U3 AOS2 - The Victorian Civil Justice System Flashcards
(129 cards)
1
Q
what is the burden of proof in a civil case?
A
Burden of proof refers to the responsibility of a party to establish the facts of a case and it lies with the person who is bringing the case, thus, in a civil case the burden of proof falls on the plaintiff.
Burden of proof may fall on the defendant when, for instance, they make a counterclaim against the plaintiff, and thus have the onus of proving that claim. Further, if a defendant raises a defence they also have the responsibility to prove that defence
2
Q
what is the standard of proof in a civil case?
A
Refers to the strength of evidence required to prove a case. In a civil dispute, the plaintiff must prove the case on a balance of probabilities. This means that the party must prove that they are most likely in the right and the other party is in the wrong.
3
Q
what is a representative proceeding?
A
Representative proceedings occur when a GROUP of people who all have claims against the same party join together to commence a civil action.
This can be commenced if: Seven or more people have claims against the same person; Those claims relate to the same, similar or related circumstances; The same issues need to be decided.
The person who commences the representative proceeding on behalf of everyone else is the lead plaintiff. The others are known as group members. The lead plaintiff does not need the consent of the group members or need to know who they are.
4
Q
what are five advantages of representative proceedings
A
- It is a more efficient way of the court dealing with a number of claims, thus saving the time of the court and its personnel. Streamlines the process. (A)
- People can pursue civil actions that they may be unable to afford in an individual case, thus increasing access (E,A)
- Person who joins a class action does not have to personally attend trial, give instructions to lawyers, evidence, pay (A)
- Range of claims brought that would otherwise not have been pursued (F)
5.Can level playing field when against big business (E)
5
Q
what are four disadvantages of representative proceedings
A
- after legal fees are paid, settlement is reduced and group members may receive very little (F)
- unmeritorious claims may be more easily pursued (F)
- They limit the ability of individuals to control the proceedings (A,F)
- It can be difficult for a single class action to represent the needs of all the individuals involved as there are many nuances in the cases for individuals. (F,E,A)
6
Q
what are the five factors to consider when initiating a civil claim
A
NEGOTIATION OPTIONS, COSTS, LIMITATION OF ACTIONS, THE SCOPE OF LIABILITY AND ENFORCEMENT ISSUES
7
Q
what are negotiation options/why should plaintiffs consider it? (civil)
A
Plaintiffs must consider whether the dispute can be resolved outside of court or tribunal. In some circumstances, it may be appropriate for a plaintiff to try negotiate a resolution directly with the defendant without initiating a claim.
May be done with or without representation with a third party like a mediator OR through a dispute resolution service.
8
Q
when may negotiation not be an option?
A
if one of the parties is not interested in negotiating or doesn’t want to resolve a dispute.
if there have already been failed attempts at negotiation.
if there is distrust between the parties or one party has been threatened or harmed by the other.
if it is unlikely that a negotiation will have a successful outcome eg. plaintiff requests are unreasonable or if there is urgency in dispute being resolved in court
if there is a significant power imbalance between parties = inequality.
9
Q
what are four advantages of negotiation? (civil)
A
The costs, time, and stress involved in commencing a formal civil action may be avoided. (A)
Ongoing relationship (A)
Parties have control over the outcome as opposed to it being decided by a third party. Eg. they can choose how to negotiate, in what setting, and what they’re prepared to accept as an outcome (A)
Parties may be more inclined to accept an outcome that they’ve been involved in reaching. (F)
10
Q
what are four disadvantages of negotiations? (civil)
A
Absence of strict rules may allow one to dominate the other and obtain an outcome they wouldn’t otherwise (F,E)
Not binding unless deed of settlement signed (F)
Private (F,A)
Mediator doesn’t have expertise in area of law, just conflict resolution (f)
11
Q
what costs may a plaintiff have to consider when initiating a claim? (civil)
A
Fees for legal representation: engaging a solicitor and barrister is costly, and often in court cases a party will engage both.
Disbursements: Issuing a claim will incur a number of disbursements ie. out of pocket expenses. Such as court fees,
mediation fees: (courts will often order parties to undergo mediation when they initiate a claim in court. Mediator fees can be anywhere between $2000 - $20,000)
expert witness fees: plaintiffs’ claim may require an expert opinion. Eg. medical expert
Adverse cost orders: If a plaintiff takes a claim to court, and is unsuccessful, not only will they have to pay their court fees, they may also be ordered to pay a portion of the defendants costs
12
Q
advantages of having costs factors to consider? (civil)
A
Courts have discretion when ordering payment of costs, will only do so if reasonable to be compensated (F)
Adverse court orders ensure that person who was accused of being in the wrong, but is found right, is not impacted (F)
13
Q
disadvantages of having cost factors to consider? (civil)
A
Adverse costs orders usually don’t reimburse for all costs because they’re based on a ‘standard’ rate. Not fair as system determined individual the right but they’re still affected (F)
Costs can be very prohibitive to those wishing to issue a claim, especially to those of low socio-economic status (F,E)
Can reduce equality when one has greater opportunity to bring a case/win a case eg. better representation (E,F)
14
Q
what is limitations of actions?
A
Refers to the restriction placed on the time in which a civil action must be commenced. Once that time period has passed the defendant may be able to raise a defence that the plaintiff is out of time.
There is different limitation periods for different types of claims eg. defamation claims have 6 months whilst breaches of contracts have 6 years. This is outlined in the
Limitations of Actions Act 1958 (vic).
Once the limitation period has lapsed, a plaintiff is barred from obtaining any remedy.
15
Q
what are five advantages of limitations of actions? (civil)
A
Time frame makes sure evidence is reliable and accurate so people can still remember what happened (F,A)
Prevents backlog of cases as courts not inundated with historic claims (A)
Some cases where it is highly necessary. For defamation claims, it is necessary for a one-year limitation period to be imposed because the court is required to assess the damage the defamation has done to the person’s reputation as it stands at the time.
Social cohesion promoted because resolution accessible ASAP (A)
Defendant doesn’t have to face action after significant amount of time (F)
16
Q
what are three disadvantages of limitations of actions? (civil)
A
Time limit may prevent harmed plaintiffs from pursuing their rights (F,A)
Pressure to initiate claim when people aren’t ready, although recent change accounts for some of cases this may happen (F,E) eg. sexual assault cases have no limitations of actions
May mean breach of rights goes uncorrected if they run out of time (F,A)
17
Q
what is scope of liability? what must plaintiff consider? (civil)
A
plaintiff must consider who they should actually initiate a claim against and to what extent they’re liable
18
Q
scope of liability - possible defendants? (civil)
A
Employers: principle of vicarious liability means that an employer may be liable for the actions of an employee. In order to do this, the plaintiff must establish that the employee was an employee and there is some correlation between the act and the employer.
Persons involved: if someone aided, abetted, or procured the wrong doing, induced or urged it, were in any way directly or indirectly involved, or conspired with others about wrong doing, it is known as accessorial liability. The plaintiff may decide to sue somebody else who was involved in the wrongful act.
19
Q
scope of liability - extent of liability? (civil)
A
Defendants may argue that if they are found liable, they are only responsible for a part of the plaintiffs loss or damage.
Eg. in negligence claims, the defendant might try to claim contributory negligence, meaning they try to prove that the plaintiff was partially responsible. If they’re successful, then the defendant’s liability is likely to be reduced. They may also argue that someone else was liable and thus try to reduce their liability.
20
Q
what are enforcement issues? (civil)
A
If the court orders the defendant to pay a sum of money the plaintiff must consider if the defendant actually has the capacity to pay and if so, if they will. Plaintiff may have to issue enforcement proceedings to force defendant to comply with remedy
The plaintiff must consider:
If the defendant is bankrupt, so they don’t have any assets or money to pay anything to the plaintiff; if the defendant is in jail there may be difficulty in enforcing the remedy; if the defendant is a company that has no assets; if the defendant is overseas and uncontactable; plaintiff does not know who the defendant is.
21
Q
what is consumer affairs victoria? (civil)
A
Australia’s consumer affairs regulator. Advises Victorian government on consumer legislation, provides information to educate people about consumer laws, enforces compliance with consumer laws and provides people with a dispute resolution process by being a complaints body.
CAV mainly uses conciliation to resolve disputes, and if parties come to an agreement they sign a terms of settlement which then may be enforceable through a court if one party does not comply.
22
Q
what is the purpose of CAV? (civil)
A
Ensure that businesses comply with consumer laws
Advise the Victorian government on consumer legislation
Provide information and guidance to educate people about consumer laws
Provides consumers and traders, landlords and tenants, with a dispute resolution process.
Help people settle disputes efficiently and constructively without any cost and assist them with resolving their dispute without imposing a binding decision
Ensure that any inappropriate conduct is stopped and help any party that has been wronged to seek compensation for any loss they have suffered.
23
Q
when is CAV appropriate? (civil)
A
GIven CAV’s specialisation and expertise in consumer matters, it is likely to be appropriate in the resolution of disputes between consumers and businesses.
It is appropriate for disputes within its jurisdiction, such as disputes about the supplies of goods and services, residential, retirement villages, and owners corporations as it has the specialised knowledge to do so.
Additionally, the use of conciliation makes it very appropriate for resolving disputes between tenants and landlords as an ongoing relationship is often required between these two parties despite the dispute.
24
Q
when may CAV be inappropriate? (civil)
A
Since it specialises in resolving disputes between consumers and businesses, landlords and tenants, it is unlikely to be appropriate for other types of disputes as it would lack the knowledge and resources as they’re outside its jurisdiction.
cases where there is great hostility between the parties, or if one party is unlikely to take conciliation seriously, or may not show up. In such matters, conciliation likely wouldn’t work and an adversary approach used by another dispute resolution body is likely to be more effective in resolving the dispute.
if the case is extremely big and complex.
If a party prefers the formality of the tribunal or court processes
25
what are four strengths of CAV? (civil)
1. CAV’s conciliation is free, meaning that it is accessible to all Victorians, regardless of their socio-economic background or financial situation. (A,F,E)
2. CAV conciliation ensures that parties reach a decision themselves so they’re more inclined to accept the outcome as opposed to having one forced on them by a greater body (E,A)
3. Conciliation process is informal and can be conducted over the phone which removes the stress and anxiety that comes with courtroom formalities. (A,E)
4. CAV assesses cases individually which reduces the waste of time and resources on disputes that are unlikely to settle. (A)
26
what are five limitations of CAV? (civil)
1. CAV’s role is largely limited to mainly consumer and landlord disputes, so they have no power to assist with many other types of disputes, and if there is a matter that is partly in their legislation, and partly in another bodies legislation, they’ll refer it to the other body (A)
2. CAV has no power to enforce any decisions reached by the parties in conciliation. Unless they enter into a binding agreement, then one may just ignore it, meaning nothing is solved. (A,F)
3. No powers of compulsion so willing party might not be able to use services (A,F)
4. The informal nature of the conciliation process and lack of a binding decision may mean that a party won’t take the matter seriously which wastes time and is unfair for willing party (A,F)
4. CAV is inappropriate for large and complex disagreements, which may be better suited to a court or tribunal which has greater expertise. (A)
27
what is VCAT? (civil)
VCAT is an independent tribunal which determines a number of civil law matters. It uses informal processes and the decisions made are legally binding and enforceable through the courts.
28
what are VCATs five divisions? (civil)
administrative
civil
human rights
planning and environment
residential tenancies
29
what three methods does VCAT use?
Mediation: Although it's not legally binding, in most situations a deed or terms of settlement is drawn up once parties reach a resolution which is then enforceable through the courts.
Compulsory conferences: confidential meetings in which parties discuss a resolution to their dispute in the presence of a VCAT member. This uses a conciliation process and the VCAT member may suggest forms of settlement.
Final hearing: if the matter is not solved at mediation or compulsory conferences it will go to a hearing where parties can present their cases and a VCAT member will oversee it and impose a binding agreement on them.
30
what are the four purposes of VCAT? (civil)
To provide cost effective dispute resolution
To provide accessible dispute resolution
To provide timely and efficient dispute resolution
To provide specialised and independent dispute resolution
31
how is VCAT cost effective?
Fees for filing a claim are minimal eg. filing fee is under 100 compared to filing a writ in court which is $850
Most parties (80%) represent themselves which saves the cost of legal representation
Three tier payment scheme with a lower cost for concession holders, and higher for corporations
32
how is VCAT accessible?
There aren't strict rules of evidence and procedure and it uses a less adversarial approach so it's more informal.
It conducts hearings in over 35 locations across metro and country victoria.
Offers telephone and video conferences in place of attending the tribunal which allows people to make applications online and conduct hearings online
33
how is VCAT timely and efficient?
small time gap between filing and hearing and without the significant time delays that burden courts
VCAT constantly aims to reduce waiting times which makes the process more efficient
34
how is VCAT specialised and independant?
Each VCAT list operates with it's own specialised jurisdiction
High quality dispute resolution because personnel develop
expertise and advance their knowledge in a particular area of law
It's members are independent and will act as unbiased adjudicators
35
when is VCAT appropriate?
Given specialisation divisions and lists it's appropriate for a vast no. of civil cases. Does not have exclusive jurisdiction like CAV.
It is beneficial for disputes where the parties require a prompt and low cost resolution.
It's informality makes it appropriate for civil disputes where a party may be particularly prone to being intimidated by courts
36
when may VCAT be inappropriate? (civil)
Its jurisdiction makes it unable to hear disputes between people who are not connected with Victoria.
It cannot hear some civil cases such as: representative proceedings; disputes between employers and employees; disputes between neighbours (unless about an owners corporation); disputes between drivers in car accidents.
Arguably, it's inappropriate for VCAT to hear matters involving lengthy and complex evidence and questions of law as these are more appropriately handled by the courts, which have the legal expertise and time.
37
what are five strengths of VCAT?
1. It is cheaper than courts due to low application and hearing fees and there are no expensive pre-trial procedures. (A,E)
2. Offers speedy resolution of disputes eg. the busiest list has an average time of 3 weeks (A)
3. Each list operates its own specialised jurisdiction resulting in personnel developing expertise. (F,A)
4. A decision made in a final hearing is binding which means it's enforceable. (F,A)
5. Parties are encouraged to reach a decision themselves when referred to mediation or CC. Can have a voice and autonomy, not outcome enforced by greater entity (E,A)
38
what are four limitations of VCAT?
1. The increased use of legal rep is making costs of taking a matter to VCAT as high as Courts, and some changes to fees are making fees for some lists more expensive. (A,E)
2. Some lists have considerable delays, particularly in the Planning and environment list. (A,F)
3. Some VCAT members are not judicial officers, meaning they may be casual, sessional with less experience. (F)
4. VCAT orders will still need to be enforced through the courts, which takes a little longer. (A)
39
what are three differences between VCAT and CAV?
Resolutions predominantly reached using conciliation (CAV), whereas VCAT uses conciliation, mediation and final hearings.
Third party in CAV does not make decision, but offers suggestions, whereas if dispute proceeds to a final hearing in VCAT third party will listen to evidence and make a legally binding decision
No room for appeals in CAV, but VCAT can appeal on a point of law
40
what are pleadings? (civil pre trial procedures)
a pre-trial procedure during which documents (eg. writs and notice of appearance) are filed and exchanged between the plaintiff and defendant and which state the claims and the defences in the dispute. Statement of claim and defence
PURPOSE: ensures both parties are fully informed, avoids taking a party by surprise, gives court a written record, sets limit to a dispute, encourages and out of court settlement
41
what is discovery of documents? (civil pre-trial)
a pre-trial procedure which requires the parties to list all the documents they have that are relevant to the case. Copies of documents are provided to the other party. EG. medical records if the plaintiff has claimed physical or psychological injury, or emails if the plaintiff has claimed to have suffered abuse and humiliation in the workplace via email.
PURPOSE:
disclose all relevant docs, reduce element of surprise, allow parties to see strength of other side, ensure court has all docs, encourage an out of court settlement
42
what is exchange of evidence? (civil pre-trial)
When evidence is given eg. lay evidence can be given by written statement or orally and expert evidence eg. medical pros
ALso there is examination of witnesses (examination in chief (where questions are put to the witness by the person who brought them), and cross examination
43
what are the four purposes of civil pretrial procedures?
To encourage an out of court settlement:
- enables parties to control the outcome of their case and reach a decision that benefits them both; it saves the parties a substantial amount of time and money; it spares the parties and any witnesses the stress and inconvenience of going to court.
Eg. MEDIATION: is generally a compulsory civil pre-trial procedure.
EG. PLEADINGS: can assist in reaching an out of court settlement when appropriate. Eg. if a claim or defence is so compelling, it might force the other party to pursue a strategy to settle the claim before a trial.
EG. DISCOVERY: can assist in reaching an out of court settlement if particular documents are compelling enough.
To provide the courts and parties with key information:
- give the plaintiff information relating to the defence and the defendant info regarding the claim (thus ensuring they’re on equal footing). They also provide the court with info about the case before it begins which allows them to better allocate resources.
Eg. PLEADINGS: by requiring the parties to state their main defences and claims, they achieve procedural fairness by ensuring the other side knows the claim or defence against them. It also gives the court a written record which allows them to understand the case so it can manage the trial procedures.
Eg. DISCOVERY: reveals all the relevant documents to the other side so that both parties have access to the documents, thus ensuring fairness in the process. Also ensures that the court has all the relevant material and documents required to achieve a just outcome (some docs will then be submitted into evidence).
Eg. EXCHANGE OF EVIDENCE: evidence is disclosed by writing before the trial.
To allow the parties to determine if a trial is worthwhile:
- Info provided can assist them in determining whether it's worth the time, money, and effort.
Eg. DISCOVERY: allows parties to see the strength of the other side's case and their own likelihood of success. They may decide that the evidence against them is so substantial that they would be better off setting with the other party rather than go to trial.
Eg. EXCHANGE OF EVIDENCE: allows each party to determine the strength of the other side's evidence and decide whether they are likely to be successful or if they’re better off setting with the other party.
To speed up the dispute resolution process:
- allows disputing parties to get back to their lives as soon as possible and save them the money and reduces their time away from employment. It also inadvertently reduces the backlog of cases and allows courts to allocate more time to other cases.
Eg. DIRECTIONS HEARINGS: are pretrial procedures that help speed up the process. They are conducted by a judge and serve to clarify and resolve any issues before the trial begins and give the parties instructions and time limits regarding the future conduct of the case, thus saving time.
44
what is administrative convenience? (civil)
The existence of a court hierarchy allows for civil law cases to be distributed according to their complexity and seriousness. This means that the higher courts (eg. Supreme court), hear the more serious, lengthy, and complex cases, whilst lower courts (eg Magistrates) hear the minor less complex cases that must be dealt with quickly and efficiently.
In turn, this reduces delays by allowing minor civil cases to be dealt with quickly without having to wait for the lengthier civil cases, whilst also allowing higher courts to more easily allocate their time, to make way for the more complex cases
45
why are appeals a reason for court hierarchy (civil)?
The existence of a court hierarchy allows for the system of appeals to operate. The court hierarchy means that a plaintiff or a defendant can have their case or the imposed remedy reassessed by a higher, more superior court if they believe the original decision was unjust. Thereby, providing fairness by providing the opportunity for unjust decisions to be corrected.
46
what are the responsibilities of judges in civil trials?
Manage the trial: judges must ensure that correct court procedure is followed so that the plaintiff and defendant have equal opportunity to present their case. Judge can also give directions and orders in a trial, ask witnesses questions to clarify evidence, and hand down rulings throughout trial where necessary (eg. deciding a point of law).
Decide on admissibility of evidence: must decide which evidence is to be permitted, and can exclude evidence from the trial, thus ensuring fairness.
Attend jury matters (if there is one): may need to address the jury during trial, give directions, and sum up the case.
Determine the liability and remedy (if no jury): must decide based on the balance of probabilities whether the plaintiff has adequately established a claim against the defendant and impose a decision in favour of plaintiff or defendant. If they have ruled in favour of the plaintiff, they must determine the relevant remedy to be ordered.
47
what are four strengths of judges in a civil case?
1. Expert who acts as impartial umpire ensuring that fair trial ensues and parties treated equally. (E,F)
2. Significant powers of case management ensure just, timely and cost-effective resolution of issues in dispute – neither party uses bad faith strategies designed to unfairly disadvantage its opposition (E,F)
3. Assists self-represented (F,E,A)
4. Judges will usually decide on facts, liability and remedies which makes sense as they’re most expertised. (F,A)
48
what are four limitations of judges in civil trials?
1. Doesn’t overly interfere in procedure and cannot extend to acting for self-represented party or assisting a party whose representation is performing poorly (E)
2. May have unconscious biases and significant role who rules on liability and remedies in most cases (F)
3. Judge’s expertise not utilised fully. Given that the judge is probably the most expert legal mind in the court, knowledge to some extent is wasted as they play a more passive role. For example, can’t help with preparation of evidence (F,A)
4. May overly interfere, risking a mistrial (F)
49
what are the responsibilities of juries in civil trials?
Be objective: the jury is responsible for being unbiased and putting aside any prejudices they may have
Listen to and remember evidence: jurors must ensure that they concentrate on what is taking place in the courtroom and mustn’t undertake their own investigations.
Understanding directions and summing up: during trial the judge will give directions to the jury about issues or points of law and will sum up the case at the end. Jury must listen carefully.
Decide on liability: must reach a decision, in favour of one party on the balance of probabilities
Decide on damages: if the jury has reached a decision in favour of the plaintiff, they must choose the amount of damages to be awarded to the plaintiff and paid by the defendant.
50
what are 3 strengths of juries in a civil trial?
Majority/unanimous verdict means decision making is shared and more likely to be correct. Community standards applied (F)
Jury structure of cross-section of community members means those with prejudices balanced out by other jurors without those same biases so they don’t carry verdict (F)
randomly picked and thus less bias
51
what are 3 weaknesses of juries in civil trials?
Tend to be inconsistent and unpredictable in assessing damages as each person’s financial circumstances are different (F)
Many prejudices common across different groups in society so parties may not be treated as equal before the law (E)
Many potential jurors excused, ineligible or challenged. Pool of jurors considerably smaller and some types of people always excluded so not truly representative of cross section of society and thus not judged by peers (E)
52
what are three responsibilities of parties in a civil trial?
Make decisions about conduct of the case: party control means each party has autonomy over their case and makes decisions about how the case will be run as long as rules of evidence and procedure are followed. May decide whether trial by jury, for example or what claims will be made.
Discover relevant documents: ensure they hand over key documents during pre-trial procedures at earliest possible stage
Comply with overarching obligations: Civil Procedure Act 2010 (Vic) imposes 10 obligations on parties and their legal practitioners. Designed to improve standards of conduct, they include duties to act honestly, cooperate in conduct of proceeding, and use reasonable endeavours to resolve disputes
53
what are three strengths of parties in civil trials?
Party control enables parties to make decisions about evidence to put forward and submissions to make (A)
Party control gives them autonomy and means they’re able to interact with system (A)
VCAT can not allow a party to have representation so they’re on equal playing field if one can’t afford representation (F,E)
54
what are five weaknesses of parties in civil trials?
Depends on their abilities to present their case adequately. (F,E,A)
May be disadvantaged by lack of experience due to highly complex procedures (F,E)
Complexity may lead them to feel stressed and exacerbate vulnerabilities (E)
Party control may stress out party (F)
Unrepresented party may cause delays as judge has to stop and explain stuff (A)
55
what are four responsibilities of practitioners in civil trials?
Comply with their duty to the court: cannot mislead or deceive the court, cannot place incorrect facts before the court, must be honest about the cases they use in an argument. This duty is above their duty to their client.
Make opening and closing addresses: solicitor prepares submissions and barrister presents orally in court outlining case before and after evidence presented
Present case to the judge/jury: ask witnesses questions, make submissions about matters that arise in trial, present case. Must be in a manner that is in the best interests of their client as a conduct case on behalf of the party.
Comply with overarching obligations: subject to the same overarching obligations under the Civil Procedure Act 2010 (Vic) as clients are – need to act honestly. Should see their role as assisting the court in resolving a dispute rather than engaging in a ‘battle’ with the other side.
56
what are three strengths of practitioners in civil trials?
Saves courts time and money because they know the correct way to prepare documents, make submissions, elicit evidence and best arguments to make to allow court to hone in on significant issues (A,F)
Must act according to client’s best interests, and comply with overarching obligations (F)
Can help put an inexperienced party on equal footing by giving advice and assistance which can lead to a better outcome for them (F,E,A)
57
what are four weaknesses of practitioners in civil trials?
Lawyers may make processes even more adversarial in quest for the win (F)
Better legal representation may translate to a better outcome and justice may belong to party with better representative rather than the one in the right (E)
Can add to costs of the trial (E,A)
Are extremely expensive so people of low financial status who can’t afford representation will be disadvantaged to party with high quality representation (F,E)
58
what are the sources of case management powers? (civil)
the rules of the court (Magistrates’ Court General Civil Procedure Rules 2010 (Vic), the County Court Civil Procedure Rules and the Supreme Court (General Civil Procedure) Rules)
as well as the Civil Procedure Act 2010 (Vic).
59
what does case management mean? (civil)
Victorian parliament has passed laws that give powers to Victorian judges and magistrates to manage civil disputes in court. Courts must try to achieve the overarching purpose of facilitating just, efficient, timely and cost effective resolution, when exercising its powers. One way this is done is through judges and magistrates actively managing cases.
60
what is the power to order mediation? (civil)
The Civil Procedure Act 2010 (vic), gives judges and magistrates the power to make an order referring a civil proceeding to mediation.
This means that they can order that the plaintiff and defendant take part in mediation at any stage in the pretrial and/or trial process, They may refer one or a number of the issues in dispute at mediation, or just the whole dispute itself.
The Act also asserts that judges can make these orders without the consent of the parties.
The purpose of this is to assist the prompt and economical resolution of a dispute. The assistance of a mediator can encourage parties to realise that there is benefit to settling a dispute early and before trial, without the costs of a trial.
61
what is the power to give directions? (civil)
Judges also have the power to give directions to the parties. This is an instruction given by the court to one or more parties, which imposes an obligation on the party to do something. Eg. must attend court, must file a particular document.
The purpose is to minimise delays and ensure the parties know what procedures they must follow. Thus, they actively manage civil proceedings by giving directions before or during the trial. Penalties can be imposed on parties who fail to comply.
EG:
Directions before the trial:
Can include things like giving directions about the conduct of proceedings; timelines for any steps to be undertaken; partici[pating in any dispute resolution method; expert evidence etc.
Directions during the trial:
Directions about the conduct of the trial.
May include; orders about which evidence will be given and who will go first in addressing the court; limiting the time to be taken by a trial; limiting the examination of witnesses
62
how does case management achieve fairness?
The judge can give directions they think will ensure the proceedings a just and no party is favoured over the other eg. may limit the number of documents a party can use or prohibit some evidence from being entered.
63
how does case management uphold equality?
Both parties will be treated the same, attending the same hearings, and receiving the same directions. Judge is required to be impartial.
64
how does case management powers uphold access?
Identifies issues at the earliest possible point in the dispute, thus saving time.
Parties can be ordered by the judge to mediation which is more cost effective and timely than a trial.
65
how does case management NOT achieve fairness?
Case management powers rest with one individual, increasing the risk of bias or prejudice.
Looking for a speedy resolution may not lead to a just resolution
66
how does case management NOT achieve equality?
There are no precedents in pe-trial hearings, meaning all disputes may not be solved consistently.
67
how does case management NOT achieve access?
Ordering mediation may create further delays if it fails, thus limiting access.
67
what is mediation? What uses it?
Mediation is a joint problem-solving process in which parties sit down and discuss issues involved and try to reach an agreement through negotiation with the help of a mediator. Resolution not binding but may be enforceable if terms of settlement are entered into. The mediator is an impartial third party whose role is to facilitate communication between the parties.
courts can refer parties to mediation, VCAT often refers claims to mediation, individuals can attempt mediation at any time through private mediators
68
what are five strengths of mediation?
1. conferences last from a few hours to a few days. Can thus be resolved in a much shorter timeframe than going to court (A) . Also saves judicial costs, courtroom facilities, judgement writing time and reduction in stress on parties (A)
2. Informal and therefore appropriate where both parties are prepared to meet in a spirit of compromise. No rules of evidence and procedure. Parties not intimidated to tell their story and not disadvantaged based on experience (A,E,F)
3. Parties encouraged to resolve their own dispute and reach resolution together. Able to have an ongoing relationship between parties. Also more likely to be satisfied with an outcome as both parties have a say.(F,A)
4. Use of an independent mediator. Mediators are expected to act impartially and won’t take either side when they seek to help parties resolve the dispute. Independence and impartiality is a central feature of a fair process (F,E)
5. Costs split between parties and significantly less expensive than litigation/trial. May not require legal representation, could be free if conducted at Dispute Settlement Centre of Victoria (A)
69
what are five weaknesses of mediation?
1. If the mediation does not work and parties have to proceed to trial, it serves as merely a delay in the dispute being resolved. (A)
2. Informality and lack of procedure may mean not appropriate where overwhelming emotions might interfere with process. Resolution may also reflect an imbalance in bargaining power as informality taken advantage of (F,E)
3. Not binding so the party can renege upon agreement. Not appropriate if history of broken promises or need resolution (F)
(However, it can be turned into a terms of settlement which is enforceable by the courts)
4. Mediator may not have expertise in relevant field of dispute (F,E)
5. Still quite costly. Fees range from $5000-$15,000 per party (A)
70
what is conciliation? Who uses it?
A process of dispute resolution that involves an independent third party who has specialist knowledge in the particular type of dispute/civil law. They do not make a binding decision, but they listen to the facts and make suggestions and assist parties to make a mutual agreement. They assist by exploring solutions to the dispute and suggesting possible options. It differs from mediation in that the conciliator has more influence over the outcome and has specialist knowledge.
Used by courts, compulsory conferences at vcat, CAV, and private conciliators
71
what are five strengths of conciliation?
1. Tends to generate less ill-will between parties because must be less adversarial and focus is on cooperation. Can have an ongoing relationship (A)
2. Not as intimidating to parties because the conciliator leads discussion and gives advice. Also more informal and doesn’t require parties to adhere to strict rules of evidence so they are more comfortable to speak freely (A,F)
3. Autonomy to make decisions about what best suits them so more likely to be satisfied and comply (F)
4. Experts in the practical field of the dispute can advise about fair outcomes. They have specialist knowledge and thus are effective in offering advice. (F)
5. Don’t have to abide by rules of evidence and procedure so it is more timely and navigable. If a matter is resolved in conciliation it saves the time of the court and the parties. (F,A)
72
what are five weaknesses of conciliation?
1. Not binding or enforceable so any party can renege upon agreement, also because it relies on the willingness of parties to cooperate, one party may refuse to show up or may withdraw. (F)
2. Informality and lack of strict rules of evidence and procedure means it is not appropriate where one party is stronger, intimidating and manipulative. Resolution may also reflect an imbalance of bargaining power as informality taken advantage of (F,E)
3. Conciliation is only as successful as the parties to the dispute and skill of the conciliator allow it to be (F)
4. However, the conciliator is unable to impose a legally binding decision unless the parties enter into a terms of settlement so any party may renege upon agreement. (A,F)
5. Matter may not resolved and so will need to go to court anyway(A)
73
what is arbitration? who uses it?
A method of resolving disputes without a formal court process. An independent arbitrator who has specialist knowledge in the area of law the dispute falls under, and at the end they impose a binding decision called an arbitral award that is fully enforceable by the courts. The arbitrator is not bound by rules of evidence
Courts can refer cases to arbitration with consent, or in mags court without consent if under 10 grand, VCAT can also refer cases to arbitration, and there is private use
74
what are five strengths of arbitration?
1. Arbitration results in an arbitrator imposing a legally binding and enforceable decision so the parties cannot renege and must follow through on the outcome. (F,A)
2. The third party has a considerable amount of specialist knowledge in the area of law relevant to the matter as they’re required to have legal training (F,A,E)
3. Arbitration makes for a timely and less expensive method of dispute resolution than going through the courts, whilst still allowing for a binding decision to be imposed (A,F)
4. Does not have extremely strict rules of evidence and procedure so it makes the process less intimidating to parties (A)
5. generally held in private so it is beneficial for those wishing to avoid the publicity of a trial (A)
75
what are five limitations of arbitration?
1. However, it takes away the ability of parties to resolve the dispute themselves and one party may not be satisfied with the result. That is, one party wins at the expense of the other and is not a ‘win-win’ scenario, but a ‘win-lose’ (F)
2. There is a very limited scope for appeal in arbitration (A)
3. Still a lot more expensive and time consuming compared to mediation and conciliation (A)
4. However, compared to mediation and conciliation it can be far more damaging to the disputing parties relationship as it generally results in a winner and a loser (F,E,A)
5. Cannot be used to set precedent. Decisions may be inconsistent and parties not treated the same depending on dispute (E,F)
76
what disputes is mediation likely appropriate for?
Where parties wish to continue a relationship eg. between neighbours
Family law matters where the preservation of parties relationship is paramount (eg. for sake of children)
When both parties are willing to meet in compromise and are prepared to stick to an agreement reached.
Appropriate where the defendant had admitted liability and the only issue to be determined is compensation.
77
what disputes is mediation likely not appropriate for?
Where there are overwhelming emotions involved that can interfere with the negotiation process.
Where there is evidence of a significant imbalance of power between the parties eg. between boss and employee
History of dishonesty and broken promises between the parties as it required the good will and honesty of parties to be effective.
78
what disputes is conciliation likely to be appropriate for?
Where an ongoing relationship is required
Where both parties are willing to compromise and are eager for case to be resolved
Where both parties lack the time and money for a trial or hearing.
79
what disputes is conciliation likely not appropriate for?
Unlikely to be effective where there are a lot of emotions at play.
Gross imbalance of power between parties
History of broken promises and dishonesty
Where the matter is urgent
80
what disputes is arbitration likely to be appropriate for?
Effective for disputes involving less than 10K
Cases where dispute must be resolved ASAP
Where both parties lack the financial resources to pay for legal representation as the lack of rules of evidence and procedure makes it more navigable.
81
what disputes is arbitration likely not appropriate for?
Disputes with complex questions of law and considerable amounts of evidence as these are generally better suited for judicial determination.
Cases involving substantial amounts of money as an in depth trial may be safer.
Where parties have not agreed to a dispute
82
what is a remedy?
Remedy is a means through which the plaintiffs rights will be recognised and corrected following an infringement or injury.
Their overarching purpose is to restore the plaintiff, as far as possible, to the position they were in before the wrong occurred.
83
what are the purposes of remedies?
Compensate the plaintiff for the infringement of their rights if returning to their original position is not technically possible
To prevent the harm from occurring in the first place or from now on
To make the point that the plaintiff is legally in the right and/or to show that the defendant is in the wrong
To express courts disapproval that the claim was made, whilst still recognising that the plaintiff has a legal right to a remedy.
To punish the defendant for exceptionally bad conduct
84
what are damages?
Damages are an amount of money awarded to the plaintiff, to be paid to the defendant. The purpose of damages is to compensate the plaintiff for the losses suffered so as to return them to the position they were in before the defendant caused the harm. The types of losses may include, financial, physical, mental, or reputational loss.
85
what are compensatory damages?
damages which aim to compensate the plaintiff for the injury suffered to the extent that money is able to do so. Their purpose is to restore the plaintiff whose rights were infringed to the position they were in before the damage occurred by financially compensating them for losses suffered.
86
what are compensatory specific damages?
damages which can be given in precise monetary value and are easily quantifiable eg. medical expenses or loss of wages
87
what are compensatory general damages?
damages which will be assessed by the court according to the magnitude of the wrong done and its long term consequences. They are given as a general estimate as they are not easily quantifiable eg. damages for pain and suffering
88
what are compensatory aggravated damages?
additional compensatory damages which can be awarded to compensate the plaintiff further if the court believes the defendant's conduct also resulted in humiliation and insult to the plaintiff.
89
what are nominal damages?
damages awarded to the plaintiff of only a small amount of money. A plaintiff may be seeking to make a point that they are legally in the right but don't want a large sum of money in compensation.
The purpose is to demonstrate that the plaintiff is legally in the right and show that the defendant has infringed their rights, without awarding any substantial amount of damages. Eg. in a defamation case, nominal damages may be awarded if untrue statements were published, but little damage was done to their reputation.
90
what are contemptuous damages?
damages awarded to the plaintiff of only a small amount of money because despite having the legal right to damages, the court holds that the plaintiff does not have a moral right to damages, and doesn't deserve them.
The purpose is to express the courts disapproval of the plaintiffs claim, whilst recognising that the plaintiff has a legal, but not moral, right to damages.
91
what are exemplary/punitive damages?
damages of a significantly substantial amount of money, awarded to the plaintiff with view to making an example of the defendant and punishing them for engaging in reckless, malicious, or cruel behaviour which showed scornful disregard of the plaintiff's rights.
The purpose is to punish the defendant for their reckless, malicious, or cruel behaviour whilst also making an example of them and deterring them and others from replicating the behaviour.
92
what are two strengths of damages in achieving purposes?
Often able to return them to the financial position they were in prior to the harm where harm is financial. Particularly effective in cases where the specific value of the damage can be clearly identified such as debt owing.
Effective in penalising the defendant for infringing someone's rights
93
what are five weaknesses of damages in achieving their purposes?
1. Damages are awards of money. May financially restore them, but may be years after the event, meaning time, money and emotional effort has been spent on lawsuit. Damages cannot compensate for these factors
2. Cannot ‘restore’ the plaintiff if loss suffered is not pure economic loss but rather unquantifiable or irreplaceable. Reputation, physical limbs, loss of a loved one, mental illness are examples.
3. Sometimes the defendant is not able to pay the damages that are awarded so the order is futile. Can’t be compensated/restored.
4. Some Acts such as the Wrongs Act (1958) place restrictions on the amounts that can be awarded e.g. non-economic loss for a personal injury claim. This may mean plaintiffs are not fully compensated to the extent they deserve in relation to damage suffered.
5. Pursuit of damages encourages plaintiffs to pursue action only against wealthy defendants who might not be most culpable for harm. If a plaintiff takes action against a real wrongdoer, may never see damages paid.
94
what are injunctions?
Injunctions are court orders directing someone to stop doing a certain act, or compelling someone to do a certain act. Their purpose is to rectify the situation caused by the person who was found to be in the wrong by ordering them to do, or refrain from doing something.
95
what are restrictive/prohibitive injunctions?
an injunction which orders someone to stop, or refrain from doing something such as stopping someone from pulling down a building. The purpose is to stop or refrain someone from doing something so as to preserve the position of the plaintiff.
96
what are mandatory injunctions?
an injunction which orders a person to carry out a particular act, such as performing the part of the contract they have breached. The purpose is to order someone to do a certain act in order to rectify the situation.
97
what are interlocutory injunctions?
a temporary injunction that is awarded instantaneously and in circumstances where there is an urgent situation and action is required immediately.
The purpose is to preserve the position of the parties until the final determination of the matter. These are awarded prior to the beginning of the court case. At the final hearing it will either become permanent or be dismissed.
98
what are perpetual/final injunctions?
awarded at a final court hearing once the plaintiff and defendant have presented all of their arguments and evidence to the court.
The purpose is to preserve the position of the parties and/or rectify the situation over an extended period of time.
99
what are four strengths of injunctions achieving their purposes?
1. Have power to order defendants to perform concrete actions. Gives the plaintiff access to a meaningful outcome.
2. Recognises that not all human behaviour is best reduced to a monetary value. Depending on harm, a public apology may be more practical than a financial settlement.
3. May stop future harm that may be committed on top of any existing harm which has been caused. To not pursue an injunction in court would mean more painful consequences would be endured by the plaintiff than those which would likely be experienced by going to court, so well worth the time, stress and costs involved.
4. Can restore a plaintiff to original position by ordering the defendant to fulfil an obligation such as perform their part of a contract
100
what are four weaknesses of injunctions in achieving their purposes?
1. Court orders need to be enforced if the defendant fails to honour them. May not comply.
2. There is a fairly defined scope for court orders and this may not be flexible enough. Might reach a more appropriate outcome through mediation which employs negotiation.
3. Where actions of the defendant have already caused damage, an injunction will not restore the plaintiff for their loss.
4. May have already been damaged. May only be valid for protection from future harm/loss.
101
cost factors - what are legal costs? (civil)
Not everybody can afford legal representation. If one party is poorly represented, or not represented, this will negatively impact their ability to receive a fair outcome. However, senior counsel costs $8000-$10,000 a day. Most parties are unable to access legal aid as it is mainly spent on criminal and family law cases. Some assistance given to self-represented but cannot extend to advocacy.
Pre-trial procedures such as discovery can incur substantial costs especially in large commercial and complex cases. Thus many will be deterred from initiating or defending a court claim because they can’t afford it.
There are also court costs and disbursements. These are associated with engaging expert witnesses and mediators, filing and hearing fees, using a jury, and adverse cost orders.
102
cost factors - how do legal costs impact fairness? (civil)
- If people do not have money for legal costs, may be forced to settle/withdraw their claim/self-represent, which can lead to unfair outcomes.
- A courts duty to ensure a fair trial and the judges responsibility to assist self represented parties can help, but self-represented litigants will still likely struggle to understand issues and procedures.
- Self-represented parties lack emotional distance from the case and thus may not be able to make the right decisions compared to parties who have experienced legal representation.
- Self-represented parties are unable to present themselves favourably in court
103
cost factors - how do legal costs impact equality? (civil)
Self-represented parties/with less skilled representation can often have an unequal footing in court, particularly given the skills necessary to argue the case. Can affect more vulnerable people with lower socio-economic status and means some members of community have better ability to interact than others
104
cost factors - how do legal costs impact access? (civil)
Costs can prohibit a person’s access to the legal system as they are often deterred from making or defending a claim or will have to settle to avoid trial, reducing meaningful engagement in system
Self-represented people increase court congestion
Financially disadvantaged Victorians may be unable to access the justice system and unable to initiate or defend a case adequately, even if they are legally in the right.
105
cost factors - how does the increased use of ADR methods impact fairness? ( civil)
Use of a skilled third party can ensure processes monitored and equal opportunity for both parties to present their side of the story
Avoids unwanted outcomes as parties take ownership of the processes and the outcome.
106
cost factors - how does the increased use of ADR methods impact equality? (civil)
Third party is impartial and unbiased referee who doesn’t advocate for either side
Methods like mediation avoid a third party, like a jury member who may have biases, making a decision on behalf of the parties
107
cost factors - how does the increased use of ADR methods impact access? ( civil)
The cost saving cann enable a party to access a wider range of methods to resolve their dispute.
Parties can hire private mediators which avoids the cost of initiating a claim.
Informality allows parties to actively engage with processes where they may have been intimidated by the courtroom
108
time factors - how do court and VCAT delays impact fairness?
Delays can affect the reliability of evidence, thus jeopardising a fair trial. Eg. witnesses forget things.
Swift justice is seen to produce a fair outcome as it means there is less stress and impact on the parties and the ability to conduct things as efficiently as possible.
Parties want closure but they can feel pressure to accept an inappropriate settlement if clear that the resolution will be long and complex
109
time factors - how do court and VCAT delays impact equality?
Delays can have a serious impact on more vulnerable parties such as injured/low socio-economic status
Delays can affect parties who are not very familiar with litigation and can be stressed by the inconvenience of court processes, unlike large businesses and companies.
People with little time to attend and prepare for court will be disadvantaged and not recieve equal opportunity to present their case. This is particularly problematic against large companies and corporations who do have the time.
110
time factors - how do court and VCAT delays impact access?
Delays may force parties to settle or withdraw their claim, frustrated by the loss of time or unable to continue without settlement. This can reduce genuine access to the civil justice system
Reality of possible delays may also deter parties from pursuing their claim in the first place
The backlog of civil cases and lengthy pretrial procedures can prevent individuals who need a matter heard immediately from being able to pursue their claim.
111
time factors - how does the use of case management powers impact fairness? (civil)
Certain case management powers are focussed on reducing the time it takes for a matter to be resolved. May make orders about lengthy process of discovery to streamline the process. This can limit the impact that extraordinary delays can have on procedural fairness
Courts can adapt processes to the needs of the parties so the court can focus on what is required to resolve the dispute.
112
time factors - how do case management powers impact equality?
Courts and tribunals can ensure there is flexibility without any favour or discrimination.
Some case management powers can be directed to addressing the impact that some delays will have on vulnerable parties. May hasten process so that defendant doesn’t incur additional costs/order to mediation so plaintiff can be compensated sooner
113
time factors - how do case management powers increase access? (civil)
Case management enables greater access to courts and tribunals as there can be flexibility in formalities, what judge orders in relation to procedure, way documents are filed and time required to undertake tasks
The supreme court's approach to case management can also help parties access the system without being burdened by the time and costs involved in undertaking pre-trial procedures.
114
accessibility factors - what are barriers to communication? (civil)
Communication barriers are factors which prevent a person from understanding their rights, reduce their understanding of the processes involved in pursuing those rights and reduce their understanding of the methods and bodies available to them to resolve their dispute.
Most common barrier is language-based which affects people born overseas and also extends to some remote Aboriginal and Torres Strait Islander communities.
The Civil Justice system attempts to overcome these barriers by providing interpretation services and VLA legal information sheets in more than 22 languages.
115
accessibility factors - how do barriers to communication impact fairness?
People who cannot communicate well in English may not understand their legal rights or the dispute resolution bodies and methods that can help them resolve a dispute. This reduces their ability to access procedures and adequately engage in a trial or hearing, so they can’t present their case sufficiently
116
accessibility factors - how do barriers to communication impact equality and access? ( civil)
EQUALITY
People who experience communication barriers may struggle to tell their side of the story, which can make them unequal before the law and deny them equal opportunity to present their case.
ACCESS
Person with little understanding of rights or mechanisms may abandon their claim or defence just because they feel uncertain about what needs to happen to pursue case
117
accessibility factors - how does the lack of legal services in rural areas impact fairness? ( civil)
The lack of legal services in some rural and remote areas of victoria affects the ability to seek advice and assistance, and access resources and info about their case. Thus it can inhibit a person's ability to use legal processes to ensure they put their case forward properly.
Those who can't access dispute resolution bodies are unlikely to receive a fair and unbiased hearing, due to their absence.
118
accessibility factors - how does the lack of legal services in rural victoria impact equality and access?
EQUALITY
Rural Victorians may not be equal before the law if they have unequal access to legal services and resources and unequal access to courts and tribunals.
The ability of certain individuals and groups to easily access the civil justice system whilst others face difficulties can preclude all people from being treated equally.
ACCESS
An ability to access legal services, courts, and tribunals can affect one's ability to pursue their legal rights and seek compensation for any wrong they have suffered.
119
accessibility factors - how do representative proceedings impact fairness and equality? (civil)
FAIRNESS
Judges manage class actions so they are conducted efficiently and fairly.
Removes a party from court processes which can be difficult for someone with little experience.
EQUALITY
People with claims are able to join a class action and not be subjected to personally having to pay costs, or be subjected to adverse cost orders, thus helping people who are financially disadvantaged.
120
accessibility factors - how do representative proceedings impact access? ( civil)
Access to pursue civil actions for those who couldn’t afford it by themselves or may have been deterred from pursuing claims against big businesses. Allows a range of claims to be brought that would have otherwise not have been pursued
People who cannot afford or travel to initiate their own claim are able to access justice by joining a representative proceeding.
Litigation funder is a third party that agrees to pay for proceedings for a proportion of settlement/damages
121
recommended reforms - Introduction of a National Justice Interpreter scheme?
Recommended in 2018 by the Law Council of Australia. Lack of access to interpreters in courts and limited availability.
Recommendation to implement an interpreter scheme that provided free, professional and appropriately skilled interpreters to recently arrived people, those from diverse backgrounds, indigenous Australians and asylum seekers.
122
recommended reforms - how would the introduction of a national justice interpreter scheme achieve and not achieve equality?
ACHIEVES
Assists vulnerable people to try and achieve an equal footing to those who are able to understand court processes. Treats people differently to treat them equally
DOES NOT ACHIEVE
The scheme does not address other equality issues that may also be suffered by people from a non-english speaking background. Such as those that arise from a mental impairment, low socio-economic background, and racial discrimination.
123
recommended reforms - how would the introduction of a national justice interpreter scheme achieve and not achieve access?
ACHIEVE
Provides a greater understanding of court processes, documents, rights and procedures
DOES NOT ACHIEVE
Doesn’t necessarily mean that everyone will get access to appropriate and qualified interpreters. It may depend on the community the person resides in, and the type of interpreter they need. Smaller communities may struggle to find an interpreter the person does not know.
124
recommended reforms - how would the introduction of a national justice interpreter scheme achieve and not achieve fairness?
ACHIEVES
A party better present their case and the facts
Provides a person from a non-english speaking background with a greater understanding of processes and procedures.
DOES NOT ACHIEVE
The success of the scheme will wholly depend on the quality and availability of the interpreters
125
recent reform - VCAT fast track mediation and hearing process expansion - 2019
Fast-track mediation and hearing processes were only used for claims up to $3000 and in Melbourne. Larger claims and rural Victoria could not be resolved. VCAT expanded the process in two ways: threshold for claims changed from $3000-$10,000 and expanded to be a state-wide service rather than just in Melbourne (although threshold for non-Melbourne is $5000).
Means that if the amount in a dispute is between $500-$10,000, parties will be invited to attend a mediation. If not resolved in mediation, goes to a VCAT final hearing within hours. No hearing fees for same-day service.
Aims to avoid delays two-fold: at mediation stage, and same day instead of listing sometime after.
126
recent reform - vcat - fairness - strengths and weaknesses
ACHIEVES
VCAT hearing is heard by a different member and conducted with as little formality as possible while also assisting the parties to make out their case
Mediation can avoid many of the procedural unfairness issues that arise in a VCAT hearing
DOES NOT ACHIEVE
Not a complete solution to many unfairness issues that may arise in a VCAT hearing
127
recent reform - vcat - equality - achieves and doesnt achieves
strength
Seeks to ensure that all people are treated equally in the process by using an unbiased and impartial mediator.
limitation
Not a complete solution to equality issues for people who suffer particular vulnerabilities
128
recent reform - vcat - access
yes
Expansion allows greater access to a wider range of people, particularly to those with claims up to $10,000 and those in rural and remote areas.
Gives people access to a highly successful form of dispute resolution and experienced mediators who have been proven to assist parties resolve dispute without hearing
no
Threshold of 5000 for regions other than Melbourne means not as accessible as it could be and process is also limited to the Civil Claims List
