The Victorian Civil Justice System

Question 1

Outline the key responsibilities of the judge in a civil trail.

Answer 1

To manage the trail. Ensuring the trail is conducted in accordance with set procedure through the power to give directions.
Decide on the admissibility of evidence. Decide what evidence can be presented by the plaintiff and the defendant in the trail.
Attend to the jury if present. Summing up the case and giving directions or addressing the jury when required.
Determine liability and remedy. When a jury is not present, the judge must decide if the plaintiff has established their claim and if so what remedy will be awarded.
To be impartial in listening to the evidence and making decisions.

Question 2

Outline the key responsibilities of the jury in a civil trail.

Answer 2

To be objective. Being unbiased and open minded when deciding the case.
To listen and review the evidence presented. So that they may make the most informed decision.
To decide liability and damages. The jury must decide if the plaintiff has proven their claim beyond the standard of proof and if so what damages will be paid (not in defamation cases).

Question 3

Outline the responsibilities of the parties in a civil trail.

Answer 3

To comply with directions given by the judge.
To present evidence to the judge or jury if present.
To comply with with overarching obligations. Including using reasonable methods to resolve the dispute out of court, disclosing critical documents at the earliest time, etc.

Question 4

Outline the responsibilities of legal practitoners in a civil trail.

Answer 4

Make opening and closing addresses.
To be prepared, to present the case to the best of their ability, utilising evidence and cross examination of witnesses.
To comply with overarching obligations. Working to resolve the dispute rather then battling with opposition.

Question 5

Define the burden and standard of proof in a civil case.

Answer 5

The burden of proof lies with the party brining the action (plaintiff) to provide evidence to substantiate their claims. The standard of proof is the threshold of evidence required to prove the plaintiffs claim. In civil law this is based on the balance of probabilities.

Question 6

Outline the judicial powers of case management.

Answer 6

To order parties to mediation. Can command the parties to mediation at any time of the proceeding, can command they use a court officer as mediator or arrange it privately. Aims to provide a prompt and economical resolution.
The power to give directions. A direct is and instruction given by the judge to one or both parties to perform an action or specifies how the proceedings will be conducted. Uses directions to minimise delay and prompt resolution.

Question 7

Define mediation.

Answer 7

A cooperative method of dispute resolution in which the parties voluntarily come before a mediator, who facilitates discussion about resolving the dispute. All conclusions reached here are voluntary, unless entered into terms of settlement.

Question 8

Define conciliation.

Answer 8

A cooperative method of dispute resolution in which the parties come before a conciliator, who can make suggestions to the parties as to how to resolve the dispute. All decisions made are voluntary unless entered into terms of settlement.

Question 9

Define arbitration.

Answer 9

When both voluntarily parties come before an independent arbitrator, who listens to both sides of the dispute and then awards one party an arbitral award to resolve the dispute. All decisions made by the arbitrator are binding and enforceable by the courts if broken.

Question 10

How is mediation used by courts, CAV and VCAT?

Answer 10

Courts can order a dispute to mediation at any time before a hearing or trail. This can be privately or by court officer.
VCAT uses mediation as primary dispute resolution method. If the dispute is under $3000 it can be determined in short mediation and hearing (SMAH).
CAV can order mediation under specific statutes.

Question 11

How is conciliation used by courts, CAV and VCAT?

Answer 11

Courts can order it at any time prior to hearing or trail. This can be done privately or by court officer. Widely used in family court.
VCAT can issue compulsory conferences (compulsory conciliation).
CAV uses conciliation as its primary dispute resolution method.

Question 12

Define short mediation and hearing.

Answer 12

VCAT conducts mediation, and if unsuccessful, has a same day final hearing to resolve the dispute through a binding ruling.

Question 13

Outline three factors that increase and decrease the appropriateness of mediation and conciliation as a method of dispute resolution.

Answer 13

Increases: Less formal then courts, so less intimidating for parties.
Usually cheaper then court.
Private and confidential.
Decreases: Decisions are not enforceable unless entered into terms of settlement.
One party may refuse to attend.
One party may have an imbalance of power in the negotiations.

Question 14

Outline three strengths and weaknesses of arbitration.

Answer 14

Strengths: Decisions are binding and enforceable.
Private and confidential.
Usually less costly and quicker then court.
(Arbitrator usually an expert in the subject area)
Weakness: Parties have no control over the outcome.
Both parties must agree to attend.
Limited ability to appeal decisions made compared to
courts.

Question 15

Outline and define the different types of damages.

Answer 15

Compensatory. Those which compensate the plaintiff for their loss.
Specific. A type of compensatory damages that encompasses precise monetary amounts.
General. A type of compensatory damages that encompasses how the loss has affected the way you live, this is estimated by the courts.
Exemplary damages. Those which punish the defendants for extreme infringements of rights.
Nominal damages. Those that uphold the plaintiffs rights without awarding a substantial sum.
Contemptuous damages. Those which acknowledge the plaintiff has legal but not moral right to damages.

Question 16

What is the purpose of remedies?

Answer 16

To restore the plaintiff to their position before the wrong occurred to the highest possible extent.

Question 17

Explain injunctions.

Answer 17

Another form of a remedy, with the purpose of rectifying a situation caused by the person in the wrong.
These can be mandatory (forcing someone to do x), restrictive (forcing someone to do not do x), interlocutory (temporary, for urgent matters), or final (forever).

Question 18

Outline the purposes of sanctions.

Answer 18

Deterrence. Both specific (that offender) and general (the community).
Denunciation. Show the courts disapproval of the behaviour.
Rehabilitation. To address the factors that caused the offender to commit the offence.
Punishment. To punish the wrong doer for the wrong they have committed.
Protection. To protect the community from further offences.

Question 19

Outline three factors that influence the appropriateness of CAV in resolving disputes.

Answer 19

If the dispute is within CAV’s jurisdiction. CAV hears disputes between consumers and suppliers, tenants and landlords, disputes in relation to owners corporations, etc.
If the dispute is likely to settle. If the parties are unlikely to settle through a method like conciliation.
If their are better alternatives to CAV, such as the courts or VCAT that are more suited to resolving the dispute through jurisdiction or methods.

Question 20

Outline factors that influence the appropriateness of VCAT in resolving disputes.

Answer 20

If the dispute is within VCAT’s jurisdiction. VCAT hears disputes relating to the purchase of goods or services, disputes between tenants and landlords, discrimination, sexual harassment, etc.
If their are better alternatives to VCAT, such as the courts or CAV that are more suited to resolving the dispute through jurisdiction or methods.

Question 21

Outline three pretrial procedures and their purposes.

Answer 21

Pleadings. In which the statement of claim (plaintiffs claim against defendant) and statement of defence (defendants defence against claim) are submitted. The purpose of this is to allow each party procedural fairness, allowing them both knowledge of the fundamental principles of the others case.
Discovery of documents. All parties disclose all relevant documents to the case to all other parties. The purpose of this is reduce any surprises at trail and allow each party to determine the strength of the others case.
Exchange of evidence. The parties exchange the evidence they will present at trail. Can be witness statements, lay evidence (non witness testimony), expert witness. etc. The purpose of this is to let each party determine the strength of the others case, and give each ample time to rebut expert evidence.

Question 22

Outline factors to consider when initiating a civil claim.

Answer 22

Cost. If the amount sought is worth the cost of resolving the dispute in court, and it this can be financed.
Negotiation options. If the dispute be resolved in more appropriate methods then the courts.
Scope of liability Who is a party to the case and what liability do they have to the loss?
Enforcement issues. Is the defendant able to compensate the plaintiff and is this compensation worth it?

Question 23

Define the introduction of a three tier system in the supreme court as a recent civil reform.

Answer 23

Introduction of three tier fee system in Supreme Court.
In September of 2018 Supreme court introduced a new fee structure of three levels: standard (Individuals and entities with annual turnover less then $200 000), corporate (Anyone that doesn’t fit into the other two categories) and concession (For individuals with a commonwealth healthcare card).
Increases access and equality with lower costs.
Decreases access because still expensive.
Decrease equality because of the barriers for entry.

Question 24

Define the increased use of technology in the courts and VCAT as a recent civil reform.

Answer 24

In 2019 VCAT allowed for individuals to lodge applications online, tribunals use dispute resolution online (SMS, videoconferencing, etc) for minor disputes, Courts can use technology in discovery process to make it more cost effective.
Increases fairness because its quicker and more efficient.
Decreases fairness because its vulnerable to misuse. Decreases access because the ongoing maintenance requires higher costs.

Question 25

Define increased legal aid funding for civil cases as a recommended civil reform.

Answer 25

Commonwealth and state governments should increase legal aid funding so that legal aid institutions like VLA can provide more free or low cost representation to disadvantaged groups.
Increases access by allowing more people to have representation.
Increases fairness because representation allows for a fair hearing because it allows the parties to consider all options.
Is unlikely to win support from voters.

Question 26

Define the increased use of ADRs as a recommended reform to the civil justice system.

Answer 26

ADRs including mediation, conciliation, arbitration, allowing for disputes to be resolved outside of courts., Such as an online dispute resolution platform by VCAT.
This lessens costs and delays then traditional mediation.
However ADR’s are not applicable to all types of disputes.