Civil Law part.2 Flashcards
What are the 3 features of class actions
-Seven or more people claiming against the same defendant
- claim must be in respect of the same or similar circumstance
-must give rise to a common issue of law meaning the same issue are determined by the court for all claims
What is the roles of the lead plaintiff
-Assuming the risk and cost of litigation on behalf of entire group
-Ensuring claim represents group members, not only pursue ow benefits
-provide instructions of their lawyers regarding conduct of claim and making decisions regarding to settlement
-own name to be filed on case
Where can class actions occur
Supreme Court (trial division) and the federal court
What are 3 examples of the types of class actions
-Workplace accidients
-Medical malpractice
-Financial malpractice
4 strengths of class actions
-Litigation funders to enable more class actions to occur due to an otherwise lack of funds to raise participation
-class actions result in a lower cost for defendants, not have to disbursement costs or legal costs for group members and lowers costs for defendant
-supported by experienced lawyers due to being in Supreme Court
-more efficient as court dealing with no. of claims to save time and court resources
4 weaknesses of class actions
-lead plaintiff has to assume the risk and costs of litigation for the entire group
-extremely cost costly requiring a 3rd party to fund, which without funding will not commence
-the share given to each plaintiff after the costs may be minimal especially after large portion of damages going to litigation funders
-If litigation funding doesn’t occur then the lead plaintiff may be unwilling to bear the costs
Define CAV
A statutory body, this means that it was established as a result of Victorian Parliament passing the legislation:
Australian Consumer and Fair Trading Act (Vic) 2012
What are 3 purposes of CAV
-Enforce compliance with consumer law
-provide accessible dispute resolution services
-Advise the Vic government on consumer legislation eg. sales of goods
-provide consumers and tenants, landlords and traders with dispute resolution processes
What are 3 area of civil disputes that are in the CAV jurisdiction
-Products and services
-Housing- Residential Tenancies Act 1997 (vic)
-Cars
Must be a registered business to file a complaint with CAV
What are 4 ways in which CAV is appropriate
-If the dispute falls into the CAV jurisdiction
-Parties wish to avoid the costs and delays associated with the other dispute resolution methods and VCAT
-parties are willing to comply with the decided agreement at the end of conciliation
-parties have engaged in self-help methods
What are 4 ways that CAV is not appropriate
-The dispute doesn’t fall into the CAV jurisdiction
-The dispute is a class action
-parties haven’t engaged in self-help methods before filing a complaint
-parties want a legally binding resolution
What are 3 weaknesses of CAV
-CAV is limited to the consumer meaning that it has no power to aid another type of party
-CAV doesn’t have the power to enforce the resolutions that were agrees with during the conciliation as they are not legally binding
-not for large and complex cases as they will have difficult legal questions and several parties
What are 3 strengths of CAV
-Quick and relatively efficient so it can be resolved without the stress and delays associated with going to trial
-CAV is free
-role of the conciliator is to provide the parties with the same opportunities
-CAV conciliation is conducted in private bus promoting access to parties that don’t want a public trial
Describe 3 main divisions of VCAT with 2 examples each
-Residential Tenancies division: residential tenancies list
-Civil divisions:
building and property list
owners corporation list
-human rights division
guardianship list
human right list
What are the names of the parties involved in VCAT
The applicant and the respondent
Who are the president and vice president of VCAT
The president of VCAT is a current sitting Supreme Court judge
The vice-president is a current sitting county court judge
Outline 3 purposes of VCAT
-To provide low-cost dispute resolution services: parties can also self-represent
-Provide efficient dispute resolution services: not bound by the rules of evidence and can resolve cases through fast-track mediation, compulsory conference and hearing, it is less formal and takes less time
-Accessible dispute resolution services: many locations of VCAT
What is the cost to file a dispute
$70.10 for claims under $3000 and no hearing fees for claims where the amount is less than $100,000 or less and it can be resolved in a day
Describe Fast track mediation
-Parties are invited to attend if it is unsuccessful than a VCAT hearing will be scheduled for a different day
-Fast-track mediation has all other properties of normal mediation
Describe compulsory conference
-It is a confidential meeting in order for the parties to settle the dispute before a final hearing
-They use a conciliation process meaning that VCAT member can assist and make suggestions
Describe final hearing
-Used if dispute not resolved through the alternative means
-both parties will present their cases and VCAT member will make the final decision
-they can include monetary compensation
-final decisions can be enforced by courts
What are 4 ways in which VCAT is appropriate
-in the jurisdiction
-parties want an inform dispute method
-parties are willing to appeal on a question of law
-parties are willing to comply with the agreement reached during mediation
What are 4 ways in which VCAT is inappropriate
-not in jurisdiction
-parties want a formal method
-don’t want a legally binding resolution
-parties are not willing to comply with mediation
Define costs in the legal system
Costs associated with the running of the trial, that the parties are required to pay to initiate and continue a trial
Outline 3 examples of costs for parties
-Barrister fees: ranging from $3,000 to $5,000, they present the partied case to the court
-Expert witness fees: If expert witnesses are wanted then the parties will have to pay the, these could include a doctor or a psychiatrist
-Jury fees: juries are only available in courts that are higher than the magistrates court. They are a disbursement cost that the parties have to pay for themselves. Total cost is usually around $1,611.60 including the first day
outline 3 ways that costs can be mitigated
-VLA can mitigate the costs fr specific groups including, migration matters, Centrelink payments and if the individual has a cognitive disability
-VCAT fees are much cheaper than courts and can provide a legally binding decision with multiple alternative dispute resolution method available
-CAV is a free service so parties can use that to seek a resolution
What do delays refer to
The waiting time that parties in civil matters experience due to a variety of reasons, eg. court backlogs
outline 3 examples for reasons for delays
-VCAT services in the goods and services division usually have a 9-12 week waiting period for the dispute to be resolved
-VCAT residential usually 4 weeks for unpaid rent and landlords can be expected to wait 8 weeks
-Preparing for the case: to gather the relevant evidence and prepare the arguments for the case and to complete the discovery process between the parties
