Legal practice Exam deck 1 Flashcards
To prepare for trial exams (september 2024)
Law Makers
Parliaments ( statute) and courts (common law)
Criminal Law
an area of law that protects the community by establishing and defining what crimes are. It also sets down sanctions for people who commit them.
Civil Law
a body of law that sets out the rights and responsibilities of individuals, groups and organisations. It also regulates private disputes when these rights have been infringed.
Principles of Justice
Fairness, Equality and Access
Factors Affecting Achievement of Justice
Cost, Time and Culture
Summary Offenses
- Relatively minor
- Always in Magistrates
- Heard by Magistrate
- Summary Hearing
- Doesn’t go under committal hearing
- Not heard in front of jury
Indictable Offences
- Serious
- Mainly but not exclusively in Supreme and County
- Presided over by a judge
- Heard by a jury of 12
- Must undergo a committal hearing if not being trialed summarily
Burden of Proof (Criminal)
- Prosecution has the burden of proof
- Responsibility of proving the case against the other party, in this case the accused
- This must be proved beyond reasonable doubt
- Is flipped when the accused pleads a defence, or in special cases such as speeding fines, etc.
Standard of Proof (Criminal)
- Refers to the threshold or level of proof required to prove a case
- This is beyond reasonable doubt
- Based on the evidence of the case which is tested by both parties during a trial and for the jury to then decide the case on
Presumption of Innocence
- Fundamental principle of the legal system
- Relates to criminal cases
- Key principle of the rule of law
- It is a common law right
- Features that uphold the POI:
Right to silence
Police can only arrest if they have a reasonable belief that someone has committed a crime
Committal Proceeding
Propensity evidence cannot be brought forward
Right to appeal a decision
Rights of the Accused
- Right to be tried without unreasonable delay
- Right to a fair hearing
- Right to trial by jury
Found in S.80 of Constitution, Bill of Rights and Common Law
Rights of Victims
- Right to give evidence as a vulnerable witness
- Right to protections
- Right to be informed of the likely release date of the accused
- Right to be informed about the proceeding
Alternative Arrangements
- Only for sexual, family violence and sexual exposure in public place offences. As well as obscene, indecent, threatening language or behaviour in public place.
- The witness may give evidence from a place other than the courtroom by means of CCTV
- Screens may be used to remove the accused from direct line of vision of the witness
- A support person may be chosen by the witness to be there while giving evidence
- Only certain persons may be allowed in court when the witness is giving evidence
- Legal practitioners may be required not to be formally dressed in robes or may be required to be seated while asking questions.
- These are available to witnesses and complainants.
Protected Witness
- Only for sexual and family violence offences.
- A protected witness may be a complainant, a family member of the complainant, a family member of the accused, or any other witness the court declares to be a protected witness.
- Once the declaration is made, the protected witness must not be cross-examined by the accused. Instead, the cross-examination must be conducted by the accused’s legal representative.
- If the accused does not have any legal representation the court must order Victoria Legal Aid (VLA) to provide legal representation for the accused for the purposes of cross-examination.
Special arrangements for persons under the age of 18 years or with a cognitive impairment
- A sexual offence, an indictable offence involving assault on, or injury or threat of injury to a person, offences involving minor assaults where those assaults relate to one of the above two offences.
- These witnesses will be allowed to give their examination-in-chief by way of audio or audio-visual recording. That recording may then be provided to the accused, who will have a reasonable opportunity to hear it or view it.
- The accused is not in the same room as the complainant for the special hearing
- The accused is not entitled to see and hear the complainant while the complainant is giving evidence
- No unauthorized person is to be present in the courtroom while evidence is being given
- The evidence must be given on CCTV
- The complainant is not to be questioned unless the court gives leave (that is, the court must make an order saying that this is allowed).
Institutions Available to assist accused
- Victorian Legal Aid (VLA)
- Community Legal Centers (CLC)
Role of VLA
- Provide legal aid in the most effective, economic and efficient manner
- Manage its resources to make legal aid available at a reasonable cost to the community and on an equitable basis throughout Victoria
- Provide the community with improved access to justice and legal remedies
- Pursue innovative means to provide legal aid to minimise the need for individual legal services in the community.
Types of Legal Aid VLA Offer
- Free Legal Information
- Free Legal Advice
- Free Duty Lawyer Services
- Grant of Legal Assistance
VLA: Free Legal Information
VLA’s website has free publications and resources, information about criminal cases, and a public law library that includes case law and other legal materials. Legal information is also available over the phone.
VLA: Free Legal Advice
Advice is provided in person, by video conference or over the phone. VLA’s focus for in-person advice is on people who need legal advice the most, including those who:
- Can’t afford a private lawyer
- Have a disability
- Are homeless
- Are children
- Can’t speak, read or write English well
- Are Indigenous Australians
- Are at risk of family violence
- Are in custody.
VLA: Free Duty Lawyer Services
A duty lawyer is a person who is at court on a day and who can help people who are at court for a hearing. Duty lawyers can give fact sheets about what happens in court, offer legal advice, and represent an accused in court on that day. Duty lawyers are only available in the Magistrates’ Court and the Children’s Court; they are not available for indictable offence trials. Only available to those who pass the income test.
VLA: Grant of Legal Assistance
VLA may be able to grant legal assistance to people who can’t afford a lawyer. This may include legal advice, helping the accused resolve matters in dispute, preparing legal documents and representing the accused in court. Only available to those who pass the means test.
The Income Test
An accused meets the income test if they produce to the duty lawyer a current Centrelink benefit card or pensioner concession card. If they don’t have one of these, they may still meet the income test if they sign a declaration which shows they have limited income.
Duty lawyers aren’t available in the County Court or the Supreme Court. VLA has said its duty lawyer services are stretched, and duty lawyers are often limited in the time they can spend with a client
The Means Test
The means test is not the same as the income test. The means test is for people who are seeking a grant of legal assistance. The means test considers the person’s income and other assets (e.g. houses, cars, savings).
If VLA has denied an accused person legal assistance, they can apply to have the decision reviewed by an independent reviewer. A decision made by the independent reviewer can then be appealed to the Supreme Court of Victoria.
Order by the Court
The Criminal Procedure Act 2009 (Vic) gives the courts power to adjourn a trial until legal representation from VLA has been provided. The courts must be satisfied that the accused person would not be able to receive a fair trial without legal representation, and the accused cannot afford to pay for their own lawyer.
Types of Community Legal Centers
Generalist and Specialist
Role of CLC’s
- Information, legal advice and minor assistance
- Duty lawyer assistance
- Legal casework services including representation and assistance.
The Purpose of Committal Proceedings
- To see whether a charge for an indictable offence is appropriate to be heard and determined summarily
- To decide if there is enough evidence to support a conviction for the offence charged
- To find out whether the accused plans to plead guilty or not guilty
- To make sure there is a fair trial. Committal proceedings do this by:
Making sure the prosecution’s case is disclosed to the accused
Giving the accused an opportunity to hear or read the evidence and cross- examine witnesses
Allowing the accused to put forward a case at an early stage if they choose to do so
Allowing the accused to properly prepare and present a case
Making sure the issues to be argued are properly defined
Found in Section 97 of the Criminal Procedure Act
The Committal Hearing
The main and final stage of the committal proceeding is the committal hearing. At the committal hearing, the accused can question the prosecution’s witnesses and make submissions about the charges. After the evidence and submissions, the magistrate decides whether to commit the accused (i.e. send the accused to trial).
If the magistrate finds there is evidence to support a conviction at trial, the accused is committed to stand trial and released on bail to wait for the trial or is held in remand.
If the magistrate decides there is not enough evidence to support a conviction, the accused is discharged and allowed to go free. If further evidence is found in the future, the accused can be brought before the court again, because the committal proceeding is not a trial and the accused has not been found guilty or not guilty.
Strengths of Committal Proceedings
- Committal proceedings help to save the time and resources of higher courts by filtering out the weak cases that are unlikely to succeed.
- The committal process allows the accused to be informed of the prosecution’s case against them.
- The onus is on the prosecution to establish to the court that there is enough evidence to support conviction at trial.
- The prosecution is given the opportunity to withdraw some charges or combine charges after the evidence has been considered.
- The accused can test the strength of the prosecution’s case. This includes the opportunity to examine prosecution witnesses
Weaknesses of Committal Proceedings
- Committal proceedings are very complicated.
- The services of a legal representative can be expensive.
- Committal proceedings can add to the delay of getting a case to trial, which can reduce access to the criminal justice system and could also increase the risk of an unfair outcome.
- Committal proceedings can contribute to the stress and trauma experienced by the accused, the victim and their families.
- For stronger cases, the committal proceeding stage is often considered unnecessary and a burden.
Plea Negotiations
Plea negotiations are discussions between the prosecutor and the accused about the charges against the accused. They can take place in relation to summary or indictable offences. Plea negotiations can result in an agreement being reached between the prosecutor and the accused about the charges that the accused will plead guilty to.
Negotiations are conducted on a ‘without prejudice’ basis.
Plea negotiations can happen at any stage, and even before the charges have been laid.
Purposes of Plea Negotiations
- To resolve a criminal case by ensuring a plea of guilty to a charge that adequately reflects the crime that was committed.
- To achieve a prompt resolution to a criminal case without the cost, time, stress, trauma and inconvenience of a criminal trial. Plea negotiations also provide certainty of outcome.
Appropriateness of Plea Negotiations
- Whether the accused is willing to cooperate in the investigation or prosecution of co- offenders, or offenders of other crimes
- The strength of the prosecution’s case
- Whether the accused is ready and willing to plead guilty
- Whether the witnesses are reluctant or unable to give evidence
- The possible adverse consequences of a full trial
- The time and expense involved in a trial
- The views of the victim
- The likelihood of a long trial.
Strengths of Plea Negotiations
- Negotiations provide substantial benefits to the community by saving the cost of a full trial or hearing.
- Negotiations help with the prompt determination of criminal cases and increase public confidence in the legal system.
- Victims, witnesses and their families, and the accused’s family are saved the trauma, inconvenience and distress of the trial process.
- Accused may receive a reduced sentence because of a plea of guilty before trial
- Fairness can still be achieved if the accused is pleading guilty to charges that reflect the gravity and nature of the offence.
- Negotiations help to make sure that there is certainty in outcome for all parties.
Weaknesses of Plea Negotiations
- The community and victims may feel the negotiations have resulted in the accused being ‘let off’.
- Self- represented accused people may feel pressured into accepting a deal even if the evidence is not strong
- The negotiation process may be seen as the prosecutor avoiding the need to prove the case beyond reasonable doubt, which is a fundamental principle of our justice system
- Negotiations do not need to be disclosed and can be held privately. This lack of transparency may make some people question the agreement or the reason why the prosecution decided to reduce the severity of the charges
Sentence Indicators
A sentence indication is given by a court to the accused to let the accused know what sanction is likely to be imposed on them. It is intended to give the accused a broad idea of the sentence they are likely to get if they plead guilty to the offence at a particular point in time. Prosecution must consent if for an indictable offense.
Purpose of Sentence Indicators
An accused will often defer a decision to plead guilty because they may be apprehensive about the sentence that may be imposed. The purpose of a sentence indication is to provide the accused with some clarity about the likely sentence that will be imposed, so that they can make an early decision to plead guilty and alleviate the fear that they will receive a custodial sentence.
Providing the accused with a sentence indication can also save the time, costs, resources, stress and inconvenience of having a contested trial (or hearing) that may result in a higher sentence. The offender benefits from an early guilty plea because he or she is likely to receive a shorter sentence by avoiding the need for a trial or hearing.
Appropriateness of Sentence Indicators
- Whether the accused has applied for a sentence indication
- For indictable offences, whether a sentence indication has already been given. A sentence indication may be given only once during a proceeding for an indictable offence, unless the prosecution consents to another indication being given
- The type of offence and the court hearing the charges. Sentence indications are more likely to be appropriate in the Magistrates’ Court and the County Court.
- Whether there is sufficient information for the judge or magistrate to make an indication.
- Whether the accused is charged with an indictable offence and the prosecution consents to the sentence indication.
- The strength of the evidence against the accused, and whether the accused has raised a legitimate defence
- The nature of the offence. The Sentencing Advisory Council has said that sentence indications may not be appropriate for sex offence cases, given their sensitivity.
Strengths of Sentence Indicators
- It can result in the early determination of the case. This results in prompt justice rather than delayed justice.
- It can save money and resources.
- It can be conducted in open court.
- The accused is not bound to accept the indication and plead guilty.
- The indication is given by an experienced and impartial judge or magistrate
- The accused has greater certainty about what sentence they will receive.
- It can minimise the trauma, stress and inconvenience of victims and witnesses if a sentence indication is given early.
- Any victim impact statement can be considered by a judge when giving an indication.
- If the accused pleads guilty at the earliest possible time after the sentence indication, they can’t receive a greater sentence than was indicated for a summary offence.
- If the accused asks for a sentence indication but does not plead guilty, a different judge or magistrate will hear the trial or hearing. This means that the accused won’t be bound by the sentence indication.
- Any application for a sentence indication, and the indication given by the judge or magistrate are not admissible in evidence if the accused chooses to proceed to trial.
Weaknesses of Sentence Indicators
- The judge is not obliged to grant the accused’s request for the sentence indication.
- In the higher courts, the prosecutor must consent to the indication being given.
- Legislation allows the court to close a proceeding to the public when a sentence indication is given. This means there will be a lack of transparency about what occurred.
- For indictable offences, the accused may not necessarily know what sentence may be imposed (but will know whether a term of imprisonment will be imposed).
- The sentence indication may be given before all the facts have been admitted or proved.
- It may lessen the impact or need for a victim impact statement because the court won’t need to hear as much evidence to decide on the sentence.
- It denies the victim their ‘day in court’. They may want to see justice occur with a guilty verdict.
Reasons for Court Hierarchy
Specialisation and Appeals
Responsibilities of the Judge (Criminal)
- Manage the Trial
- Decide on Admissibility of Evidence
- Attend to Jury Matters
- Give Directions to Jury and Sum up Case
- Hand Down a Sentence
- Order that the VLA provide legal representation
- Be familiar with technology
- Be courteous and not interfere
- Assist a self-represented party
Responsibilities of the Jury (Criminal)
- Be Objective
- Listen to and Remember the Evidence
- Understand Directions and Summing Up
- Deliver a Verdict
Number of Jurors in a Criminal Trial
12
Responsibilities of the Parties (Criminal)
- Give an Opening Address
- Assist the Judge in Jury Matters
- Present the Party’s Case
- Give a Closing Address
- Make Submissions about Sentencing
- Attend Trial
- Research the Law
- No Bias
Responsibilities of Legal Practitioners (Criminal)
- Be Prepared
- Comply with their Duty to the Court
- Present the case in the best light possible
- Advise the accused of their rights
- Defend the accused
- Act in a proper manner
Sanction
a penalty imposed by courts on a person who is guilty of an offence.
Purposes of Sanctions
set out in section 5(1) of the Sentencing Act. These purposes are:
- Rehabilitation
- Punishment
- Deterrence
- Denunciation
- Protection
Sanctions: Rehabilitation
A court will consider sanctions that could help treat the offender and address the underlying reasons for the offender committing the crime. This aims to assist offenders to change their attitudes and behaviour with the goal of preventing them from reoffending in future. This can be achieved by giving a community correction order (CCO) to encourage rehabilitation rather than sending offenders to prison.
Sanctions: Punishment
Punishment gives the community some revenge against the offender. When a crime has been committed, an offender has done something unacceptable to society, especially if someone has been hurt, and must be punished so that the victim of the crime and the community feel justice has been done. Offenders should be punished to an extent and in such a manner that is just in all the circumstances, so the community can feel it has achieved retribution.
Sanctions: Deterrence
Some sanctions are aimed at discouraging other people from committing similar crimes. This is known as general deterrence because it is aimed at deterring the entire community from committing similar offences. Sanctions are also a specific deterrence because they discourage the offender from committing the same offence again.
Sanctions: Denunciation
Denunciation refers to the disapproval of the court. A sanction may be given to show the community that the court disapproves of the offender’s conduct.
Sanctions: Protection
Protection is an aim that seeks to safeguard the community from the offender. Sometimes it is necessary to remove an offender from the community to achieve this aim, because the offender is physically prevented from reoffending.
A non-custodial sentence such as a CCO, can also protect the community from offenders because they keep offenders busy when they might otherwise be engaged in criminal activity. However, offenders sometimes abuse CCOs and offend while carrying out community work.
Types of Sanctions: Fines
It is an amount of money ordered to be paid by the offender to the state of Victoria. A fine can be imposed as the only sanction, or it can be imposed with any other sanction.
Sentencing Purposes of Fines
- Punishment
- Deterrence
- Denunciation
Ability of Fines to Achieve their Purposes
- The wealth of the offender
- The ability to denounce the crime
- Whether a fine is sufficient to act as a general deterrent for the whole community
- Whether there is a more appropriate sanction
Types of Sanctions: CCO’s
a supervised sentence served in the community that includes special conditions, such as treatment of the offender and unpaid community work for a number of hours. A court can only impose a CCO if the offender has been convicted or found guilty of an offence punishable by more than 5 penalty units, the court has received a pre-sentence report, and the offender consents to the order. A CCO can be imposed for up to two years in the Magistrates’ Court for a single offence, and no more than five years in any of the Victorian courts. A CCO can be combined with a fine or up to one year in prison. When combined with a prison sentence, the CCO will commence on the offender’s release from jail.
Conditions Attached to CCO’s
- Must not commit another offence punishable by imprisonment during the term of the order
- Must report to a specified community corrections centre within two working days of the order coming into force
- Must report to and receive visits from a community corrections officer
- Must notify an officer of a change of address
- Must not leave Victoria without permission
- Must comply with any directions of community corrections officers.
Special Conditions Attached to CCO’s
- Unpaid Community Work
- Treatment and Rehab
- Supervision
- Residence Restriction
- Place or Area Exclusion
- Curfew
- Alcohol Exclusion
- Bond
Sentencing Purposes of CCO’s
- Punishment
- Rehabilitation
Ability of CCO’s to Achieve Their Purposes
- Whether there is a condition that will achieve the right purpose for the offending
- The most appropriate condition to be imposed, and whether the court imposes that condition
- Whether the offender will comply with the conditions
- Whether a CCO properly protects the community where protection is a relevant purpose
- Whether there is another or better sanction that will achieve the necessary purposes.
Types of Sanctions: Imprisonment
People who have been convicted of a crime can be sentenced to imprisonment for a time, which means they will be removed from society and they will lose their freedom and liberty.
Prison terms are expressed in levels from one to nine, one being the most serious (life imprisonment) and nine being for six months.
If a court sentences an offender to imprisonment for two years or more, it must also state a minimum, non-parole period. If the sentence is between one and two years, then the court has the option of stating a non-parole period. The Magistrates’ Court is limited in the length of imprisonment it may impose. The maximum term of imprisonment for a single offence is two years and five years for two or more offences. The maximum term of imprisonment can only be imposed by the Supreme Court.
Concurrent and Cumulative Sentences
A concurrent sentence runs at the same time as another sentence. A cumulative sentence is served straight after another sentence. A cumulative sentence must be given:
- For certain serious offenders
- Where the imprisonment is in default of payment of a fine or sum of money
- For an offence by a prisoner or an escape offence
- For an offence committed by a person released on parole or on bail.
Aggregate Sentence
If an offender has been convicted of multiple, related offences, the court has the option of imposing an aggregate sentence that applies to more than one offence, rather than separate sentences for each offence.
Aggregate sentences are not available for serious offences where there is a presumption that sentences will be served cumulatively.
Indefinite Sentence
The court can only impose an indefinite sentence on an offender if it is satisfied, to a high degree of probability, that the offender is a danger to the community because of:
- Their character, history, health, age or mental condition
- The nature and gravity of the serious offence
- Any special circumstances
Purposes of Imprisonment
- Punishment
- Protection
- Rehabilitation
- Denunciation
- Deterrence
The Ability of Imprisonment to achieve its purposes
- The rate of recidivism and whether imprisonment is effective
- The availability of drugs in prisons
- The exposure of offenders to negative influences
- Whether the offender will be offered appropriate opportunities to rehabilitate, and whether they will take advantage of those opportunities
- Whether there are other sentences, like CCOs, which are better focused on rehabilitation
- The extent to which the community is protected if short prison terms are given.
Aggravating Factors
- The use of violence, explosives or a weapon when committing the offence
- The nature and gravity of the offence (e.g. if the victim suffered a brutality or cruelty, or the offence was unprovoked, or the crime was pre- planned)
- Any vulnerabilities of the victim (e.g. having a disability or being very young, or old and frail)
- The offender being motivated by hatred or prejudice against a group of people with common characteristics
- The offence taking place in front of children, or seen by them
- A breach of trust by the offender towards the victim (e.g. the offender was in a position of trust such as a parent who has abused a child)
- The offence occurred while the offender was on a CCO or on bail.
Mitigating Factors
- The offender was provoked by the victim
- The offender showed remorse
- The offender has no record of previous convictions
- The offender was acting under duress
- The offender has co- operated with the police and made full admissions
- The offender has shown e orts towards rehabilitation while awaiting sentencing, or has prospects of rehabilitation
- The offender was under personal strain at the time
- The injury or harm caused by the offence was not substantial, or there was no risk to any people
- The offender was young, or had some disability that made them not fully aware of the consequences
- The offender pleaded guilty early.
Guilty Pleas
One of the factors a court must consider when sentencing an offender is whether the offender pleaded guilty to the offence and, if so, how far into the case. A guilty plea at an early stage before trial (or hearing) or at the start of the trial can result in a less-severe sentence.
Reasons for Guilty Pleas
First, if the offender knows that an early guilty plea is considered in sentencing, it may encourage them to plead guilty rather than going to trial. Second, an early guilty plea can have significant benefits to the criminal justice system, including the prosecution, the victims, society, the accused and his or her families, by avoiding the time, expense and stress of a trial. Criminal trials can be particularly traumatic for victims and their families, and an early guilty plea will spare them that trauma. A reduction in sentence because of an early guilty plea will therefore reward the offender for admitting to the crime that he or she has committed.
Victim Impact Statement
A victim impact statement contains details of any injury, loss or damage suffered by the victim as a direct result of the offence. Its purpose is to assist the court when it is deciding on the sentence. A victim may make the statement to the court if a person is found guilty of an offence. A copy must be filed with the court a reasonable time before sentencing. Victims can also give the court medical and psychological reports, which can be attached to their victim impact statements.
A victim may request that their victim impact statement be read aloud in open court. This may be done by the victim, or a person whom the victim requests read the statement (and the court approves of that person). The court may give directions as to which parts of the statement are in fact admissible and which may be read in court.
Parties to a Civil Dispute
The Plaintiff and The Defendant
- An individual suing or being sued in their own name, or a group of individuals suing or being sued together
- A corporation, otherwise known as a company - a separate legal entity from the directors or individuals who run the company, which can sue and be sued
- A government body (e.g. the state of Victoria, a local council or a statutory authority such as Victoria Police).
Type of Civil Disputes
- Family Law
- Defamation
- Breach of Contract
- Negligence
- Trespass
Dispute Resolution Bodies
- Complaint bodies, such as Consumer Affairs Victoria
- An ombudsman, such as the Public Transport Ombudsman
- Tribunals, such as the Victorian Civil and Administrative Tribunal and the Mental Health Tribunal
- Courts, which are either Victorian courts or federal courts (including the Federal Court and the Family Court).
Burden of Proof (Civil)
lies with the person or party who is bringing the case. In a civil dispute, this is the plaintiff. When a plaintiff sues a defendant, it is the plaintiff who must show that the defendant was in the wrong.
Standard of Proof
Must prove the case on the balance of probabilities
Representative Proceedings
If a group of people all have claims against the same party, they may be able to join to commence a civil action known as a class action. A class action is the main type of representative proceeding, which is brought in the name of one person on behalf of someone else. It can be commenced if:
- Seven or more people have claims against the same person
- Those claims relate to the same, similar or related circumstances, and
- The same issues need to be decided (e.g. whether the defendant owed a duty of care to those plaintiffs).
Types of Representative Proceedings
- Shareholder class actions, where shareholders of a company may make a claim about being misrepresented about the state of the company’s affairs
- Product liability class actions, where consumers who have purchased a good or service have all suffered the same loss or damage
- Natural disaster class actions, where the group members have suffered loss or damage because of a natural disaster
Benefits of Representative Proceedings
- The group members can share the cost
- It is a more efficient way of the court dealing with several claims, saving court time and the time of court personnel
- People can pursue civil actions that they might not be able to afford in an individual case, and this gives them access to the courts to resolve their disputes
- In certain circumstances, a litigation funder may be prepared to fund the class action on behalf of the people who have suffered loss. They do this in return for a percentage of any settlement or damages awarded, thus increasing the ability of the group members to pursue a claim even when they don’t have the funds themselves.
Factors to Consider When Initiating a Civil Claim
- Negotiation options
- Costs
- Limitation of actions
- The scope of liability
- Enforcement issues.
Possible Negotiation Options
- Arranging between themselves, with or without legal representation, an independent third party, such as a mediator, to help resolve the dispute. The independent third party or mediator is neutral and impartial and will help the parties come to their own agreement about how to resolve the dispute. This is often known as a ‘facilitated negotiation’.
- Arranging a negotiation or other dispute resolution service through a body such as the Dispute Settlement Centre of Victoria, or FMC Mediation and Counselling Victoria
Why Negotiation May Not Be an Option
- One or both parties does or do not want to resolve the dispute, or is or are not interested in negotiating
- There have already been attempts to negotiate the dispute, and they have failed
- One of the parties has been harmed or threatened by the other party, there has been violence involved, or there is distrust or fear among the parties
- There are no issues or dispute to be negotiated
- It is unlikely that negotiation will result in a successful outcome
- There is an urgency in having the matter resolved through court
- There is a significant power imbalance between the parties, and so the parties are not on an equal footing to be able to negotiate.
Benefits of Negotiating
- The costs, time and the stress involved in commencing a formal civil action may be avoided
- The parties have control over the outcome, as opposed to it being decided for them by a third party.
- The parties may be more prepared to accept an outcome that they have helped come to, as opposed to a decision that has been imposed formally by a court or another dispute resolution body such as a tribunal.
Costs
- Fees for Legal Rep
- Disbursements, such as court fees, mediation fees and expert witness fees
- Adverse Court Orders
Limitations of Actions
Plaintiffs must bring their cases to court within a time limit. Limitation of actions refers to the restriction placed on the time within which a civil action can be commenced. For most types of claims, the plaintiff will need to commence the proceeding within a certain number of months or years.
Scope of Liability
- Possible Defendants
- Employers
- Insurers
- People Involved in Wrongdoing
The extent of liability
One of the other issues that may arise for a plaintiff, and which he or she will need to consider before bringing an action, is the extent to which the defendant is liable. That is, the defendant may argue that if they are found liable, then they are only liable for a part or a portion of the plaintiff’s loss or damage.
Enforcement Issues
- The defendant may be bankrupt, which means that he or she will not have any assets or money to pay anything to the plaintiff
- Even if the defendant is not bankrupt, he or she may still be unable to pay
- The defendant may be in jail, particularly if the civil dispute arose out of a criminal action, and the defendant has been found guilty and imprisoned. It will therefore be more difficult to enforce the remedy
- If the defendant is a company, that company may not have any assets
- The defendant may be overseas or uncontactable, in which case it may be difficult to force them to pay any money
- The plaintiff may not even know who the defendant is.
What can be done if the defendant does not comply with an order
- Warrant of seizure and sale - Goods or land are seized by the sheriff and sold to pay the money owed, with the remainder being given to the defendant.
- Attachment of debts - The plaintiff’s award for damages attaches to the defendant’s debts; that is, where a third person owes money to the defendant, the third person is required to pay the plaintiff rather than the defendant.
- Attachment of earnings - The court can order the defendant’s employer to pay the debt at regular intervals directly out of the defendant’s wages.
Purpose of CAV
will help people settle their disputes efficiently and constructively, without any cost, and assist them in agreeing on the resolution of the dispute without imposing a decision. Its role is to resolve disputes efficiently and effectively, to ensure that any inappropriate conduct is stopped, and to help any party that has been wronged seek compensation for any loss they have suffered. only accepts complaints from consumers and tenants, not from businesses and landlords.
Dispute Resolution Method Used at CAV
The main method used by CAV to help parties resolve disputes is conciliation. Conciliation involves the assistance of an independent or neutral third party who helps the parties reach a mutually acceptable decision between them.
Appropriateness of CAV
- Whether the dispute is within CAV’s jurisdiction.
- Whether the dispute is likely to settle.
- Whether there are other or better ways to resolve the dispute
