U3 AOS2 - The Victorian Civil Justice System Flashcards
what is the burden of proof in a civil case?
Burden of proof refers to the responsibility of a party to establish the facts of a case and it lies with the person who is bringing the case, thus, in a civil case the burden of proof falls on the plaintiff.
Burden of proof may fall on the defendant when, for instance, they make a counterclaim against the plaintiff, and thus have the onus of proving that claim. Further, if a defendant raises a defence they also have the responsibility to prove that defence
what is the standard of proof in a civil case?
Refers to the strength of evidence required to prove a case. In a civil dispute, the plaintiff must prove the case on a balance of probabilities. This means that the party must prove that they are most likely in the right and the other party is in the wrong.
what is a representative proceeding?
Representative proceedings occur when a GROUP of people who all have claims against the same party join together to commence a civil action.
This can be commenced if: Seven or more people have claims against the same person; Those claims relate to the same, similar or related circumstances; The same issues need to be decided.
The person who commences the representative proceeding on behalf of everyone else is the lead plaintiff. The others are known as group members. The lead plaintiff does not need the consent of the group members or need to know who they are.
what are five advantages of representative proceedings
- It is a more efficient way of the court dealing with a number of claims, thus saving the time of the court and its personnel. Streamlines the process. (A)
- People can pursue civil actions that they may be unable to afford in an individual case, thus increasing access (E,A)
- Person who joins a class action does not have to personally attend trial, give instructions to lawyers, evidence, pay (A)
- Range of claims brought that would otherwise not have been pursued (F)
5.Can level playing field when against big business (E)
what are four disadvantages of representative proceedings
- after legal fees are paid, settlement is reduced and group members may receive very little (F)
- unmeritorious claims may be more easily pursued (F)
- They limit the ability of individuals to control the proceedings (A,F)
- It can be difficult for a single class action to represent the needs of all the individuals involved as there are many nuances in the cases for individuals. (F,E,A)
what are the five factors to consider when initiating a civil claim
NEGOTIATION OPTIONS, COSTS, LIMITATION OF ACTIONS, THE SCOPE OF LIABILITY AND ENFORCEMENT ISSUES
what are negotiation options/why should plaintiffs consider it? (civil)
Plaintiffs must consider whether the dispute can be resolved outside of court or tribunal. In some circumstances, it may be appropriate for a plaintiff to try negotiate a resolution directly with the defendant without initiating a claim.
May be done with or without representation with a third party like a mediator OR through a dispute resolution service.
when may negotiation not be an option?
if one of the parties is not interested in negotiating or doesn’t want to resolve a dispute.
if there have already been failed attempts at negotiation.
if there is distrust between the parties or one party has been threatened or harmed by the other.
if it is unlikely that a negotiation will have a successful outcome eg. plaintiff requests are unreasonable or if there is urgency in dispute being resolved in court
if there is a significant power imbalance between parties = inequality.
what are four advantages of negotiation? (civil)
The costs, time, and stress involved in commencing a formal civil action may be avoided. (A)
Ongoing relationship (A)
Parties have control over the outcome as opposed to it being decided by a third party. Eg. they can choose how to negotiate, in what setting, and what they’re prepared to accept as an outcome (A)
Parties may be more inclined to accept an outcome that they’ve been involved in reaching. (F)
what are four disadvantages of negotiations? (civil)
Absence of strict rules may allow one to dominate the other and obtain an outcome they wouldn’t otherwise (F,E)
Not binding unless deed of settlement signed (F)
Private (F,A)
Mediator doesn’t have expertise in area of law, just conflict resolution (f)
what costs may a plaintiff have to consider when initiating a claim? (civil)
Fees for legal representation: engaging a solicitor and barrister is costly, and often in court cases a party will engage both.
Disbursements: Issuing a claim will incur a number of disbursements ie. out of pocket expenses. Such as court fees,
mediation fees: (courts will often order parties to undergo mediation when they initiate a claim in court. Mediator fees can be anywhere between $2000 - $20,000)
expert witness fees: plaintiffs’ claim may require an expert opinion. Eg. medical expert
Adverse cost orders: If a plaintiff takes a claim to court, and is unsuccessful, not only will they have to pay their court fees, they may also be ordered to pay a portion of the defendants costs
advantages of having costs factors to consider? (civil)
Courts have discretion when ordering payment of costs, will only do so if reasonable to be compensated (F)
Adverse court orders ensure that person who was accused of being in the wrong, but is found right, is not impacted (F)
disadvantages of having cost factors to consider? (civil)
Adverse costs orders usually don’t reimburse for all costs because they’re based on a ‘standard’ rate. Not fair as system determined individual the right but they’re still affected (F)
Costs can be very prohibitive to those wishing to issue a claim, especially to those of low socio-economic status (F,E)
Can reduce equality when one has greater opportunity to bring a case/win a case eg. better representation (E,F)
what is limitations of actions?
Refers to the restriction placed on the time in which a civil action must be commenced. Once that time period has passed the defendant may be able to raise a defence that the plaintiff is out of time.
There is different limitation periods for different types of claims eg. defamation claims have 6 months whilst breaches of contracts have 6 years. This is outlined in the
Limitations of Actions Act 1958 (vic).
Once the limitation period has lapsed, a plaintiff is barred from obtaining any remedy.
what are five advantages of limitations of actions? (civil)
Time frame makes sure evidence is reliable and accurate so people can still remember what happened (F,A)
Prevents backlog of cases as courts not inundated with historic claims (A)
Some cases where it is highly necessary. For defamation claims, it is necessary for a one-year limitation period to be imposed because the court is required to assess the damage the defamation has done to the person’s reputation as it stands at the time.
Social cohesion promoted because resolution accessible ASAP (A)
Defendant doesn’t have to face action after significant amount of time (F)
what are three disadvantages of limitations of actions? (civil)
Time limit may prevent harmed plaintiffs from pursuing their rights (F,A)
Pressure to initiate claim when people aren’t ready, although recent change accounts for some of cases this may happen (F,E) eg. sexual assault cases have no limitations of actions
May mean breach of rights goes uncorrected if they run out of time (F,A)
what is scope of liability? what must plaintiff consider? (civil)
plaintiff must consider who they should actually initiate a claim against and to what extent they’re liable
scope of liability - possible defendants? (civil)
Employers: principle of vicarious liability means that an employer may be liable for the actions of an employee. In order to do this, the plaintiff must establish that the employee was an employee and there is some correlation between the act and the employer.
Persons involved: if someone aided, abetted, or procured the wrong doing, induced or urged it, were in any way directly or indirectly involved, or conspired with others about wrong doing, it is known as accessorial liability. The plaintiff may decide to sue somebody else who was involved in the wrongful act.
scope of liability - extent of liability? (civil)
Defendants may argue that if they are found liable, they are only responsible for a part of the plaintiffs loss or damage.
Eg. in negligence claims, the defendant might try to claim contributory negligence, meaning they try to prove that the plaintiff was partially responsible. If they’re successful, then the defendant’s liability is likely to be reduced. They may also argue that someone else was liable and thus try to reduce their liability.
what are enforcement issues? (civil)
If the court orders the defendant to pay a sum of money the plaintiff must consider if the defendant actually has the capacity to pay and if so, if they will. Plaintiff may have to issue enforcement proceedings to force defendant to comply with remedy
The plaintiff must consider:
If the defendant is bankrupt, so they don’t have any assets or money to pay anything to the plaintiff; if the defendant is in jail there may be difficulty in enforcing the remedy; if the defendant is a company that has no assets; if the defendant is overseas and uncontactable; plaintiff does not know who the defendant is.
what is consumer affairs victoria? (civil)
Australia’s consumer affairs regulator. Advises Victorian government on consumer legislation, provides information to educate people about consumer laws, enforces compliance with consumer laws and provides people with a dispute resolution process by being a complaints body.
CAV mainly uses conciliation to resolve disputes, and if parties come to an agreement they sign a terms of settlement which then may be enforceable through a court if one party does not comply.
what is the purpose of CAV? (civil)
Ensure that businesses comply with consumer laws
Advise the Victorian government on consumer legislation
Provide information and guidance to educate people about consumer laws
Provides consumers and traders, landlords and tenants, with a dispute resolution process.
Help people settle disputes efficiently and constructively without any cost and assist them with resolving their dispute without imposing a binding decision
Ensure that any inappropriate conduct is stopped and help any party that has been wronged to seek compensation for any loss they have suffered.
when is CAV appropriate? (civil)
GIven CAV’s specialisation and expertise in consumer matters, it is likely to be appropriate in the resolution of disputes between consumers and businesses.
It is appropriate for disputes within its jurisdiction, such as disputes about the supplies of goods and services, residential, retirement villages, and owners corporations as it has the specialised knowledge to do so.
Additionally, the use of conciliation makes it very appropriate for resolving disputes between tenants and landlords as an ongoing relationship is often required between these two parties despite the dispute.
when may CAV be inappropriate? (civil)
Since it specialises in resolving disputes between consumers and businesses, landlords and tenants, it is unlikely to be appropriate for other types of disputes as it would lack the knowledge and resources as they’re outside its jurisdiction.
cases where there is great hostility between the parties, or if one party is unlikely to take conciliation seriously, or may not show up. In such matters, conciliation likely wouldn’t work and an adversary approach used by another dispute resolution body is likely to be more effective in resolving the dispute.
if the case is extremely big and complex.
If a party prefers the formality of the tribunal or court processes
what are four strengths of CAV? (civil)
- CAV’s conciliation is free, meaning that it is accessible to all Victorians, regardless of their socio-economic background or financial situation. (A,F,E)
- CAV conciliation ensures that parties reach a decision themselves so they’re more inclined to accept the outcome as opposed to having one forced on them by a greater body (E,A)
- Conciliation process is informal and can be conducted over the phone which removes the stress and anxiety that comes with courtroom formalities. (A,E)
- CAV assesses cases individually which reduces the waste of time and resources on disputes that are unlikely to settle. (A)
what are five limitations of CAV? (civil)
- CAV’s role is largely limited to mainly consumer and landlord disputes, so they have no power to assist with many other types of disputes, and if there is a matter that is partly in their legislation, and partly in another bodies legislation, they’ll refer it to the other body (A)
- CAV has no power to enforce any decisions reached by the parties in conciliation. Unless they enter into a binding agreement, then one may just ignore it, meaning nothing is solved. (A,F)
- No powers of compulsion so willing party might not be able to use services (A,F)
- The informal nature of the conciliation process and lack of a binding decision may mean that a party won’t take the matter seriously which wastes time and is unfair for willing party (A,F)
- CAV is inappropriate for large and complex disagreements, which may be better suited to a court or tribunal which has greater expertise. (A)
what is VCAT? (civil)
VCAT is an independent tribunal which determines a number of civil law matters. It uses informal processes and the decisions made are legally binding and enforceable through the courts.
what are VCATs five divisions? (civil)
administrative
civil
human rights
planning and environment
residential tenancies
what three methods does VCAT use?
Mediation: Although it’s not legally binding, in most situations a deed or terms of settlement is drawn up once parties reach a resolution which is then enforceable through the courts.
Compulsory conferences: confidential meetings in which parties discuss a resolution to their dispute in the presence of a VCAT member. This uses a conciliation process and the VCAT member may suggest forms of settlement.
Final hearing: if the matter is not solved at mediation or compulsory conferences it will go to a hearing where parties can present their cases and a VCAT member will oversee it and impose a binding agreement on them.
what are the four purposes of VCAT? (civil)
To provide cost effective dispute resolution
To provide accessible dispute resolution
To provide timely and efficient dispute resolution
To provide specialised and independent dispute resolution
how is VCAT cost effective?
Fees for filing a claim are minimal eg. filing fee is under 100 compared to filing a writ in court which is $850
Most parties (80%) represent themselves which saves the cost of legal representation
Three tier payment scheme with a lower cost for concession holders, and higher for corporations
how is VCAT accessible?
There aren’t strict rules of evidence and procedure and it uses a less adversarial approach so it’s more informal.
It conducts hearings in over 35 locations across metro and country victoria.
Offers telephone and video conferences in place of attending the tribunal which allows people to make applications online and conduct hearings online
how is VCAT timely and efficient?
small time gap between filing and hearing and without the significant time delays that burden courts
VCAT constantly aims to reduce waiting times which makes the process more efficient
how is VCAT specialised and independant?
Each VCAT list operates with it’s own specialised jurisdiction
High quality dispute resolution because personnel develop
expertise and advance their knowledge in a particular area of law
It’s members are independent and will act as unbiased adjudicators
when is VCAT appropriate?
Given specialisation divisions and lists it’s appropriate for a vast no. of civil cases. Does not have exclusive jurisdiction like CAV.
It is beneficial for disputes where the parties require a prompt and low cost resolution.
It’s informality makes it appropriate for civil disputes where a party may be particularly prone to being intimidated by courts
when may VCAT be inappropriate? (civil)
Its jurisdiction makes it unable to hear disputes between people who are not connected with Victoria.
It cannot hear some civil cases such as: representative proceedings; disputes between employers and employees; disputes between neighbours (unless about an owners corporation); disputes between drivers in car accidents.
Arguably, it’s inappropriate for VCAT to hear matters involving lengthy and complex evidence and questions of law as these are more appropriately handled by the courts, which have the legal expertise and time.
what are five strengths of VCAT?
- It is cheaper than courts due to low application and hearing fees and there are no expensive pre-trial procedures. (A,E)
- Offers speedy resolution of disputes eg. the busiest list has an average time of 3 weeks (A)
- Each list operates its own specialised jurisdiction resulting in personnel developing expertise. (F,A)
- A decision made in a final hearing is binding which means it’s enforceable. (F,A)
- Parties are encouraged to reach a decision themselves when referred to mediation or CC. Can have a voice and autonomy, not outcome enforced by greater entity (E,A)
what are four limitations of VCAT?
- The increased use of legal rep is making costs of taking a matter to VCAT as high as Courts, and some changes to fees are making fees for some lists more expensive. (A,E)
- Some lists have considerable delays, particularly in the Planning and environment list. (A,F)
- Some VCAT members are not judicial officers, meaning they may be casual, sessional with less experience. (F)
- VCAT orders will still need to be enforced through the courts, which takes a little longer. (A)
what are three differences between VCAT and CAV?
Resolutions predominantly reached using conciliation (CAV), whereas VCAT uses conciliation, mediation and final hearings.
Third party in CAV does not make decision, but offers suggestions, whereas if dispute proceeds to a final hearing in VCAT third party will listen to evidence and make a legally binding decision
No room for appeals in CAV, but VCAT can appeal on a point of law
what are pleadings? (civil pre trial procedures)
a pre-trial procedure during which documents (eg. writs and notice of appearance) are filed and exchanged between the plaintiff and defendant and which state the claims and the defences in the dispute. Statement of claim and defence
PURPOSE: ensures both parties are fully informed, avoids taking a party by surprise, gives court a written record, sets limit to a dispute, encourages and out of court settlement
what is discovery of documents? (civil pre-trial)
a pre-trial procedure which requires the parties to list all the documents they have that are relevant to the case. Copies of documents are provided to the other party. EG. medical records if the plaintiff has claimed physical or psychological injury, or emails if the plaintiff has claimed to have suffered abuse and humiliation in the workplace via email.
PURPOSE:
disclose all relevant docs, reduce element of surprise, allow parties to see strength of other side, ensure court has all docs, encourage an out of court settlement
what is exchange of evidence? (civil pre-trial)
When evidence is given eg. lay evidence can be given by written statement or orally and expert evidence eg. medical pros
ALso there is examination of witnesses (examination in chief (where questions are put to the witness by the person who brought them), and cross examination
what are the four purposes of civil pretrial procedures?
To encourage an out of court settlement:
- enables parties to control the outcome of their case and reach a decision that benefits them both; it saves the parties a substantial amount of time and money; it spares the parties and any witnesses the stress and inconvenience of going to court.
Eg. MEDIATION: is generally a compulsory civil pre-trial procedure.
EG. PLEADINGS: can assist in reaching an out of court settlement when appropriate. Eg. if a claim or defence is so compelling, it might force the other party to pursue a strategy to settle the claim before a trial.
EG. DISCOVERY: can assist in reaching an out of court settlement if particular documents are compelling enough.
To provide the courts and parties with key information:
- give the plaintiff information relating to the defence and the defendant info regarding the claim (thus ensuring they’re on equal footing). They also provide the court with info about the case before it begins which allows them to better allocate resources.
Eg. PLEADINGS: by requiring the parties to state their main defences and claims, they achieve procedural fairness by ensuring the other side knows the claim or defence against them. It also gives the court a written record which allows them to understand the case so it can manage the trial procedures.
Eg. DISCOVERY: reveals all the relevant documents to the other side so that both parties have access to the documents, thus ensuring fairness in the process. Also ensures that the court has all the relevant material and documents required to achieve a just outcome (some docs will then be submitted into evidence).
Eg. EXCHANGE OF EVIDENCE: evidence is disclosed by writing before the trial.
To allow the parties to determine if a trial is worthwhile:
- Info provided can assist them in determining whether it’s worth the time, money, and effort.
Eg. DISCOVERY: allows parties to see the strength of the other side’s case and their own likelihood of success. They may decide that the evidence against them is so substantial that they would be better off setting with the other party rather than go to trial.
Eg. EXCHANGE OF EVIDENCE: allows each party to determine the strength of the other side’s evidence and decide whether they are likely to be successful or if they’re better off setting with the other party.
To speed up the dispute resolution process:
- allows disputing parties to get back to their lives as soon as possible and save them the money and reduces their time away from employment. It also inadvertently reduces the backlog of cases and allows courts to allocate more time to other cases.
Eg. DIRECTIONS HEARINGS: are pretrial procedures that help speed up the process. They are conducted by a judge and serve to clarify and resolve any issues before the trial begins and give the parties instructions and time limits regarding the future conduct of the case, thus saving time.
what is administrative convenience? (civil)
The existence of a court hierarchy allows for civil law cases to be distributed according to their complexity and seriousness. This means that the higher courts (eg. Supreme court), hear the more serious, lengthy, and complex cases, whilst lower courts (eg Magistrates) hear the minor less complex cases that must be dealt with quickly and efficiently.
In turn, this reduces delays by allowing minor civil cases to be dealt with quickly without having to wait for the lengthier civil cases, whilst also allowing higher courts to more easily allocate their time, to make way for the more complex cases
why are appeals a reason for court hierarchy (civil)?
The existence of a court hierarchy allows for the system of appeals to operate. The court hierarchy means that a plaintiff or a defendant can have their case or the imposed remedy reassessed by a higher, more superior court if they believe the original decision was unjust. Thereby, providing fairness by providing the opportunity for unjust decisions to be corrected.
what are the responsibilities of judges in civil trials?
Manage the trial: judges must ensure that correct court procedure is followed so that the plaintiff and defendant have equal opportunity to present their case. Judge can also give directions and orders in a trial, ask witnesses questions to clarify evidence, and hand down rulings throughout trial where necessary (eg. deciding a point of law).
Decide on admissibility of evidence: must decide which evidence is to be permitted, and can exclude evidence from the trial, thus ensuring fairness.
Attend jury matters (if there is one): may need to address the jury during trial, give directions, and sum up the case.
Determine the liability and remedy (if no jury): must decide based on the balance of probabilities whether the plaintiff has adequately established a claim against the defendant and impose a decision in favour of plaintiff or defendant. If they have ruled in favour of the plaintiff, they must determine the relevant remedy to be ordered.
what are four strengths of judges in a civil case?
- Expert who acts as impartial umpire ensuring that fair trial ensues and parties treated equally. (E,F)
- Significant powers of case management ensure just, timely and cost-effective resolution of issues in dispute – neither party uses bad faith strategies designed to unfairly disadvantage its opposition (E,F)
- Assists self-represented (F,E,A)
- Judges will usually decide on facts, liability and remedies which makes sense as they’re most expertised. (F,A)
what are four limitations of judges in civil trials?
- Doesn’t overly interfere in procedure and cannot extend to acting for self-represented party or assisting a party whose representation is performing poorly (E)
- May have unconscious biases and significant role who rules on liability and remedies in most cases (F)
- Judge’s expertise not utilised fully. Given that the judge is probably the most expert legal mind in the court, knowledge to some extent is wasted as they play a more passive role. For example, can’t help with preparation of evidence (F,A)
- May overly interfere, risking a mistrial (F)
what are the responsibilities of juries in civil trials?
Be objective: the jury is responsible for being unbiased and putting aside any prejudices they may have
Listen to and remember evidence: jurors must ensure that they concentrate on what is taking place in the courtroom and mustn’t undertake their own investigations.
Understanding directions and summing up: during trial the judge will give directions to the jury about issues or points of law and will sum up the case at the end. Jury must listen carefully.
Decide on liability: must reach a decision, in favour of one party on the balance of probabilities
Decide on damages: if the jury has reached a decision in favour of the plaintiff, they must choose the amount of damages to be awarded to the plaintiff and paid by the defendant.
what are 3 strengths of juries in a civil trial?
Majority/unanimous verdict means decision making is shared and more likely to be correct. Community standards applied (F)
Jury structure of cross-section of community members means those with prejudices balanced out by other jurors without those same biases so they don’t carry verdict (F)
randomly picked and thus less bias
what are 3 weaknesses of juries in civil trials?
Tend to be inconsistent and unpredictable in assessing damages as each person’s financial circumstances are different (F)
Many prejudices common across different groups in society so parties may not be treated as equal before the law (E)
Many potential jurors excused, ineligible or challenged. Pool of jurors considerably smaller and some types of people always excluded so not truly representative of cross section of society and thus not judged by peers (E)
