Unit 3 AOS 2

Question 1

What is the burden of proof?

Answer 1

the party who has the responsibility to establish the case

Question 2

standard of proof

Answer 2

the degree to which the case must be proved

Question 3

factors that need to be considered before initiating a civil claim

Answer 3

costs, limitation of actions, enforcement issues

Question 4

costs

Answer 4

fees for legal rep, adverse costs, mediation fees, court fees. appealing to a higher court

Question 5

limitation of actions

Answer 5

a restriction on the time limit in which a plaintiff must commence a civil action in court, after which the plaintiff is unable to bring an action relating to the civil wrong against the defendant

Question 6

enforcement issues

Answer 6

a problem a plaintiff may need to consider regarding the capacity of a defendant to fulfil
their legal obligation to compensate the plaintiff.

• they are bankrupt
  -overseas

Question 7

limitation of action for
- Defemation
-negligence
-breach of contract
-personal injuries
-action to recover land
-action to claim the personal estate of a deceased person

Answer 7

Defemation-1 year
negligence- 6 years
breach of contract- 6 years
personal injuries- 3 years
action to recover land- 15 year
action to claim the personal estate of a deceased person -15 year

Question 8

fairness

Answer 8

Fairness the principle that all people
can participate in the justice system
and its processes should be impartial
and open

Question 9

equality

Answer 9

the principle that all people
engaging with the justice system and
its processes should be treated in
the same way. If the same treatment
creates disparity or disadvantage,
adequate measures should be
implemented to allow all to engage
with the justice system without
disparity or disadvantage.

Question 10

access

Answer 10

the principle that all people
should be able to engage with the
justice system and its processes
on an informed basis.

Question 11

original jurisdiction of courts

Answer 11

magistrates-civil claims under $100,000
county- unlimited
trial division- unlimited
appeal- n/a

Question 12

appellate jurisdiction of courts

Answer 12

magistrates- n/a
county- n/a
trial division- appeals from VCAT and Magistrates court on a question of law
appeal- appeals from vcat on a question of law. appeals from the county and supreme court

Question 13

reason for the court hierarchy

Answer 13

appeals, administrative convenience

Question 14

appeals

Answer 14

A party dissatisfied with the outcome of a civil dispute is not automatically entitled to have the decision reviewed on appeal.
Must be granted the permission to appeal a case, and have legal grounds for doing so. Grounds for an appeal include:
* questions of law
* questions of fact
* the remedy awarded.

Question 15

administrative convenience

Answer 15

The arrangement of the courts in the Victorian court hierarchy enables administrative convenience to be achieved

The superior courts, are free to devote time and resources to long, complex disputes as the court is not delayed by resolving minor disputes.

The lower courts, can quickly resolve a large number of relatively minor disputes, minimising delays for parties to such disputes.

Question 16

strengths and weaknesses of the court hierarchy achieving fairness

Answer 16

Positive
Appeals are available to everyone. All parties have the same opportunity to appeal a court’s decision

The administrative convenience achieved by separating disputes across the hierarchy minimises delays.

Negative
The party seeking to appeal must bear the cost of the application and legal fees. Some dissatisfied parties may be unable to afford to lodge an appeal

There are still many delays, despite the arrangement of the hierarchy, causing court backlogs, which is not fair.

Question 17

strengths and weaknesses of the court hierarchy achieving equality

Answer 17

Positive
Each dispute is heard in the appropriate court. This contributes to equality, as all people are treated the same despite characteristic differences

Negative
An appeal may not be available to some parties if they can not afford the cost. This limits equality if particular legal processes are not available to those of a low socioeconomic status.

Question 18

strengths and weaknesses of the court hierarchy achieving access

Answer 18

Positive
Parties automatically have access to the correct court for their matter.

The court hierarchy promotes transparency and accountability in the legal system, as decisions are published and subject to review and scrutiny by higher courts.

Negative
The party initiating an appeal is responsible for covering the expenses associated with the application and legal fees

Grounds for appeal must exist and leave to appeal may be necessary

Question 19

mediation

Answer 19

Mediation is a cooperative method of resolving disputes that is widely used by courts and tribunals. The two parties in conflict sit down and discuss the issues involved, develop options, consider alternatives, and try to reach an agreement with the help of a mediator. Once this is done, they may sign a term of settlement which reflects those agreements made and is enforceable by the court.

Question 20

appropriatness of mediation

Answer 20

Is appropriate (+)
- A relationship needs to be maintained.
- Parties are willing to discuss their issues.
- A prompt resolution needs to be reached.
- Lower legal fees are wanted.

Is not appropriate (-)
- Parties are unwilling to discuss their issues.
- There is a power imbalance.
- History of violence or threats.
- Wants a binding decision.

Question 21

mediation- fairness

Answer 21

Mediation does achieve the principle of fairness (+)
- Mediation allows parties to control the outcome of their dispute. This can ensure parties reach a fair outcome.
- The mediator is impartial, meaning there is no bias towards or against a party.
- Mediation can promote a fair outcome since it is faster than a trial- minimal delays in accessing a remedy.

Mediation does not achieve the principle of fairness (-
- A power imbalance between the parties may cause a forced and unfair resolution to be reached.
- The decision reached through mediation is not legally binding unless the parties sign a deed of settlement.
- Disputing parties must compromise and resolve the dispute without the opinion of the independent third party, which limits fairness if one party is unwilling to negotiate.

Question 22

mediation- equality

Answer 22

Positive
Unrepresented parties are unlikely to be disadvantaged as the mediator guides the discussion and therre are no formal rules of evidence and procedure to navigate.

Legal representation is usually not required for mediation and in many cases, a mediator will only permit a legal rep if both parties have a lawyer. If one party cannot find a lawyer both parties likely need to self represent promoting equality

Negative
If one party is more vulnerable or there is a power imbalance between the parties, a forced outcome may be reached that does not equally benefit both parties.

Question 23

mediation- access

Answer 23

Mediation is accessible as it is less costly than the courts, making remedies easier to obtain for the parties. Legal rep is often not required, minimising costs and enhancing access to seek justice.

The public nature of a trial can prevent parties from taking legal action if the subject of the dispute is sensitive. As mediation is more private, it promotes access to a resolution in such cases

Negative
In long-running disputes, mediation may be inappropriate as parties are unlikely to constructively communicate and reach a resolution.
Given legal representation is often not used in mediation, parties may need to present their own cases. This may be intimidating for certain people and discourage them from pursuing mediation.

Question 24

conciliation

Answer 24

Conciliation is a cooperative method of resolving disputes, involving the use of a third party, conciliator, to assist the disputing parties to resolve their conflict through negotiation and compromise.

Question 25

appropriatnes of conciliation

Answer 25

Is appropriate (+)
- A relationship needs to be maintained.
- Parties are willing to discuss their issues.
- Parties prefer privacy and confidentiality.
- There is an admission of responsibility. -

Is not appropriate (-)
Parties are unwilling to discuss their issues.
- There is a power imbalance.
- History of violence or threats.
- Wants a binding decision.

Question 26

concilation- fairness

Answer 26

Conciliation does achieve the principle of fairness (+)
- The conciliator acts as an unbiased, impartial opinion that favours neither party.
- Conciliation is faster than a trial, it reduces the courts’ workload and minimises delays. -

Conciliation does not achieve the principle of fairness (-)
There may be a power imbalance between parties that can cause a forced resolution to be reached, limiting fairness.
- The decision reached through conciliation is not always legally binding, meaning there is a risk that a party may fall back on the agreement.

Question 27

conciliation access

Answer 27

Conciliation does achieve the principle of access (+)
- Paying a conciliator is much cheaper than the cost of paying a court to conduct a trial.
- Conciliation is conducted in a more supportive, manner than a trial. The intimidating nature of a trial may discourage some individuals from pursuing a case.

Conciliation does not achieve the principle of access (-)

There may be a power imbalance between parties that can cause a forced resolution to be reached,
The decision reached through conciliation is not always legally binding, meaning there is a risk that a party may fall back on the agreement.
- In long-running, disputes, parties are unlikely to constructively communicate and reach a resolution, thus limiting access.

Question 27

conciliation- equality

Answer 27

Conciliation does achieve the principle of equality (+)
- As formal rules of evidence and procedure do not apply, each party in the dispute can feel equally supported.
- In many cases, a conciliator will only permit legal representation if both parties have a lawyer. If one person does not have a lawyer, both parties will usually self-represent. -

Conciliation does not achieve the principle of equality (-)
If one party is more vulnerable or there is a power imbalance between parties, especially if no legal representation is present, a ‘forced’ outcome may be reached that does not equally benefit both parties.

Question 28

arbitration

Answer 28

Arbitration is a method of resolving disputes without a formal court process. An independent arbitrator will listen to both sides and make a decision that is binding on the parties. This is often conducted in private, and it can be less formal and more cost effective than attending a court hearing or trial.

Question 29

appropriatness of arbitration

Answer 29

Is appropriate (+)
- Parties agree to participate in arbitrations. This may include parties having a contractual agreement.
- The disputes involve civil damages of less than $10,000- issued by a Magistrate.
- The case requires a binding and enforceable decision. -

Is not appropriate (-)  Parties do not agree to arbitrate. -	Parties are comfortable navigating complex court rules of evidence and procedure.  -	Parties would like greater control over the outcome of the case.

Question 30

arbitration- fairness

Answer 30

Arbitration does achieve the principle of fairness (+)
- There are fewer delays involved compared to courts.
- The arbitrator is an independent third party. -
Arbitration does not achieve the principle of fairness (-)
They have limited rights to appeal the decision.
- Power imbalance because of one party having legal rep.

Question 31

arbitration- equality

Answer 31

Arbitration does achieve the principle of equality (+)
- Arbitration is a relatively flexible process that supports each party to freely represent themselves.
- If one party is self-representing, the arbitrator will assist this party to ensure they understand the arbitration process. -

Arbitration does not achieve the principle of equality (-)
Power imbalance the party without legal rep may not fully understand the proceedings.
- The lack of publicity from arbitration meaning there is less consistency and equality as the arbitrator is not basing their precedent decision.

Question 32

arbitration- access

Answer 32

Arbitration does achieve the principle of access (+)
- Arbitration is not bound by formal court procedures making it more accessible to parties.
- The arbitration process cannot be viewed publicly encouraging the use of arbitration.

Arbitration does not achieve the principle of access (-)

Arbitration is often more expensive than mediation and conciliation which may prevent parties from pursuing arbitration.

Question 33

define judge

Answer 33

an independent authority who presides over a trial, ensuring procedural fairness by overseeing all personnel and evidence.

Question 34

roles of the judge and magistrate

Answer 34

case management
manage the trial or hearing
apply the rules of evidence and procedures
direct the jury- judge
remain unbiased
determine the liability of a defendant - magistrate
award remedies

Question 35

Case management powers 

Answer 35

the ability of a judge or magistrate to make orders and provide directions to the parties
about the proceedings, with the aim of
ensuring justice is delivered efficiently

Question 36

judge- fairness

Answer 36

Positive
Independent judges and magistrates ensure trials are conducted without bias and according to rules of evidence, thus contributing to fairness as the decisions are based on law and facts alone.
Negative
Judges and magistrates rely on the parties to present all of the evidence and facts of the dispute during a trial. If parties have no legal representation, this may prevent all of the relevant facts from being presented to the court, or in their best light, thus leading to an unfair trial.

Question 37

differences between the role of judges or magistrates
in criminal and civil cases

Answer 37

in criminal they do jot ahve a pre-trial case managment such as ordering mediation

a magistrate will determine the guilt whereas in civil its liability

in criminal the judge will impose a sanction if found guilty whereas in civil they award damages or order an injunction

Question 37

judge access

Answer 37

Positive
Judges and magistrates’ case management powers, such as setting time limits for evidence and ordering mediation, minimise the cost of civil disputes.

Negative
Accessing a hearing or trial presided by a magistrate or judge can be challenging due to the associated high costs and time-consuming nature of the proceedings. As a result, the courts and the expertise of judicial officers may be inaccessible for many members of the community

Question 37

judge equality

Answer 37

+
Judges and magistrates ensure rules of evidence and procedure apply equally to all parties during a civil dispute.
Negative

Whilst judges and magistrates are impartial, judicial officers, they are still subject to personal bias and may unconsciously discriminate against certain parties and personal characteristics, limiting equality.

Question 38

Similarities between the role of judges or magistrates in criminal and civil cases

Answer 38

act impairtial
ensure correct procedure is followed
if there is a jury they must give them directions

Question 39

role of jury- civil

Answer 39

remain objective
listen to evidence, judges directions, and submissions made by legal rep
determine liability and damages

Question 40

jury equality- civil

Answer 40

Positive
Both parties have the capacity to request a jury trial in a civil dispute regardless of personal characteristics, therefore upholding equality.

Negative
A party may wish to have a jury trial, but may be unable to bear the cost. This limits equality as those of a low socioeconomic status are less likely to utilise a civil jury trial.

Some individuals are ineligible for or disqualified from jury service, and as a consequence, parties may not feel the jury is a true cross-section of the community. This may undermine equality to a trial by one’s peers.

Question 41

jury fairness- civil

Answer 41

Positive
A randomised cross-section of the community is used to determine the verdict, so the parties to a civil dispute should feel their case has been decided by their peers and according to a diverse range of views, promoting fairness.

Juries cannot seek additional information about the case beyond the courtroom and are instructed to disregard any prior knowledge of the dispute. This promotes fairness as it encourages jurors to remain impartial.

Negative
Making decisions in legal cases is a complex task, and when undertaken by people with no legal training, there is a greater risk of an unfair verdict.

Jurors are not required to provide the rationale for their verdict, meaning there is no guarantee the law has been correctly applied based on the facts presented.

Question 42

jury access- civil

Answer 42

Positive
The presence of juries decreases the use of legal jargon, and ensures the jury understands the court’s procedures and the evidence. This allows both parties to understand the processes being used to determine their case, promoting access to justice.
Negative
Additional fees are required for jury trials, so it may not be financially viable for some parties to request them. This financial constraint makes trial by jury inaccessible for some parties.

Access to efficient dispute resolution may be delayed by the use of a jury as extra time is required to empanel a jury.

Hung juries and mistrials due to juror misconduct, can require a retrial and further delay the achievement of justice. This hinders efficient and timely access to justice.

Question 43

Similarities and differences between the role of juries in criminal and civil cases

Answer 43

remain imparitial- make decision on facts
are obliged to listen during the trial

differences
determine guilt or innocenece inc riminal beyond reasonable doubt, civil is determine liability on the balance of probabilities.

jury never impose sanctin but in some civil cases they play a role in determining hte amount of damages .

Question 44

The role of the plaintif

Answer 44

contorl their case
disclosure
present evidence

Question 45

The role of the defendant

Answer 45

contorl their case
disclosure
present defences

Question 46

parties fairness- civil

Answer 46

party control contributes to fairness as parties
can participate in, and have control over, the civil
court processes.

weaknesses
Self-represented parties may not understand which documents are relevant and therefore, may fail to disclose all relevant evidence to the court.

• Self-represented parties may struggle to
  understand how to present legal arguments and
  evidence in the best possible light, which may
  lead to an unjust outcome.

Question 47

parties equality- civil

Answer 47

+given equal opportunity to present their case
must abide by court processes adn procedures
-
mot all parties are equally equpped to presnt ethier case to a judge case of low income.

Question 48

parties access- civil

Answer 48

courts provide general guidance to parties who are representing themselves regarding ocurt procedures

weaknesses
vic legal aid are oftne unable to support parties in civil leaving defendant without legal rep parties without legal rep may struggle to understand their rights.

Question 49

the need for legal practitioners

Answer 49

Advise clients on their legal rights,
Present evidence and cross-examine witnesses
Provide objectivity
Ensure documents are properly drafted and handled
Provide support

Question 50

legal prac fairness- civil

Answer 50

Positive
Legal practitioners can help parties navigate a civil dispute by advising them about the law and legal proceedings

Legal practitioners have greater objectivity when making decisions in a civil dispute as they do not have a personal or emotional connection to the issues of the dispute. As a result, the evidence they collate and their questions to witnesses can allow an impartial account of events to emerge.

Negative

When only one party has legal representation it may lead to an unfair outcome, as each party cannot
prepare and present a case of the same quality.

Quality lawyers are often expensive, therefore a party may only be able to seek a lower-quality lawyer. The quality of the presentation of the case may influence the outcome, therefore the outcome is not solely based on the judge and/or jury’s impartial assessment of the facts. This is unfair to the poorly represented party.

Question 51

legal prac equality- civil

Answer 51

Positive
All parties in a civil proceeding have the same ability to choose their own legal representation.

Judges or magistrates in a civil dispute have a duty to assist all self-represented litigants by informing them about legal practices and proceedings involved in the dispute. This can ensure a self-representing party is not at such a significant disadvantage to a party that has legal representation, promoting equality.
Negative
Some financially-disadvantaged parties may be unable to afford good quality legal representation, or any at all.

If both parties choose to self-represent during an in-court civil dispute or out-of-court settlement, one party’s legal knowledge may be better than the other party’s

Question 52

legal prac access

Answer 52

Positive
Legal practitioners help parties to prepare and present their case, increasing access to justice as a party’s understanding of the law and legal proceedings is increased.

Some law firms use a ‘no win, no fee’ arrangement which may encourage a plaintiff to seek justice as, where they lose the dispute, no financial burden is incurred.

Negative
The costs of legal practitioners make it less accessible for many individuals.

Access to justice includes understanding one’s legal rights. Therefore, parties without representation may not understand the procedures used in court and other dispute resolution processes, limiting their access to justice

Question 53

class actions

Answer 53

A class action occurs when a group of people with the same legal grievance come
together to initiate a single, civil action

Question 54

critearia of class actions

Answer 54

Seven or more people are claiming against the same defendant (s).
The claim must be in respect of, or arise from, the same, similar, or related circumstances.
The claim must give rise to a common issue of law or fact, meaning the same issues are determined by the court for all claims.

Question 55

types of class actions

Answer 55

workplace accidents
medical malpractice
financial malpractice
preventable natural disaster
faulty or dangerous goods or services

Question 56

class actions fairness

Answer 56

positive
- Class actions are managed by experienced and
impartial judges, therefore ensuring the case
is conducted efficiently and impartially
-Class actions are usually supported by experienced
lawyers, therefore ensuring the case is presented
in the best possible light for all group members

negative
If the amount of compensation received is less
than anticipated, the group members may not
be compensated sufficiently
Juries are not available if a class action is
commenced in the Federal Court, meaning the case
will not be determined by an impartial cross-section
of society, limiting fairness.

Question 57

class action equality

Answer 57

+
If litigation funding is obtained, this may allow
a class action to commence as the costs are covered,
ensuring group members are not disadvantaged
on the basis of their socioeconomic status.
-
* If litigation funding is not obtained, a lead
plaintiff may be unwilling or unable to bear the
costs associated with bringing a class action,
disadvantaging them on the basis of their
socioeconomic status.
* The lead plaintiff must assume the risk and cost
of the litigation on behalf of the entire group, whilst
the other group members are not required to do so.
This may be seen as unequal as the plaintiffs are
not treated in the same way.

Question 58

class action access

Answer 58

+
Individuals who cannot afford to initiate a civil
claim by themselves can still access the justice
system by joining a class action.
* Class actions save the courts’ time and resources
by grouping together numerous claims
-
Class actions can be extremely costly and,
consequently, third-party funders are often required.
Without these funders, some class actions may not
commence, reducing access to the justice system.
* Class actions can take time to be heard,
sometimes several years, thus delaying access
to a potential remedy.

Question 59

CAV jurisdiction

Answer 59

A complaint against a business by a consumer- These disputes often involve a dispute about the supply of goods and services.
a complaint against a landlord by a tenant

Question 60

purpose of CAV

Answer 60

Providing information and advice.
Providing accessible dispute resolution services.
Providing an avenue to resolve minor disputes efficiently and with minimal costs.

Question 61

dispute resolution method used by CAV

Answer 61

CAV primarily offers dispute resolution services over the phone to try to resolve the dispute. In some cases, more tailored services can be provided such as an in-person conciliation

Question 62

appropriateness of CAV

Answer 62

CAV is appropriate when
-The dispute falls within CAV’s jurisdiction.
-Both parties are willing to attend and participate in conciliation.
-Parties wish to avoid costs and delays associated with resolving disputes through the courts or VCAT.

CAV is not appropriate when
The dispute does not fall under CAV’s jurisdiction.
The dispute is a class action.
One or more parties want a legally binding decision.

Question 63

cav fairnes

Answer 63

STRENGTHS
* CAV provides a quick method of dispute resolution
that allows parties to reach a just outcome without
experiencing the stress and delay associated
with a trial, ensuring impartial processes, thereby
achieving fairness.
* CAV is free, which ensures parties that who cannot
afford to bring their claim through the courts
or VCAT are still able to participate in the justice
system and receive a just outcome to their dispute.
* CAV’s conciliation process enables parties
to attempt to resolve their dispute themselves
with the assistance of a conciliator, potentially
leading to a fair outcome where both parties
reach a beneficial resolution.

LIMITATIONS
* CAV cannot force parties to attend and participate
in conciliation, which can be unfair if one party
is willing to reach a resolution through conciliation
but the other is not.
* CAV cannot impose a legally binding resolution,
meaning there is a risk of non-compliance
with agreements reached during conciliation,
limiting fairness.

Question 64

cav equality b

Answer 64

STRENGTHS
* CAV uses a conciliator to facilitate discussions
between parties, which can ensure both parties
have the same opportunity to present their
perspective and reach a mutually acceptable
resolution, achieving equality.
*
LIMITATIONS
CAV has limited jurisdiction and is only available
as a means of dispute resolution for a small
proportion of civil matters. Thus, not all parties
to a civil dispute have the same ability to obtain
CAV’s services.

Question 65

CAV access

Answer 65

STRENGTHS
* CAV provides free services to all members of the
Victorian public and is therefore an accessible
method of dispute resolution.

• CAV uses the informal process of conciliation,
  which is conducted in a less intimidating manner
  than a trial, potentially encouraging individuals
  to willingly pursue their civil claims and engage
  with the justice system.

LIMITATIONS
* CAV has limited jurisdiction, meaning many disputes
cannot be resolved using CAV’s conciliation, limiting
access to justice.
* CAV’s conciliation process may not result in an
agreement to resolve the dispute, limiting access
to justice.

Question 66

VCAT

Answer 66

Victorian Civil and Administrative Tribunal (VCAT) a dispute resolution body that has the power to hear and determine certain types of civil and administrative disputes

Question 67

What disputes fall outside of VCAT’s jurisdiction?

Answer 67

class actions
* cases where parties are residents from different states
* cases involving the exercise of federal jurisdiction
* cases where the Commonwealth of Australia is a party
* cases involving the Australian Constitution.

Question 68

Purposes of VCAT

Answer 68

To provide low-cost dispute resolution services
To provide efficient dispute resolution service
To provide accessible dispute resolution services

Question 69

dispute resolution method used- VCAT

Answer 69

fast tracked mediation and hearing- under $10,000
mediation
compulsory conferences

Question 70

appropriateness of VCAT

Answer 70

VCAT is appropriate when
The dispute falls within VCAT’s jurisdiction.
Parties prefer an informal dispute resolution process.
Parties are willing to appeal only on questions of law.
Parties want a low-cost and time efficient resolution to their dispute.

VCAT is not appropriate when
The case does not fall within VCAT’s jurisdiction.
The case is a class action.
Parties want greater ability to appeal.

Question 71

VCAT fairness

Answer 71

STRENGTHS
* Outcomes at VCAT hearings are legally binding,
promoting fairness as it ensures the parties abide
by VCAT’s decisions.
* VCAT encourages parties to resolve matters
through methods such as mediation which allows
parties to have control over the outcome.
* VCAT members are impartial and independent,
ensuring procedures are conducted in an unbiased
manner, promoting a just outcome to the dispute.

LIMITATIONS
* VCAT does not utilise juries and, therefore, does
not allow parties to have a trial by their peers.
* VCAT does not require legal representation,
although some parties may choose to be legally
represented. This may result in an unfair outcome
where one party is unable to represent their case
in the best possible light.
* There is a limited right to appeal VCAT decisions,
which may be seen as unfair to parties dissatisfied
with the outcome of their case.

Question 72

VCAT equality

Answer 72

STRENGTHS
* During a hearing, a VCAT member may take
special measures to allow those with significant
social, cultural, or physical disadvantages to
participate fully, ensuring equitable processes
and therefore, promoting equality.
* Both sides have equal opportunity to present their
case during mediation, a compulsory conference,
and a final hearing.

LIMITATIONS
* VCAT has limited jurisdiction and cannot resolve
large and complex disputes, such as class actions
or defamation. Thus, it is not equally available for
all civil disputes.
* If a party is self-represented, they may be at
a disadvantage as a result of being unable to
present all relevant evidence to prove their case.
This creates an inequality between the parties.

Question 73

VCAT access

Answer 73

STRENGTHS
VCAT provides low-cost dispute resolution
services, and the processes are less formal

VCAT aims to be accessible to all Victorians
by using phone and video conferences for some
hearings, mediations, and compulsory conferences.

LIMITATIONS
VCAT can only resolve matters within its
jurisdiction, meaning some civil matters must
proceed to the courts, reducing access to justice
for some, such as if they cannot afford to take the
matter to court

• Access to appeals is limited as appeals can only
  be made on a question of law.

Question 74

courts purpose civil

Answer 74

Provide access to an independent, experienced, and knowledgeable judicial officer
Enforce procedural fairness
Provide access to a trial by jury
Provide a dispute resolution avenue for class actions
Provide a legally binding outcome
Order a remedy

Question 75

Appropriateness of the courts

Answer 75

Circumstances where the courts are appropriate
The claim falls within the courts’ jurisdiction and does not fall under VCAT’s exclusive jurisdiction.

If the parties prefer to have an independent and experienced judge or magistrate impose a legally binding decision.

It is a large and complex civil claim, such as a class action

Circumstances where the courts are not appropriate
If the parties want to negotiate and resolve the dispute themselves.

If the parties do not want to deal with the formalities and complexities of a court proceeding. *

If the parties prefer less costly and time-consuming dispute resolution methods, like mediation or conciliation.

Question 76

courts fairnesss- civil

Answer 76

STRENGTHS
Judges are independent, impartial, and knowledgeable decision-makers, meaning they can objectively listen to the evidence presented and produce a just outcome.

Jurors, if used, can encourage a fair outcome that reflects the views and values of a cross-section of society

LIMITATIONS
Court trials are often time consuming and can face
delays due to their complex processes.

If a party is self-represented, the possibility of an
unfair trial is increased as legal processes and
proceedings are difficult to navigate without
legal experts.

Question 77

courts equality- civil

Answer 77

STRENGTHS
The court procedures and laws apply equally to both parties. The plaintiff and defendant must follow the same rules, laws, and procedures. \

Parties have an equal opportunity to present their case before the court.

LIMITATIONS
If only one party has legal representation, the self-represented party may not be on equal footing
The cost of using the courts to resolve a civil dispute can disproportionately impact individuals of lower socioeconomic status, placing them in a disadvantaged

Question 78

courts access civil

Answer 78

STRENGTHS
* Court hearings and trials enable parties to access a binding resolution that is legally enforceable.
* The courts’ jurisdiction covers a range of civil matters, making it easier for parties to access a dispute resolution body that can resolve their dispute and provide a remedy.
*
LIMITATIONS
The high cost of court proceedings and legal representation can make the courts inaccessible to parties.
* A jury is paid for by the parties in civil law. This may limit the ability of parties to have their case determined by a cross-section of the community, due to the associated costs.
* Without legal representation, the court system can be difficult and complex to understand, imiting a party’s ability to access justice via the courts.

Question 79

Types of legal costs incurred during a civil dispute- impact of costs

Answer 79

barrister fees, expert witness fees, court fees, jury fees, appealing

Question 80

costs- fairness

Answer 80

STRENGTHS
The court can order adverse cost orders that
encourage a fair outcome, as the successful
party may have some or all of their legal costs
compensated.

LIMITATIONS
The high costs associated with defending or pursuing a civil claim may encourage some defendants to settle rather than challenge a claim, leading to an unfair outcome

Question 81

costs- equality

Answer 81

strengths
Less costly dispute resolution bodies, such as VCAT,
may not require legal representation, enabling both
parties to equally present their version of events
and mutually reach a resolution.
LIMITATIONS
Self-represented parties may be on unequal footing with skilled lawyers in the courtroom and may not possess the same ability to argue their case.

Parties do not equally have the opportunity to have their civil disputes resolved, due to the costs associated with pursuing a civil claim.

Question 82

costs- access

Answer 82

STRENGTHS
* Judicial powers of case management that allow judges to order parties to attend mediation can reduce legal costs as the matter can be promptly resolved,
* The use of alternative dispute resolution
methods, if successful, as they are low cost and relatively informal.
LIMITATIONS
the high costs associated with civil proceedings, high costs of defendning or pursuing a civil claim
-access to a jury
-filing for appeal- high costs

Question 83

impact of time

Answer 83

court backlogs, vcat delays, gathering evidence and preparation for a trial, trial procedures

Question 84

time- fairness

Answer 84

STRENGTHS
-VCAT have lower waiting times than the courts can enable disputes to be heard and determined in a timely manner encouraging a fair and just outcome.
-Case management powers can reduce the
time taken to resolve a dispute, and encourage
procedural fairness
LIMITATIONS
-delays compromise the application of procedural fairness and increase stress for all parties.
-delays can negatively impact the credibility of evidence

Question 85

time-equality

Answer 85

STRENGTHS
orders and directions given by a dispute resolution body to reduce delays applies equally to both parties.
LIMITATIONS
-The use of case management powers can differ
between judges, creating the potential for
unequal treatment of parties in the courts.
-Delays are likely to disproportionately affect
parties that are unfamiliar with court proceedings and those in vulnerable circumstances

Question 86

time access

Answer 86

STRENGTHS
-The range of dispute resolution bodies available
to parties can ensure justice is accessible and
delivered in an efficient manner.
- Judicial powers of case management
- The use of alternative dispute resolution methods, such as mediation, can promote access as they may result in the prompt resolution of a case.
LIMITATIONS
-The delays in the justice system may discourage
a prospective plaintiff from initiating legal action
in the first place, limiting access to a remedy.

-Parties may be forced to withdraw or settle their
case due to limited financial resources, reducing
access to justice.

Question 87

damages

Answer 87

Damages compensate a plaintiff in a civil case for the loss caused by the civil breach,
including replacing the value of property and covering expenses, loss, pain, and
suffering relating to a victim’s injury or death

Question 88

remedy

Answer 88

A court order that aims to enforce a right by preventing a civil breach, or correct a civil breach and return the plaintiff to the position they were in prior to the breach by the defendant.

Question 89

different types of damages

Answer 89

compensatory damages.
* exemplary damages.
* nominal damages.
* contemptuous damages.

Question 90

Compensatory damages

Answer 90

Compensatory damages aim to restore the plaintiff to their original position.
There are three types of compensatory damages, which all aim to compensate
the plaintiff and account for different types of loss:
* specific
* general
* aggravated

Question 91

specific damages

Answer 91

Have a precise value and are easily quantifiable. The amount can be calculated.

example
-Compensation for medical expenses or loss of
earnings resulting from an inability to work.

Question 92

General damages

Answer 92

Do not have a precise value and are not easily quantifiable. They are awarded where the plaintiff has endured general pain and suffering, loss of quality of life, or a shortened life expectancy.

example
- Compensation for a defendant’s actions that resulted in the plaintiff’s inability to walk and live independently, leading to a diminished quality of life

Question 93

Aggravated damages

Answer 93

Aim to further compensate the plaintiff for humiliation suffered or where they have been insulted.

example
- In cases where a patient receives substandard medical care and is subject to ridicule or disgrace by the medical staff, they may be entitled to compensation for the humiliation and emotional distress caused.

Question 94

Exemplary damages

Answer 94

aims to punish the defendant. They usually require a defendant to pay a plaintiff large amounts of money, whilst they serve to deter others from behaving in the same way. These damages may be awarded in circumstances where a civil breach is driven by cruelty, revenge, or a disregard for the plaintiff’s rights

Question 95

nominal damages

Answer 95

Nominal damages require an extremely small amount of money to be paid to a
plaintiff, usually valued at $1. These damages are used to ensure the plaintiff’s rights
are upheld without providing compensation

Question 96

Contemptuous damages

Answer 96

Contemptuous damages acknowledge that the plaintiff had a legal right but not a
moral right to make a civil claim against the defendant. To condemn the immorality
of the claim, minimal compensation is awarded.

Question 97

purposes of damages

Answer 97

To return the plaintiff to their original position
To deter others from committing civil breaches
To uphold the plaintiffs rights.

Question 98

injunctions

Answer 98

A court order directing a person to undertake a specific action, or to stop (cease) a specific action. Normally, ordered to prevent harm or further harm, to the plaintiff

Question 99

Mandatory injunction

Answer 99

Forces parties to do
something.

example- Ordering a party to demolish a wall that they built on someone
else’s land.

Question 100

Restrictive injunction

Answer 100

Prevents parties from doing something.

example- Preventing a property
from being sold.

Question 101

Interlocutory injunction

Answer 101

Only lasts for a short time and is often awarded in urgent circumstances

example

Question 102

final injunction

Answer 102

Permanent injunction
that is ongoing.

Preventing a publisher
from printing a
defamatory book.

Question 103

ability of injunctions to achieve their purpose

Answer 103

• Whether the defendant will comply. If the defendant does not comply with the it will not prevent further harm to the plaintiff.
• Whether harm has already been suffered If the plaintiff has already suffered loss or damage, an injunction alone may not be able to address that harm.
• Interlocutory injunctions are merely temporary and when the time period has been completed, the defendant is able to continue their disruptive behaviour

Question 104

ability of damages to achieve their purpose
- compensatory

Answer 104

Whether the loss suffered was financial loss only.
Whether the loss suffered was pain and suffering- mental anguish as sometimes there are not quantifitable.
whether future loss has been suffered may be harder to quantify.
Whether the damages are actually paid- if they are bankrupt then the postion cannot be returned for the plaintiff

Question 105

ability of exemplary damages to achieve their purpose.

Answer 105

the amount of exemplary damages is small it may not be sufficient to punish the defedant or act as a detterent.
the ability of the defendant to pay
the extent to which the award of damages is known to deter others

Question 106

ability of exemplary damages to achieve their purpose.

Answer 106

whether the plaintiff has suffer loss- if they didnt then the plaitiff rights maynot be uopheld

the amount of damages- too samll people may not view it as upholding their rights

the costs incurred. they may have incurred significant costs to intiate and ocnduct the civil claim.