Area of Study 2b Flashcards
Victorian Civil Justice System (41 cards)
Class Actions
(aka representative proceedings or group proceedings)
A class action is usually commenced by a single person who ‘represents’ the group/class. They are known as the lead plaintiff. The people who form part of the group are known as ‘group members’
Depending on the nature of the claim, class actions can be heard in the Supreme Court (Trial Division) of Victoria or the Federal Court of Australia.
Resolving Class Actions
The resolution of the lead plaintiff’s claim will determine the defendant’s liability for other members of the class. The lead plaintiff has the same obligations as any other plaintiff, alongside additional obligations including;
> Assuming the risk and cost of litigation on behalf of the entire group
> Ensuring the claim serves the interest of the group members and not pursued solely for personal benefit
> Providing instructions to their lawyers regarding the conduct of the claim and making decisions regarding settlement or negotiations
> Filing the case under their own name
If the class action fails, the lead plaintiff is solely responsible for the cost of the proceedings and any adverse cost orders. If successful, the class members will share the costs of the proceedings.
Criteria for a Class Action
- Seven of more people are claiming against the same defendant(s)
- The claim must be in respect of, or arise from, the same, similar or related circumstances
- The claim must give rise to a common issue of law or fact, meaning the same issues are determined by the court for all claims.
Types of Class Actions
Workplace Accidents - a chemical spill occurs, and a group of workers suffer from poisoning
Medical Malpractice - doctors use a surgical product or prescribe a medication that is discovered to be dangerous
Faulty or Dangerous Goods or Services - a group of consumers buy the same product or use the same service that is later found to be faulty or dangerous.
Strengths of Class Actions
+ The use of litigation funders can enable more class actions to be brought in circumstances where individual litigations may lack the funds allowing for increased participation
+ Class actions are a more efficient way of dealing with a number of similar claims, saving courts time and resources
+ Increased financial engagement for the defendant as defendants can respond to multiple claims in one proceeding rather than separate
Weaknesses of Class Actions
- The lead plaintiff is required to assume the risk and cost of litigation on behalf of the entire group which can be unfair
- Depending on the settlement reached, the share given to each plaintiff after costs may be minimal especially after a large percentage of damages is provided to litigation funders
- While juries are available in the SCTD, they are not available in the Federal Court of Australia meaning the class action will not be determined by an independent cross-section of the community
Consumer Affairs Victoria (CAV)
CAV is a statutory body; this means that it was established because of Victorian parliament passing legislation:
Australian Consumer and Fair Trading Act (Vic) 2012. The purposes of CAV are:
> Enforce compliance with consumer law
> Provide info and guidance to educate people about consumer laws about the rights and responsibilities of businesses and consumers
> In limited circumstances, provide consumers, traders and landlords with a dispute resolution process
> Advise the Vic govt on consumer legislation
> Provide accessible dispute resolution services
What can CAV Assist With?
CAV is free for tenants and consumers.
> A complaint against a business by a consumer who believes the Fair Trading Act 2012 (Vic) has been breached e.g. paid for a faulty product and denied a refund
A complaint against a landlord by a tenant who believes the Residential Tenancies Act 1997 (Vic) has been breached e.g. a request for property repairs has not been completed
A complaint made by the consumer about the buying and selling of new and used cars e.g. a consumer purchased a used car from a licensed motor car trader with a statutory warranty period of 3 months but it breaks down within 2 weeks and the dealership refuses to fix it
CAV Assistance
> CAV only assist with claims made by consumers and tenants not business owners or landlords
Only assist if they have tried to resolve the issue first and have failed
Directs parties to conciliation as the primary dispute resolution method as this process can occur in person or over the phone
CAV Appropriate
> The dispute falls within CAV’s jurisdiction
Parties have attempted to resolve the dispute themselves
Both parties are willing to attend and participate in conciliation
Parties wish to avoid costs and delays associated with resolving disputes through the courts or VCAT
Parties are willing to settle therefore increasing the likelihood of a successful resolution
Both parties are willing to comply with the agreement reached during conciliation
CAV Inappropriate
> The dispute doesn’t fall under CAV’s jurisdiction
Parties have not attempted to resolve the dispute themselves
One or both parties are not willing to attend and participate in conciliation
There is a better method of resolving the dispute including via an alternate organisation that is better suited to dealing with the matter
The court or VCAT has already ruled on the matter or the case is currently waiting to be heard
The dispute is initiated by a landlord or business
The dispute is a class action
One or more parties want a legally binding decision
CAV Strengths and Weaknesses
+ provide quick and relatively efficient method of dispute resolution w/out the delay and stress associated with the court trials
+ it is free enabling participation for those who cannot afford the courts or VCAT
+ uses conciliation that has an expert conciliator generally with legal knowledge in the area that can offer suggestions for dispute resolution
- CAV cannot hear complex cases like class actions
- CAV cannot mandate parties attend conciliation - conciliation is a non-legally binding negotiation between parties
Victorian Civil and Administrative Tribunal (VCAT)
Statutory dispute resolution body given its powers through the Victorian Civil and Administration Tribunal Act 1988 (Vic).
The President of VCAT is a current sitting Supreme Court Justice and Vice Presidents are County Court Judges thus appeals from these decisions must be heard in the SC(CoA) whilst cases heard by ordinary VCAT members are appealed to the SCTD.
The applicant is the person applying to have their dispute resolved and the respondent is responding to the claim made against them.
VCAT Divisions and Lists
Residential Tenancies Division
> Residential tenancies list e.g. when the Residential Tenancies Act has been breached
Administrative Division
> Legal practice list
> Review and regulation list
Planning and Environment Division
> Planning and environment list
Civil Division
> Civil claims list
> Building and property list
> Owners corporations list e.g. when Australian Consumer and Fair Trading Act 2012 (Vic) has been breached
Human Rights Division
> Guardianship list
> Human rights list
e.g. when the Equal Opportunity Act 2010 (Vic) has been breached
Purposes of VCAT
Low-Cost
- filing fee for a simple matter is relatively low ($72) for claims below $3000 in the civil list
- fee tiers - corporate, standard and health care card holders
- no hearing fees for civil claims where the amount is less than or equal to $100,000 for a rental dispute that can be resolved in a day
- no need for legal rep
Purposes of VCAT
Efficient
- hearings are shorter b/c not bound by rules of evidence
- many cases can be resolved through compulsory conference or mediation which are informal and t/f less time consuming
- less pre-trial procedures t/f less time b/w initiating a claim
- fast track mediation (less than 1 hour) for disputes involving goods and services under $10k
Purposes of VCAT
Accessible
- low costs = more ppl can access VCAT
- multiple VCAT locations and can be conducted online w/out parties physically present
- informal procedures are more easily understood increasing informed basis of access
Methods of Resolving Disputes
Fast Tracked Mediation
> goods and services claims up to $10k. If unsuccessful final hearing scheduled for another day by member
OR
Mediation
> negotiate in presence of a mediator appointed by VCAT or a VCAT member mediator
OR
Compulsory Conferences
> confidential conciliation process to attempt to resolve the dispute before a final hearing (conducted by a VCAT member)
IF UNSUCCESSFUL
Final Hearing
> parties present their cases and a legally binding decision is reached that can be enforced by the courts
Appropriateness of VCAT
VCAT is appropriate;
> matter falls within their jurisdiction
> parties prefer an informal dispute resolution process
> parties want agency over the outcome
> parties want a low-cost and time efficient resolution
Inappropriateness of VCAT
VCAT is inappropriate;
> matter falls outside their jurisdiction
> parties prefer a more formal dispute resolution method
> parties want a legally binding decision
> parties want the formality of evidence and procedure processes associated with higher costs
Strengths and Weaknesses of VCAT
+ VCAT is normally cheaper than courts due to lower filing and application fees and less pre-trial procedures
+ more efficient resolution process
+ informal processes can ensure people can put their case forward in their own way making them more comfortable
- due to the increased use of legal rep costs of VCAT are rising
- VCAT has suffered recent delays due to COVID-19 creating backlogs that decrease efficiency
- ordinary lay people are initiating claims that may make the process too informal
Courts
Although there are other institutions to resolve civil disputes, courts are the primary avenue for formal resolution for complex matters.
Judicial Determination
Is when a decision has been reached by a judge or jury (presided over by a judge) in court.
It is a method of dispute resolution whereby a judge or magistrate will make a legally binding decision after the parties present their cases at a trial or hearing.
Purposes of Courts
> Provide access to an experienced and independent legal expert. Magistrates and judges who preside over cases have expertise and knowledge about laws and court procedures enabling them to be an unbiased adjudicator.
Provide access to trial by jury as juries can only be accessed in the County and Supreme Courts, whereby the outcome and remedy will be decided by the jury
Provide parties with a legally binding and enforceable outcome to provide a degree of formality
