chapter 6-7.2 & 7.9

Question 1

factors to consider when initiating a civil claim

Answer 1

negotiation options, costs, limitation of actions, the scope of liability, and enforcement issues

negotiation may not be appropriate if:
One or both parties do not want to negotiate.
There have already been failed attempts at negotiating.
One of the parties has threatened or harmed the other party.
There are no issues to be negotiated.
The negotiation is unlikely to be successful.
There is an urgency in having the matter resolved through court.
There is a significant power imbalance between the parties.

negotiation may be beneficial as:
The cost, time and the stress involved in a formal civil action may be avoided.
The parties have control over the outcome.
The parties may be more prepared to accept the outcome that they helped negotiate themselves.

cost considerations: costs of legal rep, court fees, mediation fees, expert witness fiees, disbursements etc

Limitation of actions is the time limit within which a civil action must be started. Generally, If not initiated within time, defence can be that the plaintiff is too late. This is so that disputes can be solved in a timely manner, people can move on and evidence is not lost or forgotten.

Reasons for the limitation of actions:
the defendant does not have to face action after a significant period of time
evidence is not lost and people can still remember the facts
disputes can be resolved as quickly as possible.

The scope of liability

The scope of liability refers to the plaintiff needing to determine who the possible defendants are and to what extent the defendant may be liable. Some possible defendants include: employers, insurers, persons involved in wrongdoing

Enforcement issues
The plaintiff needs to consider whether the defendant is able to pay and whether the defendant will pay. Therefore consideration will need to be made as to:
whether the defendant is bankrupt
whether the defendant is able to pay
whether the defendant is in jail
if the defendant is a company and what assets this company has
the location of the defendant and whether they can be contacted
whether the plaintiff knows who the defendant is.

Question 2

CAV

Answer 2

• Purpose – as well as providing information and advice to consumers, CAV also offers a no-cost dispute resolution process for consumers and traders and landlords and tenants.
• Dispute resolution methods – CAV mainly uses conciliation. CAV will not impose the solution but will propose suggested solutions to the parties. CAV has specialist conciliators working on specific types of disputes. If the conciliation is successful, the parties normally sign a terms of settlement deed which reflects their agreement and can be enforced by the courts.
• Power to commence civil proceedings – In some circumstances, CAV can initiate proceedings on behalf of a person. This is done to try to recover the loss suffered by a consumer of goods or services.

Compliance approach
1- Educate, advise and persuade - relies of business willing to comply
2- Infringement notice
3- Public notice, create adverse publicity
4 - Civil Action through courts
*CAV orders are not binding

• whether the dispute is within CAV’s jurisdiction
• whether the dispute is likely to be resolved
• whether there are better ways to resolve the dispute
• whether the issue has already been dealt with by the courts or VCAT
• whether the consumer has tried to resolve the dispute themselves first
• whether the complaint warrants CAV’s involvement
• if the consumer is vulnerable or disadvantaged.
• whether the parties will be able to or have tried resolving the dispute themselves during negotiations
• whether the dispute is best resolved by a court or tribunal that can make a binding order
• whether the other party is unlikely to take the conciliation process seriously
• whether one party would prefer the formalities of court processes
• whether the matter is too big or complex to be appropriate for CAV
• whether resolutions of the matter is urgent and as such court is a better option.

Question 3

VCAT

Answer 3

cost-effective, informal, timely, fair, efficient, impartial and consistent

• VCAT provides a low-cost, accessible, efficient and independent tribunal. It provides an alternative dispute resolution forum to the courts:
• low cost – filing fees are lower than courts, for some matters no hearing fees are payable, pre-trial procedures are not always used, often parties can represent themselves
• accessible – hearings are heard around Victoria, phone and video links are frequently used, hearings are usually less formal than court hearings
• efficient – VCAT constantly strives to reduce waiting times prior to hearings
• independent – VCAT members are independent and unbiased adjudicators.

vCAT is not able to hear matters that relate to:
•representative proceedings
•disputes between employees and employers
•disputes between neighbours
•disputes between drivers in car accidents.

Other or better ways to resolve disputes
•Whether the parties can resolve the matter through negotiation or mediation.
•The nature of the fees.
•Whether the parties wish to have greater avenues of appeal.
•Whether one or more of the parties are unlikely to take VCAT seriously.
•Whether one or more parties would prefer the formalities of court.
•Whether the matter is too complex for VCAT.