Activity 5s

1. The task word ‘discuss’ require students to consider both sides of something. In this case, ‘discussing’ the ability of the responsibilities of partiesto achieve the principles of justice requires students to write about relevant strengths and weaknesses of parties. Responses will vary according to the arguments selected.

        Arguments in support of the responsibilities of partiesachieving the principles of justice include:

• Parties are able to thoroughly review their own cases and decide which legal arguments and evidence will give them the best chance of success – this level of agency and decision-making ability gives them access, and may encourage confidence in the fairness of the outcome.
• Parties are experts in their own cases, and giving them control is therefore arguably the most effective and efficient way of deciding how their side should be argued – any measure that reduces time spent resolving the case arguably improves access because it achieves earlier closure and reduces costs
• The ten overarching obligations for parties introduced by the Civil Procedure Act 2010 put appropriate limits on the power of parties to prepare and control the conduct of their case – a balance is struck between the access of parties to making decisions about their interests, and the fairness and efficiency of the resolution process.
• Parties are able to manage their own resources, such as time and money. They can make choices that best use the resources they have available and are willing to spend on the resolution of the dispute; these choices include negotiating with and finding common ground with the other party. If parties were not given control over the conduct of the dispute, there may be less opportunity for this cooperation and settlement. Settlement itself achieves access by reducing time and costs, but parties also achieve access by being in control of where they allocate their resources.
• Parties are given opportunities to test the processes of the court and to argue errors they believe might have been made in either the trial or determination of remedies. This increases the perception of fairness, because avenues of appeal are open until either both parties or satisfied or the full bench of the High Court has heard the grounds for the final appeal and either accepted them or rejected them.

        Arguments against the responsibilities of partiesachieving the principles of justice include:

• Unlike the duty imposed on the criminal prosecutor to call all credible and relevant evidence, parties to a civil case are free to call only the evidence that supports their case – they are permitted to suppress evidence that is unfavourable to their side, which may reduce the fairness and truth value of the outcome.
• Party control puts of a lot of responsibility and stress on individual parties, most of whom are not experienced in arguing at trial – this then increases party reliance on legal representation, which increases the costs of trial, diminishes access, and reduces equality between parties if one party has greater financial resources than the other.
• Party control may cause delays – through inexperience, failure to select only the best arguments, or by deliberately trying to delay and ‘bleed’ the opposition of their money – if those strategies are not curtailed by judicial case management.
• Some parties may feel that the case management powers of judges introduced in the Civil Procedure Act 2010 strip them of access to justice by taking too much of their decision-making ability away.
• Party control disadvantages less experienced parties and individuals and benefits government parties, corporations and wealthy parties – party control assumes a level of equality between opposing sides, but an imbalance between an expert court user and a novice court user decreases the fairness of the contest.

2. The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence when referring to the arguments for and against the responsibilities of parties, that theydo achieve one principle of justice. Responses will vary according to the arguments selected.