The Victorian Civil Justice System SAC2B Flashcards

1
Q

What are judical case management powers

A

power/ abilities that judges have in order to manage a case within civil law to ensure that costs and delays are reduced

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

purposes of judical case managment powers

A
  • parties are req to consider ADR
  • resolution is in a more timely manner
    -resolution is cost effective
    -courts resources are prioritized for cases x resolved w/o lit
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

JUDICAL POWER
ordering that parties attend compulsory mediation

A

judge make an order referring a civil proceeding to attend mediation. most sup crt cases have attended mediation before trial
- promotes an efficent and cost eff dis res

  • judge can order matter referred to med
  • crt can order associate judge act as mediatior
    -more than one session may be ordered if prospects that further med may resolve the dispute
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

JUDICAL POWER
ordering parties attend a directions hearing

A

judges can give directions to parties that they believe is app in resolving the dispute
eg. filling doc by certain date, attend crt on certain date, limits on evidence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

what is a direction

A

instruction by crt that imposes obligation on party to do something within a certain time

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

examples of pre trial directions

A

timeline for parties for any steps eg on medical reports
participate in ADR
limit scope of evidence eg to part area or only prof testimony
allow amending pleading

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

examples of during trial directions

A

placing an order on evidence - who goes first in evid/ adress court
limit time taken by trial
limit exam of witn
limit number of witn
limit length of parites submissins
limit no of doc into evidence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

mediation

A

impartial third part helps parties to identify the issues in dispute and facilitates discussion of possible solutions but parties make final decision
used in SMAH of VCAT, Mag crt, CC and sup crt

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

mediation features

A

third party is indep and impartial that facilitates discussion b/w parties
confidential
voluntary
x lbd
outcome may x be reached
med X make suggestions re outcomes or decision
mediator ensures cooperative and civ approach but may or may x expertise in matter

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

mediation appropriate

A

-a party is limited by costs b/c med avoids trial costs
-mediation = faster/ quicker than trrial
-winwin solution as less adversarial and allows both parties to try and resolve dispute= contorl over outcome
-informal atmosphere= less stress
-ongoing relationship is req b/c less adv and inforaml

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

conciliation

A

impartial third part listens to both sides and suggests ways that can resolve
used in cav, vcat, mag crt, cc and sup crt

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

concilation features

A

third party listens to evid and arg
third party = concilator
conc = has legal expertise in area
conc= suggest solutions but cannot force part to reach agreement
x lbd
outcome may x be reached

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

conciliation appropriate

A

legal complexity blc conc has legla expertise
parties are willing and cooperative
desire low costs b/c x length proc = less costs
informal atmosphere = less confronting
maintian r/ship

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

conciliation inappropriate

A

power imbalance
parties want courts formality or jury
unlikely to reach or agree on decision and t/f may prolong resolutions may engage w courts
want lbd

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

arbitration

A

3rd party listens to evid and arg presented by both parties and makes a descion that is legally binding
use din vcat, mag crt compulsory arb if less than 10 000, county and sup crt

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

arbitration features

A

arbitrator is indep impartial 3rd party
arbitrator resolve dispute by listening to arg, evid etc and make decision in favor of one party
arbitration may be voluntary or court ordered
contracts may feature arbitration as method to resolve
legally binding’
provides certainty
limited rights to appeal

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

arbitration appropriate

A

provides a binding and final decison
minor disputes less than 10 000
costs b/c lower than courts and less formal enviro
parties benefit from expertise and advice of arb

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

arbitration inappropriate

A

complex evidence is required
win-lose scenario
requires an interpretation of law or legal ruling b/c limited right to appeal
costs are factor b/c can be expensive w legal rep

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

judical determiantion

A

formal process whereby mag, judge, vcat president or vicepres makes a legally binding decision enforceable by courts by listening to evid and arg

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

judicial determination appropriate

A

complex evidence or areas of law are involved
a power imbalance exists b/w parties
mediation or conciliation has been unsuccessful
parties rely on formality and strict rules of the courtroom
parties would like a transparent outcome/decision made by judicial officer

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

judical determination inappropriate

A

cost is a barrier for parties
an ongoing r/ship is required
other alternative methods of resolution have not been attempted
parties may feel intimidated or overwhelmed by a public court environment
parties would prefer a discrete outcome as a public outcome may draw media attention and discredit image

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

judicial determination features

A

a formal process whereby matter is det by mag, judge or vcat pres or vicepres
involves lengthy and complex pre trial pro
may involve jury
legally binding decision and enforceable
public and published decision
strict rules of procedures and evidence
legal representation
leave for appeal can be granted based on nature of application

21
Q

remedies

A

award by court in order to return the plaintiff (usually) to their original position prior to harm and infringement occurred

22
Q

damages

A

sum of money ordered by court for defendant to pay the plaintiff in order to restore them to their original position

23
Q

specific or special damages

A

compensate plaintiff for items easily calculated or measured in terms of money
eg medical expenses

24
Q

compensatory damages

A

compensate or make up to plaintiff for the injury or infringement suffered

25
Q

general damages

A

award for pain, suffering and loss of enjoyment of life as a result of infringement
assessed based on impact to plaintiffs lifestyle
eg football career

25
Q

aggravated damages

A

in addition to other damages compensated for loss humiliation or emotional harm
demonstrate courts disapproval of the defendants behavior

26
Q

exemplary damages

A

awarded when court want to make an example of defendant ot punish def for actions or deter others acting in same way

27
Q

nominal damages

A

plaintiff x suffered ant significant loss or damage but principle of matter and taking to court in favor more important
reinforce legal interest of the plaintiff

28
Q

contemptuous damages

A

if valid legal clamin may be successful in exercising rights but court x sympathetic so awarded amount = make a mockery out of civil action

29
Q

injunctions

A

court order requiring that the defendant do something or refrain from doing something

30
Q

mandatory injunction

A

injunction that mandates def to perform a particular action

31
Q

prohibitory injunction

A

injunction that prevents or prohibits an action from def

32
Q

civil remedies DO achieve their purpose

A

damages-
effective in cases involving economic loss particularly where value clearly identified
may minimize suffering or pain if injured than compensatory damages can provide further care eg medical to minimize suffering

injunctions-
restore plaintiff to orig position by ordering def fulfil an action
can prevent cease further damage
enforceable by courts and def must comply

33
Q

civil remedies DONT achieve their purpose

A

damages-
determining an accurate amount for pain and suffering and loss of future earning is diff to calculate
ability for money to restore plaintiff to orig pos eg loosing a limb or death of family
taking to court = time consuming expertise and stressful x compensate for these

injunctions-
in cases def may have already caused damage and injunction x restore plaintiff
effectiveness of inj = depends on willingness of def to comply
effectiveness of inj - time consuming and costly

34
Q

cost factors

A

vcat a applications begin at $64 and increase to hundreds thousands of dollars for more complex matters
mediation and conciliation services are not free in most cases but can range from 800 to 2000 depending on nature of case
cost for jury 816 first day and 586 other days

35
Q

cost factors fairness

A

30% self rep b/c high cost of legal rep t/f lack legal experience and skills, reduce ability to present case fairly

36
Q

cost factors equality

A

high cost impact vulnerable groups unable to affird legal rep t/f unequal treatment before law if against represented party

37
Q

cost factors access

A

cost affect indiv ability to access legal info advice and legal rep /methods

38
Q

time delay factors

A

delays occur bc insuff court resources, availability of judges
complex pre trial procedures eg pleadings and discovery add months
increase delays = stress/ x clarity
supreme court avg time 8.9 months
vcat res tenancies for unpaid rent avg 17 weeks

39
Q

time delays fariness

A

complexity of case = compromise fairness b/c take months and years. sig impact of life.
reduce fairness b/c validity and credibiblity of evid degrade as delays = x fair

40
Q

time delays equality

A

delays impact parties diff as large copor x impacted socially or financially whereas self rep party taking time off work or excessive legal fees = x equal

41
Q

time delays access

A

delays lengtheir time = case may forced settle in other way denying access to justice of if exhaust funds

42
Q

accessibility factors

A

geographical factors, cultural or socio-economic factors and vulnerability
lack of awareness of legal rights lack of interprets, geographical location
cognitive impairment, comm barriers , anxiety of court proceedings, lack of awareness or rights or dependency on family

43
Q

accessibility equality

A

equality x givens same opp to uphold their rights and utilize institutions and methods available, lack of awareness or fear

44
Q

accessibility fairness

A

x treated impartially b/c of limitations, eg living regionally x same legal resources
x recognise civil wrong, file claim or many institutions hear dispute x same

45
Q

name 2 recent civil reforms

A

-The use of group cost orders in class actions​
-Fast track mediation and hearing processes in VCAT

46
Q

reform
use of group cost orders in class actions 2020

A

-law firms are now able to charge client a fee should their class action be successful, as a percentage % of the damages recovered (Provided that the courts are ‘satisfied that it is appropriate or necessary)
–> law firms take on smaller class actions

47
Q

reform
fast track mediation and hearing processes in VCAT

A

-The expansion of the financial threshold for applicants to access fast-track mediation and hearing from $3000 to $10,000 = more civil claims will be able to access this service
-The expansion of this method of dispute resolution outside of the Melbourne metropolitan area (VCAT at King St), to a state-wide service however the threshold for non-Melbourne based claims are $5000

47
Q

name 2 recommended reforms

A
  • national justice interpreter scheme
    -enforcing vcat orders
48
Q

recommended reform
national justice interpreter scheme

A
  • Linguistically diverse background, fnps, and new to aus
    Vic govt, courts and tribunals = ensure availability of interpreters
    -Court registry staff and judicial officers would receive training to assist identify individuals or groups that would need the assistance of an interpreter​
    -Legal information should be published in plain-language and languages other than English​
    -Court orders should be drafted in plain-language whenever possible
49
Q

recommended reform
Enforcement of VCAT orders

A

more simplified approach to the enforcement of vcat orders

considered an order of an appropriate court (rather than a tribunal) and thus, automatically enforced. This would reduce the time and cost that parties may need to spend in order to apply to a relevant court to certify an order.