U3AOS2B - Civil Justice System (Institutions/Remedies) Flashcards
IMPORTANT - Appropriateness for CAV, VCAT, Courts and class actions
Define legal practitioner
- A legal practitioner is an expert who has undergone training to practice the law and presents a case on behalf of a party
- Have knowledge in certain areas of law
- Will prepare and conduct a case
- Types: Barristers and Solicitors
Why are legal practitioners needed?
EXP (4) SRP STRUGGLE (4)
- Have experience in…
- Following court processes
- Collecting evidence
- Presenting cases
- Maintaining proper decorum
-
Self respresented parties may struggle with…
- Presenting their case
- Understanding legal jargon
- Cross-examining witnesses
- Remaining fully objective
- If they are instead competently legally represented, they have a better chance at SUCCESS
Why can obtaining legal aid be challenging?
- Most of the grants of legal assistance are for criminal and family law
- The advice given by VLA does not always cover civil matters
- VLA is financially limited and civil cases would need to be percieved to be successful (not always the case)
State 3 strengths of legal practitioners
- Experts in navigating the legal system (i.e opening and closing addresses, examining witnesses)
- Objectivity for decisions
- Help avoid delays that may arise with self-represented parties
State 2 weaknesses of legal practitioners
- Not all are equal, not same experience or skills (can impact quality of service)
-
Not everyone can afford legal representation
- Even if a self-represented party can afford a lawyer, it may be a great expense to them or their family
Compare civil legal practitioners to criminal
-
Similarities
- Objective
- Expertise in managing/ navigating court
-
Differences
- Standard of proof
Define class actions
- Class actions are considered a group dispute in which multiple people may join together to commence a civil action
- Usually commenced by the lead plaintiff, any other person involved is a group member
What does a class action have to have in order to commence?
- Seven or more people
- Claims relating to the same, or similar, circumstances
- The same issues needing to be decided
- Same defendant
How do class actions work?
- Commenced by the person who ‘represents’ the group, known as the lead plaintiff
- The rest of the group within the class action are known as group members
- Group members do not actively participate in the trial, can choose to opt in or opt out
- Proceeding is managed by the court
PSA : A litigation funder may be used by the group if they DO NOT HAVE THE MEANS TO PAY for legal action; they would recieve PART of the payment once the case is won
Explain costs within a class action
-
Lead plaintiff is responsible if class actions fails
- Most firms work on a ‘no win, no fee’ basis and plaintiffs WILL NOT need to pay
- Litigation funders will often pay the cost of a failed class action
- If a class action is successful, group members will share the damages awarded with the litigation funder/firm
State and describe the four types of class actions
SPEN
-
Shareholder (Investor)
- Shareholders of a company may make a claim about being misrepresented about the state of a company’s affairs
-
Product Liability
- Where consumers have purchased a good or service, and suffered a loss or injury as a result
-
Employee Conditions
- Employees may band together to dispute underpayment or working conditions at a company
-
Natural Disasters
- Where loss or damage has occurred as a result of a natural disaster (bushfire, flood, earthquake, etc)
To deem class actions appropriate, what must be considered? (6)
- If there are 7 or more people with a claim against the SAME defendant
- If the claims are about the same or similar breaches of rights
- If there is a law firm OR litigation funder willing to pay for the claim
- If there is a person willing to be the lead plaintiff
- What the size and nature of the claims are
- If one group member has suffered significantly more than the others (would be not worth the collective hearing)
What are 3 strengths of class actions?
-
Group members are not responsible for the payment of any costs; increases access to justice to GMs who may not be able to afford initating a claim themselves
- More convenient way for GMs who wish to pursue a claim but do not want the burden of actively participating
- More efficient way of dealing with a number of claims (court does not have to deal with multiple claims about the same issue, saves time and resources)
- People can pursue claims that they wouldn’t be able to do themselves (claim is small, cost is big)
- Litigation funders and plaintiff law firms have a ‘no win no fee’ basis
- Reduce costs of defendants; can respond to multiple claims in one sitting inst. of seperately
DISCLAIMER - Textbook has 6 but knowing 3 is sufficient
What are 3 weaknesses of class actions?
- Large cost burden on lead plaintiff if class action fails and there is no litigation funder or ‘no win no fee’ agreement (rare scenario)
- Avoids multiple claims BUT at the sacrifice of a class action having a large size
- Significant amount of court resources and time
- Class actions lawyers may ‘take advantage’ of class actions → they get more out of it than group members
-
Litigation funders take a large percentage of the total amount
- ∴ Cut group members short and not reflecting their loss
- Multiple class actions may be commenced by different law firms in relation to the same issue
- Increases the costs of the defendant
-
Some GMs may not be up-to-date with the proceeding/ know if the proceeding is ongoing
- Involve thousands of group members ∴difficult to communicate to each one
DISCLAIMER - Textbook has 6 but knowing 3 is sufficient
What is the only court that can hear and resolve class actions?
- Supreme Court
- This is due to the complexity and size of a class actions trial
What is CAV?
- Consumer Affairs Victoria, complaints body that provides information about consumer law and free dispute resolution services
- Has the purpose of helping Victorians to be informed about consumer laws, and to ensure that businesses are complying with the laws
What can CAV do?
- Advise the Victorian Government on consumer legislation
- Provide information and guidance to educate people about consumer laws
- Enforce compliance with consumer laws
- Can provide a dispute resolution process (rare)
What are the purposes of CAV?
- To help people come to an agreement about how to resolve their disputes efficiently without any cost
- To try and help the parties reach a resolution that is consistent with the law
- CAV has a compliance focus to ensure that any person who has not followed the law is aware of their breach and does not do it again
What is the jurisdiction of CAV?
- Disputes between purchasers and suppliers or consumers and suppliers about the supply or possible supply of goods or services
- E.g about a faulty product, products not fit for purpose
- Disputes between a tenant and a landlord
- E.g about rental agreements, repairs
What dispute resolution method does CAV use?
- Conciliation
- Can be done over the phone or other tailored services such as in person
When is CAV appropriate for a dispute? (8)
- Within CAV’s jurisdiction
- Consumer/tenant has tried to resolve the matter themselves
- When CAV’s involvement is needed
- Been a breach of legislation
- If there is a vulnerable or disadvantaged consumer
- If the issue is already dealt with by CAV or VCAT
- If the issue is likely to be resolved
- If there are not any other/better ways to resolve the dispute
What are 5 strengths of CAV?
- Service is free, accessible to all Victorians
- Conciliation process is informal - Can be conducted over the phone, therefore removing any anxieties from being in a courtroom
- Procedural fairness ensured by allowing both sides to present their perspective and also challenge the other side
- Assesses disputes individually - Reduces waste of time and resources
- Ensures that the parties reach a resolution themselves
What are 5 weaknesses of CAV?
- Assistance is mainly linked to consumer and CAV disputes - No power to assist other disputes
- No power to compel parties to undergo conciliation
- No powers to enforce decisions unless parties have entered into a binding agreement
- Not all cases are accepted, conciliation is limited
- Not appropriate for large and complex disagreements
What is VCAT?
- Victorian Civil and Administrative Tribunal, tribunal that provides a cheaper and less formal dispute resolution than courts
- Established under the Victorian Civil and Administrative Tribunal Act 1998
- Governing body consists of…
- President
- Vice-Presidents
- Deputy Presidents
- Senior Members
- Ordinary Members
- ‘Fair, efficient justice for all Victorians’
What are the purposes of VCAT?
- Provide low cost dispute resolution to parties
- Make achieving a resolution as accessible as possible
- Make the dispute resolution process more efficient
- Ensure members are independent and unbiased
What is one way VCAT achieves each of their purposes?
- Low Cost
- Parties do not have to go through pre-trial procedures
- Accessible
- Hearings conducted in multiple locations
- Efficient
- Aims to reduce waiting times
- Independent
- VCAT members are independent and act as unbiased adjudicators
P 236
What is the jurisdiction of VCAT?
CHARP
-
Civil
- Products or services bought or sold
- Loss or damage because of water flowing onto property
-
Human Rights
- Discrimination complaints
-
Administrative
- Cost disputes between lawyers and clients
- Disputes about a decision made by a government agency
-
Residential Tenacies
- Unpaid rent
- Excessive rent increases
-
Planning and Environment
- Review about a decision by council to grant or not grant a permit
- Disputes about the valuation of a land for the purposes of paying rates and taxes
What are some disputes that VCAT cannot hear?
- Class actions
- Disputes between employers and employees
- Disputes between neighbours
- Disputes between drivers in car accidents
- Disputes involving federal or state law (VCAT has not been given power)
- Disputes where the parties are residents of different Australian states or if Commonwealth is one of the parties