unit 3 aos2 victorian civil justice system Flashcards
1
Q
civil justice system
A
a set of processes, bodies and institutions used to resolve civil disputes
2
Q
civil dispute
A
a disagreement between two or more individuals (or groups) in which one of the individuals (or groups) makes a legal claim against the other
3
Q
civil law
A
an area of law that defines the rights and responsibilities of individuals, groups and organisations in society and regulates private disputes
4
Q
burden of proof
A
the obligation (i.e. responsibility) of a party to prove a case. The burden of proof usually rests with the party who initiates the action (i.e. the plaintiff in a civil dispute and the prosecution in a criminal case)
5
Q
standard of proof
A
the degree or extent to which a case must be proved in court
6
Q
balance of probabilities
A
the standard of proof in civil disputes. This requires the plaintiff to establish that it is more probable (i.e. likely) than not that their claim is true
7
Q
3 factors that need to be considered before initiating a civil claim
A
costs, limitation of actions, enforcement issues
8
Q
3 common costs incurred during a civil dispute
A
legal advice/representation, disembursements, adverse cost orders
9
Q
disembursements
A
out-of-pocket expenses or fees (other than legal fees) incurred as part of a legal case. They include fees paid to expert witnesses, court fees, and other third-party costs such as photocopying costs
10
Q
adverse costs orders
A
a court order (i.e. legal requirement) that a party pay the other party’s costs
11
Q
limitation of actions
A
Limitation of actions refers to the restriction placed on the time within which a civil action can be commenced. For most types of claims, the plaintiff will need to commence the proceeding within a certain period of time. Once that period has passed, the plaintiff may be ‘time barred’ (prevented) from seeking remedy.
12
Q
fairness
A
fairness means all people can participate in the justice system and its processes should be impartial and open
13
Q
equality
A
equality means people should be treated in the same way, but 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
14
Q
access
A
means that all people should be able to engage with the justice system and its processes on an informed basis
15
Q
dispute resolution methods
A
ways of resolving or settling civil disputes without having a court or tribunal hearing
16
Q
mediation
A
a method of dispute resolution that uses an independent third party (i.e. a mediator) to help the disputing parties reach a resolution. resolution is made by the parties voluntarily.
17
Q
mediator
A
an independent third party who does not interfere or persuade but helps the parties in a mediation as they try to reach a settlement of the matter
18
Q
terms of settlement
A
a document that sets out the terms on which the parties agree to resolve their dispute
19
Q
conciliation
A
a method of dispute resolution that uses an independent third party (i.e. a conciliator)to help the disputing parties reach a resolution
20
Q
conciliator
A
the independent third party in a conciliation, who helps the parties reach an agreement that ends the dispute between them. The conciliator can make suggestions and offer advice to assist in finding a mutually acceptable resolution, but the parties reach the decision themselves
21
Q
when is mediation and conciliation appropriate (3)
A
when the parties are willing to compromise, when the parties want the dispute to be held privately, when the relationship between the parties is likely to continue
22
Q
when is mediation and conciliation not appropriate (3)
A
when there is a history of violent behaviour, when the matter needs urgent court intervention, when there is an imbalance of power
23
Q
3 strengths of mediation and conciliation
A
Mediation and conciliation are much less formal than a court hearing, If successful mediation and conciliation can save significant time in waiting for a final hearing and also saves the costs, Mediation and conciliation are normally conducted in private. This can be beneficial for a party who wishes to keep the settlement confidential.
24
Q
3 limitations of mediation and conciliation
A
The decision reached may not be enforceable, or may be difficult to enforce, depending on the terms of settlement, Because the court is not deciding the case, one party may compromise too much, If the matter does not resolve, then it may be a waste of time and money
25
arbitration
an independent person (an arbitrator) is appointed to listen to both sides of a dispute and make a decision that is legally binding on the parties. The decision is known as an arbitral award
26
arbital award
a legally binding decision made in arbitration by an arbitrator
27
3 strengths of arbitration
The decision is binding and is fully enforceable through the courts, The arbitration is normally held in private and will be confidential, The arbitrator is generally an expert on the subject matter and is required to act impartially when making a binding decision
28
2 weaknesses of arbitration
The parties have no control over the outcome, It can be costly and take a long time depending on the nature of the dispute
29
2 reasons for a court hierarchy to resolve civil disputes (strengths)
ensure administrative convenience and allow for appeals to be made
30
administrative convenience
refers to the structured organization of courts in a way that efficiently manages legal proceedings and ensures the smooth functioning of the judicial system
31
appeals
Someone who is dissatisfied with a decision in a civil trial can, if there are grounds for appeal, take the matter to a higher court.
Grounds for appeal in a civil case can include:
* a point of law
* a question of fact
* the remedy awarded
32
magistrates court original jurisdiction
claims of up to $100,000
33
magistrates court appellate jurisdiction
none
34
county court original jurisdiction
unlimited in all civil claims
35
country court appellate jurisdiction
no appeals, unless given power under a specific act of parliament
36
supreme court trial division original jurisdiction
unlimited in all civil claims
37
supreme court trial division appellate jurisdiction
on a question of law from the magistrates court and from vcat
38
supreme court of appeal original jurisdiction
nones
39
supreme court of appeal appellate jurisdiction
all appeals from county and supreme court, on a question of law from chief magistrate or VCAT president/vice-president
40
2 weaknesses of the court hierarchy
the different courts may be confusing to people who do not understand the civil justice system, there is no automatic right to appeal.
41
liability
legal responsibility for one's acts or omissions.
42
damages
an amount of money that one party is ordered to pay to another party for loss or harm suffered.
43
4 roles of judges
act impartially, case management (before+during), determining liability and the remedy, deciding on costs.
44
case management
a method used by courts and tribunals to control the progress of legal cases more effectively and efficiently. Case management generally involves the judge making orders and directions in the proceeding (e.g. an order that the parties attend mediation)
45
directions
instructions given by the ciurt or tribunal to the parties about time limits and the way civil proceeding is to be conducted.
46
hearsay evidence
evidence given by a person who did not personally witness the thing that is being stated to the court as true
47
2 similarities of a criminal and civil judge
they both act impartially, they will have the role of assisting a self represented party
48
2 differences between a criminal and civil judge
A judge/magistrate can order both parties to undertake procedures such as mediation and discovery. A judge/magistrate in a criminal case cannot order this as they are civil dispute procedures, a judge in a civil trial will determine liability if there is no jury present, however in a criminal case the judge does not determine guilt, only a magistrate.
49
2 strengths of the judge
Judges and magistrates act as an impartial umpire meaning no party is advantaged or disadvantaged because the judge or magistrate ‘takes sides’. Judges and magistrates manage the case both before and during the trial. They have significant case management powers to ensure that disputes are resolved in a just, efficient, timely and cost effective manner
50
2 weaknesses of the judge
Judges and magistrates are human, and there are some risks that they may have actual or apprehended bias that impacts their decision-making, Judges and magistrates cannot interfere excessively in their cases, including those involving a self-represented party
51
a civil jury
6 individual jurors are randomly selected. it is not common to have juries in civil cases. either a plaintiff or defendant can request a jury but they must pay for it
52
4 roles of the jury
be objective, listen to and remember evidenve, understand directions + summing up, decide on liability and in some cases, damages
53
2 similarities between a criminal and civil jury
both are impartial and decide based on facts and evidence, both juries must comply with their obligations one being that they cannot undertake outside research about the case.
54
2 differences between a criminal and civil jury
a jury in a criminal case will determine guilt, whereas in civil they will determine liability. a jury in a criminal trial will never decide the sanction, whereas in a civil case a jury may determine the damages to be awarded
55
2 strengths of the jury
Random selection ensures there is no connection to the parties involved and limits bias [FAIRNESS], Allows the community to participate in the justice system [ACCESS]
56
2 weaknesses of the jury
Possibility of unconscious bias [FAIRNESS], Many people are ineligible for jury service and therefore it is not a true representation of the community [ACCESS]
57
4 responsibilities of the parties
Make decisions about conduct of the case, Disclose all relevant information, Discover relevant documents and exchange evidence, Participate in the trial
58
party control
a term used to describe the power that each party in a legal case has to decide how they will run their case
59
what does making decisions about the conduct of a party's case refer to?
party control
60
what does disclosing info to the other party include? (3)
discover relevant documents, exchange these with the other party, ongoing disclosure obligations
61
what does exchanging evidence include? (2)
laying the evidence and giving expert evidence
62
expert evidence
evidence given by an independent expert about an area within their expertise
63
what does participating in the trial include (4)
making opening and closing addresses, preparing and presenting submissions to the court, presenting the case to the judge/jury, cross examining witnesses in the hope of challenging credibility or identifying gaps in their evidence
64
2 similarities of a criminal and civil parties
Both the prosecution and the parties in a civil case have ongoing disclosure obligations for all documents
* Both criminal and civil trials provide an opportunity for the parties to present their case
65
2 strengths of the parties
The parties have complete control over how they run their case, The parties have an ongoing obligation to disclose and ‘discover’ all relevant documents to each other. This ensures there are no surprises
66
2 differences between criminal and civil parties
* The defendant in a civil case has an ongoing discovery obligation, but this does not apply to an accused in a criminal case.
* The concept of ‘party control’ does not extend to parts of the criminal trial process in that the prosecutor cannot always ‘choose’ what evidence to lead or not lead in a criminal trial.
67
2 weaknesses of the parties
The processes involved are complex and difficult to understand without the use of a lawyer, ‘Party control’ mean that the parties need time to prepare their case, and make decisions about how to run their case, which can add to the delays. This can be stressful and cost money.
68
responsibilities of legal practitioners (5)
Comply with their duty to the court, Make opening and closing addresses, Present the case to the judge or jury, prepare legal documents and present in court
69
why are legal practitioners needed (5)
Experienced, Objective, Understand rules of evidence and procedure, Know how to present evidence in the most effective way, Know what questions to ask
70
2 strengths of legal practitioners
brings more objectivity to the case as they are not emotionally invested, reduces delays
71
2 weaknesses of legal practitioners
expensive, each laywer has different skill levels and experience
72
class actions
a civil case bought in the name of one person on behalf of a larger group who all have similar claims against the same party. They must have 7 or more people.
73
lead plaintiff
lead plaintiff the person who is named as the plaintiff in a class action and represents the group members; also sometimes referred to as the representative plaintiff
74
how do class actions work?
Action is commenced by the lead plaintiff in the Supreme Court of Victoria. The lead plaintiff is responsible for costs and any adverse cost order. The group members do not actively participate in the proceedings.
People affected by the breach can choose to ‘opt out’ if they do not wish to be bound by the decision or settlement.
75
litigation funder
a third party who pays for some or all the costs and expenses associated with initiating a claim in return for a share of the amount recovered. Litigation funders are often involved in class actions
76
3 types of class actions
Shareholder class action, Product liability class action, Natural disaster class action
77
is a class action appropriate? (5)
Are there enough people with similar circumstances?
Is a plaintiff law firm or a litigation funder prepared to fund the claim?
Is someone willing to be the lead plaintiff?
Is the claim substantial enough to warrant a proceeding?
Do all group members have similar suffering?
78
2 strengths of class actions
Efficiency in dealing with claims
Alternative means of funding action – litigation
79
2 weaknesses of class actions
Avoids multiple claims but is still a significant amount of time due to complexity
Litigation funders take a substantial chunk of earnings
80
Consumer affairs victoria
Complaints bodies are established by the government as a way to resolve grievances and disputes
Consumer Affairs Victoria (CAV) is a complaints body focused on consumer legislation and education
People utilise CAV when they feel that their rights as a consumer have been breached
81
how does CAV resolve disputes
CAV uses conciliation to resolve disputes
82
CAV's jurisdiction (4)
The supply of goods and services
Residential tenancies
Retirement villages
Owners’ corporations
83
8 things to consider when determining the appropriateness of CAV
Is it within CAV’s jurisdiction?
Has the consumer/tenant tried to resolve the matter themselves?
Does the complaint justify CAV involvement?
Has there been a breach of legislation or failure to comply with legal obligations?
Is the consumer vulnerable or disadvantage?
Has the issue already been dealt with by the courts or VCAT?
Is the dispute likely to be resolved?
Are there better, alternative ways to resolve the dispute?
84
2 strengths of CAV
CAV’s conciliation service is free, meaning that it is 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.
85
2 weaknesses of CAV
CAV’s assistance is limited mainly to consumer and CAV disputes, meaning that it has no power to assist with many other types of civil disputes.
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 willing.
86
tribunal
a dispute resolution body that resolves civil disputes and is intended to be a less costly, more informal and faster way to resolve disputes than courts
87
5 divisions of VCAT
residential tenancies, civil, human rights, planning and environment, administrative
88
4 purposes of VCAT
low cost, accessible, efficient, independent
89
how does VCAT achieve it's low cost purpose (4)
standard fee to file claim is $70, parties don't have to go through pre-trial procedures, no hearing fees for claims less than $100,000, parties can represent themself
90
how does VCAT achieve it's accessible purpose (3)
hearings are conducted in various locations, VCAT allows online applications and hearings, hearings are less formal which allows people to feel more comfortable
91
how does VCAT achieve it's efficient purpose (2)
vcat constantly aims to reduce their waiting times, VCAT generally does not use prre tial procedures
92
how does VCAT achieve its independent purpose? (1)
VCAT’s members are independent and will act as unbiased adjudicators.
93
residential tenancies types of disputes (+2 examples)
between residential tenants and landlords, rooming house owners and residents. includes unpaid rent and repairs/maintenance
94
administrative types of disputes (+2 examples)
Professional conduct inquiries, includes Costs disputes between lawyers and clients, Disputes about a decision made by a government agency
95
civil types of disputes (+2 examples)
Civil disputes relating to consumer matters, building works, owners’ corporation matters, retail tenancies, and sale and ownership of property. includes Products and services bought or sold, Quality of domestic or commercial building works
96
human rights types of disputes (5)
Matters relating to guardianship and administration, equal opportunity, racial and religious vilification, health and privacy information, disability matters
97
planning and environment types of disputes (+2 example)
Reviews of decisions made by councils or other authorities. Review about a decision by council to grant or not grant a permit, Disputes about the valuation of a land for the purposes of paying rates and taxes
98
5 disputes VCAT cannot hear
Class action
Disputes between employers, employees
Disputes between neighbours (unless it’s body corp.)
Disputes between drivers in car accidents
Disputes in federal or state law
99
3 types of dispute resolution at VCAT
fast track mediation and hearing processes, compulsory conferences, final hearing
100
compulsory conferences
confidential meetings during which the parties discuss ways to resolve their dispute in the presence of a VCAT member. Compulsory conferences use a conciliation process and will elude to what will happen at the final hearing.
101
final hearing
Parties give evidence
Witnesses are questioned
VCAT member hears the case and makes a binding decision
Can result in orders being made
102
6 types of orders VCAT can make
* require a party to pay money (e.g. where a person has purchased goods or services and has not paid for them)
* require a party to do something, such as perform work, carry out repairs or vacate premises (e.g. where a landlord refuses to repair a kitchen of the house they rent to tenants)
* require a party to refrain from doing something (e.g. to stop a demolition)
* declare that a debt is or is not owing (e.g. where there is a dispute about money owing under a contract)
* review, vary or cancel a contract
* dismiss a claim (where the applicant has been unsuccessful in providing their claim).
103
7 questions to consider when deciding if VCAT is appropriate or not.
Is it within VCAT’s jurisdiction?
Can parties resolve the dispute themselves through a mediator or negotiation?
What will the cost be?
Do parties want a greater avenue for appeal?
Do parties want more formality?
Is the case too complex for VCAT?
Do the parties want the benefits of the court?
104
3 strengths of VCAT
VCAT is normally cheaper than courts due to low application fees, VCAT generally offers a speedy resolution of disputes, An informal atmosphere at VCAT ensures that parties can put their case forward in their own way, which can make people feel more comfortable with the process
105
3 weaknesses of VCAT
Due to increased use of legal representation, the costs of taking a matter to VCAT can sometimes be as high as courts, VCAT has suffered delays in some of its lists, including following the COVID-19 pandemic, Decisions can only be appealed on a point of law, and to the Supreme Court, making it complex and expensive to appeal a case.
106
what to consider when determining the appropriateness of courts (2)
* whether the dispute falls within the court’s jurisdiction
* whether there are other or better ways to resolve the dispute.
107
2 strengths of the courts
pre trial proceedures can allow the parties to reach an out of court settlement which will save costs time and stress, courts make binding decisions meaning that the outcome is certain and enforceable
108
2 weaknesses of the courts
The costs in having a dispute resolved in court may restrict access to the courts, and may jeopardise parties being treated equally because of their socio-economic status.
Many of the procedures are complex and
difficult to understand without a lawyer. These
include pleadings and directions, and trial
procedures such as cross-examination of
witnesses.
109
two factors that can affect the civil justive system to achieve the principles of justice
cost and time
110
how does cost factors negatively affect fairness (1)
If people can’t afford legal costs they may be forced to settle, withdraw or self represent.
111
how does cost factors positively affect fairness (2)
ADR’s offer low/no cost alternative.
ADR’s rely on impartial and skilled third parties to monitor processes to achieve justice.
112
how does cost factors negatively affect equality (2)
Self represented individuals are not on an equal playing field against an opposing legal practitioner.
Bias can still exist with ADR third parties.
113
how do cost factors positively affect equality (1)
Third party ADR’s act impartially and without bias
114
how does cost factors negatively affect access (3)
People are deterred from making a claim because of legal costs which makes the system inaccessible.
Legal aid is very difficult to obtain for civil claims.
Self-represented parties may not understand proper processes and make poor decisions.
115
how does cost factors positively affect access (2)
Parties are free to pursue ADR’s
The costs saved by ADR make justice more accessible to those who otherwise couldn’t afford it
116
how do time factors negatively affect fairness (2)
Delays impact the reliability of evidence, jeopardising a fair outcome.
Delays deny a just outcome as it adds to the stress of a procedure.
117
how do time factors positively affect fairness (1)
Case management powers can limit delays which would impact procedural fairness
118
how do time factors negatively affect equality (1)
Delays unfairly impact vulnerable parties (e.g. someone with little money)
119
how do time factors positively affect equality (2)
Courts can create flexibility without favouring a certain party or discriminating.
Orders and directions can apply equally to both parties.
120
how do time factors negatively affect access (2)
Delays make people reluctant to pursue a claim.
Delays can force parties to settle or withdraw their claim.
121
how do time factors positively affect access (3)
Case management makes the courts more accessible.
Online hearings.
Online mediation.
122
remedy
any order made by a court (or a tribunal) designed to address a civil wrong or breach. A remedy should provide a legal solution for the plaintiff for a breach of the civil law by the defendant
123
damages
An amount of money awarded by the courts to compensate the plaintiff for loss or injury caused by the wrongful acts of the defendant. There are different types of damages, some of which are more easily quantifiable (calculated) than others.
124
what are the 4 types of damages
compensatory, exemplary, nominal, contemptous
125
compensatory damages (+3 types)
an amount of money awarded to a plaintiff for harm, injury, or other losses suffered. It includes general damages, special damages, and aggravated damages. can restore the plaintiff to the position they were in before the wrong occurred.
126
special damages
an amount of money that one party is ordered to pay to another party to compensate for losses that are easily quantifiable (e.g. medical expenses or loss of wages)
127
general damages
an amount of money that one party is ordered to pay to another party to compensate for losses that are not easily quantifiable (e.g. pain and suffering)
128
aggravated damages
an amount of money that a defendant may be ordered to pay when a plaintiff has suffered extreme humiliation, embarrassment or insult because of the defendant’s conduct
129
exemplary damages
a very large amount of money awarded to show strong disapproval of the defendant’s conduct; also called punitive (punishing) damages
130
nominal damages
a small amount of money awarded to confirm that a plaintiff’s rights have been infringed even though the losses were not substantial
131
contemptuous damages
a very small amount of money awarded by a court to show that even though the plaintiff’s claim succeeded legally, the court disapproves of it in moral terms
132
purpose of damages
to return the plaintiff to the position they were in before the wrong occurred.
132
Factors to consider when assessing the ability of damages to achieve their purposes (5)
Whether the loss suffered was financial loss only.
The ability of the defendant to pay.
The amount of money awarded (is it enough?).
The extent to which the award of damages is known to the public.
Whether other orders are required.
133
injunction
a remedy in the form of an order requiring the defendant to do something or not to do something. An injunction is designed to prevent a person doing harm (or further harm), or to rectify some wrong
134
restrictive injunction
an order that someone stop (or refrain from) doing something that is harming (or will harm) the plaintiff; also called a prohibitive injunction
135
mandatory injunction
an order requiring someone to do something, or take active steps to prevent harm (or further harm) to the plaintiff
136
purpose of injunctions
to rectify a situation caused by the person who was found to be in the wrong.
137
factors to consider when assessing the ability of injunctions to achieve their purpose (4)
Whether the defendant will comply
Whether harm has already been suffered
Whether a restrictive / mandatory injunction is sufficient
Whether other orders may be required
