AOS 2 - UNIT 3

Question 1

Define the civil justice system and identify the two parties in a civil case.

Answer 1

Civil justice system = a set of processes and institutions used to resolve civil disputes and protect rights

Parties = Plaintiff v Defendant

Question 2

Outline the key concept of the burden of proof in a civil trial.

Answer 2

Burden of proof is the responsibility of proving the facts of the case.

The burden in civil cases usually rests with the plaintiff (as they are the initiating party), however, it can be reversed in rare cases (such as counterclaims made by the defendant).

Question 3

Outline the key concept of the standard of proof in a civil trial.

Answer 3

Standard of proof is the level of proof needed to successfully prove your case.

The civil standard is ‘on the balance of probabilities’, meaning your version of the facts is more probable/likely than not.

Question 4

Outline the key concept of representative proceedings in a civil trial.

Answer 4

A group proceeding with 7 or more plaintiffs who share similar claims and wish to litigate together under a ‘lead plaintiff’.

The Supreme Court in Victoria has the specialised jurisdiction to hear these matters.

Question 5

What are some of the positives associated with the use of representative proceedings in the civil justice system?

Answer 5

*Shared costs, which allow people to pursue their claims that they otherwise wouldn’t have been able to afford on their own
*There is considered to be strength in numbers because of increased evidence available, thereby creating a more convincing case
*The process makes it more efficient for the courts, as they hear one case for a group of people instead of a whole lot of individual cases
*It provides individuals with greater access to legal advice and support services

Question 6

What are some of the negatives associated with the use of representative proceedings in the civil justice system?

Answer 6

*More preparation time required
*People have to forgo their right to sue individually, regardless of whether the class action wins or loses
*Outcomes are ‘generic’ because they are created as an overview of the case rather than individually calculating everyone’s loss
*The award received if successful may be small, because it has to be broken up among all the group members & first has the high costs associated with representative proceedings taken out of it
*Strict “qualification” requirements often prevent some people with otherwise valid claims from joining the class action

Question 7

What are the five important factors a person must consider before initiating a civil claim?

Answer 7

1. Are there negotiation options available?
2. What are the costs likely to be?
3. Is there a limitation of actions?
4. What is the scope of liability?
5. Will there be enforcement issues?

Remembered as CLENS!

Question 8

Why does a person need to consider negotiation options before initiating a civil claim? What do negotiation options mean?

Answer 8

*Negotiations are discussions between the parties to try and amicably resolve the dispute
*Should be considered because it stops parties from having to endure the stress, costs, time and inconvenience of going to court
*Not suitable for all disputes (e.g. if there is threatening behaviour or a severe party imbalance)

Question 9

What costs need to be considered before initiating a civil claim and why?

Answer 9

*Cost of legal representation, disbursements (non-legal related expenses, such as the jury or mediation costs) & adverse costs orders (paying the legal costs of the losing party)
*Must be considered because you have to be able to afford the proceedings
*Outcome (if successful) needs to outweigh potential costs
*Have to consider whether the defendant can pay damages if you are successful

Question 10

What is the limitation of actions, and why does it need to be considered prior to initiating a civil claim?

Answer 10

*A time limit in which a plaintiff can initiate a claim
*Time limits vary for different types of cases (e.g. defamation cases are 1 year but breaches of contracts are 6 years)
*Prevents evidence from being lost by ensuring cases are started within a reasonable time
*Plaintiff can technically still initiate proceedings after the expiration of the limitation period, but if raised as a defence, prevents the plaintiff from getting a remedy

Question 11

What does the scope of liability refer to, and why does it need to be considered prior to initiating a civil claim?

Answer 11

*The scope of liability is the extent to which someone is responsible/liable for the plaintiff’s damage or loss
*Can sometimes be difficult to determine who is responsible – must sue the right person or you may not be entitled to any remedy
*E.g. Vicarious liability – employer responsible for the actions of their employees if acting during the course of their employment

Question 12

What are enforcement issues and why do they need to be considered prior to initiating a civil claim?

Answer 12

*Enforcement is the ability to actually receive any remedy awarded by the court
Need to consider likelihood of defendant following through on court ordered remedy
*Can go back to court for ‘enforcement proceedings’ but this adds costs to the case
*Court can order enforcements such as a garnishee order, which requires the defendant’s employer/bank to take a small portion of their income out until the remedy is paid

Question 13

Who are Consumer Affairs Victoria and what are some of their purposes?

Answer 13

A complaints body that monitors and regulates consumer affairs, operating from the business unit from the Victorian Government’s Department of Justice & Regulation.

Purposes
*Advise Vic government about consumer laws and relevant industry codes
*Educate consumers, businesses and landlords about consumer laws, including rights and responsibilities
*Enforce compliance with consumer laws
*Help people settle their disputes efficiently and constructively without any cost or binding resolution (through conciliation)
*Registering and licensing businesses and occupations

Question 14

Suggest when the use of Consumer Affairs Victoria is appropriate in resolving civil disputes.

Answer 14

*Within their jurisdiction – only Vic and goods up to $40,000
*Matter is likely to settle using CAV’s assistance
*If parties can’t afford to take legal action
*If parties are more comfortable with an informal approach

Question 15

Suggest when the use of Consumer Affairs Victoria is not appropriate in resolving civil disputes.

Answer 15

*Beyond their jurisdiction – involves laws outside of Vic or goods above $40,000
*One party unwilling to participate in conciliation process
*If binding resolution is needed or desired
*If matter is too complex or would benefit from a greater level of formality

Question 16

Who are VCAT? What types of disputes are they used for?

Answer 16

VCAT = Victorian Civil and Administrative Tribunal used as a one-stop shop to resolve civil disputes arising in Victoria, established in 1998

Used for disputes involving:
*Consumer matters (Civil division)
*Human rights matters (Human rights division)
*Residential tenancy disputes (Residential tenancies division)
*Professional conduct matters (Administrative division)
*Planning and environment matters

Question 17

Outline the four main purposes of VCAT.

Answer 17

1. Low cost dispute resolution (lower fees, 3-tier fee structure, limited pre-trial procedures etc.)
2. Accessible by operating in various venues, allowing telephone and video conferences in some situations and using online lodgment of some documents
3. Independent from government – members separate from political processes & support provided by Court Services Victoria (independent body)
4. Efficient dispute resolution (less delays and waiting times than court, upgrades to technology and processes) BUT delays have been increasing, and they vary list to list.

Question 18

Suggest when it is appropriate to use VCAT when resolving civil disputes.

Answer 18

*Within their jurisdiction – falls under one of the 5 divisions
*If parties can’t afford to take legal action
*If parties are more comfortable with an informal approach
*If binding resolution is needed

Question 19

Suggest when it is not appropriate to use VCAT when resolving civil disputes.

Answer 19

*Beyond their jurisdiction – involves disputes between employees and employers, tenants and tenants, workplace injuries etc.
*If parties want more grounds of appeal available to them
*If matter is too complex or parties want to use precedent

Question 20

Justify the use of Consumer Affairs Victoria in resolving civil disputes.

Answer 20

*Services are free to use/access
*Processes ensure both parties have an opportunity to present their case and rebut the others, providing fairness
*Informal procedures, often over the phone
*Tries to resolve disputes quickly and focus on early enforcement action and prompt responses to complaints

Question 21

Justify the use of VCAT in resolving civil disputes.

Answer 21

*Cheaper than court (low application & hearing fees, no legal representation etc.)
*Decision is binding & enforceable
*Usually more efficient than courts, with some lists having very low average waiting times
*Processes are informal and flexible, suiting a range of parties without any disadvantage

Question 22

What purposes of pre-trial procedures relate to the example of pleadings?

Answer 22

*Ensures procedural fairness by making parties state their claims and defences to one another
*Compels parties to disclose the material facts they wish to rely on, avoiding trial by ambush
*Gives the court a written record of the case, which helps to establish a timeline to manage the trial
*Sets limits/boundaries for the dispute, so other processes are more efficient
*May help to reach an out-of-court settlement where one parties claims or defences are very compelling

Question 23

What purposes of pre-trial procedures relate to the example of directions hearings?

Answer 23

*Identifies any issues or delays and allows directions to be made to ensure the prompt, economical and efficient determination of the dispute
*Establishes a timetable for future pre-trial procedures
*Allows the judge to determine the approximate length of the trial to efficiently allocate court resources and set a date for the trial
*May help determine that an alternative method of dispute resolution would be more appropriate to try before going to trial

Question 24

What purposes of pre-trial procedures relate to the example of discovery?

Answer 24

*Avoids trial by ambush by requiring the parties to disclose all relevant information to the other party
*Helps determine the strength of the other side’s case and your likely chances of success in court
*Helps to narrow down/clarify the details or issues of the case
*May help to reach an out-of-court settlement where documents are very compelling

Question 25

What are the two reasons why we need a civil court hierarchy?

Answer 25

Administrative Convenience:
*Ensures cases are distributed according to their complexity, staff are distributed according to experience and processes are as efficient as possible to avoid unnecessary delays in the achievement of justice
*Not possible without a hierarchy because cases would be heard anywhere, meaning small cases may be delayed by complex ones

Appeals:
*On appropriate grounds, parts of a case may be re-heard on appeal in an attempt to fix potential miscarriages of justice
*Not possible without a hierarchy because there would be no higher court to go to

Question 26

What are some of the key roles of a judge during a civil trial?

Answer 26

*Manage the trial and exercise their judicial case management powers
*Decide on the admissibility of evidence
Attend to jury matters, such as excusing jurors who have good reason & giving jurors information prior to the trial
*Determining if the defendant is liable or not liable (if no jury used)
*If liable, deciding on an appropriate remedy (unless a jury is used and it’s not a defamation case)

Question 27

What are some of the key roles of the jury during a civil trial?

Answer 27

*Remain objective by keeping an open mind on the evidence presented
*Listen to and remember all evidence presented during the trial
*Understand any directions given by the judge, and ask to clarify where needed (via jury foreman)
*Determine a verdict of liable/not liable on the balance of probabilities
*Determine the amount of damages (unless it’s a defamation case)

Question 28

What are some of the key roles of the parties during a civil trial?

Answer 28

Give an opening address to the court (plaintiff first)
Assist the judge in jury matters (if used)
Present their case in the best possible way using relevant evidence & witnesses
Comply with overarching obligations set out in the Civil Procedures Act 2010 (Vic) (such as disclosing critical evidence at the earliest possible time)

Question 29

What are some of the key roles of legal representatives during a civil trial?

Answer 29

Be prepared for the trial
Prepare and present opening and closing submissions on behalf of their client
Comply with their overarching duty to the court to find justice
Comply with the overarching obligations listed in the Civil Procedure Act 2010 (Vic)
Engage in the questioning of witnesses

Question 30

What are judicial case management powers in a civil trial? What are the two specific types of powers held by Victorian judges?

Answer 30

Judicial case management = a judges ability to supervise the progress of a civil case, from the initiation of pre-trial processes all the way through to the completion of the trial

Powers include ordering mediation and giving parties relevant directions to ensure continued progression of the case.

Question 31

Outline a judge’s power to order mediation using their judicial case management powers.

Answer 31

*Can refer parties at any time (provided no verdict has been handed down)
*Used in most Supreme Court cases before trial
*Tries to help parties reach a settlement to avoid time, stress, cost and inconvenience of going to court
*Can be ordered so the parties organise it privately, or so that a court officer acts as the mediator
*Can be ordered more than once in the same case

Question 32

Outline a judge’s power to give directions to the parties using their judicial case management powers.

Answer 32

*Direction can be anything that aims to keep the case progressing in a positive manner in order to bring about a just and fair resolution
*Directions can be given at any stage of proceedings under the Civil Procedure Act 2010 (Vic)
*Penalties can be imposed if parties fail to comply with a direction
*Examples of directions before trial include amending a document, participating in an ADR method & completing something within a set time frame
*Examples of directions during trial include limiting the number of witnesses & the order of evidence

Question 33

Describe the dispute resolution method of mediation.

Answer 33

*One of the simplest forms of dispute resolution
*Involves parties discussing their dispute with the assistance of a an independent 3rd party who helps facilitate discussion and ensure both parties are being heard
*Mediator can’t give any suggestions or advice – just there to ensure positive and open communication between the parties
*Decision is not binding (unless parties agree to create a deed of settlement)
*Method relies on party cooperation
*Often used by courts as part of judicial case management powers, and by VCAT as a way of resolving disputes before a final hearing

Question 34

Describe the dispute resolution method of conciliation.

Answer 34

*A method of resolving disputes where the parties use the assistance of an independent 3rd party, known as a conciliator, to resolve their dispute
*Conciliator is an expert in conflict resolution, and attempts to help parties reach an amicable solution by offering suggestions and advice throughout the process
*Outcome must be decided by parties and isn’t binding (unless parties agree to sign a deed of settlement)
*Courts sometimes use for commercial matters, but it is rare
*CAV uses this as their main resolution method and VCAT use a conciliation process for their compulsory conferences

Question 35

Describe the dispute resolution method of arbitration.

Answer 35

*A form of dispute resolution where parties each have a chance to present their case in front of an independent 3rd party, known as an arbitrator, who then decides the outcome of the case
*The outcome is known as an arbitral award, and is binding with limited grounds for appeal
*Usually conducted in private and is confidential
*More formal than mediation and conciliation, but still less formal than courts
*Doesn’t use as strict rules of evidence and procedure as courts
*VCAT may refer parties to use, but it is rare
*Courts use for all civil matters under $10,000 initiated in the MC

Question 36

Discuss the appropriateness of mediation as a dispute resolution method.

Answer 36

Appropriate:
*Ongoing party relationship
*Parties prepared to participate, cooperate and compromise
*If costs of trial are expected to be high
*If the court has ordered the process be undertaken

Not Appropriate:
*There is a significant party imbalance or threatening/violent behaviour involved
*Overwhelming emotions are involved
If the matter requires urgent resolution

Question 37

Discuss the appropriateness of conciliation as a dispute resolution method.

Answer 37

Appropriate:
*Ongoing party relationship
*Parties prepared to participate, cooperate and compromise
*If costs of trial are expected to be high
*Only issue is amount of damages to pay

Not Appropriate:
*There is a significant party imbalance or threatening/violent behaviour involved
*Mental health of a party suggests it won’t work
*If one party clearly owes a debt to the other party

Question 38

Discuss the appropriateness of arbitration as a dispute resolution method.

Answer 38

Appropriate:
*Claims under $10,000 initiated in the MC
*Parties want a binding and enforceable decision to be made by someone else for them
*Parties want some level of formality and procedure
*Parties desire privacy and confidentiality

Not Appropriate:
*Parties don’t agree to use the process
*Parties want their day in court
*Parties would feel more comfortable with a higher level of formality and/or stricter rules of evidence and procedure

Question 39

Justify the use of mediation as a dispute resolution method.

Answer 39

*Less intimidating process may allow parties to communicate more openly, resulting in a fairer outcome
*Parties enter outcomes voluntarily, so they’re more likely to follow them
*Doesn’t usually require any pre-trial procedures to be completed, so a far cheaper process than going to court
*Matters are usually heard privately and confidentially

Question 40

Justify the use of conciliation as a dispute resolution method.

Answer 40

*Less intimidating process may allow parties to communicate more openly, resulting in a fairer outcome
*Parties enter outcomes voluntarily, so they’re more likely to follow them
*Doesn’t usually require any pre-trial procedures to be completed, so a far cheaper process than going to court
*Matters are usually heard privately and confidentially

Question 41

Justify the use of arbitration as a dispute resolution method.

Answer 41

*Resolution is binding and enforceable, creating closure for the parties
*Matters are usually heard privately and confidentially
*Parties maintain some control over how their evidence and case is presented, since there are more relaxed rules of evidence and procedure than in a court room
*It is usually far cheaper than going to court

Question 42

What is a civil remedy and what are their general purpose?

Answer 42

An award to a successful plaintiff that recognises their rights and legally ends the dispute.

The GENERAL purpose is to restore a party back to their original position before being wronged by the defendant.

Question 43

Describe the civil remedy of damages.

Answer 43

*A sum of money granted to the plaintiff, paid by the defendant
*In some types of cases, the amount that can be awarded to a successful plaintiff is limited by legislation (e.g. defamation non-economic loss limited to $250,000)
*Multiple types of damages can be given in the one case (in order to best restore the plaintiff)
*Can be enforced through enforcement procedures, such as a garnishee order

Question 44

Describe the civil remedy of injunctions.

Answer 44

*A court order made to modify or control the actions of the defendant
*Interlocutory (temporary) injunctions can be awarded if there is an urgent need for action before the final determination of the case

Question 45

What is the purpose of compensatory damages, and what are the different types of compensatory damages?

Answer 45

Compensatory damages aim to compensate the plaintiff for financial losses

Types:
*Specific – calculable costs (e.g. medical bills, lost wages)
*General – non-quantifiable or difficult to calculate costs (e.g. future lost wages, pain & suffering)
*Aggravated – defendant’s behaviour deliberately caused humiliation or insult, and therefore warrants additional compensation payment

Question 46

What is the specific purpose of exemplary damages?

Answer 46

Punish and deter the defendant where their actions were malicious, violent, cruel or a complete disregard of the plaintiff’s rights

Question 47

What is the specific purpose of nominal damages?

Answer 47

To uphold a person’s rights without awarding any substantial amount of damages (usually because no real loss has been suffered but the plaintiff wants to make a point)

Question 48

What is the specific purpose of contemptuous damages?

Answer 48

To show the court’s disapproval for the plaintiff making the claim or for their actions/behaviour, while simultaneously recognising they had a legal right to make the claim

Question 49

What are the specific purposes of restrictive and mandatory injunctions?

Answer 49

Restrictive - To rectify a wrong by forcing the defendant to stop undertaking a certain action (e.g. stop publishing defamatory material)

Mandatory - To rectify a wrong by forcing the defendant to undertake a certain action (e.g. make a public apology)

Question 50

How does the accessibility factor of a ‘lack of services in rural & remote areas’ impact the principle of fairness in the civil justice system?

Answer 50

*A lack of legal services can prevent a person from seeking assistance about their case
*The use of court circuit systems operates to ensure people in rural areas have a chance to have their case hear

Question 51

How does the accessibility factor of a ‘lack of services in rural & remote areas’ impact the principle of equality in the civil justice system?

Answer 51

*Rural and remote citizens may have unequal access to the law because of where they live

Question 52

How does the accessibility factor of a ‘lack of services in rural & remote areas’ impact the principle of access in the civil justice system?

Answer 52

*Reduced access to legal services may reduce their ability to initiate or pursue a claim
*The use of court circuit systems and multiple VCAT locations can increase access for people living in these rural areas

Question 53

How does the time factor of ‘court delays’ impact the principle of fairness in the civil justice system?

Answer 53

*Delays may reduce the reliability of evidence resulting in an unfair outcome
*Delays can prevent a person from getting a fair process
*Delays may allow parties a chance to properly gather all evidence and complete pre-trial procedures without feeling rushed or forgetting something important

Question 54

How does the time factor of ‘court delays’ impact the principle of equality in the civil justice system?

Answer 54

*Delays may impact some people more significantly than others, leading to disadvantage (i.e. if you’re injured and waiting for compensation of medical bills you can’t afford)

Question 55

How does the time factor of ‘court delays’ impact the principle of access in the civil justice system?

Answer 55

*Delays may mean a person has no choice but to withdraw or settle their claim early, or choose not to initiate the claim in the first place

Question 56

How does the cost factor of ‘increased use of alternative resolution methods and bodies’ impact the principle of fairness in the civil justice system?

Answer 56

*ADR’s allow parties to present their case without strict rules of evidence & procedure, which may lead to a fairer outcome
*The informality of ADR’s gives all parties an opportunity to communicate openly
*Parties take more ownership of the process and outcome, increasing satisfaction and fairness overall

Question 57

How does the cost factor of ‘increased use of other resolution methods and bodies’ impact the principle of equality in the civil justice system?

Answer 57

*The assisting third party is always independent of the dispute and acts without bias, so people are always treated as equals throughout the process
*If there are party imbalances, these processes may exacerbate this disadvantage on one side

Question 58

How does the cost factor of ‘increased use of other resolution methods and bodies’ impact the principle of access in the civil justice system?

Answer 58

*The reduced cost increases access to dispute resolution for many people (NOT ALL)
*Using ADR’s at the wrong time, or having an unsuccessful ADR attempt, may increase overall costs and reduce access down the track

Question 59

Describe the recent reform of ‘Use of ‘group class orders for group proceedings’.

Answer 59

*Contingency fees are where the legal cost of a case is paid via a percentage of the final outcome of a successful case, rather than a set fee amount at the start of a case (if the case is lost, no fee is payable).
*While these are banned in Australia, the Justice Legislation Miscellaneous Amendments Act 2020 (Vic) law was passed in Victoria on the 30th June 2020, allowing the court to make a ‘group costs order’ in group proceedings.
*This means the plaintiff’s solicitor could calculate fees based on the damages amount awarded if the court feels it is appropriate to do so.
*Theoretically, this removes the need for a litigation funder, making class actions more appealing.

Question 60

Describe the recommended reform of ‘the permission to use contingency style fees in class actions’.

Answer 60

*The 2018 VLRC report “Access to justice – Litigation funding and group proceedings” recommended that Australian laws change to allow the use of contingency fees, opening up another funding option/avenue for plaintiffs to use.
*While legislation was introduced in Victoria to allow group cost orders in class actions, the VLRC recommended a broader application of contingency fees which would give lawyers the ability to privately enter such agreements with their clients rather than relying on the court to assess the situation and make an order if they feel it’s appropriate.

Question 61

Describe the recommended reform of ‘Improvements and increases to the use of case management powers’.

Answer 61

*The Productivity Commission in 2014 recommended case management powers be improved and increased.
*As part of their report, the Productivity Commission stated that “By giving greater control of the litigation to the court, case management seeks to contain the cost of litigation and ensure the timely resolution of cases, without compromising the quality and fairness of the process.
*This includes reducing the time parties’ lawyers spend on unnecessary processes or issues that can be resolved early in the process”.
*Through their findings, the commission found that there was strong support for judges to go further, noting that there is currently a wide variety in the way they are used by judges in Australia.
*Recommendations included replacing formal pleadings with a less formal alternatives, identifying issues in the case as early as possible, requiring stricter observance of set time limits and limiting the number of pre-trial procedures allowed in a case.

Question 62

Describe the recent reform of ‘expansion of VCAT and the use of Koori hearing rooms at VCAT’.

Answer 62

*VCAT opened a new venue in Oakleigh in Feb 2020 and in Frankston in March 2021.
*Both of these venues include the first VCAT Koori hearing rooms, which use oval tables and Koori artwork to try and make the VCAT process more accessible.
*These Koori hearing rooms were created as part of the VCAT Koori Inclusion Action Plan, established to try and help build stronger community connections.

Question 63

How does the cost factor of ‘legal costs’ impact the principle of fairness in the civil justice system?

Answer 63

*People may be forced to settle, withdraw or self-represent their claim, all of which may result in an unfair outcome.
*Costs, such as filing fees, aren’t tiered according to income (like VCAT have introduced), so could be seen as unfair to low income earners

Question 64

How does the cost factor of ‘legal costs’ impact the principle of equality in the civil justice system?

Answer 64

*Self-represented parties often have an ‘unequal’ standing in the court room and may therefore be disadvantaged
*However, costs such as filing fees, aren’t tiered according to income, so everyone is treated the same way

Question 65

How does the cost factor of ‘legal costs’ impact the principle of access in the civil justice system?

Answer 65

*Costs can stop a person from starting a claim, or cause them to have to abandon one if the can no longer afford to pursue it
*The expense of a case prevents frivolous claims from being made, saving court resources for more important or necessary civil disputes

Question 66

How does the accessibility factor of a ‘the use of representative proceedings’ impact the principle of fairness in the civil justice system?

Answer 66

*People with valid claims can pursue them, often without having to personally pay costs upfront or be directly involved in the court proceedings
*The fairness of the outcome depends on the settlement reached and the cut taken from the litigation funders (if used)
*Class actions are managed through a specified court regime that uses specific case management powers

Question 67

How does the accessibility factor of a ‘the use of representative proceedings’ impact the principle of equality in the civil justice system?

Answer 67

*Class actions (which are generally against a large corporation) are usually supported by large, highly experienced law firms that can present the case in the best possible way on behalf of the group, reducing disadvantage/unequal footing that is often associated with suing a well-known group or company
*The outcome of a class action may disadvantage some that have suffered greater loss or harm, as individual circumstances are not always adequately catered for when a remedy is determined by the court

Question 68

How does the accessibility factor of a ‘the use of representative proceedings’ impact the principle of access in the civil justice system?

Answer 68

*People who can’t afford a claim on their ow, or whose claim independently wouldn’t be worth pursuing, have the ability to fight for their rights to be protected
*The cost of litigation funding may significantly reduce the final payment for members of the class action

Question 69

How does the time factor of ‘the use of case management powers’ impact the principle of fairness in the civil justice system?

Answer 69

*These processes can be adapted to individual cases and circumstances so it is fair for everyone
*Orders such as mediation may increase delays in the case if not successful

Question 70

How does the time factor of ‘the use of case management powers’ impact the principle of equality in the civil justice system?

Answer 70

*Case management powers allow for flexibility without any bias or favourtism, and orders can be made to both parties, so no one is disadvantaged in the process
*Case management varies among judges and courts (with some using it more freely than others) – this can create disadvantage depending on the court you are in or the judge that has been allocated to your case

Question 71

How does the time factor of ‘the use of case management powers’ impact the principle of access in the civil justice system?

Answer 71

*Case management creates a more flexible process, ultimately reducing stress and increasing access for many parties
*Case management may reduce the overall cost of the dispute, since it is dealt with more efficiently and economically, increasing access

Question 72

How does the recent reform of ‘expansion of VCAT and the use of Koori hearing rooms at VCAT’ impact fairness?

Answer 72

+Koori hearing room is more culturally sensitive and informal, helping A&TSI people’s resolve their disputes in a just manner

-The informality of the Koori hearing room could end up leading to an unjust outcome if the relevant processes aren’t used

Question 73

How does the recent reform of ‘expansion of VCAT and the use of Koori hearing rooms at VCAT’ impact equality?

Answer 73

+Aims to increase equality by ensuring A&TSI people are able to resolve disputes in an accessible and culturally sensitive way

-The Koori hearing rooms are currently only at the Oakleigh and Frankston locations, so aren’t available to all A&TSI people’s trying to access these services, which may create disadvantage throughout the community

Question 74

How does the recent reform of ‘expansion of VCAT and the use of Koori hearing rooms at VCAT’ impact access?

Answer 74

+A&TSI people are able to utilise a more culturally sensitive dispute resolution process to have their dispute resolved in a safe manner

-The limited availability of Koori hearing rooms at VCAT may mean not all A&TSI peoples have access to these services, or that wait times for these services become longer than traditional VCAT hearing rooms

Question 75

How does the recent reform of ‘use of group class orders for group proceedings’ impact fairness?

Answer 75

+Court must consider whether it is in the best interests of justice to award a group costs order, ensuring it is only done when appropriate and just.

+Parties are able to have their case supported by a law firm with legal expertise, without having to pay a litigation funder as well.

-It may create a conflict of interest, where plaintiff law firms begin acting in their best interests, rather than those of their clients.

Question 76

How does the recent reform of ‘use of group class orders for group proceedings’ impact equality?

Answer 76

+Laws firms would have the ability to represent class actions that parties previously couldn’t afford due to the upfront costs.

+Less disadvantage faced by those that previously couldn’t initiate cases due to fees.

+Courts have the ability to treat members of the class action differently when determining how costs are organised, ensuring members are not disadvantaged when it comes to the damages received.

Question 77

How does the recent reform of ‘use of group class orders for group proceedings’ impact access?

Answer 77

+More class actions may be able to be initiated from people that previously couldn’t afford to start them, enabling more people to access justice and fight for their rights.

-This legislation of group costs orders only applies to class actions, so access is still limited for those with individual cases.

-May cause an influx of group proceedings, increasing delays and backlogs in the courts.

Question 78

How does the recommended reform of ‘the permission to use contingency style fees in class actions’ impact fairness?

Answer 78

+Improves fairness by allowing parties to have their case supported by a law firm with legal expertise, without having to pay a litigation funder as well.

+Increased competition for funders may result in fairer costs

-Without full disclosure and transparency requirements, law firms may begin acting in their best interests to make money.

Question 79

How does the recommended reform of ‘the permission to use contingency style fees in class actions’ impact equality?

Answer 79

+Laws firms would have the ability to represent class actions that parties previously couldn’t afford due to the upfront costs, putting more plaintiffs on equal footing.

-Other equality issues are not addressed by this type of funding, so case equality is still heavily dependent on the expertise of the lawyers engaged.

Question 80

How does the recommended reform of ‘the permission to use contingency style fees in class actions’ impact access?

Answer 80

+Class actions that don’t attract litigation funders could more easily be initiated, enabling more people to access justice and fight for their rights.

+The increased competition may reduce the cost of litigation for plaintiffs, as lawyers may be prepared to take a smaller portion of damages than litigation funders previously would have.

Question 81

How does the recommended reform of ‘improved and increased use of case management powers’ impact fairness?

Answer 81

+Powers currently vary between judges and courts, so allowing greater use and providing more guidelines may help increase fairness in all cases.

+The recommendations made would help reduce delays and have cases heard faster, allowing for more just outcomes.

Question 82

How does the recommended reform of ‘improved and increased use of case management powers’ impact equality?

Answer 82

+Increasing the use of case management powers and setting clearer guidelines would help reduce disadvantage associated with judges who currently aren’t very active.

+The recommendations made, such as the removal of formal pleadings, may help reduce disadvantage faced by those with a limited understanding of the legal system or English language, as it would make the process less complicated and formal.

-The discretion and use of powers would still be different among judges, even those forced to be more active with the reforms, continuing current disadvantages.

Question 83

How does the recommended reform of ‘improved and increased use of case management powers’ impact access?

Answer 83

+Increased case management powers would be aimed at further reducing delays and associated costs, enabling more people access to resolve their disputes.

+Flexibility of procedures can help parties focus on the issues of the case itself.

+Reducing the number of pre-trial procedures would make the process less expensive, as there would be a reduced need for expensive legal representation.