SAC 2 Flashcards
Purpose of civil disputes
protect the rights of individuals and award a remedy when a defendant has been found liable.
Parties in cicivl cases
- Plaintiff: the party who commences civil action. The plaintiff is also known as the aggrieved party or an individual who has had their rights infringed
- Defendant: the party who is alleged to have infringed the rights or caused the wrong doing
Suing /litigating
a party who has a valid claim can bring civil action against the defendant known as suing or litigating
Remedy
an order imposed by the court in a civil dispute to restore the plaintiff to their original position
Liable
the defendant is responsible for causing the infringement as a result of their acts or omissions
Vicarious liability
the legal responsibility of a third party for the wrongful acts of another
Burden of proof
onus that one party has for proving the facts of the case - in civil cases the burden rests with the plaintiff; with the exception for when the defendant has a counterclaim or a particular defence e.g. contributory negligence
Standard of proof in civil cases
refers to the strength of evidence or the level of proof that must be met in court to prove the case. In a civil matter, this standard is on the balance of probabilities
Representative Proceedings:
A legal proceeding in which a group of people who have a claim based on similar or related facts bring that claim to court in the name of one person (lead plaintiff), also called a class action or group proceeding.
requirements for a representative proceeding
- Seven or more people have claims against the same person
- Those claims relate to the same, or similar circumstances and,
- The same legal issues need to be decided
benefits of a representative proceeding
- Group members can share the cost of litigation
- More efficient way for courts to deal with a number of claims – saves courts time and cost
- People can pursue civil action in a manner that they may not have been able to afford under other circumstances
- In some cases, a litigation funder (3rd party) agrees to fund the class action on behalf of the group in return for a percentage of any damages awarded
Factors to consider when initiating a claim:
1. Negotiation options
an informal discussion between two or more parties in dispute, aiming to come to an agreement about how to resolve the dispute. Involves the parties interacting with each other directly; legal representation may present but not necessary; a mediator can be used (facilitated negotiation)
This may not be appropriate when:
- When both or one party is not interested in negotiating
- Previous attempts to negotiate have been made
- One party is harmed or threatened the other party or inflicted violence
- There is urgency to have the matter resolved in court
- There is significant power imbalance between parties
Factors to consider when initiating a claim
2. Costs:
the plaintiff should weigh up the costs of initiating a claim will outweigh the compensation received. Costs can stem from
- Fees for legal rep:
Costs of engaging a solicitor + barrister
Increased cost due to complexity of case, which court will hear the case, length of legal proceedings
Increased costs due to expertise and experience legal rep
- Disbursements (out of pocket fees):
Court fees for filing, trial fees, and jury costs ($500-$2000 per day)
Mediation fees ($500-$20000 per day)
Expert witness fees
- Adverse cost orders: cost arising after being unsuccessful with their claim- plaintiff will need to pay for their own legal costs + may be ordered to pay for some of defendants cost
- Availability of legal aid: VLA largely used for criminal matters; has strict means test (can help less than 8% of parties)
Factors to consider when initiating a claim:
3. Limitation of actions:
the restriction on bringing a civil claim after the allowed time. Plaintiffs have to bring their case to court within a time limit.
Under the Limitations of Actions Act 1958
Reasons:
- The defendant does not face an action after a significant amount of time
- The evidence is not lost
- Disputes can be resolved as quickly as possible to promote social cohesion
Expiry of limitation period= plaintiff can still bring their claim, however, they will be barred from obtaining a remedy if the defendant raises limitations of actions as a defence. In some situations, the limitation can be extended.
E.g. defamation = 1 year
Tort law = 3 years
Factors to consider when initiating a claim:
4. Scope of liability:
Before initiating a civil claim, the plaintiff should consider who are the possible defendants and to what extent they may be liable.
Depending on the mature of the claim other bodies may be held liable including employers through vicarious liability; an insurer (liable to pay damages).
Extent of liability: this is also a factor to consider as the defendant may argue that if they are found liable, they are only liable for a part or portion of plaintiff’s loss/damage by claiming contributory negligence
Factors to consider when initiating a claim:
5. Enforcement issues:
whether the remedy will be enforced. This can relate to:
If the defendant is able to pay? If so, will the defendant pay?
Consumer Affairs Victoria (CAV):
what?
A government funded complaints body that acts as a regulator for consumer affairs. It has been established by parliament to resolve formal complaints made by an individual about the conduct of another party.
CAV is a statutory body and can only assist in the settlement of disputes that are within its jurisdiction e.g. between purchasers and supplies/ tenants and landlords
Consumer Affairs Victoria (CAV):
What do they do?
- Advises and educated consumers, tenants and landlords of their rights, responsibilities and changes to legislation
- Conciliates disputes between consumers + traders, landlords + tenants
- Enforces + ensure compliance with consumer laws
- Registers and licenses businesses + occupations
- Reviews and advises the government on consumer legislation and industry code
How can CAV resolve disputes?
- The main method used by CAV to resolved disputes is conciliation which involves: Two parties meeting with a neutral 3rd party (conciliator) who acts impartially, who can suggest outcomes but cannot make decisions on the party’s behalf.
- The decision reached is not legally binding (can the enforced by court) unless a deed of settlement / term of settlement is signed which therefore may make it enforceable through court is one party does not follow through
Benefits of CAV
Conciliation within CAV = free
Conciliation = informal = decreased anxiety
Fairness- both sides have opportunity to present their case infront of impartial party
CAV assesses disputes individually = less waste of time
CAV aims to settle disputes in timely manner
Conciliator is experienced + offer advice = faster resolution
weaknesses of CAV
Limited jurisdiction (mainly to consumer + landlord disputes)
No power to compel parties to undergo conciliation
No power to enforce decisions reached unless binding agreement
Not all cases accepted due to prioritisation of certain cases
Informal nature + lack of binding decision = parties may not tack matter seriously
Not appropriate for large and complex disagreements
Victorian Civil and Administrative Tribunal (VCAT):
A tribunal that was established in order to resolve civil disputes in a limited area of law. The process is less formal than courts + intended to be a more efficient way of resolving disputes.
jurisdiction of VCAT
Jurisdiction: Outlined within the Victorian Civil and Administrative Tribunal Act 1988 (Vic)
- Administrative
- Civil
- Human rights
- Residential tenancies
Purposes of VCAT
To provide individuals with a low-cost, accessible, efficient and independent avenue to resolve their disputes.
- Low cost: filing a claim = $62.70; rare for pre-trial procedures; legal representation not mandatory
- Accessibility: various locations; telephone and video conferences can be used
- Efficient: no lengthy court procedures; 2 weeks for residential claims/ 10weeks for civil claims lists; once matter reaches VCAT = often resolved in 1 day
- Independent: members are independent and unbiased adjudicators; supported by court services Victoria; president = supreme court judge, vice-president= country court judge – legal expertise in the tribunal
how do VCAT resolve disputes?
- Mediation- facilitated by independent mediator; decision not legally binding but term of settlement can be signed
- Compulsory conferences- confidential meetings; uses a conciliation process where members can suggest ways to resolve disputes
- Final hearings- if not settled in mediation or compulsory conferences = listed for final hearing before VCAT member; legally binding decision; parties have opportunity to present case + give evidence + ask questions to witnesses
How are VCAT decisions enforced
after a hearing the types of orders that VCAT can apply are:
- Orders requiring party to pay money
- Orders requiring a party to perform work/ carry out repairs/ vacate premises
- Orders requiring parties to not do something
- Declare that debt is not owing
- Cancel contract
- Dismiss claim
appeals in VCAT
can only made based on question of law (point of law)
- Leave is needed to appeal a VCAT decision
- If matters presided by member – Supreme Court (trial division)
- If matter presided by president / vice president – to Supreme Court (court of appeal)
BENEFITS OF VACT
Cheaper than courts Timely resolution Informal = decreased anxiety Flexibility – unrepresented parties Stream-lined process Decision from final hearing= legally binding
WEAKNESSES OF VACT
Use of legal rep increased = cost
Can’t hear large/ complex matters e.g. representative proceedings
Limited right to appeal (only on point of law)
Too informal= uncomfortable or ill-equipped
Not part of court hierarchy= not bound by precedent
Pre-trial procedures:
Mandatory processes and procedures that must be undertaken before the dispute is ready for trial
There are 3 types of pre-trial procedures set out in the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and the County Court Civil Procedure Rules 2008 (Vic)
-pleadings
-discovery of documents
-exchange of evidence
PLEADINGS -> what
Pleadings= a series that are filed and exchanged between the parties to a court proceeding. They set out and clarify the claims and defences of the parties and help define the issues that are in dispute. Pleadings consists of 3 main documents:
- A writ
- A statement of claim
- A defence
PLEADINGS -> purposes
- Identify the main claims + defences of the case = fairness by ensuring the other side knows what the claims or defence is about
- Compel each party to state the material facts = avoids taking opponent by surprise
- Provide a court with a written record of the case
- Set a scope of limits of the dispute
- Promote an out of court settlement
DISCOVERY OF DOCUMENTS -> what
A pre-trial procedure stage that enables parties to get copies of documents that are relevant to the issue in dispute. It is a list of documents relevant to the claims and defences, each party is entitled to inspect those documents. E.g. copy of contract in breach of contract case/ a copy of medical records if plaintiff claims to have suffered physical injuries.
DISCOVERY OF DOCUMENTS -> purposes
- Parties disclose all relevant documents to the other side = fairness
- Reduce element of surprise = avoid ‘trial by ambush’
- Allow party to determine strength of oppositions case and know their likelihood of success
- Ensure parties and courts have all relevant materials
- Assist in reaching out-of-court settlement
EXCHANGE OF EVIDENCE -> what
To prove their case, the plaintiff and defendant will need to rely on evidence if discovery is not enough to determine what happened. There are two types:
- Lay evidence: this occurs when ordinary people provide evidence. This could occur by a person providing witness outline (brief description of topics that could come up at trial) or filing a witness statement (more detailed- written evidence of what would be stated verbally at trial)
- Expert evidence: this occurs when experts are called upon to give an opinion about the issue in the case. The individual is being called upon for their expertise/knowledge in the matter (they are called upon for their opinion and cannot argue the case for the party)
EXCHANGE OF EVIDENCE -> purposes
- Reduce the element of surprise and avoid ‘trial by ambush’
- Allow each party to determine strength of other sides case and determine their likelihood of success
- Provide parties opportunity to rebut the other sides expert evidence by their own expert
- Allow defendant to understand the amount of damages that the plaintiff is seeking – could lead to out-of-court settlement.
Civil court jurisdiction: Supreme Court (Court of Appeal)
Original jurisdiction-
No original jurisdiction
Appellate jurisdiction-
-With leave, on a question of law, a question of fact or an amount of damages from C/C or S/C
-on a question of law from VCAT when decision made by president or vice-president
Civil court jurisdiction: Supreme Court (Trial Division)
Original jurisdiction-
Unlimited in all civil claims (often more complex e.g. representative proceedings)
Appellate jurisdiction-
On question of law from M/C and from VCAT
Civil court jurisdiction:
County Court
Original jurisdiction-
Unlimited in all civil claims
Appellate jurisdiction-
No appeals – unless given power unless a specific act of parliament
Civil court jurisdiction:
Magistrates Court
Original jurisdiction-
Claims up to $100000
Appellate jurisdiction-
No appellate jurisdiction
reasons for the civil court hierarchy
- Administrative convenience- ensures that the courts resources and time is not wasted thereby promotes efficiency and just resolution of disputes. Allows for less serious and less complex cases to be heard in lower courts, whilst more complex cases can be heard in higher courts. Therefore resources of higher courts are not waster in dealing with minor disputes.
- Appeals- a party who is dissatisfied with a decision can have the matter reviewed in a high court by a judge with more seniority
Grounds for appeal include- point of law; question of fact; the remedy awarded
Key Personnel in the Civil Court Room:
JUDGE
They must act as an impartial and independent umpire.
- Managing the trial- through case management powers and providing directions to parties
- Decide on admissibility of evidence
- Attend to the jury
- Determine liability + remedy
- Make decisions on costs
Key Personnel in the Civil Court Room:
JURY
Only 2-5% have a jury (consists of 6 members)
Decide which facts it believes to be true and apply laws explained by judge
- Be objective
- Listen + remember evidence
- Understand directions + summing up
- Decide on liability + damages
Key Personnel in the Civil Court Room:
PARTIES
Each party has complete control (party control)
- Meeting burden of proof
- Make opening + closing statements
- Present case to judge / jury
- Comply with overarching obligations (Civil Procedure Act 2010 Vic) e.g. act honestly; cooperate; minimise delay
Key Personnel in the Civil Court Room:
LEGAL PRACTITIONERS
Prepare and conduct a case
- Make opening and closing statements
- Present case to judge and jury
- Comply with overarching obligations
Judicial powers of case management
- what?
- types?
judicial (judges) powers to manage a case. This refers to the ability of judges to provide parties in a case with direction and recommendations regarding how to proceed with their case. This outlined within:
- The Magistrates’ Court General Civil Procedure Rules 2010 (Vic)
- The County Court Civil Procedure Rules
- The Supreme Court (General Civil Procedure) Rules
- The Civil Procedure Act 2010 (Vic)
The overarching purpose of the Civil Procedure Act is to facilitates the just, efficient, timely and cost-effective resolution of real issues in dispute
there are two types:
-the power to order mediation
-the power to give directiona
case management powers:
1. The power to order mediation
a judge/magistrate has the power to make an order referring a civil proceeding, or a part of a civil proceeding, to mediation.
At any stage of a proceeding in the Supreme Court, the judge can order that the proceeding be referred to mediation, and parties can attend more than one mediation
The purpose of this is to promote an efficient and cost effective resolution of dispute
case management powers
2. The power to give directions-
A court may give any direction or make any order it considers appropriate at any stages of the proceeding allowing the judge to actively manage civil proceedings
Direction= an instruction given by a court to one or more parties which impose an obligation on a party to do something within a certain time or specifies how a proceeding is to be conducted. Judges maintain control of proceedings by giving directions along the way so delays can be minimised and parties know what procedures they need to follow.
Pre-trial directions- directions hearing e.g. conduct of proceedings; timelines for any steps to be taken; participating in alternative methods of dispute resolution; expert evidence; allowance for a party to amend a pleading etc.
Directions during trial- e.g. the order of evidence; limiting the time taken by a trial; limiting cross-examination of witnesses; limiting the number of witnesses; limiting the length of submissions; which party should bear court costs etc.
Dispute Resolution methods:
1. Courts
This is the traditional method of dispute resolution. Each court has specific jurisdiction ( the legal authority to adjudicate a matter) – refer to SAC 2A notes
Factors to consider when using courts:
- Are there other ways to resolve disputes (complains bodies/ADR)
- The costs associated with taking a matter to court
- The risks associated with having with having a 3rd party decide the outcome
- Whether they have access to + can afford legal representation
- The strict formalities of the courtroom + evidence and rocedure involved
- The size and complexity of the case = lengthy time and delays may occur
Dispute Resolution methods:
2. Mediation
a cooperative method of resolving disputes that is widely used by courts, tribunals and other dispute resolution bodies.
This involves both parties agreeing to cooperate and sitting down to discuss the dispute; an impartial 3rd party (mediator) present to facilitate discussion; both parties should receive the opportunity to present their side; both parties should come together to develop options to reach a mutually agreed outcome.
How it is used:
Courts – all courts can refer civil disputes to mediation
VCAT- often refers a claim to mediation before a final hearing
CAV- can use but tend to use conciliation
Private use- parties can attempt any time before or after a clam is initiated
Dispute Resolution methods:
conciliation
a cooperative method of dispute resolution that is used widely by courts, tribunals and other dispute resolution bodies that involved the conciliator having a more active role.
This involves both parties agreeing to cooperate and sitting down to discuss the dispute; an impartial 3rd party (conciliator) present to facilitate/ direct discussion; the parties should receive the opportunity to present their case; the parties should come together to reach a mutual outcome; if parties cannot reach outcome, the conciliator will suggest possible solutions.
How it is used:
County and Supreme Court- don’t generally use (prefer mediation) however can order any civil proceeding to conciliation (under the Civil Procedure Act)
VCAT- can order parties to attend compulsory conferences which is conducted using a conciliation process
CAV- preferred and primary method of dispute resolution
Individuals- can attempt conciliation at any time
Dispute Resolution methods:
4. Arbitration
a method of resolving disputes that involves an independent arbitrator who will listen to both sides and make a decision that is binding on the parties
It involves two parties meeting in front of the arbitrator; the arbitrator allows both sides to present their case; arbitrator makes a binding decision known as an arbitration award.
When is it used?-
Courts- all courts can refer parties o arbitration prior to hearing as long as they agree; with the exception of MC claims under $10000 where the parties do not have to consent
VCAT- hearings are not arbitrations however if appropriate can use
CAV- not used
Private use- can arrange and gain support to do so
when is mediation and conciliation appropriate?
Parties want to maintain ongoing relationship e.g. neighbours
Parties are willing to cooperate
When liability has already been established – only issue is remedy
When patties want privacy and confidentiality
Where the parties expect significant legal costs
when is mediation and conciliation innappropriate?
Dispute involves overwhelming emotions which might interfere with negotiation process
When there is a history of broken promises
When there is s history of violence and threatening behaviour
Where parties are unwilling to cooperate
Power imbalance
Disputes where matter is urgent (injunction)
strengths of mediation and conciliation
Less formal- safe and supportive environment
May be more individualised – needs addressed
Saves time and money
Private and confidential
weaknesses of mediation and conciliation
Decision may not be enforceable (unless deed of settlement signed
One party may compromise too much- one party may be manipulative or stronger
Decision doesn’t form precedent
Matter might not resolved- go to court anyway so waste of time
when is arbitration appropriate?
MC claims under $10000
When both parties agree
Parties want binding decision
Disputes want evidence to be presented
when is arbitration innappropriate
Where parties do not consent
Disputes where parties want greater control
Disputes where parties want their day in court- open and transparent
Where parties want formal rules of evidence and procedure
strengths of arbitration
Decision is binding- enforceable
Private and confidential
Parties can control process- how evidence is presented
Can be a more timely resolution – flexible
Arbitrator has expertise
weaknesses of arbitration
Can be formal – stress, time, costs
Parties have no control over outcome
Limited right to appeal
what is the purpose of remedies?
to compensate the plaintiff for the losses suffered so as to return them to the position they were in before the defendant caused the harm
what are damages?
purpose of damages?
types of damages?
An amount of money awarded to the plaintiff to be paid by the defendant in attempt to mitigate their loss.
Purpose- to compensate the plaintiff for the losses suffered so as to return them to the position they were in before the defendant caused the harm
1. compensatory damages (specific/ general/ aggravated)
2. nominal damages
3. contemptuous damages
4. exemplary damages
compensatory damages
the most common form of damages sought and they aim to restore the party whose rights have been infringed, as far as possible, to the position they were in before the infringement by compensation them for losses suffered.
Specific- damages that can be easily and accurately calculated to reach a monetary value e.g. medical bills/ loss of wages
General- will be assessed by the courts based upon the magnitude of the wrong done and the long-term consequences e.g. future loss of wages, pain and suffering – not readily quantifiable but rather a general estimate
Aggravated- awarded to compensate the plaintiff further if the courts believe that the defendants conduct injured the plaintiff feelings by causing humiliation
nominal damages
these are small amounts of money awarded to the plaintiff by the courts when the courts recognise the plaintiff has a legal right to sue for damages but has suffered no/minimal loss. The purpose of these is to uphold the plaintiff’s rights without awarding any substantial amount of damages.
contemptuous damages
small amounts of money awarded to the plaintiff by the court by the courts when they believe that the plaintiff has legal right to bring the matter o court, but does not have a moral one. Their purpose is to recognise the legal right of the plaintiff but also express disapproval of the court by only awarding small amounts of money
exemplary damages
amounts awarded to the plaintiff that may equate to more than their quantifiable losses. The purpose is to punish the defendant for an extreme infringement of rights and deter others from undertaking the same types of actions.
injunctions
A court order directing someone to stop doing a certain act, or compelling someone to do a certain act.
Purpose- to rectify a situation caused by a person who was found to be in the wrong.
1. Restrictive/prohibitive: ordering a person to refrain from undertaking an action
2. Mandatory: ordering a person to do a particular act
An injunction can either by interlocutory (temporary) or final.
Factors to consider in the civil justice system:
COSTS
- Legal representation fees (needed to file statement of claim, pre-trial procedures etc)
- Court/tribunal costs + disbursements ( M/C vary from $151.67 to $2334.50; juries cost = $142.20 + $581.30 subsequent to first day; avg for S/C = $60000)
- Other cost factors (may miss work; those unsuccessful may face adverse court fees)
Factors to consider in the civil justice system:
TIME
- Complexity of cases (avg time for finalised in S/C = 8.9 months)
- Court/tribunal backlog (waiting time for cases to be heard in court or tribunal depend on matter e.g. the residential tenancies list in VCAT = 2 weeks but civil claims list = 10 weeks)
- Pre-trial procedures (can be lengthy an complex- add time to case finalisation)
Factors to consider in the civil justice system:
ACCESSIBILITY
- Barriers to communication (can prevent a person from receiving and understanding information e.g. legal rights / methods and bodies used to resolve disputes/ processes)
- Residents in rural and remote area ( may find it more challenging to access legal and dispute resolution services – fewer people available to provide legal services/ may not be dispute resolution bodies e.g. courts in close proximity)
recent reforms to the civil justice system 1. group costs orders in class actions
addresses cost factors The Justice Miscellaneous Amendments Act 2019 (Vic) was passed which allows a court in a class action to make a group costs order where the plaintiffs solicitor to calculate their fees as a percentage of the damages awarded if the court is satisfied that it is appropriate or necessary to ensure that justice is done. This is more attractive to plaintiff lawyers as there is a higher profit potential so they are more likely to commence smaller class actions, it is also likely to increase access to the legal system by reducing financial risks toc clients. However, this may mean law firms are more selective and compromise lawyer’s ethical obligations.
recent reforms to the civil justice system
increased funding to VCAT
- $5milion dollars in funding to VCAT for it upgrades to expedite its progress in online dispute resolution- addresses time/delay and access
This funding meant that small-claim matters can be filed online and parties can also submit evidence via email/electronically – alleviates backlog caused by pandemic decreasing delays as well as increased access to those living remotely
recent reforms to the civil justice system
supporting disadvantaged
- $34.7 million dollars injected into legal system to support disadvantaged Victorians – addresses accessibility
In response to Access Justice Review, e.g. $7.23 million in legal aid grants to ensure better access to legal representation; $.83 towards legal help phone service (VLA); $1.27 towards increasing translating and interpreter services
recommended reforms to the civil justice sytsem
1. Improving access by overcoming language barriers
to address accessibility
- National Justice Interpreter Scheme: this would be fully funded and provide guidelines for courts and all areas where legal assistance is provided. These guidelines would set out when and how to engage an interpreter, and prescribe a set of standards for interpreters.
- General recommendations: govt, courts and VCAT should ensure adequate availability of interpreters; registrar staff and judicial officers to receive training on when to identify when interpreter needed; legal info be given in plain-English and other languages.
recommended reforms to the civil justice system
2. Increase use of alternative dispute resolution methods
address cost factors
Aims to reduce the amount of civil disputes that will need to proceed through litigation – especially VCAT expand its SMAH (short mediation and hearing) program to regional areas
recommended reforms to the civil justice sytsem
3. Making enforcement of VCAT orders easier
to address time factors
Victorian Access to Justice Review recommended that enforcement orders of VCAT be made easier. Currently in order to enforce a VCAT order, court certification is needed – suggested that in order to minimise delays, VCAT orders should be considered and order of an appropriate court and thus automatically enforced. This would reduce the time needed for parties to wait for courts to certify an order.
when will CAV take on cases
CAV will resolve a dispute if there is reasonable likelihood that the dispute will settle. They will take the following factors into consideration:
- No delay in the person coming to CAV
- Person complaining cant contribute to dispute by behaving inappropriately
- Dispute not overly subjective (based on personal views)
- Trader hasn’t made reasonable offer that has been rejected by consumer
CAV can also determine if there are better ways to resolve the dispute:
- Negotiation; through court (binding order); - if matter is too big/ complex for CAV / too urgent so better suited to court
