civil justice system unit 3 AOS2 Flashcards
what are judicial case management powers , their legislation and 3x purpose
what: powers that judges have in order to manage a case within civil law to ensure that costs and delays are reduced
leglisation: civil procedures act 2010
purpose:
1) disputes resolved in a more timely manner
2) disputes resolved in a less costly manner
3) recources of courts can be prioritised
what are the two main powers of the judges
1- ordering parties to attend direction hearing
2- attend compulsory mediation
what is the power to order mediation and purpose of it
what: a judge has the power to make an order referring a proceeding or ordering a party to attend mediation - most in supreme court go to mediation
purpose: promote efficient and cost effective resolution of dispute
what is the power to give directions and examples of it
what: as part of their jursidiction judges can give directions to parties that it believes to be appropriate in resolving the dispute
examples:
- filing a particular document
- attending a court
- attend mediation
- limit the evidence
5 x directions before trial
- providing timelines to parties for any steps to be taken for example submitting medical reports
- participating in alternate methods of dispute
- limiting scope of evidence
- allowing a party to amend a pleading
- discovery of evidence
4 x directions during trial
- the order in which evidence is to be given
- limiting examination of evidencre
- evidence
- costs
what is mediation
process in which an impartial and independant third party helps the parties involved to identify the issues in dispute and facilitates discussions on possible resolutions. parties make the final decision
features of mediation
x5
- third party that is independant and impartial used to facilitate communication in dispute
- mediator does not make suggestions regarding outcomes
- participation is both parties voluntary
- mediation is confidential
- outcome is legally binding
5 x appropriateness of mediation
1- parties are limited by cost in pursuing the matter
2- mediation is faster
3- win win solution both parties resolve dispute
4- informal atmosphere
5- ongoing relationships are needed
5 x inappropriate of mediation
1- when a solution is legally binding decision is needed
2- an imbalance of power
3- formality of the courtroom
4- transparency of the courtroom
5- need or use of legal rep
what is conciliation
an impartial third party who listens to both sides and suggests ways in which they could resolve their dispute
features of conciliation 5x
- third party are independent and impartial able to listen carefully to evidence of each party
- conciliator uses legal expertise in area being disputed
- conciliator can suggest solutions however not force parties to an agreement
- not legally binding
- participation from both sides
3 x appropriate of conciliation
- both parties are willing to participate in the process
- informal discussion less intimidating and inexpensive
- parties wont assist with a complex matter
4 x inaproppriate of conciliation
- when one party is not willing to participate
- matter wanting to be enforced or legally binding decision
- imbalance as parties under pressure
- desired to uphold court values and rules
what is arbitration
involves a third party listening to evidence and arguments presented by both parties and making a decision that is legally binding
what are the features of arbitration x4
1- third party= independent and impartial
2- arbitrator will reesolve dispute by listening to evidence of each party
3- must be voluntary
4- decision made my arbitrator is legally binding
4 x appropriate of arbitration
1- provides a binding and final decision
2- minor disputes less than 10,000
3- costs are lower than courts and less formal environment
4- parties benefit from expertise and advice of arbitrator
4 x inapropriate of arbitration
1- complex evidence is provided
2- win lose scenario: decision made favoured to one party
3- requires interpretation of law
4- costs are a factor
what is judicial determination
a formal process whereby mag, vcat member or judge listens to evidence and arguments of parties and makes a legally binding decision. all enforceable by courts
3 x features of judicial determination
1- formal process matter heard by superior authorities
2- involves lengthy and complext trial procedures
3- can involve jury of 6
4 x appropriate of judicial determination
1- complex evidence of laws are involved
2- power imbalance exists
3- mediation or conciliation is unsuccessful
4- parties rely on formality and strict rules of the court room
4 x inapropriate of judicial determination
1- cost is barrier for parties
2- ongoing relationship is preferred
3- other alternate resolutions have not beenattemptefd
4- parties may feel intimidated by environment
what are damages
most common form of civil remedy and a sum of money to pay the plaintiff in order to restore the plaintiff to its original position
4 x type of damages
compensatory damages
exemplary damages
nominal damages
contemptous damages
what are compensatory damages and the 3 x of compensatory damages that exist (describe them)
comp damages are attempts to compensate plaintiff for injury or infringement they have suffered
1- specific/special damages= type of award made to compensate the plaintiff that can be easily calculated or measured for example medical expenses
2- general damages= compensate plaintiff for pain and suffering and loss of enjoyment of life. not easily calculated
3- aggravated damages= type of damages that can be awarded in addition to other damages. the plaintiff is compensated for further humiliation or emotion faced
what is exemplary damages
aka punitive damages
awarded by courts when wanting to make an example of the defendant
what is nominal damages
in some instances the plaintiff may not have suffered any significant injury or loss in such instance the defendent pays nominal damages to the plaintiff in favour. awarded to reinforce legal interests of the plaintiff
what is contemptous damages
plainjtiff may have a valid legal claim and successful in excersising the rights however the court may NOT be sympathetic the plaintiff may be awarded a certain amount
what are injunctions
court order that requires the defendent to do soemthing or refrain from doing something
what are mandatory injunctions and an example
mandates the defendent to perform a particular action
for example; a family in elwood has applied for an injunction in the supreme court to force an apartment developer to take down their crane
what are prohibitory injunctions and an example
prevents the defendent from performing a particular action
for example: channel 10 applied an injunction to prevent a journalist from publishing photos which would reveal the bachelor
damages and injunctions achieving their purpose x2 each
damages:
- effective when involving economic loss
- damages can be awarded to the plaintiff
injunctions:
- can restore plaintiff to its orginal position
- can also prevent further dmage to the plaintiff
damages and injunctions limits with their purpose
2x d 2 x i
damages:
- determining an accurate amount can be diffiult to calculate
- taking a case to court can be very time consuming
injunctions:
- defendent may have already caused damages an injunction will not resolve the plaintiff
what are cost factors and egs
desc - financial considerations parties must take into account before initiiating a civil claim as it is a choice to partake in it
examples:
- vcat applications begin at 64 dollars and above
- mediation and conciliation is not free with a conciliator or mediator range between $800-200000 a day
- cost for jury is 816 for first day
cost factors and principles of justice
FAIRNESS
fairness:
- high costs= 30% of individuals appear in matters self represented then an indiviuals lack of legal knowledge reduces their ability to present their case in an effective manner
-prevent vulneravle people from upholding their rights -more lilely to be unaware of resolving disputes
cost factors and poj
EQUALITY
high costs= most vulnerable groups eg: indigenous australians unable to afford legal rep = unequal treatment before the law
cost factors and poj
ACCESS
can can affect an individuals ability to access legal info,advice or legal rep and resolution methods if not aware of them
what are delays and examples
desc: affect ability of people to utilise the legal system because they want closure and to get on with their lives
examples:
- complex pre tiral procedures in supreme court (pleadings and discovery) can add months to the case
- delays can exist due to lack of availability of recources eg courtrooms
- average time for a matter to be financed in supreme court= 8.9 months
delay factors and poj
FAIRNESS
depending on nature and complexity of case delays = compromise fairness bc delays can take months to years which has sig impact on life
delay factors and poj
EQUALITY
longer waiting times can increase loss incurred by a party whilst waiting for matter to be resolved
delay factors and poj
ACCESS
delays/lengthy period of time to pursue a case may encourage parties to settle in a way that denies them access to justice
accessibility factors and examples
description: can occur as a result of cultural factors, geographical factors, socio econmic status and vulnerability
examples:
- in victoria fn ppl were twice as likely to experience multiple legal needs than non indig
- similalrly people with cognitive impairment had issues with accessibility to the legal system - communication barriers and awareness of legal rights
accessibility factors and poj
FAIRNESS
certain groups in society are not treated impartially as a result of certain limitations eg people living regionally
accessibility factors and poj
EQUALITY
vulnerable groups in society are not afforded the same opputunity to uphold their rights and utilise various instituitions and methods
accessibility factors and poj
ACCESS
access is limited in all aspects of accessibility
erg physical or cognitive impairment
reform 1: group cost orders in class actions
when did it occur?
what does it involve?
what was situation before?
why was reform needed?
criticism of reform?
- change became into affect in june 2020 under jutice legislation miscellaneous amendment act 2019 vic
- law firms are now able to charge client a fee should their class action be successful as a % of damages recorded. if class action is unsuccessful no fee is charged
- before, paying a fee as a % was illegal. if needed financial help with class actions they needed to go through litigation
- supported change as calculating fees would make smaller class more attractive for lawyers to undertake. Also reduce financial risk
- means law firms are more selective of cases that they take on
group cost orders reform and poj
fairness:
- reform is not a complete solution to many fairness issues that people are confronted with. eg it would not address procedural fairness with someone self represented (-ve)
- allows submissions to be made and matters to be considered before the court to recieve a % of any amount (+ve)
equality:
- changing ways in which group members myst be charged by their lawyers. May see the court treating class actions differently so that they receive a resonable amount of damages (+ve)
access:
- charges enable greater access to groups of people that may not have been able to afford legal costs(+ve)
reform 2: fast track mediation and hearing in vcat
when did this occur?
what is it?
what was it before?
why was change needed?
- introduced in 2019 within the vcat tribunal
- expansion of financial threshold for applicants to access fast track mediation and hearings from 3000-10000 t/f increasing civil claims
- previous threshold=3000 financial limit
- more efficient method of dispute resolution. increase opportunity to resolve dispute
fast track mediation reform and poj
fairness:
- vcat heard by a different member allows for fairness as little formality as possible and assisting parties to make out their case(+ve)
- not a complete solution, many unfairness issues that arise in a vcat hearing (-ve)
equality:
- ensures all people are treated equally with an unbiased and impartial mediator(+ve)
- h/w changes are not a complete solution eg ppl who suffer particular vulnerabilities may still face inequality issues(_ve)
access:
- expansion increases access to a wider range of ppl>those in rural and remote areas(+ve)
- threshold of 5000 for regional areas= decrease access and process also limited(-ve)
reccomended reform 1: national justice interpreter scheme
what is it?
what does it involve?
- 2017 conducted a review on states access to justice for groups of people experiencing disadvantage. scheme introduced to overcome language barriers
- fully funded by govt and provide guidelines to court, vic govt and vcat = ensure adequete availability of interpreters to assist with communication barriers, legal info put in plain english and other languages
national justice interpreter scheme and poj
fairness:
- provides a person with a non speaking english backround with greater understanding of court processes(+ve)
- success of scheme will depend on availability of interpreters (-ve)
equality:
- those with non speaking backrounds are able to get equal footing with being able to understand court processes(+ve)
- scheme does not adress other inequality issues eg mental impairment young children(-ve)
Access:
- use of interpreters allow for greater access to court processes and procedures (+ve)
- a national scheme does not mean everyone gets to utilise it- depend on community or location
