AOS 2b Flashcards
(98 cards)
1
Q
class action criteria 1
A
seven or more ppl claiming against same defendant
2
Q
class action criteria 2
A
claim must be in respect of, or arise from the same, similar or related circumstances
3
Q
class action criteria 3
A
claim must give rise to a common issue of law or fact, meaning the same issues are determined by the court for all claims
4
Q
who is involved in a class action
A
lead plaintiff and group members
5
Q
lead plaintiffs role
A
-same obligation as plaintiff
-assuming risk and cost of the litigation
-ensuring claim serves interest of group members and isn’t pursued for personal benefit
-providing instructions to lawyer re conduct of the claim and making decisions re settlement or negotiations
-filing case under own name
6
Q
resolution of class actions
A
-resolution of plaintiffs case determines defendants liability for other members
7
Q
if class action fails
A
lead plaintiff is solely responsible for costs
8
Q
if class actions succeed
A
class members share costs
9
Q
types of class actions
A
workplace accidents
medical malpractice
financial malpractice
preventable natural disaster
faulty or dangerous goods or services
10
Q
funding class actions
A
third party litigation funders
11
Q
who are litigation funders
A
commercial entities
12
Q
what do litigation funders do
A
meet the costs of litigation in return for a proportion of damages recovered
13
Q
what is CAV and leg
A
statutory body- established by plmt passing leg (Australian consumer and fair trading act (Vic) 2012)
14
Q
CAV purposes
A
-enforce compliance w consumer law
-provide info adn guidance to educate ppl about consumer laws abt rights and responsibilities of businesses and consumers
-provide consumers, traders and landlords w a dispute resolution service
-advise vic govt on consumer legislation
-provide accessible dispute resolution services
15
Q
cost of CAV
A
free
16
Q
CAV types of disputes
A
consumer to business
tenant to landlord
consumer abt buying and selling new and used cars
17
Q
CAV-consumer to business legislation
A
Aus Consumer Law and Fair Trading Act 2012 (vic)
18
Q
CAV- consumer to business examples
A
-consumer paid for a faulty product and denied a refund
-family paid a plumber but quality of work was poor
-motorist pays for car repairs but believes repairs were not completed correctly
19
Q
CAV- tenant to landlord legislation
A
Residential Tenancies Act 1997 (vic)
20
Q
CAV- tenant to landlord examples
A
-tenant requested property repairs but they weren’t completed
-landlord gave notice to vacate the property, but tenant believes timeframe was insufficient
21
Q
CAV- consumer RE cars examples
A
-consumer signs a contract to purchase a new car from a dealership but changes their mind after two days but did not do so in writing
-customer purchases a used car from a licensed motor car trader w a statutory warranty of 3 months, but it breaks down after 2 weeks and the dealership refuses to fix it
22
Q
CAV steps
A
- learn rights
- talk to ppl involved
- write to ppl involved
- take matter further
- seek assistance from CAV w problem/ complaint
23
Q
what method does CAV use
A
conciliation
24
Q
who must initiate claims in CAV
A
consumers and tenants
25
what must ppl do before approaching CAV
tried to resolve issue first
26
how can conciliation be accessed
in person
over the phone
27
is conciliation binding
no- unless deed of settlement
28
can CAV compel parties to attend, make legally binding decisions, enforce an agreement
no
29
CAV appropriate
-dispute in jurisdiction
-parties have attempted to resolve dispute
-parties are willing to attend and participate in conc
-parties wish to avoid costs and delayed associated w resolving disputes thru courts or VCAT
-parties are willing to settle, t/f increasing likelihood of success
-both parties are willing to comply w agreement reached during conc
30
CAV inappropriate
-not in jurisdiction
-parties haven't attempted to resolve
-one or both parties are not willing to attend/ participate
-there is a better method of resolving dispute
-courts/VCAT have already resolved matter or case is currently waiting to be heard
-dispute is initiated by a landlord or business
-class action
-one or more parties want a legally binding decision
31
strengths of CAV
-quick and relatively efficient method for parties to resolve their dispute w/o delays and stress of going to trial whilst also allowing for impartial processes using a conciliator
-CAV is free, ensures participation
-conciliation, takes advantage of conciliator- fair and efficient outcomes
-conciliator= same opportunities to parties
-can be over the phone (access)
-informal=less intimidating, formal, complex
-private
32
weaknesses of CAV
-assistance is limited to consumer and CAV disputes
-no power to compel parties to undergo conc.
-no powers to enforce any decisions reached by parties in conc.
-not all cases accepted by CAV (criteria and prioritisation of cases)
-not appropriate for large/ complex disagreements
33
VCAT leg.
Victorian Civil and Administrative Tribunal Act 1988 (vic)
34
role of VCAT leaders
president- supreme court
vice presidents- cc judges
35
VCAT exclusive jurisdiction
only body that can resolve matters in these areas - domestic building disputes
36
VCAT parties
applicant - person applying to have their dispute resolved (aggrieved party)
respondent- responding to claim
37
VCAT divisions
Residential Tenancies division
Administrative div
planning and environment div
civil div
human rights div
38
residential tenancies division
(residential tenancies list)
-claims made by landlords/ tenants w claims re breaches of residential tenancies act
-unpaid rent, unfixed utilities
39
civil division
claims made by businesses and consumers re Australian Consumer Law and Fair Trading Act 2012 (vic)
-faulty goods
-business deliberately misled abt quality of product
-business claiming business they sold goods to has not paid outstanding debts
-builder claiming a property owner hasn't paid what they owed
40
Human rights division
breach of equal opportunity act 2010 (vic)
-worker claiming they were dismissed due to religious beliefs
41
disputes outside VCAT jurisdiction
-class actions
-residents from different states
-exercise of a federal jurisdiction
-cases where Cth of Aus is a party
-cases involving Aus constitution
-neighbours (unless nieghbour is a landlord/ body corporate)
-employer and employees (unless discrim)
42
purposes of VCAT
-provide low cost dispute resolution services
-provide efficient dispute resolution services
-provide accessible dispute resolution services
43
VCAT-provide low-cost dispute resolution services
-filing fees are relatively low
-fee tiers- corporate, standard, healthcare card holders
-no hearing fees for rental disputes less than $100k that can be resolved in a day
-parties can self-rep
44
VCAT-provide efficient dispute resolution services
-hearings are shorter since they are not bound by rules of ev and formal procedure such as courts
-many cases can be resolved through compulsory conference or mediation= less time and informal
-less pre-hearing procedures compared to courts
-VCAT provides fast track mediation services and hearings whereby mediation takes less than an hour for disputes involving goods and services less than $10k
45
VCAT-provide accessible dispute resolution services
-low cost
-multiple VCAT locations throughout vic
-can be conducted online
-informal- easily understandable for courts
-doesn't require legal rep
-assists parties to prepare a case w instructions on how to lodge their application, prepare ev and what to bring to a hearing on their website
46
VCAT
filing fees
up to $3k- $72
over $5mil- $1840.40
47
methods of resolving disputes in VCAT
1. fast tracked mediation and hearing
1. mediation
1. compulsory conferences
2. final hearing
3. appeals
48
fast tracked mediation and hearing
-for goods and services up to $10k
- if unsuccessful vcat hearing scheduled for another day (free)
49
appealing a VCAT decision
-on a question of law
-VCAT pres/ VP- COA
-members- SCTD
-need leave
50
VCAT appropriateness
- within jurisdiction
-parties would prefer an informal dispute resolution process
-parties want to try and resolve dispute themselves/ want some agency over outcome
-want option to negotiate but if unsuccessful wish to have a legally binding decision
-willing to comply w mediation
-willing to only apply on a q of law
-low cost/ time efficient
51
class actions strengths
-litigation funders= more class actions brought in circumstances where individual litigants may may lack funds= participation
-managed by experienced and impartial judges- impartial and efficient
-juries available in SC
-more efficient way of dealing w a number of claims
-decrease costs for defendants
-usually supported by experienced lawyers= presented in best light
52
class actions weaknesses
-lead plaintiff assumes risk and cost of entire litigation
-juries not available in Fed court
-if litigation funding not obtained, lead plaintiff may not be willing to bear costs
-share given to each pt may be limited (litigation funders)
-can be very costly
-can take a long time
-some group members might not get adequate updates= limited participation
53
why are courts needed
-should be considered primary avenue for dispute resolution
54
judicial determination
-method of dispute resolution whereby a judge or mag. will make a legally binding decision after parties present their cases at a trial or hearing
55
civil proceedings process
1. civil proceeding is initiated by filing a writ, a document commencing the proceedings, and a statement of claim
2. Documents, including the writ and statement of claim, must be served to the def to provide info abt the case and why they are involved
3. def may respond to the doc and file a def, outlining how they intend to defend the claims against them
4. if def has lodged a defence, court will hold a directions hearing to establish the timeline of the proceedings, including what needs to occur, by who and by what date
5. court will inform the parties of what is needed to prepare a case for the judge, including the different doc required and when they need to be filed
6. each the parties will present their case and the evidence before the judge at a trial
7. the judge will hand down their judgement at a later date after considering the parties submissions. If the pt loses the case, the judge can order them to pay the def. legal costs. the party who loses the case may also have the option of appealing the final decision
56
purposes of courts
-provide access to an experienced and indep legal expert
-access to trial by jury
-method to resolve class actions
-provide parties with a legally binding and enforceable outcome
-provide the avenue for a court
-provide a legal setting for precedents to be established
57
courts appropriate
-within jurisdiction
-legally complex matter
-considered the cost, time and possible delays
-parties prefer formalities
-parties have attempted to resolve their dispute through other means
-parties want a predictability of precedent
58
inappropriate courts
-if want to negotiate and resolve the disputes themselves w ability to influence outcome
-may not want to deal w complicated pre-trial procedures
-would prefer a less costly and time-consuming dispute resolution method
-parties wish to self rep
-maintain an ongoing relationship
59
mediation fees
family mediation (parenting)- $1100-2250p/h
(property)- $1200-2400p/h
lease dispute $1500-2000p/h
60
conciliation fee
$460p/d for family matters- likely more tahn one day
61
court fees
filing fees in mag court- $156-743.10 (after first day-$637.40)
standard court fees for a trial or appeal for first day of SC - $740
62
examples of other costs
barrister fees- $3000-$5000
solicitor fees
expert witness fees
jury fees ($1611.60, $301.20)
63
64
cost assistance VLA
-migration matters
-centrelink payments
-indiv has a cognitive disability
65
court backlogs
from covid- increasing caseload the system hasn't managed to resource
66
VCAT delays
Goods and Services div of VCAT- 9-12 weeks for all steps/forms to be completed and finalized but 44 weeks for matter to be resolved
Residential tenancies divisions- possession of unpaid rent- avg 4 weeks but up to 8 weeks can be expected
67
delays from preparing the case
judge can make a timeframe
68
delays in trial procedures
oral arguments and examination of witnesses
69
fairness delays strengths
-dispute resolution bodies that have lower waiting times than courts can enable disputes to be heard and determined in a timely manner (participation)
-credibility of ev can be preserved (impartiality)
-case management can reduce delays and encourage procedural fairness
70
fairness delays weaknesses
-compromise the application of procedural fairness and increase the stress for all parties, particularly vulnerable populations
-delays can negatively impact the credibility of ev.
71
equality delays strengths
orders and directions given by a dispute resolution body to reduce delays apply equally to both parties
72
equality delays weaknesses
-use of case management powers can differ bw judges, creating potential for unequal treatment. Proactive judges can encourage equality but inequalities may be heightened when powers aren't used to their full extent
-delays are likely to disproportionately affect parties that are unfamiliar w court proceedings and those in vulnerable circumstances, such as those w low ses
73
access delays strengths
-range of dispute resolution bodies available can ensure justice is accessible and delivered in an efficient manner
-case management, such as ordering parties to attend mediation, can encourage early determination of a case
-ADRs can promote access as they may result in a prompt resolution
74
access delays weaknesses
-delays may discourage a plaintiff from initiating legal action in first place
-parties may be forced to withdraw or settle
75
damages
monetary compensation
76
purposes of remedies
-return the plaintiff to og position
-to deter others from committing civil breaches
-to uphold the plaintiffs rights
77
specific damages and examples
precise value and easily quantifiable
e.g- compensation for medical expenses
78
general damages
don't have a precise value and aren't easily quanitifiable.
e.g - general pain and suffering, loss of quality of life, shortened life expectancy
79
aggravated damages
-aim to further compensate for humiliation or where they have been insulted
e.g-patient has recieved substandard medical care and is subject to ridicule/ disgrace from staff
80
exemplary damages
aims to punish defendant and deter others
where breaches are driven by cruelty, revenge and disregard for pt rights
81
nominal damages
require an extremely small amt of money usually $1
ensure pt rights are upheld wo compensation (moral)
82
contemptuous damages
legal right but no moral right
judge must believe claim should not have been brought to court (technical)
83
strengths of damages
-compensatory damages are intended to compensate pt for actual losses
-general and agg damages aim to compensate for non-quantifiable losses
-even where damages are minimal, still acknowledges pt right to a legal remedy and to seek justice for violations of rights
-def actions can be deterred which upholds rights to be protected from future harm
84
weaknesses of damages
-cannot fully restore for non-monetary losses
-amount may not fully reflect extent of harm
-harm may be irreversible
-def doesn't have sufficient assets
-jurors don't have legal expertise
-no guarantees in deterring as outweighed or ppl are unaware
85
injunctions
court orders that compel a party to do something or prevent a party from doing something
86
mandatory injunctions
forces a party to do something
-ordering a party to demolish a wall they built on someone elses land
87
restrictive injunction
prevents a party from doing something
-preventing a property from being sold
88
interlocutory injunction
only lasts for a short time and is often awarded in urgent circumstances
-preventing the demolition of a house for a short period of time, until court can determine if owner is entitled to demolish
89
final injunction
permanent and ongoing
-preventing a publisher from printing a defamatory book
90
injunctions strengths
-aim to return pt by forcing def to take action to prevent further harm
-prevent a future breach as ability to restrict def and prevent them from doing something
-immediate relief for pt = deterrent
91
injunctions weaknesses
-interlocutory are temporary, def is able to continue disruptive behaviour
-high costs- higher ses can protect rights more readily
-court has limited ability to monitor and ensure def adheres (pt may need to initiate additional legal proceedings to enforce- can undermines deterrent effects)
92
fairness costs strengths
cav is free- participation
tiered vcat fees- low cost and transparency
court can order adverse cost orders- fair as def doesn't choose to participate
93
fairness costs weaknesses
-costs limit ability to participate as may not be able to afford costs of DRM
-may encourage settlement- unfair
94
equality costs strengths
-VLA provides limited assistance
-tiered fees
95
equality costs weaknesses
-VLA limited in ability to support ppl
-ability to access DRM based upon income
-quality of legal rep differs
96
access cost strengths
-cav is free
-info available online- informed basis
97
access costs weaknesses
-cannot afford legal rep- uninformed
-limited access to VLA bc requirements
98
