Ch 7 Notes Flashcards
(70 cards)
1
Q
DR Methods: Role of Med
A
Encourage communication
2
Q
DR Methods: Role of Arb
A
- Not bound by rules of evidence, but can inform themselves on matters seen fit
- Equal opp for parties
- No need formal
3
Q
DR Methods: Role of Concil
A
Facilitate communication + suggest/explore solutions
4
Q
DR Methods: Med used by…
A
- Courts - before final hearing regardless of consent - costs split, mediator appoint by parties/judge
- Parties - before or during
- Associate Judges can use “judicial mediation” as a mediator
5
Q
DR Methods: Concil Used by…
A
- CAV - is its primary user
- VCAT - in compulsory conferences
6
Q
DR Methods: Arb used by…
A
- Courts can order arb WITH consent (if is small then no need consent)
- Used by Mag Court for <$10,000
- Parties who agree to settle
7
Q
Parties can access Med through…
A
- Dispute Settlement Centre of Vic
- Resolution Institute
8
Q
Parties can access Arb through…
A
- Vic Bar
- Melbourne Commercial Mediation and Arbitration Centre
9
Q
In all DR Methods, individuals involved may be…
A
The 2 parties and possible representatives
10
Q
Appropriateness: Mediation/Conciliation
A
- Relationship between parties will continue
- Matter is urgent
- History of violent behaviour
- Gross imbalance of power
- Parties want private
- When is held - too late?
- Willing to compromise
11
Q
Appropriateness: Arbitration
A
- Parties consent OR <$10,000 in Mag
- Want binding/enforce
- Want evidence/decision by 3rd party
- Want priv/public record
12
Q
Reasons for a Civil Court Heirarchy
A
- Admin Convenience
- Appeals
13
Q
How Appeals work…
A
- Need leave»_space; show prospect of success (streamlines processes)
- Court of Appeal/High Court can leave “on the papers”»_space; faster and reduce T/C/S/I of a hearing
14
Q
Grounds of Appeal
A
- Point/Question of Law
- Questions of Fact
- Remedy Awarded
15
Q
Civil Court Jurisdictions
A
7.3
16
Q
Role of Judge/Mag
A
- Impartial
- Case Manage Before
- Case Manage After
- Determine liability/remedy
- Decide costs
17
Q
Mag/Judge: Case Management Before
A
= Ensure case is ready for trial»_space; orders about how much/which evidence used
Can order mediation/directions hearing
18
Q
Mag/Judge - Powers in Case Management (During)
A
- Change order of evidence
- Limit trial time
- Limit witness exam/cross
- Limit no. of witnesses
- Limit party submissions’ duration
- Ask witness to clarify
- Limit evidence documents
- Make rulings at any time (hearsay!)
If jury -> directions and summing up
If self-rep -> ensure understand process, RnR
19
Q
SIM - Crim vs Civ: Judge/Mag
A
- Impartial
- Assist Self-rep
- Jury Directions
20
Q
DIFF - Crim vs Civ: Judge/Mag
A
- Crim: jury always decides guilt in higher courts, Civ: judge decides liable unless with jury
- Judge remedies vs sanctions
- Crim: can manage, but not order procedures, Civ: can order procedures + limit evidence
21
Q
Juries are used when…
A
- Party requests + pays (but court can refuse)
- Court requests
22
Q
Role of Jury
A
- Impartial
- Listen to and remember evidence
- Understand Directions and summing up
- Decide liability and Damages
If Defamation, can NOT decide damages
23
Q
SIM - Civ vs Crim: Jury
A
- Impartial decide on facts
- Listen and concentrate
- Comply with obligations (no prior research)
24
Q
DIFF - Civ vs Crim: Jury
A
- Crim = guilt, Civ = liability
- Diff SoP
- Crim: jury not decide sanction, Civ: jury decide damages
25
Role of Parties
1. Party Control - make decisions about case conduct
2. Ongoing Discovery Obligation - disclose info to other
3. Exchange Evidence
4. Participate in Trial
26
Types of Evidence
1. Lay Evidence = ordinary people giving facts about circumstance (not expertise/opinion)
2. Expert Evidence = professional opinion
27
How Parties Participate in Trial
1. Opening Address
2. Present to judge/jury
3. Cross-exam witnesses
4. Closing Address
28
SIM - Crim vs Civ: Parties
1. Both ongoing disclose obligation (even if detrimental)
2. Opp to present and examine
3. Must no mislead - must cooperate
29
DIFF - Crim vs Civ: Parties
1. Def has ongoing discovery obligation, but NOT accused
2. Civ generally has no jury >> no jury address
3. Civ has party control, but Crim is limited - can't always choose which evidence used
30
Purpose of Legal Prac
Prep and conduct case on behalf of parties >> present best possible case to assist just outcome
Ensure RoL is applied + fair and equal law
31
Reasons for Lawyers
1. Experience
2. Objective
3. Equal - unfair adv if one is rep better
4. Judge - can only assist slightly >> lawyers are helpful
32
Legal Aid Available for Civil
1. VLA - is often only crim >> not advice for all case types
2. CLC may help, but depends
3. DR Bodies - some are designed for no legal prac (e.g. mediation, VCAT only allow for larger claims etc.)
33
Requirements to Commence CA
1. 7+ people claim against same
2. Claims for similar/related reasons
3. Same issues to decide
34
CA: Opt in vs Opt Out
Opt In - no need to instruct lawfirm/go court/give evidence... only participate in settlements
Opt Out - not bound by decis/settle >> can pursue in sep legal proceed
35
CA: Court's Role
1. Manage and supervise actively
2. Approve settlements/costs/fees for lit funders
3. Ensure group is protected - settle is fair and reason for them
NOTE - often ends in mediation before trial
36
Costs of CA
If lose >> lead plaintiff UNLESS...
1. Lit Funder - funds in return for % of settle/damage awarded (20-40%)
2. Plaintiff Law Firm with Group Costs Order
- Fee becomes % of amount award or settled??? 7.8
37
Types of CA
1. Shareholder CA
2. Product Liability CA
3. Employees CA
4. Natural Disaster CA
38
Appropriateness of CA
1. 7+ people in same/similar circumstance
2. Plaint Law Firm/Lit Fund willing to cover costs (<1mill is unlikely, >5mill is likely)
3. Someone willing to Lead Plaint
4. Nature and Size of Claim - worth efforts?
5. One group member suffered more?
39
Purpose of CAV
Ensure Vic are informed about consumer law + businesses comply
40
Role of CAV
1. Advise VicGov on Cons Law
2. Provide Info/Guide on cons law RnR
3. Enforce compliance
4. Provide DR in LIMITED circ.
41
Purpose of DR in CAV
1. Help get agree to resolvedisp with NO costs + eff
2. Reach resol consistent with law >> aware and enforce
42
CAV receive complaints from...
Consumer and tenants... NOT businesses/landlords
43
CAV Jurisdiction
Limited - powers through statute
1. Consumer vs Supplier
e.g. Faulty/damaged, service caused damage, car purchase etc.
2. Tenant vs Landlord
e.g. rental agree, disp about repairs etc.
44
DR Method used by CAV
Conciliation - phone calls or can in person
45
Appropriateness of CAV
1. Within jurisdiction?
2. Cons/Tenant alr tried resolve
3. Complaint justifies CAV involve (not trivial)
4. Breach of law/oblig
5. Consumer is vulnerable/disadv
6. Likely to be resolved
7. Alr dealt with by CAV or VCAT
46
Before CAV, should also consider...
1. Can resolve through negotiations
2. Other party take concil srsly
3. Need binding in C/T?
4. Need urgent resolve >> C/T
5. Want formal C/T
6. Too big/complex
47
VCAT is diff to courts bc...
1. Limited law areas, but are experts
2. Less formal
3. Cheaper and more efficient
4. Receives power from statute
5. Parties have more control over how proceed
48
Who is the pres/vice-pres
Pres = supreme court judge
Vice = county court judge
>> Manage and admin VCAT
49
5 Divisions and Jurisdictions
1. Residential Tenancies Division - tenancy disputes
2. Admin Div - prof conduct inquiries and applications
3. Civil Div - consumer matters
4. HR Div - guardianship, equal opp, race etc.
5. Planning and Environ Div - plan decis by council/authorities
50
VCAT can NOT hear...
1. CA
2. Employer vs Employee
3. Between neighbours
4. Between car accident drivers
5. About fed/state law if no powers
6. Where parties are residents of diff states OR Clth is a party
51
VCAT: DR Methods used
1. Mediation
2. Compulsory Conference (conciliation)
3. Final Hearing
52
VCAT: Mediation (legal prac, decisions)
- Can bring support ppl/legal rep
- Decision not binding - ToS enforced through courts OR VCAT makes order where ToS becomes formal binding VCAT order
53
VCAT: Criteria for Fast-Track Med + Hearing
1. Civil Claims List of Civ Division
2. Value <$10,000
54
VCAT: Compulsory Conference (legal prac, decisions)
- VCAT member assists conciliation
- Makes suggestions and outcomes if choose to go hearing
55
VCAT: CC Member restrictions
1. Member can not hear case at final hearing
2. Can not tell hearing member what happened at CC
56
VCAT: Final Hearing (legal prac, decisions)
- Heard by VCAT member if med/CC fail
- Present case, evidence, witnesses - member makes binding decision
57
VCAT: Final Hearing unique...
As little formal as possible but ensure fairness
Can use rules of evid/procedures IF necessary
58
VCAT: Types of Orders made...
1. Party pay money
2. Party do smth
3. Party don't do smth
4. Declare debt is/not owing
5. Review/vary/cancel contract
6. Dismiss claim
Binding on parties + can enforce
59
VCAT: Grounds of Appeal
Can ONLY appeal on Point of Law
Appeal heard in Supreme Trial Div
OR Court of Appeal IF pres/vice-pres
60
Appropriateness of VCAT
1. VCAT jurisdiction
2. Can resolve themselves in neg/med
3. Nature of fees + ability to pay
4. Parties want greater avenues of appeal
5. May not take srsly
6. Court formality preferred
7. Too big/complex
8. Want Doctrine of Precedent
61
VCAT: Exclusive Jurisdction
1. Residential Tenancy Dispures
2. Domestic Building Dispputes
3. Retail Tenancy Disputes
62
Appropriateness of Courts
1. Falls under Court Jurisdiction (VCAT has exclusive)
2. Other better ways to resolve
63
Things to Consider before Choosing Court
1. Can resolve themsleves
2. Courts cost more
3. Risk of a 3rd party decision
4. Access/afford legal rep
5. Comfort with rules and procedures
6. Size and complexity of matter
7. Class Action
8. Time Taken/delays
9. Prep for publicity
64
Self-Rep Parties
VCAT - encourages self-rep BUT not suit for all
LA is generally not provide for civil (unless fam law)
Court/Trib - some assistance to self-rep with no LA, but limitedM
65
Measures to Address Costs
1. DR Methods >> resolves earlier + save court costs
2. CAV/VCAT - low cost
3. Case Manage >> narrow disp issues
4. Pro Bono Organisations
66
Pro Bono Organisations:
- Justice Connect (assists vulnerable
- Vic Bar (oversees pro bono)
67
Time: Varies on...
1. Nature/Size/Complexity
2. No. of parties
3. Which DR Body
68
Time: Caused by...
1. Backlogs
2. Pre-trial prcedures
3. Evidence gathering and prep
69
Time: Measures to Address
1. Case Management
2. VCAT programs to manage delays
3. "On the Papers" to avoid hearings
4. Courts use online methods to resolve
70
"Pilot Program"
= County court jduge hears and determines some VCAT cases to help with backlog
