Legal Unit 3 AOS 2 Flashcards
1
Q
CAV (definition and desc)
A
Consumer Affairs Victoria regulates cons law, aiming to help ensure Vics are informed about cons law, and to ensure businesses are complying with these laws
2
Q
CAV (responsibilities)
A
- Advises Vic Gov on cons leg
- Provides info and guidance to educate ppl on cons laws, their rights+resp.
- Enforces compliance w/ cons law
- (limited circum) provides consumers/traders and landlords/tenants w/ disp res proc.
3
Q
CAV (purposes)
A
- Help people agree on disp res efficiently without any cost or too much time
- Help parties reach res consistent w/ law (compliance focus so that breaker of law is aware and won’t again)
4
Q
CAV (who is helped)
A
Only tenants and consumers, not landlords or traders
5
Q
CAV (jurisdiction)
A
Between cons/supp
- Damaged/faulty, service w/o care+skill, buying cars (warranty, price or condition)
Between ten/LL
- Rental agg, rent, signing/ending lease, rental appl, repairs
6
Q
CAV (DRMs used)
A
- Primarily phone based
- Some cases call for in-person concil (usually specialist knowl)
7
Q
CAV (Appropriateness)
A
- Within jurisdiction (no family law or discrim disp)
- Prev attempt to resolve
- Non-trivial
- Breach of leg or failure to comply (more likely to involve) - Vulnerable or disad. cons/tenant
- Dealt w/ by VCAT (won’t intervene)
- If negotiation possible
- Binding order necessary?
- Take CAV seriously
- Formality preferred
- Size
- Urgent (court better)
8
Q
CAV (Strengths)
A
- Free
- Informal/over phone, removes anxieties
- Procedural fairness, both sides opportunity
- Assesses disputes indiv, no wasting time where concil is useless
- Process helps parties resolve themselves, no forcing outcome
9
Q
CAV (Weaknesses)
A
- Limited to consumer/tenancy
- No power to compel parties to partic.
- No power to enforce decisions reached in concil
- Not all cases accepted, concil serv limited
- Large, complex disp not approp.
10
Q
Tribunal
A
A disp res body that deals with a limited area of law in which they have expertise, usually cheaper than courts and more efficient in res disp
11
Q
VCAT (definition and desc)
A
Victorian Civil and Administrative Tribunal is a disp res body that hears a range of civil and admin disputes in Vic
12
Q
VCAT (facts)
A
- Est in 1998 in the VCAT Act 1998 (Vic)
- Receives > 85000 claims a yr
- Made up of VCAT pres (SC judge), vice-pres (CC judges), deputy pres, senior + ordinary members
13
Q
VCAT (purpose 1)
A
Low cost
- Around $70 standard fee (Jul 1 23)
- Tiers = corporate, standard, health care card holders aims to make corps pay more and card holders receive free/nominal fees
- No hearing fees for claims <$100k or rental disp res in a day, others may incur fees
- Many lists = no pre-trial proc
- 80% self rep
14
Q
VCAT (purposes 2,3,4)
A
- Accessible (locations across Vic, phone hearings, online appls, less formal procs)
- Efficient (constantly aims to reduce wait times, more eff due to lack of pre-trial procs)
- Independent (members are indep and act as unbiased adjudicators)
15
Q
VCAT (jurisdiction)
A
- Gets power to hear disp thru statutes (such as ###)
- Exclusive jur. over residential tenancies, human rights and planning/enviro disp
- Cannot hear neighbor/employ disp, disp involving state/fed law or where parties live in sep Aus states
16
Q
VCAT (DRMs used - mediation)
A
- Deed/TOS often drawn up
- No need for hearing if settled here
- Fast track med/hrg if about G&S, in Civ Claims List and < $10k, usually conducted on same day
17
Q
VCAT (DRMs used - comp conf)
A
- Confidential/concil meetings where parties discuss ways to resolve in presence of VCAT memb
- Member explores likely outcome of hrg, but will not hear case or tell member presiding what happened in conf
18
Q
VCAT (orders that can be made in a hrg)
A
- Party pay money
- Party do something (repairs, vacate)
- Party refrain (demolition)
- Declare debt is/is not owing
- Review, vary or cancel contract
- Dismiss where applicant is unsuccessful in establishing claim
19
Q
VCAT (DRMs used - final hrg)
A
- If matter not settled, listed for hrg before VCAT memb which is as informal and non-technical as possible
- Parties pres case, give ev, prov docs and exam wits
- Memb makes binding decision on parties
20
Q
VCAT (appeals)
A
- Only on q of law (not properly interp)
- Leave req to appeal
- Heard in TD, COA if trib presided over by Pres/vice-pres
21
Q
VCAT (appropriateness)
A
- Within jurisdiction (no class ac/neighbor disp)
- If negotiation/med possible
- Nature of fees/are fees payable
- More avs of appeal desired
- Take VCAT seriously
- Formality preferred
- Size/cplx
- Court preferred due to precedent
- Non-trivial
22
Q
VCAT (strengths)
A
- Low appl/hrg fees, less expensive pre-trial procs, self-rep
- Speedy (avg from appl to res in busiest list = Res Tenancies is 2-3 wks)
- Informal
- Flexible for self-rep to understand
- Can develop expertise in lists
- Final hrg decision is binding
23
Q
VCAT (weaknesses)
A
- Fees for some hrgs (large fees 4 major Planning/Enviro List cases)
- Delays (COVID, permits delayed + mental/financial effects)
- Too informal (not right way for truth)
- No precedent
- Only appeal on point of law
- VCAT orders must be enf thru courts, taking longer
24
Q
Courts (def and desc)
A
Courts are bodies empowered to make binding resolutions of disputes by applying existing laws
25
Courts (appropriateness)
- Jurisdiction (cannot hear retail ten, res ten, domestic building, planning disputes)
- Other or better DRMs avail
26
Courts (considerations and better alternatives)
- Med or negotiation possible
- Costs of court (legal rep + fees)
- Time
- Publicity
- Prepared to risk 3rd party binding dec
- Formalities
- Size/cplx
- Class action?
27
Courts (strengths)
- Pre-trial procs can res out of court or at least narrow issues in disp
- Proc fairness thru processes (disc)
- Processes allow interaction between court/parties
- Binding enforceable dec
28
Courts (weaknesses)
- Delays (disc and verdict take forever)
- Costs restrict access
- Cplx procs w/o lawyer to help
- Stressful formalities
- No compromise or win-win, decides only liability if any and damages
29
Costs (in general regarding POJs)
While some parts of CJS aim to reduce costs, many pay high $ to have disp resolved, reducing access to a fair trial
30
Costs (legal costs)
- Theoretically, all have right to rep but not all can afford, impacts on fairness of outcome and access to CJS
- Leads to many self-rep
- CAV free+no rep, big disp in SC costs a lot
- Court fees/disbursements/adv costs orders
31
Costs (measures to address)
- ADRMs to resolve earlier
- VCAT/CAV (low cost, no court needed)
- Case mng (limit disc, med req)
- Pro bono assistance (Victorian Bar)
32
Costs (how measures help)
- Less $ for pre-trial procs and trial procs
- Saving for court/trib time + resources
33
Time (in general regarding POJs)
Disp res can be lengthy depending on body/size/cplx, affects the fairness of outcome for 1/both parties
34
Time (factors that impact)
- Backlogs (dep on court or VCAT list)
- Pre-trial procs (disc can take months, case mgmt can reduce this)
- Ev gathering/prep (parties getting case ready)
35
Time (delay conseq)
- No claim pursued because of time it will take
- Stress, wasted time, inconvenience
- More costs, settling for less or even withdrawing
36
Time (backlog facts - VCAT)
- 21-22 annual report says backlog one of biggest challenges (specifically Res Ten List)
- Past hearing times from appl date were 2-4 weeks, during this FY was 22 weeks
37
Time (measures to address)
- Case mgmt (med, limit scope of disc, no pleadings req, restrict final hrg and wit exam times, no of wit)
- VCAT est dedicated prog for delays (CC hears cplx building disp in Building and Property List, backlog recovery prog for Res Ten List)
- Disputes dealt w/ "on the papers" (thru docs only, no hrg)
- Online methods (hrgs, meds, also increases access)
38
Remedy (def)
A remedy is the way a court or tribunal recognises a plaintiff's right, remedy sought often noted in statmt of claim
39
Damages (def)
An amount of money awarded by the courts to compensate pltf for loss or injury suffered as a result of def's actions
40
General damages (desc)
- A type of compensatory damages
- To comp for losses not easily q'ble, calc by court based on ev
41
Special/specific damages (desc)
- A type of compensatory damages
- To comp for losses that are q'ble, such as past/future medical expenses, loss of wages/profits/assets, property dmg
42
Compensatory damages (def)
Most common, aim to restore the party whose rights were infringed as far as possible to the position they were in before the infringement occurred (can depend on quantifiability of losses)
