civil law booklet two Flashcards
class action
can be known as representative proceeding or group proceedings
criteria for class action
-seven or more people are claiming against the same defendant
-the claim must be in respect of, or arise from the same or similar circumstances
-the claim must give rise to a common issue of law or fact, meaning the same issues are determined by the court of all claims
role of lead plaintiff
-lead plaintiff represents the group
-resolution of lead plaintiff will determine the defendants liability for other members of the group taking action
-assuming risk and cost of litigation on behalf of the entire group
-ensuring the claim serves the the interest of the group members and not pursued solely for personal benefit
-providing instructions to their lawyers regarding the conduct of the claim and making decisions regarding settlement or negotiations
-filing the case under their name
-if class action fails the lead plaintiff is solely responsible for the cost of proceedings and any adverse cost orders because group members are under no obligation
-if class action is successful, class members will share the costs of bringing proceedings
third party litigation
third party litigation funders are commercial entities that agree to meet the costs of the litigation in return for a proportion of the damages if the claim is successful
class action strengths
-use of litigation funders can enable more class actions to be brought in circumstances where individual litigators may lack funds
-class actions are managed by experienced and impartial judges
-juries are available in SC allowing for impartiality
-class actions decrease costs for defendants bc they don’t have to defend multiple claims
-class actions are usually supported by experienced lawyers therefore ensuring the case is presented in best light possible
weaknesses of class actions
-the lead plaintiff is required to assume the risk and cost of litigation on behalf of the entire group which can be unfair
-if litigation funding isn’t given the lead plaintiff may not be willing to bear the costs associated with bringing the class action
-depending on settlement reached, the shares given to each other plaintiff after costs may be minimal
-class actions can be extremely costly requiring a 3rd party to fund which without funding may not commence
-class actions can take a long time to be heard and completed often taking several years due to amount of evidence required therefore delaying remedies and justice to plaintiffs
-some group remedies may not get adequate or up to date information about the proceedings, limiting their ability to participate in the civil justice system
what is CAV
is a complaints body, this means it was established as a result of Victorian parliament passing legislation–>Australian Consumer and Fair Trading (VIC) 2012
purpose of CAV
-enforce compliance with consumer law
-provide information and guidance to educate people about consumer laws about the rights and responsibilities of businesses and consumers
-advise the govt on consumer legislation
-provide accessible dispute resolution services
what issues can CAV assist with
-complaints against a business made by a consumer= Fair Trading Act 2012 (VIC) breached= disputes about the supply of goods and services
-a complaint made against a landlord by a tenant who believes the Residential Tenancies Act 1997 (VIC) has been breached
-a complaint made by the consumer about the buying and selling of new and used cars
how CAV can help individuals
-CAV will only assist with claims initiated by consumers and tenants, not businesses and landlords
-CAV will only assist parties if they have tried to resolve issue first then failed
-CAV directs parties to conciliation as the primary dispute resolution method to resolve the dispute efficiently as this process can occur over the phone or in person
-conciliation process encourages parties to voluntarily resolve the dispute= non binding unless a deed of settlement is signed
-CAV cannot force either parties to attend conciliation and does not have the power to make a legally binding decisions
when is CAV appropriate
-dispute falls in CAV jurisdiction
-parties have attempted to resolve disputes themselves
-both parties are willing to attend and participate in conciliation
-parties wish to avoid costs and delays associated with resolving disputes through the courts or VCAT
-parties are willing to settle, therefore increase the likelihood of a successful resolution
-both parties are willing to comply with agreement reached
when is CAV inappropriate
-the dispute does not fall under CAV’s jurisdiction
-parties have not attempted to resolve the disputes themselves
-one or both parties are not willing to attend and participate in conciliation
-there is a better method of resolving the dispute, including via an alternate organisation that is better suited to dealing with the matter
-the court or VCAT has already ruled on the matter, or the case is currently waiting to be heard
-the dispute is initiated by a landlord or business
-the dispute is a class action
-one or more parties want a legally binding decision
strengths of conciliation
-can provide a quick and relatively efficient method for parties to resolve their dispute without the delays and stress associated with going to trials whilst also allowing for impartiality
-CAV is also free
-CAV uses conciliation meaning that parties can take advantages of having a conciliator who generally has specialist knowledge regarding that area of law
-can be conducted over the phone
-uses informal processes of conciliation which is less intimidating
weaknesses of CAV
-limited mainly to consumers and tenants
-CAV has no power to compel parties to attend conciliation
-CAV has no power to enforce decisions reached by the parties in conciliation
-not all cases are accepted by CAV and its services are limited
-not appropriate for large and complex disagreements including those with difficult legal questions or several different parties which only can be resolved through by a court or tribunal that has greater expertise in the law
vcat
-a statutory resolution body and is a tribunal that has power to resolve a wide range of civil disputes and has exclusive civil jurisdiction over certain matters
-president of vcat is a sitting SC judge and a vice president is a sitting CC judge
parties in VCAT
the applicant: the person who is applying to have their disputes resolved
the respondent: the person who is responding to a claim made against them
vcat divisions
-residential tenancies division= can help both landlords and tenants eg. unpaid rent, unfixed utilities
-civil division= civil claims list, building and property list, owners corporation list eg. a consumer seeking remedy from a businesses that provided faulty goods
-human rights division= guardianship list, human rights list eg. discrimination= if a worker claims they were dismissed due to their religious beliefs
disputes that AREN’T in vcat jurisdiction
-class actions
-cases where parties are residents are from different states
-cases involving the exercise of federal jurisdiction
-cases where the Commonwealth of Australia is involved
-cases involving the Australian Constitution
-cannot hear disputes between neighbours
-cannot hear a dispute between employer and employers
purposes of vcat cost
-filing fees are relatively cheap= $70.10 for claims below 3000 for civil list
-vcat has fee tiers= ensure that corporate businesses pay for higher fees
-no hearing fees for civil claims where the amount is 100000 or less for a rental dispute that can be resolved in a day
-parties can self represent and do not need to rely on legal rep
purposes of vcat efficiency
-hearings are shorter at vcat since there is no strict rules of evidence and procedure
-many cases can be resolved through compulsory conference or mediation=informal and less time consuming
-for cases to proceed to a hearing, there are less pre hearing procedures compared to courts
-vcat provides fast track mediation services and hearings whereby ther mediation takes less than one hour for disputes involving goods and services under 10000
-multiple locations throughout victoria including rural
fast track mediation and regular mediation
-for goods and services claims up to 10000
