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legal studies 3/4 > 7 part two > Flashcards

7 part two Flashcards

1
Q

fairness

A

all ppl can participate in justice system & the processes should be open + impartial

  • impartial processes: all court personnel remain impartial, no apprehended bias
  • open processes: open to public h/w many disputes resolved in priv
  • participation: know case, present their side of case, no unreasonable delays, use of interpreter
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2
Q

access

A

all ppl should be able to engage w the justice system & its processes on informed basis

  • engagement: range of dispute resolution methods, physical access, techonological access, financial access, delays can impact access
  • informed basis: education, access to info, legal services, adequate legal rep
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3
Q

equality

A

all ppl engaging w justice system & its processes should be treated in same way, unless this causes disdvantage

  • same treatment: enforcing both parties to complete pre-trial procedures
  • diff treatment: ensure self-rep is on same lvl as party who has legal rep, judge may offer extra direction

e.g. assistance to self-rep by judge/magistrate, interpreters, providing info in diff way, changes to court or tribunal processes, diff form of giving evidence

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4
Q

legal practitioners (role, necessary)

A

role: prepare & conduct a case on behalf of the parties

  • their rep is often necessary for a civil trial b/c they are experts who are familiar w civil justice system
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5
Q

types of legal practitioners

A

barristers: self-employed
solicitors: work for a firm or partnership

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6
Q

why are legal practitioners needed? (experience, struggles)

A

legal reps have experience in:

  • following court processes
  • collecting evidence
  • presenting cases
  • maintaining proper decorum

self-rep parties may struggle w:

  • presenting their case
  • understanding legal jargon
  • cross-examining witnesses
  • remaining fully objective

a person w competent legal rep has a better chance of success

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7
Q

why is obtaining legal aid challenging?

A
  • most grants of legal assistance are for criminal or family law
  • VLA does not give advice on every type of case e.g. work injuries
  • VLA is financially limited so civil disputes would need to be perceived to be successful
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8
Q

strengths of legal practitioners

A
  • experts who help parties navigate civil justice system – assist + conduct opening & closing addresses, examine witnesses & defend against applications made by other party (equality)
  • have objectivity in ability to make decisions – self-rep lack that objectivity & may be too ‘invested’ in the decision to see the weaknesses in their case (fairness)
  • help avoid delays b/c trial processes may slow down to allow a self-rep to understand what is happening (access)
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9
Q

weaknesses of legal practitioners

A
  • not all have same lvl of experience & skills which decreases equality as there is difference in quality of the legal services
  • ppl who can’t afford legal rep may be left to rep themselves which decreases fairness as self-rep often don’t have the necessary skills, experience or objectivity to make the right decisions
  • even if a self-rep can afford a lawyer, this could potentially be at great expense to them which decreases financial access
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10
Q

class actions

A

a type of proceeding where a group of people, who all have claims against the same party, join together in a proceeding

a class action can be commenced if:

  • 7 or more people have claims against the person
  • claims relate to the same or similar circumstances
  • same issues need to be decided
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11
Q

how class actions work

A
  • normally commenced by a single person who ‘represents’ the group (lead plaintiff)
  • group members don’t participate in proceeding & proceeding is managed by the court – they can choose to opt in or opt out of the class action
  • litigation funder may be used if group doesn’t have means to pay for legal action & they’d receive part of the payment once the case is won
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12
Q

litigation funder

A

3rd party who pays for some or all costs & expenses associated w/ initiating a claim in return for a share of the amount recovered

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13
Q

costs in class actions

A
  • if class action fails, then lead plaintiff is responsible for costs of proceeding + any potential adverse costs order
  • h/w normally law firm will act on a ‘no win, no fee’ basis or a litigation funder is involved
  • if class action is successful, then group members share damages awarded w litigation funder or firm involved
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14
Q

types of class actions

A
  • shareholder: shareholders of a company may claim being misrepresented about the state of the company’s affairs
  • product liability: consumers who have purchased a good or service have all suffered the same loss or damage
  • employees: group to make claims about underpayment or poor work conditions
  • natural disaster: group members have suffered loss or damage due to a natural disaster
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15
Q

appropriateness of class actions

A
  • if 7 or more have claim against defendant which arises out of same/similar circumstances (A)
  • if plaintiff law firm or litigation funder is prepared to fund claim to avoid lead plaintiff having burden of costs (A)
  • if someone is willing & able to be lead plaintiff (A)
  • nature & size of claims (v small claims may result in outcome not worth the effort & cost)
  • if 1 group member suffered significantly more than other group members (NA)
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16
Q

strengths of the use of class actions

A
  • gm aren’t responsible for costs if unsuccessful – increase access for gm unable to afford initiating claim themselves
  • efficient way of dealing w no. of claims b/c court doesn’t have to deal w multiple claims abt same issue, saving court time & resources – increase access by reducing delays
  • use of litigation funders & plaintiff law firms who are prepared to act on ‘no win, no fee’ basis or receive a fee if successful – increases access
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17
Q

weaknesses of the use of the class actions

A
  • large cost burden on lead plaintiff if class action fails & there’s no litigation funder or no ‘no win no fee’ agreement w plaintiff law firm (access)
  • size of the class action is normally such that it takes up a significant amount of court resources and time
  • litigation funders take a large % of total amount awarded to group members, reduces amount paid to group members & DOESNT reflect their actual loss (access)
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18
Q

Consumer Affairs Victoria (CAV)

A

regulates consumer law — dispute resolution body that provides info abt consumer law & free dispute resolution

purpose: help ensure Victorians are informed abt consumer laws & ensure that businesses comply w those laws

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19
Q

roles of CAV

A
  • advises Vic Gov on consumer legislation
  • provides info + guidance to educate ppl abt consumer laws
  • enforces compliance w consumer laws
  • in rare circumstances, provides consumers + traders or landlords + tenants w a dispute resolution process
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20
Q

purposes of CAV in resolving disputes

A
  • help ppl decide how to resolve their dispute w/o any cost to them — allows ppl w smaller disputes to obtain dispute resolution service that isn’t expensive & time consuming
  • help parties reach resolution that’s consistent w law — CAV has compliance focus to ensure any person who HASNT complied w law is aware of that & doesn’t breach it again

CAV only accepts complaints from consumers and tenants, NOT from businesses and landlords.

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21
Q

CAV’s jurisdiction

A

disputes bw purchasers & suppliers, or consumers & suppliers, abt the supply or possible supply of goods or services

  • disputes abt product that is faulty, damaged, not fit for purpose or cannot be repaired
  • disputes abt service completed w/o care & skill, took too long, caused damage or isn’t fit for purpose
  • disputes abt buying cars, e.g. in relation to warranties, the price charged or the condition of the car

disputes bw a tenant & landlord

  • disputes abt rental agreements, rent, signing or ending a lease, or rental applications
  • disputes abt repairs
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22
Q

dispute resolution methods used by CAV

A
  • primarily offers dispute resolution services over the phone
  • in some cases, in-person conciliation
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23
Q

appropriateness of CAV

A
  • if dispute w/in CAV’s jurisdiction (A)
  • if consumer or tenant has tried to resolve the matter themselves (A)
  • if complaint needs CAV’s involvement (A)
  • if there’s been a breach of legislation or failure to comply w legal obligations by landlord or business (A)
  • if consumer is vulnerable or disadvantaged (A)
  • if issue is reasonably likely to be resolved (A)

Parties also need to consider whether there are other or better ways to resolve the dispute

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24
Q

strengths of CAV

A
  • conciliation is free, so it is accessible to all Victorians, regardless of ability to pay
  • conciliation is informal + can conduct over the phone, which removes anxieties ppl have w formalities of courtroom
  • ensures procedural fairness by allowing both sides to present their side & challenge other side’s case as part of conciliation
25
Q

weaknesses of CAV

A
  • limited to consumer & CAV disputes; no power to assist w other types of civil disputes
  • no power to compel parties to undergo conciliation – willing party may not be able to use CAV’s dispute resolution services if other party isn’t willing
  • no power to enforce decisions reached by parties in conciliation – unless parties enter binding agreement, one of the parties may js ignore the outcome
26
Q

Victorian Civil and Administrative Tribunal (VCAT)

A

a dispute resolution body that is intended to be less costly, more informal & faster way to resolve disputes than courts

  • Victorian Civil and Administrative Tribunal Act 1998 (Vic)
  • president, vice presidents, deputy presidents, senior & ordinary members – responsible for management & administration of VCAT
27
Q

purposes of VCAT in resolving disputes

A
  • low cost
  • accessible
  • efficient
  • independent
28
Q

how VCAT achieves low-cost

A
  • 3 tiers of fees: corporate, standard & health care card holders – make corporate applicants pay higher fees & health care card holders pay only nominal fees
  • no hearing fees for many claims
  • in many lists, parties don’t gta go thru pre-trial procedures which add to legal costs
  • parties can rep themselves, rather than paying lawyers
29
Q

how VCAT achieves accessibility

A
  • hearings in various locations
  • allows ppl to make applications online + conducts hearings online or by phone
  • less formal than court hearings, which makes people feel more comfortable in using its services
30
Q

how VCAT achieves efficiency

A
  • reduce waiting times for parties to have their disputes resolved
  • generally, doesn’t use pre-trial procedures or formal processes
31
Q

how VCAT achieves independence

A

VCAT’s members are independent and will act as unbiased adjudicators

32
Q

VCAT’s jurisdiction

A

VCAT has exclusive jurisdiction (only VCAT has power to hear + determine certain types of dispute & not a court)

  • residential tenancies
  • administrative
  • civil
  • human rights
  • planning and environment
33
Q

residential tenancies

A

tenancy disputes

  • e.g. unpaid rent
34
Q

administrative

A

professional conduct inquiries + applications from ppl seeking a review of decisions made by gov & other authorities

  • e.g. cost disputes b/w lawyers + clients
35
Q

civil

A

civil disputes relating to consumer matters, building works, owners’ corporation matters, retail tenancies & sale + ownership of property

  • e.g. products & services bought or sold
36
Q

human rights

A

matters relating to guardianship + administration, equal opportunity, racial + religious vilification, health + privacy info, disability matters & decisions made by the Mental Health Tribunal

  • e.g. discrimination complaints
37
Q

planning and environment

A

reviews of decisions made by councils or other authorities

  • e.g. review abt a decision by the council to grant or not grant a permit
38
Q

disputes that VCAT cannot hear

A
  • class actions
  • disputes b/w employers + employees
  • disputes b/w neighbours
  • disputes b/w drivers in car accidents
  • disputes involving federal or state law where VCAT doesn’t have power to hear the matter
  • disputes where parties are residents of diff Aus states, or where Cth is a party
39
Q

dispute resolution methods used by VCAT

A
  • mediation, including a fast-track mediation and hearing process for small civil claims
  • compulsory conferences
  • a final hearing before a member
40
Q

mediation

A

parties discuss issues, develop options, consider alternatives & reach an agreement – if the matter settles at mediation, then no need for a hearing

  • fast track mediation and hearing (FMAH): if the dispute doesn’t settle at mediation, then the matter will be listed for hearing before a VCAT member on another day
41
Q

compulsory conferences

A

confidential meetings where parties discuss ways to resolve their dispute in the presence of a VCAT member

  • conciliation process
  • VCAT member suggests forms of settlement & explores the likely outcomes of the case
42
Q

final hearing

A

If matter hasn’t settled at mediation or compulsory conference, it’ll be listed for final hearing before VCAT member

  • parties present their case
  • VCAT member will oversee the hearing & make a binding decision on the parties

final hearing incl. orders and appeals

43
Q

orders

A
  • require party to pay money
  • require party to do or don’t do smt
  • declare that debt is or isn’t owing
  • review, vary or cancel a contract
  • dismiss a claim (bc unsuccessful)

Decisions of VCAT are binding & can be enforced if a party doesn’t comply w the decision

44
Q

VCAT appeals

A
  • only be made on a question of law
  • if presided by the President or vice-president = appeal heard in Court of Appeal – other appeals heard in Trial Division of SC
45
Q

appropriateness of VCAT

A
  • if dispute is w/in VCAT’s jurisdiction (A)
  • if parties can resolve dispute themselves thru mediation (A)
  • nature of the fees & if applicant is able to pay fees
  • if parties wish to have greater avenues of appeal – limited to question of law (NA)
  • if parties are unlikely to take VCAT srsly, then a court is preferred (NA)
  • if parties would prefer the formailty of a courtroom (NA)
  • if complexity or size isn’t appropriate for VCAT (NA)
  • if party prefers court b/c of the doctrine of precedent (NA)
46
Q

strengths of VCAT

A
  • normally cheaper than courts b/c low application fees – costs saved by not having to undertake expensive pre-trial procedures
  • speedy resolution of disputes – as fast as 2-3 weeks
  • each VCAT list operates in its specialised jurisdiction, resulting in tribunal personnel developing expertise
47
Q

weaknesses of VCAT

A
  • b/c increased use of legal rep – costs of taking matter to VCAT can be as high as, if not higher than, court costs
  • suffer delays in some of its lists – hurts economy as projects are unable to go ahead w/o permits & financial + mental impact on ppl waiting for claim to be heard
  • decisions can only be appealed on point of law & to SC, making it complex + expensive to appeal a case
48
Q

courts

A
  • least preferable when solving civil disputes
  • self-rep parties are becoming more common, which can impact the effectiveness of court procedures
49
Q

appropriateness of courts

A
  • whether the dispute falls w/in the court’s jurisdiction
  • whether there are other or better ways to resolve the dispute
50
Q

court’s jurisdiction

A

MC: jurisdictional limit is $100,000

  • plaintiff who prefers to go to the MC can always give up part of the claim to reduce it to below $100,000

CC & SC: unlimited jurisdiction

51
Q

disputes that courts cannot hear

A
  • domestic building disputes
  • residential tenancies disputes
  • retail tenancies disputes
  • planning disputes

VCAT has exclusive jurisdiction over them

52
Q

other or better ways to resolve a dispute (things to consider):

A
  • if parties can resolve dispute thru mediation
  • costs of taking matter to court & if CAV, VCAT or other is better
  • if they’re prepared to accept risks & uncertainty w 3rd party making decision
  • if they have access + afford legal rep, likely necessary to undertake pre-trial procedures & trial
  • if they’re comfortable w formalities of courtroom & rules of procedure
  • size & complexity of matter – more complex + larger claims are best dealt w in SC, while smaller in MC
  • if proceeding is a class action that needs to be determined by SC
  • time to have matter heard in court & possible delays
  • if parties are prepared to have open hearing where public + media present
53
Q

strengths of courts

A
  • Pre-trial procedures allow parties to reach an out-of-court settlement – save costs, time & stress of a trial
  • Courts use processes to ensure procedural fairness e.g. judge can give directions + orders to ensure dispute is resolved in timely manner
  • Makes a binding decision so that the outcome is certain & enforceable
54
Q

weaknesses of courts

A
  • Often suffer delays e.g. pre-trial procedures take a long time to complete
  • Many procedures are complex & difficult to understand w/o a lawyer, incl. pleadings, directions & trial procedures
  • DON’T allow for ‘compromise’ or ‘win-win’ situations
55
Q

costs

A

costs of legal rep:

  • depends on the nature of the dispute
  • many cannot afford a lawyer & may be deterred from initiating a claim
  • some may become a self-rep party b/c of costs – may struggle to understand legal issues or procedures
  • if one or both parties are poorly rep, then may have a neg impact on their ability to receive a just outcome

court costs & disbursements associated w:

  • engaging expert witnesses & mediators
  • filing & hearing fees
  • using a jury (if a party requests one)

Legal aid is very difficult to obtain for a civil matter, with most funding directed to criminal and family law matters

56
Q

measures to address costs

A
  1. earlier a dispute resolved = more money saved – parties avoid significant costs involved w pre-trial & trial procedures
  2. costs saved by resolving a matter before trial or hearing means a saving for the court or VCAT
  • use of CAV & VCAT to help resolve disputes – provide no or low-cost dispute resolution services, assistance & legal rep is generally not required
  • use of case management powers in court to try narrow the issues in dispute & ensure a cost-effective resolution to the dispute
  • no. of bodies & organisations in Vic provide pro bono (legal services that are provided for free or reduced rate) assistance to individuals
57
Q

time

A

factors that impact time:

  • backlogs – delays in having cases listed for hearing or trial largely depend on the court or VCAT list
  • pre-trial procedures – complex + lengthy (discovery can take months)
  • evidence gathering & preparation – time it takes for parties to get a case ready for hearing

impact of delays:

  • stress, wasted time, inconvenience & add to costs – can result plaintiff to settle claim for less than it’s worth or withdraw claim entirely (reduce access)
  • affect the reliability of evidence, jeopardising a fair outcome
  • srs impact on vulnerable parties – injured person or somebody w little or no money (reduce equality)
58
Q

measures to reduce delays

A

use of case management powers:

  • order parties to attend mediation
  • limit scope of discovery so it doesn’t take too long
  • order that no pleadings are required
  • restrict time for final hearings (e.g. time to cross-examine)

other measures that reduce delays or backlogs:

  • VCAT has established programs to manage delays
  • some matters are dealt w ‘on the papers’, avoiding the need for a hearing
  • courts are increasingly using online methods to resolve disputes, incl. holding hearings & mediations online

legal studies 3/4 (15 decks)

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