Chapter 8: Reforming the civil justice system

Question 1

What factors affect the ability of the civil justice system to achieve the POJs?

Answer 1

• cost factors
• time factors
• availability factors

Question 2

What factors affect the ability of the civil justice system to achieve the POJs?

Answer 2

cost factors
time factors
accessibility factors

Question 3

What cost factors affect the ability of the civil justice system to achieve the POJs?

Answer 3

• legal costs (restrict the achievement of justice)

- increased use of alternative dispute resolution methods (enhance the achievement of justice)

Question 4

How may legal costs hinder the achievement of justice?

Answer 4

The expensive nature of legal representation, pre-trial procedures, court costs and disbursements discourages people from pursuing civil claims or defences. Many people cannot access financial support from legal aid as a large proportion of its funding is dedicated to criminal and family law cases, not civil ones. So, many people cannot afford legal representation and are not eligible for legal aid. Hence, unable to afford legal representation and ineligible for legal aid, there is an increase in self-represented parties. These parties may struggle to navigate the complexities of the civil justice system. Although they are supported by court personnel, this does not account for the entirety of their disadvantage.

Question 5

How do legal costs hinder fairness?

Answer 5

Inability to pay legal costs & engage legal rep may incapacitate individual from pursuing civil claim or defence without feeling intimidated - undermining concept of ‘without fear/favour’

Having to self-represent without understanding processes of civil justice system may impair ability to present case in best light.

May be too emotionally invested as self-represented party. Thus, may not present case in best light.

Question 6

How do legal costs hinder equality?

Answer 6

Self-represented party may be disadvantaged against the experienced and skilled legal counsel of opposing party, creating unequal footing in court

People with vulnerabilities (e.g. suffering from social anxiety) can be disproportionately affected by inability to engage legal rep. Hence, they are disadvantaged by their personal attributes.

Question 7

How do legal costs hinder access?

Answer 7

Legal costs may deter individuals from using the civil justice system to pursue civil claim or defence

Self-represented party may be incapable of understanding court processes and their rights (e.g. the right to raise a particular defence)

Question 8

How may increased use of dispute resolution methods affect the civil justice system?

Answer 8

Legal Institutions like the courts and VCAT encourage and may mandate the use of alternative dispute resolution methods. providing more timely and cost-effective dispute resolution. By encouraging early out-of-court settlements, these methods avoid trials and hearings, saving parties and courts the time and cost of pre-trial and trial procedures.

However, these may not always be the appropriate means of resolution.

Question 9

How does the increased use of dispute resolution methods affect the achievement of fairness?

Answer 9

PLUS
- Involve use of independent third party who can empower both sides to have their say, attempting to reduce feelings of intimidation and helping to make processes without fear or favour

• Less formal than courtroom. This can avoid intimidating parties, and encourages them to actively engage with processes. Thus, they can present their case in its best light and the procedures are likely to be without fear or favour.
• Independent third party is impartial and unaffiliated with parties, avoiding biased processes.
• Private and confidential, meaning parties can engage with processes without fear of having contents of negotiation used against them in court.

MINUS
- Power imbalance between parties may be too great to be moderated by independent third party, undermining concept of ‘without fear or favour’ and compromising parties’ ability to present case in best light

Question 10

How does the increased use of dispute resolution methods affect the achievement of equality?

Answer 10

PLUS
- Independent third party seeks to ensure that both parties get same opportunities to present their case & tries to ensure equal footing between them

• Both parties can partake in these dispute resolution methods, regardless of their personal characteristics.

MINUS
- Whether or not equal footing is actually achieved may ultimately depend on skills of parties and their legal rep and the extent of the pre-exisiting inequality between them

Question 11

How does the increased use of dispute resolution methods affect the achievement of access?

Answer 11

PLUS
- Less expensive than courts, enabling more people to pursue civil disputes and use civil justice system

• Less time consuming, saving time and resources of courts and parties and reducing distress

MINUS
- If used when inappropriate (e.g. too early), they may be unsuccessful and add to the costs of pursuing civil dispute, making pursuit of dispute resolution less affordable and thus less accessible

• Decisions made through alternative dispute resolution methods cannot be appealed, barring parties from full use of the civil justice system

Question 12

Define the factor of court and VCAT delays

Answer 12

The backlogs, possible pre-trial procedures and evidence gathering and preparation involved in courts and VCAT prolong the time taken to resolve civil disputes, hindering justice in a number of ways.

Question 13

How do court and vcat delays hinder fairness?

Answer 13

Delays can reduce the reliability of evidence as witness memory fades over time. Can hinder procedural fairness and lead to loss of fair outcome

Stressful for parties, compromising concept of ‘without fear or favour’ and hindering ability to present case in its best light

Question 14

How do court and vcat delays hinder equality?

Answer 14

Vulnerable parties or those who lack familiarity with the legal system can be disproportionately affected by delays, putting them at a disadvantage against parties who are familiar with litigation/are not vulnerable

Question 15

How do court and vcat delays hinder access?

Answer 15

Delays may deter individuals from pursuing case or defence or force them to settle/withdraw claim due to the frustration/loss of time involved

Question 16

Define the use of case management powers as a factor affecting the ability of the civil justice system to achieve the principles of justice.

Answer 16

Judicial officers’ powers of case management, including ability to order parties to undertake mediation and to give directions, can facilitate just, cost-effective and timely dispute resolution.

Question 17

How do powers of court management affect the ability to the civil justice system to achieve fairness?

Answer 17

PLUS:
Processes can be adapted according to party’s specific needs, promoting their ability to present their case in its best light.

Directions given can significantly reduce delays and thus reduce the level of distress felt by parties. This makes processes ‘without fear or favour’ and promotes parties’ ability to present case in its best light.

Ordering to mediation enables use of a less formal and intimidating method of dispute resolution. Parties may feel less uncomfortable and intimidated, ensuring the concept of ‘without fear or favour’ and promoting ability to present case in its best light.

MINUS:
Transferring some power from parties to courts may interfere with adversarial system of justice and make processes inquisitorial, providing an avenue for the subconscious enforcement of judicial officers’ own bias

Question 18

How do powers of court management affect the ability to the civil justice system to achieve equality?

Answer 18

Can use powers to ensure that processes are not discriminatory and do not advantage/disadvantage a particular party e.g. extending warning to argumentative legal rep who may dominate weaker party

Orders and directions can apply equally to both parties.

Ability to give directions can ensure that both parties receive the same opportunities to present their case e.g. judicial officer can ensure that both parties are able to have their say and object to evidence

Question 19

Identify accessibility factors which affect the ability of the civil justice system to achieve justice

Answer 19

barriers to communication (hindering)
lack of services in rural and remote areas (hindering)
the use of representative proceedings (promoting)

Question 20

Define barriers to communication

Answer 20

Include anything that prevents a person from understanding their legal rights and the legal methods/institutions/processes involved in the pursuit of their rights.

Question 21

What groups of people may be impacted by communication barriers?

Answer 21

• migrants
• immigrants
• Indigenous Australians
• those who lack formal education

Question 22

How do barriers to communication hinder fairness?

Answer 22

• unable to communicate well in english = can’t present their case in best possible light.
• inability to understand legal methods/processes/institutions could be intimidating, undermining the concept of proceedings being without fear or favour

Question 23

How do barriers to communication hinder equality?

Answer 23

• unable to communicate well in English = struggle to tell their side of the story = unequal opportunity to present case (not on equal footing, there is a disadvantage)

Question 24

How do barriers to communication hinder access?

Answer 24

• lack of understanding of legal rights = don’t recognise when they have been breached = barred from pursuing a civil claim
• unable to communicate well in english = cannot understand legal rights
• inability to understand legal processes/methods/institutions may discourage individual from pursuing a claim or defence (uncertain about what needs to happen to pursue their case)

Question 25

Define the lack of services in rural and remote areas

Answer 25

Insufficient availability of legal services in rural and remote areas, compared to larger cities and towns e.g. no dispute resolution bodies such as courts in close proximity

Question 26

How does the lack of legal services in rural and remote areas hinder fairness?

Answer 26

• lack of legal services in remote areas = low number of lawyers in rural/regional areas are more burdened by having to cover larger geographical area and have wider range of expertise = lowers the quality of legal rep available to rural/remote Victorians = hinder ability to present case in best light
• lack of legal services = harder to access legal processes/methods/mechanisms that may promote ability to present case in best light

Question 27

How does the lack of legal services in rural and remote areas hinder equality?

Answer 27

• lack of legal services in remote areas = low number of lawyers in rural/regional areas are more burdened by having to cover larger geographical area and have wider range of expertise = lowers the quality of legal rep available to rural/remote Victorians = disadvantaged against those who have easier access to wider range of legal practitioners and services
• rural and remote victorians may not be equal before law if they have unequal access to legal services and resources = not the same opportunities to pursue their case

Question 28

How does the lack of legal services in rural and remote areas hinder access?

Answer 28

• limitation of ability to pursue legal rights and seek compensation due to difficulty using legal services

Question 29

What are representative proceedings?

Answer 29

Look at definition on the chapter 6 que card

Question 30

How does the use of rep proceedings affect fairness?

Answer 30

Positive:
Overseen by Supreme court judge as they tend to be complex. –higher and impartial authority = lower likelihood of error in deliverance of justice, and proceedings are likely to be without bias.

often conducted by experienced legal practitioners and funded by established litigation funders, helping present case in best light

Negative:
Fairness of outcome depends on distribution of damages awarded. if litigation funders receive disproportionate sum of money, this does not sufficiently compensate members who have incurred harm/loss as result of civil wrong. this is unfair.

Question 31

How does the use of rep proceedings affect equality?

Answer 31

Positive:
often conducted by experienced legal practitioners and funded by established litigation funders, ensuring that members are on equal footing with the defendant (who tends to be well-resourced).

Negative: 
if the class action is large and multiple litigation funders become involved, defendant may be overpowered and disadvantaged

Question 32

How does the use. of rep proceedings affect access?

Answer 32

Positive:
create economies of scale that make it cost-effective for individual claimants who cannot initiate their own claim to take legal action against well-resourced defendant to recover small loss

Negative:
the use of litigation funder may erode final payment that is made to legitimate claimants, reducing their access to compensation.

Question 33

Identify three recent reforms and the year in which they were implemented

Answer 33

Group class orders in class actions (2020)
Technological improvements in the legal system (2019)
Expansion of VCAT’s fast track mediation and hearing processes (2019)

Question 34

Define the reform of group class orders in class actions (2020)

Answer 34

empowers courts to allow plaintiff law firms in class actions only to calculate their fees as a percentage of the amount recovered (if doing do is considered appropriate to ensure justice)

Question 35

Try to evaluate and discuss this reform in relation to the POJs

Answer 35

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Question 36

Define the reform of technological improvements in the legal system (2019)

Answer 36

Involve increasing use of tech - driven by courts or by private parties - to aid the resolution of disputes in a more, accessible and time and cost-effective manner.

Question 37

Give examples of recent improvements in tech in the legal system

Answer 37

Online dispute resolution (ODR)

Improvements in supreme court and VCAT’s application and filing process e.g. court documents now filed electronically in Supreme Court + VCAT’s new application app makes it easier to apply

Technology Assisted Review for discovery tasks

Question 38

Try to discuss and evaluate the ability of technological improvements in the legal system to achieve justice.

Answer 38

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Question 39

Define the reform of the expansion of VCAT’s fast track mediation and hearing process (2019)

Answer 39

The threshold limit for claims to be heard through this service was $3000 and the service was exclusive to Melbourne venue at VCAT. Reform has seen the service become state-wide and the threshold limit increase to $10,000 and $5000 for non-Melbourne based claims.

Question 40

Try to discuss and evaluate the ability of the expansion of VCAT’s fast track mediation and hearing process to achieve justice

Answer 40

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