U3 AOS2 The Australian Civil Justice System (2)

Question 1

Consumer Affairs Victoria (CAV) accepts complaints by phone if..

Answer 1

Literacy, language difficulties or other impairment means the complaint cannot apply online;

Urgent assistance is required (e.g., in the case of disconnection of utilities, repossession of property or harassment);

Question 2

Conciliation

Answer 2

An informal process whereby both parties are in a dispute meet with a trained CAV officer. The process is voluntary and is based on both parties cooperating and communicating with each other to identify the issues in the dispute and explore options for resolution. The parties come to their own non-binding agreement and the CAV cannot impose an outcome.

Question 3

Consumer Affairs Victoria (CAV)

Answer 3

A civil complaint body that is a unit of the Victorian Government’s Department of Justice & Regulation that aims to empower consumers, create a competitive, fair, and safe trading environment, protect vulnerable and disadvantaged consumers, and optimise the CAV’s organisational capacity. Consumer Affairs Victoria (CAV) provides a forum for resolving disputes using conciliation if an attempt to resolve the dispute between the parties are unsuccessful. However, alternatives to CAV include negotiation, court, or tribunals.

Question 4

Describe the purpose of Consumer Affairs Victoria (CAV)

Answer 4

To provide information about consumer laws to the public; to advise and educate businesses, landlords, consumers, and tenants including vulnerable and disadvantaged consumers about their rights, responsibilities and changes to law to enforce compliance with legislation it administers; to review and advise the Victorian Government on consumer legislation and industry codes; to register and licence businesses and occupations; to conciliate disputes between consumers, traders, tenants and landlords under consumer laws; to conduct legal action against businesses who breach consumer protection laws in Victoria.

Question 5

Describe the jurisdiction of Consumer Affairs Victoria (CAV)

Answer 5

CAV can handle disputes regarding the supply of goods and services. CAV can handle disputes regarding residential tenancies, retirement villages, and owner cooperations. CAV also hears disputes between landlords, tenants, consumers, and businesses. However, CAV will not hear disputes between businesses or landlords against tenants.

Question 6

When is employing CAV services appropriate?

Answer 6

The dispute is within the jurisdiction;
Parties have tried to negotiate a settlement themselves;
Both parties are willing to attend and participate in conciliation;
When you feel that your rights as a consumer have been infringed upon;

Question 7

When is employing CAV services inappropriate?

Answer 7

The courts have already ruled on the matter;
There is a better way to resolve the dispute (e.g., Water billing issues should be heard by the Energy and Water Ombudsman Victoria);
Parties have not tried to negotiate a resolution;
One party is unwilling to participate in conciliation (i.e., CAV cannot compel parties to attend and participate in conciliation);

Question 8

Describe two strengths of CAV

Answer 8

The conciliation service is free, so it is accessible to all Victorians; CAV aims to resolve disputes in an informal and timely manner;

Question 9

Describe two weaknesses of CAV

Answer 9

CAV is generally inappropriate for assisting in solving large or complex disputes; and CAV lacks enforcement powers. Any agreement reached in CAV-led conciliation can only be enforced through the courts;

Question 10

List the four divisions of the Victorian Civil and Administrative Tribunal (VCAT)

Answer 10

An administrative, civil, human rights, and residential tenancies division;

Question 11

Does CAV have the power to commence civil proceedings?

Answer 11

Yes, CAV can initiate proceedings on behalf of a person in appropriate circumstances.

Question 12

What is CAV’s primary dispute resolution method?

Answer 12

Conciliation

Question 13

What are the aims of VCAT

Answer 13

To be a low cost, efficient, and accessible dispute resolution body.

Question 14

Victorian Civil and Administrative Tribunal (VCAT)

Answer 14

An ‘umbrella’ body that is an alternative dispute resolution body that has four divisions (i.e., administrative, civil, human rights, and residential tenancy divisions) and nine lists. VCAT has the power to hear limited types of civil and administrative disputes. It is made up of the President (i.e., a Supreme Court justice), Vice-Presidents (i.e., County Court judges) and members. VCAT hearings resolve disputes through binding decisions handed down by members.

Question 15

Describe the purpose of VCAT

Answer 15

Its role is to be an independent tribunal that is affordable, timely and provides quality access to justice in civil matters. Its main aim is fair and efficient justice. It seeks to deliver high quality dispute resolution processes including that of alternative dispute resolution in hopes that the claimant may avoid attending court.

Question 16

Lists

Answer 16

An area of VCAT that deals with similar disputes.

Question 16

How does VCAT achieve its aim of being low-cost?

Answer 16

Many disputes don’t require legal representation (i.e., parties present their own case);
Some VCAT lists have no application fee;
Fees are waived in some cases for those in financial hardship;
Some lists do require legal representation but use mediation/compulsory conferences to settle disputes without hearing, therefore minimising cost;

Question 17

Describe the jurisdiction of VCAT

Answer 17

VCAT can handle disputes regarding retail and residential tenancies, purchases of goods and services, discrimination, guardianship, domestic building works, and registration of professions. However, VCAT cannot hear representative proceedings, disputes between employers and employees, disputes between people involved in car accidents, or disputes between neighbours.

Question 18

How does VCAT achieve its aim to be efficient?

Answer 18

Hearings are very short; and many cases resolved at compulsory conferences or mediation are resolved very quickly;

Question 19

How does VCAT achieve its aim to be accessible?

Answer 19

Low costs are designed to ensure everyone can access civil dispute resolution;

There are VCAT offices in Melbourne, the suburbs and rural Victoria;

The formality of courts may discourage individuals from pursuing a claim; however, the informal procedures of VCAT create an informal/supportive environment that addresses this;

Question 20

When is employing VCAT appropriate?

Answer 20

The cases fall within their jurisdiction;
Parties are unable to resolve disputes another way;
Parties are happy to appeal only on questions of law;
Parties prefer an informal dispute resolution process;

Question 21

When is employing VCAT inappropriate?

Answer 21

The cases are outside their jurisdiction (e.g., representative proceedings, and or defamation claims);

Parties want greater ability to appeal;

The claim is for a very large amount of damages, a court may be more appropriate;

The case involves a complex legal issue; therefore it is better resolved by legal argument by barristers and decided by a judge, given their expertise;

Question 22

List two strengths of VCAT

Answer 22

Decisions are binding on parties; specialisation means high levels of expertise among members; the informal atmosphere helps parties feel comfortable, and it is normally cheaper than courts (e.g., lower application and hearing fees, fewer pre-trial procedures, no need for legal representation);

Question 23

List two weaknesses of VCAT

Answer 23

Most VCAT members are solicitors, not judicial officers, and some lack experience in dispute resolution; and parties have to go to court to enforce most VCAT decisions;

Question 24

Courts are dispute resolution bodies. What are some questions to consider when assessing the appropriateness of courts to resolve disputes?

Answer 24

The size and complexity of the dispute;
The time it is likely to take a court to solve the dispute;
Whether methods such as negotiations or mediation may be likely to succeed;
The likelihood of success;

Question 25

List two strengths of the courts

Answer 25

Fairness achieved through the way proceedings are conducted; and parties gather a lot of information pre-trial, allowing them opportunities to reach out of court settlement;

Question 26

List two weaknesses of the courts

Answer 26

Courts can be stressful environments where parties struggle to follow the case; and judges cannot assist parties, and sometimes, the outcome of the case reflects the quality of legal advice, not the merits of the case;

Question 27

List the processes included in civil pre-trial procedures

Answer 27

Writ, statement of claim, and a statement of defence.

Question 28

Describe the purposes of pleadings

Answer 28

To ensure procedural fairness and that the trial runs smoothly. This is achieved through the exchange of statement of claim and a defence which help parties clarify the legal issues in dispute, meaning parties and the courts are better prepared for the trial, so legal arguments and the presentation of evidence can run more efficiently. Another purpose is to assist in reaching an out-of-court settlement. As pleadings clarify the legal issues and help parties understand the strength of each other’s case, the parties are more likely to attempt to settle the dispute before trial.

Question 29

Writ

Answer 29

The plaintiff files this document with the court (and a copy is provided to the defendant); this informs the court and the defendant that he/she is being sued in a particular court.

Question 30

Statement of claim

Answer 30

The plaintiff files this document in court (and with the defendant), which outlines the legal nature of their claim, the material facts and the remedy being sought.

Question 31

Statement of defence

Answer 31

The defendant files this document with the court (and the plaintiff) outlining how they plan to defend and respond to each of the claims made by the plaintiff in the statement.

Question 32

Discovery

Answer 32

Parties receive copies of documents relating to the case and inspect one another to ensure they are primed for the arguments being brought against them (e.g., medical records, handwritten notes, video surveillance etc, may be disclosed during discovery).

Question 33

Purposes of discovery

Answer 33

To disclose the plaintiff’s case to the defence team and vice versa, compare the strengths of each party’s case to ensure fairness in the process of preparing for trial. Furthermore, both parties know the documents that will be used parties can be prepared and avoid the risk of surprise during trial. Promotes chances of out of court settlement as parties can assess the strength of their opponent’s case. Promotes fairness as all parties have access to the relevant materials.

Question 34

Exchange of evidence

Answer 34

Where parties disclose all evidence against the other, including disclosing all documents, laypersons, and experts whom they may call to give evidence, such evidence may include witness outlines, viva cove evidence (e.g., oral testimony from lay persons), as well as recruited expert witness statements.