U3AOS2B - Civil Justice System (Institutions/Remedies) Flashcards
IMPORTANT - Appropriateness for CAV, VCAT, Courts and class actions
1
Q
Define legal practitioner
A
- A legal practitioner is an expert who has undergone training to practice the law and presents a case on behalf of a party
- Have knowledge in certain areas of law
- Will prepare and conduct a case
- Types: Barristers and Solicitors
2
Q
Why are legal practitioners needed?
EXP (4) SRP STRUGGLE (4)
A
- Have experience in…
- Following court processes
- Collecting evidence
- Presenting cases
- Maintaining proper decorum
-
Self respresented parties may struggle with…
- Presenting their case
- Understanding legal jargon
- Cross-examining witnesses
- Remaining fully objective
- If they are instead competently legally represented, they have a better chance at SUCCESS
3
Q
Why can obtaining legal aid be challenging?
A
- Most of the grants of legal assistance are for criminal and family law
- The advice given by VLA does not always cover civil matters
- VLA is financially limited and civil cases would need to be percieved to be successful (not always the case)
4
Q
State 3 strengths of legal practitioners
A
- Experts in navigating the legal system (i.e opening and closing addresses, examining witnesses)
- Objectivity for decisions
- Help avoid delays that may arise with self-represented parties
5
Q
State 2 weaknesses of legal practitioners
A
- Not all are equal, not same experience or skills (can impact quality of service)
-
Not everyone can afford legal representation
- Even if a self-represented party can afford a lawyer, it may be a great expense to them or their family
6
Q
Compare civil legal practitioners to criminal
A
-
Similarities
- Objective
- Expertise in managing/ navigating court
-
Differences
- Standard of proof
7
Q
Define class actions
A
- Class actions are considered a group dispute in which multiple people may join together to commence a civil action
- Usually commenced by the lead plaintiff, any other person involved is a group member
8
Q
What does a class action have to have in order to commence?
A
- Seven or more people
- Claims relating to the same, or similar, circumstances
- The same issues needing to be decided
- Same defendant
9
Q
How do class actions work?
A
- Commenced by the person who ‘represents’ the group, known as the lead plaintiff
- The rest of the group within the class action are known as group members
- Group members do not actively participate in the trial, can choose to opt in or opt out
- Proceeding is managed by the court
PSA : A litigation funder may be used by the group if they DO NOT HAVE THE MEANS TO PAY for legal action; they would recieve PART of the payment once the case is won
10
Q
Explain costs within a class action
A
-
Lead plaintiff is responsible if class actions fails
- Most firms work on a ‘no win, no fee’ basis and plaintiffs WILL NOT need to pay
- Litigation funders will often pay the cost of a failed class action
- If a class action is successful, group members will share the damages awarded with the litigation funder/firm
11
Q
State and describe the four types of class actions
SPEN
A
-
Shareholder (Investor)
- Shareholders of a company may make a claim about being misrepresented about the state of a company’s affairs
-
Product Liability
- Where consumers have purchased a good or service, and suffered a loss or injury as a result
-
Employee Conditions
- Employees may band together to dispute underpayment or working conditions at a company
-
Natural Disasters
- Where loss or damage has occurred as a result of a natural disaster (bushfire, flood, earthquake, etc)
12
Q
To deem class actions appropriate, what must be considered? (6)
A
- If there are 7 or more people with a claim against the SAME defendant
- If the claims are about the same or similar breaches of rights
- If there is a law firm OR litigation funder willing to pay for the claim
- If there is a person willing to be the lead plaintiff
- What the size and nature of the claims are
- If one group member has suffered significantly more than the others (would be not worth the collective hearing)
13
Q
What are 3 strengths of class actions?
A
-
Group members are not responsible for the payment of any costs; increases access to justice to GMs who may not be able to afford initating a claim themselves
- More convenient way for GMs who wish to pursue a claim but do not want the burden of actively participating
- More efficient way of dealing with a number of claims (court does not have to deal with multiple claims about the same issue, saves time and resources)
- People can pursue claims that they wouldn’t be able to do themselves (claim is small, cost is big)
- Litigation funders and plaintiff law firms have a ‘no win no fee’ basis
- Reduce costs of defendants; can respond to multiple claims in one sitting inst. of seperately
DISCLAIMER - Textbook has 6 but knowing 3 is sufficient
14
Q
What are 3 weaknesses of class actions?
A
- Large cost burden on lead plaintiff if class action fails and there is no litigation funder or ‘no win no fee’ agreement (rare scenario)
- Avoids multiple claims BUT at the sacrifice of a class action having a large size
- Significant amount of court resources and time
- Class actions lawyers may ‘take advantage’ of class actions → they get more out of it than group members
-
Litigation funders take a large percentage of the total amount
- ∴ Cut group members short and not reflecting their loss
- Multiple class actions may be commenced by different law firms in relation to the same issue
- Increases the costs of the defendant
-
Some GMs may not be up-to-date with the proceeding/ know if the proceeding is ongoing
- Involve thousands of group members ∴difficult to communicate to each one
DISCLAIMER - Textbook has 6 but knowing 3 is sufficient
15
Q
What is the only court that can hear and resolve class actions?
A
- Supreme Court
- This is due to the complexity and size of a class actions trial
16
Q
What is CAV?
A
- Consumer Affairs Victoria, complaints body that provides information about consumer law and free dispute resolution services
- Has the purpose of helping Victorians to be informed about consumer laws, and to ensure that businesses are complying with the laws
17
Q
What can CAV do?
A
- Advise the Victorian Government on consumer legislation
- Provide information and guidance to educate people about consumer laws
- Enforce compliance with consumer laws
- Can provide a dispute resolution process (rare)
18
Q
What are the purposes of CAV?
A
- To help people come to an agreement about how to resolve their disputes efficiently without any cost
- To try and help the parties reach a resolution that is consistent with the law
- 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
19
Q
What is the jurisdiction of CAV?
A
- Disputes between purchasers and suppliers or consumers and suppliers about the supply or possible supply of goods or services
- E.g about a faulty product, products not fit for purpose
- Disputes between a tenant and a landlord
- E.g about rental agreements, repairs
20
Q
What dispute resolution method does CAV use?
A
- Conciliation
- Can be done over the phone or other tailored services such as in person
21
Q
When is CAV appropriate for a dispute? (8)
A
- Within CAV’s jurisdiction
- Consumer/tenant has tried to resolve the matter themselves
- When CAV’s involvement is needed
- Been a breach of legislation
- If there is a vulnerable or disadvantaged consumer
- If the issue is already dealt with by CAV or VCAT
- If the issue is likely to be resolved
- If there are not any other/better ways to resolve the dispute
22
Q
What are 5 strengths of CAV?
A
- Service is free, accessible to all Victorians
- Conciliation process is informal - Can be conducted over the phone, therefore removing any anxieties from being in a courtroom
- Procedural fairness ensured by allowing both sides to present their perspective and also challenge the other side
- Assesses disputes individually - Reduces waste of time and resources
- Ensures that the parties reach a resolution themselves
23
Q
What are 5 weaknesses of CAV?
A
- Assistance is mainly linked to consumer and CAV disputes - No power to assist other disputes
- No power to compel parties to undergo conciliation
- No powers to enforce decisions unless parties have entered into a binding agreement
- Not all cases are accepted, conciliation is limited
- Not appropriate for large and complex disagreements
24
Q
What is VCAT?
A
- Victorian Civil and Administrative Tribunal, tribunal that provides a cheaper and less formal dispute resolution than courts
- Established under the Victorian Civil and Administrative Tribunal Act 1998
- Governing body consists of…
- President
- Vice-Presidents
- Deputy Presidents
- Senior Members
- Ordinary Members
- ‘Fair, efficient justice for all Victorians’
25
What are the purposes of VCAT?
* Provide **low cost** dispute resolution to parties
* Make achieving a resolution as **accessible** as possible
* Make the dispute resolution process more **efficient**
* Ensure members are **independent and unbiased**
26
What is one way VCAT achieves each of their purposes?
* Low Cost
* Parties **do not** have to go through **pre-trial procedures**
* Accessible
* Hearings conducted in **multiple locations**
* Efficient
* Aims to **reduce waiting times**
* Independent
* VCAT **members are independent** and act as unbiased adjudicators
## Footnote
P 236
27
What is the jurisdiction of VCAT?
## Footnote
CHARP
* **Civil**
* Products or services bought or sold
* Loss or damage because of water flowing onto property
* **Human Rights**
* Discrimination complaints
* **Administrative**
* Cost disputes between lawyers and clients
* Disputes about a decision made by a government agency
* **Residential Tenacies**
* Unpaid rent
* Excessive rent increases
* **Planning and Environment**
* 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
28
What are some disputes that 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** (VCAT has not been given power)
* Disputes where the **parties are residents of different Australian states** or if **Commonwealth** is one of the parties
29
What dispute resolution methods does VCAT use?
* **Mediation**
* **Fast Track Mediation and Hearing** - Done for *goods and services* valued up to $10000
* **Compulsory Conferences**
* Confidential meetings
* Use *conciliation*
* **Final Hearing**
* If not settled with the above methods, **VCAT member gives a final hearing**
* *Binding decision* with little formality and technicality
30
When is **VCAT appropriate**? (7)
* Dispute is within **jurisdiction**
* If dispute **can't** be resolved through **just negotiation or mediation**
* If the applicant is **able to pay the fees** for the list
* If the parties **do not want more avenues of appeal**
* If the parties **take VCAT seriously** - If not, court is needed
* If the **size and complexity is suitable**
* If the parties want a **less formal way** of resolving their dispute
31
What are 3 strengths of VCAT?
* **Cheaper** than courts
* Generally offers a **fast resolution** of disputes
* **Informal atmosphere** helps people feel **more comfortable**
* **Flexibility** of hearing process **ensures fairness and equality** for an unrepresented party
* Each VCAT operates in its own **specialised jurisdiction** - Tribunal Personnel **develop expertise**
* Final decision is **binding**, meaning it is **enforceable**
## Footnote
Any 3 of these 6 is sufficient
32
What are 3 weaknesses of VCAT?
* **Costs can sometimes be higher** than court
* **Some delays** following COVID-19
* May be **TOO informal**, can make people feel **uncomfortable if they prefer a formal** process
* Not a court - **Cannot create precedents**
* **Complex and expensive to appeal** a case because *appeals can only be made on a point of law* (Supreme Court)
* VCAT **orders need to be enforced through courts** - Takes longer
## Footnote
Any 3 of these 6 is sufficient
33
When are **courts** the most **appropriate** way to resolve a dispute?
* When the dispute is **within their jurisdiction**
* If there are **no other/ better ways** to resolve the dispute
34
Explain the jurisdiction of courts in relation to being a **dispute resolution body**
* County and Supreme have an **unlimited jurisdiction**
* Magistrates' can do **claims up to $100 000**
* Courts **CANNOT hear...**
* Domestic building disputes
* Retail tenacies
* Residential tenacies
* Planning Disputes
* This is because they are **exclusive to VCAT**
35
When would there be other/ better ways to resolve a dispute over a court?
* If parties can **resolve the dispute themselves** through negotiation or mediation
* If the **cost of courts is too much** - CAV, VCAT or a private method can be considered
* If parties are **uncomfortable with the formalities of the courtroom** rules and procedure
36
What are advantages of using a court to resolve disputes?
* Various **pre-trial procedures**
* **Save costs, time and stress** of going to trial
* Ensures more **efficient and timely resolution of dispute**
* Can **help solve matter before trial**
* Processes to ensure **procedural fairness**
* Judge can give **directions and orders** to ensure dispute is **resolved in a timely manner**
* Allows **interactions between the court and parties**
* **Binding decision** - Outcome is **certain and enforceable**
37
Compare the 3 dispute resolution bodies in terms of the third party
## Footnote
Helpful for distinguishing, not necessary
* **CAV**
* Has **no power to make a decision**
* Role of third party is to **facilitate discussion, suggest options and possible solutions** - Usually has specialist knowledge
* Decision is **not binding** but *terms of settlement may be enforceable*
* **VCAT**
* Third party **makes the decision** if the dispute proceeds to a **final hearing**
* Third party **hears all the evidence** at a final hearing and **makes a binding decision**
* **Courts**
* There is a third party who makes a **binding decision** if the dispute proceeds to a **final hearing or trial**
* Third party **hears all the evidence** at a final hearing or trial
38
Compare the 3 dispute resolution bodies in terms of processes and procedures
## Footnote
Helpful for distinguishing, not necessary
* **CAV**
* **Private**
* No rules of evidence & procedure, pre-trial procedures, jury or a need for legal representation
* **VCAT**
* **Not private** unless parties settle before the final hearing
* **Flexible rules of evidence & procedure**
* Generally no pre-trial procedures or legal representation
* No jury
* **Courts**
* **Not private** unless parties settle the final hearing before the trial
* Has **rules of evidence & procedure, pre-trial procedures**
* Generally has **legal representation**
* **Jury only if judge or parties require it**
39
Compare the 3 dispute resolution bodies in terms of types of civil disputes
## Footnote
Helpful for distinguishing, not necessary
* **CAV**
* Has restrictions on jurisdiction
* **Disputes between tenants and landlords, consumers and traders and other consumer-type disputes**
* Not appropriate for large, complex claims and cannot hear class actions
* **VCAT**
* Has restrictions on jurisdiction
* **Various types of disputes, including small civil claims, residential tenacies claims and retail tenacies**
* Not appropriate for large, complex claims and cannot hear class actions
* **Courts**
* Has restrictions on jurisdiciton in **Magistrates' Court**, **can't hear things specific to VCAT**
* **All types of claims including complex ones**
* **Supreme or County** is appropriate for **large complex claims**
* **Supreme Court** can hear **class actions**
40
Compare the 3 dispute resolution bodies in terms of dispute resolution methods used
## Footnote
Helpful for distinguishing, not necessary
* **CAV**
* Conciliation
* **VCAT**
* Mediation and Conciliation
* **Courts**
* Mediation
* Generally does not use Conciliation
* Arbitration in Magistrates' Court for claims less than $10 000
41
Compare the 3 dispute resolution bodies in terms of hierarchy and appeals
## Footnote
Helpful for distinguishing, not necessary
* **CAV**
* No hierarchy or appeals
* **VCAT**
* No hierarchy
* Appeals on a **point of law to Supreme Court or Court of Appeal**
* **Courts**
* **Hierarchy** and **appeals**
42
Describe the impact of costs in **Civil Law**
* Although some parts of the CJS aim to reduce costs, **many people will still pay high costs**
* High costs can sometimes **discourage/ prevent** people from **pursuing civil claims** or defences
* Resorting to being **self represented** would **limit their case due to lack of skills/ experience**
## Footnote
CJS = Civil Justice System
43
What are legal costs in **civil law**?
* Cost of **legal representation**
* **Not everyone can afford**
* A concern because the **nature of the court system relies on both parties having good legal representation**
* With legal representation, the **chance** of each party **winning is maximised**, ensuring the **fairest outcome possible**
* Amount of **money spent** depends on the **nature of the dispute**
44
What are *examples* of Legal Costs in **Civil Law**?
* Complaint through **CAV is free**
* Claim through **VCAT can be inexpensive** but it depends on the type of claim and who is making it
* More **complex** claim in **Supreme Court** requires both parties to spend a **significant amount of money**
* Disbursements associated with...
* Engaging **expert witnesses** and **mediators**
* **Filing and hearing** fees
* Using a **jury**
45
What do high costs cause?
* High costs are the reason for the **increase in self-represented parties**
* May **not be beneficial** for everyone due to the **skill needed to navigate the court system**
* Can **lessen their ability to properly make out their case**
* **Inability to access legal aid**
* Most **legal aid funding** is spent on aid for **criminal and family law**
* **Forces** people to **settle or withdraw** their claims
46
What are measures to address costs in **Civil Law**?
* **Alternative Dispute Resolution** methods
* Helps solve disputes **early** - **Parties can save money** by avoiding costs (i.e pre-trial procedures and trial procedures, having to pay winning side's costs)
* **Courts and VCAT can save money and time**
* **CAV and VCAT**
* **No/ low cost**, no legal representation
* **Case Management** in Court
* **Narrows issues** and ensures a **cost-effective** resolution (judge can narrow discovery/ require parties to attend mediation early)
* **Pro bono** assistance (legal services for free)
47
State at least 2 ways that costs in **civil law** link to PoJs
* **Fairness**
* Gathering sufficient funds/ finding alternatives can increase delays (**limit participation**)
* **Equality**
* Imbalance in expertise of legal representation can cause **disparity** in trial
* **Access**
* High costs **prevent engagement**
* Being self represented may limit extent to being on an **informed basis**
48
Describe the impact of time in **civil law**
* If a dispute takes a **long time** to be heard, it can become **increasingly unfair** to one or both parties
* **Time** for courts and VCAT **can vary** depending on...
* Complexity
* Type of claim
* Number of parties involved
* Where the claim was issued
49
What factors can affect how long it takes for a civil dispute to be heard?
* Backlogs
* Pre-trial procedures
* Evidence gathering and preparation
50
What are backlogs in **civil law**?
* Cases that are **'in line'** for a hearing or trial - Similar to a **pending status**
* Need to be resolved or determined
51
What are measures to reduce delays in **civil law**?
## Footnote
Case Management, Courts, VCAT
* **Case Management**
* Can result in modifications of procedure rules and rules relating to **pleadings, discovery and evidence preparation**
* **Courts** can...
* Order that parties attend **mediation or another DRM**
* **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**
* Use **online methods** to hear disputes
* **VCAT** has...
* **Pilot Program** - County Court hears complex building disputes **waiting in the Building and Property List**
* **Backlog Recovery Program** - Combats significant **backlogs in the Residential Tenacies List**
* Some matters dealt **solely based** on **written documents**
## Footnote
Pilot - P for Property; Recovery - R for Residential
52
State at least 2 ways that delays in **Civil Law** link to PoJs
* **Fairness**
* Presence of delays limits **participation**
* **Equality**
* Cases being treated the same way may cause **disparity** (cases requiring more attention having to wait, other cases with priority)
* **Access**
* Delays limit the ability to use the civil justice system (**engagement**)
53
Define remedy
* Any order made by a court that is designed to **address a civil wrong** or **breach of rights**
* Plaintiff will often **seek more than one** remedy
* Most common are **damages** and **injunctions**
54
What is the general purpose of a remedy?
* To **restore the plaintiff** (as far as possible) to the **position** they were in **before the wrong occurred**
## Footnote
MOST IMPORTANT!! (Umbrella purpose, can use for all)
55
Define damages and state the types
## Footnote
Types acronym: GEN SAC (2 C's)
* Amount of **money awarded to the plaintiff** to be paid by the defendant
* Aims to ***compensate* for the losses or injury** that the plaintiff has suffered
* **Types**
* Compensatory - Consists of Special, General and Aggravated
* Exemplary
* Nominal
* Contemptuous
## Footnote
Must be damages with an S!!
'Compensate' is specific to damages
56
What are compensatory damages?
* Most common
* **Aims** to restore the party whose rights have been infringed by **compensating them for losses suffered**
* Pays **money** to **pay for expenses**/ Make up for **objects lost**
* Types
* **Special**
* **General**
* **Aggravated**
57
Define the three types of compensatory damages
* **Special**
* Specific
* Compensates plaintiff for **losses that are quantifiable**
* E.g Medical expenses, loss of wages, property damage
* **General**
* Compensate for **losses that are not easily quantifiable** and will be **calculated by the court based on evidence**
* E.g Pain and suffering, long-term job prospects, **loss of amenity**
* **Aggravated**
* Awarded where the court believes the plaintiff suffered **humiliation, embarrassment or insult**
58
What are nominal damages?
## Footnote
Nominal → Big Name
* Awarded where the plaintiff **may not be seeking a large amount of money**
* Just want their **infringed rights** to be **ACKNOWLEDGED**
* Done to **show who is legally** in the **right**
* **Aims** to **uphold the plaintiff's rights without awarding any substantial amount** of damages
## Footnote
Petty damages (probably already have a lot of money)
59
What are contemptuous damages?
* Awarded when a court or tribunal believes that **although the plaintiff has the legal right** to damages, they **DON'T HAVE A MORAL RIGHT**
* **Don't think** the plaintiff **deserves** to be paid damages
* **Small** damages **may** be awarded to **show contempt** for claim
60
What are exemplary damages?
* **Only consequence** in civil action that **seeks to punish** the defendant
* Aims to **punish for an extreme infringement of rights**
* Also to **deter others** from undertaking the same actions
* Conduct of defendant is usually *malicious, violent, cruel or in scornful disregard for the plaintiff's rights*
* **Cannot be awarded for defamation**
## Footnote
Suited for physical action/damage
61
What are restrictions on damages?
* **Certain types** of cases and loss have **restrictions imposed** on the **amount of damages** that can be awarded
* Examples...
* **Personal injury** claims under the Wrongs Act 1958 has a **limit for non-economic loss** (pain, suffering and loss of quality of life)
* **Defamation** claims - Damages for **non-economic loss** are limited to **$250 000**
* Values **may be increased depending on the type of case**
* **Economic losses** are **not restricted to the same amounts**
62
Define injunctions and state the types
* Court order **directing someone to stop** doing a certain act/**compelling someone to do** a certain act
* Aims to **rectify (correct) a situation** caused by the person who was found to be in the wrong
* **Types**
* Restrictive (Stop)
* Mandatory (Start)
* Can be **interlocutory** (temporary and ASAP) or **final** (followed forever)
63
What is a restrictive injunction?
* Orders a person to **refrain** from **undertaking an action**
64
What is a mandatory injunction?
* Orders a person to **do a particular act**
65
How can compensatory damages achieve their purpose?
## Footnote
Only need 2
* Loss suffered was **financial loss only**
* If there is **sufficient evidence** before the court about **unquantifiable losses**
* If **damages are paid**
* If **other orders/ remedies** are **not required**
* **No limits on amounts** that can be awarded
66
How CAN'T compensatory damages achieve their purpose?
## Footnote
Only need 2
* If the loss was **pain and suffering, mental anguish, disfigurement or impairment**
* If **damages are not paid**
* If **future loss** is suffered
* Harder to identify and quantify
* If **other orders or remedies** are required
* **Limits** on amounts that can be awarded
67
How can exemplary damages achieve their purpose?
* If the award is **known to others** - Publicised
* Done to **deter** others
* If the **amount** of damages is **large**
* More likely to **punish and deter**
68
How CAN'T exemplary damages achieve their purpose?
* Defendant **isn't able to pay**
* If there is a **cap on the amounts**
* **Limits ability** of damages to achieve purpose
69
How can nominal damages achieve their purpose?
* **Enough evidence** to **take** dispute **to court**
* Taking dispute to court **did not affect the plaintiff economically**
70
How CAN'T nominal damages achieve their purpose?
* If the plaintiff **suffered an economical loss to bring the dispute to court**
* If the plaintiff suffered **loss but is lacking in evidence**
71
How can a restrictive injunction achieve its purpose?
* If the **defendant complies**
* If **harm** is **not yet suffered**
* If **only a restrictive injunction** is required
72
How can a mandatory injunction achieve its purpose?
* If the defendant **does what is ordered**
* If harm is **not yet suffered**
* If a **mandatory injunction alone is sufficient**
