civil justice system unit 3 AOS2

Question 1

what are judicial case management powers , their legislation and 3x purpose

Answer 1

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

Question 2

what are the two main powers of the judges

Answer 2

1- ordering parties to attend direction hearing
2- attend compulsory mediation

Question 3

what is the power to order mediation and purpose of it

Answer 3

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

Question 4

what is the power to give directions and examples of it

Answer 4

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

Question 5

5 x directions before trial

Answer 5

• 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

Question 6

4 x directions during trial

Answer 6

• the order in which evidence is to be given
• limiting examination of evidencre
• evidence
• costs

Question 7

what is mediation

Answer 7

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

Question 8

features of mediation
x5

Answer 8

• 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

Question 9

5 x appropriateness of mediation

Answer 9

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

Question 10

5 x inappropriate of mediation

Answer 10

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

Question 11

what is conciliation

Answer 11

an impartial third party who listens to both sides and suggests ways in which they could resolve their dispute

Question 12

features of conciliation 5x

Answer 12

• 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

Question 13

3 x appropriate of conciliation

Answer 13

• both parties are willing to participate in the process
• informal discussion less intimidating and inexpensive
• parties wont assist with a complex matter

Question 14

4 x inaproppriate of conciliation

Answer 14

• 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

Question 15

what is arbitration

Answer 15

involves a third party listening to evidence and arguments presented by both parties and making a decision that is legally binding

Question 16

what are the features of arbitration x4

Answer 16

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

Question 17

4 x appropriate of arbitration

Answer 17

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

Question 18

4 x inapropriate of arbitration

Answer 18

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

Question 19

what is judicial determination

Answer 19

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

Question 20

3 x features of judicial determination

Answer 20

1- formal process matter heard by superior authorities

2- involves lengthy and complext trial procedures

3- can involve jury of 6

Question 21

4 x appropriate of judicial determination

Answer 21

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

Question 22

4 x inapropriate of judicial determination

Answer 22

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

Question 23

what are damages

Answer 23

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

Question 24

4 x type of damages

Answer 24

compensatory damages
exemplary damages
nominal damages
contemptous damages

Question 25

what are compensatory damages and the 3 x of compensatory damages that exist (describe them)

Answer 25

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

Question 26

what is exemplary damages

Answer 26

aka punitive damages

awarded by courts when wanting to make an example of the defendant

Question 27

what is nominal damages

Answer 27

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

Question 28

what is contemptous damages

Answer 28

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

Question 29

what are injunctions

Answer 29

court order that requires the defendent to do soemthing or refrain from doing something

Question 30

what are mandatory injunctions and an example

Answer 30

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

Question 31

what are prohibitory injunctions and an example

Answer 31

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

Question 32

damages and injunctions achieving their purpose x2 each

Answer 32

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

Question 33

damages and injunctions limits with their purpose
2x d 2 x i

Answer 33

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

Question 34

what are cost factors and egs

Answer 34

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

Question 35

cost factors and principles of justice

FAIRNESS

Answer 35

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

Question 36

cost factors and poj

EQUALITY

Answer 36

high costs= most vulnerable groups eg: indigenous australians unable to afford legal rep = unequal treatment before the law

Question 37

cost factors and poj

ACCESS

Answer 37

can can affect an individuals ability to access legal info,advice or legal rep and resolution methods if not aware of them

Question 38

what are delays and examples

Answer 38

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

Question 39

delay factors and poj

FAIRNESS

Answer 39

depending on nature and complexity of case delays = compromise fairness bc delays can take months to years which has sig impact on life

Question 40

delay factors and poj

EQUALITY

Answer 40

longer waiting times can increase loss incurred by a party whilst waiting for matter to be resolved

Question 41

delay factors and poj

ACCESS

Answer 41

delays/lengthy period of time to pursue a case may encourage parties to settle in a way that denies them access to justice

Question 42

accessibility factors and examples

Answer 42

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

Question 43

accessibility factors and poj

FAIRNESS

Answer 43

certain groups in society are not treated impartially as a result of certain limitations eg people living regionally

Question 44

accessibility factors and poj

EQUALITY

Answer 44

vulnerable groups in society are not afforded the same opputunity to uphold their rights and utilise various instituitions and methods

Question 45

accessibility factors and poj

ACCESS

Answer 45

access is limited in all aspects of accessibility

erg physical or cognitive impairment

Question 46

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?

Answer 46

• 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

Question 47

group cost orders reform and poj

Answer 47

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)

Question 48

reform 2: fast track mediation and hearing in vcat

when did this occur?
what is it?
what was it before?
why was change needed?

Answer 48

• 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

Question 49

fast track mediation reform and poj

Answer 49

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)

Question 50

reccomended reform 1: national justice interpreter scheme

what is it?
what does it involve?

Answer 50

• 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

Question 51

national justice interpreter scheme and poj

Answer 51

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