2. The Civil Justice System Flashcards
the civil justice system
the civil justice system is a set of methods, processes and institutions used to resolve civil disputes
key purposes of the civil justice system
- enabling a person to enforce their legal rights or to take action against wrongs
- determine whether a defendant is liable and award a remedy where the defendant has been found liable
aim of civil action
to restore the plaintiff to the position they would have been in, as far as possible, if the wrong had not occurred
types of civil
- family law
- defamation
- trespass to land
- wills and inheritance
- breach of contract’
- nuisance
- negligence
fairness
fairness involves impartial treatment surrounding processes and procedures for all people under the law without fear or favour
access
access involves the provision of a range of resources and institutions to settle disputes within the legal system
equality
equality involves the provision of equal legal opportunities and equal treatments for all citizens under the law
fairness features
- the time it takes for a dispute to be resolved and related delays
- whether or not pretrial proceedings have been followed correctly (eg. exchanges of evidence)
- whether procedural rules and laws have been applied
equality features
- the impartiality of a judge and jury when resolving civil disputes
- the extent to which the civil justice system is available to everyone
- the availability of legal advice and assistance
when can representative proceedings be commenced
- if seven people or more have claims against the same person
- those claims relate to the same, similar or related circumstances
- the same issue need to be decided
types of representative proceedings
- class actions
- -product liability class actions
- -natural disaster class actions
benefits of a representative proceeding
- the group members can share the cost
- it is a more efficient way of dealing with a number of claims
- people can pursue civil actions that they might not be able to afford
options for negotiation
- arranging an independent third party (mediation/conciliation)
- arranging negotiation or other dispute resolution services through alternate bodies
benefits of negotiation include
- the cost, time and stress involved in commencing a formal civil action may be avoided
- the parties have control over the outcome
- the parties may be more prepared to accept an outcome that they have helped come to
disbursements
- these are ‘out of pocket expenses’
- -court fees
- -mediation fees
- -expert witness
adverse costs orders
if the plaintiff’s case is unsuccessful, they may also be ordered to pay some of the defendant’s costs
limitation of actions
the restriction placed on the time within which a civil action can be commenced (Limitation of actions act 1958 (vic))
limitation of actions purpose
- the defendant does not have to face action after a significant amount of time
- evidence is not lost and people can still remember what happened
- disputes can be resolved as quickly as possible
- -promotes social cohesion
things to consider when assessing a defendant’s ability to pay a remedy include
- whether or not the defendant is bankrupt
- whether or not they are in jail
- whether or not the defendant is a company
- whether or not the company is overseas
CAV
CAV is a complaints body which offers free dispute resolution services to people who make a complaint about another policy
CAV purposes
- laws about the sale and purchase of goods and services
- provides consumers and traders, and landlords and tenants, with a dispute resolution process
CAV dispute resolution methods
- conciliation, primarily over the phone
- -involves the assistance of a third, neutral party, the conciliator
- –does not make suggestions on behalf of the parties
- –usually has specialist knowledge
- -if the party comes to an agreement, they can sign a terms of settlement which is enforceable by the courts
CAV considerations
- whether the dispute is within their jurisdiction
- whether the dispute is likely to be resolved
- whether there are other ways to solve the dispute
- whether the issue has already been dealt with
CAV jurisdiction
- the sale of goods and services
- residential tenancies
- retirement villages
CAV strengths
- CAV’s conciliaition service is free
- the process is informal
- CAV aims to resolve matters in a timely manner
CAV weaknesses
- not all cases are accepted
- CAV has no power to compel parties to undergo conciliation
- informal nature means the parties may not take the matter seriously
VCAT
a dispute resolution tribunal
tribunal
dispute resolution bodies that deal with a limited area of law and build up an expertise in that area
VCAT divisions
administrative, civil, human rights, planning and environment, residential tenancies
VCAT’s purpose
to provide Victorians with a low-cost, accessible, efficient and independent tribunal
VCAT dispute resolution methods
- mediation
- compulsory conferences (use conciliation)
- a final hearing before a member
mediation
- cooperative method of resolving a dispute
- mediator does not interfere or offer legal advice, and also does not need to be an expert
- terms of settlement may be drawn up to make the decision legally binding
- claims between $100 and $10 000 may be eligible for fast-track
VCAT appeals
- only on a question of law
- if the tribunal was overheard by a (vice) president, the appeal will be heard in the court of appeal
VCAT’s jurisdiction
- purchases of sales and goods
- disputes between tenants and landlords
- discrimination/sexual harrassement
- domestic building works
- lawyers, lawyers’ contracts, legal services
VCAT cannot hear:
- representative proceedings
- disputes between employers/employees
- disputes involving federal or state law
VCAT strengths
- normally cheaper than courts
- flexible (fairness + equality)
- informal
VCAT weaknesses
- cannot create precedent
- there is a limited right to appeal
- cannot solve some large and complex cases
pleadings
documents that set out and clarigy the claims made by both parties, any defences claimed by the defendant, and the remedy being sought by the plaintiff
discovery of documents
parties of documents that are relevant to the issues in dispute
- usually via electronic exchange
- parties will have copies of each other’s documents before trial
- usually parties are also required to submit documents that are adverse to their own case
purposes of exchange of evidence
- to ensure procedural fairness
- avoid taking an opponent by surprise
- allow a party to determine the strength of the other side’s case
types of court and VCAT delays
- backlogs
- pre-trial procedures
- evidence gathering and preparation
delays fae
f
-can affect reliability of evidence
-deny fair and due processes
a
-may force a party to settle or withdraw their claim
-may also deter parties from pursuing their claim in the first place
e
-can have a serious impact on more vulnerable parties
case management powers fae
f
-processes can be adapted to adopt the needs of the parties
-certain powers can be focused on reducing the time it takes for a dispute to be heard
a
-allows for flexibility in formalities in judge orders, etc
e
-ensure flexibility without favour or discrimination
-orders and directions can apply equally to both parties
barriers to communication fae
f
-people who are unable to communicate well in English may not understand their legal rights of ADRs
–reduces their ability to present their case in the best possible light
a
-may force a party to settle or withdraw their claim due to a lack of understanding of the processes
e
-communication barriers may mean a person struggles to tell their side of the story
lack of services in rural and remote areas fae
f
-decline of legal services in remote areas affects people’s ability to seek legal advice and assistance
a
-can affect a person’s ability to pursue their legal rights
e
-cannot be equal before the law if they have unequal access to legal services
representative proceedings fae
f
-saves a party from court processes and from having to give instructions
-judges manage class actions so that they are efficient and fair
a
-people who cannot afford to initiate their own claim can join a class action
e
-often conducted by experienced legal practitioners and law firms
reform fae: increased use of case management
f
-involves a greater use of the judge in managing the dispute, and allows the judge more oversight into the progress of the case
a
-The changes try to allow for equality by treating people equally in the process, and by ensuring they are subjected to the same processes.
e
-The use of case management powers allows for greater access to the courts as it can avoid the need for trial, and it allows access to judicial staff such as judicial mediators. It can also mean that people do not have to go all the way to trial to get the outcome they were seeking.
reform: Introduction of a National Justice Interpreter Scheme
- The Law Council found that there was limited availability of free and appropriate interpreter services.
- The National Justice Scheme would implement a systemwhereby people with non-English speaking backgroundswould have access to free, professional and qualifiedinterpreters.
reform fae: Introduction of a National Justice Interpreter Scheme
f
-it provides a person from a non-English speaking background with a greater understanding of court processes and procedures, which may not otherwise exist without interpreters.
a
-The use of interpreters assists vulnerable parties to try to get to an equal footing with those who are able to understand court processes
e
-allows for greater access to court processes and procedures, understanding of court and tribunal documents, and understanding of rights.
