U3, AOS2B

Question 1

What are legal practitioners?

Answer 1

• They are experts with knowledge in certain areas of law who present a case on behalf of a party.
• Barristers (independent; with specialist skills) and solicitors

Question 2

The role of legal practitioners

Answer 2

• Follow court processes
• Collect evidence
• Present cases

Question 3

Self-represented parties

Answer 3

• May struggle with
  - Conducting opening and closing addresses
  - Remaining fully objective
  - Understanding legal jargon
  - Presenting their case

Question 4

Comparing the role of legal practitioners in a civil dispute to a criminal dispute

Answer 4

• In presentation of case: standard of proof
  
  • Criminal → must present a case that shows, beyond reasonable doubt, that their party is not guilty (or the other party is guilty)
  • Civil → must present a case that shows, on balance of probababilities, that their party is more likely to be in the right or the other party is more likely in the wrong
• In presentation of case: burden of proof is the same
• In collection of evidence
  
  • Criminal → more physical evidence such as fingerprints
  • Civil → more documentations

Question 5

3 strengths of legal practitioners

Answer 5

• Expert knowledge → helps parties navigate the civil justice system.
  
  • E.g. assisting and conducting opening and closing addresses.
• Objectivity in decision-making as they are less invested
  
  • E.g. whether to agree with the other party to negotiate a settlement.
• Avoids delays that may arise with self-represented parties
  
  • E.g. the trial does not need to slow down to allow a party to understand what is happening.

Question 6

3 weaknesses of legal practitioners

Answer 6

• Varying level of experience and skills → decreases the quality of the legal services.
• Not always affordable → leaves people to represent themselves.
  
  • Self-represented parties are not equipped with the neccesssary skills to make right decisions
• A great expense for those who can afford it.
  
  • If they lose, they will incur an adverse costs order, too

Question 7

Why obtaining legal aid through VLA may be difficult in a civil dispute

Answer 7

• Most grants of legal assistance are for criminal or family law matters.
• Advice given by VLA may not cover civil matters
• They are financially limited → cases need to be perceived as successful (which is not always the case).

Question 8

Class action

(aka a group proceeding; representative proceeding)

Answer 8

• When a group of ≥7 people, who all have claims against the same party, join together in a proceeding.
  - Commenced & managed by the lead plaintiff
  - Claims have same, similar or related circumstances
  - Same issues need to be decided

Question 9

Costs involved if the class action fails

Answer 9

• The lead plaintiff is responsible for the costs of the proceeding and the adverse costs order
  
  • If there is no litigation funder or law firm acting on a ‘no win, no fee’ basis
  • Not all people are prepared for this role

Question 10

Litigation funders in a class action

Answer 10

• A third party
• Pays for some or all the costs associated with initiating a claim in return for a share of the amount recovered.
• Claims totalling more than $5 million are more likely to be funded

Increases access for those hesistant to be a lead plaintiff

Question 11

Law firms in a class action

Answer 11

• Act on a ‘no win, no fee’ basis

Increases access for those hesistant to be a lead plaintiff

Question 12

Types of class actions

Answer 12

• Product liability → where consumers have purchased a good or service, and suffered a loss or injury as a result.
• Employee conditions → employees may band together to dispute underpayment or working conditions at a company.
• Natural disasters → where loss or damage has occurred as a result of a natural disaster (suing the State for their lack of protection/preparation).
• Shareholders → shareholders of a company may make claims about being misrepresented about the state of a company’s affairs.

(PENS)

Question 13

When class actions are appropriate

Answer 13

• There are 7 or more people with a claim against the same defendant
• Claims are about the same/similar breach of rights
• A law firm or litigation funder is willing to pay.
• A person is willing to be the lead plaintiff
• Claims are not very small. Small claims may not be worth the effort and cost
• No group member has suffered significantly more than other group members.
  - They may, instead, conduct and fund their own proceeding, rather than share the settlement.

Question 14

Strengths of a class action

Answer 14

• Group members do not pay any costs.
  - Increases access for those who cannot afford the costs of initiating a claim themselves.
• Use of litigation funders and plaintiff law firms who act on a ‘no win, no fee’ basis, or receive a fee if successful.
  - Increases access for groups with no one prepared to act as the lead plaintiff.
• Groups together smaller claims that would otherwise not be economic or cost-effective to pursue alone, allowing them to be pursued.
• Reduces costs for defendants as it is only multiple claims in one proceeding that they have to respond to, rather than multiple claims in separate proceedings.
• Increases convenience for group members, as they do not have to actively participate in proceedings.

Question 15

Weaknesses of a class action

Answer 15

• A large cost burden is imposed on the lead plaintiff if the class action fails.
  
  • Only if there is no litigation funder or no law firm acting on a ‘no win no fee’ basis
• Class actions take up a significant amount of court resources and time, despite avoiding multiple proceedings. The approval process for a settlement can also be significant.
• Law firms can take advantage of class actions. While a group member may receive a very small amount, the plaintiff law firm may gain much more through costs to be paid to them.
• Litigation funders can take a large percentage of the total amount awarded to the group members
  
  • Reduces the amount paid to group members and does not reflect their actual loss.
• Some group members are not actively participating so they may not get adequate or up-to-date information about the proceeding.

Question 16

Consumer Affairs Victoria (CAV)

Answer 16

• A dispute resolution body that regulates consumer law and residential tenancies.
• Offers:
  
  • Free advice and support to wronged customers
  • Advice to the Victorian Government on consumer laws
  • Education on consumer laws
  • Dispute resolution: conciliation

Accepts complaints from consumers and tenants (victims), not from businesses and landlords.

Question 17

Purpose of CAV in dispute resolution

Answer 17

• To reach a resolution consistent with the law
  
  • Businesses are aware of their wrongdoings and do not repeat the same action
• To help parties reach a resolution for disputes quickly with little to no cost
  
  • Uses a conciliation process which saves costs that would otherwise be incurred in court via hearing and filing fees, as well as disbursements.

Question 18

CAV’s jurisdiction and examples

Answer 18

• Disputes between consumers and suppliers about the supply of goods or services
  
  • A faulty or damaged product
  • A service that is not completed with care and skill, took too long or caused damage
• Disputes between a tenant and landlord
  
  • Rental agreements, rent, signing or ending a lease, or rental applications.
  • Repairs.

Question 19

When CAV is appropriate

Answer 19

• The dispute is within their jurisdiction.
• The consumer/tenant has not already tried to resolve the matter through the courts or VCAT.
• There has been a breach or a failure to comply with legal obligations
  
  • More likely to get involved
• The issue is reasonably likely to be resolved.
• If they are able to resolve the dispute themselves through negotiation with each other
• If the dispute does not need to be resolved with a binding order on the parties.
• If the other party will take the conciliation process seriously and will therefore show up.
  
  • Issuing a claim in a court can instead force them into realising the seriousness of the dispute.
• If the matter is not too big or complex

Question 20

Strengths of CAV

Answer 20

• Is free; increases access
• Is an informal process which reduces any anxieties parties may have in the formal setting of a courtroom
• Gives both sides the opportunity to present their case and challenge the other side’s case; increases fairness
• Assesses disputes individually to select ones likely to be resolved through conciliation; reduces waste of time and resources
• Ensures that parties reach a resolution themselves, rather than a resolution being imposed or forced on them.

Question 21

Weaknesses of CAV

Answer 21

• Has limited jurisdiction
• Cannot compel any parties to undergo conciliation, even if one is willing to
• Resolution reached is not enforceable, unless they enter a terms of settlement. This can leave the parties no better off than they were before conciliation.
• Not all cases meet CAV’s criteria or are prioritised
• Isn’t appropriate for large, complex disputes

Question 22

Victorian Civil Administrative Tribuna (VCAT)

Answer 22

• A tribunal that provide processes less formal than the courts, and is intended to be a cheaper, independent and more efficient way of resolving disputes. VCAT is the biggest and most active tribunal.
• Its purposes [ELAI]:
  
  • Efficient
  • Low cost
  • Accessible
  • Independent

Question 23

How VCAT achieves its purpose: Efficient

Answer 23

• Pre-trial procedures formal processes generally do not take place.
• They constantly aim to reduce the wait time for parties to have their disputes resolved.

Question 24

How VCAT achieves its purpose: Low cost

Answer 24

• Parties can be self-represented → saves from cost of legal representation.
• There aren’t pre-trial procedures → saves additional legal costs incurred by the parties.
• Parties generally pay a small amount for filing small claims.
• Corporate applicants pay higher fees than standard applicants and health care card holders.
• No hearing fee for civil claims ≤$100,000 for a rental dispute that takes less than a day to hear.

Question 25

How VCAT achieves its purpose: Accessible

Answer 25

• There are various locations that VCAT conducts hearings in in Victoria.
• Hearings and applications can be made online or by phone.
• Hearings are less formal than in court, such as there being no pre-trial procedures and formal evidence processes → makes people feel more comfortable in using its services.

Question 26

How VCAT achieves its purpose: Independent

Answer 26

• VCAT’s members are independent and act as unbiased adjucators.

Question 27

Exclusive jurisdiction

Answer 27

• The lawful authority of a court, tribunal or other dispute resolution body to decide legal cases to the exclusion of all others.
  
  • Oftentimes, parties will have no choice but to bring their dispute to VCAT, because it has exclusive jurisdiction to hear certain types of claims. This means that only VCAT has the power to hear and determine that type of dispute.

Question 28

VCAT’s jurisdiction

Answer 28

• VCAT is divided into five divisions
  
  • Residential Tenancies: between tenant and landlord
  • Administrative: between people and the government/authorities
  • Civil: between consumer and service, building works, retail tenancies, and sale and ownership of property.
  • Human Rights: guardianship, equal opportunity, racial and religious vilification, health and privacy information, disability matters.
  • Planning and Environment: between people and the councils to review decisions to grant a permit, or about the valuation of land

RACHP = (R)eal (A)dults (C)an’t (H)ave (P)laytime

Question 29

Examples of Residential Tenancies disputes

as a VCAT division

Answer 29

• Unpaid rent
• Repairs, maintenance, damages or changes to property
• Excessive rent increase

Question 30

Examples of Administrative disputes

as a VCAT division

Answer 30

• Cost disputes between lawyers and clients
• Disputes about a decision made by a government agency (e.g. decision to declare a dog dangerous)

Question 31

Examples of Civil disputes

as a VCAT division

Answer 31

• Products and services bought or sold
• Quality of domestic or commercial building works
• Loss or damage because of water flowing onto property

Question 32

Examples of Human Rights disputes

as a VCAT division

Answer 32

• Discrimination complaints (e.g. relating to equal opportunity, harassment or vilification)

Question 33

Examples of Planning and Environment disputes

as a VCAT division

Answer 33

• Review about a decision by council to grant or not grant a permit
• Disputes about the valuation of a land for the purposes of paying rates and taxes

Question 34

Disputes VCAT cannot hear

Answer 34

• Class actions
• Between employers and employees
• Between neighbours
• Between drivers in car accidents
• Where the parties are residents of different Australian states
• Where the Commonwealth is a party.

Question 35

Dispute resolution methods used by VCAT

Answer 35

• Mediation
  
  • Fast track mediation and hearing
• Compulsory conferences
• Final hearing

Question 36

VCAT using mediation

Answer 36

• Involves a third party known as a mediator, who is also a VCAT member, facilitating discussion between parties to assist them to reach a resolution.
• Upon resolution, parties choose to enter a terms of settlement, which VCAT can then turn into a final order – making it legally binding and enforceable

Question 37

Fast track mediation and hearing (FMAH)

Answer 37

• Used by VCAT
• For small claims about goods and services in the Civil Claims List.
• Both the mediation and the hearing will be normally be conducted on the same day
• If the dispute is not settled at mediation

NOTE: when they ask about mediation, include FMAH

Question 38

VCAT using compulsory conferences

Answer 38

• Are confidential meetings during which the parties discuss ways to resolve their dispute in the presence of a VCAT member
• Uses a conciliation process

Question 39

VCAT using final hearings

Answer 39

• Overseen and conducted by a VCAT member, who is ordered to act fairly, and makes a binding decision
• Little formalities and technicalities
• Orders that VCAT can make in a hearing (which are binding and can be enforced):
  
  • Require a party to pay money (e.g. where a person has purchased goods or services and has not paid for them)
  • Require a party to do something, such as carry out repairs
  • Require a party to refrain from doing something (e.g. to stop a demolition)
  • Review, change or cancel a contract

Question 40

Appeals in VCAT

Answer 40

• Appeals from a decision made by VCAT can only be made on a question of law → law not applied correctly
• Leave (i.e. permission) is required to appeal a VCAT decision
• If tribunal presided over by the President or a vice-president → appeal heard in the Supreme Court (Court of Appeals).
• If tribunal presided over by other members → appeal heard in the Supreme Court (Trial Division).

Question 41

When VCAT is appropriate

Answer 41

• The dispute is within VCAT’s jurisdiction.
• Parties can resolve the dispute themselves through mediation, concilation
• Parties are able to pay the fees (depending on the nature of the case)
• Parties do not wish to have greater avenues of appeal (as they are limited to appeals on a question of law)
• Parties are likely to take VCAT seriously
• Parties prefer the informalities
• Parties do not prefer the court to resolve the dispute because of the doctrine of precedent
  
  • VCAT cannot make new law → can only apply law made by parliament or the courts. Its own decisions do not form binding precedent in that they do not become binding on future cases (although they are binding on the parties).

Question 42

Strengths of VCAT

Answer 42

• It is cheaper than courts
  
  • Low application and hearing fees, no pre- trial procedures and parties can self-represent
• VCAT generally offers a speedy resolution of disputes from their application (as low as 2-3 weeks).
• An informal atmosphere at VCAT makes people feel more comfortable with the process → access.
• Each VCAT list operates in its own specialised jurisdiction → tribunal personnel develop expertise in resolving disputes in that area of law.
• A decision made in a final hearing is binding on the parties, which means it is enforceable (unlike a decision that may have been reached by the parties themselves).

Question 43

Weaknesses of VCAT

Answer 43

• There has been an increased use of legal representation and changes to VCAT fees, so some hearings have fees → can be as expensive as court fees.
• There are some delays to reaching resolutions due to the Covid-19 pandemic.
• It may be too informal – some parties may feel uncomfortable or ill-equipped to deal with the lack of formal procedure or may prefer a formal process of giving evidence. Others may argue that this is not the right way for the ‘truth’ to come out.
• VCAT cannot create binding precedents → can only apply existing laws made by the courts/Parliament.
• Appeals are limited to a point of law, and to the Supreme Court → complex and expensive to appeal a case.
• VCAT orders will still need to be enforced through the courts, which takes a little longer, rather than VCAT being able to assist in enforcement.

Question 44

What are the two factors that impact the ability of the civil justice system to achieve the principles of justice during a civil dispute?

Answer 44

• Costs
• Time

Question 45

Costs

Answer 45

• Cost of legal representation
• Court costs and disbursements:
  
  • Engaging expert witnesses and mediators
  • Filing and hearing fees
  • Using a jury (if a party requests one).
• These high costs can mean many represent themselves, but lack the skills, experience and objectivity to do so.
  
  • Assistance given to a self-represented party cannot extend to a person advocating (arguing) for that party.
• Most of legal aid funding is spent on aid for criminal and family law cases rather than civil disputes.
  
  • People pursuing civil disputes are forced to settle or withdraw their claims because of the costs → access

Question 46

Measures to address costs

Answer 46

• Mediation/conciliation. (A)
  
  • No pre-trial/trial procedures.
  • No potential adverse costs order which may be substantial.
  • Saves for the entire legal system. Funding that would otherwise go to the courts for a trial, which involves a judge and may involve a jury, can be redirected to dispute resolution bodies.
• The use of Consumer Affairs Victoria (CAV) & VCAT → provide no or low-cost dispute resolution services and assistance, legal representation is not generally required
• The use of case management powers in court → a judge may narrow discovery or require the parties to attend mediation early, which can help to reduce costs (F)
• Pro bono assistance.

Discussion pont: Mediation/conciliation can be too informal of an environment and some parties may not follow through with the final agreement, as a terms of settlement is not always legally binding. This can lead to further costs being incurred in the future when the party in compliance with the agreement must take legal action on the disobeying party in courts, wasting money on a matter that could’ve been settled initially in court.

Question 47

Time

Answer 47

• Backlogs → Following the Covid-19 pandemic, there have been delays in having cases listed for hearing or trial. It has improved in recent years, but largely depends on the court or the VCAT list.
• Pre-trial procedures → Pre-trial steps can be complex and lengthy. Discovery can take months.
• Evidence gathering and preparation → the time it takes for the parties to get a case ready for hearing (including gathering evidence and preparing for the hearing).

Question 48

Measures to address time

Answer 48

• Case management
  
  • Order that the parties attend mediation, avoids pre-trial procedures
  • Limit the scope of discovery
  • Order that no pleadings are required
  • Restrict the time for final hearings, including limiting the number of witnesses and the time to make submissions or cross-examine witnesses.
• VCAT
  
  • A backlog recovery program to deal with the significant backlogs in the Residential Tenancies List.
  • Matters dealt with solely on written documents → no need for parties to present their case at a hearing.
• Online methods to resolve disputes

Question 49

Remedy

Answer 49

• Any order made by a court designed to address a civil wrong or a breach of rights, sought by the plaintiff.
• Overall purpose is to restore the plaintiff, as far as possible, to the position they were in before the wrong occurred.
• Two types:
  
  • Damages
  • Injunctions

Question 50

Damages

NOT to be confused with damage

Answer 50

• Is an amount of money awarded to the successful party (i.e. plaintiff) to be paid by the losing party (i.e. defendant).
• Its purpose is to compensate for the losses or injury that the plaintiff has suffered.
  
  • Financial loss, physical or mental loss and reputational loss.
• Compensatory, exemplary, nominal and contemptuous

Question 51

Compensatory damages

Answer 51

• An amount of money awarded to a plaintiff for harm, injury, or other losses suffered.
• Includes general, special and aggravated damages.
• Most common damages sought.

Question 52

General damges

Answer 52

• Type of compensatory damage
• Its purpose:
  
  • To compensate the plaintiff for losses that are not easily quantifiable and will be calculated by the court based on evidence.
• Includes pain and suffering (past and future), long-term job prospects, loss of amenity, physical impairment
  
  • Loss of amenity is removal of a person’s ability to enjoy or benefit from something they used to have; lower quality of life.

Question 53

Special damages

Not to be confused with specific

Answer 53

• Type of compensatory damage
• Its purpose:
  
  • To compensate the plaintiff for losses that are quantifiable (i.e. have a precise monetary value and can be easily calculated).
• Includes medical expenses (past and future), loss of wages, property damage, loss of profits

Question 54

Aggravated damages

Answer 54

• Type of compensatory damage
• Its purpose:
  
  • To compensate the plaintiff for humiliation, embarrassment or insult suffered due to the defendant’s conduct.
• Includes defamation, workplace harassment
  - I.e. knowing your wrongdoings, but continuing or escalating the cruel acts with the purpose of humiliating someone

Question 55

Exemplary (or punitive) damages

Answer 55

• Is a very substantial amount of money awarded to show strong disapproval of the defendant’s conduct.
• Its purpose:
  
  • To punish the defendant for an extreme infringement of rights
  • To deter others from undertaking the same type of actions.
• Where conduct is malicious, violent, cruel, insolent or in scornful disregard of the plaintiff’s rights.
• Cannot be awarded to a plaintiff for defamation.

Question 56

Nominal damages

Answer 56

• Is a small amount of money awarded to confirm that a plaintiff’s rights have been infringed even though the losses were not substantial.
• Its purpose:
  
  • To uphold the plaintiff’s rights without awarding any substantial amount of damages.

Question 57

Contemptuous damages

Answer 57

• Is a very small amount of money awarded to the plaintiff by a court to show that although they have the legal right to damages, they do not have the moral right. (The court disapproves of it in moral terms).

Question 58

When compensatory damages achieve its purpose

Answer 58

• The loss is financial only (easily quantifiable)
• There are no limits on amounts that can be awarded
  
  • In defamation claims, damages for non-financial loss (generally, pain and suffering) are limited to $250 000.
• There is sufficient enough evidence for unquantifiable losses
  
  • Pain and suffering, future losses

Question 59

When exemplary damages achieve its purpose

Answer 59

• The awarded damage is large enough to act as a punishment and deterrent
• There are no restrictions on the damages
  
  • Personal injury claims are limited year by year to an amount fixed by parliament.
• The defendant is able to play

Question 60

When nominal damages achieve its purpose

Answer 60

• There is sufficient enough evidence for loss
• The amount awarded is not too small
  - As costs are incurred by the plaintiff by conducting the civil claim, so they may suffer additional loss
  - As it may not uphold the plaintiff’s rights

Question 61

Injunction

Answer 61

• A remedy
• An order requiring the defendant to do something or not to do something.
• Its purpose:
  
  • To prevent a person doing harm (or further harm)
  • To rectify some wrong.
• Can be interlocutory (temporary) or final.
• Restrictive or mandatory

Question 62

When an injunction would be interlocutory

Answer 62

• In circumstances where there is an urgent situation and an injunction is needed as soon as possible to avoid further harm.
  
  • At the final trial or hearing, the interlocutory injunction can become a final (permanent) injunction, or it can be dismissed (overturned).

Question 63

Restrictive injunction

Answer 63

• Orders a person to refrain from undertaking an action
  
  • For example, if a building has been Heritage Listed, they may need a restrictive injunction to stop a construction company from tearing it down.

Question 64

Mandatory injunction

Answer 64

• Orders a person to do a particular action
  - For example, if a business has breached their contract to an employee, they may be ordered to fulfil the part of the contract that was breached.

Question 64

When restrictive injunctions achieve its purpose

Answer 64

• The defendant is willing to comply
  - For example, a person may ignore a court’s order to take down defamatory posts, in which case the plaintiff may continue to suffer harm.
• Harm or loss has not already occurred → damages may also be required
• A restrictive injunction alone is sufficient enough
  - For example, a restrictive injunction may stop the defendant from posting false information any further, but a mandatory injunction may also be required to force the defendant to take the posts down.

Question 65

When mandatory injunctions achieve its purpose

Answer 65

• The defendant is willing to comply
• Harm or loss has not already occurred → damages may also be required
• A mandatory injunction alone is sufficient enough
  - For example, the defendant may be required to sign a document and hand it over, as well as be restrained from taking steps they were proposing to take.
• There are no other orders required
  - Injunctions do not address the costs, stress and inconvenience involved in taking the action, so they do not fully address all the harm that may have been suffered.