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
Q
What are the purposes of VCAT?
A
- 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
Q
What is one way VCAT achieves each of their purposes?
A
- 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
P 236
27
Q
What is the jurisdiction of VCAT?
CHARP
A
-
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
Q
What are some disputes that VCAT cannot hear?
A
- 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
Q
What dispute resolution methods does VCAT use?
A
-
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
Q
When is VCAT appropriate? (7)
A
- 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
Q
What are 3 strengths of VCAT?
A
- 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
Any 3 of these 6 is sufficient
32
Q
What are 3 weaknesses of VCAT?
A
- 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
Any 3 of these 6 is sufficient
33
Q
When are courts the most appropriate way to resolve a dispute?
A
- When the dispute is within their jurisdiction
- If there are no other/ better ways to resolve the dispute
34
Q
Explain the jurisdiction of courts in relation to being a dispute resolution body
A
- 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
Q
When would there be other/ better ways to resolve a dispute over a court?
A
- 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
Q
What are advantages of using a court to resolve disputes?
A
- 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
Q
Compare the 3 dispute resolution bodies in terms of the third party
Helpful for distinguishing, not necessary
A
-
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
Q
Compare the 3 dispute resolution bodies in terms of processes and procedures
Helpful for distinguishing, not necessary
A
-
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
Q
Compare the 3 dispute resolution bodies in terms of types of civil disputes
Helpful for distinguishing, not necessary
A
-
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
Q
Compare the 3 dispute resolution bodies in terms of dispute resolution methods used
Helpful for distinguishing, not necessary
A
-
CAV
- Conciliation
-
VCAT
- Mediation and Conciliation
-
Courts
- Mediation
- Generally does not use Conciliation
- Arbitration in Magistrates’ Court for claims less than $10 000
41
Q
Compare the 3 dispute resolution bodies in terms of hierarchy and appeals
Helpful for distinguishing, not necessary
A
-
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
Q
Describe the impact of costs in Civil Law
A
- 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
CJS = Civil Justice System
43
Q
What are legal costs in civil law?
A
- 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
Q
What are examples of Legal Costs in Civil Law?
A
- 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
Q
What do high costs cause?
A
- 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
Q
What are measures to address costs in Civil Law?
A
-
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
Q
State at least 2 ways that costs in civil law link to PoJs
A
-
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
Q
Describe the impact of time in civil law
A
- 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
Q
What factors can affect how long it takes for a civil dispute to be heard?
A
- Backlogs
- Pre-trial procedures
- Evidence gathering and preparation
50
Q
What are backlogs in civil law?
A
- Cases that are ‘in line’ for a hearing or trial - Similar to a pending status
- Need to be resolved or determined
51
Q
What are measures to reduce delays in civil law?
Case Management, Courts, VCAT
A
-
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
Pilot - P for Property; Recovery - R for Residential
52
Q
State at least 2 ways that delays in Civil Law link to PoJs
A
-
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
Q
Define remedy
A
- 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
Q
What is the general purpose of a remedy?
A
- To restore the plaintiff (as far as possible) to the position they were in before the wrong occurred
MOST IMPORTANT!! (Umbrella purpose, can use for all)
55
Q
Define damages and state the types
Types acronym: GEN SAC (2 C’s)
A
- 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
Must be damages with an S!!
‘Compensate’ is specific to damages
56
Q
What are compensatory damages?
A
- 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
Q
Define the three types of compensatory damages
A
-
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
Q
What are nominal damages?
Nominal → Big Name
A
- 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
Petty damages (probably already have a lot of money)
59
Q
What are contemptuous damages?
A
- 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
Q
What are exemplary damages?
A
- 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
Suited for physical action/damage
61
Q
What are restrictions on damages?
A
- 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
Q
Define injunctions and state the types
A
- 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
Q
What is a restrictive injunction?
A
- Orders a person to refrain from undertaking an action
64
Q
What is a mandatory injunction?
A
- Orders a person to do a particular act
65
Q
How can compensatory damages achieve their purpose?
Only need 2
A
- 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
Q
How CAN’T compensatory damages achieve their purpose?
Only need 2
A
- 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
Q
How can exemplary damages achieve their purpose?
A
- 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
Q
How CAN’T exemplary damages achieve their purpose?
A
- Defendant isn’t able to pay
- If there is a cap on the amounts
- Limits ability of damages to achieve purpose
69
Q
How can nominal damages achieve their purpose?
A
- Enough evidence to take dispute to court
- Taking dispute to court did not affect the plaintiff economically
70
Q
How CAN’T nominal damages achieve their purpose?
A
- If the plaintiff suffered an economical loss to bring the dispute to court
- If the plaintiff suffered loss but is lacking in evidence
71
Q
How can a restrictive injunction achieve its purpose?
A
- If the defendant complies
- If harm is not yet suffered
- If only a restrictive injunction is required
72
Q
How can a mandatory injunction achieve its purpose?
A
- If the defendant does what is ordered
- If harm is not yet suffered
- If a mandatory injunction alone is sufficient
