnesses, the impact of party control, and the consequences of strategic decisions about which evidence to present.
Comparison: criminal and civil cases
While civil and criminal cases share some similarities, there are important differences in the roles of the parties:
Similarities
Both criminal prosecutors and civil parties have ongoing disclosure obligations. They must disclose relevant documents to the opposing side, even when those documents are detrimental to their own case. This ensures transparency and fairness in both types of proceedings.
Both types of trials allow parties to present their case fully. This includes making opening and closing addresses, examining their own witnesses, and cross-examining the opponent's witnesses. These opportunities ensure each side can tell their story and challenge the other side's evidence.
In both criminal and civil cases, parties must not mislead the court and must cooperate with each other to facilitate the proper administration of justice.
Differences
Discovery obligations differ significantly. In civil cases, defendants have ongoing obligations to discover documents. However, in criminal cases, the accused does not have the same discovery obligations – the prosecution cannot compel the defence to hand over documents in the same way.
Jury considerations are different. Most civil trials do not involve juries, so civil parties generally do not need to make opening and closing addresses to a jury or consider jury instructions. In criminal trials, jury management is often a significant concern.
Party control operates differently. In civil cases, parties have almost complete control over their case strategy. In criminal cases, the prosecutor's discretion is more limited – prosecutors cannot always choose what evidence to present or withhold, as they have special obligations to ensure justice is served.
Strengths and weaknesses
Understanding the strengths and limitations of the parties' roles helps evaluate how well the system promotes the principles of justice (fairness, equality, and access).
Strengths
Ongoing disclosure obligations promote fairness by ensuring both parties know what documents exist before trial. This prevents surprise evidence from emerging at trial and allows parties to prepare their cases thoroughly. When both sides have access to the same information, the principle of equality is upheld.
Opportunity to present cases ensures both parties can make opening and closing addresses, present evidence, and cross-examine witnesses. This comprehensive opportunity to participate promotes fairness by giving each side a full chance to argue their position.
Complete party control means parties are not forced to say or do anything against their will. They can decide what claims to make, what defences to raise, and what evidence to rely on. This autonomy respects the rights of parties and promotes access to justice by allowing parties to shape their case according to their needs.
Weaknesses
Unequal understanding of disclosure obligations can disadvantage some parties. While some parties may be very familiar with their obligations, others – particularly self-represented litigants – may not understand that they must disclose documents even when those documents harm their case. This can undermine equality and fairness.
Complex procedures make it difficult for parties to participate effectively without legal representation. The rules of evidence and procedure are technical and difficult to understand, creating significant challenges for self-represented parties. This impacts access to justice, as those who cannot afford lawyers face substantial disadvantages.
Time and cost implications arise from party control. Because parties need time to prepare their case and make strategic decisions, delays can occur. These delays add to the stress of litigation and increase costs, potentially limiting access to justice for parties with limited resources.
Exam guidance
Exam Success Tips
When answering questions about the parties:
- Link to principles of justice: Always connect the roles, strengths, and weaknesses of parties to fairness, equality, and access to justice
- Use specific examples: Reference real cases or hypothetical scenarios to demonstrate understanding
- Evaluate both sides: Consider both advantages and disadvantages when asked to assess or evaluate
- Apply party control correctly: Remember that party control gives autonomy but also creates responsibilities and potential delays
- Distinguish from criminal cases: Be prepared to compare and contrast the role of parties in civil and criminal proceedings
Remember!
Key Points to Remember
- The plaintiff brings the claim and carries the burden of proof; the defendant defends against the claim
- Party control means each party decides how to run their case, including what claims to make, what defences to raise, and which witnesses to call
- Parties have ongoing discovery obligations to disclose relevant documents, even those harmful to their own case
- Lay evidence comes from ordinary witnesses about what they saw; expert evidence comes from qualified professionals offering specialized opinions
- Parties participate in trial by making opening and closing addresses, conducting examination-in-chief of their own witnesses, and cross-examining the opponent's witnesses
- Key strengths include comprehensive participation opportunities and disclosure obligations; key weaknesses include complexity for self-represented parties and potential for delays