U3AOS2 Flashcards
Fairness (looks like in the Civil Justice System)
Focuses on processes and not outcome, unbiased decision maker who only acts on evidence, no discrimination, without fear or favour, listen to both sides, reasons for decisions, clear and uniform rules of evidence and procedure, parties able to understand and participate in processes involved and in their case, hearing rule (parties have a right to know key elements of the case against them and present their own case), ability to access legal representation and/or understand court processes/terminology, opportunity to appeal to correct any mistakes made in the original process/decision.
Equality (looks like in the Civil Justice System)
Focuses on the characteristics of the parties
No discrimination, even playing field between plaintiff and defendant, clear and uniform rules of evidence and procedure, ability to access legal representation and/or understand court processes/terminology (sometimes judge will have to level the playing field by assisting a self-represented party, but should not advocate for them
Access (looks like in the Civil Justice System)
Financial means to get quality legal representation, being able to be part of a representative proceeding, availability of different methods and institutions to resolve the civil dispute, which are usually much quicker and cheaper than the court system, formality/complexity of court proceedings, opportunity to appeal, delays/backlogs in court system and VCAT.
The Burden of Proof
Refers to the responsibility of a party to prove the facts of the case. Rests on the plaintiff as they initiated the case, but will be on defendant if they make a counterclaim or raise a defence.
The Standard of Proof
Refers to the strength of evidence needed to prove the case. ‘On the balance of probabilities’.
The Representative proceedings (AKA: Class Action)
Where seven or more people have a claim based on similar or related facts against the same defendant, file a claim in the name of one person(lead plaintiff). Claims must relate to the same, similar or related circumstances and the same issues must be decided in the case.
Example of RP:
Product liability class action:
A group of consumers who have purchased goods or services have all suffered from the same loss or damage.
Natural disaster climate action:
Group of members suffered loss or damage as a result of the same natural disaster (e.g. bushfire or flood).
Benefits of RP
Group members can share the cost, allowing people to pursue civil actions they might not have been able to afford themselves.
More efficient for the court system to deal with one case rather than lots of cases about the same issue.
Sometimes litigation funders are prepared to fund the class action in return for a percentage of any settlement or damages, allowing group members to pursue a claim even when they do not have the fund themselves. Example; 2009 Black Saturday Bushfire Class Action.
However, Individuals will have less say in the way the cases are pursued. Having to pay extra legal costs, and it can add to the complexity of the case.
Downsides of RP
For lead plaintiff:
- cost liability (not an issue because most are litigation funded or ‘no win no fee’
- stress/time of instructing lawyers, attending mediation/trial, giving evidence etc
for everyone:
- may get less compensation than if they pursued it individually
- litigation funders will take a % of the amount reducing how much each member is paid
- complexity of class actions-higher legal costs, taken out of each member’s payment
for group members:
- no decision making control (no direct participation, instructions to lawyers)
- delays due to complexity (Black Saturday bushfire group members started receiving payouts 7 yrs after actions started)
Five Factors to consider when initiating a civil claim (CLENS)
Costs, Limitation of actions, Enforcement issues, Negotiation options, Scope of liability.
Limitations of actions
Refers to the restriction placed on the time which a civil claim can be commenced.The Limitation Action Act 1958 (Vic) imposes this.
Limitations of Actions exist so that:
The defendant does not have to face an action after a significant amount of time.
Evidence isn’t lost and people can still remember what happened
Disputes can be resolved quickly as possible to promote social cohesion.
Different limitation periods for different types of actions:
Defamation - one year
Personal Injury torts (e.g: Negligence) - three years from the date of discovery of the injury or 12 years from the date of the act which caused the injury).
Breach of Contract or Non- personal injury torts (e.g: Negligence- Six years).
The Plaintiff can apply to the court to extend the limitation period and the court may do so if it finds that it is “just and reasonable”.
Scope of Liability
2 questions the plaintiff needs to consider:
Who are possible defendants?
An insurer
An employer
A person involved in wrongdoing.
What is the extent of the defendant’s liability?
Often it arises in negligence claims where the defendant may claim contributory negligence (where the plaintiff is also partly to blame for the harm caused, e.g: 50%), therefore if this is true, then their damages are reduced by that amount.
Costs
The plaintiff needs to consider their likely chance of success, whether any potential settlement or damages will be more than the costs of the claim, and where they can afford their costs + potentially part of defendants costs if they were to lose the case.
Parties are responsible for paying their own costs. The costs may include:
Legal representation (solicitors and barristers). The expertise of the legal practitioners, the size of the case.
Disbursements
Filing fees/Court fees- (there may be jury fees which is around $4900, if the plaintiff chooses to empanel a jury.
Mediation fees- (Mediator’s fees are anywhere between $2000 and $20,000 per day.
Expert Witness fees
Additionally, If the plaintiff is unsuccessful in their claim, they may also be ordered to pay part of the defendant’s legal costs. This is known as “adverse costs order”.
Negotiation options
The plaintiff considers whether the dispute can be resolved outside of the court or tribunal through negotiation with the defendant.
Possible options:
Informal discussions (to identify the issues in a dispute, what the plaintiff is seeking and what the defendant is prepared to do to resolve the dispute).
Facilitated negotiations (arranging with an independent third party such as a mediator to help resolve the dispute).
Arranging more formal negotiation through a body (e.g: Dispute Settlement of Victoria, which offers some free services to help resolve general disputes).
This may be with or without legal representation.
Benefits of Negotiation:
Avoids the costs, time and stress associated with formal civil action
Parties may be more prepared to accept an outcome that they have helped come to.
Parties have control over their own outcome rather than it being decided for them by a third party (e.g: VCAT member or judge).
Negotiations would be inappropriate if:
One or both parties isn’t interested or willing to negotiate. And therefore attempts at negotiation have already failed.
There is a history of violence, threats, harm e.t.c between the parties.
There is a significant power imbalance between two parties, so they are not on equal footing to be able to negotiate fairly (e.g: young employee and corrupt employer).
There is an urgency in having the matter resolved through court.
Enforcement Issues
The plaintiff considers whether the defendant is able to comply with any settlement or order made AND if they actually will. EG: Can they pay any damages that are awarded?
If the defendant does not comply, the plaintiff will then have to take enforcement action through court usually which just adds to the stress and costs of the civil action.
There are 5 options to enforce civil debt in Magistrates’ Court:
Attachment of earnings order (directly take it from a debtor’s income, except if the person’s income is from centrelink).
Instalment order (repaid in weekly, monthly intervals)
Attachment of debt (money taken from the third party).
Summons for oral examination
Warrant to seize property.
The plaintiff should consider:
Are they in jail?
Do they have savings/assets?
Is the defendant overseas or difficult to contact?
Are they bankrupt?
Methods to resolve Civil Dispute
Mediation, conciliation and arbitration can be used by parties without going to CAV, VCAT or courts (privately arranged), but are also used by various institutions.
It is very rare for a civil case to proceed to a final hearing or trial - estimated that fewer than 5% actually proceed to a hearing. Most settle before then
Mediation
A cooperative method of resolving disputes, Tightly structured, joint problem solving process where parties sit down and discuss issues involved, develop options, consider alternatives and try to reach an agreement through negotiation. They do so with the help of an independent third-party trained in assisting parties to negotiate (mediator), who helps facilitate communication between parties but does not make suggestions on how to resolve a dispute.
Conducted in private and used by courts, VCAT and other dispute resolution bodies. No strict rules of evidence and procedure, and the final decision is made by parties through agreement (settlement). Parties will usually incorporate agreement into a ‘Deed of Settlement’ (legally binding document outlining the agreement that parties have come to in mediation). This is binding and can be enforced by issuing enforcement proceedings in court, and usually contains a clause preventing parties from commencing any further action, or to keep the settlement confidential. If mediation was ordered by a court/VCAT, the settlement can be formulated into an order made by the court or VCAT
Conciliation
Everything discussed about mediation applies to conciliation except:
The conciliator plays a more active role than a mediator, making suggestions to assist the parties as they come to an agreement, and is usually an expert in the relevant area of law. Conciliation is also used in different ways by different institutions.
Arbitration
Independent third party (arbitrator) listens while both sides present their case, and then makes a decision that is binding and enforceable (known as an arbitral award).
Arbitration is used in two main ways. Private arbitration - usually for commercial disputes, where parties have agreed in their contract that any arising dispute will be solved through arbitration.
By the MC for claims <$10,000 - conducted by a magistrate or registrar, the court is not required to conduct proceedings in a formal manner, is not bound by rules of evidence but is bound by procedural fairness rules/rules of natural justice (hearing rule, etc).
Arbitrator is generally not bound by rules of evidence, must ensure parties are treated equally and given reasonable opportunity to present their case and is not required to conduct the proceedings in a formal manner.
Consumer Affairs Victoria
Victoria’s consumer affairs regulator and a complaints body in the area of consumer law. The main purpose of its dispute resolution service is to help people settle consumer law disputes efficiently and constructively/cooperatively without any cost. CAV has teams devoted to the type of disputes they can help with, so the conciliator is usually someone with specialist knowledge in the relevant area. Conciliation is usually conducted over the phone, and is free of charge for both parties. CAV cannot compel parties to attend; it is voluntary. If parties come to a decision, they may sign terms of settlement which can then be enforced through a court if one of the parties does not follow through
Appropriateness of CAV
- Is the dispute within CAV’s jurisdiction?
Supply of goods and services (only takes complaints from consumers, not businesses), residential tenancies (only from tenants, not landlords), retirement villages, owners’ corporations. - Is the dispute likely to be resolved by CAV through conciliation?
CAV will help if there is a reasonable likelihood the dispute will settle. They will consider: has there been a delay in the person complaining to CAV, does CAV’s database show the other party has previously refused to participate in conciliation, has the complaining person contributed to the dispute through inappropriate behaviour, is the dispute overly subjective, has the business made a reasonable offer that was rejected by the consumer? - Is there a better way to resolve the dispute?
CAV will consider: whether parties have tried or will be able to resolve the dispute themselves through informal negotiation, whether dispute is best resolved by a court/tribunal making a binding order, whether the other party is unlikely to take the process seriously, whether one party would prefer the formality of a court/tribunal, whether the matter is too big/complex to be appropriate, whether the resolution in the matter is urgent in which case court may be better. - Is there a case pending or has the matter already been dealt with by courts, CAV or VCAT? (CAV won’t intervene).
- Is it a trivial complaint? (May not warrant CAV involvement).
- Is the consumer or tenant vulnerable or disadvantaged? (May require CAV protection/involvement).
Strengths CAV
fairness:
informal processes
- ensures procedure fairnessby allowing both sides opportunity to present their case & rebut other side’s case
equality:
- allows both sides to present case
access:
- no costs for conciliation
- informal processes, can be conducted over telephone
- aims to conciliate disputes in a timely manner
- assessed disputes individually (case by case) reducing time & resources wasted on disputes unlikely to be resolved through conciliation
not specific:
- ensures that parties reach a resolution themselves (parties therefore more likely to accept outcome that isn’t imposed/forced on them)
Weakness of CAV
equality:
- unequal power dynamic in parties that affects decision
- could be power imbalance in parties
access:
- limited as they only hear consumer & landlord disputes
- also not appropriate for large & complex disagreements
-selectivity of disputes they assist with
not specific:
- no power to compel partiesto undergo conciliation
- no power to enforce any decisions reached
VCAT
A tribunal, dealing with a limited area of law to build up expertise in those areas. Processes are intended to be less formal, cheaper and quicker than courts. VCAT is one of Australia’s busiest tribunals, hearing 85,000+ cases per year. People who hear cases are called ‘members’. They include the VCAT President (Supreme court judge), Vice Presidents (County Court judges), Deputy Presidents (experienced members) and senior and ordinary members (lawyers or specialists in relevant areas).
VCAT is divided into five divisions: Administrative, civil, human rights, planning and environment and residential tenancies.
Four main purposes: Low cost (parties in some smaller cases aren’t even allowed legal representation), accessible, efficient, independent. (L.A.I.E)
VCAT dispute resolution methods
Fast track mediation and hearing - for disputes of $5,000-$10,000 in Civil Claims List, parties try to solve the issue through mediation. If unsuccessful, they have a VCAT hearing within a few hours. They usually sign terms of settlement or have the agreement incorporated into a VCAT order if dispute is successfully resolved through mediation, but would still need to enforce this at court.
Compulsory conferences - run like conciliation, usually half a day or a full day. If unsuccessful, will proceed to a VCAT hearing at a later date with a different VCAT member.
VCAT Hearing - If the matter has not settled, it will be listed for hearing before a VCAT member. Parties are given an opportunity to present their case, including giving evidence, asking questions of witnesses and providing documents to support their case. Most hearings are open to the public and the VCAT member has an obligation to conduct the proceeding with as little formality and technicality as possible, but can adopt rules of evidence and procedure if necessary. Also have an obligation to act fairly. VCAT member will make a binding decision on the parties, and can do so even if one member doesn’t attend.
Appeals from VCAT
Can only be made on a question of law. If the decision was made by the President or vice president, appeal will be heard in the SC(CA), leave required. If a decision was made by an ordinary member, appeal will be heard in the SC(TD), leave required
Appropriateness of VCAT
- Is the dispute within VCAT’s jurisdiction?
VCAT has exclusive jurisdiction in some areas, meaning a plaintiff must bring this type of case to VCAT first, not court. EG Planning disputes. - Is there a better way to resolve the dispute?
Can parties resolve dispute themselves outside of VCAT, some fees are as high/higher than court fees, do parties want a greater avenue of appeal, are parties likely to take VCAT seriously (compared to court), would parties prefer formality of court, is the matter of a complexity/size inappropriate for VCAT (eg. VCAT won’t hear RPs), would the party prefer the court to resolve the dispute because of the doctrine of precedent and the case may be novel
