Unit 3 AOS 2 Flashcards

1
Q

CAV
- What is it?
- Jurisdiction

A

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

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2
Q

CAV
- Strengths
- Weaknesses

A

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

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3
Q

VCAT
- What is it?
- Jurisdiction

A

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
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4
Q

VCAT cannot hear?

A
  • Disputes between employees and employers
  • Representative proceedings
  • Disputes between people in a car accident
  • Disputes between neighbours
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5
Q

VCAT
- Strengths
- Weaknesses

A

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

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6
Q

Mediation

A
  • Third party = mediator
  • Resolution made by parties voluntarily
  • May be enforceable if terms of settlement are entered
  • Role is to facilitate parties
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7
Q

Conciliation

A
  • Conciliator
  • Can advise the parties, though decision reached by the parties voluntarily
  • May be enforceable
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8
Q

Arbitration

A
  • Arbitrator
  • Arbitrator makes a binding decision (award)
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9
Q

Representative Proceedings

A
  • 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)
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10
Q

Factors to Consider
UNCLLES

A
  • Negotiation
  • Costs
  • Legal Advice
  • Limitations
  • Enforcement Issues
  • Extent of defendant’s liability (contributory negligence)
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11
Q

Limitations Statute and examples

A
  • Defamation = 1 yr
  • Personal injury under tort law = 3 yrs
  • Breach of contract = 6 yrs
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12
Q

Purpose of Pre-trial Procedures

A
  • 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
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13
Q

Pleadings
- Documents

A
  • A series of documents filed and exchanged
  • Sets out and clarifies claims and defences
  • Defines issues in dispute
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14
Q

Pleadings Purpose

A
  • Uphold procedural fairness
  • Avoids taking party by surprise
  • Sets limits to dispute
  • Assists is reaching an out-of-court settlement
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15
Q

Discovery of Documents

A
  • 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
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16
Q

Discovery of Documents Purpose

A
  • 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
17
Q

Administrative Convenience

A
  • 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
18
Q

Appeals

A
  • 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
19
Q

Judge

A

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

20
Q

Jury

A
  • Be objective
  • Listen to all evidence and judge’s directions and summing up
  • Determine liability and remedy
21
Q

Parties and Legal Representation

A
  • Make opening and closing addresses
  • Presenting case to the judge or jury
  • Comply with overarching obligations
22
Q

Judicial powers of Case Management

A
  • 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