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Legal Studies U3/4 > U3AOS2B - Civil Justice System (Institutions/Remedies) > Flashcards

U3AOS2B - Civil Justice System (Institutions/Remedies) Flashcards

IMPORTANT - Appropriateness for CAV, VCAT, Courts and class actions

1
Q

Define legal practitioner

A
  • 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
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2
Q

Why are legal practitioners needed?

EXP (4) SRP STRUGGLE (4)

A
  • 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
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3
Q

Why can obtaining legal aid be challenging?

A
  • 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)
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4
Q

State 3 strengths of legal practitioners

A
  • 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
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5
Q

State 2 weaknesses of legal practitioners

A
  • 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
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6
Q

Compare civil legal practitioners to criminal

A
  • Similarities
    • Objective
    • Expertise in managing/ navigating court
  • Differences
    • Standard of proof
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7
Q

Define class actions

A
  • 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
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8
Q

What does a class action have to have in order to commence?

A
  • Seven or more people
  • Claims relating to the same, or similar, circumstances
  • The same issues needing to be decided
  • Same defendant
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9
Q

How do class actions work?

A
  • 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

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10
Q

Explain costs within a class action

A
  • 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
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11
Q

State and describe the four types of class actions

SPEN

A
  • 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)
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12
Q

To deem class actions appropriate, what must be considered? (6)

A
  • 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)
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13
Q

What are 3 strengths of class actions?

A
  • 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 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
  • More convenient way for GMs who wish to pursue a claim but do not want the burden of actively participating

DISCLAIMER - Textbook has 6 but knowing 3 is sufficient

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14
Q

What are 3 weaknesses of class actions?

A
  • 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, taking up a significant amount of court resources and time
  • Class actions lawyers may ‘take advantage’ of class actions because they get more out of it than group members
  • Litigation funders take a large percentage of the total amount, therefore cutting group members short and not reflecting their loss
  • Multiple class actions may be commenced by different law firms in relation to the same issue, increasing the costs of the defendant
  • Some GMs may not be up-to-date with the proceeding or even know if the proceeding is ongoing (many class actions involve thousands of group members; difficult to communicate to each one)

DISCLAIMER - Textbook has 6 but knowing 3 is sufficient

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15
Q

What is the only court that can hear and resolve class actions?

A
  • Supreme Court
  • This is due to the complexity and size of a class actions trial
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16
Q

What is CAV?

A
  • 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
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17
Q

What can CAV do?

A
  • 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)
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18
Q

What are the purposes of CAV?

A
  • 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
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19
Q

What is the jurisdiction of CAV?

A
  • 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
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20
Q

What dispute resolution method does CAV use?

A
  • Conciliation
  • Can be done over the phone or other tailored services such as in person
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21
Q

When is CAV appropriate for a dispute? (8)

A
  • 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
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22
Q

What are 5 strengths of CAV?

A
  • 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
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23
Q

What are 5 weaknesses of CAV?

A
  • 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
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24
Q

What is VCAT?

A
  • 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’
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25
Q

What are the purposes of VCAT?

A
  • 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
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26
Q

What is one way VCAT achieves each of their purposes?

A
  • 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

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27
Q

What is the jurisdiction of VCAT?

CHARP

A
  • 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
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28
Q

What are some disputes that VCAT cannot hear?

A
  • 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
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29
Q

What dispute resolution methods does VCAT use?

A
  • Mediation
    • Fast Track Mediation and Hearing - Done for goods and services valued up to $10000
  • Compulsory Conferences
    • Confidential meetings
    • Use conciliation
  • Final Hearing
    • If not settled with the above methods, VCAT member gives a final hearing
    • Binding decision with little formality and technicality
30
Q

When is VCAT appropriate? (7)

A
  • Dispute is within jurisdiction
  • If dispute can’t be resolved through just negotiation or mediation
  • If the applicant is able to pay the fees for the list
  • If the parties do not want more avenues of appeal
  • If the parties take VCAT seriously - If not, court is needed
  • If the size and complexity is suitable
  • If the parties want a less formal way of resolving their dispute
31
Q

What are 3 strengths of VCAT?

A
  • Cheaper than courts
  • Generally offers a fast resolution of disputes
  • Informal atmosphere helps people feel more comfortable
  • Flexibility of hearing process ensures fairness and equality for an unrepresented party
  • Each VCAT operates in its own specialised jurisdiction - Tribunal Personnel develop expertise
  • Final decision is binding, meaning it is enforceable

Any 3 of these 6 is sufficient

32
Q

What are 3 weaknesses of VCAT?

A
  • Costs can sometimes be higher than court
  • Some delays following COVID-19
  • May be TOO informal, can make people feel uncomfortable if they prefer a formal process
  • Not a court - Cannot create precedents
  • Complex and expensive to appeal a case because appeals can only be made on a point of law (Supreme Court)
  • VCAT orders need to be enforced through courts - Takes longer

Any 3 of these 6 is sufficient

33
Q

When are courts the most appropriate way to resolve a dispute?

A
  • When the dispute is within their jurisdiction
  • If there are no other/ better ways to resolve the dispute
34
Q

Explain the jurisdiction of courts in relation to being a dispute resolution body

A
  • County and Supreme have an unlimited jurisdiction
  • Magistrates’ can do claims up to $100 000
  • Courts CANNOT hear…
    • Domestic building disputes
    • Retail tenacies
    • Residential tenacies
    • Planning Disputes
    • This is because they are exclusive to VCAT
35
Q

When would there be other/ better ways to resolve a dispute over a court?

A
  • If parties can resolve the dispute themselves through negotiation or mediation
  • If the cost of courts is too much - CAV, VCAT or a private method can be considered
  • If parties are uncomfortable with the formalities of the courtroom rules and procedure
36
Q

What are advantages of using a court to resolve disputes?

A
  • Various pre-trial procedures
    • Save costs, time and stress of going to trial
    • Ensures more efficient and timely resolution of dispute
    • Can help solve matter before trial
  • Processes to ensure procedural fairness
    • Judge can give directions and orders to ensure dispute is resolved in a timely manner
  • Allows interactions between the court and parties
  • Binding decision - Outcome is certain and enforceable
37
Q

Compare the 3 dispute resolution bodies in terms of the third party

Helpful for distinguishing, not necessary

A
  • CAV
    • Has no power to make a decision
    • Role of third party is to facilitate discussion, suggest options and possible solutions - Usually has specialist knowledge
    • Decision is not binding but terms of settlement may be enforceable
  • VCAT
    • Third party makes the decision if the dispute proceeds to a final hearing
    • Third party hears all the evidence at a final hearing and makes a binding decision
  • Courts
    • There is a third party who makes a binding decision if the dispute proceeds to a final hearing or trial
    • Third party hears all the evidence at a final hearing or trial
38
Q

Compare the 3 dispute resolution bodies in terms of processes and procedures

Helpful for distinguishing, not necessary

A
  • CAV
    • Private
    • No rules of evidence & procedure, pre-trial procedures, jury or a need for legal representation
  • VCAT
    • Not private unless parties settle before the final hearing
    • Flexible rules of evidence & procedure
    • Generally no pre-trial procedures or legal representation
    • No jury
  • Courts
    • Not private unless parties settle the final hearing before the trial
    • Has rules of evidence & procedure, pre-trial procedures
    • Generally has legal representation
    • Jury only if judge or parties require it
39
Q

Compare the 3 dispute resolution bodies in terms of types of civil disputes

Helpful for distinguishing, not necessary

A
  • CAV
    • Has restrictions on jurisdiction
    • Disputes between tenants and landlords, consumers and traders and other consumer-type disputes
    • Not appropriate for large, complex claims and cannot hear class actions
  • VCAT
    • Has restrictions on jurisdiction
    • Various types of disputes, including small civil claims, residential tenacies claims and retail tenacies
    • Not appropriate for large, complex claims and cannot hear class actions
  • Courts
    • Has restrictions on jurisdiciton in Magistrates’ Court, can’t hear things specific to VCAT
    • All types of claims including complex ones
    • Supreme or County is appropriate for large complex claims
    • Supreme Court can hear class actions
40
Q

Compare the 3 dispute resolution bodies in terms of dispute resolution methods used

Helpful for distinguishing, not necessary

A
  • CAV
    • Conciliation
  • VCAT
    • Mediation and Conciliation
  • Courts
    • Mediation
    • Generally does not use Conciliation
    • Arbitration in Magistrates’ Court for claims less than $10 000
41
Q

Compare the 3 dispute resolution bodies in terms of hierarchy and appeals

Helpful for distinguishing, not necessary

A
  • CAV
    • No hierarchy or appeals
  • VCAT
    • No hierarchy
    • Appeals on a point of law to Supreme Court or Court of Appeal
  • Courts
    • Hierarchy and appeals
42
Q

Describe the impact of costs in Civil Law

A
  • Although some parts of the CJS aim to reduce costs, many people will still pay high costs
    • High costs can sometimes discourage/ prevent people from pursuing civil claims or defences
    • Resorting to being self represented would limit their case due to lack of skills/ experience

CJS = Civil Justice System

43
Q

What are Legal Costs in Civil Law?

A
  • Cost of legal representation
  • Not everyone can afford
    • A concern because the nature of the court system relies on both parties having good legal representation
  • With legal representation, the chance of each party winning is maximised, ensuring the fairest outcome possible
  • Amount of money spent depends on the nature of the dispute
44
Q

What are examples of Legal Costs in Civil Law?

A
  • Complaint through CAV is free
  • Claim through VCAT can be inexpensive but it depends on the type of claim and who is making it
  • More complex claim in Supreme Court requires both parties to spend a significant amount of money
  • Disbursements associated with…
    • Engaging expert witnesses and mediators
    • Filing and hearing fees
    • Using a jury
45
Q

What do high costs cause?

A
  • High costs are the reason for the increase in self-represented parties
    • May not be beneficial for everyone due to the skill needed to navigate the court system
    • Can lessen their ability to properly make out their case
  • Inability to access legal aid
    • Most legal aid funding is spent on aid for criminal and family law
    • Forces people to settle or withdraw their claims
46
Q

What are measures to address costs in Civil Law?

A
  • Alternative Dispute Resolution methods
    • Helps solve disputes early - Parties can save money by avoiding costs (i.e pre-trial procedures and trial procedures, having to pay winning side’s costs)
    • Courts and VCAT can save money and time
  • CAV and VCAT
    • No/ low cost, no legal representation
  • Case Management in Court
    • Narrows issues and ensures a cost-effective resolution (judge can narrow discovery/ require parties to attend mediation early)
  • Pro bono assistance (legal services for free)
47
Q

State at least 2 ways that costs in Civil Law link to PoJs

A
  • Fairness
    • Gathering sufficient funds/ finding alternatives can increase delays (limit participation)
  • Equality
    • Imbalance in expertise of legal representation can cause disparity in trial
  • Access
    • High costs prevent engagement
    • Being self represented may limit extent to being on an informed basis
48
Q

Describe the impact of time in Civil Law

A
  • If a dispute takes a long time to be heard, it can become increasingly unfair to one or both parties
  • Time for courts and VCAT can vary depending on…
    • Complexity
    • Type of claim
    • Number of parties involved
    • Where the claim was issued
49
Q

What factors can affect how long it takes for a civil dispute to be heard?

A
  • Backlogs
  • Pre-trial procedures
  • Evidence gathering and preparation
50
Q

What are Backlogs in Civil Law?

A
  • Cases that are ‘in line’ for a hearing or trial - Similar to a pending status
  • Need to be resolved or determined
51
Q

What are measures to reduce delays in Civil Law?

A
  • Case Management powers
    • Can result in modifications of procedure rules and rules relating to pleadings, discovery and evidence preparation
  • Courts can…
    • Order that parties attend mediation or another DRM
    • Limit the scope of discovery to ensure that it does not take too long
    • Order that no pleadings are required
    • Restrict the time for final hearings (limit the number of witnesses, time to make submissions or cross-examination of witnesses)
    • Use online methods to hear disputes
  • VCAT has…
    • Pilot Program - County Court hears complex building disputes waiting in the Building and Property List
    • Backlog Recovery Program - Combats significant backlogs in the Residential Tenacies List
    • Some matters dealt solely based on written documents

Pilot - P for Property; Recovery - R for Residential

52
Q

State at least 2 ways that delays in Civil Law link to PoJs

A
  • Fairness
    • Presence of delays limits participation
  • Equality
    • Cases being treated the same way may cause disparity (cases requiring more attention having to wait, other cases with priority)
  • Access
    • Delays limit the ability to use the civil justice system (engagement)
53
Q

Define remedy

A
  • Any order made by a court that is designed to address a civil wrong or breach of rights
  • Plaintiff will often seek more than one remedy
  • Most common are damages and injunctions
54
Q

What is the general purpose of a remedy?

A
  • To restore the plaintiff (as far as possible) to the position they were in before the wrong occurred

MOST IMPORTANT!! (Umbrella purpose, can use for all)

55
Q

Define damages and state the types

Types acronym: GEN SAC (2 C’s)

A
  • Amount of money awarded to the plaintiff to be paid by the defendant
  • Aims to compensate for the losses or injury that the plaintiff has suffered
  • Types
    • Compensatory - Consists of Special, General and Aggravated
    • Exemplary
    • Nominal
    • Contemptuous

Must be damages with an S!!
‘Compensate’ is specific to damages

56
Q

What are compensatory damages?

A
  • Most common
  • Aims to restore the party whose rights have been infringed by compensating them for losses suffered
  • Pays money to pay for expenses/ Make up for objects lost
  • Types
    • Special
    • General
    • Aggravated
57
Q

Define the three types of compensatory damages

A
  • Special
    • Specific
    • Compensates plaintiff for losses that are quantifiable
    • E.g Medical expenses, loss of wages, property damage
  • General
    • Compensate for losses that are not easily quantifiable and will be calculated by the court based on evidence
    • E.g Pain and suffering, long-term job prospects, loss of amenity
  • Aggravated
    • Awarded where the court believes the plaintiff suffered humiliation, embarrassment or insult
58
Q

What are nominal damages?

Nominal → Big Name

A
  • Awarded where the plaintiff may not be seeking a large amount of money
  • Just want their infringed rights to be ACKNOWLEDGED
  • Done to show who is legally in the right
  • Aims to uphold the plaintiff’s rights without awarding any substantial amount of damages

Petty damages (probably already have a lot of money)

59
Q

What are contemptuous damages?

A
  • Awarded when a court or tribunal believes that although the plaintiff has the legal right to damages, they DON’T HAVE A MORAL RIGHT
  • Don’t think the plaintiff deserves to be paid damages
    • Small damages may be awarded to show contempt for claim
60
Q

What are exemplary damages?

A
  • Only consequence in civil action that seeks to punish the defendant
  • Aims to punish for an extreme infringement of rights
    • Also to deter others from undertaking the same actions
  • Conduct of defendant is usually malicious, violent, cruel or in scornful disregard for the plaintiff’s rights
  • Cannot be awarded for defamation

Suited for physical action/damage

61
Q

What are restrictions on damages?

A
  • Certain types of cases and loss have restrictions imposed on the amount of damages that can be awarded
  • Examples…
    • Personal injury claims under the Wrongs Act 1958 has a limit for non-economic loss (pain, suffering and loss of quality of life)
    • Defamation claims - Damages for non-economic loss are limited to $250 000
  • Values may be increased depending on the type of case
    • Economic losses are not restricted to the same amounts
62
Q

Define injunctions and state the types

A
  • Court order directing someone to stop doing a certain act/compelling someone to do a certain act
  • Aims to rectify (correct) a situation caused by the person who was found to be in the wrong
  • Types
    • Restrictive (Stop)
    • Mandatory (Start)
  • Can be interlocutory (temporary and ASAP) or final (followed forever)
63
Q

What is a restrictive injunction?

A
  • Orders a person to refrain from undertaking an action
64
Q

What is a mandatory injunction?

A
  • Orders a person to do a particular act
65
Q

How can compensatory damages achieve their purpose?

Only need 2

A
  • Loss suffered was financial loss only
  • If there is sufficient evidence before the court about unquantifiable losses
  • If damages are paid
  • If other orders/ remedies are not required
  • No limits on amounts that can be awarded
66
Q

How CAN’T compensatory damages achieve their purpose?

Only need 2

A
  • If the loss was pain and suffering, mental anguish, disfigurement or impairment
  • If damages are not paid
  • If future loss is suffered
    • Harder to identify and quantify
  • If other orders or remedies are required
  • Limits on amounts that can be awarded
67
Q

How can exemplary damages achieve their purpose?

A
  • If the award is known to others - Publicised
    • Done to deter others
  • If the amount of damages is large
    • More likely to punish and deter
68
Q

How CAN’T exemplary damages achieve their purpose?

A
  • Defendant isn’t able to pay
  • If there is a cap on the amounts
    • Limits ability of damages to achieve purpose
69
Q

How can nominal damages achieve their purpose?

A
  • Enough evidence to take dispute to court
  • Taking dispute to court did not affect the plaintiff economically
70
Q

How CAN’T nominal damages achieve their purpose?

A
  • If the plaintiff suffered an economical loss to bring the dispute to court
  • If the plaintiff suffered loss but is lacking in evidence
71
Q

How can a restrictive injunction achieve its purpose?

A
  • If the defendant complies
  • If harm is not yet suffered
  • If only a restrictive injunction is required
72
Q

How can a mandatory injunction achieve its purpose?

A
  • If the defendant does what is ordered
  • If harm is not yet suffered
  • If a mandatory injunction alone is sufficient

Legal Studies U3/4 (5 decks)

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