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A Legal Analysis of Finkelstein, Civil Procedure

Finkelstein’s critique of Australia’s civil justice system, discusses reforms to improve truth-seeking, explores Olijnyk’s aims of civil procedure, and reviews legal strategy in contractual and pre-litigation contexts.

Mason Bennett
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Problem 1a) What does Finkelstein see as the biggest problem with the civil justice system in Australia?Of his main proposals for reform, which do you think have the most merit?Finkelstein in "The Adversarial System and the Search for Truth', tells that his biggestproblem with the civil justice system in Australia is that it is not well adapted to arrive at thetruth. Finkelstein poses two main reforms to change Australia's adversarial system to solvethis problem. This includes changes to the court's role and changes in lawyer'sresponsibilities to the courts. The reform that I think has the most merit would be to changethe court's role. I think the arguments presented for this reform are attainable and legitimate.Finkelstein points out that a judge should be aware of their limitations of knowledge and seekout an active role in understanding the case if needed. With the judge's role being limited inthis matter, this change could be useful. Finkelstein suggests pre-trial examinations byindependent examiners to question witnesses, instead of solely relying on each of the partiesto understand the case. This was an interesting suggestion which I believe could be useful insome cases, however the selection process would need to be extremely reliable for it to work.As well, Finkelsteins proposal of independent expert witnesses would promote a fairersystem in Australia as it would give the court its own expert witness to assist in coming to thetruth. Ultimately, I think the proposal of making changes to the court's role is one that hasmore merit than the latter, inspiring more efficiency and likelihood.b) In your opinion, should civil procedure aim at the 'truth' as Finkelstein suggests?I believe that civil procedure should aim at the 'truth'. I don't know that an ultimate truth canever be found in each case, but it is the responsibility of the legal system to try and comeclose to it. If it didn't, there would be no hope or trust in it. I don't think there is a point tolegal proceedings at all if it is not aimed for. One party holds the truth or as close to what thetruth is and if civil procedure doesn't aim for it then there is no reward for the party trying toprove the truth. Nor no highlight of how the other side has manipulated the truth. Due to this,yes, I believe in my opinion that civil procedure should aim at the truth as Finkelsteinsuggests.c) What does Olijnyk consider the main aims of civil procedure? What are the various 'trade-offs' that she identifies in these aims?Olijnyk considers the main aims of civil procedure to be justice and efficiency. The 'tradeoffs' identified is the relationship between the objectives of justice for the parties, justice forthe public ('the claims of other litigants') and public efficiency ('efficient use of courtresources'). The 'trade offs' surround the idea of compromising efficeny for justice.Problem 2Part AIn this matter, I would first look deeper into the facts that give the client a right to enterproceedings. I would overview the joint venture agreement and confirm that the faults whichthe second company have said are minor and can be seen as maintenance/or servicing underthe responsibility of our client do not align with Australian design rules.
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