7 part two Flashcards
fairness
all ppl can participate in justice system & the processes should be open + impartial
- impartial processes: all court personnel remain impartial, no apprehended bias
- open processes: open to public h/w many disputes resolved in priv
- participation: know case, present their side of case, no unreasonable delays, use of interpreter
access
all ppl should be able to engage w the justice system & its processes on informed basis
- engagement: range of dispute resolution methods, physical access, techonological access, financial access, delays can impact access
- informed basis: education, access to info, legal services, adequate legal rep
equality
all ppl engaging w justice system & its processes should be treated in same way, unless this causes disdvantage
- same treatment: enforcing both parties to complete pre-trial procedures
- diff treatment: ensure self-rep is on same lvl as party who has legal rep, judge may offer extra direction
e.g. assistance to self-rep by judge/magistrate, interpreters, providing info in diff way, changes to court or tribunal processes, diff form of giving evidence
legal practitioners (role, necessary)
role: prepare & conduct a case on behalf of the parties
- their rep is often necessary for a civil trial b/c they are experts who are familiar w civil justice system
types of legal practitioners
barristers: self-employed
solicitors: work for a firm or partnership
why are legal practitioners needed? (experience, struggles)
legal reps have experience in:
- following court processes
- collecting evidence
- presenting cases
- maintaining proper decorum
self-rep parties may struggle w:
- presenting their case
- understanding legal jargon
- cross-examining witnesses
- remaining fully objective
a person w competent legal rep has a better chance of success
why is obtaining legal aid challenging?
- most grants of legal assistance are for criminal or family law
- VLA does not give advice on every type of case e.g. work injuries
- VLA is financially limited so civil disputes would need to be perceived to be successful
strengths of legal practitioners
- experts who help parties navigate civil justice system – assist + conduct opening & closing addresses, examine witnesses & defend against applications made by other party (equality)
- have objectivity in ability to make decisions – self-rep lack that objectivity & may be too ‘invested’ in the decision to see the weaknesses in their case (fairness)
- help avoid delays b/c trial processes may slow down to allow a self-rep to understand what is happening (access)
weaknesses of legal practitioners
- not all have same lvl of experience & skills which decreases equality as there is difference in quality of the legal services
- ppl who can’t afford legal rep may be left to rep themselves which decreases fairness as self-rep often don’t have the necessary skills, experience or objectivity to make the right decisions
- even if a self-rep can afford a lawyer, this could potentially be at great expense to them which decreases financial access
class actions
a type of proceeding where a group of people, who all have claims against the same party, join together in a proceeding
a class action can be commenced if:
- 7 or more people have claims against the person
- claims relate to the same or similar circumstances
- same issues need to be decided
how class actions work
- normally commenced by a single person who ‘represents’ the group (lead plaintiff)
- group members don’t participate in proceeding & proceeding is managed by the court – they can choose to opt in or opt out of the class action
- litigation funder may be used if group doesn’t have means to pay for legal action & they’d receive part of the payment once the case is won
litigation funder
3rd party who pays for some or all costs & expenses associated w/ initiating a claim in return for a share of the amount recovered
costs in class actions
- if class action fails, then lead plaintiff is responsible for costs of proceeding + any potential adverse costs order
- h/w normally law firm will act on a ‘no win, no fee’ basis or a litigation funder is involved
- if class action is successful, then group members share damages awarded w litigation funder or firm involved
types of class actions
- shareholder: shareholders of a company may claim being misrepresented about the state of the company’s affairs
- product liability: consumers who have purchased a good or service have all suffered the same loss or damage
- employees: group to make claims about underpayment or poor work conditions
- natural disaster: group members have suffered loss or damage due to a natural disaster
appropriateness of class actions
- if 7 or more have claim against defendant which arises out of same/similar circumstances (A)
- if plaintiff law firm or litigation funder is prepared to fund claim to avoid lead plaintiff having burden of costs (A)
- if someone is willing & able to be lead plaintiff (A)
- nature & size of claims (v small claims may result in outcome not worth the effort & cost)
- if 1 group member suffered significantly more than other group members (NA)
strengths of the use of class actions
- gm aren’t responsible for costs if unsuccessful – increase access for gm unable to afford initiating claim themselves
- efficient way of dealing w no. of claims b/c court doesn’t have to deal w multiple claims abt same issue, saving court time & resources – increase access by reducing delays
- use of litigation funders & plaintiff law firms who are prepared to act on ‘no win, no fee’ basis or receive a fee if successful – increases access
weaknesses of the use of the class actions
- large cost burden on lead plaintiff if class action fails & there’s no litigation funder or no ‘no win no fee’ agreement w plaintiff law firm (access)
- size of the class action is normally such that it takes up a significant amount of court resources and time
- litigation funders take a large % of total amount awarded to group members, reduces amount paid to group members & DOESNT reflect their actual loss (access)
Consumer Affairs Victoria (CAV)
regulates consumer law — dispute resolution body that provides info abt consumer law & free dispute resolution
purpose: help ensure Victorians are informed abt consumer laws & ensure that businesses comply w those laws
roles of CAV
- advises Vic Gov on consumer legislation
- provides info + guidance to educate ppl abt consumer laws
- enforces compliance w consumer laws
- in rare circumstances, provides consumers + traders or landlords + tenants w a dispute resolution process
purposes of CAV in resolving disputes
- help ppl decide how to resolve their dispute w/o any cost to them — allows ppl w smaller disputes to obtain dispute resolution service that isn’t expensive & time consuming
- help parties reach resolution that’s consistent w law — CAV has compliance focus to ensure any person who HASNT complied w law is aware of that & doesn’t breach it again
CAV only accepts complaints from consumers and tenants, NOT from businesses and landlords.
CAV’s jurisdiction
disputes bw purchasers & suppliers, or consumers & suppliers, abt the supply or possible supply of goods or services
- disputes abt product that is faulty, damaged, not fit for purpose or cannot be repaired
- disputes abt service completed w/o care & skill, took too long, caused damage or isn’t fit for purpose
- disputes abt buying cars, e.g. in relation to warranties, the price charged or the condition of the car
disputes bw a tenant & landlord
- disputes abt rental agreements, rent, signing or ending a lease, or rental applications
- disputes abt repairs
dispute resolution methods used by CAV
- primarily offers dispute resolution services over the phone
- in some cases, in-person conciliation
appropriateness of CAV
- if dispute w/in CAV’s jurisdiction (A)
- if consumer or tenant has tried to resolve the matter themselves (A)
- if complaint needs CAV’s involvement (A)
- if there’s been a breach of legislation or failure to comply w legal obligations by landlord or business (A)
- if consumer is vulnerable or disadvantaged (A)
- if issue is reasonably likely to be resolved (A)
Parties also need to consider whether there are other or better ways to resolve the dispute
strengths of CAV
- conciliation is free, so it is accessible to all Victorians, regardless of ability to pay
- conciliation is informal + can conduct over the phone, which removes anxieties ppl have w formalities of courtroom
- ensures procedural fairness by allowing both sides to present their side & challenge other side’s case as part of conciliation
weaknesses of CAV
- limited to consumer & CAV disputes; no power to assist w other types of civil disputes
- no power to compel parties to undergo conciliation – willing party may not be able to use CAV’s dispute resolution services if other party isn’t willing
- no power to enforce decisions reached by parties in conciliation – unless parties enter binding agreement, one of the parties may js ignore the outcome
Victorian Civil and Administrative Tribunal (VCAT)
a dispute resolution body that is intended to be less costly, more informal & faster way to resolve disputes than courts
- Victorian Civil and Administrative Tribunal Act 1998 (Vic)
- president, vice presidents, deputy presidents, senior & ordinary members – responsible for management & administration of VCAT
purposes of VCAT in resolving disputes
- low cost
- accessible
- efficient
- independent
how VCAT achieves low-cost
- 3 tiers of fees: corporate, standard & health care card holders – make corporate applicants pay higher fees & health care card holders pay only nominal fees
- no hearing fees for many claims
- in many lists, parties don’t gta go thru pre-trial procedures which add to legal costs
- parties can rep themselves, rather than paying lawyers
how VCAT achieves accessibility
- hearings in various locations
- allows ppl to make applications online + conducts hearings online or by phone
- less formal than court hearings, which makes people feel more comfortable in using its services
how VCAT achieves efficiency
- reduce waiting times for parties to have their disputes resolved
- generally, doesn’t use pre-trial procedures or formal processes
how VCAT achieves independence
VCAT’s members are independent and will act as unbiased adjudicators
VCAT’s jurisdiction
VCAT has exclusive jurisdiction (only VCAT has power to hear + determine certain types of dispute & not a court)
- residential tenancies
- administrative
- civil
- human rights
- planning and environment
residential tenancies
tenancy disputes
- e.g. unpaid rent
administrative
professional conduct inquiries + applications from ppl seeking a review of decisions made by gov & other authorities
- e.g. cost disputes b/w lawyers + clients
civil
civil disputes relating to consumer matters, building works, owners’ corporation matters, retail tenancies & sale + ownership of property
- e.g. products & services bought or sold
human rights
matters relating to guardianship + administration, equal opportunity, racial + religious vilification, health + privacy info, disability matters & decisions made by the Mental Health Tribunal
- e.g. discrimination complaints
planning and environment
reviews of decisions made by councils or other authorities
- e.g. review abt a decision by the council to grant or not grant a permit
disputes that VCAT cannot hear
- class actions
- disputes b/w employers + employees
- disputes b/w neighbours
- disputes b/w drivers in car accidents
- disputes involving federal or state law where VCAT doesn’t have power to hear the matter
- disputes where parties are residents of diff Aus states, or where Cth is a party
dispute resolution methods used by VCAT
- mediation, including a fast-track mediation and hearing process for small civil claims
- compulsory conferences
- a final hearing before a member
mediation
parties discuss issues, develop options, consider alternatives & reach an agreement – if the matter settles at mediation, then no need for a hearing
- fast track mediation and hearing (FMAH): if the dispute doesn’t settle at mediation, then the matter will be listed for hearing before a VCAT member on another day
compulsory conferences
confidential meetings where parties discuss ways to resolve their dispute in the presence of a VCAT member
- conciliation process
- VCAT member suggests forms of settlement & explores the likely outcomes of the case
final hearing
If matter hasn’t settled at mediation or compulsory conference, it’ll be listed for final hearing before VCAT member
- parties present their case
- VCAT member will oversee the hearing & make a binding decision on the parties
final hearing incl. orders and appeals
orders
- require party to pay money
- require party to do or don’t do smt
- declare that debt is or isn’t owing
- review, vary or cancel a contract
- dismiss a claim (bc unsuccessful)
Decisions of VCAT are binding & can be enforced if a party doesn’t comply w the decision
VCAT appeals
- only be made on a question of law
- if presided by the President or vice-president = appeal heard in Court of Appeal – other appeals heard in Trial Division of SC
appropriateness of VCAT
- if dispute is w/in VCAT’s jurisdiction (A)
- if parties can resolve dispute themselves thru mediation (A)
- nature of the fees & if applicant is able to pay fees
- if parties wish to have greater avenues of appeal – limited to question of law (NA)
- if parties are unlikely to take VCAT srsly, then a court is preferred (NA)
- if parties would prefer the formailty of a courtroom (NA)
- if complexity or size isn’t appropriate for VCAT (NA)
- if party prefers court b/c of the doctrine of precedent (NA)
strengths of VCAT
- normally cheaper than courts b/c low application fees – costs saved by not having to undertake expensive pre-trial procedures
- speedy resolution of disputes – as fast as 2-3 weeks
- each VCAT list operates in its specialised jurisdiction, resulting in tribunal personnel developing expertise
weaknesses of VCAT
- b/c increased use of legal rep – costs of taking matter to VCAT can be as high as, if not higher than, court costs
- suffer delays in some of its lists – hurts economy as projects are unable to go ahead w/o permits & financial + mental impact on ppl waiting for claim to be heard
- decisions can only be appealed on point of law & to SC, making it complex + expensive to appeal a case
courts
- least preferable when solving civil disputes
- self-rep parties are becoming more common, which can impact the effectiveness of court procedures
appropriateness of courts
- whether the dispute falls w/in the court’s jurisdiction
- whether there are other or better ways to resolve the dispute
court’s jurisdiction
MC: jurisdictional limit is $100,000
- plaintiff who prefers to go to the MC can always give up part of the claim to reduce it to below $100,000
CC & SC: unlimited jurisdiction
disputes that courts cannot hear
- domestic building disputes
- residential tenancies disputes
- retail tenancies disputes
- planning disputes
VCAT has exclusive jurisdiction over them
other or better ways to resolve a dispute (things to consider):
- if parties can resolve dispute thru mediation
- costs of taking matter to court & if CAV, VCAT or other is better
- if they’re prepared to accept risks & uncertainty w 3rd party making decision
- if they have access + afford legal rep, likely necessary to undertake pre-trial procedures & trial
- if they’re comfortable w formalities of courtroom & rules of procedure
- size & complexity of matter – more complex + larger claims are best dealt w in SC, while smaller in MC
- if proceeding is a class action that needs to be determined by SC
- time to have matter heard in court & possible delays
- if parties are prepared to have open hearing where public + media present
strengths of courts
- Pre-trial procedures allow parties to reach an out-of-court settlement – save costs, time & stress of a trial
- Courts use processes to ensure procedural fairness e.g. judge can give directions + orders to ensure dispute is resolved in timely manner
- Makes a binding decision so that the outcome is certain & enforceable
weaknesses of courts
- Often suffer delays e.g. pre-trial procedures take a long time to complete
- Many procedures are complex & difficult to understand w/o a lawyer, incl. pleadings, directions & trial procedures
- DON’T allow for ‘compromise’ or ‘win-win’ situations
costs
costs of legal rep:
- depends on the nature of the dispute
- many cannot afford a lawyer & may be deterred from initiating a claim
- some may become a self-rep party b/c of costs – may struggle to understand legal issues or procedures
- if one or both parties are poorly rep, then may have a neg impact on their ability to receive a just outcome
court costs & disbursements associated w:
- engaging expert witnesses & mediators
- filing & hearing fees
- using a jury (if a party requests one)
Legal aid is very difficult to obtain for a civil matter, with most funding directed to criminal and family law matters
measures to address costs
- earlier a dispute resolved = more money saved – parties avoid significant costs involved w pre-trial & trial procedures
- costs saved by resolving a matter before trial or hearing means a saving for the court or VCAT
- use of CAV & VCAT to help resolve disputes – provide no or low-cost dispute resolution services, assistance & legal rep is generally not required
- use of case management powers in court to try narrow the issues in dispute & ensure a cost-effective resolution to the dispute
- no. of bodies & organisations in Vic provide pro bono (legal services that are provided for free or reduced rate) assistance to individuals
time
factors that impact time:
- backlogs – delays in having cases listed for hearing or trial largely depend on the court or VCAT list
- pre-trial procedures – complex + lengthy (discovery can take months)
- evidence gathering & preparation – time it takes for parties to get a case ready for hearing
impact of delays:
- stress, wasted time, inconvenience & add to costs – can result plaintiff to settle claim for less than it’s worth or withdraw claim entirely (reduce access)
- affect the reliability of evidence, jeopardising a fair outcome
- srs impact on vulnerable parties – injured person or somebody w little or no money (reduce equality)
measures to reduce delays
use of case management powers:
- order parties to attend mediation
- limit scope of discovery so it doesn’t take too long
- order that no pleadings are required
- restrict time for final hearings (e.g. time to cross-examine)
other measures that reduce delays or backlogs:
- VCAT has established programs to manage delays
- some matters are dealt w ‘on the papers’, avoiding the need for a hearing
- courts are increasingly using online methods to resolve disputes, incl. holding hearings & mediations online
