The adversarial system

Contributed by StephenShaw and current to 27 July 2018

Legal disputes in Australia are resolved by way of an adversarial system. This means that the two parties to the dispute are each responsible for presenting their own evidence to the court and proving their own case. Each party is responsible for attacking the case mounted by the other party. The Judge or Magistrate that hears the dispute acts as a referee and will only look at the material put before her or him. In other words, the Judge is generally passive, and will generally listen without much comment to what the parties have to say.

This means that if one party neglects to provide something important the Judge will generally not inform them of that failure. In a case where one party to a dispute has a lawyer and the other party is self-represented, this can leave the self-represented person at a serious disadvantage. Generally the unrepresented party will not have a clear idea about what material is legally important. In such instances it is not unusual for judges and magistrates to try and help the self-represented party by asking questions (particularly in criminal cases), but there is a limit to how much a judge or magistrate can move away from being the neutral party.

The adversarial system has evolved from, among other things, the ancient British practice of trial by combat. Each court case is in effect a battle, and lawyers are hired fighters. The usual justification for this system is that the person who will struggle and fight the hardest and will be in a position to best put up the material that proves that she or he is in the right will be the person who is directly involved.

In a world where everyone has access to the same legal resources this may well be true, but it is problematic when the parties to a dispute are not equal. If, for instance, you wish to dispute a matter with your bank, the bank will have far greater resources when the matter goes to court than you will. This means that sometimes the person who is really in the right may be worn down by the expense of a court case, and the stronger party will be able to win because they are strong and not because they are legally right. This is problematic in criminal matters, where the accused has to match the resources of the State, which will be trying to prove that they are guilty.

The Australian legal system has a number of safeguards built into it to try and alleviate this problem.

In particular, the last few decades have seen a gradual shift to mechanisms that allow people to try and resolve disputes outside of or before trial. There has been an increased use of compulsory mediation and conciliation in the court process: see further Alternative Dispute Resolution. There has also been an increase in the scope of disputes that can be settled in Tribunals rather than Courts.

However, despite the safeguards and the reforms the problem of unequal access to justice remains a fundamental issue in an adversarial system.

Civil and Criminal Matters

There are two basic forms of legal dispute that go before Australian courts. Hearings and trials are either civil or criminal.

A civil matter is dispute that usually, at one level or another, relates to money. The parties to the dispute can be individuals, companies, or even the government. Disputes can be about contracts, or about liability for an injury, about a disputed will or patent rights. Just about anything that two or more people with competing interests can argue about has the potential to be a civil dispute. Hundreds of millions of dollars could be at stake in a civil dispute, or it may simply be a matter of who is going to pay to repair a dividing fence.

In a civil dispute the party that has brought the matter to the court is known as the plaintiff (or sometimes the applicant) and the party being sued is known as the defendant (or the respondent). If the original court decision becomes an appeal in a higher court the person who appeals is known as the appellant and the person whose outcome is being appealed against is known as the respondent.

The most important thing to understand about a civil dispute is that the person who is bringing the claim, the plaintiff, must prove that claim on the balance of probabilities. This means that the plaintiff must convince the court that it is more likely than not that they are legally in the right. This is not a high standard of proof. With such a low standard of proof a party that can afford to spend a lot more money on the conduct of the litigation often has a significant advantage.

In a criminal matter the State, or government (formerly referred to as the Crown), mounts the case against a person that it alleges has broken some law, where breaking that law is an offence. The person who is being charged with the offence is known as the accused and the state is called the prosecution. It is up to the prosecution to prove that the accused is guilty, not for the accused to prove innocence. The concept that a person is innocent until the Court finds them guilty, and that the state must prove each element or part of the offence, is the most important safeguard that helps alleviate the problem of unequal access to legal resources.

In a criminal trial there are special rules as to evidence and a variety of other differences to civil matters that are explored more fully in Crime. However, the most important difference between a civil and a criminal matter is the standard of proof, or the level of proof that the prosecution must reach before a person can be found guilty of a crime.

The prosecution must prove its case beyond a reasonable doubt. This is not the same as beyond any doubt, but it is a far higher level of proof than that needed in a civil dispute.