U3 AOS 2: Resolving a civil dispute

Question 1

Factors to consider when initiating a Civil claim

Answer 1

• Costs
• Negotiation options
• Limitation of actions
• Scope of liability
• Enforcement issues

Question 2

Negotiation

Answer 2

Plaintiff should consider whether they can try and negotiate a resolution of the dispute without initiating a claim

Question 3

Costs

Answer 3

A party involved in a civil spite may incur costs in resolving a civil dispute. The costs include fees for legal representation, court costs and other disbursements (ie fees paid to export witnesses) as well as possible costs to be paid to other party if plaintiff is not successful

Costs depend on

• Complexity of the case
• Court matter will be held in
• Nature of the case
• Length of legal proceedings

Question 4

Limitation of actions

Answer 4

Plaintiffs have to bring their cases to court within a time limit. Referring to the restriction on time within a civil action can be commenced. The plaintiff will need to commence the proceeding in a certain amount of time / years, once the period has passes the defendant maybe be able to raise a defence that the plaintiff is out of time.

Why?

• Evidence does not last and people can’t remember
• Disputes can be resolved ASAP = promoting social cohesion

PHYSICAL / PSYCHOLOGICAL ABUSE = NO TIME LIMIT

Question 5

Scope of liability

Answer 5

Before initiating the plaintiff needs to consider

• Who are the possible defendants
• What extent defendant may be liable.

Question 6

Enforcement issues

Answer 6

.

Question 7

Consumer Affairs Victoria (CAV)

Answer 7

AKA Complaints body, offer dispute resolution services to people who make a complaint on another party. Business unity go VIC governments, department of justice and regulation.

Question 8

Victorian Civil and Administrative Tribunal (VCAT)

Answer 8

Tribunal - Dispute resolution body. Deal with limited area of the law. Process of dispute resolution is less formal than the courts, intended to be cheaper and more efficient way of resolving disputes. Aiming to improve accessibility using phones, video ect. while reducing waiting time

Decisions are binding.

Question 9

Civil pre-trial procedures

Answer 9

The plaintiff decides to issue a proceeding in County / Supreme Court, party must complete various pre trial procedure before ready for trial, most are mandatory however judge may order certain steps.

Question 10

Responsibilities of key personal

Answer 10

.

Question 11

Judicial powers of case management

Answer 11

• Judges and Magistrates have power to manage civil disputes
• Powers come from statute and rules of court
• To achieve the just, efficient, timely and cost - efficient resolution of the real issues in disputes. Judges can exercise their powers to manage cases.

Question 12

Mediation

Answer 12

A meeting between 2 parties resolving a dispute with the 3rd party of a mediator who’s role is to facilitate discussion between the parties. However the resolution must be made by the parties voluntarily

Question 13

Conciliation

Answer 13

A meeting between 2 parties resolving a dispute with the 3rd party of a conciliator who’s role is to facilitate discussion between the parties as weak as suggest solutions However the resolution must be made by the parties voluntarily with the conciliators advice

Question 14

Arbitration

Answer 14

A meeting between 2 parties resolving a dispute with the 3rd party of an arbitrator who’s role is to listen to evidence and arguments of the parties and make a decision. The resolution is decided by the arbitrator and is legally binding.

Used in Magistrates court when claims are less than $10000 and commercial disputes

Question 15

Purposes of remedies

Answer 15

To restore the party who has suffered loss / injury to the original position they were in before the act / omission (wrongdoing) took place. Usually done in the form of compensation. An injured party can claim compensation for pain / suffering due to a civil wrong

Question 16

Possible options of negotiation

Answer 16

• Parties interact directly w/ each other to try and resolve the dispute with or w/o legal rep
• A mediation with or w/o legal rep arranged themselves
• Arranging a negotiation or other dispute resolution method through a body such as the Dispute Settlement Centre of Victoria

Question 17

When negotiation is not an option

Answer 17

• One of the parties do not want to resolve the issue
• There is a power imbalance between parties
• When the negotiation is unlikely to be successful

Question 18

Before initiating a claim the plaintiff should consider

Answer 18

If the plaintiff imitates a claim in court and is unsuccessful they not only will have to pay their own legal costs, but also may be ordered to pay for some of the defendants costs.

Question 19

CAV Jurisdiction

Answer 19

CAV is limited to assisting in settlement of disputes within jurisdiction in which they obtain power through vic statures.

CAV can assist with:

• Supply of goods and services
• Residential tenancies
• Retirement villages
• Owners corporations

Question 20

Purposes of CAV

Answer 20

Only accept complaints from plaintiffs from consumers and tenants not businesses / landlords

1) Advises VIC gov on consumer legislation (eg laws on sale and purchase of goods)
2) Provides info to educate people on consumer laws and enforces compliance with consumer laws
3) Provides consumer + traders, landlords + tenants with a dispute resolution process
4) CAV help settle disputes effectively and constructively without cost and assistance in agreeing on resolution without imposing a decision.

Question 21

Purposes of VCAT

Answer 21

To provide Victorias w/ low-cost, accessible, efficient and independent tribunal delivering high-quality dispute resolution processes. Provides parties with alternative to resolve certain types of civil disputes through its various lists.

Question 22

Appropriateness of CAV

Answer 22

1) Whether dispute is written within CAV jurisdiction
2) Whether dispute is likely to settle
3) Whether there are other / better ways to resolve dispute ( if available )
4) Will not conciliate dispute that courts / VCAT have already made a decision or where cases are pending

Question 23

Compulsory conferences

Answer 23

Confidential meetings in which parties discuss way to resolve w/ VCAT member, lead by VCAT member and may suggest forms of settlement and likely outcomes of hearings

Question 24

Final hearings

Answer 24

If the matter is not solved in mediation / compulsory conference it will be listed for a final hearing by a VCAT member. Parties will have a chance to present their case including, hearing evidence and asking questions of witnesses and provide documents to support case.

VCAT may make a binding decision
VCAT has obligation to make proceedings with little formality and technicality as possible

Question 25

Appropriateness of VCAT

Answer 25

• Whether disputes are in VCAT jurisdiction

Question 26

VCAT Jurisdiction

Answer 26

• Purchase: goods / services
• Tenants / landlords
• Sexual harassment
• Discrimination
• Domestic building works

Question 27

Advantages VS Disadvantages CAV

Answer 27

Advantage
- Conciliation service is free & informal process

Disadvantage
- Jurisdiction is limited & no power to compel parties to undergo conciliation

Question 28

Pleadings

Answer 28

Pleadings: Series of documents filled and exchanged between parties to a court proceeding. Set out and clarify the claims and defences of parties and help define issues in dispute.

Statement of claim: Filed by plaintiff setting out detail of claims made against the defence and remedy sought.

Defence: Filled by defendant = response to the claims.

Avoids surprised and sets out clear details

Question 29

Discovery

Answer 29

Enables parties to get copies of the documents that are relevant to dispute issue / listed in a formal document. Assisting in reaching out-of-court settlement. Requires all relevant documents disclosed. Dependant of the likelihood of success and strength of other sides case.

Question 30

Expert evidence

Answer 30

Experts can be called by parties in a civil claim to give opinion on issue of the case (medical, finance) often given via a written document by an independent expert

Purposes:
Determine strength: Allows each party to determine the strength of other sides case and determination likely hood go success
Understand damages asked for: Allows defendant to understand amount of damages that plaintiff is seeking to enable the defendant to consider whether it may be better to settle out of court
Reduced element of surprise: Reduce surprise at trial and avoid a ‘trial by ambush’ particularly where evidence is disclosed in writing before trial.

Question 31

Disputes suitable and not suitable for M / C

Answer 31

Suitable:

• When parties relationship will continue
• Want privacy
• Willing to / prepared to compromise

Not suitable:

• History of violent and threatening behaviour
• One / both parties are unwilling to reach mutual agreement
• Imbalance of power

Question 32

Disputes suitable and not suitable for A

Answer 32

Suitable:

• Parties have agreed to arbitration
• Parties want benefit of binding and enforceable award made by the independent 3rd party
• Parties want evidence presented
• Parties want to avoid publicity

Not suitable:

• Parties have not agreed to arbitration
• Parties want more control over resolution process
• Parties want their day in court
• Partied are more comfortable w/ formalities and rules

Question 33

Advantages VS Disadvantages of Conciliation / Mediation

Answer 33

Advantages:

• Less formal = less intimidating
• May address parties needs better

Disadvantages:

• Decision may not be enforceable (dependant on terms)
• 1 party may compromise too much

Question 34

Advantages VS Disadvantages of Arbitration

Answer 34

Advantages:

• Decision = binding, fully enforceable through the courts
• Normally held in private and confidential

Disadvantages:

• Can be formal if parties agree. Adding cost, stress
• Parties have no control over outcome