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LEGAL STUDIES 3/4 > U3 AOS2B > Flashcards

U3 AOS2B Flashcards

1
Q

define legal practitioner

A

an expert who has undergone training to practice the law

  • usually undertake the role of preparing and conducting a case on behalf of the parties
  • knowledge on certain areas of law
  • barristers and solicitors are types of legal practitioners
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2
Q

state the role of legal practitioners

A

legal practitioners have expertise in:

  • following court processes
  • collecting evidence
  • presenting cases
  • maintaing proper decorum in court
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3
Q

why are legal practitioners needed for self-represented parties?

A

self-represented parties:

  • have difficulty in presenting their own case in a civil trial without legal representation (may not know how to present their evidence in the most effective way or how to cross-examine a witness)
  • may become too emotionally invested in a case to be able to make objective decisions (remaining fully impartial)
  • may not understand legal jargon

if one party is better represented than the other, this could lead to an unfair advantage and possibly an incorrect outcome
a person who is represented by a competent barrister may have a better chance of winning than a person whose barrister is less experienced

  • that is, a competent barrister may have greater skill at preparing a case and bringing out the desired evidence
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4
Q

why can obtaining legal aid be challenging in civil law?

A
  • most grants of legal assistance are for criminal or family law matters
  • VLA does not give advice on every type of case
  • VLA is financially limited, that is, civil cases need to be perceived to be successful
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5
Q

strengths of legal practitioners

A

experts who are able to help the parties navigate the civil justice system

  • conduct opening and closing addresses, cross-examination of witnesses

have objectivity in being able to make decisions in the civil case

  • self-represented parties may become too emotionally invested in the case to be able to make objective decisions

help avoid delays that may arise with self-represented parties

  • processes slow down so the self-represented party can understand what is going on, which is not time-efficient, so legal practitioners are able to make quick yet effective decisions
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6
Q

weaknesses of legal practitioners

A

not all legal practitioners are equal in level of experience and skills

  • some legal practitioners may be more experienced than others, which can impact the quality some may receive from legal service

not everyone is able to afford legal representation

  • parties are left to self-represent themselves in order to not incur the expense

even though a self-represented party can afford a lawyer, this could be a great expense for them and their family

  • adverse cost orders may also result if they lose
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7
Q

compare the role of a legal practitioner in a civil dispute to that of a criminal case

A

similarity
to remain objective

differences
standard of proof

civil

  • the legal practitioner must present a case that shows, on balance of probababilities, that their party is more likely to be in the right or the other party is more likely in the wrong
  • this standard of proof is weaker compared to criminal (requires documents)

criminal

  • the legal practitioner must present a case that shows, beyond reasonable doubt, that their party is not guilty (or the other party is guilty)
  • this standard of proof is stronger compared to civil (requires physical evidence)

e.g.

  • a legal practitioner in both, a civil dispute and a criminal case, must remain objective.
  • both differ in regards to the standard of proof, as a legal practitioner in a civil dispute must prove that the defendant is liable on the balance of probabilities, whereas a legal practitioner in a criminal case must prove that the accused is guilty beyond reasonable doubt.
  • both also differ in that the standard of proof in a civil dispute is weaker compared to the standard of proof in a criminal case, as a civil dispute allows for some reasonable doubt to exist and mostly collects documents, whereas a legal practitioner in a criminal case must present sufficient evidence such as physical evidence to the court in order to show no doubt and succeed in their case.
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8
Q

define class action

group proceeding / representative proceeding

A

a type of proceeding where a group of people (seven or more), who all have claims against the same party, join together in a proceeding

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9
Q

what must a class action include in order to commence?

A
  • seven or more people have claims against the same person
  • those claims relate to the same, similar or related circumstances
  • the same issues needed to be decided
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10
Q

how do class actions work?

A
  1. normally commenced by a single person who ‘represents’ the group, known as the lead plaintiff
  2. the people who form part of the group are known as group members
  3. the group members do not actively participate in the proceeding and are not named on the court documents
  4. the group is boardly described in the statement of claim
  5. once the group is described in the statement of claim, every person in that group is assumed to be part of the representative proceeding unless they decide to ‘opt out’ of it by filing a notice with the court in a specified form
  6. if a person opts out, then they will not be bound by the decision or settlement, and they may be able to pursue the defendant in separate legal proceedings
  7. the group may be described in a way that requires people to ‘opt in’ rather than ‘opt out’
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11
Q

explain the costs of class actions

if a class action fails / if a class action succeeds

A

if a class action fails, then the lead plaintiff alone is responsible for the costs of the proceeding as well as any potential adverse costs order

  • not everyone may be prepared to be the lead plaintiff because of this risk

although the lead plaintiff is responsible for the costs if the class action fails:

  • normally, a law firm will act on a ‘no win, no fee’ basis
  • a litigation funder (a third party who pays for some or all the costs and expenses associated with initiating a claim in return for a share of the amount recovered) is provided

if a class action succeeds, then the group members will share the amount recovered, as well as sharing the amount with the litigation funder/law firm

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12
Q

list when class actions are appropriate

6

A
  • if there are seven or more people with a claim against the same defendant
  • if a law firm or litigation funder is willing to pay to avoid the lead plaintiff from having the burden of costs
  • if there is a person willing to be the lead plaintiff
  • if the claims of the group members relate to the same or similar circumstances
  • if no group member has suffered significantly more than the other group members
  • if the size and nature of the claim is not small
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13
Q

strengths of class actions

A

group members do not pay any costs

  • increases access to justice for those who cannot afford the costs of initiating a claim themselves

a more efficient way of dealing with a number of claims, as the court does not have to deal with multiple claims about the same issue separately

  • saves the court’s time and resources
  • reduces costs for the defendant

the use of litigation funders and law firms who act on a ‘no win, no fee’ basis if a class action fails, or receives a fee if the class action succeeds

  • increases access to justice if there is nobody prepared to act as the lead plaintiff

a more convenient way for group members who wish to pursue a claim but do not want the burden and inconvenience of having to actively participate in proceedings

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14
Q

weaknesses of class actions

A

a large cost burden is imposed on the lead plaintiff if the class action fails

  • only if there is no litigation funder or ‘no win, no fee’ law firm

even though a class action avoids dealing with multiple claims about the same issue, the size and nature of a class action still takes up a significant amount of the court’s time and resources

a fear that class actions provide an opportunity for class action lawyers to ‘take advantage’ of class actions

  • a class action lawyer may get more out of a class action that the group members themselves
  • while a group member may receive a very small amount, the plaintiff law firm may gain much more through the costs to be paid to them

litigation funders can take up a large percentage of the total amount awarded to group members

  • reduces the amount paid to group members
  • the amount paid to group members does not reflect their actual loss

some group members may not be up-to-date with the proceeding or even know if the proceeding is ongoing

  • difficult to communicate if there are many group members
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15
Q

what is Consumer Affairs Victoria (CAV)?

A

a complaints body (a dispute resolution body)

  • regulates consumer law
  • ensures that Victorians are informed about consumer laws, and ensures that businesses are complying with those laws
  • provides information about consumer law and free dispute resolution services
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16
Q

the purposes of Consumer Affairs Victoria (CAV)

2

A

to help people come to an agreement about how to resolve their disputes efficiently without any costs to them

  • allows people with smaller claims (in relation to CAV’s jurisdiction) to obtain a dispute resolution service that is not expensive or will not take too long to resolve
  • conciliation, a dispute resolution method, is used by CAV, which saves costs and time that would have been incurred in court (hearing and filing fees, disbursements etc)

to try to help parties reach a resolution that is consistent with the law

  • CAV has a compliance focus to ensure that any person or business that has not complied with the law is aware of that and does not breach the law again
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17
Q

what is CAV’s jurisdiction?

A

disputes between purchasers and suppliers or consumers and suppliers about the supply or possible supply of goods and services

  • a product that is faulty, damaged, not fit for purpose or cannot be repaired
  • a service that is not completed with care and skill, took too long, caused damage or is not fit for purpose
  • buying cars, in relation to warranties, the price charged or the condition of the car

disputes between a tenant and landlord

  • rental agreements, rent, signing or ending a lease, rental applications or repairs

CAV only accepts complaints from consumers and tenants, not from businesses and landlords

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18
Q

what dispute resolution method does CAV use?

A

conciliation

  • involves the assistance of an independent third party who helps the parties reach a mutually acceptable decision
  • the decision is not legally binding on the parties, unless the parties have entered a terms of settlement

the conciliator:

  • does not make the decision on behalf of the parties
  • listens to the facts
  • makes suggestions
  • explores possible solutions with the parties to help them come to their own decision
  • is usually someone with specialist knowledge of the nature of the dispute
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19
Q

list when Consumer Affairs Victoria (CAV) is appropriate

8

A
  • if the dispute is within CAV’s jurisdiction
  • if the complaint justifies or needs CAV’s involvement
  • if there has been a breach of legislation or a failure to comply with legal obligations by the landlord or business
  • if the issue is reasonably likely to be resolved (through negotiation, does not need to be resolved with a binding order on the parties, takes conciliation seriously)
  • if the issue has not already been dealt with by CAV or VCAT (if not, will have to go court)
  • if the consumer is vulnerable or disadvantaged
  • if the matter is not too big or complex for CAV
  • if there are no other or better ways to resolve the dispute
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20
Q

strengths of Consumer Affairs Victoria (CAV)

A

CAV’s conciliation is free

  • accessible to all Victorians, regardless of their ability to pay

CAV’s conciliation process is informal, and can be conducted over the telephone

  • removes many anxieties people have with the formalities of a courtroom

ensures procedural fairness

  • allows both sides the opportunity to present their case and challenge the other side’s case

assesses disputes individually, case by case

  • reduces wasting time and resources on disputes that are clearly unlikely to be resolved through conciliation

CAV’s conciliation ensures that the parties reach a resolution themselves

  • the parties are more likely to accept an outcome if it has not been imposed or forced on them
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21
Q

weaknesses of Consumer Affairs Victoria (CAV)

A

conciliation is limited to consumer or tenant disputes

  • no power to assist with many other types of civil disputes

no power to compel the parties to undergo conciliation

  • a willing party may not be able to undergo conciliation if the other party is not willing

no power to enforce any decisions reached by the parties in conciliation, unless the parties have entered a terms of settlement

  • one party may just ignore the outcome, which leaves the parties no better off than they were before conciliation (waste of time)

CAV’s conciliation services are limited

  • not all cases are accepted because of CAV’s criteria and prioritisation of cases

not appropriate for large and complex disagreements

  • disagreements such as difficult legal questions or several parties involved
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22
Q

what is Victorian Civil and Administrative Tribunal (VCAT)?

A

a tribunal that is less formal than courts, and is intended to be a cheaper and more efficient way of resolving disputes

  • hears and determines a range of civil and administrative cases in Victoria
  • divided into five divisions: civil, human rights, administrative, residential tenancies and planning and environment

established in 1988, when the Victorian Parliament passed the Victorian Civil and Administrative Tribunal Act 1998 (Vic)

the governing body of VCAT consists of:

  • president (a supreme court judge)
  • vice-presidents (county court judges)
  • deputy, senior and ordinary members
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23
Q

state the purposes of VCAT

A

low cost
accessible
efficient
independent

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24
Q

how does VCAT achieve their purpose of low cost?

A

three tiers or levels of fees: corporate, standard and health care card holder

  • the aim is to make corporate applicants pay higher fees, and those who are less able to pay (being health care card holders) pay nominal to no fees

no hearing fees for many claims

  • some claims may incur hearing fees

in many lists, the parties do not have to go through pre trial procedures

  • pre trial procedures often add to the legal costs incurred by the parties
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25
Q

how does VCAT achieve their purpose of accessible

A

VCAT conducts hearings in various locations in Victoria

VCAT allows people to make applications online and conduct hearings online or by phone

VCAT hearings are less formal than court hearings

  • makes people feel more comfortable in using its services
  • no pre trial procedures or formal evidence processes
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26
Q

how does VCAT achieve their purpose of efficient?

A

reduce waiting times

  • makes processes more efficient
  • wait times vary from list to list
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27
Q

how does VCAT achieve their purpose of independent?

A

VCAT’s members are independent and will act as unbiased adjudicators

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28
Q

what is VCAT’s jurisdiction?

CHARP

A

VCAT has the exclusive jurisdiction (only VCAT has the power to hear and determine that type of dispute, and not a court) to hear certain types of claims

civil (between consumer and service, building works, retail tenancies and sale and ownership of property)

  • products and services bought or sold
  • quality of domestic or commercial building works
  • loss or damage because of water flowing onto property

human rights (guardianship, equal opportunity, racial and religious vilification, health and privacy information and disability matters)

  • discrimination complaints (e.g. relating to equal opportunity, harassment or vilification)

administrative (between people and the government/authorities)

  • cost disputes between lawyers and clients
  • disputes about a decision made by a government agency

residential tenancies (between tenant and landlord)

  • unpaid rent
  • excessive rent increases
  • repairs, maintenance, damages or changes to property

planning and environment (between people and the councils/authorities)

  • review about a decision by council to grant or not grant a permit
  • disputes about the valuation of a land for the purposes of paying rates and taxes
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29
Q

what are some disputes that VCAT cannot hear?

A
  • class actions
  • between employers and employees
  • between neighbours
  • between drivers in car accidents
  • where the parties are residents of different australian states
  • where the commonwealth is one of the parties
30
Q

what are the dispute resolution methods VCAT use?

A

mediation

  • fast track mediation and hearing

compulsory conference

the final hearing

31
Q

explain mediation and fast track mediation and hearing

VCAT dispute resolution method

A

mediation

  • involves a third party known as a mediator, who is also a VCAT member, facilitating discussion between parties to assist them to reach a resolution
  • the parties discuss the issues involved, develop options, consider alternatives and reach an agreement through negotiation
  • mediation is not legally binding
  • upon resolution, parties choose to enter a terms of settlement, which VCAT can then turn into a final order, making the final order legally binding and enforceable

fast track mediation and hearing

  • disputes about goods and services in the civil claims list valued up to $10000 may be listed for a fast track mediation and hearing
  • a qualified mediator conducts the mediation
  • if the dispute does not settle at mediation, then the matter will be listed for hearing before a VCAT member on another day
32
Q

explain compulsory conference

VCAT dispute resolution method

A
  • confidential meetings during which the parties discuss ways to resolve their dispute in the presence of a VCAT member
  • compulsory conferences use a conciliation process
  • the VCAT member who assists in the process may suggest forms of settlement, and may explore the likely outcomes of the case if it goes to a hearing
  • a member may give a view as to the possible decision that may be reached at hearing
  • the VCAT member who assists in the compulsory conference generally will not hear the case at the final hearing, and will not tell the member presiding over the hearing what happened at the compulsory conference
33
Q

explain the final hearing

VCAT dispute resolution method

A
  • if the matter has not settled at mediation, at compulsory conference or in any other way, it will be listed for a final hearing before a VCAT member
  • the parties will be given an opportunity to present their case, which will include giving and hearing evidence, asking questions of witnesses and providing documents which support their case
  • a VCAT member will oversee the hearing and make a binding decision on the parties
  • VCAT must conduct each proceeding with as little formality and technicality as possible, though it can adopt rules of evidence or procedures if necessary
  • VCAT also has an obligation to act fairly when resolving disputes
34
Q

list when VCAT is appropriate

8

A
  • if the dispute is within VCAT’s jurisdiction
  • if the dispute cannot be resolved through just negotiation or mediation
  • if the parties are able to pay the fees for the list (depending on the nature of the case)
  • if the parties do not want more avenues of appeal (as they are limited to appeals on a question of law)
  • if the parties take VCAT seriously
  • if the size and complexity is suitable
  • if the parties want a less formal way of resolving their dispute
  • if the parties do not prefer the court to resolve the dispute because of the doctrine of precedent (VCAT cannot make new laws, can only apply law made by the parliament or the courts; decisions made in VCAT do not become binding on future cases, can only bind on the parties)
35
Q

strengths of VCAT

A

VCAT is normally cheaper than courts

  • low application fees, usually lower or no hearing fees
  • the costs saved by not having to undertake expensive pre-trial procedures and parties being able to represent themselves

VCAT generally offers a speedy resolution of disputes

  • the average time from application to resolution of disputes is as low as two to three weeks

an informal atmosphere at VCAT

  • ensures that parties can put their case forward in their own way, which can make people feel more comfortable with the process

flexibility of VCAT’s hearing processes

  • ensures fairness and equality for an unrepresented party, because the member can aim to ensure an unrepresented party has an equal opportunity to understand processes and present their case

each VCAT list operates in its own specialised jurisdiction, resulting in tribunal personnel developing expertise in resolving disputes in that area of law

a decision made in a final hearing is binding on the parties, which means it is enforceable (unlike a decision that may have been reached by the parties themselves)

36
Q

weaknesses of VCAT

A

the costs of taking a matter to VCAT can sometimes be as high as, if not higher than, court costs

  • due to increased use of legal representation and changes to VCAT’s fees

VCAT has suffered delays in some of its lists, including following the COVID-19 pandemic

VCAT may be too informal

  • some parties may feel uncomfortable or ill-equipped to deal with the lack of formal procedure or may prefer a formal process of giving evidence
  • others may argue that this is not the right way for the ‘truth’ to come out

VCAT is not a court, and it cannot create precedents

  • can only apply law made by parliament or the courts
  • its own decisions are do not form binding precedent in that they do not become binding on future cases

decisions can only be appealed on a point of law, and to the Supreme Court, making it complex and expensive to appeal a case

VCAT orders will still need to be enforced through the courts, which takes a little longer, rather than VCAT being able to assist in enforcement

37
Q

list when courts are appropriate

2

A
  • if the dispute falls within the court’s jurisdiction
  • if there are no other or better ways to resolve the dispute
38
Q

what are the courts’ jurisdiction?

A
  • the county and supreme have an unlimited jurisdiction
  • the magistrates’ court can do claims up to $100000

courts cannot hear:

  • domestic building disputes
  • retail tenacies
  • residential tenacies
  • planning disputes

this is because these matters are exclusive to VCAT

39
Q

strengths of courts

A

various pre-trial procedures allow the parties to reach an out-of-court settlement

  • this can potentially save the costs, time and stress of going to trial
  • a more efficient and timely resolution of dispute
  • have an opportunity to know the strengths and weaknesses of each other’s case, which may help narrow the issues in dispute or even help resolve the matter before trial

courts use processes to ensure procedural fairness

  • the judge can give directions and orders to ensure the dispute is resolved in a timely manner
  • the parties undertake procedures such as discovery which ensures both parties know the case that is put against them

court processes allow interaction between the court and the parties

  • pleadings provide the court with a written record of the claim, and at directions hearings, the parties can raise issues with the judge and the other side that may need to be resolved

the court makes a binding decision, meaning that the outcome is certain, and is enforceable

40
Q

weaknesses of courts

A

cases taken to court often suffer delays (fairness)

  • pre-trial procedures take a long time to complete
  • discovery of documents in particular adds to the time it takes for a trial to be heard and determined
  • judges sometimes take too long to deliver their decision, and if there is a jury, the trial may take longer

the costs in having a dispute resolved in court may restrict access to the courts (access)

  • may jeopardise parties being treated equally because of their socio-economic status, including the costs of engaging a lawyer

many of the procedures are complex and difficult to understand without a lawyer (fairness - cannot participate properly)

  • these include pleadings and directions, and trial procedures such as cross-examination of witnesses

the formalities of the court can be stressful (access)

  • inaccessible to some parties because of formalities
  • the idea of party control can be stressful and time-consuming for a party that needs to gather evidence

courts do not allow for ‘compromise’ or ‘win-win’ situations

  • their decisions determine who bears responsibility for the plaintiff’s loss, if any, and what remedy should be awarded
41
Q

what are the two factors that impact the ability of the civil justice system to achieve the principles of justice during a civil dispute?

A

costs

time

42
Q

explain costs

a factor impacting the ability of the CJS to achieve the POJs

A

even though some parts of our civil justice system aim to reduce costs, many people will still pay high costs to have their civil disputes resolved

high costs can:

  • sometimes discourage or prevent people from pursuing civil claims or defences
  • may mean they do not adequately make out their case because they represent themselves, but lack the skills, experience and objectivity to do so

this includes:

  • costs of legal representation
43
Q

explain legal costs

a factor impacting the ability of the CJS to achieve the POJs

A

the cost of legal representation

  • everyone has the right to legal representation, but in reality not everyone can afford this right

the nature of the court system relies on both parties having good legal representation

  • the chance of each party winning the case is maximised, the truth will come out, and a fair outcome will be achieved
  • the amount of money a party spends on representation often depends on the nature of the dispute and the way the case needs to be resolved

court costs and disbursements

  • engaging with expert witnesses and and mediators
  • filing and hearing fees
  • the use of a jury (if a party requests one)
44
Q

how does legal costs prevent the civil justice system from achieving the principles of justice ?

high costs

A

high costs increase self represented parties in the courts

  • many people need some assistance to help them navigate the system
  • if one of the parties is poorly represented, or not represented at all, this can have a negative impact on their ability to make out their case (as they lack skills, experience and objectivity)

most civil parties are not able to access legal aid

  • most of the legal aid funding is spent on aid for criminal and family law cases, which limits access for those with other cases

some people pursuing civil disputes are forced to settle or withdraw their claims because of the costs involved in taking a matter to trial, and some are not able to initiate a claim at all

the assistance given by the courts or tribunals to self-represented parties can help overcome some of the issues faced by a party who is not able to pay for private legal representation and is not eligible for legal aid

  • the assistance does not completely overcome the issues faced by a self-represented party
  • the assistance given to a self-represented party cannot extend to a person advocating (arguing) for that party
45
Q

measures to address costs

A

alternative dispute resolution methods such as mediation and conciliation can avoid a final hearing or trial in courts or at VCAT

parties:

  • avoid costs incurred in a civil case (expert witnesses, jury etc)
  • avoid costs involved with pre-trial procedures and trial procedures
  • avoid adverse costs orders
  • avoid costs as the earlier a dispute is resolved, the more money is saved

a saving for the court, VCAT or the entire civil justice system

  • alternative dispute resolution methods save the time and costs of the courts and tribunals
  • higher costs may result as courts can redirect the parties to use other dispute resolution bodies

the use of CAV and VCAT to help resolve disputes without the need to go to court

  • these bodies provide no or low-cost dispute resolution services and assistance
  • legal representation is not generally required (and is often discouraged)

the use of case management powers in court

  • try to narrow the issues in dispute
  • ensure a cost-effective resolution to the dispute

a number of bodies and organisations in Victoria provide pro bono (free) assistance to individuals

46
Q

ways in which costs in the civil justice system link to the principles of justice

A

fairness

  • high costs prevents self represented parties from participating in the civil justice system the same way as those with legal representation - cannot present their case well
  • pay to have a jury to have a more impartial judgement (not only judge)
  • gathering sufficient funds/ finding alternatives can increase delays

equality

  • cheaper alternative (diff treatment) of arbitration still makes sure both sides are able to be on the same level (business vs normal person)
  • imbalance in expertise of legal representation can cause disparity in trial

access

  • high costs of court cause people to go to mediation or whatever which allows them to be more engaged because they are able to come to their own decision
  • high costs prevent engagement
  • being self represented may limit extent to being on an informed basis
47
Q

explain time

a factor impacting the ability of the CJS to achieve the POJs

A

quick and efficient hearings are often the fairest

if a dispute takes a long time to be heard, or the hearing itself is very lengthy, it can become increasingly unfair to one or both parties

delays have an impact on parties to a civil dispute as:

  • some people choose not to pursue a legal claim because it would take too long to resolve
  • delays in getting an outcome can cause stress, wasted time

the time it takes for courts and VCAT to resolve disputes can vary greatly depending on:

  • the complexity of the case
  • the type of claim
  • the number of parties involved
  • where the claim was issued
48
Q

how does time prevent the civil justice system from achieving the principles of justice?

a factor impacting the ability of the CJS to achieve the POJs

A

backlogs (cases that are ‘in line’ for a hearing or trial, similar to a pending status, which need to be determined and resolved)

  • while delays in having cases listed for hearing or trial (that is, obtaining a hearing date) have improved in recent years, it largely depends on the court or the VCAT list

pre trial procedures

  • pre-trial steps can be complex and lengthy
  • discovery can take months

evidence gathering and preparations

  • the time it takes for the parties to get a case ready for hearing (including gathering evidence and preparing for the hearing)
49
Q

measures to address time (delays)

A

the use of case management powers

  • a pro-active judge will help parties narrow the issues in dispute, undertake only those steps that are relevant, and keep to the timelines set by the court
  • can result in modification of procedure rules, modification of rules relating to pleadings, discovery and evidence preparation
  • judges achieve this by making orders along the way and requiring them to be complied with

giving the courts greater control over cases ensures that disputes are resolved in a more timely and cost-effective manner

the courts can:

  • order that the parties attend mediation or some other form of dispute resolution method
  • limit the scope of discovery to ensure that it does not take too long
  • order that no pleadings are required
  • restrict the time for final hearings, including limiting the number of witnesses and the time to make submissions or cross-examine witnesses

VCAT has established dedicated programs to manage delays

  • a pilot program with the County Court under which judges would hear and determine complex building disputes waiting in the Building and Property List
  • a backlog recovery program to deal with the significant backlogs in the Residential Tenancies List
  • in VCAT, some cases are now decided based solely on written documents provided by the parties, which results in faster decisions made without the need for parties to present their case at a hearing

the courts are increasingly using online methods to resolve disputes, including holding hearings and even mediations online

this can help the courts:

  • be more efficient (by avoiding the need to physically attend court)
  • provide opportunities to access hearings remotely when parties may not otherwise be able to attend in person
50
Q

ways in which time (delays) in the civil justice system links to the principles of justice

A

fairness

  • measures allow Victorians to participate
  • presence of delays limits participation
  • case management - the judge is impartial - this could do the reverse

equality

  • case management ensures that both parties have an equal opportunity to present their case (limiting or removing irrelevancy - this could also do the reverse)
  • cases being treated the same way may cause disparity (cases requiring more attention having to wait, other cases with priority)

access

  • VCAT’s dedicated programs to address delays allows Victorians to use the civil justice system/resolve their disputes
  • delays limit the ability to use the civil justice system (engagement)
51
Q

define remedy and state its purpose

A

any order made by the court that is designed to address a civil wrong or breach of rights

  • the most common remedies are damages and injunctions

the purpose of a remedy:
to restore the plaintiff, as far as possible, to the position they were in before the wrong occurred

its purpose should be included in questions regarding remedies

52
Q

define damages and state its purpose

A

an amount of money awarded to the plaintiff to be paid by the defendant

the purpose of damages:
to compensate for the losses or injury that the plaintiff has suffered

losses such as:

  • financial loss
  • physical or mental loss
  • loss of reputation
53
Q

state the types of damages

A

compensatory damages

  • special, general and aggravated

nominal damages

exemplary damages

contemptuous damages

54
Q

explain compensatory damages

overall (not the three types)

A

an amount of money awarded to a plaintiff for harm, injury, or other losses suffered

the purpose of compensatory damages:
to restore the party whose rights have been infringed by compensating them for losses suffered

three types of compensatory damages:

  • special (or specific) damages
  • general damages
  • aggravated damages
55
Q

explain special (or specific) damages

a type of compensatory damages

A
  • aims to compensate the plaintiff for losses that are quantifiable (have a precise monetary value and can be easily calculated)

examples:
medical expenses, loss of wages, property damage, loss of profits, loss of assets or other property such as personal good

56
Q

explain general damages

a type of compensatory damages

A
  • aims to compensate the plaintiff for losses that are not easily quantifiable and will be calculated by the court based on evidence

examples:
pain and suffering, long term job aspects, loss of amenity, physical impairment or disfigurement and mental health or psychological injuries

57
Q

explain aggravated damages

a type of compensatory damages

A
  • aims to compensate where the court believes the plaintiff suffered humiliation, embarrassment or insult because of the defendant’s conduct

examples:
humiliation, distress, embarrassment or insult

58
Q

explain the ability of compensatory damages to achieve their purpose

can / cannot achieve

A

if the loss suffered was financial loss only

  • it can be easily calculated, and the plaintiff may be able to be restored to their original position
  • loss of wages, medical expenses, and loss of profits are not difficult to calculate and can be compensated by way of special damages
  • if pain and suffering, mental anguish, disfigurement or impairment, these losses are not easily quantifiable, and in some situations no amount of damages can ever restore a plaintiff to their original position; they can only compensate the plaintiff

if the damages are paid

  • if the damages are not paid, then they will not have returned the plaintiff to the position they were in

if other orders or remedies are not required

  • if required, this means that compensatory damages cannot compensate for overall/other aspects of the loss or harm, so additional remedies may be required

if there are no caps (or limits) on the amounts that can be awarded

  • if there are caps, this may limit the ability of damages to achieve its purpose

if sufficient evidence is before the court about unquantifiable losses

  • a court or tribunal can only calculate losses if they have evidence about them, such as evidence about lost earning capacity or about the impairment suffered by the plaintiff
  • if the court does not have this evidence (e.g. the plaintiff is not represented and does not understand the processes) then the damages awarded may not be accurate

if future loss is not suffered

  • if future loss is suffered, harder to identify and quantify
59
Q

explain nominal damages

petty damages

A

awarded in cases where the plaintiff may not be seeking a large amount of money, but just want their infringed rights to be acknowledged

  • the plaintiff wants a small amount of money to confirm that their rights have been infringed even though the losses were not substantial
  • small amount received, infringed rights acknowledged

the purpose of nominal damages:
to uphold the plaintiff’s rights without awarding any substantial amount of damage

60
Q

explain the ability of nominal damages to achieve their purpose

can / cannot achieve

A

if the plaintiff suffered loss

  • if the plaintiff did suffer loss, but there was no evidence of that loss, or the court was not convinced there was loss, the plaintiff’s rights may not be fully upheld

the amount of the damages

  • as costs are incurred by the plaintiff by conducting the civil claim, they may suffer additional loss
  • if the amount is too small, some people may not view the damages as upholding the plaintiff’s rights

the costs incurred

  • the plaintiff may have incurred significant costs to initiate and conduct the civil claim, which cannot be compensated through nominal damages
  • although nominal damages uphold the plaintiff’s rights, the plaintiff may have suffered an additional form of loss through payment of costs

if there is sufficient evidence to take the dispute to court

  • if the plaintiff is lacking evidence, then the plaintiff may not be able to prove that an infringement of rights occurred
61
Q

explain contemptuous damages

A

awarded when a court, or tribunal, believe that although the plaintiff has the legal right to damages, they don’t have a moral right

  • the court/tribunal does not think the plaintiff deserves to be paid damages, and so small damages might be awarded to show contempt (disagreement) for the claim being made
62
Q

explain exemplary damages

punitive damages

A

a very substantial amount of money awarded to show strong disapproval of the defendant’s conduct

the purpose of exemplary damages:
to punish the defendant for an extreme infringement of rights and to also deter others from undertaking the same actions

63
Q

explain the ability of exemplary damages to achieve their purpose

can / cannot achieve

A

the amount of exemplary damages

  • if the amount of exemplary damages is small, it may not be sufficient to punish the defendant or act as a deterrent
  • if the amount is high, it is more likely to punish and deter

the ability of the defendant to pay

  • regardless of whether the amount is small or large, the ability of the defendant to pay is important
  • if the defendant has little money, they may not pay at all and so they may not be punished
  • if they have significant amounts of money, it may act less as a punishment

the extent to which the award of damages is known

  • to deter others, the award of exemplary damages must be known to other people
  • this means it should be publicised in some way
64
Q

define injunction and state its purpose

A

a court order directing someone to stop doing a certain act, or compelling someone to do a certain act

the purpose of an injunction:
to rectify a situation caused by the person who was found to be in the wrong

two types of injunctions:

  • restrictive injunction
  • mandatory injunction
65
Q

define restrictive injunction

A

orders a person to refrain from undertaking an action

the purpose of a restrictive injunction:
to prevent harm, or further harm, from being caused to the plaintiff

  • that harm may be irreparable or permanent, such as knocking down a building
66
Q

define mandatory injunction

A

orders a person to do a particular act

the purpose of a mandatory injunction:
to require the defendant to take action to prevent further harm from being suffered by the plaintiff or to take action that will remedy the situation

67
Q

explain the ability of restrictive injunctions to achieve their purpose

can / cannot achieve

A

if the defendant will comply

  • if the defendant does not comply with the injunction, it may not prevent further harm

if harm has not already been suffered

  • if the plaintiff has already suffered loss or damage, an injunction alone may not be able to address that harm
  • damages may also be required

if a restrictive injunction alone is sufficient (enough)

  • a mandatory injunction may also be required.
  • a restrictive injunction may stop the defendant, but a mandatory injunction may also be required to force the defendant

if there are no other orders that may be required

  • injunctions do not address the costs, stress and inconvenience involved in taking the action, so they do not fully address all the harm that may have been suffered
68
Q

explain the ability of mandatory injunctions to achieve their purpose

A

if the defendant will do what is ordered

  • the defendant may ignore the order
    and not do anything, in which case the purpose will not be achieved
  • the defendant may take some steps, but not others, in which case the situation may not be fully remedied

if harm has not already been suffered

-if the plaintiff has already suffered loss or damage, an injunction alone may not be able to address that harm
- damages may also be required

if a mandatory injunction alone is sufficient (enough)

  • a restrictive injunction may also be required

if there are no other orders that may be required

  • injunctions do not address the costs, stress and inconvenience involved in taking the action, so they do not fully address all the harm that may have been suffered
69
Q

evaluate the ability of the the civil justice system to achieve the principles of justice

A

within the civil justice system, although it is able to achieve the following principles of justice: fairness, equality and access, in certain areas it is limited in doing so

achieved
the civil justice system possesses open processes

  • the courts are open to the public, allowing scrutiny of choices and procedures
  • enables the fairest possible outcome possible as under public judgement
  • key personnel more inclined to give a fair judgement

not achieved
even in open processes, there is no guarantee that key personnel will be fully impartial

  • although qualified, are also human
  • are capable of holding subconscious biases even if they do not intend to do so
  • this affects true fairness of outcomes made within the civil justice system
  • limits and varies the extent to which justice is achieved for individuals participating in court to resolve disputes
70
Q

evaluate the ability of the civil justice system to achieve the principles of justice

access

A

achieved
ensuring that parties enter court procedures on an informed basis

  • done through the presence of legal practitioners, individuals trained with expertise on navigating the civil justice system - court processes, knowledge on certain areas of law
  • having a legal practitioner to assist and represent the parties enables them to be more informed about the civil justice system, despite not being certified and educated

not achieved
not all legal practitioners are equal in level of experience and skills

  • limits the extent to which certain individuals are on an informed basis
  • acquiring a legal practitioners depends on the costs associated with expertise, skill and experience
  • some may be financially limited, so they may acquire a legal practitioner who is not as competent as the other party who may not be financially limited, thus acquiring a more competent lawyer
  • puts them at a loss in terms of being educated and supported within the complex environment of the civil justice system
  • concerning as the nature of court relies on both parties being able to present their case well with good legal representation in order to make a just outcome
  • if one party has a more competent lawyer, then that party would be on a more informed basis

not achieved
a lack of number of both supreme and county courts for more complex civil disputes

  • those may withdraw or drop their case if taking too long, due to only these courts having the capability of dealing with the severity and complexity of the case, while others are not capable
  • other courts or bodies may not be what the parties are looking for, such as a formal atmosphere or legally-binding decision

overall, even though the civil justice system is able to achieve the principles of justice, it is only to a limited extent

LEGAL STUDIES 3/4 (4 decks)

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