U3 AOS2 Flashcards
(282 cards)
1
Q
what are the key purposes of the civil justice system?
A
- to enable a person to enforce their legal rights or take action over legal wrongs
- to determine whether the defendant has a liability to that person
- to award a remedy where the defendant has been found liable
2
Q
what is a liability?
A
a legal responsibility for one’s acts or omissions
3
Q
what is civil law?
A
an area of law that defines the rights and responsibilities of individuals, groups, and organisations in society and regulates private disputes
4
Q
what are the factors of civil law being state-based?
A
each state/territory has:
- it’s own system of resolving disputes
- it’s own civil laws
- it’s own rules for determining civil disputes
- it’s own courts and other dispute resolution bodies (e.g. tribunals)
5
Q
can civil law be commonwealth based?
A
the commonwealth can also create civil laws in relation to disputes that fall within commonwealth power, therefore federal courts can resolve commonwealth legislated civil disputes
6
Q
what are the 3 main types of dispute resolution bodies in victoria (with examples of each)?
A
- complaints bodies (e.g. consumer affairs vic/CAV)
- investigates complaints from people about the conduct of other parties + may also offer dispute resolution services - tribunals (e.g. vic civil and administrative council/VCAT)
- operates like a court and can resolve a range of disputes + less formal, generally quicker and cheaper than courts, and more accessible for smaller claims that don’t require a lawyer - courts (magistrates, county, etc.)
7
Q
what is sometimes limited by dispute resolution bodies?
A
some dispute resolution bodies have a restriction or limit on the types of disputes that they can hear
8
Q
what are pre-trial procedures?
A
steps taken by the parties before trial to try to narrow the issues in dispute and possible resolve the dispute before hearing or trial
9
Q
what is included in pre-trial procedures?
A
- pleadings
- discovery of documents
- exchange of evidence
- mediation
10
Q
what is a pleading?
A
a pre-trial procedure in a civil case during which documents are filed and exchanged between the plaintiff and the defendant, and which states the claims + defences in the dispute
11
Q
what are the 2 main documents filed and exchanged in pleadings?
A
- a statement of claim - filed by the plaintiff in a civil case to notify the defendant of the nature of the claim, the cause of the claim, and the remedy sought
- a defence = filed by the defendant which sets out a response to each of the claims contained in the plaintiff’s statement of claim
12
Q
what is the discovery of documents?
A
a pre-trial procedure which requires parties to list their documents relevant to the issues in dispute (copies of the documents are normally provided to the other party)
13
Q
what is the exchange of evidence?
A
a pre-trial procedure where parties exchange evidence that wll be given at trial
14
Q
what are the types of evidence that parties may exchange at an exchange of evidence?
A
- lay evidence - people giving evidence about what happened or what they saw
- expert evidence - experts (e.g. medical professionals) giving evidence about their professional opinion
15
Q
what is mediation?
A
a method of dispute resolution that uses an independent third-party (the mediator) to help disputing parties to recah a resolution (the judge may order that parties attend mediation by a certain date to try to resolve the dispute before trial)
16
Q
who are the parties in a civil dispute?
A
- the plaintiff (the party that commences a civil action and claims that their rights have been infringed or a wrong has occured)
- the defendent (the party who is alleged to have infringed the plaintiff’s rights or is alleged to be responsible for the wrongdoing)
17
Q
what words does vcat use instead of plaintiff and defendent?
A
plaintiff = applicant
defendent = respondent
18
Q
what is suing?
A
taking civil action against another person, claiming that they infringed some legal right of the plaintiff or did some legal wrong that negatively affected the plaintiff
19
Q
who can the parties to a civil dispute be?
A
- an individual suing or being sued in their own name, or a group of individuals suing or being sued together
- a corporation or company (a separate legal entity from the directors or individuals who run the company) suing or being sued
- the commonwealth or a state, or a government agency or body (e.g. local council) suing or being sued
20
Q
what happens if an employee undertakes a wrongful action that gives rise to a civil claim against them in the course of their employment?
A
the injured person may be able to sue th employer if an employee infringes a person’s rights while acting in the course of their employment
21
Q
what is vicarious liability?
A
the legal responsibility of a third party for the wrongful acts of another (e.g. an employer’s liability for what their employees do)
22
Q
why does vicarious liability exist between an employer and employee?
A
because the employer has a right, ability, and duty to control the activities of their employees
23
Q
what must be established for vicarious liability to exist?
A
that the employee was acting in the course of their employment
24
Q
what are the laws around civil cases and children?
A
- a child under the age of 18 can sue another person or group through a litigation guardian, often known as a ‘next friend’ (usually a parent or guardian)
- a child under the age of 18 can be sued, however the extent of their legal liability depends on the child’s maturity and behaviour for their age
25
what are the types of civil disputes?
- defamation (relates to saying or publishing material which causes damage to another person's reputation)
- trespass to land (occurs when someone gets onto another person's land without permission)
- wills and inheritance (involves disputes over a will)
- breach of contract (arises when someone has failed to do something they promised in a legally binding agreement)
- nuisance (claims made by people who have lost enjoyment or use of property, either public or private)
- negligence (occurs when someone owes a duty of care to another and breaches that duty, causing loss or harm to them)
26
what is a class action?
a legal proceeding in which a group of seven or more people who have a claim against the same person based on similar or related facts bring that claim to court in one person's name (also called a group proceeding or a representative proceeding)
27
who is the lead plaintiff in a class action?
the person who is named as the plaintiff and represents the group members (also known as the repesentative plaintiff)
28
who is a group member?
a member of a class action
29
who does the burden of proof generally lie on in a civil case?
the plaintiff/the party that brings the case
30
what are some exceptions to the rule of the burden of proof lying on the plaintiff in a civil case?
- if the defendent makes a counterclaim, they must prove their counterclaim
- if the defendent raises a defence, they must prove their defence
31
what is the standard of proof in a civil case?
on the balance of probabilities
32
what are some reasons why a party may choose to initiate a civil claim?
- the party wishes to be compensated for any loss they have suffered
- the party wishes to demonstrate to the defendent and society in general that people should be held accountable for infringing the rights of others
33
what are the factors that a plaintiff must consider when bringing a civil claim?
- costs
- limitation of actions
- enforcement issues
34
what are the types of costs that may be incurred by a plaintiff bringing a civil case?
- fees for legal representation
- disbursements
- adverse costs orders
35
who will a plaintiff have to pay for legal representation?
a solicitor, a barrister, or sometimes both
36
what do the costs of a solicitor/barrister depend on?
- the complexity of the case and the time to resolve it
- which dispute resolution body is being used (e.g. VCAT generally doesn't allow lawyers)
- the size of the case (e.g. number of witnesses, extent of evidence, volume of documents involved)
- expertise of legal practitioners (lawyers with greater seniority/more experience = higher fees)
37
what should plaintiffs mainly consider in regards to costs?
are the costs that they are likely to pay worth it compared to the remedy they may achieve
38
what are disbursements?
out-of-pocket legal expenses or fees (other than legal fees) incurred as part of a legal case
39
what types of fees are included in didbursements?
- court fees (filing fees, hearing fees, jury fees if a party requests a jury)
- tribunal fees if the case is being heard by a tribunal rather than a court (possibly filing and hearing fees)
- mediation fees (costs of a mediator + costs of a mediation venue)
- fees for expert witnesses
- costs involved in using technology to manage relevant documents (larger disputes may have millions of documents)
40
what determines the nature/amount of disbursements?
- depends on the case
- depends on whether the case is heard in a court or a tribunal
41
what is an adverse costs order?
a court order that a party must pay the other party's costs (as well as their own)
42
who is an adverse costs order usually given to?
the losing party
43
what must the plaintiff consider before initiating a civil claim in regards to costs
- how much it will cost to have the dispute resolved
- whether they have the money to pay for an adverse costs order
- whether damages that may be awarded will outweigh the costs of making the claim
- whether they are eligible for legal aid or other legal assistance
- what the risks are if they are served an adverse costs order and cannot afford to pay it (e.g. may have to sell their assets)
44
what is the limitation of actions?
the restriction on bringing a civil claim after the allowed time
45
what are the reasons for the limitation of actions being in place?
- so the defendent doesn't have to face an action after a significant amount of time
- so that evidence isn't lost and people can still remember what happened
- so that disputes can be resolved as quickly as possible to promote social cohesion (so that disputes don't linger or fester in the community)
46
what is the main statute that imposes the limitation of actions in victoria?
the limitation of actions act 1958
47
what is the limitation period for a defamation claim?
1 year
48
what is the limitation period for a breach of contract claim?
6 years
49
what is a disadvantage of the limitation of actions?
the plaintiff cannot receive any remedy after the limitation of actions period is over (however they can get an extension in some cases)
50
what are the limitation of actions laws surrounding physical and sexual abuse as a minor?
victoria was the first state to remove the limitation of actions in these cases, enabling adults to achieve justice for abuse during their childhood
51
what are the 2 ways that a plaintiff will generally be able to obtain a settlement/remedy in a civil case?
1. through settling with the defendent before the court/tribunal hands down their decision
2. through the court or trubunal making a decision about liability and awarding a remedy such as damages
52
what must the plaintiff consider before initiating a civil claim in regards enforcement issues?
- whether the defendent has assets or money to pay the plaintiff (e.g. they may be bankrupt and have nothing)
- whether the defendent is unable to pay for a reason other than bankruptcy
- if the defendent is in jail (e.g. if the civil dispute has arisen from a criminal case)
- if the defendent is overseas or uncontactable
- if the defendent is a company and if the company has any assets
- if the defendent has access to other money in the case that they have none (e.g. loans, friends and family, etc.)
53
what is 1 enforcement mechanism that my be used in the case that the defendent will not pay the plaintiff?
obtaining a court warrant to direct the court sheriff to seize/take the defendent's good and sell them
54
what is fairness?
that all people can participate in the justice system, and its processes should remain open and impartial
55
what is an example of why court processes should be impartial?
because there may be apprehended bias if it is thought that someone involved in the case is biased, e.g. if the defendent is a company that the judge invests in, they may have financial bias
56
what is an example of why proceeses should be open?
because court hearings and procedures should be open to the public
57
how are open processes not achieved in the civil justice system?
because alternate dispute resolution methods, such as mediation, conciliation, and arbitration, are private and confidential rather than open
58
what are some elements of participation in the civil justice system?
- the opportunity to know the case put against you (achieved through pre-trial processes)
- the opportunity to present your version of the case
- the use of an interpreter (however free interpreter's are not provided to parties in civil cases)
- no delays (they can lead to unjust outcomes because witnesses may forget what happened, or the plaintiff may be too old to enjoy their remedy)
59
what does fairness not ensure in the civil justice system?
that all similar civil cases will have the same outcome and the same remedy awarded
60
what is equality?
that all people should be able to engage with the legal system and its processes and should be treated the same way, and in the case that the same treatment causes disparity or disadvantage, them measures should be put in place to avoid this disparity or disadvantage
61
what is an example of the same treatment in the civil justice system?
that both parties are required to complete pre-trial procedures, regardless of who they are and if they have legal representation or not
62
what is an example of different treatment in the civil justice system?
that is one party is represented and one isn't, then the judge may explain/give instruction on how to carry out pre-trial procedures to the unrepresented party
63
what are some measures that are in place in the civil justice system to achieve equality?
- assistance to a self-represented party
- interpreters
- providing information in a different way (e.g. in a different language or using more informal language)
- changes to court/tribunal processes (e.g. using audio-visual link for people in remote areas)
- different forms of giving evidence (e.g. a person may not swear to god when giving evidence and instead swear on their own religion)
64
what is access?
that all people should be able to engage with the justice system and its processes on an informed basis
65
what are some examples of how the legal system allows people to engage with it?
- through providing a range of dispute resolution methods other than court, because court can be expensive and intimidating (e.g. complaints bodies, tribunals, etc.)
- physical access, people should be able to physically access courts, tribunals, etc. (however, this may be difficult for those in remote locations or those with disabilities)
- technological access, such as virtual or online methods of dispute resolution (however, this may be difficult for those with special needs or those without computer access, such as the elderly)
- financial access, which is one of the greatest challenges in the civil justice system (having no financial access can limit the ability for a just outcome to be reached)
66
what does it mean to be on an informed basis in the civil justice system?
- people should be able to access information and use procedures, methods, and institutions of dispute resolution
- people should be informed about their rights and when those rights may have been infringed, as well as what remedies may be available to them
67
what are some ways that people can become informed about the civil justice system?
- through education/understanding the civil justice system
- through information and access to information about the justice system, dispute resolution, and their rights (which can be available through courts, tribunals, clcs, complaints bodies, etc.)
- through using legal services to become informed about teir rights or to receive advice about the best possible way to resolve a dispute
- through using legal representation, because they are skilled and experiences in dispute resolution
68
what are alternative dispute resolution methods?
ways of resolving or settling civil disputes without having a court or tribunal hearing
69
what are the 3 alternative dispute resolution methods?
1. mediation
2. conciliation
3. arbitration
70
when can the alternative dispute resolution methods be used?
- without going to court/a tribunal, arranged privately between the parties
- through a court/a tribunal as an alternative to a final hearing/trial
71
what is mediation?
an independent third party (a mediator) who does not interfere or persuade but helps the parties in mediation as they try to reach a settlement of the matter
72
what kind of decision is made at the end of mediation between the parties?
a voluntary decision
73
what is the role of a mediator?
to facilitate communications between the parties and to ensure that both parties are heard, NOT TO give suggestions or advice
74
what are terms of settlement?
a document that sets out the terms on which the parties agree to resolve their dispute
75
when can decisions made at mediation become enforceable in court?
if a terms of settlement is signed
76
how is mediation used?
- a court (or VCAT) will generally order parties to go to mediation before a final trial or hearing (the mediator can either be appointed by the corut or agreed on by the parties)
- parties can agree to go to mediation at any time prior to or after a claim has been initiated (costs of mediation usually split between the parties)
77
what is judicial mediation?
when an associate judge (a judge who has certain powers to resolve disputes) mediates a dispute
78
what are the benefits of mediation?
- saves hearings from going to court
- saves litigation costs
- saves courtroom facilities for other cases
- saves judgement writing time
- saves stress for parties who are going through litigation (making a claim)
79
how can mediation be accessed?
through mediation centres or privately
80
what are the key features of mediation?
- two disputing parties with possible representatives
- third-party = mediator whose role is to facilitate discussions between the parties
- resolution is made by the parties voluntarily
- resolution may be enforceable if terms of settlement are entered into
- used extensively in victorian courts and VCAT
81
what is conciliation?
a method of dispute resolution that uses an independent third party (a conciliator) to help the disputing parties reach a resolution
82
what is the role of the conciliator?
- to listen to the facts
- to make suggestions about possible ways to resolve the dispute
- to assist the parties to reach their own mutually acceptable agreement or decision
83
what are the differences between mediation and conciliation?
- conciliator has more influence over the outcome
- conciliator is usually someone with specialist knowledge
- conciliator suggests options + possible solutions and is more directive than a mediator
84
what are the similarities between mediation and conciliation?
- they use similar processes
- the parties can agree to enter into terms of settlement to make decisions enforceable
85
how is conciliation used?
- generally not used by courts (they prefer to send parties to mediation), however all courts have the power to order any civil dispute issued in court to attend conciliation
- used by other bodies such as complaints bodies (e.g. CAV)
- parties can arrange conciliation at any time
- VCAt can order that parties take part in a compulsory conference (which uses similar processes to conciliation) to identify and clarify the nature of the issues in dispute
86
what are the key features of conciliation?
- two disputing parties with possible representatives
- third-party = conciliator whose role is to facilitate communication between the parties + offer suggestions and solutions
- resolution is made by the parties, voluntarily, but may be on the advice of the conciliator
- resolution may be enforceable if terms of settlement are entered into
- used primarily by CAV and VCAT
87
what should be considered when determining the appropriateness of mediation and conciliation?
- whether a relationship between the parties will continue (e.g. neighbours, family members, etc.), therefore mediation and conciliation may help to preserve the relationship
- whether the parties are willing to meet in the spirit of compromise and stick to any agreement reached (if there is a history of broken promises /parties don't show a willingness to compromise, mediation and conciliation may not be appropriate
- whether there is a history of violent and threatening behaviour between the parties (may be inappropriate for them to come together in such a setting in this case)
- whether one or both of the parties want the dispute to be resolved privately or confidentially (they may want a public record of what occurred or the plaintiff may want to make a point about the defendent's conduct)
- when the mediation or conciliation will be held (if held too early, the parties may not yet know the details of the claim or how much money is in dispute, leading to no resolution being reached) (if held too late, the parties may have spent so much money on a claim that they feel they must go to trial or a hearing)
- whether the matter is urgent and may not be able to wait for mediation or conciliation
- whether there is a gross power imbalance, and one party may prefer to resolve the case in court or in a tribunal
88
what are the strengths of mediation and conciliation, and what principles of justice do they support?
- independent + impartial third party who doesn't take sides (FAIRNESS)
- less formal than court, less intimidating + stressful + daunting (EQUALITY + ACCESS)
- safe and supportive environment rather than an intimidating courtroom (ACCESS + EQUALITY)
- if successful, can save significant time in waiting for a trial and saves costs (ACCESS)
- normally conducted in private, good if parties wish to keep a settlement confidential (EQUALITY + ACCESS)
- better for parties to compromise rather than having a 'winner' and a 'loser', boosts social cohesion (EQUALITY)
89
what are the weaknesses of mediation and conciliation, and what principles of justice do they go against?
- any decision reached is not enforceable/will be difficult to enforce, therefore a waste of time and moeny for the plaintiff who must continue the case for the defendent to comply (ACCESS + FAIRNESS)
- the court doesn't decide the case, therefore one party may compromise too much or one party may be stronger and more manipulative (FAIRNESS + EQUALITY)
- one party may refuse to attend or refuse to participate (waste of time + money) (ACCESS)
- if the case is not resolved at mediation or conciliation, it is a waste of time + money) (ACCESS)
- for high-profile disputes, the community may be interested in the outcome, however there is no open justice and no ability to know the outcome or whether the defendent admitted liability or not (FAIRNESS + EQUALITY)
90
what is arbitration?
a method of dispute resolution in which an independent person (an arbitrator) is appointed to listen to both sides of a dispute and make a decision that is legally binding on the parties, known as the arbitral award
91
what are the roles of the arbitrator?
- they are not bound by the rules of evidence (can inform themselves on any matter they see fit)
- they must ensure the parties are treated equally and each party has the opportunity to present their case
- they are not required to conduct proceedings in a formal manner
92
when is arbitration available?
- if the parties have previously agreed to settle their dispute using arbitration (e.g. if they had a contract that stated in the case they were in dispute, they would use arbitration to resolve it)
- if the court orders the party to attend arbitration (though the parties must consent)
- if a claim is filed in the magistrate's court for less than $10,000
93
what are the key features of arbitration?
- two disputing parties with possible representatives
- third-party = arbitrator whose role is to listen to evidence and arguments of disputing parties, then make a decision
- resolution is decided by the arbitrato
- arbitral award is legally binding
- used in the magistrates court for claims of less than $10,000, and in private and commercial disputes
94
how is arbitration used?
- courts and VCAT can refer disputes to arbitration with the consent of the parties (however no consent from the parties is needed if a claim is filed in the magistrate's court for less than $10,000 than referred to arbitration)
- used privately (arranged by the parties themselves, if there is a term in a contract between them that states they will use arbitration if a dispute arises between them)
95
where are arbitrators and facilities for arbitration found?
- arbitrateors found through institutions
- facilities can be booked by parties
96
what should be considered when determining the appropriateness of arbitration?
- whether the parties have agreed to arbitrate the dispute, or the claim is less than $10,000 and filed in the magistrate's court (if not, parties may be unwilling to arbitrate dispute)
- whether the parties want the benefit of a binding and enforceable decision made by the independent third party, or whether they would prefer to have control over deciding the outcome themselves
- whether the parties wish to have the dispute considered by a third-party and want evidence to be presented so that it can be decied on
- whether both or one of the parties want the dispute to be resolves privately and confidentially or if they want a public record of what has occurred (or if the plaintiff wants to publically make a point about the defendent's conduct)
97
what are the strengths of arbitration and what principles of justice do they uphold?
- decision is binding and fully enforceable through the courts, ensuring certainty of the outcome (ACCESS)
- private + confidential, therefore avoids the publicity of a trial (ACCESS + EQUALITY)
- parties have control over how it is conducted by determining how evidence is to be presented and when steps are to be undertaken (ACCESS)
- arbitrator is generally an expert on the subject and acts impartially (FAIRNESS + ACCESS)
98
what are the weaknesses of arbitration and what principles of justice do they go against?
- parties have no control over the outcome of the case, meaning one party could lose and one could win, unlike the compromise achieved in mediation and conciliation (EQUALITY + ACCESS)
- arbitration is not available unless the parties have agreed to this form of dispute resolution or if the claim is a small claim in the magistrate's court (ACCESS)
- can be costly and take a long time depending on the nature of the dispute and how the parties choose to run the arbitration (ACCESS + EQUALITY)
- can be formal if the parties agree on a formal arbitration method and therefore can increase stress, time, and costs for parties (ACCESS)
99
what is the court hierarchy?
when the courts are ranked in order of the complexity and severity of the cases that they hear
100
what are the two reasons for a court hierarchy?
- appeals
- administrative convenience
101
what is administrative convenience?
when cases can be distributed according to their seriousness and complexity, allowing for different courts to more easily allocate their time and resources, and therefore streamline their processes
102
what is an example of administrative convenience in the court hierarchy?
that the magistrates court hears a much higher volume of cases, therefore there are more magistrates and more physical magistrates courts in victoria to account for that
103
what is an appeal?
when someone who is dissatisfied with a decision in a civil trial can, if there are grounds for appeal, take the matter to a higher court
104
what are the types of grounds for appeal?
- a point of law/ a question of law (where the law has not been correctly applied, e.g. the court has heard inadmissable evidence or applied the wrong legal test in a case)
- a question of fact (whether the facts of the case had been applied appropriately to reach the decision)
- the remedy awarded (the way in which a court enforced a right, or the order that was made by the lower court)
105
what do most civil disputes require for an appeal?
the leave/consent of the court hearing the appeal
106
what must be satisfied for a party to receive the leave of the court for an appeal?
the party must satisfy the court that there is a real prospect of success
107
what is a special leave application 'on the papers'?
when the court of appeal or the high court determine that a party has the leave to appeal but no formal hearing is required
108
what is th benefit of a leave application being determined 'on the papers'?
- streamlines processes
- reduces time
- redcues costs
- reduces stress
109
what is the original jurisdiction for the magistrates court?
claims up to $100,000
110
what is the appellate jurisdiction of the magistrates court?
none
111
what is the original jurisdiction of the county court?
unlimited in all civil claims
112
what is the appellate jurisdiction of the county court?
none, unless given power under a specific act of parliament
113
what is the original jurisdiction of the supreme court trial division?
unlimited in all civil claims
114
what is the appellate jurisdiction of the supreme court trial division?
- on a question of law from the magistrates court (unless the chief magistrate made the order)
- on a question of law from vcat (unless the president or a vice president made the order)
115
what is the original jurisdiction of the supreme court of appeal?
none
116
what is the appellate jurisdiction of the supreme court of appeal?
- all appeals from a single judge of the county or supreme court
- on a question of law from the magistrates court when the chief magistrate made the order
- on a question of law from vcat when the president or a vice president made the order
117
what are the strengths of the victorian court hierarchy and what principles of justice do they uphold?
- court hierarchy = courts can adopt different processes + allocate resources that allow for efficiency in case resolution (ACCESS)
- allows for appeals to be made by both parties if there is an error in the original decision (EQUALITY + ACCESS)
118
what are the weaknesses of the victorian court hierarchy and what principles of justice do they go against?
- different courts may be confusing for those who dont understand the civil justice system, e.g. where there is overlapping jurisdiction or for self-represented parties (EQUALITY + ACCESS)
- there is no automatic right to appeal and appeal processes are difficult to understand without a lawyer + need to establish grounds for appeal (ACCESS + EQUALITY)
119
who are the 3 key personnel for a civil dispue issued in court?
- the judge/magistrate
- the jury (if there is one)
- the parties (the plaintiff and the defendent)
120
what are the roles of the judge/magistrate?
- to act impartially
- case management before the trial/hearing
case management during the trial/hearing
- determining liability and the remedy
- deciding on costs
121
what is case management?
a method used by courts and tribunals to control the progress of legal cases more effectively and efficiently
122
what does case management generally involve?
the person presiding over the case (the judge/magistrate) making orders/directions in the proceeding
123
what are directions?
instructions given by the court or tribunal to the parties about time limits and the way a civil proceeding is to be conducted (puts an obligation on the party)
124
what are the procedures that the judge/magistrare may give directions to the parties to undertake?
- discovery
- mediation
125
what does discovery entail?
- the parties must provide each other with copies of all their relevant documents
- often occurs electronically
126
what does the judge/magistrate have the power to do in discovery?
they have the power to limit discovery to a certain category/categories of documents
127
what does mediation entail?
- the judge/magistrate may order parties to attend mediation by a certain date to resolve the dispute before trial (occurs in most supreme court cases)
128
why is mediation important for the court?
courts would face difficulties and be overwhelmed with the amount of cases if they didnt use mediation to encourage a timely and efficient resolution of disputes
129
what is the purpose of the judge/magistrate giving directions in case management?
to minimise delays and ensure cases are heard in a timely, cost effective, and efficient manner, as well as to ensure that parties know what procedures they need to follow
130
when can directions be given?
- at any time during a case
- during directions hearings
131
what are directions hearings?
pre-trial procedures at which the court gives instructions to the parties about time limits + the way the civil proceeding it to be conducted
132
what can happen if a party doesnt comply with judge directions?
penalties can be imposed, such as the court dropping the case entirely
133
what does the judge/magistrate have the power to do as part of managing the case during the trial?
- can change the order in which evidence is given/who will address the court first
- can limit the examination of witnesses/not allow cross examination of a certain witness
- can limit the number of witnesses that a party may call
- can limit the number of documents that a party may fender into evidence
- can ask a witness questions to clarify their evidence
- can hand down rulings throughout the trial where necessary
134
what is the responsibility of the judge if there is a jury in a higher court case?
- to address the jury during the trial
- to give directions to the jury
135
what is the responsibility of the judge if one of both of the parties are self-represented?
- to ensure that they understand the processes
- to ensure that they understand their obligations
- to ensure that they understand thir rights
136
what is a court judgement?
a statement by the court that outlines the decision of the court + the legal reasoning behind the decision
137
what are the conditions that a judge should deliver their court judgement on?
- should be delivered in a timely manner
- should be accessible
- should be readable
138
what is the general rule of which party bears the costs of a case?
generally, the losing party pays the costs of themselves and the winning party
139
what are the similarities between the roles of the judge/magistrate in civil and criminal cases?
- they must act without bias/act impartially
- they must make their decision based on facts only
- they must assist self-represented parties
- they must instruct/give directions to the jury if there is one (doesnt apply to magistrates because there are no juries available in the magistrates court)
140
what are the differences between the roles of the judge/magistrate in civil and criminal cases?
- in a civil case, they must decide guilt if there is no jury in a higher court, whilst in a criminal case, there is almost always a jury in higher court cases, so the judge doesnt decide guilt
- in a civil case, they decide on a remedy, whilst in a criminal case, they decide on a sanction
- in a civil case, they can order parties to undertake pre-trial procedures such as mediation and discovery, whilst in a criminal case, these procedures do not exist
141
what are the strengths of the roles of the judge/magistrate in a civil case, and what principles of justice do they uphold?
- they are impartial umpires/don't overly interfere with the trial, therefore no party has an advantage or disadvantage (FAIRNESS + EQUALITY)
- they are experts in the law and legal processes, and they use this expertise when manaing the case + making decisions on liability (EQUALITY + ACCESS)
- they manage the case both before and during the trial, allowing them to ensure that disputes are resolves in a timely, efficient, and cost-effective manner (ACCESS)
- they are able to assist self-represented parties by explaining cross-examination, what discovery is, etc. (EQUALITY + FAIRNES + ACCESS)
142
what are the weaknesses of the roles of the judge/magistrate in a civil case, and what principles of justice do they go against?
- there are risks of having bias/apprehended bias in their decisions (FAIRNESS)
- there is a lack of cultural + general diversity in judges/magistrates, which may increase distrust felt by members of the community that a just outcome will be reached (EQUALITY + FAIRNESS + ACCESS)
- the extent of case management depends on which judge/magistrate is overseeing the case, and cases that are less actively managed are more prone to delays (ACCESS + EQUALITY)
- cannot overly interfere in cases, including the self-represented parties (ACCESS + EQUALITY)
143
what are the 2 situations in which a jury may be used in a civil dispute?
- if the plaintiff/defendent specifies during pleadings that they wish to have a jury
- if the court orders that a proceeding is tried through a jury
144
what does the court have the power to do if a party requests a jury?
to direct that the trial be without a jury
145
what must a party do if they call for a jury?
pay for the jury
146
what can the jury not do in a defamation case?
decide on the amount of damages
147
what are the roles of the jury?
- to be objective
- to listen to + remember evidence
- to understand directions and summing up
- to decide on liability (in some cases) and assess damages
148
what does it mean for the jury to be objective?
- unbiased
- bring an open mind to the task
- put aside prejudices/preconceived ideas
- jurors have no connections to parties and can only decide based on facts
149
what does it mean for the jury to listen to + remember evidence?
- complex evidence can be difficult for ordinary people to understand
- jurors can take notes but must concentrate on what is happening in the courtroom
- jurors must not undertake their own investigation of what happened/conduct any research on the case/make enquiries about trial matters
150
what does it mean for the jury to understand directions + summing up?
- during trial, the judge will make jury directions on issues/points of law
- the judge will sum up the case at the end
- the jury must listen to directions + summing up
151
what does it mean to decide on liability + (in some cases_ assess damages?
- the jury must decide whether the plaintiff has established the case on the balance of probabilities + the jury must decide whether the defendent has established any defence
- the jury must aim for a unanimous verdict, but in all cases, the court can accept a majority verdict
- deliberations between the jury are confidential, meaning jurors can challenge each other if they are making decisions based on pre-conceived ideas rather than evidence
152
what are the similarities between the roles of the jury in criminal and civil cases?
- both juries are impartial + must decide based on facts + evidence rather than biases
- both juries must listen to + concentrate on evidence (can ask clarification questions to the judge/make notes)
- both juries must comply with obligations (e.g. cannot undertake any outside research or read anything about the case)
153
what are the differences between the roles of the jury in a civil case and in a criminal case?
- the jury decides liability in a civil case, but guilt in a criminal case
- the standard of proof that the jury decides on in a civil case is on the balance of probabilities, whilst in a criminal case it is beyond a reasonable doubt
- the jury in a civil case may decide damages that will be awarded to a successful plaintiff, whilst in a criminal case they will never decide the sanction for an offender
154
what are the strengths of the jury in a civil case, and what principles of justice do they apply to?
- the jurors are randomly picked + have no connection to parties, therefore there is less risk of bias (FAIRNESS + EQUALITY)
- ensures that justice is 'seen to be done' + jurors become more informed about the civil justice system (FAIRNESS + ACCESS)
- collective decision-making reduces bias + subconscious biases can be identified + addressed during deliberation (FAIRNESS)
- the jury shows a cross-section of the community/is a diverse group of people that reflects society's views and values (EQUALITY + ACCESS)
155
what are the weaknesses of the jury in a civil case, and what principles of justice do they go against?
- jurors don't give reasons for their decisions and there is no way of knowing if their decisions are based on biases (FAIRNESS)
- civil trials are complex, especially judge directions + specific types of civil claims, therefore jurors may be unable to understand legal principles or evidence (ACCESS)
- jury trials = delays because matters need to be explained to the jury + they need time to deliberate (ACCESS)
- many people cannot participate in the jury due to being ineligible, excused, or disqualified, therefore some of the community is not represented (FAIRNESS + EQUALITY + ACCESS)
156
what are the roles of the parties in a civil dispute?
- proving the case (plaintiff only)
- proving their defence/counterclaim (defendent only)
- making decisions about the conduct of the case
- disclosing information to the other party
- exchanging evidence
- participating in the trial
157
what is the one consideration that parties must have when making decisions about the conduct of the case?
that the rules of evidence and procedure are followed
158
what is party control?
a term used to describe the power that each party in a legal case has to decide how they will run their case
159
what do the parties make their own decisions about as part of case management?
- what claims they will make
- what defences they will raise
- which witnesses they will call
160
what is the main pre-trial procedure involved when parties disclose information to each other and why?
discovery, because any relevent documents that the parties have must be disclosed to each other
161
what do the parties rely on when proving their case?
documents and evidence
162
what are the two types of evidence?
- lay evidence (evidence given by a layperson (oridnary person) about the facts in dispute, such as what they saw or what happened, not their opinion)
- expert evidence (evidence given by an independent expert, including their professional opinion about an area within their expertise)
163
in what cases is exprt evidence generally used?
- cases involving personal/mental injury
- cases involving financial/business loss
164
what is involved in the parties participating in the trial?
- making opening/closing statements (usually given by their legal practitioner if they are represented)
- presenting their case to the judge/jury through asking witnesses questions
- cross-examination of the othr side's witnesses to challenge their credibility or to identify holes/gaps in their evidence
165
what is examination-in-chief?
the questioning of one's own witnesses in court in order to prove one's own case and disprove the opponent's case
166
what are the strengths of the roles of the parties and what principles of justice do they uphold?
- that parties have an ongoing obligation to disclose + discover all documents to each other to ensure no surprises (FAIRNESS + ACCESS + EQUALITY)
- that both parties have the opportunity to present their case, e.g. making opening/closing addresses, examining witnesses, and cross-examining witnesses (EQUALITY + ACCESS)
- parties have complete control over how they run their case and are not forced to do or say anything or to make certain claims or defences (FAIRNESS + ACCESS + EQUALITY)
167
what are the weaknesses of the roles of the parties and what principles of justice do they go against?
- that some parties may be more familiar with the disclosure obligation but some parties may have less understanding of this process (FAIRNESS + EQUALITY)
- processes are complex and difficult to understand without a lawyer, therefore disadvantaging self-represented parties (ACCESS + EQUALITY)
- party control means that parties need time to prepare their case + make decisions, which can create delays, be stressful, and cost money (ACCESS)
168
what are the roles of legal practitioners?
- preparing + conducting a case on behalf of parties
- helping parties prepare their best possible case
- assisting in achieving a just outcome
- ensuring that the rule of law is upheld + the law is applied equally and fairly
169
what are some reasons that legal practitioners are needed?
- it may be difficult for a party to present their own case
- a party may not know how to effectively present evidence
- a party may not know how to cross examine witnesses
- a party may be too emotionally invested in the case/unable to make objective decisions
170
what can happen if one party is better respresented than another?
they could have an unfair advantage, which could lead to an unfair outcome
171
what is legal aid?
legal advice, education, or information about the law and the provision of legal services, including legal assistance and representation
172
what is one way to get legal aid in the civil justice system, but why is it more challenging?
legal aid can be gained through VLA, but it is challenging because there are more grants for legal assistance for criminal or family law matters
173
what types of cases does VCAT not give advice on?
- business matters
- pay disputes
- work injuries
174
what are some methods of dispute resolution that don't require legal practitioners?
- VCAT generally doesn't allow them, however they might be necessary for larger/more complex cases
- some mediations don't require the use of legal practitioners
175
what are the strengths of legal practitioners, and what principles of justice do they uphold?
- they are experts and help parties to navigate the justice system, e.g. through opening + closing addresses, examing witnesses, etc. (ACCESS)
- they have objectivity that self-represented people may not have because they are too emotionally invested in the case (EQUALITY + ACCESS + FAINESS)
- they avoid the delays that come with being self-represented, because self-represented people may not understand processes and need things to be explained to them (ACCESS + EQUALITY)
176
what are the weaknesses of legal practitioners and what principles of justice do they go against?
- not all legal practitioners are equal or have the same experience or skill, which may impact the quality of their legal services (ACCESS + EQUALITY + FAIRNESS)
- not everypne can afford legal representation, therefore they may have to represent themslves, despite not having the necessary skills, experience, or objectivity to make the right decisions (ACCESS + EQUALITY)
- if someone can afford a lawyer, it may come at a great cost to them or their family, which can be increased if they lose the case and then have to pay the other party's costs as well (ACCESS)
177
what are other names for class actions?
group proceedings or representative proceedings
178
what is a class action?
a type of proceeding where a group of people who all have claims agains tthe same party join together in a proceeding
179
when can a class action be commenced?
- if seven or more people have claims against the same person
- if those claims relate to the same, similar, or related circumstances
- if the same issues need to be decided
180
what is the lead plaintiff?
the person names as the plaintiff in a class action who representes the group members, sometimes known as the representative plaintiff
181
what do group members in a class action not need to do?
- actively participate
- give instructions to the law firm
- appear in court
- discover documents
- give evidence
182
what is a litigation funder?
a third party who pays for some or all of the costs and expenses associated with initiating a court claim in return for a share of the amount recovered, litigation funders are often involved in class actions
183
how much do litigation funders generally take from the total award/settlement?
between 20% and 40%
184
what does the court do as part of managing and supervising class actions?
- approves any settlement agreed to between the parties
- approves legal costs and fees for litigation funders
185
do all class actions go to trial?
most class actions are settled at mediation prior to the trial
186
who is responsible for the costs in a class action if it fails (including any adverse costs order)?
the lead plaintiff
187
what are two ways that the lead plaintiff can avoid being responsible for the costs if the class action fails?
- if the law firm representing the plaintiffs is working on a 'no win no fee' basis
- if a litigation funder is involved and agrees to pay the costs in the case that the claim fails
188
what is one way that a plaintiff law firm may be able to fund a smaller claim?
if they obtain a court order to charge a percentage of any amount awarded or an amount out of the settlement
189
who is responsible for the costs if a class action is successful?
costs of bringing the proceedings will be shared among the group members/taken out of the amount of damages awarded
190
what are the types of class actions?
- shareholder class actions (when shareholders of a company make a claim about being misrepresented about the state of the company' affairs)
- product liability class actions (whn consumers who have purhcased a good or service have all suffered the same loss or damage)
- class actions where employees group together to make claims in relation to underpayment or poor work conditions
- natural disaster class actions (when group members have suffered loss or damage as a result of a natural disaster)
191
what must be considered when assessing the appropriateness of class actions?
- whether there are 7 or more people with a claim against the defendent with the same or similr circumstances
- whether a plaintiff law firm or litigation funder is prepared to fund the claim to avoid the lead plaintiff having the burden of costs
- whether there is someone willing and able to be the lead plaintiff
- whether one group member has suffered significantly more than other group members and may be prepared to conduct and fund their own proceeding
192
what are the strengths of class actions and what principles of justice do they achieve?
- group members are not responsible for any costs, but will share the costs if the claim is successful, increasing access for those who can't afford the costs of their own claim (ACCESS)
- more efficient way of dealing with a number of claims, saves court time and resources (ACCESS)
- people can pursue civil claims they may not otherwise be prepared to, especially if the claims are smaller (EQUALITY + ACCESS)
- litigation funders and plaintiff law firms may act on a 'no win no fee' basis (ACCESS + FAIRNESS)
- reduces the costs for defendent, can respond to all claims in one proceeding (ACCESS)
- more convenient for group members who don't want the burden or inconvenience of having to actively participate in the case (ACCESS)
193
what are the weaknesses of class actions and what principles of justice do they go against?
- large cost burden on lead plaintiff if a class action that has no litigation funder or no 'no win no fee' based plaintiff law firm fails (ACCESS)
- avoids multiple claims, but the size of a class action can still take up a lot of the court's time and resources (ACCESS)
- some fear that class actions will allow class action lawyers to take advantage of group members and gain more than them (FAIRNESS + EQUALITY)
- litigation funders are criticised for taking a large percentage of the total award or settlement, reducing the amount that group members get (ACCESS + FAIRNESS)
- multiple class actions can be commenced by different law firms in relation to the same issue, increasing the defendent's costs (ACCESS)
- some group members may not get adequate or up-to-date info about the proceeding due to large amount of group members (EQUALITY + ACCESS)
194
what are the general purposes of cav?
- to advise the vic gov on consumer legislation
- to provide information and guidance to educate people about consumer laws, including what their rights and responsibilities are, and whether there have been any changes to those laws
- to enforce compliance with consumer laws
- in limited circumstances, to provide consumers and traders, and landlords and tenants, with a dispute resolution process
195
what are purposes of cav in relation to resolving disputes?
- to help people come to an agreement about how to resolve their disputes efficiently without any cost to them
- to try to help the parties reach a resolution that is consistent with the law
196
how does cav obtain its power?
through victorian statutes
197
what are the two types of disputes that cav can help with?
- disputes between purchasers and suppliers, or consumers and suppliers, about the supply or possible supply of goods and services
- disputes between a tenant and a landlord
198
how does cav primarily offer dispute resolution services?
over the phone
199
what dispute resolution method does cav use?
conciliation
200
what factors should be considered when determining the appropriateness of cav?
- whether the dispute is within their jurisidiction/power
- whether the consumer or tenant has tried to resolve the matter themselves
- whether the complaint justifies or needs cav's involvement/is not trivial
- whether there has been a breach of legislation or a failure to comply with legal obligations by the lanlord or business
- whether the consumer of vulnerable or disadvantaged
- whether the issue has already been dealt with by cav or vcat
- whether the issue is reasonably likely to be resolved (cav will be more likely to assist)
201
who can use cav?
consumers or tenants, NOT businesses or landlords
202
what must parties consider when thinking about if there are better ways to solve their dispute rather than cav?
- whether they will be able to resolve the dispute themselves by negotiating with each other
- whether the dispute is best resolved by a court or tribunal making a binding order on the parties, rather than them reaching a resolution themselves
- whether the other party is unlikely to take the conciliation process seriously, therefore a tribunal (being more serious) would be better
- whether one party would prefer the formality of the tribunal or court processes
- whethr the matter is too big or too complex for cav
- whether resolution of the matter is urgent, so a court is a better option
203
what are the strengths of cav and what principles of justice do they uphold?
- cav's conciliation is free, meaning it is available to all victorians (ACCESS)
- the conciliation process is informal and can be conducted over the phone, removing anxieties (ACCESS + EQUALITY)
- cav ensures procedural fairness by allowing both sides the opportunity to present their side of the story (FAIRNESS)
- cav assesses disputes individually, case by case, reducing waste of time and resources on disputes that are unlikely to be resolved through conciliation (ACCESS)
- the conciliation process offered by cav ensures that parties reach a resolution themselves, as parties may be more likely to accept an outcome if it has not been imposed or forced on them (ACCESS + EQUALITY)
204
what are some weaknesses of cav and what principles of justice do they go against?
- cav's assistance is limited mainly to consumer and cav disputes, meaning it has no power to assist other disputes (ACCESS + EQUALITY)
- cav has no power to compel parties to undergo conciliation, therefore a willing party may be unable to cav's dispute resolution methods if the other party is not willing (ACCESS + FAIRNESS + EQUALITY)
- cav has no powers to enforce any decisions reached by parties in conciliation, unless parties have entered into a binding agreement at conciliation (ACCESS + EQUALITY + FAIRNESS)
- not all cases are accepted by cav, and its conciliation services are limited (ACCESS)
- cav is not appropriate for large and complex disagreements, including those with difficult legal questions or several different parties, as these cases should be solved by a court or tribunal due to them having greater expertise (ACCESS + FAIRNESS)
205
what is a tribunal?
a dispute resolution body that resolves civil disputes and is intended to be a less costly, more informal, and faster way to reolve disputes than courts
206
what is a member of vcat?
a person who presides over final hearings and compulsory conferences at vcat, members include the vcat president, vice presidents, deputy presidents, senior members, and ordinary members
207
what are the 5 divisions of vcat?
- residential tendencies division
- civil division
- human rights division
- planning and environmet division
- administrative division
208
what are the purposes of vcat in resolving disputes?
- low cost
- accessible
- efficient
- independent
209
how does vcat achieve low cost?
- parties only need to pay a small amount for filing their claims
- vcat has 3 tiers/levels of fees; corporate, standard, and health card holders (health card holders pay nominal/no fees)
- no hearing fees for many claims, such as civil claims where the claim is $100,000 or less
- parties often don't have to go through pre-trial procedures
- parties can represent themselves rather than paying lawyers
210
how does vcat achieve accessibility?
- conducts hearings in various locations across vic
- allows people to make applications online + conducts hearings online or by phone
- less formal than court hearings, makes people more comfortable, e.g. no pre-trial procedures/formal evidence processes
211
how does vcat achieve efficiency?
- constantly aims to reduce waiting times
- generally doesn't use pre-trial procedures or formal processes
212
how does vcat achieve independency?
- their members are independent and will act as unbiased adjudicators
213
how does vcat obtain its power?
through statutes created by parliament
214
what is exclusive jurisdiction?
the lawful authority or power of a court, tribunal, or other dispute resolution bosy to decide legal cases to the exclusion of all others
215
what disputes can vcat not hear?
- class actions
- disputes between employers and employees
- disputes between neighbours
- disputes between drivers in car accidents
- disputes involving federal or state law where vcat has not ben given any power to hear the matter
- disputes where the parties are residents of different australian states
- disputes where the commonwealth is a party
216
what dispute resolution methods are used in vcat?
- mediation, including fast-track mediation and hearing processes for small civil claims
- compulsory conferences
- a final hearing before a member
217
what is a fast track mediation and hearing?
a dispute resolution process used for small claims about goods and services in the civil claims list at vcat, where both the mediation and the hearing will normally be conducted on the same day, if the dispute isn't settled at mediation
218
what is a compulsory conference?
a confidential meeting between the parties involved in a dispute, in the presence of an independent third-party, to discuss ways to resolve their differences and explore possible resolutions
219
what process do compulsory conferences use?
conciliation
220
who is the independent third party at a compulsory conference?
a vcat member
221
what is done to ensure fairness if a case is not resolved at a compulsory conference and goes to a hearing at vcat?
- the member who conciliates the compulsory conference will not hear the final case
- the member who conciliates the compulsory conference will not tell the member hearing the case what happened at the compulsory conference
222
what is a requirement of vcat when it comes to conducting a final hearing?
they must conduct it with as little formality and technicality as possible
223
what types of orders can vcat make in a hearing (although they can vary from list to list)?
- require a party to pay money
- require a party to do something, such as perform work, carry out repairs, or vacate premises
- require a party to refrain from doing something
- declare that a debt is or is not owing
- review, vary, or cancel a contract
- dismiss a claim
224
where are appeals from vcat heard?
- if the hearing was presided over by the president of vcat or a vice-president, then the appeal will be heard in the court of appeal
- if the hearing was presided over by any other vcat member, then the appeal will be heard in the trial division of the supreme court
224
are decisions from a vcat final hearing binding?
yes
225
can there be an appeal from a decision made by vcat?
yes, only on a question of law/point of law
226
what must be considered when determining the appropriateness of vcat?
- whether the dispute is within vcat's jurisdiction
- whether the parties can resolve the dispute themselves through negotiation or mediation
- the nature of the fees (e.g. for some lists, the feees are just as high as court fees) and whether the applicant is able to pay those fees
- whether the parties wish to have greater avenures of appeal (appeals from vcat are limited to on a question of law)
- whether one or more parties are unlikely to take vcat seriously, so a court is the preferred dispute resolution body
- whether one or more of the parties would prefer the formality of the courtroom
- whether the matter is of a complexity or size that is inappropriate for vcat
- whether the party prefers the court to resolve the dispute because of the doctrine of precedent
227
what are the strengths of vcat and what principles of justice do they uphold?
- vcat is normally cheaper than courts due to low application fees + lower or no hearing fees + no pre-trial procedures + parties can more easily represent themselves (ACCESS + EQUALITY)
- vcat generally offers a speedy resolution of disputes (ACCESS)
- informal atmosphere that ensures parties can put their case forward in their own way (EQUALITY)
- flexible + ensures fairness and equality for an unrepresented party, because the member can ensure that the unrepresented party has an equal opportunity to understand processes + present their case (EQUALITY + ACCESS + FAIRNESS)
- each vcat list operates in its own specialised jurisdiction, resulting in expertise (EQUALITY + ACCESS)
- a decision made in a final hearing is binding on parties and therefore enforceable (ACCESS + EQUALITY)
228
what are the weaknesses of vcat and what principles of justice do they go against?
- due to increased use of legal representation, costs of taking a matter to vcat can be as high as court (ACCESS)
- suffered delays due to covid, financial + mental impact on those who are waiting to have their claims heard (ACCESS)
- may be too informal, some partis may feel uncomfortable with the lack of formal procedure/prefer formal giving of evidence (ACCESS + EQUALITY)
- not a court, cannot create precedents, therefore it can only apply law made by parliament or the courts (FAIRNESS + EQUALITY)
- decisions can only be appeals on a point of law, and to the supreme court, making appeals complex and expensive (ACCESS + FAIRNESS)
- vcat orders will still need to be enforced through the courts, which takes longer (ACCESS)
229
what must be considered when determining the appropriateness of a court as an appropriate dispute resolution body?
- whether the dispute falls within the courts jurisdiction
- whether there are other or better ways to resolve the dispute
230
what is the jurisdiction of the county court over civil cases?
unlimited
231
what is the jurisdiction of the supreme court over civil cases?
unlimited
232
what is the jurisdiction of the magistrates court over civil cases?
limited to claims of up to $100,000
233
what does vcat have exclusive jurisdiction over?
- domestic building disputes
- retail tenancies disputes
- residential tenancies disputes
- planning disputes
234
what must be considered when determining if the court is the best way to resolve a dispute?
- whether the parties can resolve the dispute themselves through negotiation or mediation
- the costs of taking the matter to court + whether cav, vcat, or a private method might be better
- whether they are prepared to accept the risks and uncertainty involved with a third party making a decision on the dispute, plus the possible risk of an adverse costs order
- whether they have access to and can afford legal representation, which is likely to be necessary for pre-trial procedures and for trial
- whether they are comfortable with the formalities of the courtroom and the rules of procedure
- the size and complexity of the matter (larger claims = better for supreme court, smaller claims = better for magistrates court)
- whether the proceeding is a class action that needs to be determined by the supreme court
- the time it will take to have the matter heard in court + possible delays
- whether the parties are prepared to have their disputes aired in an open hearing where members of the public and the media can be present
235
what are the strengths of the courts and what principles of justice do they uphold?
- that various pre-trial procedures (e.g. mediation) allow parties the opportunity to each an out-of-court settlement, saving the costs, time, and stress of going to trial (ACCESS + EQUALITY)
- undertaking pre-trial procedures ensures a more efficient and timely resolution of the dispute, as parties have the opportunity to know the strengths and weaknesses of each others cases (ACCESS + FAIRNESS + EQUALITY)
- courts use processes to ensure judicial fairness, e.g. the judge can give directions and order to ensure the dispute is resolved in a timely matter (ACCESS)
- court processes allow interaction between the courts and the parties, e.g. pleadings provide the court with a written record of the claim (ACCESS + FAIRNESS)
- the court makes binding decisions, meaning the outcome is certain and enforceable (ACCESS + EQUALITY + FAIRNESS)
236
what are the weaknesses of the courts and what principles of justice do they go against?
- cases taken to court often suffer delays, and pre-trial procedures take a long time to complete, especially discovery of documents, and a jury can make the trial take longer (ACCESS + FAIRNESS)
- access to courts is restricted due to the costs in having a dispute resolved in court, jeopardising parties being treated equally because of their economic status (ACCESS + EQUALITY)
- many procedures are complex and difficult to understand without a lawyer, e.g. pleadings, directions, trial procedures such as examination and cross-examination of witnesses (ACCESS + FAIRNESS)
- formalities of cour can be stressful, court has been criticised for being inaccessible to some due to formality, and party control can be stressful and time-consuming (ACCESS + EQUALITY + FAIRNESS)
- courts do not allow for compromising or 'win-win' situations, because their decisions determine who bears responsibility for the plaintiff's loss (ACCESS + EQUALITY)
237
is there a third party who makes a decision in cav, vcat, and the courts?
- cav = no, cav doesn't have the power to make decisions
- vcat = yes, if the dispute proceeds to a final hearing
- court = yes, if the dispute proceeds to a final hearing
238
what is the role of the third party in cav, vcat, and courts?
- cav = facilitates discussion + suggests options and possible solutions, usually someone with specialist knowledge in the field
- vcat = hears all evidence at a final hearing and makes a binding decision
- court = hears all evidence at a final hearing and makes a binding decision
239
what are some negative effects of costs in the civil justice system?
- they may discourage people from pursuing civil claims or defences
- they may cause people to not adequately make out their case because they need to represent themselves, but lack the skills, experience, and objectivity to do so
240
what does the amount of money a party spends on legal representation depend on?
- the nature of the dispute
- the way the case needs to be resolved
241
what types of things can court costs and disbursements be associated with?
- engaging expert witnesses and mediators
- filing and hearing fees
- using a jury (if a party requests one)
242
what does vcat encourage?
self-representation
243
why is self-representation not suitable for everyone in vcat?
- because some people need assistance to help them navigate the legal system
- because if one party is unrepresented or poorly represented, it can impact their ability to make out their case
244
why are most civil parties not able to access legal aid?
because most of the legal aid funding is spent on aid for criminal and family law cases, not civil disputes
245
what measures have been put in place in order to address costs in the legal system?
- the availability of a range of dispute resolution methods
- the use of cav and vcat to help resolve disputes without the need to go to court, because they provide no or low-cost dispute resolution
- the use of case management in court to try to narrow the issues in dispute and ensure a cost-effective resolution
- a number of bodies and organisations in vic provide pro bono (for the public good/free/reduced rate) legal assistance to individuals
246
what are the 2 ways that having a range of dispute resolution methods available addresses costs?
- the earlier a dispute is resolved, the more money is saved, therefore parties avoid significant costs involved in pre-trial + trial procedures
- costs saved by resolving the matter before trial or hearing means saving money and time for the courts and vcat, meaning funding can be allocated more appropriately
247
what can cause the time it takes for a dispute to be heard in courts and vcat to vary?
- backlogs
- pre-trial procedures (mostly the process of discovery, which can take months, though orders made through case management can streamline the process)
- evidence gathering and preparation
248
what are some negative impacts of delays in the civil justice system?
- can cause some people to choose not to pursue a claim
- can cause stress, wasted time, and inconvenience
- can add to costs
- can result in a plaintiff settling their claim for less than what it is worth
- can result in a plaintiff withdrawing their claim entirely
249
what measures have been put in place to avoid delays in the legal system?
- the use of case management powers
- vcat has established dedicated programs to manage delays
- some matters are now dealt with 'on the papers', aovoiding the need for a hearing and decided solely based on written documents provided by partes
- courts are increasingly using online methods to resolve disputes, including holding hearings and even mediations online
250
what can the courts do through case management powers that allows for delays to be reduced?
- can order that parties attend mediation or some other form of dispute resolution method
- can limit the scop of discovery to ensure that it doesn't take too long
- can order that no pleadings are required
- can restrict the time for final hearings, including limiting the number of witnesses and the time to make submissions or cross-examine witnesses
251
what is a remedy?
any order made by a court or tribunal designed to address a civil wrong or breach, it should provide a legal solution for the plaintiff for a breach of the civil law by the defendent
252
where will the plaintiff set out the remedy they are seeking?
in the statement of claim
253
what are the two types of remedies?
damages and injunctions
254
what are damages?
an amount of money awarded by the courts to compensate the plaintiff for loss or injury caused by the wrongful acts of the defendent
255
what are injunctions?
court orders directing a person to undertake a specific action,or to stop a specific actions, to prevent harm or further harm to the plaintiff
256
what is the purpose of damages?
to return the plaintiff to the position they were in before the wrong occurred
257
what are the types of damages?
compensatory, exemplary, nominal, contemptuous
258
what are the types of compensatory damages?
special, general, and aggravated
259
what are compensatory damages?
an amount of money awarded to a plaintiff for harm, injury or other losses suffered
260
what are special damages?
damages that aim to compensate the plaintiff for losses that are quantifiable
261
what are general damages?
damages that aim to compensate for losses that are not easily quantifiable and will be calculated by the court based on evidence
262
what is loss f amenity?
the removal of a person's ability to enjoy something or benefit from something they used to have
263
what are aggravated damages?
awarded when the court believed the plaintiff suffered humilitation, embarrassment, or insult because of the defendent's conduct
264
what are exemplary damages?
a large amount of money awarded to show strong disapproval of the defendent's conduct
265
what is the purpose of exemplary damages?
to punish and deter the defendent where conduct is malicious, violent, cruel, insolent, or in scornful disregard of the plaintiff's rights
266
where can exemplary damages not be awarded?
to the plaintiff for defamation
267
what are nominal damages?
a small amount of moneyt awarded to confirm that a plaintiff's rights have been infringed even though losses were not substantial/no injury, loss, or damage was suffered
268
what are contemptuous damages?
a very small amount of money awarded by a court to show that even though the plaintiff's claim succeeded legally, the court disapproves of it in moral terms
269
what is the purpose of contemptuous damages?
to show that the plaintiff has a legal right to damages, but not a moral right
270
what are 2 restrictions on damages?
- for personal injury claims and claims for non-economic loss, e.g. pain and suffering and loss of quality of life, damages are limited to year by year to an amount fixed by parliament
- in defamation claims, damages for non-economic loss/pain and suffering are limited to $250,000, though can be increased in some circumstances
271
what factors must be considered when determining the appropriateness of compensatory damages?
- whether the loss suffered was financial loss only
- whether the loss suffered was pain and suffering, mental anguish, disfigurement, or impairment
- whether future loss has been suffered
- whether sufficient evidence is before the court about unquantifiable losses
- whether the damages are actually paid
- whether other orders or remedies may be required
- whether there are caps or limits on the amounts the can be awarded
272
what factors must be considered when determining the appropriateness of exemplary damages?
- the amount of exemplary damages
- the ability of the defendent to pay
- the extent to which the award of damages is known
- whether there are caps on the amounts that can be awarded
273
what factors must be considered when determining the appropriateness of nominal damages?
- whether the plaintiff suffered loss
- the amount of the damages
- the costs incurred
274
what is an injunction?
a remedy in the form of an order requiring the defendent to do something or not to do something, designed to prevent a person doing harm or further harm, or to rectify some wrong
275
what are the two types of injunctions?
restrictive and mandatory
276
what is a restrictive injunction?
an order that someone stop or refrain from doing something that is harming or will harm the plaintiff, also called a prohibitive injunction
277
what is a mandatory injunction?
an order requiring someone to do something, or take active steps to prevent harm or further harm to the plaintiss
278
what are the two ways that an injunction may be imposed?
- interlocutary (awarded quickly and in circumstances where there is an urgent situation and in injunction is needed as soon as possible to avoid further harm)
- final (a final order, which means that it is the final say on the matter unless a party appeals)
(an interlocutary injunction can become a final one, or it can be dismissed)
279
what are the conditions of a mandatory injunction for the court to award one?
- if the court is satisifed that the defendent knows exactly what they have to do in order to fulfil the order of the court
- if the plaintiff will suffer significant damage if a mandatory injunction is not ordered
280
what must be considered when determining the ability of a restrictive injunction to achieve its purposes?
- whether the defendent will comply
- whether harm has already been suffered
- whether a restrictive injunction alone is sufficient
- whether there are other orders that may be required
281
what must be considered when determining the ability of a mandatory injunction to achieve its purposes?
- whether the defendent will do what is ordered
- whether harm has already been suffered
- whether a mandatory injunction alone is sufficient
- whether there are other orders that may be required
