Comparative Studies: Civil Procedure System in Australia and Indonesia

Final Assignment for Civil Procedural Law

Daisy Kharisma Qisthi 10/304249/HK/18546

International Undergraduate Program Faculty of Law Universitas Gadjah Mada

I.

Pre-trial Procedure

Different legal system between civil law and common law affected different rules and process in civil procedure. In Australia, civil proceedings are usually started after plaintiff has consulted a solicitor. The solicitor may send letter of demand to the defendant that the dispute may be settled without the need of litigation. The letter gives the defendant two weeks to reply or to pay the amount demanded. If the defendant is failure to reply or respond will result a writ of summons being issued. The letter of demand contains point of claim and the compensation or remedy. In Indonesia, the point of claim should be directly brings to the court unless both of parties agreed to settle the dispute outside the court. However, in Indonesia there is no specific pre-trial obligation, but before trial parties can obtain mediation process before court it depends on both of party willingness or the mediation within the court which is in the first stage of civil proceeding. The case should be submitted first to the court. Then, the process of mediation is one of stage proceeding and judge as the mediator. Both of legal systems acknowledge litigation process (taking legal action) should be the last resort. The action should be considered after try other possible forms of dispute resolution outside court. The pre-trial stages determine by each court where the case will be heard. In Australia, the procedure of each court is different, thus it need exchange of documents between parties. The steps involves in this pre-trial proceeding is similar with the litigation process. The sequence of civil pre-trial proceedings is more in the exchange of legal documents between parties. The process is refer to pleadings which to inform the defendant that such legal action is being taken. Pleadings set out precise nature of claim. The defendant has rights to deny, defend, or admit the liability from the plaintiffs claim. Pleadings are to clarify issues before the actual proceeding and opportunity to gather sufficient evidence to support their case, thereby reducing the court time required. Pleadings in pre-trial should include with a writ of summons which being prepared by the plaintiffs solicitor. Then a copy of writ summons is filed in the appropriate court, and the summons should be registered, issued and witnessed by the court before it can be served on the

defendant. The plaintiff selects whether the case will be heard by single judge or single judge and jury. A writ is served between 12 months and additional 6 months. If it beyond the time limitation a writ of summon become invalid. The writ must be personally handed to defendant or its representative. Second, the notice of appearance which give time limitation for defendant to reply describe in writ of summons. If the defendant ignores the summons, the case will proceed to court to be heard without the appearance of defendant. For the interest of the defendant, it needs to submit reply by submits the jurisdiction of court and documents that inform the entry of appearance. Later, the claimant should send a statement of claim to the defendant which precisely describe full detail of cause of the action, the facts of case, and the remedy that plaintiff claim. The defendant by its solicitor is allowed to refer to the statement of claim to create a statement of defence by admit or reject a statement of claim and may response with counterclaim. In Indonesia, to set a claim the plaintiff should register to court. The parties may choose whether accompanied by lawyer or not. In mediation in court, the judge is active to seek amicable settlement of case according to article 130 HIR. It further explained in circular letter of Supreme Court number 2/2003 concerning the appointment of mediator, if parties do not appoint mediator, head justice will appoint a mediator. The mediation process is obligatory in stages of trial in Indonesia. In mediation process, the exchange of document is necessary. Further, in Australia parties have right to request information from other or to ask further question to gain better understanding of facts. The interrogatories must be answer in writing within 60 days. The parties in the court can use the document as a cross-check of what person claim in trial. Failure to answer interlocutory may result an interlocutory order which is the order to provide sufficient satisfactory answer of the discovery. The process of pleadings, interrogatories or discovery enables parties to prepare for court and establish their case which effect to reduce the time spent in court. However, this pre-trial process lengthening the time before the action brought to the court because the exchange of documents and respond from each party usually create delay.

In Indonesia, the preparation before court is more simple, how it should directly submit document to the court then it is not interchange claim and counterclaim between parties. The similarity is on obligation to have mediation or amicable settlement before court. However, the differences are the evidence from mediation cannot be used to be evidence to appear in front of the court meaning that all evidence should be destroy. Further, there is no stipulation of right to ask question or further explanation from other parties in writing, all of the document executed and discuss during the process of mediation and there is no interchange of document between opposing parties. In conclusion, pre-trial process has no effect to the court in Indonesia if the parties agreed to proceed the case to litigation process. Pre-trial conference is a obligatory in Australia and it should be attend by the parties. The conference is aimed to negotiate an outside court proceeding. Each of parties present the case, the defendant can accept or reject the claim. Most of cases in civil dispute are settled at the pretrial conference. Moreover, in Indonesia, the pre-trial conference is the mediation itself. Thus, the judgement also can be binding if the parties agreed to the settlement.

II.

Court: Hearing and Procedure

The main different between civil law and common law countries are in the jury system. Civil law not acknowledged jury system. Civil proceeding in common law countries, the plaintiff usually decides the mode of trial. Either party has up to three peremptory challenges from a list of 12 potential jurors. The trial begins by the opening of plaintiff which is the summary of claim. Then it followed by the examination of witnesses from the plaintiff side. The defendant side has right to cross examination which to ask question to the witnesses and tried to seek weaknesses from the witnesses. The defendant may submit rejection of the case or the defendant can ask the court to dismiss the trial due to insufficient evidence. However, mostlikely in Australia the case will be proceed because, the process of pre-trial has sufficiently done by the parties by exchanging of document which effect the case established has been valid. After the examination of witnesses, cross examination and re-examination, the defendant should sum up their defences and continue by the plaintiff sum up. If there no presents evidence available, it

directly to plaintiff sum up, continue with defendant sum up and ended with decision. Whether the claim dismissed or upheld, the decision is contain with the costs and remedy awarded. There is no jury system in Indonesia. Judge for civil proceeding usually consist of three judges. The hearing procedure in Indonesia and Australia concerning examination of witness are still similar. The consequence of no pre-trial of exchanging document between parties in Indonesia, usually the Plaintiffs points of claim can be rejected by the defendant in the first hearing. The defendant has right to file exception (eksepsi), the exception contain either the court has no jurisdiction, error in persona (wrong person), or obscure libel in which the claim is not clear. Thus, the plaintiff should fulfil the formal and material from the plaintiff.

III.

Civil Remedies and Legal Cost

The civil legal action is related to suffer of loss and aim to ask compensation for loss and damages. The aim of civil remedies is to restore the parties to the original condition before the action that created such loss happened. The most common civil remedy award is damages because it has directly causality between the conduct and it result damage. In common law countries, it acknowledge several types of damages, namely, compensatory damages which is awards that attempts to compensate the specific or special damages such as money or medical expenses and general damages such as cost of pain or enjoyment of life. This general damages is hard to be measured. Exemplary damages, concerning the defendant becomes the example of community which usually the defendant should pay large amount of nominal damages to plaintiff. Nominal injuries is related to the amount of compensation required. The plaintiff is entitled to receive the interest on damages, the commencement of payable interest depend on whether it was liquidated or unliquidated. A liquidated payment applies to a situation in which the defendant was liable to pay the plaintiff resulting it need of litigation. Unliquidated payment related to estimate the amount of pain, suffering, and enjoyment of life. In the circumstances where the plaintiff cannot claim for damages, injunction is awarded to prohibit certain behaviour which related to fulfilling the contractual obligation or term in contract. Injunction is also known as interlocutory. It is issue before the case has finally decided.

For instance, the plaintiff may issue an interim injunction to prevent the continuing defamatory statement. In Indonesia, it is also quite similar that either the plaintiff or the defendant has right to defence an injunction to limit the behaviour that would harm the other party, and judge directly give the order not to do such action. Without the command from the parties, judge also has the liberty to limit certain behaviour in court. Concerning the damages, plaintiff has right to claim liquidated or unliquidated, in Indonesia it called material or immaterial damages. Material is all direct damages and immaterial related to future losses that may be suffer by the plaintiff. Australia acknowledges several specific performance in the case involving breach of contracts. The plaintiff usually aims the defendant to fulfil the contractual obligation. If the defendant has property belonging to the plaintiff, the court may take restitution that the defendant should return the property. If the dispute related to breach of contract or condition in contract, it may result recession order, meaning that the court will held the rescind of contract. Enforcement of legal remedies, it may not only paying for damages but namely, a warrant o distress, a garnishee order, an attachment earning, a writ of sequestration, bankruptcy and liquidation, and imprisonment. This term of enforcement of civil legal remedies could also be applied in Indonesia point of claim to be enforced. A judgement usually contain with legal cost payment. In most of cases, whether in Indonesia or Australia, the unsuccessful party will have to bear the responsibility of legal costs for parties. In certain cases, the parties can divide the payment for legitimate portion of legal costs, it usually for obtaining legal status or in family cases. The last step of trial is appeal. Parties involved in a civil action have the right to appeal to a higher court if they not satisfied with the judge verdict. The appeal process in Indonesia, the party who want to issue an appeal may only go the first instance court that held the case to submit the issuance of appeal. In conclusion, there are no significant different concerning the legal remedy in Indonesia and Australia, the cost bear for the legal action, and the last stage of trial.

IV.

Conclusion

Both of Indonesia and Australia considered the court or litigation as the last resort of settling the dispute. It prefers amicable settlement of dispute. However, the obtaining of amicable settlement in both of countries is different. Indonesia is in the mediation process within the court and Australian is in the pre-trial process in which it need ensure all facts, document has been fulfilled and issuing a decision in pre-trial as part of its mediation by pleading. In the hearing and trial process also it does not have much different, but the different is in the system of court. In Australia the plaintiff may choose either using jury system or judge while in Indonesia there since using civil law countries, judge system should be use. Further, the legal remedy and cost, there is no significant different between these countries.

References Aldous, Jules, 2005, Making and Breaking the Law, seventh edition, Macmillan Education, Australia. Samosir, Djamanat, 2011, Hukum Acara Perdata, Nuansa Aulia, Bandung.