3.2 - Victorian Civil Justice System Flashcards

Question

Civil pre-trial: directions hearing: purposes

Answer 1

- set a timetable for future pretrial proceedings stages - Hear relevant applications made by parties before trial, determine whether mediation is appropriate - assist in reaching an out of court settlement

Answer 2

9. Court ordered conciliation: judge may order parties to go through conciliation 10. pre-trial conference: a final attempt to encourage parties to settle the dispute out of court 11. certificate of readiness for trial: Both parties sign a certificate stating they have gone through all pretrial steps and have been unable to settle the dispute. plaintiff lodges in court.

Answer 3

- Administrative convenience | - Appeals

Answer 4

A court hierarchy allows for higher courts to hear the more serious, complex, and lengthy cases while lower courts hear minor, less complex, shorter cases. This structure is convenient as lower courts can hear minor cases quickly and courts are able to do relevant administration tasks in their day to day work.

Answer 5

The court hierarchy provides an avenue for appeal to a plaintiff or defendant who thinks the decision on their case was unjust on a point of law, or a question of fact. if the party can establish valid grounds for appeal, their case will be reconsidered by a higher court. Without a court hierarchy, this would not be possible, therefore depicting how appeals support the court hierarchy

Answer 6

- judge - jury - parties - legal practitioners

Answer 7

Acts as an independent and impartial umpire of the court to ensure a fair trial takes place, and both parties are treated equally, whilst giving directions to the jury based on law or fact (not bias). Also decide the admissibility of evidence, and decide the outcome and remedy when no jury is present.

Answer 8

- Ensures fairness as decisions are made only on admissible evidence - Adjudicators have no prior association with the parties, enhancing their impartiality - The judge is independent from the state/plaintiff, enabling impartial treatment

Answer 9

- can be regarded as a waste of legal resource as their expertise and still is not used to its full potential as they must remain impartial. - Cannot suggest questions, issues, or evidence to be explored in most circumstances, therefore are not always enabling the truth to be told - Unable to fully assist an unrepresented or poorly represented party as they must remain independent bodies

Answer 10

A group of 6 people in civil cases (can be 8 in complex cases, and three dismissed before deliberation) who are chosen at random from the community who decide the verdict of the case on the balance of probabilities. They must remember and analyse all facts, independently and objectively decide whether they are true, and follow instructions given by the judge on how to apply the law to the facts. In civil cases, jury’s must be requested by a party, which must be accepted by the judge. The party who chose to have the jury will incur the cost

Answer 11

- Made up of average people who are a cross-section of society, so the decision will reflect a decision and morals of the community - The decision is spread across multiple people which helps to eliminate the influence of individual biases. - Independent and impartial deciders who have no knowledge of the case, therefore shouldnt possess any biases

Answer 12

- Jury is not a true cross-section of society due to the amount of people who are disqualified, ineligible, excused, or challenged as part of the jury empanelment process. - juries do not give reasons for their decision so if they misapplie the law parties would be unaware, limiting ability to appeals - may find it difficult to set aside any preconceived ideas, such as those formed due to religion or personal beliefs

Answer 13

Have complete control over the case, meaning they make relevant decisions such as preparing their case for trial by gathering evidence, and investigating the relevant law. can also assist in empaneling jurors before trial and can request judge to give directions to the jury.

Answer 14

- parties have increased satisfaction with the outcome of the case as they chose what evidence to present - Both parties have the opportunity to prepare the best case possible to support their claims - Ability to bring out all evidence relevant such as through cross-examination with witnesses

Answer 15

- The adversarial nature of trials or hearings increases animosity between parties - delays may be caused by the time it takes parties to gather evidence and prepare their case. - The truth may not be revealed as parties lead with evidence that supports their case

Answer 16

Have a responsibility to present their clients case in the best light possible to give their clients the best possible chance of having the case go in their favour. Assist in examining and cross-examining witnesses, and have a duty to the court to act with high murals and ethics

Answer 17

- In theory parties have equal representation by legal practitioners as they have their case presented in an expert manner. - removes emotions from the arguments as a separate representative presents a party’s case rather than the parties themselves, which can help the truth come out - Have a duty to not mislead the court, meaning they cannot present misleading or deceiving arguments (civil procedure act 2010 (Vic)

Answer 18

- in reality, not all legal representation is of equal quality as each lawyer has different skills, knowledge, and expertise, meaning parties will never be equally represented. - Lawyers are costly, which may result in a party appearing in court unrepresented, and thus at a disadvantage to the other party, hindering fairness and equality - The high cost of legal representation may discourage people from pursuing their case and thus receiving justice.

Answer 19

Victorian laws have given judges and magistrates the power to manage civil case proceedings in particular ways. These mainly come from the Magistrates’ Court General Civil Procedure Rules 2010 (Vic), County Court Civil Procedure Rules 2008 (vic), and Supreme Court (General Civil Procedures) Rules 2015 (Vic) (known as court rules ' or ' rules of court '), and also Civil procedure Act 2010 (Vic). Two powers that judges have are: - power to order mediation - power to give directions

Answer 20

A judge or magistrate has the power to order parties of a civil proceeding to mediation. This power is given to judges by several sections in Civil Procedure Act 2010 (vic), and ‘court rules’. - Party’s can be referred to mediation any time before or during trial

Answer 21

A judge or magistrate has the power to give any direction or instruction they consider appropriate at any stage of the proceeding. This power is given to judges by s47 of the civil procedure Act 2010 (Vic) and the ‘court rules’ The judge can give any appropriate instruction that Obligates one or both parties to do a task within a certain time frame, or to act in a certain way according to protocols of court civil proceedings - Directions can be given at any stage of the proceedings, such as at the directions hearing

Answer 22

consider whether the dispute falls within the courts jurisdiction and whether there are other or better ways to resolve the dispute.

Answer 23

Magistrate has $100 000 Limit, county and supreme have unlimited jurisdiction. Courts cannot hearcertain matter as VCAT has exclusive jurisdiction: - domestic building disputes - retail tenancies disputes - residential tenancies disputes - planning disputes

Answer 24

Consider: - Size and complexity the of the dispute - the time it is likely to take a court to solve a dispute - whether other methods may succeed i.e mediation - the likelihood of success - ability to hire and pay for legal representation.

Answer 25

Fairness achieved through the way proceedings are conducted - judge remains impartial, and applies rules of evidence and procedure equally to both parties Constant dialogue between court and parties promotes fairness and equality - pre-trial procedures between the parties and directions hearing allow the judge to be across the issues and resolve some matters pre trial. - A decision will be reached parties can be certain that a binding (and enforceable) decision will be made

Answer 26

Courts are a costly forum so access can be jeopardised - filing and hearing fees are substantial, as are fees involved in pre-trial procedures Courts can take a long time to resolve civil disputes - pre-trial procedures are lengthy, and delays are common Courts can be stressful environments when parties struggle to follow the case - pre-trial procedures and judicial orders are complex, as well as rules and procedures. giving evidence can be stressful

Answer 27

``` BINDING DECISION Courts: yes VCAT: Yes CAV: no RULES OF EVIDENCE AND PROCEDURE CAV: no VCAT: yes (flexible) Courts: yes (strict) PRE-TRIAL PROCEDURE CAV: no VCAT: sometimes Courts: yes JURY CAV: no VCAT: no Courts: sometimes ```

Answer 28

- mediation - conciliation - arbitration

Answer 29

Name of independent third party is mediator - Mediator: role to facilitate discussion between parties and ensure all parties are being heard. Does not need to be an expert Parties try to resolve the dispute themselves. - Resolution made by parties voluntarily Parties may have representatives, but not required Resolution is not binding unless terms of settlement is formulated into orders then made by courts or VCAT. - Matthews v AusNet Electricity services Pty Ltd & Ors (2014), class action settled after 200 day trial using external mediation process

Answer 30

Courts: - used by Magistrates, County, and Supreme - can be ordered by judge at any time in procedure - can be heard before judicial mediator or private mediator VCAT: - commonly used as means of settling dispute before formal hearing - for small civil disputes involving goods and services, SMAH involves trying to settle using a VCAT mediator - if unsuccessful, a hearing is held the same day. CAV: - rarely used private use: - parties are able to use private mediators or government funded services such as Dispute Settlement Centre of Victoria as an alternative to courts, VCAT, CAV

Answer 31

Name of independent third party is conciliator - conciliator: role to facilitate discussion between parties and suggest options and possible solutions. Usually someone with specialist knowledge parties try to resolve the dispute themselves - resolution made by parties voluntarily, but may be on the advice of the conciliator. parties may have representatives, but not required. resolution is not binding unless terms of settlement is formulated into orders then made by courts or VCAT.

Answer 32

Courts: - commonly used in family court of Australia to solve family disputes - used occasionally by Magistrates, County, and Supreme - can be ordered by judge at any time in proceeding VCAT: - used in pre-hearing compulsory conferences where issues are identified, clarified, and attempted to be resolved - Sometimes used as means of settling dispute before formal hearing CAV: - Frequently used - preferred method of dispute resolution private use: - Parties are able to use private conciliators

Answer 33

- parties will have ongoing relationship after dispute is solved. - parties are prepared to compromise - parties seek privacy and confidentiality in resolving disputes - Flexibility regarding the solution is required parties wish to avoid the costs involved in a hearing or trial

Answer 34

- parties are too emotional about the dispute - one or both parties are not willing to work Cooperatively to find a solution - parties do not have a history of trust or positive interactions - There is an imbalance of power between parties - The dispute involves complex or technical legal matters

Answer 35

- less formal, less intimidating, more chance of win-win solution - cheaper as avoid pre-trial procedure, legal representation may not be needed. - quicker and more flexible, fewer rules - parties have more flexibility with solution - facilitates maintainable of ongoing relationship

Answer 36

- one party may compromise too much - one party may be tougher or argue more effectively - matter may not be resolved so may require hearing or trial to settle it - Decision may not be enforceable - if terms of settlement not signed - matter will not form precedent

Answer 37

Name of independent third party is arbitrator. - Arbitrator: role to listen to both sides and make a binding decision on parties and usually someone with specialist knowledge in the field. parties may have representation but not required arbitrator makes final binding decision - called an arbitral award

Answer 38

courts: - used occasionally by Magistrates, county, and Supreme. - for claims less than $10 000, Magistrate can refer dispute to arbitration VCAT: - hearings are not technically classified as arbitration. - Like the courts, VCAT has the power to refer disputes to arbitration CAV: - Does not use arbitration private use: - parties are able to use private arbitration, commonly used to settle commercial contact disputes

Answer 39

- parties have agreed to go - claim of less than $10 000 issued in the Magistrates court - parties seek binding and enforceable award made by third party - parties want evidence presented to a third party, subject to some rules of evidence - parties want confidentiality and less formality than a courtroom

Answer 40

- parties wish to retain control over outcome - parties do not wish for a binding decision - parties want their ‘day in court’ and all of the associated publicity - parties want more strict and formal rules of evidence and procedure

Answer 41

- Decision is binding and fully enforceable by the courts - Normally private and confidential so avoids publicity of courts - Parties have input into how arbitration will be conducted - Arbitrator often have expertise in the relevant subject matter - quicker and cheaper than courts

Answer 42

- More formal than mediation/ conciliation so can cause more stress - Parties have no control over outcome which is made by arbitrator - Can be slow and expensive depending on the process selected - Limited rights of appeal - Not always available

Answer 43

``` PRIVATE OR PUBLIC Mediation: private Conciliation: private Arbitration: usually private, can be public RULES OF EVIDENCE AND PROCEDURE mediation: no Conciliation: no Arbitration: arbitrator determines how hearing will be conducted DECISION MADE BY mediation: parties Conciliation: parties Arbitration: arbitrator BINDING Mediation: no (yes if binding deed of settlement) Conciliation: no (yes if binding deed of settlement) Arbitration: yes ```

Answer 44

A remedy is the way a court will recognise a plaintiffs right. It is what the plaintiff will seek and what a court or tribunal may award, to legally end the dispute. The general purpose of most remedies is to restore the plaintiff, to the greatest extent possible, to the position they were in before the wrong occured. There are two most common: - Damages. - Injunctions

Answer 45

``` Is an amount of money awarded to the plaintiff to be paid by the defendant. The purpose is to compensate the plaintiff for losses suffered. Losses suffered may include financial loss, physical or mental loss, and reputational loss. -compensatory - Specific - General - Aggravated -exemplary -nominal -contemptuous ```

Answer 46

The most common damages sought. Aims to achieve the general purpose by compensating the plaintiff for losses suffered. - Specific - General - Aggravated

Answer 47

can be given by a precise monetary value, Readily identifiable costs that can be calculated, such as medical expenses.

Answer 48

Will be assessed by the court according to the magnitude of the wrong done and the long-term consequences of the wrong. Costs that are difficult to calculated as they include non-financial losses, such as suffering pain, or loss of enjoyment

Answer 49

Compensation received for any humiliation or insult suffered by the plaintiff due to the defendant's conduct

Answer 50

aka punitive damages, Seeks to punish the defendant for an extreme infringement of the plaintiffs rights, and deter others. Purpose is to punish and deter defendant where conduct is wanton, malicious, violent, cruel, insolent, or scornful disregard of plaintiff’s rights. not awarded in defamation.

Answer 51

When a small amount of money is awarded to prove a legal point, i.e plaintiff may seek to make a point about being legally in the right. The purpose is to uphold the plaintiff’s rights without awarding any substantial amount of damages

Answer 52

When the court believes the plaintiff has a legal right to damages, but does not have a moral right (I.e plaintiff does not really deserve to be paid damages)

Answer 53

- damages can restore the plaintiff to their original position where the plaintiff has lost money or a good - Damages can assist a plaintiff who has suffered an impairment to have a similar quality of life before the accident - A large amount of damages awarded to the plaintiff (exemplary damages) can punish the defendant for greatly infringing the plaintiff‘s rights. - Damages can provide an opportunity for the plaintiff to highlight how they are legally in the right.

Answer 54

- Can’t fully restore the plaintiff to their original position if permanent physical or mental damage has been suffered. - Non-financial losses, such as pain and suffering are hard to estimate, so the amount of damages may not restore the plaintiff to their original position - May not effectively achieve their purposes since they cannot compensate for the time/stress of a Court case. - Can’t restore the plaintiff to their original position if their reputation has already been damaged.

Answer 55

A court order directing someone to stop doing a certain act, or compelling someone to do a certain act. Purpose is to rectify a situation caused by the person who was found to be in the wrong: - Restrictive/Prohibitive - Mandatory

Answer 56

ordering a person to refrain from undertaking an action, such as pulling down a building.

Answer 57

ordering a person to do a particular act such as performing their part of a contract they have breached

Answer 58

Interlocutory: A temporary injunction that is awarded quickly for an urgent matter (will likely be finalised or dismissed at the final trial or hearing). Final: The injunction is the court's final decision and is permanent

Answer 59

- Prohibitive injunction are a legally binding order that are effective in stopping a party from doing something - After an injunction has been ordered, the wrong should no longer be occurring. This restores the plaintiff to their original position - Interlocutory injunctions can preserve the current position of parties until a final injunction is made - Mandatory injunctions are a legally binding order that are effective in compelling a party to do something

Answer 60

- Can’t stop a defendant from doing a certain act, but not other acts outside of the injunction that still hurt the plaintiff - Merely stop further damage from occurring, cannot stop the wrong in the first place. - May not fully restore the plaintiff to their original position if damage has already been done - A defamation article - Cannot physically force a defendant to stop doing something, or to do something

Answer 61

Obligation of a party to prove facts of a case, usually rests with the party who initiates action such as the plaintiff, however can rest with the defendant during a counterclaim

Answer 62

The degree of extent to which cases need to be proven in court (strength of evidence needed). plaintiff (or defendant in a counterclaim) must prove the case on the balance of probabilities which requires said party to establish it is more probable than not that their side of the story is true

Answer 63

``` AKA class action; when a group of people with claims against the same party join together to commence civil action. The person who represents the group is called ‘lead plaintiff’ and the others are group members. Can only be commenced if there are at least seven people who have claims against the same person, and claims relate to similar circumstances, and same issues need to be decided ```

Answer 64

Magistrates: up to $100 000 (less than $10 000 goes to arbitration + heard by registrar) County: unlimited jurisdiction Supreme: unlimited jurisdiction, however more complex cases go to supreme due to more experienced justices)

Answer 65

- negotiation options - costs - limitation of actions - scope of liability - enforcement issues

Answer 66

Sometimes plaintiff can try negotiate resolution of dispute directly with defendant without initiating a claim. OR parties can agree on what issues during negotiation, which may be with or without legal representation.

Answer 67

- parties have already attempted to negotiate - one of both parties are not willing to negotiate - there is a power imbalance between parties, or violence and fear is involved - unlikely that negotiation will help the dispute

Answer 68

- the parties want to negotiate or are seeking resolution that’s cheaper, timelier, and less stressful than court - parties have an ongoing relationship (I.e neighbours) - the parties are no hostile towards each other - there is no power imbalance between parties

Answer 69

Civil disputes can be extremely expensive to resolve, so parties must consider the costs incurred before they proceed - legal representation fees - disbursements - court fees - hearing/trial fees - mediation fees - expert witness fees - adverse cost orders

Answer 70

Engaging a solicitor or barrister is costly, and can depend on case complexity, the court court in which the manner will be held, the expertise of the lawyer, and the length of the legal proceeding

Answer 71

(Our of pocket expenses) Court fees: - court filing fee (anywhere from $145 to over $1000) - hearing/trial fee (plaintiff needs to spy everyday of hearing between $520-$2000) - jury costs (party who chooses to have trial before jury will pay the cost ($550 to above $1000) Mediation fees: When a plaintiff initiates a claim in court, the court will often order the parties to attend mediation in attempt to resolve the case before hearing or trial - likely time share cost, anywhere between $2000 and $20000 per day Expert witness fees: Plaintiff claim may need an expert to give an opinion I.e for spinal injury

Answer 72

If a plaintiff initiates a claim in court and is unsuccessful, they are likely to be required to pay the cost of the defendants legal costs, or a portion of them

Answer 73

A plaintiff who has been wronged must bring their action to court within a certain time period of being wrong, under the Limitations of Actions Act 1958 (Vic)

Answer 74

1. Who wronged the plaintiff or whether there are multiple defendants 2. The extent to which the defendant is liable. Before initiating a claim, plaintiff needs to determine possible defendants (sometimes more than one person infringing the plaintiffs right), and to what extent they may be liable (may only be for a portion of plaintiffs loss or damage)

Answer 75

The plaintiff needs to consider whether the defendant had the ability to pay them for damages. If they don’t, then there is little point pursuing a claim. Some reasons may include: the defendant is bankrupt, Uncontactable, or in jail

Answer 76

Everyone has the right to legal representation, but in reality not everyone can afford this right. - costs depend on nature of dispute and the way the case needs to be resolved - average plaintiff on a Supreme Court manner is $60000

Answer 77

Fairness - If people don’t have access to money to pay for legal costs, they may be forced to settle or withdraw their claim, or self-represent, which can lead to unfair outcomes - A court’s duty to ensure a fair trial and a judge’s responsibility to assist a self represented party can help ensure fairness HOWEVER self-represented litigants may struggle to understand legal issues/procedures, and judges ability to assist is limited due to having to remain impartial - self represented litigants may not be able to make the right decisions in the case because they are too emotionally invested

Answer 78

self-represented parties, or parties with less skilled legal representation can often have unequal footing in court, especially given the skills necessary to argue the case in front of a judge and jury

Answer 79

can prohibit a persons access to the legal system, particularly courts, as they often are deterred from making or defending a claim, or will have to settle a claim to avoid trial.

Answer 80

The time it takes for courts to resolve disputes can vary greatly depending on the complexity of the case, the number of parties involved, and the court where the claim was issued - disputes in lower courts can be resolved in 6 months, while 1/3 of cases in superior courts more than 12 months Can include court backlogs, and pre-trial procedures

Answer 81

- the delay can impact on the reliability of evidence, jeopardising a fair outcome. - delays deny the parties fair and due processes - can cause stress on parties

Answer 82

- can have serious impact on some parties but not others (e.g injured person) - delays can also impact on more vulnerable parties, who are generally not familiar with litigation and can be stressed by the inconvenience of court processes

Answer 83

People in rural and remote areas often find it more difficult to access legal and dispute resolution services as they may be insufficient in those areas

Answer 84

- decline or lack of legal services in some rural and remote areas of Victoria impacts on people’s ability to seek legal advice and assistance. This inhibits a person's ability to use legal processes to ensure they put their case forward properly

Answer 85

- rural and remote victorians may not be equal before the law if they have unequal access to legal services and resources , as well as unequal access to the courts and tribunals

Answer 86

- an inability to access legal services, courts, and tribunals can impact on the ability of a person to pursue their legal rights and seek compensation for any wrong they have suffered

Answer 87

Started July 1 2016, VCAT has three tiers of fees: corporate, standard, and health care care holders. Intended to ensure that VCAT remains accessible to the most vulnerable in society, and the fees are higher for companies, government agencies, and businesses with an annual turnover of >$200000 - assists some people, in particular health care care holders, to access VCAT and pay for it without incurring huge costs, however some are still unable to pay for application fee - aims to achieve fairness by charging larger businesses higher fees - VCAT aus still unaffordable for many due to hearing fees and high fees for some lists - unequal as some are charged more than others

Answer 88

In 2016, the high court of Australia changed the way it hears special leave applications for appeals. Rather than allowing every soecif leave application to have an oral hearing, the High Court first determines through a panel of justices, whether an oral hearing is necessary. If not the application is heard ‘on the papers’ - more efficient (increases access to appeals) - allows parties to be on equal footing without having to rely on advocacy skills - not an ‘entire system’ solution as fe claims will make their way to the high court

Answer 89

In Jan 2017, the Supreme Court of Victoria issues a practice note titled technology in civil litigation. Specified that emails are the preferred communication with the court, that documents can be filed Electronically, and discovery can be conducted using technology - provides greater access for people, including those in rural and remote areas or those who cannot reach the courts to manually file documents - can deal with litigation for efficiently by giving all parties and the courts access - uptake of technology is relatively slow and improvements are still required

Answer 90

The Victorian access to justice review recommended that the vic government establish a panel to oversee the intro of an online dispute resolution system for small civil claims. Considered more accessible and cost-efficient - greater access in many areas of Victoria, including those in rural and remote areas, however only for small civil disputes - relieves pressure on courts which reduces delays, allowing for access - could avoid the need for legal representation, which creates fairness and equality as parties no longer have any advantage over each other