Unit 3 AOS 2 Flashcards
CAV
- What is it?
- Jurisdiction
Consumer Affairs Victoria
- A complaint body that assists consumers and traders, landlords and tenants in resolving disputes through conciliation
- Provision of goods and services
- Residential tenancies and owners’ corporations
CAV
- Strengths
- Weaknesses
Strengths
- Free (access)
- Will ensure process is fair
- Resolves disputes in an informal and timely manner
- Conciliation agreement reached by both parties
Weaknesses
- Cannot compel parties to participate
- Can only intervene in certain areas
- Not appropriate for large and complex disputes
- Lacks enforcement powers
VCAT
- What is it?
- Jurisdiction
Victorian Civil and Administrative Tribunal
- An alternative dispute resolution method to the courts, resolves a range of civil and administrative disputes
- Provides a low-cost, accessible, efficient and independent service
- Retail and residential tenancies
- Purchases of goods and services
- Discrimination
- Guardianship
- Domestic building works
- Registration of officials
VCAT cannot hear?
- Disputes between employees and employers
- Representative proceedings
- Disputes between people in a car accident
- Disputes between neighbours
VCAT
- Strengths
- Weaknesses
Strengths
- Low-cost, low hearing fees, not having to undertake pre-trial procedures and parties represent themselves
- Speedy resolution of disputes (approx. 3 weeks)
- Informal atmosphere, ensures parties put cases forward in their own way (more comfort for people)
Weaknesses
- Increased use of representation means costs can sometimes be as high/higher than in the courts, plus fees now for hearings
- Has been suffering long delays in some Lists, such as the Planning and Environment List
- Informality may make some parties feel uncomfortable or ill-equipped
Mediation
- Third party = mediator
- Resolution made by parties voluntarily
- May be enforceable if terms of settlement are entered
- Role is to facilitate parties
Conciliation
- Conciliator
- Can advise the parties, though decision reached by the parties voluntarily
- May be enforceable
Arbitration
- Arbitrator
- Arbitrator makes a binding decision (award)
Representative Proceedings
- 7 or more people
- Brought forward in the name of one on behalf of a larger group who have claims
- Representative = Lead Plaintiff
- Members can share costs
- Saves time and resources
- Third-party litigation funders can pay upfront costs (in return for % of damages)
Factors to Consider
UNCLLES
- Negotiation
- Costs
- Legal Advice
- Limitations
- Enforcement Issues
- Extent of defendant’s liability (contributory negligence)
Limitations Statute and examples
- Defamation = 1 yr
- Personal injury under tort law = 3 yrs
- Breach of contract = 6 yrs
Purpose of Pre-trial Procedures
- Inform both parties of the legal action through exchange of documents
- Opportunity to settle out of court, to assess whether to proceed, to resolve some issues by agreeing or conceding to eliminate them
Pleadings
- Documents
- A series of documents filed and exchanged
- Sets out and clarifies claims and defences
- Defines issues in dispute
Pleadings Purpose
- Uphold procedural fairness
- Avoids taking party by surprise
- Sets limits to dispute
- Assists is reaching an out-of-court settlement
Discovery of Documents
- Enables parties to obtain copies of documents relevant to issues in dispute
- Parties entitled to inspect documents relevant to claims and defences
- E.g. contracts, medical records, emails
Discovery of Documents Purpose
- Uphold fairness
- Reduce element of surprise
- Let parties determine strength of other party’s case
- Ensure all parties have relevant documents (just outcome)
- Assist in reach settlement
Administrative Convenience
- Cases allocated to courts based on size and complexity
- Minor claims heard quickly and less expensively (more Magistrates’ Cts)
- Serious cases heard in higher courts with judge who are more experienced in larger, complicated cases
Appeals
- Parties can appeal to higher courts based on a Question of Fact, Point of Law, Remedy Awarded
- Without court hierarchy, no superior courts to review decisions of inferior courts
Judge
Impartial, independent referee - ensures parties are treated fairly and equally
- Management of trial
- Admissibility of evidence
- Attending to the jury
- Determine liability and remedy
- Making a decision on costs
Jury
- Be objective
- Listen to all evidence and judge’s directions and summing up
- Determine liability and remedy
Parties and Legal Representation
- Make opening and closing addresses
- Presenting case to the judge or jury
- Comply with overarching obligations
Judicial powers of Case Management
- Power to order mediation
- A Direction: Imposing an obligation on a party to do something
E.g. - Relieving parties of certain obligations - Imposing timelines
- Restrict witnesses
- Limiting examinations / cross-examinations
- Deciding mode of providing evidence
