Saturday, January 9, 2010

My Constitution, Section 28

Section 28 - Civil proceedings

28(1) All individuals initiating a civil suit shall pay reasonable fees required to begin formal proceedings as the Legislature of that jurisdiction judges proper; but no responding individual shall be required to pay any fee or other cost prior to trial.
The initiator is the one making the assertion of wrong-doing and is expecting the machinery of government to act. It is the responsibility of the initiator to pay for that until he demonstrates his case, whereupon the party at fault is morally responsible for all the costs involved.

In practice the costs will not be that much, being limited to filing fees and the like, since most of the main costs will be incurred as a result of the conduct of the trial proper. The costs in all cases, both of administrative initiation and the trial itself, are also limited to what is reasonable for the court system to incur by the provisions of section 53(2).

28(2) All individuals initiating or responding to a civil suit have the right to:
(i) trial by jury where the value in controversy exceeds the reasonably estimated average income received by Australians in five weekdays of eight hours each, as at the first of January in the year that the controversy arose;
(ii) reasonable selection of jurors who the counterparty also agrees to;
(iii) trial in the State in which the controversy arose;
(iv) reasonably prompt trial;
(v) seek the advice of and representation by counsel, whose engagements shall not be denied but for misbehaviour.
Only the first item needs explanation, as the other four have already been explained as for section 27(4) above.

The reason for the limit is that for low-value matters there is considerably less likelihood of the matter requiring direct representation of the masters of the government to keep that government in check. The position of the limit is a psychological one, just as the limit for criminal costs is, where this time since the matter is not connected with the criminal use of force and hence life and limb are not in jeopardy a higher limit is reasonable before the expense and trouble of a jury trial may be considered. It’s set at five days because that’s a week, and is connected with the shortest pay schedule for regular employees.

28(3) The jury members, or Judge in the absence of a jury, shall make their judgements and awards based on how the Reasonable Person would make balances of probabilities and apportionments of responsibilities.
The principle behind the presumption of innocent until proven guilty applies also to civil trials, that the initiator has to demonstrate his case. However, the government prosecution (as an office) in a criminal trial is not ever going to be at fault, while in a civil trial the initiator might well be at fault or at least partly so along with the respondent. This being the case, as well as having a proper objective standard in mind for making assessment of evidence the jury or judge has to discover the balance fault out between the two parties. Thus it is reasonable that to the extent the initiator demonstrates his case that the other party is at fault then the other party is obliged to make good on that fault.

28(4) In addition to the decision regarding the value in controversy, the jury or Judge shall assign the costs of the court to either party, and also assign part or all of the costs incurred by either party to either party, with each assignment being based on how the Reasonable Person would find appropriate on balances of probabilities and apportionments of responsibilities.
This is a continuation of the previous clause, this time applied to the costs of the trial itself and not the value in controversy. The same reasoning therefore applies.


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