Unit 3 Outcome 2 The Victorian Civil Justice System Flashcards
f
What is civil law?
when individual suffers damage as a result of their right being infringed by other party.
3 dispute resolution bodies
- tribunal
- complaints bodies
- courts
fairness
- 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.
equality
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
access
Ability to use legal system to uphold their rights and resolve disputes
Information should be freely available to assist people
burden and standard of proof
burden is on plaintiff
standard is based on the balance of probabilities
if defendant sues the plaintiff as well it is a counterclaim
representative proceedings (class action)
a lead plaintiff represents a group who have been impacted by an action of the same individual or company. must be 7+
who pays costs of class actions
3
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
2 benefits of representative proceedings
- 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.
problems with representative proceedings 3
- 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
factors to be considered 5
- 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
what is mediation
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.
how is mediation appropriate 3
saves cost and time
confidential
win win solution
when is mediation not appropriate 3
urgent matters
unwilling party
mentally unwell parties
conciliation
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
how is conciliation appropriate? 3
expertise of conciliator
inexpensive and informal
more cooperative then court action
how is conciliation inappropriate? 3
may prolong case
relies on goodwill
decision may not be binding
arbitration
jurisdiction
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
3 strengths of arbitration
binding
confidential
expertise of arbitrator
3 weaknesses of arbitration
formal = intimidating
parties have no control over outcome
limited right to appeal
consumer affairs vic (cav)
3 things it does
Dispute resolution it uses
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
3 strengths of cav
free of cost = access
informal as over phone = access (decreases intimidation)
both parties have right to be heard = fairness
3 weaknesses of cav
no power to enforce decision
not all cases are accepted
not appropraiote for large complex disputes
vic civil administrative tribunal (vcat)
5 divisions
jurisdiction
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.
3 purposes of vcat and how they are achieved
- 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)
2 vcat resolution methods
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.
3 strengths of vcat
- cheaper
- informal
- final decision is binding on parties
3 weaknesses of vcat
could be too informal
limited right to appeal
not appropriate for large complex cases
4 reasons for the court hierarchy
- 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
pleadings
what they include 4
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.)
3 purposes of pleadings
- Define the issues before going to Court
- Notifying other party of Complaint;
- Give parties opportunity to prepare their case
discovery
parties to disclose all relevant material documents to the other side to gain further info on matters that are unclear
purposes of discovery 3
- 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.
4 stages in discovery process
Discovery and inspection of documents;
Interrogatories
Discovery by oral examination
Medical examination
judical powers
2
- order mediation
- order directions
responsibilities of a judge 3
- Undertakes case management, give directions
- remain impartial
- Enforce the rules of evidence
3 strengths and weaknesses of judges
- 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
responsibilities of juries 3 and how many
Listen to and remember the evidence
Remain impartial and put aside prejudices
Decide liability and in some cases damages.
6 jurors
3 strengths and weaknesses of juries
- 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
role of parties during trial 3
- present case in best possible light without any misinterpretation
- Cross-examining the witnesses of the other party.
- provide expert evidence in court
3 strengths and weaknesses of parties
- 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
role of legal rep 3
- Help to prepare and conduct the case – expertise is needed
- Make opening and closing addresses
- Present the case to the Judge and Jury
2 strengths and weaknesses of legal rep
- present case in best possible light however better legal rep and lead to better result for one party
- provides expertise however expensive
role of parties pre trial 3
- identify issues to be presented in court
- decide on witnesses
- decide on what law to rely on
purpose of remedies
restore plaintiff to position they were in prior to wrongdoing
types of compensatory damages 3
- specific: precise monetary value (medical expenses)
- aggravated: extra compensation for humiliation
- general: take into account impact of injury on past present and future
types of damages 4
- 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
injunction
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
factors that affect fairness equality access
time
cost
access
why is cost an issue in the civil justice system? 2
how can it be reduced? 2
Legal rep
Court fees
ADR methods
ADR bodies
linking costs to the principles of justice
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
4 things affecting time
1 way it can be minimised
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
linking delays to fea
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
3 things that affect access and 3 things that can improve access
communication language barriers
lack of services
cultural differences
representative proceedings, appeals and adr allows for more access
2 recent reforms
- year they took place
- strengths & weaknesses
- 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
2 recomendations
- 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
