Chapter 7: Resolving a Civil Dispute Flashcards
What are complaint bodies?
Organisations established by parliament to offer free dispute resolution services to people who make formal grievances about the conduct of another party.
What is Consumer Affairs Victoria (CAV)?
A complaint body which protects and promotes the interests of consumers.
What is the role of CAV?
- advise Vic gov on consumer legislation
- inform and guide people about consumer laws
- enforce compliance with consumer laws
- facilitate efficient, free and non-adversarial dispute resolution for consumers/sellers + landlords/tenants
What dispute resolution methods is used by CAV; what services does it provide?
conciliation
dispute res services over the phone
sometimes in-person conciliation
What factors influence the appropriateness of using CAV to resolve a civil dispute?
- whether its within CAV’s jurisdiction
- whether its likely to be resolved
- whether there are better alternative ways to resolve dispute
+ whether it has been dealt with by VCAT or court or there is case pending
+ whether consumer has tried to resolve dispute themselves first
+ whether complaint warrants involvement (ensuring it’s not trivial)
+ if consumer is vulnerable/disadvantaged (if they are, CAV’s involvement may be needed)
What types of disputes are within CAV’s jurisdiction?
disputes about:
- supply of goods/services
- residential tenancies
- retirement villages
- owner’s corporations
What influences whether a dispute is likely to settle?
‘know of’ this, don’t obsess ~ will vary based on scenario
- delay in complaining to CAV
- if other party has previously refused to undertake conciliation
- if person complaining has contributed to dispute through inappropriate behaviour
- dispute is not overly subjective
- if other party made reasonable offer that was rejected by consumer
What influences whether there are other or better ways to resolve the dispute?
- willingness to negotiate
- previous failed attempts to negotiate
- whether binding order is more appropriate than reaching resolution themselves
- other party unlikely to take conciliation seriously
- if party prefers formality of tribunal/court
- case too big or complex
- urgent matter
Evaluate CAV as a dispute resolution body
STRENGTHS:
* Free = accessible to all
* Informal = without fear/favour
* Both sides can present their case and rebut each other’s = procedural fairness
* Has criteria to assess disputes individually = filter = less wastage of time/resources
* Aims to conciliate in timely manner = less delays
* Non-adversarial = voluntary not imposed decision = more likely to accept outcome
WEAKNESSES:
* Limited role (e.g. no big/complex cases) and jurisdiction = less cases can be resolved through it
* Power imbalance between parties may increase anxieties and hinder fairness
* Decision is not binding unless terms of settlement entered
* CAV does not have power to make final order
* Not all cases accepted due to criteria and prioritisation of cases
* Parties may not take process seriously = unsuccessful = add to delay + stress
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What is a tribunal?
A civil dispute resolution body that is less costly, more informal and more efficient than the courts.
What is VCAT (Victorian Civil and Administrative Tribunal)?
A tribunal that deals a range of civl disputes heard by various lists e.g. Human Rights List, Civil Claims List, Residential Tenancies List
What is a member?
Person who presides over final hearings and compulsory conferences at VCAT
e.g. VCAT president, vice-presidents, deputy presidents, senior members, ordinary members
Identify the divisions of VCAT
PARCH Planning and environment Administrative Residential Tenancies Civil Human Rights
What is the purpose of VCAT
Provide Victorians with a low-cost, accessible, efficient and independent tribunal delivering high-quality dispute resolution processes.
How is VCAT low cost?
- low filing fees than courts
- no hearing fees for some claims
- in many list, parties don’t have to go through pre-trial procedures, which can add to legal costs incurred by parties
- encouraging self-representation (not paying lawyers)
How is VCAT accessible?
- various locations in Vic
- offers telephone and video conferences in place of attending tribunal, allows online applications and conducts online hearings
- less formal than courts = more comfortable
How is VCAT efficient?
Constantly aims to reduce waiting times = cases heard quicker
How is VCAT independent?
- VCAT members are impartial and act as unbiased adjudicators
- supported by Court Services Victoria (CSV) which is independent of parliament and government
What dispute resolution methods are used at the Victorian Civil and Administrative Tribunal (VCAT)?
- mediation, including fast track mediation and hearing for small civil claims
- compulsory conferences
- a final hearing before a member
What is fast track mediation and hearing?
Dispute resolution process used for small claims (valued between $500 and $10,000) about goods/services in the Civil Claims List at the Victorian Civil and Administrative Tribunal (VCAT).
What happens if the mediation fails in the process of fast track mediation and hearing?
The dispute goes straight to a hearing on the same day before a VCAT member
How can mediation carried out as part of pursuing a claim through VCAT become binding?
When terms of settlement is entered into, and VCAT makes an order giving effect to the terms of settlement so that the terms become a formal order of the tribunal and be binding.
What is a compulsory conference?
A confidential meeting where disputing partiers discuss ways to resolve their dispute in the presence of a VCAT member. Use a conciliation process.
What is a final hearing?
A hearing which allows disputing parties to present their case before a VCAT member who makes a binding decision for them.
Explain appeals from decision made by VCAT
Can only be made on a question of law.
If tribunal was presided over by President or vice president, appeal hears in Court of Appeal. All others head in the Trial Division of the Supreme Court.
What factors influence the appropriateness of resolving a dispute through VCAT?
- whether dispute is in VCAT’s jurisdiction
- whether there are other or better ways to resolve dispute
What is exclusive jurisdiction?
When only a particular dispute resolution body (e.g. VCAT) has the lawful authority to hear and determine particular types of disputes.
What is review jurisdiction?
When a dispute resolution body (e.g. VCAT) has the lawful authority to affirm, change or set aside a decision made by another authority.
What types of claims are outside of VCAT’s jurisdiction?
- representative proceedings
- disputes between employers and employees
- disputes between neighbours (unless it’s also a dispute about owner’s corporation)
- disputes between drivers in car accidents
- disputes involving federal/state law where VCAT lacks the power to hear the matter
What factors influence whether there are other or better ways (than using VCAT) to resolve a dispute?
- whether parties can resolve dispute themselves through negotiation/mediation
- nature of fees (for some lists, they may be just as high as or higher than courts)
- whether parties want greater avenues for appeal
- whether parties will take VCAT seriously
- whether parties prefer formality of court
- complexity/size of matter
- if parties don’t wish to be bound by precedent of courts (VCAT can’t make new law)
Evaluate VCAT as a dispute resolution body
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Identify the main types of pre-trial procedures
Pleadings
Discovery of Documents
Exchange of Evidence
Define pleadings
A pre-trial procedure in which the plaintiff files their statement of claim and the defendant files their statement of defence to help define the issues in dispute.
What is a statement of claim? Provide Example
A document filed by the plaintiff to notify the defendant about the details of the claim and the remedy sought.
E.g. if plaintiff claims that defendant has breached contract, statement of claim will state what the contract was, how it was breached and the loss suffered.
What is the defence? Provide example.
A document filed by the defendant which sets out a response to each of the plaintiff’s claims (contained in their statement of claim).
E.g. defendant may admit that there was a contract but deny that they have breached it.
Explain the purposes of pleadings
- procedural fairness: ensuring other side knows what claim/defence is about
- reduce the element of surprise = upholds fairness
- give court written court of case = allow court to understand issues to better manage the trial and pre-trial procedures = upholds access
- set limits to dispute = other processes like discovery also confined = save time/resources = access
- encourage out-of-court settlement e.g. Each party develops an understanding of the strength of the opposing party’s case; this encourages parties to settle before a trial
- clarifying legal issues and facts before trial ensures that the trial runs smoothly and more quickly. This minimises delays and promotes fairness for those seeking compensation (as delays compound suffering).
What is discovery of documents? Provide examples.
A pre-trial procedure requiring parties to list all the documents of relevance to the case. Copies are normally provided to the other party.
E.g.
- If the plaintiff claims that there is a written contract you would expect they would have a copy of it.
- If the plaintiff claims to have suffered physical injuries you would expect them to have medical records.
Explain the purposes of discovery
- disclosing all relevant documents allows court and other party access to them, enabling them to better understand case
- reduce element of surprise as parties have seen relevant documents and can prepare defence
- encourage out-of-court settlement e.g. Each party develops an understanding of the strengths and weaknesses of the opposing party’s case as adverse docs must also be disclosed; this encourages parties to settle before a trial
- familiarising with other sides’ documents ensures that the trial runs smoothly and more quickly. This minimises delays and promotes fairness for those seeking compensation (as delays compound suffering).
What is lay evidence?
• Evidence given by an ordinary person about the facts in dispute
- Laypersons may give evidence as follows:
- as a witness outline
- by filing a witness statement
- orally.
If a witness provides a witness outline or witness statement (the written form of evidence they would give orally), do they still need to attend trial?
Yes. For cross-examination.
Does a layperson who gives evidence orally have to provide a witness outline or statement before giving the evidence?
No.
What is expert evidence?
Evidence given by an independent expert about an area within their expertise.
- Example: accountancy, medicine, finance, engineering or law expert
- Expert evidence is often submitted by way of a written report by an independent expert.
What are the purposes of exchange of evidence?
- reduces the element of surprise at trial, particularly when evidence is disclosed in writing before trial
- provides opportunity to rebut against other side by engaging own expert
- allows each party to understand case of opposition = access
- allows each party to determine the strength of the other side’s case and determine their likelihood of success = may encourage out-of-court settlement by revealing weaknesses in own case
- runs smoothly and more quickly. This minimises delays and promotes fairness for those seeking compensation (as delays compound suffering).
What is a court hierarchy?
A ranking of courts from highest to lowest in order of the complexity and severity of cases they deal with.
Explain how the existence of a court hierarchy enables administrative convenience
Administrative convenience is one reason for a court hierarchy which refers to how the handling of cases is streamlined through the presence of a centralised court system.
The ranking of courts means cases can be distributed according to their seriousness and complexity. This provides logistical efficacy as the Magistrates’ court - of which there are many in the state - can handle the multiple minor cases while the Supreme and County court can devote with the more time-consuming, complex cases without being clogged up with minor cases.
Explain how the existence of a court hierarchy enables appeals
The existence of a ranking of courts based on the complexity of matters they deal with ensures that someone who is dissatisfied with a decision in a civil trial can apply to a higher authority for a review of the verdict.
How does the system of appeals enable fairness?
The system of appeals helps to achieve fairness as a just outcome is more likely to take place because any mistakes made in the original court can be corrected.
If there was no system of appeals, unfairness would result as there would no process whereby unjust decisions could be corrected.
Identify and outline the grounds for appeal in a civil case
A point of law - legal error in application of law
A question of fact - facts not appropriately applied to reach decision
Remedy awarded - nature of order enforced
Outline original and appellate jurisdiction of Magistrates’ Court
Original:
Claims up to $100,000
Appellate:
No appellate jurisdiction
Outline original and appellate jurisdiction of Magistrates’ Court
Original:
Claims up to $100,000
Appellate:
No appellate jurisdiction
