UNIT 3 AOS2 - SAC 2a (civil)

Question 1

Define the principle of justice fairness.

Answer 1

All people can participate in the justice system and its processes should be impartial and open.

Question 2

Define the principle of justice equality.

Answer 2

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 3

Define the principle of justice access.

Answer 3

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

Question 4

List some features of the principle of justice fairness.

Answer 4

• Does not mean that every plaintiff should have the same outcome.
• There should be open hearings or trials and the processes involved at every step should be transparent.
• Judges, magistrates and juries should be impartial.

Question 5

List some features of the principle of justice equality.

Answer 5

• No person or group should be treated favourably or unfavourably.
• Processes should be free from bias or prejudice.
• Victorian Charter of Human Rights & Responsibilities Act = “every Victorian has the right to be equal before the law”.

Question 6

List some features of the principle of justice access.

Answer 6

• People should be able to engage with the justice system and its processes on an informed basis.
• Should be able to get information about their rights and what remedies.
• EG. courts, tribunals and bodies and institutions that provide legal advice/representation, etc.

Question 7

Define and explain the burden of proof.

Answer 7

The obligation of a party to prove a case. The burden of proof usually rests with the party who initiates the act.

• The plaintiff has to show that the defendant was in the wrong.
• Follows the principle that the party who brings the case has to satisfy the court (or tribunal) that their claim is supported.

Times when the defendant has the burden of proof:
- Counterclaims
- Raises a defence

Question 8

Define and explain the standard of proof.

Answer 8

The degree or extent to which a case must be proved in court i.e. the strength of evidence needed to prove the liability of the defendant.

• ‘On the balance of probabilities’.
• This means that the party must prove that they are most probably or most likely in the right.
• Much less onerous standard than in criminal law.

Question 9

Define and explain representative proceedings/class actions.

Answer 9

A legal proceeding in which a group of people who have a claim based on similar or related facts bring that claim to court in the name of one person.

• Class actions are also known as representative proceedings.

A class action can be commenced where:
- Seven or more people have claims against the same person.
- Those claims relate to the same, similar or related scenario.
- The same issues need to be decided (where a duty of care was owed).

Lead plaintiff = person who commences the action.
Group members = persons who are a part of the group.

Types of class actions include:
- Shareholder class actions
- Product liability class actions
- Natural disaster class actions

Question 10

Briefly explain the background of deciding whether to take civil action.

Answer 10

• Dispute resolution methods help reach a suitable outcome as it is cheaper and quicker.
• Encouraged to resolve their disputes outside of court through a variety of alternative dispute resolution (ADR) processes.

Ways individuals can respond to disputes:
- Leaving things the way they are.
- Try and reach and agreed outcome.
- Asking a mutual person known by both parties to assist.

Using a person or organisation not involved in the dispute such as:
- A government body
- A lawyer
- An ADR practitioner
- Ombudsman
- Tribunal
- Court

Question 11

List the factors that need to be taken into account when deciding whether to initiate a civil claim.

Answer 11

• Costs
• Limitation of actions (LOA)
• Enforcement issues

Question 12

Define and explain costs.

Answer 12

Costs are the amount of money that has to be paid to resolve a legal dispute.

• Parties don’t often consider the risks of commencing a civil claim.
• Courts such as the Magistrates’ Court provide information that outline costs, along with the non-trial options available.

Question 13

List the factors to consider about costs before taking court action.

Answer 13

• Legal fees, filing fees (see p. 196), court costs, and payment of expert witnesses.
• The party who wins a civil case in court is entitled to recover some of their legal costs from the loser (adverse costs).
• Even if a case is successful, the individual initiating legal action must be advised that legal costs they are entitled to may be less than the amount their lawyer charges.
• Are the parties able to make or accept a ‘reasonable’ offer to attempt to settle out of court. EG. a party who fails to accept a reasonable out-of-court settlement may face additional legal costs.
• There is no point in pursuing a civil claim when the defendant has no money to pay.

Question 14

Define and explain the limitations of actions (LOA).

Answer 14

Restriction placed on the time within which a civil action can be commenced.

• Does not apply to claims of child sexual or physical abuse.
• The plaintiff will need to commence the proceeding within a certain time.
• Once that period has passed, the defendant may be able to raise a defence.
• Statute = Limitation of Actions Act 1958 (Vic).

Question 15

List the factors to consider about the limitations of actions before taking court action.

Answer 15

Reasons for imposing limitations on the plaintiff is so that:
- The defendant does not have to face an action after a significant amount of time.
- The evidence is not lost.
- Disputes can be resolved as quickly as possible.

Question 16

List the limitations of actions in certain time frames for different claims.

Answer 16

Defamation = 1 year
Tort (where there is injury disease/disorder) = 3 years
Action to recover arrears of rent = 6 years
Breach of contract = 6 years
Under tort law = 6 years
Action to recover land = 15 years

Question 17

Explain enforcement issues.

Answer 17

Enforcement issues are issues enforcing the defendant to pay damages.

Two ways that a plaintiff will obtain a settlement or remedy:
- By settling with the defendant before the court or tribunal hands down a decision.
- By obtaining a remedy from a dispute resolution body such as a court.

Enforcement issues relate to whether the defendant refuses to pay, or cannot pay, damages.

Question 18

List the factors to consider about the enforcement issues before taking court action.

Answer 18

• Is the defendant bankrupt?
• Is the defendant in jail?
• Does the defendant company have any assets?
• The plaintiff may have to issue enforcement proceedings to force a defendant to comply with a remedy.

Question 19

Where would you go to initiate a civil claim/issue?

Answer 19

Dispute resolution body: Relevant court, VCAT or CAV.
Dispute resolution method(s): Judicial determination, mediation, conciliation, arbitration.

Question 20

Describe mediation.

Answer 20

Cooperative method of resolving disputes.

Joint problem-solving process where parties in conflict sit down & discuss issues, develop options, consider alternatives and reach a mutual agreement.

With a third party to facilitate the discussion but not engage in it which means to ensure the process is respectful but not provide any input into their decision.

Question 21

Explain the factors of mediation.

Answer 21

Role of parties – listen to one another, resolve issues and suggest solutions

Role of third party – Mediator does not interfere with discussions / facilitates discussion between parties, ensures they’re both being heard – does not make decision

Decision maker – The parties make the decision themselves

Binding decision – Not without signing a deed of settlement

Question 22

List the advantages and disadvantages of mediation.

Answer 22

ADVANTAGES:
- Allows parties to have their say without rules of evidence and procedure.
- Provides parties with an opportunity to enter into a voluntary agreement between themselves.
- If a dispute is not resolved the mediation process can help to clarify issues in a dispute.

DISADVANTAGES:
- One party may be uncooperative.
- One party may not attend.
- One party may try to dominate proceedings.

Question 23

Explain where mediation is used.

Answer 23

Courts
- Magistrates’, County & Supreme Courts refer civil cases to mediation to speed up resolution of civil disputes and reduce backlog of cases.
- Courts may order parties to mediation without their consent.

VCAT
- Encourages parties to utilise ADR methods such as mediation before having it settled by the tribunal.
- Preferred ADR method in VCAT is mediation.
- Often used in the human rights list.

Question 24

Describe conciliation.

Answer 24

Conciliation involves dispute resolution between parties with the assistance of a third party ultimately working towards an agreement made by parties.

Question 25

Explain the factors of conciliation.

Answer 25

Role of parties – listen to one another, resolve issues and suggest solutions – may have representation to assist them. Role of third party – Conciliator facilitate flow of communication may offer suggestions / solutions to assist parties. Decision maker – The parties make the decision themselves (voluntarily). Binding decision – Not without signing a deed of settlement.

Question 26

List the advantages and disadvantages of conciliation.

Answer 26

ADVANTAGES: - Not as formal as going to court - Conciliator can provide direction and suggestions. DISADVANTAGES: - Parties may prefer to reach agreement between themselves without interference by a third party. - Parties may feel directed into making a resolution that they do not want. - One party may be dominant pressuring the other.

Question 27

List the appropriateness of mediation & conciliation.

Answer 27

APPROPRIATE: - A relationship between the parties will continue. - Both parties are prepared to meet in a spirit of compromise and are willing to stick to any agreement reached. - A defendant admits liability and the only issue to determine is the amount to be paid. - The parties want privacy and confidentiality when resolving the matter. - Disputes requiring a combination of remedies to achieve the plaintiff ’s outcome. - The court has referred the parties to mediation or conciliation. - Disputes in which the parties expect the legal costs will be significant and the matter can be resolved at an early stage. INAPPROPRIATE: - Overwhelming emotions might interfere with the negotiating process. - Disputes in which there is a history of violent and threatening behaviour (e.g. domestic violence). - Disputes in which one or both of the parties are unwilling to try to reach a mutual agreement. - There is a gross imbalance of power between the parties. - Disputes in which a debt is clearly owing by one party (e.g. failure to pay the balance of a car). - Where the matter is urgent.

Question 28

Explain where conciliation is used.

Answer 28

COURTS: - Used where a third party is required to help resolve the dispute. - The Family Court order compulsory conferences run using conciliation before a matter will go to court to encourage a genuine attempt to resolve the dispute and encourage compromise. VCAT: - Often used in the civil claims list to promote a settlement before the matter comes before the tribunal. CAV: - CAV’s main dispute resolution method is Conciliation.

Question 29

Describe arbitration.

Answer 29

Arbitration is a method of resolving disputes without the formalities of court processes. An independent third party will listen to both sides before making a binding decision on the matter.

Question 30

Explain the factors of arbitration.

Answer 30

Role of parties – 2 parties, may have representation present evidence and arguments to the arbitrator. Role of third party – Arbitrator listens to evidence & arguments and makes a decision on behalf of parties. Decision maker – The Arbitrator. Binding decision – Yes, the decision must be followed.

Question 31

List the appropriateness of arbitration.

Answer 31

APPROPRIATE: - Parties have agreed to arbitrate the dispute, or the claim is less than $10000 and has been issued in the Magistrates’ Court. - The parties want the benefits of a binding and enforceable award made by an independent third party. - The parties want evidence to be presented to a third party, and some rules of evidence to apply. - Parties want to avoid the publicity of a courtroom and wish to have their matter resolved confidentially and in private. INAPPROPRIATE: - Where the parties have not agreed to arbitrate the dispute, and do not want arbitration as a dispute resolution method. - Where the parties want greater control over the dispute resolution process and outcome. - Where the parties wish to have their ‘day in court’ and would rather not have the matter conducted in private. - Where the parties are more comfortable with formal rules of evidence and procedure, and would rather a court conduct the process.

Question 32

Explain where arbitration is used.

Answer 32

COURTS: - Compulsory arbitration in Magistrates’ Court for civil claims less than $10,000 (this is heard by a magistrate). VCAT: - VCAT hearings are not arbitrations. - Under s 77 of the VCAT Act, VCAT is able to refer a matter to arbitration on the grounds that that is a more appropriate forum.

Question 33

List the strengths of methods of dispute resolution.

Answer 33

1. Cheaper than a Court hearing or trial. 2. Better able to address the needs of the parties. 3. Focuses on maintaining relationship. 4. Confidential , not open to public like judicial determination, reduces intimidation. 5. Quicker than a Court hearing or trial. 6. Can be binding 7. Less adversarial so both parties are like to come out of the resolution feeling they have won. 8. Flexible processes allows each session to be tailored to the parties. 9. Parties feel more satisfied when being involved in the outcome and more likely to uphold decision

Question 34

List the weaknesses of methods of alternative dispute resolution.

Answer 34

1. Other than arbitration the decision is not legally binding meaning that parties don’t have to follow the decision. 2. One party might be intimidating, forcing the other to compromise too much. 3. Not suitable for all types of cases eg: where there is animosity between the parties / imbalance of power or for criminal cases which limits the use of these methods. 4. If a resolution cannot be reached, litigation might be required anyway increasing the time and adds to further costs. 5. Might lack the formalities & expertise required for the case that only comes from judicially determined cases. 6. One party may compromise too much / not have their opinion heard.

Question 35

List the strengths of a court hearing or trial.

Answer 35

1. The decision is legally binding giving closure, although the case can be appealed which might change the outcome. 2. Judicial officers are experienced legal professionals with expertise in the law and know how to best settle disputes within relevant law. 3. Parties are likely to feel more satisfied with the formality decision of a judicial officer as it makes them feel as though their case has been taken seriously. 4. All types of cases can be heard using JD. 5. Strict rules of evidence and procedure must be adhered to meaning that parties both have an equal chance to have their say and must follow the same rules. 6. If a jury is present parties are judged by their peers. 7. There is certainty to the resolution and it doesn’t rely on parties upholding their obligation and can be legally enforced.

Question 36

List the weaknesses of a court hearing or trial.

Answer 36

1. Very expensive method of dispute resolution. Not only are court fees extensive, but legal representation is usually also required. 2. Parties may feel dissatisfied with the decision as they have no say in contributing to the outcome. 3. Judicial officers are bound by formality and have less discretion when dealing with cases and therefore cannot cater for individual requirements in each case.

Question 37

Explain the relationship between mediation & the PoJ.

Answer 37

Fairness - Party control means that the parties are more likely to participate actively with the outcome. - Limits = lack of transparency. Access - Mediation is often cheaper than going to court enabling engagement. - It is conducted in a more supporting, non-adversarial manner compared to a trial; the intimidating nature of a trial may discourage some individuals from pursuing a case through the courts = more engagement. Equality - Unrepresented parties should not be disadvantaged in the same way as they are in a court, as the mediator guides the discussion and there are not formal rules of evidence/procedure to navigate. - No representation = disparity. - In many cases, a mediator will only permit legal representation if both parties have a lawyer; otherwise both parties will self-represent.

Question 38

Explain the relationship between conciliation & the PoJ.

Answer 38

Fairness - Conciliation gives the parties the ability to participate the outcome of their dispute (should enable greater satisfaction with the outcome). - Conciliators are able to assist parties in coming to a mutually beneficial outcome = participation. - Limit = lack of transparency. Access - Parties are able to utilise cheaper and faster DR methods = engagement. - Conciliation is accessible at a lower cost than a trial (paying a conciliator is less than the cost of paying a court to conduct a trial. - Less adversarial environment. Equality - Unrepresented parties are not disadvantaged or discouraged from pursuing a case. - In many cases, a conciliator will only permit legal representation if both parties have a lawyer, otherwise both parties will self-represent. - No representation = disparity.

Question 39

Explain the relationship between arbitration & the PoJ.

Answer 39

Fairness - If one party has legal representation in an arbitration but the other does not, represented parties will have an unfair advantage over unrepresented parties, they will be more able to present their case in its best light during the arbitration = partial = lack of access. - Limit = lack of transparency. Equality - Unrepresented parties are disadvantaged, as they will not understand the rules of evidence and procedure that have to be followed in arbitration. - No representation = disparity Access - Parties are able to utilise cheaper and faster dispute resolution methods. Arbitration is usually less costly to parties than taking action in the courts. - Arbitration is a private way to resolve a dispute (unlike a trial); this makes it more desirable to parties in many cases.

Question 40

Explain administrative convenience.

Answer 40

- Each court develops its own expertise and familiarity with the cases that come before it, based on seriousness and complexity. - Cases heard in higher courts take longer and rely on judges who have more experience in certain areas of law. - Cases heard in the lower courts are much faster, and therefore less expensive. - Lower courts take the pressure off the higher courts, allowing them more time to focus on the areas they are more experienced in. - Legal personnel are distributed to courts based on their level of experience, allowing courts to run with routine, consistency and efficiency. * Minor civil disputes – where the plaintiff is claiming $100 000 or less – are heard in the Magistrates’ Court quickly and less expensively. * More serious and complex disputes are heard in the County and Supreme Courts, which both have an unlimited jurisdiction. Class actions are heard in the Supreme Court.

Question 41

Explain appeals.

Answer 41

- Appeals would not be possible is we did not have a court hierarchy, as those who might have grounds to contest the court’s decision would not be able to have their case heard again. - By giving the losing party the opportunity to have their case heard by another independent judge, the court system and the judge ensures that the correct decision is made. - If a judge does make an error of law, appeal hearings allow for the existing decision to be corrected. - This provides accountability for the individual appellant and confidence in the rights of citizens, as the court of appeal has overturned case rulings in many occasions.

Question 42

What does a party need to do in order to appeal.

Answer 42

- A party cannot automatically appeal a decision, they must be granted leave (permission) to do so and have legal grounds (points of law, questions of fact or the remedy awarded). - In order to appeal a case to the High Court (from the Court of Appeal), leave must be sought. Leave will only be granted if: - There is a question of law of public importance; or - There are differing opinions on the law and it requires clarification.