Unit 3 Outcome 2 The Victorian Civil Justice System

Question 1

f

What is civil law?

Answer 1

when individual suffers damage as a result of their right being infringed by other party.

Question 2

3 dispute resolution bodies

Answer 2

• tribunal
• complaints bodies
• courts

Question 3

fairness

Answer 3

• Both parties should know the case against them and have an opportunity to present their case
• they should have fair access to dispute resolution procedures as well as understand and be able to participate in Court procedures.

Question 4

equality

Answer 4

Each person should be “equal before the law” without discrimination.

Judges need to be impartial,
Civil justice should be available to all people including legal rep

Question 5

access

Answer 5

Ability to use legal system to uphold their rights and resolve disputes
Information should be freely available to assist people

Question 6

burden and standard of proof

Answer 6

burden is on plaintiff
standard is based on the balance of probabilities

if defendant sues the plaintiff as well it is a counterclaim

Question 7

representative proceedings (class action)

Answer 7

a lead plaintiff represents a group who have been impacted by an action of the same individual or company. must be 7+

Question 8

who pays costs of class actions
3

Answer 8

can either be a
- litigation funder: provides funding, if unsuccessful they bear liability of cots, if successful they receive between 20-30% back
- lead plaintiff or a
- subset of the group members

Question 9

2 benefits of representative proceedings

Answer 9

• save Courts time because allows majority of claims to be dealt with at once.
• allow more access to the Courts because members can share the costs and receive benefits they otherwise would not be able to pursue if making individual claim.

Question 10

problems with representative proceedings 3

Answer 10

• It can be risky as in an unsuccessful claim, the lead plaintiff can be required to pay the costs of the Defendants.
• A Court can stop a class action if they feel that the costs would outweigh the benefits.
• Group members do not have a say in the proceedings and can feel that their case is not being presented as they wish

Question 11

factors to be considered 5

Answer 11

• costs: will costs outweigh benefits
• negotiation options: can it be resolved outside of court (mediation, letters of demand)
• limitation of actions: time frame
• scope of liability: who is defendant and what extent they are liable
• enforcement issues: can the defendant pay

Question 12

what is mediation

Answer 12

Sit across as table with a third party to assist
The parties determine the final agreement.
It is not binding until in courts have made order.
Mediators role is to facilitate discussions and help identify issues. They do not give advice. They do not make the decision.

Question 13

how is mediation appropriate 3

Answer 13

saves cost and time
confidential
win win solution

Question 14

when is mediation not appropriate 3

Answer 14

urgent matters
unwilling party
mentally unwell parties

Question 15

conciliation

Answer 15

Parties try and resolve their matter in a meeting with a third party known as a conciliator who can offer suggestions and advice.
Cannot force the parties to take their advice.
Decision reached is not binding unless made into an Order by the Court of Tribunal who referred the matter to conciliation.
The Conciliator often has expertise in that area of law and so is more directive than a mediator.

only difference between conciliation and mediation is expertise of conciliator

Question 16

how is conciliation appropriate? 3

Answer 16

expertise of conciliator
inexpensive and informal
more cooperative then court action

Question 17

how is conciliation inappropriate? 3

Answer 17

may prolong case
relies on goodwill
decision may not be binding

Question 18

arbitration
jurisdiction

Answer 18

Third party is the arbitrator who can make a binding decision. The Arbitrator listens to the issues of each party and makes a decision in favour of one.
Order is binding – very limited rights of appeal.
only in supreme commercial divisions and magistrates for up to $10k

Question 19

3 strengths of arbitration

Answer 19

binding
confidential
expertise of arbitrator

Question 20

3 weaknesses of arbitration

Answer 20

formal = intimidating
parties have no control over outcome
limited right to appeal

Question 21

consumer affairs vic (cav)
3 things it does
Dispute resolution it uses

Answer 21

business unit that’s role is to monitor and regulate consumer affairs between consumer and tenants, not businesses and landlords. they assess appropriateness and do not take on subjective matters
- advises the Vic Gov on consumer legislation.
- Provides information to educate people about consumer laws.
- assists to settle dispute efficiently, constructively and free of cost
does not provide assistance for personal injury.
Conciliation

Question 22

3 strengths of cav

Answer 22

free of cost = access
informal as over phone = access (decreases intimidation)
both parties have right to be heard = fairness

Question 23

3 weaknesses of cav

Answer 23

no power to enforce decision
not all cases are accepted
not appropraiote for large complex disputes

Question 24

vic civil administrative tribunal (vcat)
5 divisions
jurisdiction

Answer 24

An alternative to court
Has five divisions –
Civil
Administrative
Human Rights.
Planning and Environment
Residential Tenancies

It has an unlimited monetary jurisdiction – but it has accrued jurisdiction, so it cannot hear all matters.

Question 25

3 purposes of vcat and how they are achieved

Answer 25

• provide low cost, efficient informal dispute resolution
• Less expensive (filing fees are lower and no rep)
• Uses a range of dispute resolution processes (compulsory conferences, fast track mediation)

Question 26

2 vcat resolution methods

Answer 26

COMPULSORY CONFERENCES use conciliation processes to clarify issues in disputes, allow for directions and prepare for hearings. nothing said can be said during can be used in hearings.

FAST TRACK MEDIATIONS are conducted by qualified VCAT staff mediators. If a dispute is not settled at the mediation, it goes to a hearing on the same day conducted by a VCAT member.

Question 27

3 strengths of vcat

Answer 27

• cheaper
• informal
• final decision is binding on parties

Question 28

3 weaknesses of vcat

Answer 28

could be too informal
limited right to appeal
not appropriate for large complex cases

Question 29

4 reasons for the court hierarchy

Answer 29

• Administrative convenience: Allows for allocation of cases according to their complexity and time needed which reduces delays. adjusts for timely resolution county has less forms then supreme
• doctrine of precedent
• appeals
• specialisation

Question 30

pleadings
what they include 4

Answer 30

series of documents exchanged between the parties.
They set out and clarify the claims and the defences of the parties and help to define the issues that are being disputed.

They include:
- The writ (Explains to a defendant that an action has been taken and date of trial)
- Defence (and counterclaim);Sets out the response to each of the allegations
- Reply to defence; plaintiff can respond to clarify a fact
- Further and better particulars. (party may ask for more information regarding the other parties claim or defence.)

Question 31

3 purposes of pleadings

Answer 31

• Define the issues before going to Court
• Notifying other party of Complaint;
• Give parties opportunity to prepare their case

Question 32

discovery

Answer 32

parties to disclose all relevant material documents to the other side to gain further info on matters that are unclear

Question 33

purposes of discovery 3

Answer 33

• Reduce the element of surprise at trial;
• Ensure all parties have copies of documents;
• Allow parties to determine the strengths and weaknesses of case which can lead to settlement.

Question 34

4 stages in discovery process

Answer 34

Discovery and inspection of documents;
Interrogatories
Discovery by oral examination
Medical examination

Question 35

judical powers
2

Answer 35

• order mediation
• order directions

Question 36

responsibilities of a judge 3

Answer 36

• Undertakes case management, give directions
• remain impartial
• Enforce the rules of evidence

Question 37

3 strengths and weaknesses of judges

Answer 37

• impartial however may be seen or have unconscious as bias
• they have significant powers in case management however may not be able to sufficiently assist self represented party.
• does not overly interfere however they could and cause mistrial

Question 38

responsibilities of juries 3 and how many

Answer 38

Listen to and remember the evidence
Remain impartial and put aside prejudices
Decide liability and in some cases damages.

6 jurors

Question 39

3 strengths and weaknesses of juries

Answer 39

• randomly picked maintaining impartiality however may have bias
• only decide on facts given in evidence however may undertake own enquiries risking liability of evidence
• able to bring community values however its difficult to remember all evidence

Question 40

role of parties during trial 3

Answer 40

• present case in best possible light without any misinterpretation
• Cross-examining the witnesses of the other party.
• provide expert evidence in court

Question 41

3 strengths and weaknesses of parties

Answer 41

• Party control helps parties feel satisfied with the result however unrepresented parties can cause delays
• Parties need to comply with overarching obligations however it can be difficult to prove that a party hasn’t complied
• Parties choose the evidence they wish to lead however vital evidence may be excluded

Question 42

role of legal rep 3

Answer 42

• Help to prepare and conduct the case – expertise is needed
• Make opening and closing addresses
• Present the case to the Judge and Jury

Question 43

2 strengths and weaknesses of legal rep

Answer 43

• present case in best possible light however better legal rep and lead to better result for one party
• provides expertise however expensive

Question 44

role of parties pre trial 3

Answer 44

• identify issues to be presented in court
• decide on witnesses
• decide on what law to rely on

Question 45

purpose of remedies

Answer 45

restore plaintiff to position they were in prior to wrongdoing

Question 46

types of compensatory damages 3

Answer 46

• specific: precise monetary value (medical expenses)
• aggravated: extra compensation for humiliation
• general: take into account impact of injury on past present and future

Question 47

types of damages 4

Answer 47

• compensatory: compensate to the extent money can do so
• contemptuous: small amount for recognition however no belief they have rights to damages
• nominal: when plaintiff wants to prove legal point rather than get compensation
• exemplary: large sum to punish defendant

Question 48

injunction

Answer 48

court order against the losing party in a civil case that either:-
Prohibits them from performing a particular act and restricts their conduct – Restrictive or prohibitive injunction
Or
Requires them to undertake an action: ie. To fulfill a contract – mandatory or compulsive injunction.
can be short term or permanent

Question 49

factors that affect fairness equality access

Answer 49

time
cost
access

Question 50

why is cost an issue in the civil justice system? 2
how can it be reduced? 2

Answer 50

Legal rep
Court fees

ADR methods
ADR bodies

Question 51

linking costs to the principles of justice

Answer 51

f - if parties have issues with costs they may be forced to settle or withdraw claim
e - parties with less expensive court can have unfair outcome
a - cost can affect access to legal system

Question 52

4 things affecting time
1 way it can be minimised

Answer 52

court delays - much higher then vcat delays, pre trial, backlog
Individual delays - late in seekings advice, no legal rep, not able to afford
The complexity of a matter and the assistance available
Use of juries - remember evidence, understand rules, empanelling

case management reduces delays by transferrings cases to appropriate courts, limiting docs, restricting witness time

Question 53

linking delays to fea

Answer 53

f - impacts reliability of evidence
e - impacts individuals with a language barrier as they may suffer monetary or emotional stress
a - can force parties to withdraw

Question 54

3 things that affect access and 3 things that can improve access

Answer 54

communication language barriers
lack of services
cultural differences

representative proceedings, appeals and adr allows for more access

Question 55

2 recent reforms
- year they took place
- strengths & weaknesses

Answer 55

• Allowing for Contingency fees in Class Action Proceedings only. amendment was made in 2020. It improves access as it makes the fees charged by litigation funders more competitive.
  It improves equality and fairness as more people can bring their action to court.
  strengths - more access, saves time
  weaknesses - needs to be a strong case, lawyer may rush
• Expansion of VCAT fast track mediation.
  In 2019 it expanded in two ways:
  Increased its threshold from $3000 to $10 000 in Melbourne.
  Expanded across Victoria for claims of up to $5 000
  Increased principles of justice
  strengths - saves time and costs, no use of courts or rep
  weaknesses - not in rural areas, only up to 10,000 so not for all cases

Question 56

2 recomendations

Answer 56

• expanding use of contingency fees further then just class actions. This would reduce inequality and increase fairness but does not overcome the procedural issues of civil claims. It does not avoid the conflict of interest.
  strengths and weaknesses - same for the reform
• expand fast track mediation to rural areas and more then $10,000 monetary jurisdiction
  strength and weaknesses - same as reform