LAWS4001 Lecture Notes - Lecture 1: Hazel Genn, Procedural Justice, Procedural Law
Week 1 – Introduction into Civil Litigation
The Law
Definition: facilitate a civil society, the rules that the sovereign enforces to maintain
justice, fairness and proportional punishment for the offence
oPublic: representative bodies put in place rules (parliament and courts
through precedent)
oPrivate: rules between two parties they create themselves i.e. contract
Civil Procedure
The right to bring a claim to state ordained institutions and processes in which we resolve
disputes – protects access to justice and procedural fairness
Dame Hazel Genn: ...fair procedures make losing more acceptable and contribute to
the legitimacy of the decision-making body
...procedural justice is not only theoretically important as the route to substantively
correct decision making but is an important influence on user perceptions of the
fairness of legal process
Procedural law is the mode or method of proceeding to enforce a right, it is not
concerned with the law that establishes or defines the particular right = adjectival law
1. Substantive justice: law that defines legal rights, duties, powers and liabilities
oRemedies like specific performance, the decision at the end of the matter, CL
= the law, facts more likely than not balance of probabilities based on evidence, to get
to that point there is a process
2. Procedural justice: regulated the way in which substantive rights are enforced
without impacting on the definition of those particular substantive rights
os 138 Evidence Act: unfairly or unlawfully obtained evidence is inadmissible
to ensure the trial is fair
o‘Poison fruit of the poison tree:’ Need consistent process to get substantive
justice
oNecessary pre condition for justice – if the process is flawed then the chances
of substantive justice are reduced
oThe applicable laws of procedure and evidence will be the laws of the forum
i.e. the laws of the court that is hearing the claim (e.g. NSW)
oCommon law and applicable statute of the location in which the claim
occurred (e.g. VIC) can be applied
Our ethical obligations
First duty to the court as ‘officers of the court’ – we are not mouthpieces for hire
Rule 3: Legal Professional Uniform Law Australian Solicitors’ Conduct Rules 2015 –
our paramount duty is to the Court and to the administration of justice
Rule 4: a solicitor must also:
oAct in the best interests of a client in any matter in which the solicitor
represents the client
oBe honest and courteous in all dealings in the course of legal practice
oDeliver legal services competently, diligently and as promptly as reasonably
possible
oAvoid any compromise to their integrity and professional independence, and
oComply with these Rules and the law.
Medcalf v Mardell [2002] UKHL 27 at [51]:
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
The right to bring a claim to state ordained institutions and processes in which we resolve disputes protects access to justice and procedural fairness. Dame hazel genn: fair procedures make losing more acceptable and contribute to the legitimacy of the decision-making body. Procedural justice is not only theoretically important as the route to substantively correct decision making but is an important influence on user perceptions of the fairness of legal process. Procedural law is the mode or method of proceeding to enforce a right, it is not concerned with the law that establishes or defines the particular right = adjectival law. Substantive justice: law that defines legal rights, duties, powers and liabilities o. Remedies like specific performance, the decision at the end of the matter, cl. = the law, facts more likely than not balance of probabilities based on evidence, to get to that point there is a process.
