Unit 3.2 - Civil Justice System Flashcards
burden of proof
plaintiff - burden of proof
there are 2 parties in a civil dispute, the plaintiff and the defendant. the party who is responsible for initiating the civil claim possess the burden of proof.
- rests on the party who initiates the claim
- defendant does not necessarily need to defend themselves
- protects the presumption of innocence
standard of proof
balance of probabilities
the level to which the plaintiff has to prove their case
- lower than criminal proceedings - just which is more likely
- quality and quantity
limitations of actions
how long since the incident occurred? are you within the time limit?
–> ensures that system is not clogged up
a civil dispute cannot be initiated if the time limit has elapsed
negligence (personal injuries etc) - 3 years
defamation - 1 year
may be longer in some circumstances
- class action, workplace or sexual assault has no limitation on actions
costs
how much will it cost you? can you afford it?
high costs are a reality of our system
filing fees, expert witnesses, legal fees, hearing/court fees
however
- adverse costs: legal fees may be covered by other party if you win
enforcement issues
can / will they pay? what if you win and they can’t pay?
–> is it worth initiating a claim if defendant can’t pay
judgments can be enforced through a garnishee order (payment plan) or an examination notice (defendant’s assets seized and sold)
principles of justice - fairness (process)
all people can participate in the justice system and it’s processes should be impartial and unbiased and open.
factors that could affect the ability of people to participate in an impartial manner include:
- personal characteristics
- cultural differences
- financial status
examples
- procedural fairness
- understanding court processes
- the opportunity to:
- know the case against them
- present their case
- rebut the other parties case
- appeal a decision
principles of justice - equality (people)
all people engaging with the justice system and it’s processes should be treated in the same way; if the treatment creates disparity or disadvantage, adequate measures should be implemented to allow all to engage with the justice system without disparity or disadvantages from discrimination.
- don’t use impartial or unbiased in answer!!!
the same processes and procedures are used in similar disputes. within a civil dispute, both parties should be on the same footing, when needed adjustments can be made.
- processes being free from bias
- decision makers should be independant
- upholding the rule of law through equal applications of the law and equality in the process
- factors effect the disadvantage groups
principles of justice - access (to institution)
all people should be able to engage with the justice system and its processes on an informed basis
the removal of barriers that limit the ability of people to participate and engage in the legal system
barriers can include:
- money/costs
- delays
- lack of understanding
and can lead to unjust outcomes for the plaintiff/defendant
examples
- access to a range of mechanisms that can be used to resolve civil disputes (VCAT, CAV and courts)
- access is hindered by
- costs and delays
- complex legal procedures
mediation
a method of dispute resolution that uses an independant party to assist the parties reach a resolution. they do not give advice or make suggestions to either party, they are just there to maintain peace. the agreements is only binding if parties sign a settlement
- the aim of mediation is to resolve disputes in a cooperative manner
- discussion rather than evidence - allows parties to discuss feelings and values
mediation - strengths
- parties make decisions, therefore are more likely to follow through and obey the final outcome decided
- independent 3rd party to facilitate discussion
- more informal than court - more comfortable for parties
- private and confidential
mediation - weaknesses
- final decision is not binding
- imbalance of power
- mediator cannot give advice or suggestions
- can be costly, people cannot afford mediation
mediation - appropriateness
- both parties are willing to abide by the outcome
- willing to compromise
- doesn’t have a history of broken promises or violence
- has an ongoing and future relationship
conciliation
a method of dispute resolution method that uses an independent party to assist the parties reach a resolution, including giving advice and making suggestions
- unlike a mediator, the conciliator will offer advice to parties and suggest possible resolutions based on the discussion
conciliation - strengths
- parties make decisions, therefore are more likely to follow through and obey the final outcome decided
- independent 3rd party to facilitate discussion
- more informal than court - more comfortable for parties
- private and confidential
conciliation - weaknesses
- final decision is not binding
- imbalance of power
- can be costly, people cannot afford conciliation
conciliation - appropriateness
- both parties are willing to abide by the outcome
- willing to compromise
- doesn’t have a history of broken promises or violence
- has an ongoing and future relationship
arbitration
a method of dispute resolution method in which an independent party is appointedto listen to both parties and make a legally binding solution
- listens to both sides and examines the evidence
- the decision is known as an arbitration award
- similar to a trial
- absence of formal rules of evidence and procedure
- arbitrator chooses how disputes will be handled
arbitration - strengths
- independent 3rd party
- legal binding decision
- appeal process
- cheaper - no lawyers
- time saved from not going to court
arbitration - weaknesses
- parties may not be satisfied with the decision
- cost more than the other dispute resolution methods
arbitration - appropriateness
- when a decision needs to be legally enforceable
- when 2 parties cannot come to an agreement using other forms of dispute resolution methods
- when there is a history of broken promises
- usually used for disputes between businesses
- not accessible for everyone - usually part of terms of a contract
jurisdiction in courts - original
original
MC = claims up to $100000
CC = unlimited
SC (Trial) = unlimited
SC (appeal) = none
jurisdiction in courts - appellate
appellate
MC = none
CC = none
SC (trial) = from MC + VCAT - on questions of law
SC (appeal) = from CC and SC(t) - on questions of law or about amount of damages.
from VCAT - on questions of law
administrative convenience
enables the efficient use of resources - allows for the distribution of cases according to their seriousness and complexity
- it is more efficient use of resources to have a court hierarchy where different types of cases are heard in different courts
- eg. as the majority of cases are of a minor nature, it is more efficient to have these cases heard in the MC or VCAT and other tribunals
- this avoids the clogging up of the system and enable the higher courts, such as the supreme court of trial to concentrate on rarer and more complex cases
- ‘efficiently’
appeals
- allows for cases to be reviewed by higher courts which may reverse the lower courts decision
- a party who is dissatisfied with a decision and has grounds for appeal in civil cases can take the matter to a higher court to challenge the decision
a system of appeals ensures a fair hearing by allowing for the correction of errors made by lower courts
3 grounds for appeals - questions of law
- questions of fact - liable or not liable
- amounts of damages (remedy awarded)
if there were no higher and lower courts (hierarchy), then there would be no higher courts to appeal to
judge/magistrate - role
- impartial 3rd party
- enforces rules of evidence and procedure equally
- decides questions of law
- directs jury and answers questions (judge only)
- possesses significant case management powers
- decides a verdict and remedy if there is no jury present
- case management
- order mediation
- give directions
- ensures everyone complies with processes and procedures, ruling on the admissibility of evidence.
judge/magistrate - strenghts
fairness
- ensures procedural fairness
- enforcing the rules of evidence and procedure
- competent (expertise)
- open court
equality
- equal treatment
- independent and impartial judge/magistrate
access
- to the judge’s expertise in ensuring natural justice
- engagement and informed by the judge
- pre-trial - access to the case details
judge/magistrates - weaknesses
fairness, equality and access
- the judge’s expertise is fully utilised:
- witness
- evidence
- questioning
- unable to assist a self-represented accused
- when there is a jury, the judge doesn’t determine the verdict at trials or the amount of damages (except in defamation cases)
jury - role
deliver a verdict - liable or not liable
- make a decision - decide questions of facts
- be objective - unbiased, base their decision only on the evidence
- 6 randomly selected members of the community
- parties that wants a jury must foot the bill
- it is the responsibility of the jury to:
- listen to and remember the evidence
- understand directions and summing up
- not conduct their own investigations or research
- select a foreperson
jury - strengths
fairness
- ensures procedural fairness
- trial by peers - cross section of the community
- independent - randomly selected
equality
- equal treatment - all plaintiffs and defendants are entitled to choose to have a jury - regardless of personal characteristics
- independant and impartial (unbiased)
- decision is based on the evidence - juries cannot conduct their own investigations
access
- trial is conducted in plain english, non legal jargon, so juries can understand the trial
- assist the accused understand the trial
jury - weaknesses
fairness, equality
- not necessarily a cross section of community - disqualified, excused or ineligible
- jury does not have to give reason and deliberation happens behind closed doors - not being an open process hinders fairness
access
- deliberations are secret - no access to jury’s reason
- many people in the community cannot be in the jury for various reasons and denied access (disability, police, lawyers)
parties - role
- presents the parties case (pre-trial, units, discovery of documents, witnesses, evidence, facts and legal arguments
- present evidence and arguments to the decision maker
- the plaintiff is attempting to prove that the defendant caused harm to them, on the balance of probabilities
- the defendant will test the evidence of the plaintiff and may present their own evidence to dispute the arguments of the plaintiff
- examine witnesses, opening and closing address, assist the judge in jury matters
- making submissions regarding sentencing
parties - responsbility
- minimise delays, disclose the existence of critical documents at the earliest time possible
- do not mislead or deceive anyone
- one reasonable endeavours to resolve the disputes
parties - strengths
fairness
- party control
- ‘the truth should emerge’
- both parties has the opportunity to:
- know the case against them
- present their case/defence
- rebut the other parties case
equality
- equal treatment and equal opportunity to present their case
access
- courts provide some guidance to a self-represented litigant
- cheaper via court access to mediation to both parties
parties - weaknesses
fairness, equality
- party control
- self rep party receive minimal assistance from the court
- delays can occur (deterioration of evidence)
- mediations are private and not open which hinders an open process
access
- self rep party will have difficulty understanding their rights
- limited access to legal aid in civil cases (CLC is the best place for this)
the need for legal practitioners
- some overarching obligations as their client
- further obligations include:
- cooperation with the other party and the court in resolving the dispute in a cost effective and timely way
- must not mislead the court about evidence or the applicable law - present the parties case: witnesses, evidence, facts and legal arguments
- examination of witnesses
- make submissions regarding sentencing
- opening and closing address
legal practitioners - what
- trained lawyers represent each party in a trial and manage each parties case
- barristers present the case within the trial, solicitors provide administrative support and manage the case overall
legal practitioners - role
- use their legal expertise to support their case and advice their client on the best steps to resolve their matter
- preparing the required paperwork to initiate disputes at the appropriate institution (it others attempts at negotiations have failed)
- manage and engage in pre-trial processes
legal practitioners - strengths
fairness
- right to have an expert present their case
- accused has the opportunity to: know the case against them, present their case/defence, rebut the prosecutions case
- obligations to the court
equality
- equal opportunity to present their case
access
- court provide some guidance to a self represented party
- ensures that they understand their rights, the processes and to get the best possible outcome
legal practitioners - weaknesses
unequal representation - if one of the party is unable to afford legal representation
fairness
- unfair process = unfair outcome
equality
- opportunity to present their case is not equal
- expensive legal representation could mean a difference of quality in the cases
- cost can cause disparity and disadvantages
access
- not everyone can afford it
- self represented party will have difficult understanding their rights and how best to present their case
class action
- are when a group of 7 or more people bring a civil action together as one proceeding rather than initiating seperate proceedings (only can be initiated in the supreme court of vic). all members of a ‘class’ must have suffered harm from the same defendants in the same or similar circumstances
- initiated in the name of a lead plaintiff and group members (no risk) do not pay legal fees (and cannot be subjected to an adverse cost order). most class actions are funded by a litigation funder or a law firm.
- class action, workplace or sexual assault has no limitation on actions
class actions - cost benefits
cost benefits - bringing a civil dispute is costly, both in court fees and legal representations. since group members do not pay legal fees, plaintiff may be able to bring a dispute they otherwise wouldn’t have been able to individually (access).
class actions - efficiency
efficiency - by not managing multiple claims and running multiple trials on the same issue, the court should be able to resolve the matters more efficiently, whilst also reducing delays from other matters (access).
class actions - extra notes
seperate claims could potentially be heard across different courts or other institutions such as VCAT (VCAT cannot hear class actions). this could lead to inconsistent outcomes for the plaintiff (equality).
the court will oversee the approval for any settlement which should limit the approval of any settlement which should limit unfair outcomes.
class actions - litigation fees
- it is illegal for lawyers to charge a contingency fee. contingency fees enables lawyers to charge for legal services that are calculated as a share of the amount recovered if the litigation is successful. no charge if not successful.
- now courts can do a group order cost
- litigation fees are charged by a 3rd party who funds the litigation. in return is a percentage charged by the party. the party is not the lawyer but can be the firm. litigation funder can get proportioned sometimes between 20% and 40%.
class action - strengths
fairness
- enables the plaintiff opportunity to present their case - open/unbiased
- justice for individuals who have small claims - can be part of the class even if their payout is small
- oversight of any settlement by the court
equality
- CA are available to all plaintiffs regardless of personal characteristics
- all members are getting the same outcome and then bring proportionately compensated - no one is disadvantaged.
access
- share litigation costs - enables plaintiffs to pursue claims they would otherwise not be able to pursue
- opportunity to assert their rights and gain access to the courts
- seek relief for small amounts of $
- judicial efficiency - hear similar claims at the same time
- litigation funders - increase access
- opportunity for all plaintiffs to receive damages
- don’t have to attend trial (only the lead plaintiff)
class actions - weaknesses
fairness, equality and access
- cost of litigation funders - reduce access to appropriate amount of damages
- lack of decision making control
- failure to meet the needs of individuals plaintiffs
- added complexity can increase the time it takes to resolve disputes
- individual class members - lack of engagement
class actions - appropriateness
Whether a class action is appropriate to resolve the dispute will depend on the facts of the case and the nature of the claim.
* whether there are seven or more people who have a claim against the defendant which arises out of the same or similar circumstances. I
* whether a plaintiff law firm or a litigation funder is prepared to fund the claim to avoid the lead plaintiff from having the burden of costs.
whether there is someone willing and able to be the lead plaintiff
* the nature and size of the claims. Very small claims, for example, may not be economical (i.e. result in a outcome that is worth the effort and cost)
class action - terms to use
- lead plaintiff
- group members
- adverse cost order
- litigation funder
consumer affair victoria - CAV
- CAV is a victorian government complaints body that assists in resolving civil disputes between consumers and businesses and tenants and landlords, ensuring that the business comply with consumer law and provide for limited conciliation services.
- support can be sought by consumers and tenants (landlords and businesses cannot initiate a claim in CAV)
- participation in conciliation services is voluntary
CAV - purposes
- to provide consumers and businesses and tenants and landlords with a no cost dispute resolution process
- provide information and advice to consumers and tenants
CAV - appropriateness factors
- the behaviour of the complaints
- delays in receiving the complaint
- previous cases involving the other party
- if the other party has already made an offer to settle
- size and complexity of the case
CAV - factors
jurisdiction:
- limited, consumer or tenancy disputes only, and only they can initiate it in CAV
cost:
- free, however limited eligibility
time:
- quicker, cooperative process, encourage parties to resolve the dispute themselves
formality:
- lower, cooperative process, encourage parties to resolve the disputes themselves
- cannot compel parties
outcome:
- non binding, agreement based (conciliation)
CAV - strengths
- in some circumstances, CAV can initiate proceedings on behalf of consumer good and services, who have suffered loss
- conciliation at CAV can result in legally binding resolution, provided the parties sign a term of settlement
- access - free, fairness - both parties have an equal opportunity to present their case, timely
CAV - weaknesses
- hinders access
- has limited jurisdiction to hear disputes
- CAV cannot provide a legally binding resolution, unless both parties sign a term of settlement
- cannot compel parties to engage in conciliation
- not appropriate for large and complex cases
- CAV lacks enforcement powers
VCAT
- a dispute resolution bodies set up to hear a broad range of civil and administrative matters, as an alternative to using the court system
- less formal and more flexible than courts
- utilises a wide range of dispute resolution methods
- can compel parties to participate and can resolve disputes in the absense of a party
VCAT - divisions
- human rights
- administrative
- civil
residential tenancies - planning and environment
VCAT - purposes
VCAT’s role is to hear generally smaller and less complex civil disputes. and to resolve these disputes in a cost effective, accessible, informal, timely, impartial and consistent manner.
VCAT - appropriateness factors
jurisdiction:
- retails and residential tenancies, purchases of G&S, discrimination, guardianship, domestic building works, registrations of professionals
- broad - most civil matters, including civil, building, discrimination, tenancy and planning
- no personal injuries, defamation or families
cannot hear:
- class actions, disputes between employers and employees, car accidents and neighbours.
size and complexity:
- VCAT may not be appropriate for cases involving complex legal and factual issues
costs:
- low cost, one off fees, fees for concession cardholders
- legal representation unavailable in some matters
time:
- quicker resolution is resolved faster than CAV, some matters heard within weeks (however increasing delays due to increase of popularity - hinders access)
formality:
- low, increased use of alternative methods, can make binding decisions in hearings (with relaxed rules) and in the absense of parties
outcome:
- binding
- even matters resolved using DRM will likely result in a deed of settlement
VCAT - hearing process
- mediation - qualified mediator
- compulsory conferences (conciliation, confidential)
- hearing (arbitration + evidence)
VCAT - strengths
- VCAT uses a variety of different DRM
- decisions are legally binding and enforceable by the MC
- more jurisdiction, can force parties to participate
- low cost (cheaper than courts - 3 tier cost structure
- informal, timely (can be resolved quickly), flexible
- more than 80% self represented - reducing costs for legal rep
- no hearing fees for small claims (less than $1500)
- however, for other disputes, hearing fees is payable
- standard fee for a small claim is $70.10 (up to $3000)
VCAT - weaknesses
- appeals from VCAT are limited - they can only be made on points of law
- as it is timely, VCAT is becoming increasingingly popular and there is an increase on cases they need to prioritise
- some lists - eg planning has long delays
- some cases are more appropriate for the courts where there are strict rules of evidence and procedure
courts
- are able to hear all civil matters with a higher level of formality than other institutions
- utilises a wide range of methods
courts - jurisdiction
- both the county court and the supreme court has unlimited jurisdiction to hear civil disputes (regardless of the damages the plaintiff is seeking)
- MC jurisdictional limit is $100000
courts - appropriateness
jurisdiction and eligibility - broad/ all civil matters
costs - high costs, ongoing fees (filing hearing), legal rep required
time - slower, longer pre trial processes, regular delays
formality - high, strict rules of evidence and procedure, extensive pre trial procedures
outcome - binding
courts - strengths
- various pre trial procedures allows the parties to reach an out of court settlement. this includes mediation, which the court can order the parties to attend before a trial - this can potentially save costs, times and stress of court
- decision is binding
- opportunity for legal representation and jury
courts - weaknesses
- cases taken to court can often suffer delays, pre trial procedures take a long time to complete
- jury trials may take longer
- expensive - hinders access
costs
- costs of pursuing civil litigation can be exceedingly high and a burden for both parties
factors: - fees for legal rep - solicitors, barristers, disbursements, adverse cost order
- costs of pursing civil matters at VCAT are not always low, fees for reviewing planning decisions are relatively high and are higher for business as opposed to individuals pursing a claim
- other factors can include - barriers to communication and services in rural and remote areas
cost of legal representation
- often charged to client in 60 minute blocks between $200 - $800 per hour
- barristers may cost $1000 or more per day in court
- filing fees to initiate claim are high, especially in superior courts (over $1000 in SC)
long process (costs)
- will need legal support through discovery and directions hearings as well as at trial if required (more costs incurred)
cost - effect on fairness
self represented parties can be disadvantaged as they may not understand the process. it can lead to an unfair outcome as each party cannot prepare and present a case of equality
cost - effect on access
- high costs associated with proceedings discourage individuals from initiating civil proceedings.
- higher costs for businesses
- access to a jury may be discouraged by the higher costs
- high cost of filing an appeal may undermine those parties access to a just outcome
- legal representation and court costs can run into hundred of thousands in a civil case
cost - effect on equality
if some injured parties cannot initiate proceedings in the court due to high costs associated, equality before the law is not achieved. pre trial, tribunals and other DR methods and bodies can reduce costs.
time - court delays
- court backlogs
- delays in preparing a case for trial
- pre trial procedures, evidence gathering, preparing witnesses, legal research
- appeals
- 75% of matters resolved in acceptable time frames
- VCAT wait times tend to be less than in courts as there are few pre hearing steps and they are less formal and short compared to trials
time - long processes
- extensive processes and procedures add to fairness, however also have a negative effect
- discovery, in particular, can be abused by one party to add time to the dispute.
time - increasing load on the legal system
- incredible growth in number of cases over the past 20 years
- longer wait times for cases to be resolved
time - effect on fairness
+ delays can ensure both parties have adequate time to prepare, ensuring a case is decided based on the best evidence
- however it adds to the costs, which may lead to evidence becoming reliable, perhaps leading to an unjust outcome
- delays can exacerbate the stress of trials and compound the suffering which is unfair on injured parties
- delays cause evidence to be lost of unreliable due to passage of time
+ pre trial and DRM can reduce delays
+ tribunals and other bodies can reduce delays
- long delays hinders this
time - effect on equality
- inconsistent dispute resolution times for some matters
- judicial powers of case management may be used differently by individual judges
- disparity and disadvantaged individuals may be discriminated based on wealth
- first nations people - the gap and the disparity can be wide
time - effect on access
- delays may deter injured parties from initiating a claim
- the longer pre trial procedures and hearings are conducted, the more the costs, making access to the courts less affordable.
damages
the sum of money granted to the plaintiff, to be paid by the defendant. purpose is to compensate the plaintiff to the extent that money is able to do so. different types of damages exist to slightly different purposes as a result
compensatory damages
general damages - awarded for pain and suffering, cannot be calculated objectively because they include emotional suffering and loss of enjoyment of life. plaintiffs counsel will estimate the amount
specific damages - awarded to compensate parties for items that can be calculated objectively and exactly (eg loss of wages)
aggravated damages - awarded if the court believes that the defendants conduct injured to plaintiffs feelings causing humiliation and insult.
nominal damages
- small amount of money (plaintiff) is legally right but not seeking large compensation (proceedings is to prove a point)
- plaintiff did not suffer actual loss (often in defamation - untrue, damage to reputation but minor)
exemplary damages
- punitive damages, only way to punish defendants in a civil case
- used to show others/deter from similar conduct or to show disapproval of defendants actions
- awarded if defendants shows total disrespect for plaintiffs wishes (often awarded for extreme negligence
contemptuous damages
- when court feels plaintiff has a legal right to damages but no moral right (plaintiff didn’t deserve to be paid damages)
- small amount awarded to show contempt (dislike) for the claim whilst recognising plaintiff’s right to make the claim.
damages - strengths
- damages is an effective remedy where the loss is suffered by the plaintiff was economic loss, particularly where there is a debt owing or there is a specific amount (eg. loss of wages)
- this is because it is able to restore the plaintiff to the position they were in before the loss occurred
- deters defendant from doing it again
damages - weaknesses
- damages normally cannot ‘restore the plaintiff’ to their original position if the plaintiff has suffered loss or injuries other than pure economic loss: such as reputation, physical limits, the loss of a loved one, mental anxiety or illness
- therefore damages can only provide a sum that is considered to be compensation for the type of loss that is non economical
- doesn’t take into account the time-consuming and stressful nature of court proceedings
- there are restrictions on how much you can be compensated
injunctions
- a court order directing someone to stop doing something (restrictive injunction) or compels the defendant to do something (mandatory injunction)
injunctions - purpose
- to rectify a situation caused by the person who was found to be in the wrong (perpetual injunction)
- maintain status quo between parties during the hearing and prevent further loss or harm (interlocutory injunction)
restrictive/prohibitive injunction
ordering a person to stop or refrain from doing something
mandatory injunction
ordering a person to do a particular act, such as performing their part of a contract they have breached
interlocutory injunction
temporary injunction that is awarded quickly in circumstances where there an urgent situation at the injunction is needed as soon as possible.
perpetual injunction
when an injunction becomes permanent (at the final hearing). this can be sought when an interlocutory injunction wasn’t sought in the first place.
injunction - strengths (defamation cases)
- in a defamation case the purpose of restoring the plaintiff to the position they were in prior to the publication of the defamatory, could be achieved by mandatory and restrictive injunctions.
- a court could order a mandatory injunction to publish an apology
- a court could order a restrictive injunction restraining the defendant from continuing to publish defamatory material
- these injunctions would prevent future damage to the plaintiff’s reputation
injunctions - weaknesses (defamation)
- an injunction will not compensate the plaintiff for any loss already suffered as a result of the damage to their reputation
- damages would be the appropriate remedy in this regard
- therefore, to this extent, an injunction will not achieve the purpose of returning plaintiff to the position he or she was in prior to the defamatory statements being made
injunctions - weaknesses
- if a defendant refuses to comply with an injunction, it will create more court time and stress for the plaintiff, as there will need to be contempt of court action
- compared to damages, the plaintiff might not receive any tangible compensation or benefit from the case, meaning they may not be returned to their original position
