SAC 3 Flashcards
Civil Justice System
The civil justice system is a set of methods, processes and institutions used to resolve civil disputes.
Purposes:
- enables a person to enforce their legal rights and take action against legal wrongs.
- determines whether the defendant is liable to that person.
- award a remedy where the defendant has been found liable.
Burden of Proof
The responsibility of the party bringing the case to prove the claims made. In civil law this is in the Plaintiff.
Standard of Proof
The degree or level at which the party carrying the burden of proof must prove liability. In civil case it is on the balance of probabilities which means it must be proved that the defendant more probably than not infringed the defendants rights.
Fairness
- Fair process and a fair hearing/trial by an impartial 3rd party.
- Mediation and conciliation increase fairness and access.
- Availability and access to legal representation increases fairness.
- The timely resolution of a dispute increases fairness.
Equality
- Both parties should be treated impartially and held to the same standard.
- Disadvantage of particular groups in the justice systems hinders Equality, for example indigenous people or people with disabilities.
Access
- A range of institutions and methods are needed to settle disputes, for example CAV and VCAT.
- Interpreters
- Specialist courts
Representative Proceedings
A legal proceeding in which a group of people who have a claim based on similar or related facts bring forth legal action.
- at least 7 plaintiffs.
- only in supreme or federal courts.
- cannot settle out of court without the courts permission.
Strengths:
- increases access as individuals can come together financially to bring action.
- increases efficiency.
Weaknesses:
- Costs are significant, with the costs awarded through damages often going toward the legal fees prior to the group receiving any funds.
- individuals in the group may not be adequately compensated.
Negotiation
an informal discussion between two or more parties in dispute, aiming to come to an agreement on how to resolve the dispute.
- not compulsory.
- outside court environment.
- least formal of any dispute resolution.
- parties have total control.
Strengths:
- gives both parties an opportunity to avoid the legal system or other A.D.M’s altogether.
- parties have total control over the outcome.
Weaknesses:
- not legally binding.
- possible power imbalance
- not as thorough as a court hearing
Costs
Costs in the civil system include for legal representation, disbursements, adverse cost orders (if plaintiff loses they may be ordered to pay defendants legal fees), private mediation, expert witnesses and court fees.
Strengths:
- parties have some control over the costs they incur and are able to make choices on these, for example the extent of their legal rep and whether to request a jury.
- 3 tiered cost system ensures that poorer people don’t have to pay the same amount in civil fees in comparison to richer people and businesses.
Weaknesses:
- limitation of VLA in civil disputes with only 8% of cases VLA take are civil cases, making it difficult for individuals to navigate the high costs.
- numerous fees go towards legal advice, representation, court filing and hearing fees, limiting access
Limitations of Actions
Refers to the time period in which a civil action must commence.
- Defamation: 1 year
- Negligence: 3 years
- Torts: 6 Years
Strengths:
- timeframe ensures cases are brought to the courts based on recent evidence, making the hearing more reliable and fair.
- increases efficiency as cases must be Brought forward within a certain time limit.
Weaknesses:
- may prevent plaintiffs from pursuing their rights, denying them access.
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Scope of Liability
The extent to which the defendant is liable. The plaintiff must show that it is reasonable and appropriate in the circumstances to hold the defendant legally responsible for that harm and it most be in the ‘scope of liability’.
2 categories of defendants:
Direct Defendant:
100% liable, potentially no shared responsibility.
Indirect Defendant:
- Vicarious liability: employers may be responsible for the action of their employees, so, for example an employee mate sue another employee and their employer.
- insurers often have to make payment on behalf of their customers, making them defendants also. For example if the defendant loses, they may seek money from their insurance company.
Contributory Negligence:
When the defendant commits a civil wrong, but also the plaintiff does something negligent that places their harm outside the reasonable scope of the defendants liability.
Enforcement Issues
Also known as enforcement orders. Whether or not the result will be able to be enforced may influence a plaintiff’s decision to bring forward a civil claim. If the plaintiff does not get financially compensated, they may sue something else and widen the scope of liability.
The court will do everything in their power to ensure compensation is paid. This may include seizing property, attachment of earnings orders and an instalment order.
Strengths:
- increases access and fairness to the plaintiff as it ensures they are compensated.
- promotes fairness for the defendant also as it utilises a wide range of options for the defendant to compensate the plaintiff if they struggle to meet their obligations.
Weaknesses:
- may upset parties who expected their case to be concluded already, preventing access.
- the defendant still maybe unable to meet the demands, resulting in the plaintiff not receiving adequate compensation, limiting fairness.
- different parties will not be treated equally under this approach as some defendants get more special consideration.
CAV
A vic government body responsible for regulating Victorian consumer affairs. It advises the Vic government on consumer legislation, provides information and guidance to educate people on consumer laws, and enforces compliance with consumer laws.
Specialises in landlord/tenant disputes, consumer/business disputes.
Purpose/Role:
- provides consumers/tenants with an avenue to launch a complaint against traders/landlords
- provides information to the community and government re the sale of goods and services.
- review and advise the state government on consumer legislation and industry codes,.
Resolution methods used:
- Mainly conciliation.
involves the assistance of an independent third party who uses specialist knowledge to offer suggestions. The decision is binding if a terms of settlement is signed which reflect their agreement.
Appropriateness, Strengths and Weaknesses of CAV
Appropriateness: Is it within CAV's jurisdiction? - the supply of goods and services. - residential tenancies. - retirement villages. - owners corporations.
is the dispute likely to settle?
- no delay in person. complaining to CAV.
- no history that a party has refused to participate.
- the problem is about a business or landlord etc etc.
Strengths:
Legal representation is usually not a feature, reducing costs, increasing access and fairness.
Process is informal, removing many anxieties, increasing access.
Conciliation service is free, reducing costs.
Weaknesses:
CAV can be selective on what cases they take on, limiting access.
Role is limited to consumer and landlord disputes, meaning they have no power to assist anyone with other civil disputes.
VCAT
A tribunal created to provide a forum for the. resolution of relatively simple civil disputes, that I generally less expensive, less formal and quicker than the courts. They deal with spites involving the purchase and supply of goods (ie. Faulty goods), involving discrimination and sexual harassment and regarding rental agreements.
Has 4 Lists:
Administrative: Includes planning and environmental list.
Civil: includes domestic building and consumer matters
Human Rights: includes equal opportunity, racial discrimination.
Residential tenancies: includes issues with residential tenant and landlords.
Purpose:
provides victorians with low cost, accessible, efficient and independent dispute resolution.
Resolution Methods Used:
Mediation (around 70% of the time).
Other than mediation they use compulsory conferences, arbitration or a formal hearing.
Appropriateness, Strengths and Weaknesses of VCAT
the types of claims that can be heard by VCAT include claims about:
- purchases or sales of goods(unlike CAV, this includes claims made by sellers and businesses as well as purchasers).
- disputes between tenants and landlords relating to renting a house, unit or flat etc.
- owners corporations
- domestic building works
- lawyers, lawyers conduct and the provision of legal services.
- the flow of water between properties.
- retail tenancies.
- the use or development of land, including objections to permits.
Strengths:
- generally offers a speedy resolution of disputes.
- no need for legal representation, with it often being discouraged. increases fairness and equality as unrepresented parties aren’t disadvantaged.
- tends to be an informal process and can use telephone or video conferencing, increasing access.
Weaknesses: -Is limited in disputes they hear, only civil disputes and no criminal cases or class actions.
- VCAT can suffer long delays in lists, in particular the planning and environment list. which had a median wait time of 6 months.
- limited avenue of appeal, can only appeal on point of law from President or Vice President.
CAV vs VCAT
Similarities:
Both CAV and VCAT generally provide a cheaper, quicker, less formal, more specialised alternative to the courts.
- there is no need for legal rep.
- tends to be an informal process, with telephone and video conferencing available.
Differences:
- Jurisdiction
- Costs
Appropriateness of CAV vs VCAT:
Is it within their jurisdiction?
CAV - landlord/tenant or business/consumer disputes.
VCAT- 4 divisions and exclusive jurisdiction- retail tenancies and building disputes
Do the parties get along?
CAV - only use conciliation and often have no legal rep, therefore parties must be able to resolve the dispute themselves.
VCAT- uses mediation, compulsory case conference, final hearing.
therefore, if the parties don’t cooperate they can move to a hearing. However, most VCAT cases are solved though mediation with no legal rep.
Pre-Trial Procedures
Purposes:
- may lead to early resolution, movement to alternative dispute resolution or otherwise greater prepares the parties for trial.
Pleadings:
First stage:
Writ- plaintiff informs defendant that they are being sued.
Statement of claim- sets out what the plaintiff claims, what evidence they will be relying on and the remedy they are seeking.
Statement of Defence- defendants response to the statement claim, outlining what they admit and deny.
Pleadings ensure the parties know the claim/defence of the other, avoiding any confusion in court. Also, may promote the chances of an out of court settlement as parties can assess the strength of the others case.
Discovery:
Both parties engage in full and honest disclosure of all evident that have that support their claims ie. letters, contracts, emails etc.
This ensures both parties know the documents that will be used. Also, promotes fairness as parties have access to all relevant material, and may also promote an out of court settlement between the two.
Exchange of Evidence:
Lay Evidence:
Evidence given by ordinary people. Eg. I saw the plaintiff fall over.
Expert Evidence:
People with areas of expertise who provide opinions on the issues of the case. Expert witnesses are obliged to act independently.
This ensures parties can prepare for trial, they can assess the strength of the others case, gives the parties a chance to obtain experts who can rebut the opposing argument and may enhance the ability of the parties reaching an out of court settlement.
Reasons for Court Hierarchy
Same as Criminal Justice System.
- Appeals
- Administrative Convenience
- Specialisation:
MC up to $100,000
CC Unlimited civil jurisdiction, usually claims upward of $100,000
SCTD unlimited civil jurisdiction, but usually hears the most serious/complex matters.
Judge
What they do?
- apply rules of evidence and procedure.
- instruct the jury if there is one
- resolve points of law.
- decide remedy in cases where there is no jury.
What they don’t do?
- assist parties
- decide on questions of fact if there is a jury.
Summary:
Acts as an impartial umpire, ensuring a fair trial and parties are treated equally.Also has significant powers of case management to ensure the just, timely and cost effective resolution of issues in disputes.
Jury
What they do?
- decide on questions of fact.
- apply the facts as they see them, as instructed by the judge.
- deliver a verdict.
What they don’t do?
- resolve points of law.
- decide on a remedy in defamation cases.
Summary:
a randomly picked group of 6-8 members who have no connection with the parties. They only decide on facts that are put before them, they represent the views and values of society.
Parties
What they do?
Plaintiff: attempt to prove the liability of the defendant.
Defendant: attempt to discredit the plaintiff and provide evidence proving they weren’t liable for the civil wrong.
Summary:
Parties may choose whether to use mediation unless the judge orders it, how their case will be presented and which witness will be used, whether to settle before trial and whether to use a lawyer.
Legal Practitioners
What they do?
-Present their parties case in the best possible light.
comply with overarching obligations of the courts:
- act honestly
- only take steps to resolve or determine the dispute.
- cooperate.
- narrow issues in dispute.
- minimise delay.
Judicial Powers of Case Management
Each case must be assessed and conducted based on the needs and complexity of the case. Though allowing judges to actively manage the trial, judicial case management is effective as it allows for the identification of issues at the earliest stage of trial and allows for judges to responsibly control these issues.
Power to order mediation:
- The judge can order mediation at any time.
Power to give directions:
- determining the admissibility of evidence.
- the judge may limit the number of witnesses which allows the courts to minimise delays.
Strengths:
- assists in promoting out of court settlement.
- supports a timely resolution of disputes.
Weaknesses:
- increases the chance of bias being present.
- some directions may be unnecessary and simply time consuming
