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Year 12 VCE Legal Studies > Unit 3: Area of Study 2 - The Victorian Civil Justice System > Flashcards

Unit 3: Area of Study 2 - The Victorian Civil Justice System Flashcards

1
Q

Parties in a Civil Dispute

A
  • Plaintiff

- Defendant

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2
Q

Plaintiff

A

Is the party who makes a legal claim against another person because they believe their rights have been infringed

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3
Q

Defendant

A

Is the party who has been alleged of infringing the rights of the plaintiff

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4
Q

The party who Initiates a Civil Claim

A

The Plaintiff

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5
Q

Types of Civil Disputes (List 2)

A
  • Defamation
  • Negligence
  • Family Law
  • Breach of Contract
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6
Q

Purpose of Civil Law

A

Is to restore the plaintiff (as far as possible) to the position they were in before the civil wrong occurred

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7
Q

Institutions that Resolve Civil Disputes (List 2)

A
  • Magistrates Court
  • County Court
  • Supreme Court
  • Victorian Civil and Administrative Tribunal (VCAT)
  • Consumer Affairs Victoria (CAV)
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8
Q

The Party who holds the Burden of Proof

A

The Plaintiff

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9
Q

The Standard of Proof in a Civil Dispute is…

A

On the ‘Balance of Probabilities’

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10
Q

What is the ‘Balance of Probabilities’

A

Is the standard of proof in a civil case and it means that the Plaintiff needs to establish that their version of event/s are more than likely to have occurred that the Defendant’s version of the event/s

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11
Q

Methods to Resolve a Civil Dispute

A
  • Judicial Determination (Courts)
  • Mediation
  • Conciliation
  • Arbitration
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12
Q

Principle of Justice: Fairness

A

Refers to being treated without favouritism nor discrimination and being able to have a fair and unbiased hearing

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13
Q

How Fairness is Upheld in the Civil Justice System

A

Both parties should know the case against them and have the opportunity to present their case infront of a Judge and Jury (if there is one)

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14
Q

Principles of Justice: Equality

A

Is how no person or group should be treated favourably or unfavourably because of an attribute or characteristic

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15
Q

How Equality is Upheld in the Civil Justice System

A

The availability of legal representation to those with little money

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16
Q

Principles of Justice: Access

A

Is how people should be able to understand their legal rights and be able to pursue their claims

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17
Q

How Access is upheld in the Civil Justice System

A

The availability of alternative Dispute Resolution Bodies

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18
Q

The Burden of Proof does not rest with the Prosecution when…

A

The Defendant counterclaims

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19
Q

Counterclaim

A

A separate claim made by the Defendant in response to the Plaintiff’s claim

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20
Q

Representative Proceedings

A

Is when a group of 7 or more people who all have the same claim against the same party file their claim to a Court

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21
Q

Criteria for a Representative Proceeding

A
  • 7 or more people need to be involved
  • Their claim needs to arise from the same or related facts or circumstances
  • The same legal issue/s need to be decided for all parties
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22
Q

When Representative Proceedings are Appropriate (List 2)

A
  • Workplace Incidents: A spill affects a number of workers
  • Medical Malpractice: A doctor operates without a licence on multiple patients
  • Large Number of Claims for a Small Loss: A bank overcharges customers
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23
Q

Strengths of Representative Proceedings (List 2)

A
  • Group members can share costs
  • More efficient for the Courts
  • Provides access by allowing people to pursue a civil action that they otherwise couldn’t afford
  • May be funded by a Litigation Funder; A third party who pays for some or all costs associated woth the claim in return for a share of the proceed
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24
Q

Weaknesses of Representative Proceedings (List 2)

A
  • Seen to be a risk for businesses
  • Costs involved can be significant
  • If there is a Litigation Funder, a significant percentage of any damages awarded or settlement amount will be paid out to the Litigation Funder before group members recieve any funds
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25
Q

Factors to Consider when Initiating a Civil Claim

A
  • Costs
  • Limitation of Actions
  • Enforcement Issues
  • Negotiation Options
  • Scope of Liability
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26
Q

Factors to Consider when Initiating a Civil Claim: Costs

A
  • The more complex the case, the more expensive the Lawyers are
  • Even if the case is won, all legal expenses may not be reimbursed
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27
Q

Considerations for a Plaintiff Regarding Costs (List 2)

A
  • How much will the dispute cost to resolve?
  • Does the Defendant have the required money?
  • Do I have the required money?
  • Am I eligible for Legal Aid?
  • What are the risks?
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28
Q

Availability of Legal Aid for Civil Disputes

A

Victorian Legal Aid (VLA) is largely directed towards criminal and family matters and is not available for matters such as business disputes and wills

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29
Q

Adverse Costs Order

A

Is the party that loses the dispute may need to pay some, or if not all of the costs for the other side

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30
Q

Factors to Consider when Initiating a Civil Claim: Limitation of Actions

A

Refers to the time limits by which the Proceedings must commence

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31
Q

Purposes of Limitation of Actions (List 2)

A
  • To ensure that evidence isn’t lost
  • To ensure witnesses don’t forget what happened
  • To ensure that disputes can be resolved in a timely manner
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32
Q

Examples of Limitation of Actions (List 2)

A
  • Defamation Claim: Has to be heard within 1 year
  • Breach of Contract: Has to be heard within 6 years
  • Action to Recover Land Claim: Has to be heard within 15 years
  • Under Tort Law Claim: Has to be heard within 6 years
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33
Q

Factors to Consider when Initiating a Civil Claim: Scope of Liability

A

Refers to the liability of an individual, and is there more than one individual

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34
Q

Possible Defendants in a Civil Case

A
  • Employers
  • Insurers
  • General persons involved in the wrongdoing
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35
Q

Vicarious Liability

A

Is where an Employer is liable for te actions of their Employee

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36
Q

Possible Defendants in a Civil Case: Employers

A
  • Employers may become liable of the actions of the Employees under the principle of ‘Vicarious Liability’
  • The Plaintiff needs to prove that he Employee committed the wrongdoing whilst they were employed
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37
Q

Possible Defendants in a Civil Case: Insurers

A
  • An insurance policy is an arrangement where an Insurer agrees to compensate the insured for some kind of loss
  • Some types of insurance are:
  • Workers’ Compensation
  • Public Liability Insurance
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38
Q

Possible Defendants in a Civil Case: General Persons Involved in the Wrongdoing

A

A person may be involved in the wrongdoing if (List 2):

  • They helped in the wrongdoing
  • Induced or encouraged the wrongdoing
  • Were in any way a party to the wrongdoing
  • Conspired with others to cause the wrongdoing
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39
Q

Extent of the Defendant’s Liability

A
  • The Defendant may try to claim ‘contributory negligence’ which means that they claim that the Plaintiff contributed to their own injury or loss
  • The Defendant may also argue that it was someone else’s fault
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40
Q

Factors to Consider when Initiating a Civil Claim: Enforcement Issues

A

Refers to if there are any issues with enforcing the Remedy

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41
Q

Examples of Enforcement Issues (List 2)

A
  • The Defendant is a company and have minimal assets
  • The Defendant may be in Jail
  • The Defendant may be bankrupt or does not have enough money to compensate the Plaintiff
  • The Plaintiff may not even know who the Defendant/s are
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42
Q

Factors to Consider when Initiating a Civil Claim: Negotiation Options

A
  • The parties may try to avoid Court and Lawyers all together and sort the matter out themselves
  • They could negotiate with Lawyers to agree without going to Court
  • They may be able to resolve the dispute through Mediation, Conciliation or Arbitration
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43
Q

When Negotiation is Appropriate (List 1)

A
  • Both parties agree to negotiate
  • They want to maintain a working relationship
  • They want to reduce costs, time and stress
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44
Q

When Negotiation is not Appropriate (List 1)

A
  • One or both of the parties won’t negotiate
  • Attempts to negotiate have already failed
  • There have been violence between the parties or an imbalance of power
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45
Q

Strengths of Negotiations (List 2)

A
  • The costs time and stress involved in a formal Civil Trial may be avoided
  • The parties have control over the outcome, opposed to it being decided by a third-party
  • The parties may be more prepared to accept an outcome that they have helped achieve, as opposed to one being imposed by a Court or Tribunal
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46
Q

Weaknesses of Negotiations (List 2)

A
  • No party can be forced to negotiate
  • Some issues may not be negotiable
  • The absence of a neutral third-party may encourage one party to take advantage of the other
  • Negotiation may be used as a stalling tactic to prevent the other party from using Mediation, Conciliation or Arbitration
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47
Q

Consumer Affairs Victoria (CAV)

A

Is a complaints body which is part of the Victorian Government’s Department of Justice and Regulation

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48
Q

Purposes of Consumer Affairs Victoria (CAV) (List 2)

A
  • To advice the Victorian Government on Consumer laws
  • To provide information and guidance for the public about consumer laws
  • Enforces compliance with consumer laws
  • Provides Consumer and Traders, Landlords and Tenants with a dispute resolution process and only accepts complaints from Consumers and Tenants
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49
Q

Dispute Resolution Method used at Consumer Affairs Victoria (CAV)

A

Conciliation

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50
Q

Jurisdiction of Consumer Affairs Victoria (CAV) (List 2)

A
  • The supply of goods and services
  • Residential tenancies
  • Retirement villages
  • Owners’ corporations
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51
Q

When Consumer Affairs Victoria (CAV) is Appropriate (List 2)

A
  • The dispute is within their Jurisdiction
  • The parties have tried to negotiate themselves
  • Both parties are willing to attend and participate
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52
Q

When Consumer Affairs Victoria (CAV) is not Appropriate (List 2)

A
  • The dispute is out of their Jurisdiction
  • The matter has already been resolved by the Courts
  • The parties have not tried to negotiate amongst themselves
  • One party is unwilling to participate
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53
Q

Strengths of Consumer Affairs Victoria (CAV) (List 1)

A
  • The Conciliation process is free, so it is accessible to all Victorians
  • Consumer Affairs Victoria (CAV) aims to resolve disputes in an informal and timely manner
  • Consumer Affairs Victoria (CAV) will ensure that the process is fair and that both parties have the opportunity to present their case
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54
Q

Weaknesses of Consumer Affairs Victoria (CAV) (List 2)

A
  • Consumer Affairs Victoria (CAV) cannot force the parties to participate in Conciliation
  • Consumer Affairs Victoria (CAV) lack enforcement powers and any agreement made via Conciliation can only be enforced by the Courts
  • Consumer Affairs Victoria (CAV) is generally not appropriate in solving large or complex disputes
  • Consumer Affairs Victoria (CAV) can only intervene in certain disputes
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55
Q

Victorian Civil and Administrative Tribunal (VCAT)

A

VCAT is a Tribunal that solves a range of Civil and Administrative disputes in Victoria

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56
Q

Purpose of VCAT

A

To provide a lost-cost, accessible and efficient service to resolve Civil Disputes

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57
Q

Methods of Dispute Resolution at VCAT

A
  • Mediation
  • Compulsory Conferences
  • Final Hearing
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58
Q

Methods of Dispute Resolution at VCAT: Mediation

A
  • Most disputes at VCAT will go to Mediation prior to a Final Hearing
  • If a Mediation session does not work in solving the dispute, VCAT also offers a Short Mediation and Hearing Process for small Civil Claims. This is heard on the same day as the Mediation session at a Hearing my a different VCAT member
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59
Q

Methods of Dispute Resolution at VCAT: Compulsory Conferences

A
  • Are pre-hearing meetings where a VCAT member is present
  • The parties try to resolve their dispute via Conciliation
  • The VCAT member may suggest potential solutions as well as advise what the likely outcome of the cause will be if it proceeds to a hearing
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60
Q

Methods of Dispute Resolution at VCAT: Final Hearing

A

VCAT may make a wide range of orders to resolve a dispute such as ordering a party to pay money or ordering an Injunction to be imposed. These orders are Legally Binding and can be enforced with the assistance of the Courts

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61
Q

Jurisdiction of VCAT

A

VCAT can hear claims about: (List 2)

  • Disputes between Landlords and Tenants
  • Discrimination
  • Sexual Harassment
  • Lawyer Conduct
  • Domestic Building Works
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62
Q

When VCAT is Appropriate (List 2)

A
  • The dispute is within their Jurisdiction
  • The parties have tried to negotiate themselves
  • Both parties are happy to only be able to Appeal on the Point of Law
  • The parties prefer an informal method of dispute resolution
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63
Q

When VCAT is not Appropriate (List 2)

A
  • The dispute is not in VCAT’s Jurisdiction
  • The parties are willing to negotiate
  • The parties want greater ability to appeal
  • The parties want legal representation
  • The claim is for a large sum of money
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64
Q

Strengths of VCAT (List 2)

A
  • Quicker than the Courts; The matter is heard within 2 weeks
  • The informal atmosphere helps the parties feel comfortable
  • The decisions made are Legally Binding on the parties
  • Specialisation means that there is a high level of expertise among members
65
Q

Weaknesses of VCAT (List 2)

A
  • Costs of VCAT are rising as their fees are also rising
  • The parties have to go to court to enforce most VCAT decisions
  • Most VCAT members are Solicitors, not Judicial Officers and some lack experience in dispute resolution
  • Some people prefer formality and the chance to be legally represented
66
Q

Pre-Trial Procedures

A
  • Pleadings
  • Discovery of Documents
  • Exchange of Evidence
67
Q

Pre-Trial Procedures: Pleadings

A

A procedure where documents are filed and exchanged between the Plaintiff and the Defendant which states that claim/s and the defence/s in the dispute

68
Q

Pleadings: Statement of Claim

A

Filed by the Plaintiff and sets out the claim/s against the Defendant and the damages sought

69
Q

Pleadings: Defence

A

Filed by the Defendant and responds to each of the Plaintiff’s claim/s

70
Q

Purpose of Pleadings (List 2)

A
  • Requires the parties to state their sides of the dispute, so it allows each side to know the other party’s claim/s, which upholds Fairness
  • Provides the Court with written details of the case, which assists with Case Management
  • May assist in an out-of-court settlement
  • Requires the statement of key facts of the case, which eliminates the element surprise
71
Q

Pre-Trial Procedures: Discovery of Documents

A

A procedure that involves all parties sharing relevant documents that relate to the claim/s or defence prior to the Trial

72
Q

A Document is Classified as and Not Limited to… (List 2)

A
  • Letters
  • Contracts
  • Audio Recordings
  • Video Recordings
73
Q

Purposes of Discovery of Documents (List 2)

A
  • Ensures that both parties know the documents that will be used, so the parties can be prepared and avoids the element of surprise during trial
  • Promotes chances of an out-of-court settlement as the parties can assess the strength of the opponent’s case
  • Promotes Fairness and Justice as all parties and the Court have access to all relevant material
  • Assists in reaching an out-of-court settlement
74
Q

Pre-Trial Procedures: Exchange of Evidence - Lay Evidence

A

Evidence that is given by an ordinary person about the facts of the dispute

75
Q

Pre-Trial Procedures: Exchange of Evidence - Expert Evidence

A

Evidence that is given by an independent expert about an area within their expertise. The party who wants to deliver Expert Evidence has to pay. The expert must provide their truthful opinion because they are under oath

76
Q

Purposes of Exchange of Evidence (List 2)

A
  • To reduce the element of surprise at Trial
  • Allows each party to determine the strength of the other side’s case
  • Provides each party with the chance to rebut the other’s argument through providing their own expert
  • Allows the Defendant to understand the extent of damages sought and then to decide whether to settle or to go to Trial
77
Q

Victorian Court Hierarchy

A
  • High Court of Australia (Federal)
  • Supreme Court of Appeal
  • Supreme Court Trial Division
  • County Court
  • Magistrates’ Court
78
Q

Victorian Court Hierarchy: Original Jurisdiction

A
  • Supreme Court of Appeal: No Original Jurisdiction
  • Supreme Court Trial Division: Unlimited in all Civil Claims
  • County Court: Unlimited in all Civil claims
  • Magistrates’’ Court: Claims of up to $100,000
79
Q

Victorian Court Hierarchy: Appellate Jurisdiction

A
  • High Court of Australia (Federal): Hears Appeals from the Supreme Court of Appeal
  • Supreme Court of Appeal: Hears Appeals with leave on decisions made by the President or Deputy President in the Supreme Court, County Court and VCAT
  • Supreme Court Trial Division: Hears Appeals on a Question of Law from the Magistrates’ Court and VCAT
  • County Court: Hears no Appeals, unless given power under a specific Act
  • Magistrates’ Court: No Appellate Jurisdiction
80
Q

Reasons for the Victorian Court Hierarchy

A
  • Administrative Convenience

- Appeals

81
Q

Reasons for the Victorian Court Hierarchy: Administrative Convenience

A
  • Refers to how cases can be directed to Courts bases on their seriousness and complexity
  • This means that smaller claims can be heard in the Magistrates’ Court, which generally hears shorter cases. This is beneficial because many cases can be heard in a day
82
Q

Reasons for the Victorian Court Hierarchy: Appeals

A
  • Refers to how somebody who is unsatisfied with the decision that the Court has made in relation to their case can Appeal to a higher Court/s, if there are grounds to do so
  • The existence of a higher Court means that people can ask for review when they believe a mistake has been made
  • Most Appeals require the Court’s consent to Appeal to the Supreme Court of Appeal or the High Court
83
Q

Grounds to Appeal in Civil Cases may include… (List 1)

A
  • A Point of Law
  • A Question of Fact
  • The Remedy Awarded
84
Q

Strengths of the Courts as Dispute Resolution Bodies (List 2)

A
  • Fairness is achieved through the way Proceedings are conducted
  • Constant dialogue between the Court and parties promotes Fairness and Equality
  • A decision will be reached
  • The parties gather a lot of information Pre-Trial, allowing them to have opportunities to reach an out-of-court settlement
85
Q

Weaknesses of the Courts as Dispute Resolution Bodies (List 1)

A
  • Courts are a costly forum so Access can be compromised
  • Courts can take a long time to resolve Civil Disputes
  • Courts can be stressful environments where the parties struggle to follow the case
86
Q

Key Personnel in a Civil Trial

A
  • The Judge
  • The Jury
  • The Parties
  • Legal Practitioners
87
Q

Responsibilities of Key Personnel in a Civil Trial: The Judge (List 2)

A
  • Manage the trial through Case Management
  • Give Directions to the parties
  • Ask Witnesses questions
  • Determine the Liability (If there is no Jury)
  • Determine the Remedy
88
Q

Responsibilities of Key Personnel in a Civil Trial: The Jury (List 2)

A
  • Be objective as set aside any biases, pre-conceived ideas or prejudices
  • Listen to and remember the evidence
  • Understand Directions and Summing up
  • Determine the Liability
  • In some cases, determine the Damages
89
Q

Responsibilities of Key Personnel in a Civil Trial: The Parties (List 2)

A
  • Make opening and closing addresses
  • Present their case to a Judge and Jury (If there is one)
  • Provide evidence through Witnesses
  • Comply with the 10 Overarching Obligations
90
Q

Responsibilities of Key Personnel in a Civil Trial (List 2)

A
  • Making opening and closing addresses
  • Present the case to a Judge and Jury (If there is one)
  • Comply with the 10 Overarching Obligations
  • Prepare and conduct a case on behalf of their client
  • Need to be honest to the Court
91
Q

Case Management

A

Refers to how a Judge makes Orders and Directions in the Proceedings to make them run more efficiently

92
Q

Judicial Case Management Powers

A
  • Power to Order Mediation

- Power to Give Directions

93
Q

Power to Order Mediation

A

The Judge or Magistrate can refer the parties to Mediation at any stage in the Dispute Process, and it can be tried more than once

94
Q

Power to Give Directions

A

Directions are instructions provided by the Court to one or more parties to do something, such as to file a document at a particular time

95
Q

How Case Management Achieves Fairness

A
  • Saves time and money; most disputes are settled at Mediation
  • Ordering Mediation often results in successful resolutions of disputes without the stress and delays associated with a Trial
96
Q

How Case Management does not Achieve Fairness

A

Mediation is not suitable for all parties, and may create further delays before the Trial

97
Q

How Case Management Achieves Equality

A

All parties are able to participate in this Dispute Resolution Methods

98
Q

How Case Management Achieves Access

A

Almost all parties have Access to Mediation through the Pre-Trial process

99
Q

Alternative Dispute Resolution Methods

A
  • Mediation
  • Conciliation
  • Arbitration
100
Q

Mediation

A

A method whereby an independent third-party ensures that the conversation runs smoothly but the parties come to their own agreement

101
Q

When Mediation is Appropriate (List 2)

A
  • Relationship between parties (such as Family Members) will continue
  • Both parties are prepared to meet and stick to what is agreed
  • The Court has referred the parties to Mediation
  • The Defendant has admitted Liability, but the amount needs to be agreed upon
  • The Parties want privacy in their resolution
102
Q

When Mediation is not Appropriate (List 2)

A
  • The dispute may involve overwhelming emotions which will interfere with negotiations
  • There is a history of broken promises between the parties
  • There is a history of violent or threatening behaviour
  • One or both parties are unwilling to reach a mutual agreement
  • There is a gross imbalance of power between the parties
103
Q

Conciliation

A

A process where a third-party listens to both parties sides and makes suggestions to them on how to resolve their dispute but do not resolve it for them

104
Q

When Conciliation is Appropriate (List 2)

A
  • Relationship between parties (such as Family Members) will continue
  • Both parties are prepared to meet and stick to what is agreed
  • The Court has referred the parties to Conciliation
  • The parties want privacy in their resolution
105
Q

When Conciliation is not Appropriate (List 2)

A
  • The dispute may involve overwhelming emotions which will interfere with negotiations
  • There is a history of broken promises between the parties
  • There is a history of violent or threatening behaviour
  • One or both parties are unwilling to reach a mutual agreement
  • There is a gross imbalance of power between the parties
106
Q

Arbitration

A

Is a process where both parties put their case forward to an independent third-party who then makes the final decision which is legally binding on all parties

107
Q

When Arbitration is Appropriate (List 2)

A
  • Disputes where parties have agreed to Arbitrate
  • The claim is less than $100,000
  • Both parties want a Legally Binding Decision by a third-party
  • The parties want to present Evidence to a third-party and have some Rules of Evidence
  • The parties want to avoid the publicity of a Courtroom
108
Q

When Arbitration is not Appropriate (List 1)

A
  • The parties have not agreed to Arbitration
  • Both parties want greater control over the process and the outcome of the dispute
  • The parties are more comfortable with the formal environment of a Court
109
Q

Remedy

A

An order made by a Court to address a civil wrong

110
Q

Overall Purpose of Remedies

A

To restore the Plaintiff to the position they were in as far as possible prior to the civil wrong

111
Q

Damages

A

The most common form of Remedy; Financial compensation

112
Q

Types of Damages

A
  • Compensatory Damages:
  • Specific Damages (Compensatory Damages)
  • General Damages (Compensatory Damages)
  • Aggravated Damages (Compensatory Damages)
  • Exemplary Damages
  • Nominal Damages
  • Contemptuous Damages
113
Q

Compensatory Damages

A

The most common for of Damages which aims to compensate the Plaintiff to the loss suffered

114
Q

Compensatory Damage: Specific Damages

A

Can be given a precise monetary value an is easily quantifiable

115
Q

Compensatory Damage: General Damages

A

Is assessed and estimated by the Court according to the extent of the wrongdoing and the long term consequences

116
Q

Compensatory Damage: Aggravated Damages

A

Is awarded to compensate the Plaintiff further if the Court believes that the Defendant’s conduct injured the Plaintiff’s feelings by causing humiliation

117
Q

Exemplary Damages

A

Are awarded when the defendant’s actions are malicious. They cannot be awarded for defamation and seek to inflict some kind of punishment on the Defendant and/or to deter others

118
Q

Nominal Damages

A

Is a small amount of Damages which aims to uphold the Plaintiff’s rights without awarding a substantial amount of Damages

119
Q

Contemptuous Damages

A

Are awarded when the court acknowledges that the plaintiff has a legal right to make their claim, but not a moral right to do so

120
Q

Purpose of Damages

A

To compensate the Plaintiff for losses suffered and to return them to the position they were in before the Defendant caused harm

121
Q

Questions to Consider when Discussing the Extent to which Remedies Achieve their Purpose (List 2)

A
  • What sort of loss has the Plaintiff suffered?
  • Can money return the Plaintiff to the position they were in before the harm occurred?
  • Does the Defendant have the money to make the payment?
  • Is there some other Remedy beside Damages that would better compensate the Plaintiff
122
Q

Injunction

A

A Court order to do or not do something

123
Q

Types of Injunctions

A
  • Restrictive Damages
  • Mandatory Damages
  • Interlocutory Damages
  • Perpetual Damages
124
Q

Types of Damages: Restrictive Damages

A

Stops the Defendant from doing something such as demolishing a building

125
Q

Types of Damages: Mandatory Damages

A

Forces the parties to do something such as perform their part of a contract

126
Q

Types of Damages: Interlocutory Damages

A

A short-term Injunction and is provided when there is an urgent situation that requires a quick resolution

127
Q

Types of Damages: Perpetual

A

A permanent Order

128
Q

Factors that Affect the Civil Justice System in Achieving the Principles of Justice

A
  • Costs
  • Time
  • Accessibility
129
Q

Factors that Affect the Civil Justice System in Achieving the Principles of Justice: Fairness - Weaknesses of Costs

A

Unequal legal representation may lead to an unfair outcome for an unrepresented party as they cannot prepare and present a case of the same quality

130
Q

Factors that Affect the Civil Justice System in Achieving the Principles of Justice: Equality - Weaknesses of Costs

A

Equality may not be achieved if some injured parties cannot initiates proceedings in Court due to the costs associated

131
Q

Factors that Affect the Civil Justice System in Achieving the Principles of Justice: Access - Weaknesses of Costs (List 1)

A
  • The high costs of proceedings may discourage individuals from initiating a Civil claim in the first place
  • The high costs associated with some VCAT lists may discourage individuals from pursuing particular types of claims, restricting their Access to Justice
  • The high costs of having a Jury sit in the Civil Proceeding ma discourage individuals
132
Q

Factors that Affect the Civil Justice System in Achieving the Principles of Justice: Fairness - Weaknesses of Time

A

Delays worsen the stress of the trial and can and to the suffering for those seeking compensation

133
Q

Factors that Affect the Civil Justice System in Achieving the Principles of Justice: Equality - Weaknesses of Time

A

Inconsistent dispute resolution times means that some injured people will have their disputes resolved quickly whilst others face significant delays

134
Q

Factors that Affect the Civil Justice System in Achieving the Principles of Justice: Access - Weaknesses of Time

A

Delays in the Justice System may discourage injured parties from initiating their claim/s which limits their Access to Justice

135
Q

Factors that Affect the Civil Justice System in Achieving the Principles of Justice: Fairness - Weaknesses of Accessibility

A

Those who are recent migrants, have limited education or are self-represented parties from non-English speaking backgrounds may not be able to present their case in the best light, due to the difficulty understanding the law and the legal processes followed

136
Q

Factors that Affect the Civil Justice System in Achieving the Principles of Justice: Equality - Weaknesses of Accessibility

A

Barriers may prevent injured individuals with legal entitlements of a Remedy from pursuing legal actions due to their personal characteristics

137
Q

Factors that Affect the Civil Justice System in Achieving the Principles of Justice: Access - Weaknesses of Accessibility

A

The fear of self-representation may discourage the young, elderly and/or recent migrants from making a claim/s at VCAT, which renders VCAT as less accessible as a Dispute Resolution Body for these parties

138
Q

Recent Reforms to Enhance the Ability of the Civil Justice System to Achieve the Principles of Justice: Greater use of technology in the courts and VCAT (2019)

A

The increased use of technology in the Courts and VCAT helps to increase access to the Civil Justice System and resolve Civil Disputes in a timelier and cost-effective manner

139
Q

Recent Reforms to Enhance the Ability of the Civil Justice System to Achieve the Principles of Justice: Greater use of technology in the courts and VCAT (2019) - Achieved Fairness

A

Delays are reduced since documents are submitted online and it allows for them to be accessed in a more timey manner

140
Q

Recent Reforms to Enhance the Ability of the Civil Justice System to Achieve the Principles of Justice: Greater use of technology in the courts and VCAT (2019) - Achieved Equality

A

Any party is able to use technology to access online documents, including people who are disadvantaged due to their location or their inability to travel

141
Q

Recent Reforms to Enhance the Ability of the Civil Justice System to Achieve the Principles of Justice: Greater use of technology in the courts and VCAT (2019) - Not Achieved Fairness

A

People who have no internet access, such as those in rural areas may struggle with the new online systems

142
Q

Recent Reforms to Enhance the Ability of the Civil Justice System to Achieve the Principles of Justice: Greater use of technology in the courts and VCAT (2019) - Achieved Access

A

People who live in rural areas can now can now Access their services online

143
Q

Recent Reforms to Enhance the Ability of the Civil Justice System to Achieve the Principles of Justice: Greater use of technology in the courts and VCAT (2019) - Not Achieved Access

A

Legally represented parties are now at an advantage as their legal representative are more familiar with the system

144
Q

Recent Reforms to Enhance the Ability of the Civil Justice System to Achieve the Principles of Justice: Expansion of VCAT’s Fast Track Mediation and Hearing Processes (2019)

A

Fast track mediation allows parties based in Melbourne who have a dispute under $10,000 attend a Mediation hearing. If not resolved, they attend a VCAT hearing later that day. There are no hearing fees

145
Q

Recent Reforms to Enhance the Ability of the Civil Justice System to Achieve the Principles of Justice: Expansion of VCAT’s Fast Track Mediation and Hearing Processes (2019) - Achieved Fairness

A

Avoids many procedural issues that arise at a VCAT hearing such as parties don’t have to worry about understanding processes of giving evidence due to its informal nature

146
Q

Recent Reforms to Enhance the Ability of the Civil Justice System to Achieve the Principles of Justice: Expansion of VCAT’s Fast Track Mediation and Hearing Processes (2019) - Not Achieved Fairness

A

Lacks pre-hearing procedures that typically uphold Fairness such as Pleadings which are important to ensuring that both parties can show the strength of their case before the Hearing. This is not present in fast track Mediation

147
Q

Recent Reforms to Enhance the Ability of the Civil Justice System to Achieve the Principles of Justice: Expansion of VCAT’s Fast Track Mediation and Hearing Processes (2019) - Achieved Equality

A

Ensures that all people are treated equally by using an unbiased and impartial Mediator

148
Q

Recent Reforms to Enhance the Ability of the Civil Justice System to Achieve the Principles of Justice: Expansion of VCAT’s Fast Track Mediation and Hearing Processes (2019) - Not Achieved Equality

A

The impartial Mediator may not be able to cater to specific qualities, such as mental impairments which may inhibit a party’s ability t be seen as equal

149
Q

Recent Reforms to Enhance the Ability of the Civil Justice System to Achieve the Principles of Justice: Expansion of VCAT’s Fast Track Mediation and Hearing Processes (2019) - Achieved Access

A

Ensuring that more people are eligible by increasing the threshold to $10,000

150
Q

Recent Reforms to Enhance the Ability of the Civil Justice System to Achieve the Principles of Justice: Expansion of VCAT’s Fast Track Mediation and Hearing Processes (2019) - Not Achieved Access

A

The threshold of $5,000 for regions other than Melbourne means it is not as accessible as it could be

151
Q

Recommended Reforms to Enhance the Ability of the Civil Justice System to Achieve the Principles of Justice: Increased use of Case Management

A

The Supreme Court has established a triage system, where other staff such as associate judges can participate in some of the case management work. This leaves the more complex work for the judges, and increases the efficiency of the courts. Judges are able to be used more in the management and resolution of disputes by taking a more active role. They may also be able to offer more assistance to those who are self-representing

152
Q

Recommended Reforms to Enhance the Ability of the Civil Justice System to Achieve the Principles of Justice: Introduction of a National Justice Interpreter Scheme

A

A report conducted by Law Council of Australia identified importance of interpreters to ensure full participation in legal system for those of culturally and linguistically diverse backgrounds and found that availability of such a service was extremely limited. This ensures that those who require interpreters would have Access to free and appropriately qualified assistance which provides interpreters for entire legal processes, enabling legal assistance and advice when needed

153
Q

Recommended Reforms to Enhance the Ability of the Civil Justice System to Achieve the Principles of Justice: Introduction of a National Justice Interpreter Scheme - Achieved Fairness

A

Provides people from non-English speaking backgrounds with greater understandings of Court processes and procedures

154
Q

Recommended Reforms to Enhance the Ability of the Civil Justice System to Achieve the Principles of Justice: Introduction of a National Justice Interpreter Scheme - Not Achieved Fairness

A

The success of the scheme will depend on the quality and availability of interpreters

155
Q

Recommended Reforms to Enhance the Ability of the Civil Justice System to Achieve the Principles of Justice: Introduction of a National Justice Interpreter Scheme - Achieved Equality

A

Assists vulnerable parties to get onto the same level with those who understand Court processes

156
Q

Recommended Reforms to Enhance the Ability of the Civil Justice System to Achieve the Principles of Justice: Introduction of a National Justice Interpreter Scheme - Not Achieved Equality

A

The scheme doesn’t address other Equality issues such as mental impairment

157
Q

Recommended Reforms to Enhance the Ability of the Civil Justice System to Achieve the Principles of Justice: Introduction of a National Justice Interpreter Scheme - Achieved Access

A

Gives Access to non-English speaking people to understand court processes and procedures and their rights as a Plaintiff or Defendant

158
Q

Recommended Reforms to Enhance the Ability of the Civil Justice System to Achieve the Principles of Justice: Introduction of a National Justice Interpreter Scheme - Not Achieved Access

A

Everybody won’t have Access to appropriate and qualified interpreters

Year 12 VCE Legal Studies (4 decks)

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