U3AOS2B Flashcards
Civil Law
What are the needs for legal practitioners?
A legal practitioner is an expert who has undergone training to practice the law and presents a case on behalf of a party. They will have knowledge in certain areas of law and will prepare and conduct a case to try and achieve success.
Why do we need legal practitioners?
Legal practitioners have experience in: following court processes, collecting evidence, presenting cases and maintaining proper decorum in court.
If someone was to represent themselves they may struggle with:
- Presenting their case
- Understanding legal jargon
- Cross-examining witnesses
- Remaining fully objective
What are the strengths to obtaining a legal practitioner?
- are experts who will be able to help the parties navigate the civil justice system
- have objectivity in being able to make decisions in the civil case, such as whether to agree with the other party to negotiate a settlement
- can help avoid delays that may arise with self-represented parties
What are the weaknesses to obtaining a legal practitioner?
- not all legal practitioners are equal or have the same level of experience and skills. Some legal practitioners are more experienced than others, which may **impact on the quality **of the legal services
- not everyone is able to afford legal representation, so some people may be left to represent themselves. However, often self-represented parties do not have the necessary skills, experience or objectivity to be able to make the right choice
- even if a self-represented party can afford a lawyer, this could potentially be a great expense to them or their family, particularly if they lose, and are ordered to pay the other party’s legal costs too
What are class actions?
(or group proceedings) are considered a group dispute in which multiple people may join together to commence a civil action.
What must a class action have?
- Seven or more people
- Claims relating to the same, or similar, circumstances
- The same issues needing to be decided
What are the costs for class actions?
- the lead plaintiff alone is responsible for the costs (including any adverse costs orders) if the class action fails
- most firms work on a ‘no win, no fee’ basis and so the plaintiffs will not need to pay
- litigation funder have become common with class actions, and they will often pay the cost of a failed class action
- if the class action is successful, then the group members will share the damages awarded with the litigation funder or firm involved
What is the appropriateness for class actions?
- Are there seven or more people with a claim against the same defendant?
- Are the claims about the same or similar breaches of rights?
- Is there a law firm or litigation funder willing to pay for the claim?
- Is there a person willing to be the lead plaintiff?
- What is the size and nature of the claims?
- Has one group member suffered significantly more than others?
What are the strengths of class actions?
- it is a more efficient way of dealing with a number of claims because the court does not have to deal with multiple claims about the same issue, thus saving court time and resources
- group members are not responsible for the payment of any costs (though they will share the costs if the claim is successful). This therefore increases access to justice for group members who may not otherwise be able to afford the costs of initiating a claim themselves
- it is 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
What are the weaknesses of class actions?
- class actions impose a large cost burden on the lead plaintiff if the class action fails and there is no litigation funder or no ‘no win no fee’ agreement with the plaintiff law firm
- even though it avoid multiple claims, the size of the class action is normally such that it takes up a significant amount of court resources and time. The approval process for a settlement can also be significant
- litigation funders have been criticised for taking a large percentage of the total amount awarded to the group members, which then substantially reduces the amount paid to group members and does not reflect their actual loss
What is Consumer Affairs Victoria (CAV)?
Is a complaints body that provides information about consumer law and free dispute resolution services.
What are the roles of CAV?
- Advises the Victorian Government on consumer legislation
- Provide information and guidance to educate people about consumer laws
- Enforces compliance with consumer laws
- In rare cases, they can provide a dispute resolution process for consumers and traders (and landlords and tenants)
What are the purposes of CAV?
- To help people come to an agreement about how to resolve their disputes efficiently without any cost. This means that the resolution will not be at their expense, or take too long to resolve.
- To try and help the parties reach a resolution that is consistent with the law. In helping the parties, CAV has a compliance focus to ensure that any person who has not followed the law is aware of their breach and does not do it again.
What is the jurisdiction of CAV?
- disputes about a product that is faulty damaged, not fit for purpose or cannot be repaired
- disputes about a service that is not completed with care and skill, took too long, caused damage or it not fit for purpose
- disputes about buying cars, such as in relation to warranties, the price charged or the condition of the car
- disputes about rental agreements, rent, signing or ending a lease, or rental applications
- disputes about repairs
What is the appropriateness of CAV?
- Is the dispute within CAV’s jurisdiction?
- Has the consumer or tenant tried to resolve the matter themselves?
- Does the complaint need CAV’s involvement?
- Has there been a breach of legislation?
- Is the consumer vulnerable or disadvantaged?
- Has the issue already been dealt with by CAV or VCAT?
- Is the issue likely to be resolved?
- Are there other or better ways to resolve the dispute?
What are the strengths of CAV?
- CAV’s conciliation service is free, meaning that it is accessible to all Victorians, regardless of their ability to pay
- the conciliation process is informal, and can be conducted over the telephone, which removes many anxieties people have with the formalities of a courtroom
- CAV ensures procedural fairness by allowing both sides the opportunity to present their side of the story and challenge the other side’s case as part of the conciliation process
What is the Victorian Civil and Administrative Tribunal (VCAT)
Is a tribunal that provides a cheaper and less formal dispute resolution for courts.
What are the purposes of VCAT?
- To provide low cost dispute resolution to the parties
- To make achieving a resolution as accessible as possible
- To make the dispute resolution process more efficient
- To ensure their members are independent and unbiased
How does VCAT achieve their purposes?
Low cost:
- no hearing fees for many claims such as cases $100,000 or less are heard in less than a day
- parties only need to pay a small amount in filing their claim
- in many lists, parties do not have to go through pre-trial procedures
- parties can represent themselves
Accessible:
- conducts hearings in various locations
- allows people to make applications online and conducts hearings online or via phone
- less formal than court proceedings
Efficient:
- aims to reduce waiting times
- generally does not use pre-trial procedures or formal procedures
Independent:
- VCAT’s members are independent and will act unbiased
What is the jurisidiction for VCAT?
unpaid rent, repairs, maintainence, damages or changes to property, excessive rent increases, costs disputes between lawyers and clients, disputes about a decision made by a government agency, products and services bought or sold, quality of domestic or commercial building works, loss or damage of water flowing onto property, discrimination complaints, 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
What are some cases VCAT cannot hear?
- Class actions
- Disputes between employers and employees
- Disputes between neighbours
- Disputes between drivers in car accidents
- Disputes involving federal or state law where VCAT has not been given power to hear the matter
- Disputes where the parties are residents of different Australian states, or if the Commonwealth is one of the parties
What are the dispute resolution methods that VCAT uses?
1. Mediation
Is a cooperative method of resolving disputes. It is a process in which the parties discuss the issues involved, develop options, consider alternatives and reach an agreement through negotiation.
2. Compulsory conferences
Are confidential meetings during which the parties discuss ways to resolve their dispute in the presence of a VCAT member. VCAT members who assist in the compulsory conference generally will not hear the case at the final hearing.
3. Final hearing
If the matter has not been settled at mediation, at compulsory conference or in any other way, it will be listed for a final hearing before a VCAT member. A VCAT member will oversee the hearing and make a binding decision on the parties.
What is the appropriateness for VCAT?
- Is the dispute within VCAT’s jurisdiction?
- Can the dispute be resolved through negotiation or mediation?
- Is the applicant able to pay the fees for that list?
- Do the parties want more avenues of appeal?
- Will the parties take VCAT seriously? Or is the court needed?
- Is the size and complexity suitable for VCAT?
- Do the parties want a formal way of resolving the dispute?
What are the strengths to VCAT?
- is normally cheaper than courts due to 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
- generally offers a speedy resolution of disputes - the average time from application to resolution of disputes in its busiest list has been as low as 2-3 weeks
- an informal atmosphere ensures that parties can put their case forward in their own way, which can make people feel more comfortable with the process
What are the weaknesses to VCAT?
- suffered delays in some of its lists, including following the COVID-19 pandemic. Some argue it hurts the economy, as many construction projects are unable to go ahead without the appropriate permits, as well as, having a financial and mental impact on people who are waiting for their claim to be heard
- it 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
- decisions can only be appealed on a point of law, and to the Supreme Court, making it complex and expensive to appeal a case
What are the courts?
A legal institution concerned with the interpretation and application of laws, in order to make legal decisions involving crimes or legal (civil) disputes.
What are the purposes of courts?
Are to interpret and apply laws in order to make legal decisions about civil disputes.
- Can come via judge or magistrate using past rulings in similar cases to help guide the ruling in a current case
- Application of the law occurs via how the law in question has impacted the plaintiff in the current case, and this application can change over time
What is the appropriateness of courts?
when it IS appropriate:
- the two parties involved in the civil dispute are unable to come to a resolution on their own or via dispute resolution methods
- the case involves a complex legal matter or a large amount of damages
when it IS NOT appropriate:
- The two parties have not attempted to resolve their dispute themselves
- The case involves a very minor civil infringement
- The two parties want their case resolved in a fast and relatively inexpensive manner
- The two parties want to maintain relationship
What are the court’s jurisdiction?
The County Court and the Supreme Court have unlimited jurisdiction when it comes to resolving civil disputes. However, the Magistrates’ Courts have a jurisdictional limit of $100,000 when accepting civil cases.
What are the strengths to courts?
- the court makes a binding decision, meaning that the outcome is certain, and is enforceable
- various pre-trial procedures allow the parties to reach an out-of-court settlement. This includes mediation, which the judge can order the parties to attend before trial. This can potentially save the costs, time and stress of going to trial
- courts use processes to ensure procedural fairness. For example, the judge can give directions and orders to ensure the dispute is resolved in a timely manner and will ensure that parties undertake procedures such as discovery which ensures both parties know the case that is put against them
What are the weaknesses to court?
- many of the procedures are complex and difficult to understand without a lawyer. These include pleadings and directions, and trial procedures such as cross-examination of witnesses
- the costs in a dispute resolved in court may restrict access to the courts, and may jeopardise parties being treated equally because of their socio-economic status. This includes the costs of engaging a lawyer
- the formalities of the court can be stressful. The courtroom has previously been criticised as being inaccessible to some parties because of formalities, and the idea of party control can be stressful and time-consuming for a party that needs to gather evidence
What are the impacts of costs and time?
Costs:
- costs of legal representation
- engaging expert witnesses and mediators
- filing and hearing fees
- using a jury (if a party requests one)
Time:
- Backlogs – 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. Most criticised is the process of discovery, which can take months. Courts that use case management processes often make orders about discovery and other pre-trial steps to streamline the process
- Evidence gathering and preparation – the time it takes for the parties to get a case ready for hearing (including gathering evidence and preparing for the hearing)
What are the measures to address costs and time?
Costs:
- The use of Consumer Affairs Victoria (CAV) and VCAT can help resolve disputes without the need to go to court. These bodies provide no or low-cost dispute resolution services and assistance, and legal representation is not generally required (and is often discouraged)
- The use of case management powers in court to try to narrow the issues in dispute and ensure a cost-effective resolution to the dispute
- A number of bodies and organisations in Victoria provide pro bono assistance to individuals
**Time: **
- 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
What are remedies?
A remedy is the way a court recognises a plaintiff’s right. It is what the plaintiff will seek, and what a court or tribunal may award if the plaintiff is successful in proving their claim.
What are the general purposes of remedies?
To restore the plaintiff, as far as possible, to the position they were in before the wrong occurred.
What are damages and its overall purpose?
Is an amount of money awarded to the plaintiff to be paid by the defendant.
Overall purpose: to compensate for the losses or injury that the plaintiff has suffered.
What are the FOUR types of damages?
1. compensatory
2. exemplary
3. nominal
4. contemptuous
What are compensatory damages and their purpose?
Are the most common damages sought.
Overall purpose: to restore the party whose rights have been infringed by compensating them for losses suffered.
What are exemplary damages and their purpose?
Are the only consequence of a civil action that in some way seeks to punish the defendant.
Overall purpose: to punish for an extreme infringement of rights, and to deter others from undertaking the same actions.
What are nominal damages and their purpose?
Are awarded in cases where the plaintiff may not be seeking a large amount of money, but just want their infringed rights to be acknowledged. Usually, this is just to show who is legally in the right for the civil dispute.
Overall purpose: to uphold the plaintiff’s rights without awarding any substantial amount of damages.
What are contemptuous damages?
Are awarded when a court, or tribunal, believes that although the plaintiff has the legal right to damages, they don’t have a moral right.
What are injunctions?
An injunction is a court order directing someone to stop doing a certain act, or compelling someone to do a certain act.
What are the TWO types of injunctions?
1. restrictive
2. mandatory
What are restrictive injunctions?
Order a person to refrain from (stop) undertaking an action. For example, if a building has been Heritage Listed, they may need a restrictive injunction to stop a construction company from tearing it down.
What are mandatory injunctions?
Order a person to do a particular act. For example, if a business has breached their contract to an employee, they may be ordered to fulfil the part of the contract that was breached.
