Unit 3 AOS 3 Flashcards
Factors to be considered when initiating a civil claim
Limitation of actions: Most common claim, personal injuries, has a three-year limit. Defamation has a one year limit.
Costs: It is very expensive to take someone to court from things such as filing fees, expert witnesses, legal fees. Usually you will have the costs covered if you win however, this may not cover all of them.
Enforcement issues: Is it worth initiating the claim if the defendant will not be able to pay at all. Judgements can be enforced trougha garnished order or examination notice, ultimately a defendants property may be seized and sold.
Methods of dispute resolution
Mediation: The aim of Mediation is to resolve disputes in a cooperative manner
Strict rules of procedure, but these are based around discussion rather than evidence.
No rules about evidence – allows parties to discuss feelings and values, or identify underlying issues. The Mediator is an independent third party, whose role is to facilitate discussion and ensure both parties are heard. THEY DO NOT INTERFERE, MAKE A DECISION, OR SUGGEST RESOLUTIONS.
Concilliation: Same as mediation but unlike a mediator, the Conciliator will offer advice to parties, and suggest possible resolutions based on the discussion.
Arbitration: The aim of Arbitration is to resolve disputes through the legally binding decision of an Arbitrator. Their is an absence of formal rules of evidence and procedure ie. Arbitrator chooses how dispute will be handled. Parties put forward evidence, like they would at trial, which may involve the questioning of witnesses. The Arbitrator will listen to the evidence and arguments put forward, and then make a legally binding decision – this decision could be partially beneficial for both parties
Appropriateness of methods of dipute resolution
Mediation:
* When both parties are willing to attend
* When they are both willing to abide by the outcome
* Both must have future relationships in mind
* Both must be willing to compromise
* Both must be open minded when listening to eachother
Concilliation: Same as Mediation
Arbitration:
* When a decision needs to be legally enforceable
* When two parties cannot come to an agreement using other forms of Alternative methods
* When there is a history of broken promises
* Usually used for disputes between businesses
* Not accessible for everyone – usually part of terms of a contract
Institutions for resolving disputes
CAV
* A regulator and complaints body set up to ensure that businesses comply with consumer law and provide for limited conciliation services
* Support can be sought from consumers (buyers) and tenants
Participation in conciliation services is voluntary
VCAT
* A dispute resolution body set up to hear a broad range of civil and administrative matters, as an alternative to using the court system
* Less formal and more flexible than a court
* Utilise a wide range of methods
* Can compel parties to participate, and can resolve disputes in the absence of a party
Courts
* Able to hear all civil matters, with a higher level of formality than other institutions
* Utilise a wide range of methods, culminating in a civil trial/hearing with strict rules
Apprpriateness of institutions
Consumer Affairs Victoria
Jurisdiction/Eligibility: Limited, Consumer or tenancy disputes only, Can only be initiated by the consumer or tenant
Cost: Free, Limited eligibility – consumer and tenancy disputes only
Time: Quicker, Cooperative process, Encourage parties to resolve the dispute themselves
Formality: Lower, Cooperative process, Encourage parties to resolve the dispute themselves, Cannot compel parties
Outcome: Non-binding, Agreement based
Victorian Civil and Administrative Tribunal:
