U3AOS2b Flashcards
(21 cards)
The 3 criteria of class actions
- Seven or more people are claiming against the same defendant(s)
2.the claim must be in respect of, or arise from, the same, similar, or related circumstances
3.Claim must give rise to a common issue of law or fact, meaning the same issues are determined by the court for all claims
features of class actions
Parties: usually commenced by a single person who reps group/class, they are known as lead plaintiff, others are known as group members
If class action fails= lead plaintiff is solely responsible for the cost of the proceedings and any adverse cost orders. group members have no obligation to contribute to proceedings costs unless or until a successful outcome is known
if class action is successful= money given proportionally, also ppl found liable pay for proceedings
roles of lead plaintiff
-Assuming risk & cost of litigation on behalf of the entire group
-ensuring the claim serves the interest of the group members and not pursued for personal benefit
-providing instructions to their lawyers regarding the conduct of the claim & make decisions regarding settlement or negotiations
-filing the case under their own name
where can class actions occur
Supreme court Trial Div, Federal court of australia depending on nature of claim
Types of class actions
-Workplace accidents
-medical malpractice
-financial malpractice
-preventable natural disaster
-Faulty or dangerous goods or services
What is Consumer Affairs Victoria?
CAV is a statutory body, meaning it was established bc of vic parliament passing the legislation:
‘Australian Consumer and Fair Trading Act (vic) 2012’
Purposes of CAV?
-Enforce compliance with consumer law
-Provide info & guidance to educate people about consumer laws about the rights and responsibilities of businesses and consumers
-In limited circumstances, provide consumers, traders and landlords with a dispute resolution process
-Advise the Vic govt on consumer legislation
-Providing accessible dispute resolution services
Which disputes can CAV assist with?
Products and services: a complaint against a business by a consumer who believes the Australian consumer Law and Fair Trading Act 2012 (vic) has been breached
Housing: a complaint against a landlord by a tenant who believes the residential Tenancies Act 1997 (vic) has been breached
Cars: a complaint made by the consumer about the buying and selling of new and used cars.
Step by step process for how individuals can seek help from CAV
Step 1: Learn about your rights
Step 2: talk to the people involved
Step 3: Write to the people involved
Step 4: Take the matter further
Step 5: Seek assistance from CAV with the problem or complaint
note: the only method used by CAV to resolve disputes is conciliation
When is CAV appropriate?
-The dispute falls within CAV’s jurisdiction
-Parties have attempted to resolve the dispute themselves
-Both parties are willing to attend and participate in conciliation
-Parties wish to avoid costs and delays associated with resolving disputes through the courts or VCAT
-Parties are willing to settle, therefore increasing the likelihood of a successful resolution.
-Both parties are willing to comply with the agreement reached during conciliation
When is CAV inappropriate?
-The dispute does not fall under CAV’s jurisdiction
-parties have not attempted to resolve the dispute by themselves.
-One or both parties are not willing to attend and participate in conciliation
-There is a better method of resolving the dispute,including via na alternate organisation that is better suited to dealing with the matter.
-The court or VCAT has already ruled on the matter, or the case is currently wiating to be heard
-The dispute is a class action.
-One or more parties want a legally binding decision.
Strengths of using CAV
- can provide a quick and relatively efficient method for parties to resolve their dispute without the delays and stress associated with going to trial whilst also allowing for impartial processes using a conciliator.
-it’s free, means that parties that cant afford to go to court or VCAT, they’re able to participate in the justice system, ensures fairness
-uses conciliation, which takes advantage of an experienced conciliator, generally w legal knowledge in the area, and can provide parties w suggestions leading to a fairer and more efficient outcome
Weaknesses of using CAV
-assistance is limited mainly to consumer and CAV disputes, meaning it has no power to assist with many other types of civil disputes
-has no power to compel parties to undergo conciliation. a willing party to a dispute may not be able to use CAV’s dispute resolution services if the other party is not willing
-has no power to enforce any decision reached by the parties in conciliation, unless the parties have entered into a binding agreement at conciliation, then one of the parties may just ignore the outcome. This can leave the parties no better off than they were before conciliation
What is VCAT
VCAT=Victorian Civil and Administrative Tribunal
VCAT is a statutory dispute resolution body- Victorian Civil and Administrative Tribunal Act 1988
Definition: It is a tribunal that has the power to resolve a wide range of civil disputes and has exclusive jurisdiction over certain matters.
Parties in VCAT?
The applicant- The person who is applying to have their dispute resolved
The respondent- the person who is responding to a claim made against them
The 5 VCAT divisons
Residential Tenancies division
Administrative division
Planning and environment division
Civil division
Human Rights division
Purposes of VCAT
-Provide low cost dispute resolution services
-Provide efficient dispute resolution services
-Provide accessible dispute resolution services
what are the methods of resolving disputes in VCAT
Fast tracked mediation and hearing
-for goods and services claims up to $10k, parties are invited to attend mediation to try and resolve dispute. if unsuccessful, VCAT member will schedule VCAT hearing for another day
-VCAT hearing will be free and operate in the same way as a final hearing
OR
Mediation
-parties will negotiate in presence of mediator in informal environment to attempt to reach a mutually agreed resolution,
mediator X make decision in case and any agreement reached is X binding unless deed of settlement is entered into
-Mediators can be a VCAT member or a mediator appointed by VCAT
OR
Compulsory conferences
-Confidential meeting where the parties will attempt to settle the dispute before a final hearing needs to take place
-Compulsory conferences use a conciliation process, meaning the VCAT member will make suggestions to assist the parties in resolving dispute
What happens if the methods of resolving disputes in VCAT are unsuitable or unsuccessful?
Final Hearing
-both parties present case, ask questions and provide evidence. VCAT member presiding over the hearing will then hand down a final order.
-Final orders can include monetary compensation, an order to undertake or restrain from partaking in a particular act, or a dismissal of the claim.
-VCAT decisions are final and can be enforced by the courts
THEN (conditional)
Appealing a VCAT decision
-VCAT decisions can only be appealed on question of law
-will be heard in the court of appeal if the decision was made by VCAT president or vice president, if any other VCAT member got their decision appealed it’s heard in supreme court TRIAL division.
-Parties need leave to appeal VCAT decisions
When is VCAT appropriate?
-if matter falls within their jurisdiction
-if parties would prefer an informal dispute resolution process
-if parties want to try and resolve the dispute themselves or have some agency over the outcome
-if parties would like the option to negotiate but, if unsuccessful with to have a legally binding decision enforced in a hearing
When is VCAT inappropriate?
-if matter X fall within jurisdiction
-if parties would prefer a formal dispute resolution process
-if parties are unable to afford
-if parties need immediately without delay
