U3 AOS2

Question 1

What are the parties in a civil case?

Answer 1

The plaintiff and the defendant.

Question 2

Who has the burden of proof in a civil case?

Answer 2

The burden of proof rests on the plaintiff.
However if the defendant raises a defence or counterclaim, they then have the burden of proof.

Question 3

What is the standard of proof in a civil case?

Answer 3

On the balance of probabilities which means that one party’s case/claim is more likely to be true than the other party’s case.

Question 4

What are the factors that a party should consider before initiating a civil claim?

Answer 4

Cost, limitation of actions and enforcement issues.

Question 5

What is it meant by cost?

Answer 5

Costs such as legal representation, disbursements (court fees, mediation fees, fees for expert witnesses, and costs for technology), and adverse court orders (costs to be paid by the plaintiff to the defendant if the plaintiff is unsuccessful).

Question 6

What is limitation of actions?

Answer 6

Limitation of actions is the legal time-frame which a plaintiff has to commence a civil action in court.
This ensures cases are heard in a timely manner and evidence is accurate/not forgotten.
Limitation of actions varies for different types of cases - defamation is 1 year, breach of contact is 6 years, etc.

Question 7

What are the enforcement issues that need to be considered?

Answer 7

Enforcement issues relate to whether the defendant refuses to pay or cannot pay for the damages.
The plaintiff should do research on the defendant and consider their employment status, assets, income, or if the defendant is overseas.

Question 8

What are the 3 principles of justice?

Answer 8

Fairness, access, and equality.

Question 9

What does fairness mean?

Answer 9

‘All people can participate in the justice system and its processes should be impartial and open.’
- Impartial processes = impartial court personnel
- Open processes = All trials/hearings are open to the public to ensure there can be public scrutiny on the courts judgements.
- Participation = opportunity to know the case against them, opportunity to present their version of the case, use of an interpreter and no delays.

Question 10

What does equality mean?

Answer 10

‘All people engaging with the justice system and its processes should be treated in the same way. If the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow everyone to engage with the justice system without disparity or disadvantage.’
- Same treatment/formal equality = all people are treated the same, and given to same level of support/information.
- Different treatment/substantive equality = to remove disadvantage/disparity. Translators, judge assisting a self-represented party, providing information in a different way, changes to court procedures and different form of giving evidence.

Question 11

What does access mean?

Answer 11

‘All people should be able to engage with the justice system and its processes on an informed basis.’
- Engagement = dispute resolution methods, physical access, technological access, financial access and no delays.
- Informed basis = education, information, legal services, legal representation.

Question 12

What are the alternative dispute resolution methods?

Answer 12

Mediation, conciliation and Arbitration.

Question 13

What is mediation?

Answer 13

A cooperate method of resolving disputes, where two disputing parties discuss the options & alternatives to reach an agreement through negotiation & compromise. This is with the help of an independent third party called a mediator who facilitates the discussion between the parties.
- the final decision is made by the parties
- not legally binding unless parties sign a deed of settlement
- conducted in private

Question 14

When is mediation appropriate and not appropriate?

Answer 14

Appropriate:
- When the relationship of the parties will continue (neighbours, employee&employer, etc)
- If the parties are willing to cooperate
- If the parties want the discussion to be private.
Not Appropriate:
- If a party is unwilling to compromise
- If a party is unwilling to come to an agreement
- If there is a gross power imbalance
- If a party has a history of violent behaviour
- If they want the dispute to be public.

Question 15

What are the strengths of Mediation?

Answer 15

Access:
- Low cost (cheaper than courts)
- Informal (less intimidating than courts)
- Private
Fairness:
- Parties control the outcome
Equality:
- No party is disadvantaged (mediator facilitates the discussion & ensures both parties are heard)
- Legal representation is equal (in many cases, mediator will only permit legal representation if both parties have a lawyer)

Question 16

What are the limitations of mediation?

Answer 16

Access:
- Self-representing (can intimidate people)
Fairness:
- Not suitable for all disputes (not legally binding + mediator can only facilitate)
Equality:
- Language barriers (people with language barriers may find it difficult to participate in the mediation process, creating disadvantage)

Question 17

What is conciliation?

Answer 17

A cooperative dispute resolution method, where two parties discuss the dispute and reach an agreement. This is with an independent third party called a conciliator who listens to the parties, facilitates the discussion and offers suggestions, advice and solutions.
- the conciliator is usually an expert
- conciliation is not legally binding unless a deed of settlement is signed by the parties
- conciliation is conducted in private

Question 18

When is conciliation appropriate and not appropriate?

Answer 18

Appropriate:
- When the relationship of the parties will continue (neighbours, employee&employer, etc)
- If the parties are willing to cooperate
- If the parties want the discussion to be private.
- If there is an admission of responsibility
Not Appropriate:
- If a party is unwilling to compromise
- If a party is unwilling to come to an agreement
- If there is a gross power imbalance
- If a party has a history of violent behaviour
- If they want the dispute to be public.

Question 19

What are the strengths of conciliation?

Answer 19

Access:
- low costs (cheaper than court)
- informal
- private
Fairness:
- Parties control the outcome of the discussion
Equality:
- No party is disadvantaged
- Legal representation is equal (a conciliator will only permit legal representation if both parties have a lawyer.)

Question 20

What are the limitations of conciliation?

Answer 20

Access:
- self representing can be intimidating
Fairness:
- not suitable for all disputes
Equality:
- language barriers can make it difficult for parties to participate.

Question 21

What is arbitration?

Answer 21

Arbitration is a method of dispute resolution in which an independent third party called the arbitrator will listen to both parties present their sides of the dispute and make a legally binding decision for the parties.
- Arbitrator is an expert
- Arbitration is used in the Magistrates court for claims under $10 000

Question 22

When is arbitration appropriate and in-appropriate?

Answer 22

Appropriate:
- If the claim is for under $10 000
- If a party is likely to break the terms of the agreement
- If the parties want the benefit of a binding decision
- If the parties prefer for the independent third party to make the decision
- If the parties want an expert
Inappropriate:
- If the claim is over $10 000
- If the parties want to decide their own outcome
- If the parties are willing to negotiate and cooperate
- If the parties want the dispute to be dealt with publicly.

Question 23

What are the strengths of arbitration?

Answer 23

Access:
- Less costly than court
Fairness:
- Arbitrator is an expert in the field
- The decision is legally binding
Equality:
- No party is disadvantaged as both parties have the opportunity to present their cases to the arbitrator.

Question 24

What are the limitations of arbitration?

Answer 24

Access:
- More expensive than the other dispute resolution methods
- More formal than other dispute resolution methods
- Only available to parties who agree to the use of arbitration
Fairness:
- Parties have no control over the outcome of the case
Equality:
- Language barriers can make it difficult to present their case to the arbitrator.

Question 25

What is the original and appellate jurisdiction of the Magistrates’ Court?

Answer 25

Original: - Claims from $10 000 - $100 000 Appellate: None

Question 26

What is the original and appellate jurisdiction of the County Court?

Answer 26

Original: - Claims from $100 000 to an unlimited amount Appellate: None

Question 27

What is the original and appellate jurisdiction of the Supreme Court?

Answer 27

Original: - Claims from $100 000 to an unlimited amount Appellate: - Appeals from Magistrates & VCAT on questions of law

Question 28

What is the original and appellate jurisdiction of the Supreme Court - Court of Appeal?

Answer 28

Original: None Appellate: - All appeals from County or Supreme Court

Question 29

What are the reasons for the court hierarchy?

Answer 29

Administrative convenience and Appeals.

Question 30

What does the reason administrative convenience mean?

Answer 30

Cases are distributed according to their seriousness and complexity. Less serious and complex cases are heard in the lower courts, while more serious and complex cases are heard in higher courts. With the Magistrates’ Court hearing smaller disputes, they can allocate resources & create processes to ensure disputes are resolved efficiently, while giving the higher courts more time and resources for more complex cases.

Question 31

What does the reason appeals mean?

Answer 31

A party who is dissatisfied with a decision in a civil trial can take the matter to a higher court to be reviewed. The ground for an appeal can consist of: - question of law - question of fact - the remedy awarded. If there was no court hierarchy, there would be no higher courts to review a decision which a party believes has been made in error.

Question 32

What are the strengths of the court hierarchy?

Answer 32

Access: - All parties have the opportunity to initiate a clam/ defend a claim - Prevents delays as cases are distributed based on the complexity and severity - Allows courts to adopt different processes and use their resources in a way that ensures cases are resolved efficiently and fairly, reducing delays. Fairness: - Allows courts to adopt different processes and use their resources in a way that ensures cases are resolved efficiently and fairly. - Appeals can fix any mistakes made by the court, ensuring a fair outcome Equality: - All parties have the same opportunity to appeal and initiate a claim - Similar cases are resolved in the same way within a given court.

Question 33

What are the limitations of a court hierarchy?

Answer 33

Access: - Court/trials are expensive and intimidating - Appeals are hard to achieve and time consuming - Appeals are expensive Fairness: - Cost of appeals can prevent a dissatisfied party from getting a fair outcome Equality: - The different courts can be confusing for the people who do not understand the civil justice system and lack legal knowledge - The lack of legal representation can cause disadvantages - Cost of appeals can cause disadvantages as some people may not be able to afford the cost of application and addition legal fees.

Question 34

Who are the key personnel in a civil trial?

Answer 34

The judge/magistrate, jury and the parties.

Question 35

What are the roles of a judge/magistrate in a civil trial?

Answer 35

- Act impartially - Case management (before and during trial) - Determine liability and remedy - Decide on costs (which party should bear the costs)

Question 36

Compare the role of judge in criminal and civil trial:

Answer 36

Similarities: - both have the role of act impartially - both have the role of instructing and directing the jury - both will ensure self-represented parties have an understanding of the processes and their rights Differences: - a judge may decide liability in a civil trial with no jury, however in a criminal trial jury will always decide the verdict - judges in a civil trial will decide on a remedy, whereas judges in a criminal trial will decide the sanction - there are different court management powers (in a civil trial judge can order parties to undertake procedures such as mediation and discovery)

Question 37

What are the strengths and weaknesses of a judge/magistrate?

Answer 37

Strengths: Access = - judge directs and sums up info to the jury, allowing them to engage on an informed basis. - by managing the trial, they can prevent delays - they help self-represented parties understand and engage in the justice system Fairness = - by managing the trial, they can ensure the case is fair and procedures are being followed correctly - ‘act impartially’ ensures any decisions are based on facts, not bias - judges/magistrates are expert in law Equality = - they can help self-represented parties in understanding the justice system - they ensure all rules of evidence and procedure apply to both parties. Weaknesses: Access = - the management depends on the judge and case, therefore delays can occur Fairness = - there is always a possibility for bias (small weakness) Equality = - they have limitations when helping self - represented parties

Question 37

What are the roles of the jury?

Answer 37

- Be objective (unbiased with an open mind) - Listen to and remember evidence - Understand directions and summing up - Decide on liability and in some cases - damages

Question 38

What are the strengths and weaknesses of a jury?

Answer 38

Strengths: Access= - allows people to participate in the justice system with making a claim - understanding directions and summing up allows them to engage on an informed basis Fairness = - jury is randomly selected from the electoral role - collective decision making can prevent possibility of bias - ‘be objective’ - no jury member is to take on their own investigations Equality = - both parties have the opportunity to pay for a jury Weaknesses: Access = - legal concepts & language can be hard to understand - jury must be paid for, therefore parties may not be able to access it - juries can create delays as they need to come to a unanimous verdict Fairness = - juries can create delays - jury members may have an unconscious bias Equality = - jury is to be paid for, therefore one party may not be able to afford a jury - some cannot participate as a jury, if they are ineligible, excused or disqualified.

Question 38

Compare juries in civil and criminal trials:

Answer 38

Similarities: - both juries are to be objective and impartial - both juries must listen to and remember evidence - both juries must understand directions and summing up Differences: - in criminal trials, juries decide on guilt, whereas, in civil, juries decide on liability - in civil, jury decides liability on the balance of probabilities, whereas, in criminal, jury decides guilt beyond reasonable doubt. - jury will never decide sanction in criminal, however jury may decide damages in civil - juries are mandatory in criminal trial, whereas, juries are not mandatory in civil trials and must be paid for.

Question 39

What are the roles of the parties?

Answer 39

- Make decisions about the conduct of the case (party control = how they present their case + what witnesses they choose) - Disclose information the other party (key documents) - Exchange evidence - Participate in the trial

Question 40

Compare the parties in criminal and civil law:

Answer 40

Similarities: - both the prosecution & parties have the role to disclose key documents and information - both criminal and civil trials provide opportunities for parties to present their case - parties in both must not mislead the court and cooperate with each other. Differences: - the defendant has the obligation to disclose info whereas the accused does not. - as there is usually no jury, parties in a civil trial generally do not have to give opening and closing statements to the jury or consider other jury issues. - the concept of ‘party control’ does not generally extend to criminal law as the prosecution cannot always ‘choose’ what evidence they present. - the plaintiff initiate a civil clam against the defendant , whereas the prosecution initiates a criminal case against the accused. - the standard of proof and burden of proof

Question 41

Strengths and weaknesses of the parties:

Answer 41

Strengths: Access = - by disclosing evidence, the other party can engage on an informed basis - by exchanging evidence, the other party in informed Fairness = - both parties have complete control on how they run the case (party control) Equality = - both parties have the opportunity to present their case Weaknesses: Access = - party control is costly, time consuming and stressful + can create delays - processes are complex and hard for some parties to understand Fairness = - the plaintiff always has the burden of proof, unless the defendant raises a defence/counterclaim, which is a great burden and can affect the plaintiffs ability to present their case. Equality = - self-represented parties may find the processes complex and hard to understand - self-represented parties may have difficulties with their disclosure obligations.

Question 42

Why are legal practitioners needed/ what are the attributes legal practitioners have that self - represented parties do not?

Answer 42

Legal practitioners are needed to uphold the law and assist self-representing parties in achieving a fair outcome. - a legal practitioner can present the evidence in the most effective way, which a self-represented party could not. This is due to the knowledge and skill practitioners have. - a legal practitioner has the knowledge and skill to cross-examine witnesses. - a legal practitioner has greater skill at preparing a case and presenting arguments without any flaws.

Question 43

What are the strengths and weaknesses of legal practitioners?

Answer 43

Strengths: Access = - legal practitioners are available for free in VLA and CLCS - legal practitioners can avoid delays that may arise due to self-represented parties - legal practitioners allow inexperienced and un knowledgeable parties to engage Fairness = - legal practitioners are expert and are able to navigate the justice system efficiently - allow self-represented parties to have a fair outcome Equality = - legal practitioners remove the disadvantage of self-representing Weaknesses: Access = - legal practitioners are expensive (small weaknesses) Fairness = - If the legal practitioner is less experienced, it may limit the possibility of a fair outcome Equality = - not all legal practitioners have the same level of expertise or experience - not all parties can afford legal representation

Question 44

What is a class action?

Answer 44

When seven or more people who all have similar claims against the same party, join together in a civil trial.

Question 45

What is a class action also known as?

Answer 45

A representative proceeding or group proceeding

Question 46

What are some characteristics of a class action?

Answer 46

- there is a lead plaintiff who is usually responsible for the costs of the proceeding and any potential adverse court orders if the class action fails - sometimes a law firm or litigation funder will undertake the costs instead of the lead plaintiff. - all members will share the costs if successful - all members share the remedy awarded.

Question 47

What needs to be considered when seeing whether a class action is appropriate or not?

Answer 47

- if a person is unfamiliar or intimidated by the justice system - whether there are seven or more people with similar claims - whether a plaintiff law firm or litigation funder is prepared to fund the claim to avoid a lead plaintiff having the burden of the costs. - whether someone is willing and able to be the lead plaintiff - the nature and size of the claim - whether one group member has suffered significantly more than other group members and may be prepared to conduct their own proceeding.

Question 47

What are the strengths of a class claim?

Answer 47

Access: - allows more wronged individuals to engage in a civil claim if their claim may be too small to pursue individually - group members be more inclined to engage if they are unfamiliar or intimidated by court processes - more efficient as the court will not have to look at each claim individually - use of litigation funder s & plaintiff law firms prevents the cost of losing, therefore more people may engage Fairness: - class actions allow more evidence to be presented - the courts oversee any settlements with litigation funders as well as approving legal costs and fees Equality: - each group member is equally rewarded part of the remedy - if the class action is successful, each member is equally responsible for the costs of court & legal representation and it is taken out of the remedy/damage they gain.

Question 48

What are the weaknesses of a class action?

Answer 48

Access: - some wronged parties may not be aware a class action was initiated & will not gain compensation - class actions impose a large cost burden on the lead plaintiff - class actions usually take up a significant portion of the courts time and resources - some members may not get adequate or up-to-date information about the proceeding Fairness: - Juries aren’t used in Federal court - class actions take up a lot of time and resources of the lead plaintiff Equality: - if the class action fails, the lead plaintiff bears all the costs of the proceeding and any potential adverse court orders.

Question 49

What is Consumers Affairs Victoria (CAV)?

Answer 49

An organisation that provides information about consumer law and free dispute resolution methods, as well as ensuring that business are complying with consumer law.

Question 50

What are the purposes of CAV?

Answer 50

- To inform Victorians about consumer law - To resolve disputes regarding consumer law & legislation.

Question 51

What is CAV’s jurisdiction?

Answer 51

- Disputes between business and consumers, purchasers &suppliers and consumer &suppliers. - Disputes between tenants and landlords.

Question 52

What is the dispute resolution method CAV uses?

Answer 52

Conciliation

Question 53

What needs to be considered when deciding if CAV is appropriate?

Answer 53

- whether the dispute is within CAV’s jurisdiction - whether the parties have tried to resolve the dispute on their own - if the parties are willing to compromise and negotiate - whether a legally binding decision is needed or wanted - whether the dispute has already been ruled on by the courts - whether the consumer is disadvantaged - whether the party would prefer the formality of court - whether the case is complex and large.

Question 54

What are the strengths and weaknesses of CAV?

Answer 54

Strengths= Access: - CAV conciliation services are free - CAV services are informal - CAV offers dispute resolution methods over the phone/online Fairness: - parties are able to come to their own agreement/outcome - less intimidating than court Equality: - both parties have equal opportunity to present their side of the story - no legal representation needed Weaknesses= Access: - CAV is limited to their jurisdiction - not appropriate for large cases Fairness: - not legally binding - CAV has no power to enforce the outcome Equality: - there may be power imbalances present - no legal representation is required (one may chose legal representation while the other may self-represent)

Question 55

What is The Victorian Civil and Administrative Tribunal (VCAT)?

Answer 55

A dispute resolution body that only hears disputes within its divisions. They aim to be less formal, cheaper and more efficient than courts.

Question 56

What are the purposes of VCAT?

Answer 56

Low cost: - parties only need to pay a small amount to file their claim - VCAT has a tier/3 levels of fees: corporate, standard and health care card holders that requires health care card holders to pay less while corporate to pay more - there are no hearing fees for many claims - parties are able to represent themselves Accessible: - VCAT conducts hearings in various location in Victoria - VCAT allows people to make application online - VCAT conducts hearings online - VCAT is less formal and easier to understand as there is less legal jargon Efficient: - VCAT constantly aims to reduce waiting times for the parties to have their disputes heard more efficiently - an average dispute takes only around 4 weeks to resolve - VCAT generally does not use pre-trial procedures or formal procedures Independent: - VCAT’s members are independent and will act as unbiased adjudicators.

Question 57

What is VCATS jurisdiction?

Answer 57

- Residential tenancies (disputes between tenants & landlords, house owners & residents, etc) - Administrative (professional conduct inquires & application s from people seeking a review on decisions made by government & other authorities) - Civil (civil disputes relating to consumer matters, building works, retail tenancies and sale & ownership of property) - Human rights (matters of guardianship, equal opportunity, discrimination, health & privacy information, disability matters and decisions made by the Mental Health Tribunal) - Panning and environment (reviews of decisions made by council or other authorities) VCAT cannot hear class actions

Question 58

What are the dispute resolution methods used in VCAT?

Answer 58

- Mediation - Compulsory conferences (use a conciliation method) - A final hearing (if the matter has not been resolved in mediation or the compulsory conferences) (is legally binding as a VCAT member will make a decision)

Question 59

What appeals can be made regarding VCAT?

Answer 59

Appeals on question of law only.

Question 60

What needs to be considered when deciding the appropriateness of VCAT?

Answer 60

- whether the dispute is within VCATs jurisdiction - the nature of fees & whether the applicant is able to pay the fees - whether the parties are able to negotiate - whether the parties need/want a legally binding decision - whether the parties don’t want the formality for court - whether the parties want a greater option for appeals

Question 61

What are the strengths of VCAT?

Answer 61

Access: - VCAT is less formal than court - VCAT is cheaper than court - VCAT is faster and more efficient - VCAT has high flexibility and is available in multiple locations - VCAT has a wide jurisdiction compared to CAV - VCAT has multiple dispute resolution methods if the others fail - VCAT’s level of fees allows health care card holders to engage. Fairness: - During the mediation & compulsory conferences, the parties are able to come to their own agreement/outcome - The decision made in the final hearing is legally binding - the mediator, and VCAT members facilitate and ensure fairness in the processes Equality: - both parties are able to present their side of the story & wants/needs. - both parties are able to present their case at the final hearings - legal practitioners are not required - the level of fees removes the disadvantages from health care card holders.

Question 62

What are the weaknesses of VCAT?

Answer 62

Access: - there are fees parties are required to pay for a claim through VCAT - it may be too informal (some may not feel comfortable with the lack of formal procedure) - decisions can only be appealed on question of law - VCAT orders will need to be enforced by the courts which may cause delays - VCAT can only hear cases within its jurisdiction Fairness - the mediator is only able to facilitate - mediation and conciliation of the compulsory conference are not legally binding - decisions can only be appealed on question of law Equality: - language barriers can impose disadvantages - some people may not be able to pay the fees - legal representation is not required = if one party chooses to be supported by legal representation, the other party becomes disadvantaged

Question 63

What is the jurisdiction of the courts?

Answer 63

Magistrates = up to $100 000 with no appeals County = unlimited jurisdiction (from $100 000) with no appeals Supreme Court - trial division = unlimited jurisdiction (from $100 000) with appeals from VCAT and Magistrate on questions of law Supreme - court of appeal = appeals from county and Supreme Court on questions of law, fact and the remedy awarded.

Question 64

What is VCAT’s exclusive jurisdiction?

Answer 64

Domestic building disputes, residential tenancies disputes, retail tenancies dispute & planning disputes.

Question 65

What needs to be considered when deciding if the courts are appropriate?

Answer 65

- whether the dispute falls within the court’s jurisdiction - the complexity of the case/claim - if it is a class action - if the individual can afford costs of court - if the parties want more expertise in more complex cases - whether the party wants the dispute to be private or public - if the parties want more options of appeals - if the parties are comfortable with the formalities of court

Question 66

What are the strengths of court?

Answer 66

Access: - various pre-trial procedures can allow parties to reach an agreement before trial, potentially saving the costs, time and stress of a trial. - the pre-trial procedures allow the parties to be informed of the evidence and claim against them - the courts allow a jury to participate in the trial - courts allow the engagement of a class action - courts hierarchy reasons of administrative convenience reduces delays Fairness: - courts have a legally binding decision - courts are impartial and open - the use of juries (an impartial cross section of the public) can ensure a fair outcome Equality: - both parties have the same opportunities to present their case - both parties have the same opportunity to pay for a jury.

Question 67

What are the weaknesses of the courts?

Answer 67

Access: - cases taken to court often suffer delays - courts have lots of costs the parties must pay - court procedures are complex and hard to understand - court has high formality and legal jargon - court can be stressful and intimidating Fairness: - court processes can be intimidating, preventing parties from participating and getting a fair outcome - impossible to remove all bias (small weakness bc judges have expertise in being impartial) Equality: - costs of trial can disadvantage a party of low socio economic status such as legal representation - due to costs associated with a jury, a party may not be able to pay - due to the complexity of court procedures, one party may not be as knowledgeable as the other party.

Question 68

What are costs of the civil justice system?

Answer 68

The civil justice system consists of several costs such as legal representation, court costs & disbursements associated with engaging expert witnesses/mediators and filing & hearing fees, the use of juries, adverse court orders and cost of appeals. In VCAT, there are also fees for filing a claim and the use of a level/tier of fees: corporate, standard and health care card holders. In CAV, the services are free, therefore there are no costs.

Question 69

What are the measures to address costs?

Answer 69

- the use of CAV - the use of VCAT - the use of dispute resolution methods - pre-trial procedures - bodies & organisations in Victoria that provide pro bono assistance (they provide assistance for free) - legal aid

Question 70

What are the strengths and weaknesses of costs?

Answer 70

Strengths= Access: - CAV dispute resolution services are free - VCAT’s tier of fees allows health care card holders to engage Equality: - VCAT’s tier of fees removes the disadvantage of not being able to pay from health care card holders Fairness: - Adverse court orders prevents the defendant from suffering financial loss for an unsuccessful claim Weaknesses= Access: - costs can prevent people from engaging - costs can prevent juries from engaging or parties having access to juries Equality: - costs of legal representation can cause disadvantage (small weakness) Fairness: - costs for jury prevents a jury which is an unbiased cross section of the pubic from deciding liability, lessening the chance of a fair outcome.

Question 71

What are the factors that affect time regarding the civil justice system?

Answer 71

The time it takes for the courts, VCAT and CAV can vary greatly depends on the complexity of the case, the type of claim, the number of parties involved and where the claim was issued. - Backlogs and delays - Pre-trial procedures - evidence gathering and preparation - administrative convenience - judge management - dispute resolution methods (which is also encouraged by the courts) - dispute resolution bodies (VCAT & CAV) - limitation of actions

Question 72

What are the strengths regarding time?

Answer 72

Access: - VCAT aims to resolve disputes efficiently & reduce delays, promoting people to access. - administrative convenience can reduce delays - dispute resolution methods resolve disputes more efficiently than court - despite the delays that occur, parties can use the time to inform themselves more about the legal system Fairness: - despite the delays that occur, parties can use the time to inform themselves more about the legal system - administrative convenience allows the courts to allocate an amount of time and certain resources that can better achieve a fair outcome. Equality: - rules that aim to reduce delays applies to all cases and parties

Question 73

What are the weakness regarding time?

Answer 73

Access: - delays & backlogs can deter people from engaging - pre trial procedures adds to the already lengthy process - limitations of actions can prevent people from engaging - evidence gathering & preparation can produce more delays to complex cases Fairness: - delays diminishes the strength of evidence which impacts the party’s ability to present their case in the best possible light - delays prevent a party from participating, therefore not gaining a fair outcome - delays can increase the stress & anxiety of a trial Equality: - judges may manage certain cases quicker than others - more complex cases that suffer more delays than less complex cases.

Question 74

What is a remedy?

Answer 74

Is any order made by a court designed to address a civil wrong or breach.

Question 75

What is the purpose of a remedy?

Answer 75

To restore the plaintiff to their original position.

Question 76

What are the types of remedies?

Answer 76

- Damages = monetary payments awarded by the courts to compensate the plaintiff for loss or injury caused by the wrongful acts of the defendant. - Injunctions = court orders directing a party to do or stop doing something to prevent any further harm to the plaintiff.

Question 77

What are the types of damages?

Answer 77

- Compensatory damages = an amount of money awarded to the plaintiff to compensate for the loss suffered. - Exemplary damages = a large monetary value to punish the defendant for an extreme infringement of rights and to deter others from undertaking similar actions - Nominal damages = a small amount of money awarded to show that the plaintiff was legally right (usually valued at $1)

Question 77

What are the types of compensatory damages?

Answer 77

- Specific damages = aims to compensate the plaintiff for losses that are quantifiable meaning they have a precise value. (Loss of income, medical bills, etc) - General damages = aims to compensate the plaintiff for losses that are non-quantifiable and does not have a specific value. (Injury, pain & suffering) - Aggravated damages = further compensation when the plaintiff has suffered humiliation, embarrassment or insult due to the defendants actions.

Question 78

What purposes do the damages not achieve?

Answer 78

Compensatory damages: - specific = does not remove the harm suffered - General = you cannot place a value on pain and suffering that all plaintiffs believe is sufficient - aggravated = cannot remove the humiliation suffered Exemplary damages: cannot reverse the harm suffered Nominal damages: very little monetary compensation for infringed rights

Question 79

What purposes do the damages achieve?

Answer 79

Compensatory damages: - specific = returns the plaintiff back to their original financial position - general = compensates the offender for the harm suffered - aggravated = additional sum of money to recognise humiliation Exemplary damages: punishes the defendants and deters others Nominal damages: recognises the plaintiff’s infringed rights

Question 80

What are the types of injunctions?

Answer 80

- Interlocutory injunction = is a temporary injunction that is awarded quickly and in urgent situations to avoid any further harm. - Perpetual injunction = are permanent injunctions - Mandatory injunction = forces a party to do something - Restrictive injunction = prevents a party from doing something

Question 81

What are the purposes of injunctions?

Answer 81

- to rectify and change the situation for the benefit of the plaintiff - to restore the plaintiff to the position they were in before the defendant infringed their rights - to prevent further harm to the plaintiff

Question 82

What purposes do the injunctions achieve?

Answer 82

Mandatory = the defendant is forced to complete an act to benefit the plaintiff Restrictive = the defendant must stop doing an action, preventing harm to the plaintiff

Question 83

What purposes do the injunctions not achieve?

Answer 83

Mandatory = the change has occurred too late to prevent the plaintiff from suffering harm because of the defendant. Restrictive = harm may have already occurred to the plaintiff, proving to limit the benefit.