UNIT 3 AOS2 - SAC 2b (civil) Flashcards
List the two dispute resolution bodies we are studying.
- Consumer Affairs Victoria (CAV)
- Victorian Civil Administrative Tribunal (VCAT)
- These organisations, known as complaints bodies, offer dispute resolution services to people who make a complaint about another party.
Explain the context of Consumer Affairs Victoria (CAV).
- Consumer Affairs Victoria (CAV) is a business unit of Victoria’s Department of Justice and Regulation, that monitors and regulates consumer affairs.
- Informs people about consumer issues and informs businesses and consumers about their rights and responsibilities.
- Inform consumers of their rights when they buy, hire, or lease goods, or pay for services.
- Australian Consumer Law and Fair Trading Act 2012 (ACL)
The laws that CAV administers cover areas such as:
- Fair trading
- Renting
- Motor cars
- Clubs
- Not-for-profit organisations
- Incorporated associations
- Buying and selling property.
List the purposes of Consumer Affairs Victoria (CAV).
- Help Victorians make informed and responsible decisions regarding business and consumer matters.
- Inform consumers of their rights when they buy, hire or lease goods, or pay for services.
- Provide services to help parties resolve certain types of civil disputes.
- Provide consumers and traders, and landlords and tenants, with a dispute resolution process.
- Ensure that any inappropriate conduct is stopped, and help any party that has been wronged seek compensation for any loss they have suffered.
- CAV will help people settle their disputes efficiently and effectively, without any cost, and assist them in agreeing on the resolution of the dispute without imposing a decision.
Outline CAV’s dispute resolution jurisdiction.
CAV can assist with:
A complaint by a consumer against a business where that person believes that the Australian Consumer Law & Fair Trading Act have been breached. E.g.
- A consumer believes they were misled about the quality of the product they purchased or paid for a product that was faulty.
- Quality of work is poor.
- Clothing does not match a sample that was shown.
A complaint by a tenant against a landlord (CAV does not resolve complaints by a landlord about a tenant):
- A tenant request a repair but the work is not done.
- A landlord gives notice to vacate but the time frame is too short.
Explain CAV’s type of dispute resolution.
- Main method = conciliation.
- Conciliation involves the assistance of an independent or neutral third party who helps the parties reach a mutually acceptable decision between them.
- The conciliator does not make the decision on behalf of the parties, but listens to the facts, makes suggestions and helps the parties come to their own decision.
- The conciliator can make suggestions and explore possible solutions with the parties.
Describe CAV’s appropriateness for Dispute Resolution.
CAV uses certain criteria to determine whether it is an appropriate. Three of those criteria are as follows:
- Whether the dispute is within CAV’s jurisdiction
- Whether the dispute is likely to settle
- Whether there are other or better ways to resolve the dispute
- CAV will not conciliate disputes that the courts or VCAT have already made a decision on.
- It will also only accept complaints if the person complaining has first tried to resolve the dispute themselves, and if the complaint warrants CAV’s involvement (eg. It is not a trivial complaint).
List what would need to be considered to determine the appropriateness of CAV.
- Need to have tried to, resolve the dispute themselves (e.g. through negotiation).
- Determine whether the dispute is best resolved by a court or tribunal making a binding order on the parties, rather than reaching a resolution themselves.
- Determine whether the other party is unlikely to take the conciliation process seriously, or may not show up, so issuing a claim in a court or tribunal is more likely to force them into realising the seriousness of the dispute.
- Determine whether one party would prefer the formality of the tribunal or court processes.
- Determine whether the matter is too big or complex to be appropriate for CAV.
List the strengths of CAV.
- Conciliation service is free, meaning that it remains accessible to all Victorians, regardless of their ability to pay.
- The conciliation process is informal, and can be conducted over the telephone, which removes many anxieties people have with the formalities of a courtroom.
- CAV ensures procedural fairness by allowing both sides the opportunity to present their case and rebut the other side’s case.
- CAV assesses disputes individually, case by case, reducing waste of time and resources on disputes that are clearly unlikely to be resolved through conciliation.
- CAV aims to conciliate disputes in a timely manner, so parties do not have to wait months or years for resolution through a more formal body such as a court.
- The conciliation process offered by CAV ensures that parties reach a resolution themselves. Parties may be more likely to accept an outcome if it has not been imposed or forced on them.
List the weaknesses of CAV.
- CAV’s role is limited mainly to consumer and landlord disputes, meaning that it has no power to assist with the many other types of civil disputes. This narrows the range of disputes it covers even further.
- CAV has no power to compel parties to undergo conciliation. A willing party to a dispute may not be able to use CAV’s dispute resolution services if the other party is not also willing.
- CAV has no powers to enforce any decisions reached by the parties in conciliation. Unless the parties have entered into a binding agreement at conciliation, then one of the parties may just disregard the decision. This can leave the parties no better off than they were before conciliation.
- Not all cases are accepted by CAV. This is because of CAV’s criteria and its prioritisation of cases.
- The informal nature of the conciliation process, and lack of a binding decision, may mean that one or more parties may fail to take the matter seriously.
- CAV may not be appropriate for large and complex disagreements, including those with difficult legal questions or several different parties, which can only be resolved by a court or tribunal which has greater expertise in the law.
Outline the structure of VCAT.
- VCAT is an ‘umbrella’ body with four divisions & nine specialist ‘lists’.
Victorian Civil and Administrative Tribunal (VCAT)
- Administrative Division
- Civil Division
- Human Rights Division
- Residential Tenancy Division
Explain the jurisdiction of VCAT.
ADMINISTRATIVE:
Types of disputes: Deals with professional conduct inquiries and applications from people seeking a review of decisions made by government and other authorities.
Weaknesses: Legal Practice, Review and Regulation.
CIVIL:
Types of disputes: Deals with a range of civil disputes relating to consumer matters, domestic building works, owners’ corporation matters , retail tenancies, sale and ownership of property, and use or flow of water between properties.
Weaknesses: Civil Claims, Building and Property, Owners Corporations.
HUMAN RIGHTS:
Types of disputes: Deals with matters relating to guardianship and administration, equal opportunity, racial and religious vilification, health and privacy information, disability matters and decisions made by the Mental Health Tribunal.
Weaknesses: Guardianship, Human Rights.
PLANNING AND ENVIRONMENT:
Types of disputes: Deals with reviews of decisions made by councils or other authorities (e.g. decision to grant a permit).
Weaknesses: Planning and Environment.
RESIDENTIAL TENANCIES:
Types of disputes: Deals with tenancy disputes, including disputes between residential tenants and landlords, rooming house owners and residents, caravan park owners and residents, and site tenants and owners.
Weaknesses: Residential Tenancies.
Briefly describe the context of VCAT.
- Established in 1998, under the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
- VCAT hears and determines a range of civil and administrative cases in Victoria.
- VCAT is one of Australia’s busiest tribunals receiving lots of claims.
- VCAT was created to take pressure off the court system by hearing smaller matters that would otherwise create a backlog in the courts.
Describe the purpose of VCAT.
- VCAT’s purpose is to provide Victorians with a low-cost, accessible, efficient and independent tribunal delivering high-quality dispute resolution processes.
- VCAT provides parties with an alternative to court to resolve certain types of civil disputes through its various lists. Each list deals with a limited area of law and builds up expertise in that area. VCAT uses various dispute resolution methods.
Explain VCAT’s costs.
VCAT provides a low-cost method of resolving disputes in a number of ways:
There are three tiers or levels of fees:
- Corporate
- Standard
- Healthcare cardholders
The aim of this was to make corporate applicants pay higher fees, and to make those who are less able to pay (being health care card holders) pay only nominal fees.
- The parties need only pay a small amount for filing their claim.
- There are no hearing fees for some claims, such as small civil claims (e.g. a claim of less than $15K).
- The parties do not have to go through pre-trial procedures.
Explain VCAT’s efficiency.
VCAT constantly aims to reduce waiting times.
- Makes the process more efficient.
- Civil Claims List had a median wait time of 10 weeks.
- Residential Tenancies List had a median wait time of 2 weeks.
- VCAT has also recently focused on technology and upgraded its computer systems to ensure greater efficiency in handling claims.
Explain VCAT’s dispute resolution methods.
Mediation: with VCAT mediator - not binding, but terms can be agreed and turned into an order by VCAT.
Compulsory conferences: in presence of a VCAT member - conciliation used, member suggest resolutions.
A final hearing: before a member - VCAT member - binding decision - the parties are to give evidence and be subject to questions.
Explain VCAT’s orders.
The types of orders that VCAT can make in a hearing vary from list to list, as appropriate. In general VCAT can:
- Require a party to pay money.
- Require a party to do something, such as perform work, carry out repairs or vacate premises.
- Require a party to refrain from doing something.
- Declare a debt is not owing.
- Review, cancel or vary a contract.
- Dismiss a claim.
Appeals from a decision made by VCAT may only be made on a question of law (point of law):
- For example, a party may argue that the law has not been properly interpreted in the case. Leave (permission) is required to appeal a VCAT decision.
- If the tribunal was presided over by the President or a vice-president, the appeal will be heard in the Court of Appeal. All other appeals will be heard in the Trial Division of the Supreme Court.
List what would need to be considered to determine the appropriateness of VCAT.
APPROPRIATE:
- VCAT is more appropriate for small claims or disputes.
INAPPROPRIATE:
- Larger cases are usually heard through the court process.
- VCAT is divided into a large number of Lists which can confuse parties.
- Appeals are limited to questions of law (unlike courts).
- Not all cases can be referred to VCAT, due to complexity or the amount being claimed.
- VCAT only has limited jurisdiction to hear personal injury claims.
- The cost of disputes about goods & services and building & owners’ corporations have increased in the last few years.
VCAT obtains its power to hear cases through statutes made by parliament. Often the parties will have no choice but to bring their disputes to VCAT, because it has exclusive jurisdiction to hear certain types of claims. Exclusive jurisdiction means that only VCAT has the power to hear and determine that type of dispute, and not a court. Where VCAT does not have exclusive jurisdiction, parties can use VCAT or another dispute resolution body such as a court.
List the strengths of VCAT.
- VCAT is normally cheaper than courts due to lower application, hearing, pre-trial procedures, and parties’ self-representation costs.
- It generally offers a speedy resolution of disputes.
- An informal atmosphere ensures that parties can put their case forward in their own way, which can make people feel more comfortable with the process.
- VCAT’s hearing processes are flexible, ensuring fairness and equality for unrepresented parties by providing equal opportunities to understand processes and present their case.
- Each list operates in its own specialised jurisdiction, resulting in tribunal personnel developing expertise in resolving disputes in that area of law.
- VCAT encourages parties to reach resolutions independently, often referring matters to mediation or compulsory conferences before final hearings, reducing costs and time, and making matters more accessible.
List the weaknesses of VCAT.
- Increased legal representation costs VCAT can exceed court costs, with fees for some hearings and major cases in the Planning and Environment List.
- Large and complex civil claims, including class actions, VCAT is not an appropriate (no jurisdiction).
- VCAT decisions have a limited right to appeal, only allowing appeals on a point of law and to the Supreme Court, making cases complex and costly.
- The lack of formal procedure may cause discomfort or ill-equippedness among parties, who may prefer a formal process of providing evidence.
- VCAT members are normally not judicial officers, meaning they may be casual, sessional members without as much experience in hearing matters as judges.
- VCAT faces delays in lists since its not part of the court hierarchy, it is not bound by precedent, and its members are not bound by previous VCAT decisions, causing inconsistencies.
- While VCAT decisions are binding, they need to be certified by a court before they can be enforced.
List the responsibilities of the parties.
- Make opening and closing statements: both parties will give.
- Present the case to the judge or the jury:
Parties have certain obligations in the trial to:
- Act honestly.
- Only make claims that have a proper basis.
- Cooperate in the conduct of the proceeding.
Explain the need for legal practitioners.
It is difficult for a party to present their own case in a civil trial without legal representation.
Some reasons why lawyers are needed are:
- Parties may not know how to present their evidence in the most effective way or how to cross-examine a witness.
- A self-represented party may also be too emotionally invested in the case to be able to make objective decisions about the way they argue their case.
- If one party is better represented than the other, this could lead to an unfair advantage and possibly an incorrect outcome.
List the responsibilities of the practitioners.
- Present opening and closing submissions: usually, the solicitor will prepare the submissions, and the barrister will present them in court.
- Present the case to the judge or jury:
- The Barristers will conduct examinations, cross-examinations, and re-examinations.
- Make submissions about matters that arise during the trial.
- Present their case in the best interests of their client.
Explain the responsibility both the practitioners and the parties have.
- There are 10 overarching obligations under the Civil Procedure Act.
- Complying with these obligations is a responsibility of both the parties and the practitioners both before and during the trial.
- Act honestly
- Only take steps to resolve or determine dispute
- Cooperate
- Don’t mislead or deceive
- Use reasonable endeavours to resolve dispute
- Narrow the issues in dispute
- Ensure costs are reasonable and proportionate
- Minimise delay
- Disclose existence of critical documents
- Only make claims that have a proper basis
List the strengths of legal practitioners.
- Legal practitioners assist parties in the civil justice system by conducting opening and closing addresses, examining witnesses, and defending against other parties’ applications.
- Legal practitioners have objectivity in civil cases, allowing them to make decisions like settlement negotiations, while self-represented individuals may lack this objectivity and struggle to identify weaknesses.
- Legal practitioners can assist self-represented parties in avoiding delays in trial processes by allowing them to understand the proceedings.
List the weaknesses of legal practitioners.
- Legal practitioners’ experience and skills vary, with some having more experience than others, which can affect the quality of legal services.
- Legal representation is often unavailable to everyone, leading to self-representation, which often lacks necessary skills, experience, or objectivity for accurate decision-making.
- Self-represented parties may face significant expenses, especially if they lose and are required to cover the other party’s legal costs.
List the responsibilities of the judge.
- Manage the trial:
- The judge has significant powers of case management to ensure the trial is conducted in a just, timely and efficient manner.
- The judge also has power to give directions and orders in the trial. - Decide on admissibility of evidence:
- The rules of evidence require judges to monitor the manner in which evidence is presented and whether the information can be admitted. - Assist with the jury (if there is one):
The judge will assist with the selection and empanelling process. - Determine liability and the remedy:
- Where there is no jury, judge needs to be familiar with the details of the case.
- Judges also determine the remedy.
- They will normally provide their written reasons for their decision. - Make a decision on costs:
- The judge will decide which party should bear the costs.
- Generally, working out the costs is left to the end, and the successful party is entitled to costs.
