U3 AOS 2: Resolving a civil dispute Flashcards
Factors to consider when initiating a Civil claim
- Costs
- Negotiation options
- Limitation of actions
- Scope of liability
- Enforcement issues
Negotiation
Plaintiff should consider whether they can try and negotiate a resolution of the dispute without initiating a claim
Costs
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
Limitation of actions
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
Scope of liability
Before initiating the plaintiff needs to consider
- Who are the possible defendants
- What extent defendant may be liable.
Enforcement issues
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Consumer Affairs Victoria (CAV)
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.
Victorian Civil and Administrative Tribunal (VCAT)
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.
Civil pre-trial procedures
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.
Responsibilities of key personal
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Judicial powers of case management
- 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.
Mediation
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
Conciliation
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
Arbitration
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
Purposes of remedies
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
Possible options of negotiation
- 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
When negotiation is not an option
- 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
Before initiating a claim the plaintiff should consider
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.
CAV Jurisdiction
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
Purposes of CAV
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.
Purposes of VCAT
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.
Appropriateness of CAV
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
Compulsory conferences
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
Final hearings
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
Appropriateness of VCAT
- Whether disputes are in VCAT jurisdiction
VCAT Jurisdiction
- Purchase: goods / services
- Tenants / landlords
- Sexual harassment
- Discrimination
- Domestic building works
Advantages VS Disadvantages CAV
Advantage
- Conciliation service is free & informal process
Disadvantage
- Jurisdiction is limited & no power to compel parties to undergo conciliation
Pleadings
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
Discovery
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.
Expert evidence
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.
Disputes suitable and not suitable for M / C
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
Disputes suitable and not suitable for A
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
Advantages VS Disadvantages of Conciliation / Mediation
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
Advantages VS Disadvantages of Arbitration
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
