Unit 3 AOS 2 Flashcards

Question

what do appropriateness of dispute resolution bodies depend on?

Answer 1

Whether or not dispute resolution bodies are able to resolve a dispute will depend on their jurisdiction and their powers. Some dispute resolution bodies have a restriction or limit on the types of disputes they can hear

Answer 2

Courts use pre-trial procedures as part of resolving disputes. They are steps taken by the parties before trial to try to narrow the issues in dispute and if possible resolve the dispute before hearing or trial.

Answer 3

- pleadings - discovery of documents - exchange of evidence - mediation

Answer 4

series of documents filed and exchanged between the plaintiff and the defendant, and which set out the claims and defences

Answer 5

- statement of claim - defence

Answer 6

which is filed with the court by the plaintiff; this sets out details of the claims and the remedy that the plaintiff is seeking

Answer 7

filed by the defendant, this sets out the defendant's response to each of the plaintiff's claims

Answer 8

enables the parties to get copies of each other's documents that are relevant to the issues in dispute

Answer 9

where the parties exchange the evidence that will be given at trial. The parties may be relying on lay evidence (where people give evidence about what happened or what they saw) or on expert evidence (where experts give evidence about their professional opinion, such as a medical professional giving evidence about a psychological injury suffered by the plaintiff)

Answer 10

The judge may order the parties attend mediation by a certain date to try to resolve the dispute before trial.

Answer 11

(in civil disputes) the party who makes a legal claim against another person (i.e. the defendant) in court

Answer 12

(in a civil case) a party who is alleged to have breached a civil law and is being sued by a plaintiff

Answer 13

to take civil action against another person, claiming that they infringed some legal right of the plaintiff (or did some legal wrong that negatively affected the plaintiff)

Answer 14

an amount of money that one party is ordered to pay to another party for loss or harm suffered. It is the most common remedy in a civil claim

Answer 15

* the plaintiff * the defendant

Answer 16

- the party who commences a civil action and who claims that their rights have been infringed or a wrong has occurred. The plaintiff is also known as the aggrieved party or wronged party

Answer 17

the party who is alleged to have infringed the plaintiff's rights or is alleged to be responsible for the wrongdoing.

Answer 18

In some dispute resolution bodies, words other than 'plaintiff' and 'defendant' are used to describe the parties involved. For example, in VCAT, the 'applicant' is the person bringing a civil action, and the 'respondent' is the person defending the action.

Answer 19

Sometimes there can be multiple plaintiffs, and multiple defendants, in a civil action. For example, if two people both own a property that has been damaged, they both may be plaintiffs. Similarly, if two people have damaged another person's property, they both may be defendants.

Answer 20

A party who has a valid legal claim can sue the defendant, which means bringing a civil action against them.

Answer 21

The plaintiff will seek to obtain a remedy, such as damages.

Answer 22

One purpose of damages is to return the plaintiff to the position they were in before the breach occurred.

Answer 23

When a defendant has done something that cannot be reversed (eg. if a finger was cut off in an accident they caused), the only legal solution may be compensating the person whose rights have been infringed, and who has suffered loss or injury as a result, by paying an amount of damages that reflects the irreversible loss that they have suffered.

Answer 24

* an individual suing or being sued in their own name, or a group of individuals suing or being sued together * a corporation, otherwise known as a company - a separate legal entity from the directors or individuals who run the company, which can sue and be sued * the Commonwealth or a state, or a government agency or body (such as a local council).

Answer 25

the legal responsibility of a third party for the wrongful acts of another (e.g. an employer's liability for what their employees dol

Answer 26

If an employee infringes a person's rights while acting in the course of their employment, the injured person may be able to sue the employer.

Answer 27

This is because of the concept of vicarious liability (responsibility for the actions of another person). The reason for making the employer liable is that employers have a right, ability and duty to control the activities of their employees.The important fact that must be established is that the employee was acting in the course of employment.

Answer 28

A child under the age of 18 can sue another person or group through a litigation guardian, often known as a 'next friend'. This is usually a parent or guardian.

Answer 29

Children can also be sued. The extent of their legal liability depends on the child's level of maturity and the behaviour expected of a child of that age.

Answer 30

negligence, trespass, defamation, nuisance, wills and inheritance, and breach of contract

Answer 31

Defamation relates to saying or publishing material which causes damage to another person's reputation.

Answer 32

Breach of contract actions arise where someone has failed to do something they promised in a legally binding agreement.

Answer 33

Trespass to land occurs when someone goes onto another person's land without permission.

Answer 34

Nuisance claims are made by people who have lost enjoyment or use of property (either public or private).

Answer 35

Wills and inheritance claims involve disputes over a will.

Answer 36

Negligence occurs when someone owes a duty of care to another and breaches that duty, causing harm or loss to them.

Answer 37

* the burden of proof * the standard of proof

Answer 38

which side must prove the case

Answer 39

the level of certainty the person who is deciding the case (e.g. the judge) must have in deciding the dispute.

Answer 40

the obligation (i.e. responsibility) of a party to prove a case. The burden of proof usually rests with the party who initiates the action (i.e. the plaintiff in a civil dispute and the prosecution in a criminal case)

Answer 41

the degree or extent to which a case must be proved in court

Answer 42

The burden of proof refers to who has the onus or responsibility to prove the facts of the case.

Answer 43

The burden of proof lies with the person or party who is bringing the case. In a civil dispute, this is the plaintiff. When a plaintiff sues a defendant, the plaintiff must show that the defendant was in the wrong.

Answer 44

This follows the principle that the party who brings the case must satisfy the decision-maker (usually the judge) that their claim is supported by the facts.

Answer 45

* if the defendant files a counterclaim against the plaintiff, the defendant is therefore making a direct claim against the plaintiff and has the onus of proving that claim * if a defendant raises a defence (e.g. the defence of contributory negligence in a negligence claim, claiming that the plaintiff contributed to the harm suffered), then the defendant is responsible for proving that defence.

Answer 46

The standard of proof refers to the strength of evidence needed to prove the case.

Answer 47

In a civil dispute the plaintiff must prove the case (or the defendant must prove the counterclaim or a certain defence) on the balance of probabilities.

Answer 48

the standard of proof in civil disputes. This requires the plaintiff to establish that it is more probable (i.e. likely) than not that their claim is true

Answer 49

This means that the party must prove their version of events is more probable to have occurred than not.

Answer 50

This is a less strict standard of proof than beyond reasonable doubt' in criminal cases, as it does allow for some 'reasonable doubt' to exist.

Answer 51

There are many reasons why a party may decide to initiate or commence a civil claim against person. Usually, the main reason is that the party wishes to be compensated for the loss they have suffered. In other situations, a party may wish to demonstrate to the defendant and to society in general that it is not acceptable to infringe a person's rights, and that people should be held accountable if they harm another person or engage in wrongdoing.

Answer 52

Initiating a civil claim is also known as 'issuing proceedings', 'bringing a civil action' or 'suing'.

Answer 53

However, initiating a civil claim is risky. There is no guarantee a party will be successful, and the legal fees may be expensive. It can also be time-consuming and stressful and might lead to negative publicity.

Answer 54

- Costs - Limitation of actions - Enforcement issues

Answer 55

A party involved in a civil dispute may incur costs in resolving that dispute. The costs include fees for legal representation, disbursements (such as court fees, mediation fees and expert witness fees), and possible costs to be paid to the other party if the plaintiff is not successful.

Answer 56

The costs of legal representation include the costs of engaging a solicitor and a barrister. Depending on the case, and which dispute resolution body is used to resolve the dispute, sometimes a party will engage both a solicitor and a barrister.

Answer 57

The costs of legal representation include the costs of engaging a solicitor and a barrister. Depending on the case, and which dispute resolution body is used to resolve the dispute, sometimes a party will engage both a solicitor and a barrister.

Answer 58

* the complexity of the case and the time it will take to resolve * which dispute resolution body is used (e.g. VCAT generally does not allow lawyers, but a lawyer will generally be necessary for court cases) * the size of the case - the number of witnesses, the extent of the evidence and the volume of documents involved * the expertise of the legal practitioners; lawyers and barristers with greater seniority or expertise usually charge higher fees.

Answer 59

The high cost of legal representation can be a barrier for many people who wish to take a civil issue to court, and it is a factor to be considered before initiating a civil claim. The plaintiff also needs to consider the amount of costs in comparison with how much they are claiming. That is, will the costs be more than the amount the plaintiff is seeking, and if so, is it worth initiating the claim?

Answer 60

out-of-pocket expenses or fees (other than legal fees) incurred as part of a legal case. They include fees paid to expert witnesses, court fees, and other third-party costs such as photocopying costs

Answer 61

* court fees (filing fees, hearing fees, and the fee for a jury if a party requests a jury) or tribunal fees (possibly filing fees and hearing fees) * mediation fees (the costs of a mediator and possibly the costs of the venue where the mediation is held). Whether mediation fees are incurred will depend on whether the mediation is privately organised, or organised by the court or tribunal * fees for expert witnesses (witnesses who are called to give their expert opinion, such as a medical expert called by the plaintiff to give evidence about the injuries they have suffered) * the costs involved in using technology to manage documents that are relevant to the dispute. In larger disputes, there may be millions of documents, and the parties may use technology to manage and sort through those documents, particularly for the purposes of discovery.

Answer 62

The nature and amount of disbursements will depend on the case and whether the claim is heard in a court or tribunal.

Answer 63

a court order (i.e. legal requirement) that a party pay the other party's costs

Answer 64

If the plaintiff is unsuccessful in a claim they have initiated in court, then not only will they have to pay for their own legal costs, but they may be ordered to pay for some of the defendant's costs. This is known as an adverse costs order.

Answer 65

The general rule in civil disputes is that a successful party should receive an order from the court that their costs are paid by the losing party.

Answer 66

The fear of having an adverse costs order made against them could deter a plaintiff from initiating a civil claim.

Answer 67

* how much it will cost to have the dispute resolved * whether they have the money to pay for those costs * whether the damages that may be awarded outweigh the costs involved in making the claim * whether they are eligible for legal aid or free legal assistance through other means * whether they have the money to pay for the costs of the defendant if an adverse costs order is made * what the risks are if they are ordered to pay the other side's costs and cannot afford to do so (e.g. will they have to sell their assets to pay those costs?).

Answer 68

the restriction on bringing a civil claim after the allowed time

Answer 69

a law made by parliament; a bill that has passed through parliament and has received royal assent (also known as legislation or an Act of Parliament)

Answer 70

Limitation of actions refers to the restriction placed on the time within which a civil action can be commenced.

Answer 71

For most types of claims, the plaintiff will need to commence the proceeding within a certain period of time. Once that period has passed, the plaintiff may be 'time barred' (prevented) from seeking remedy.

Answer 72

* the defendant does not have to face an action after a significant amount of time * evidence is not lost and people can still remember what happened * disputes can be resolved as quickly as possible, to promote social cohesion. That is, it is in the best interests of the community that disputes be settled quickly so that they do not 'linger' or 'fester' in the community.

Answer 73

In Victoria the main statute that imposes limitations on actions is the Limitation of Actions Act 1958 (Vic).

Answer 74

Depending on the type of claim, there are different limitation periods. For example, a plaintiff has one year to bring a defamation claim, and six years to bring a claim for breach of contract.

Answer 75

The effect of the expiry of any limitation period means that the plaintiff may be barred from obtaining any remedy.

Answer 76

In 2015 Victoria became the first state to remove limitation periods for persons who suffered physical or sexual abuse as a minor, or psychological injury that arose out of that abuse.

Answer 77

* by settling with the defendant before the court or tribunal hands down a decision * by the court or tribunal making a decision about liability and awarding a remedy such as damages.

Answer 78

Before initiating a claim, the plaintiff needs to consider whether the defendant is able to pay, and if so, whether the defendant will pay. Some of the issues that the plaintiff will need to consider are: * whether the defendant has assets or money to pay anything to the plaintiff. For example, the defendant may be bankrupt (a formal process where the defendant acknowledges they are not able to pay their bills) and therefore not have any money available to them * even if the defendant is not bankrupt, they may still be unable to pay * the defendant may be in jail, particularly if the civil dispute arose out of a criminal action, and the defendant has been found guilty and imprisoned. It may therefore be more difficult to enforce the remedy. Alternatively, the defendant may be overseas or uncontactable, in which case it may be difficult to force them to pay any money * if the defendant is a company, whether that company has any assets * if the defendant has no assets or money, whether they have access to any other money (e.g. a loan from family or friends, or from a bank) to be able to pay the plaintiff.

Answer 79

Even if the defendant can pay, the plaintiff may have to issue enforcement proceedings to force a defendant to comply with a remedy. An example of an enforcement mechanism is obtaining from the court a warrant to direct the court sheriff to seize (take) the defendant's goods and sell them.

Answer 80

In short, the plaintiff needs to consider whether initiating a claim is worth it. They may spend money on legal costs and be successful in a claim, only for the remedy to never be satisfied because they are unable to enforce it. Therefore, a plaintiff may wish to investigate the ability of a defendant to pay before they initiate a claim. The plaintiff might also consider whether some other person who has the ability to pay might be liable. For example, if the plaintiff can prove the defendant was acting in the course of their employment, the defendant's employer may be liable for their actions. This is called vicarious liability).

Answer 81

* The costs associated with the civil justice system include fees for legal representation, disbursements (court fees, mediation fees, expert witness fees) and possible costs to be paid to the other side if the plaintiff is not successful. * The costs involved will depend on the matter; larger, more complex matters will likely cost more. * The high cost is something that a party needs to consider, particularly in light of how much they are seeking. Will the costs be more than what they are claiming? * The plaintiff may have to consider whether they are eligible for any free legal assistance, or whether they have the capacity to pay their costs or the defendant's costs if they are required to do so. * Costs should also be considered in light of limitation of actions and enforcement issues.

Answer 82

* Plaintiffs must bring their case to court within a time limit. Once the time has passed, the plaintiff may be time barred from seeking a remedy. * The time depends on the nature of the claim. * The purpose is to ensure disputes are resolved quickly, evidence is not lost, and defendants do not have to face a civil claim long after the events occurred. * Limitation of actions also need to be considered in light of costs; a plaintiff may need to spend money seeking an extension of the limitation period and will need to factor this in.

Answer 83

* Enforcement issues relate to whether the defendant refuses to pay, or cannot pay, damages. * Issues can prevent a defendant from paying, such as where the defendant has no assets or money, is overseas, is in jail, or is a company and has no access to resources. * Otherwise, a defendant may refuse to pay, in which case the plaintiff may need to spend money on legal proceedings to enforce the remedy. * The plaintiff will need to consider whether it is worth it and may need to conduct research on the defendant before they initiate the claim. They may also wish to consider whether someone else may also be liable and can 'pay.

Answer 84

* fairness * equality * access

Answer 85

one of the principles of justice; in VCE Legal Studies, fairness means all people can participate in the justice system and its processes should be impartial and open

Answer 86

an independent third party (i.e. person) appointed to settle a dispute during arbitration. Arbitrators have specialised expertise in particular kinds of disputes and make decisions that are legally binding. The decision is known as an arbitral award

Answer 87

a situation in which a fair-minded lay observer might reasonably believe that the person hearing or deciding a case (e.g. a judge or magistrate) might not bring an impartial mind to the case

Answer 88

impartial processes, open processes and participation

Answer 89

In both the criminal and civil justice systems, our courts and personnel, including judges, magistrates, jury members, mediators and arbitrators, must be independent and impartial. They must not be biased towards or against either party, and the case must be decided based on facts and law, not on prejudices.

Answer 90

The requirement for impartiality extends to ensuring there is no apprehended bias. This means that a person involved in deciding the case (e.g. a judge) may need to remove themselves from the case if there is an apprehension (belief or suspicion) that they might not have an impartial and unprejudiced mind.

Answer 91

Like criminal cases, civil trials and hearings should be open to the public and the court's judgment should be given in public.

Answer 92

This ensures the administration of justice is transparent and open to scrutiny.

Answer 93

In general, civil trials and hearings, and tribunal hearings, are open. Court judgments are made available to the public (online), so people can be informed about the operations of the courts and tribunals and see 'justice being done'. There are, however, many instances in the civil justice system where disputes may be resolved in private. This is largely because of the private nature of civil disputes (as opposed to the public interest in criminal cases) and the ability of the parties to decide how their civil dispute should be resolved. For example mediation.

Answer 94

all people should be able to participate in the civil justice system

Answer 95

This primarily relates to the two parties - the plaintiff and the defendant - but can also extend to participation in the civil justice system by members of the community who serve on a jury.

Answer 96

information, documents and other material used to prove the facts in a legal case

Answer 97

the questioning of a witness called by the other side in a legal case

Answer 98

any order made by a court (or tribunal) designed to address a civil wrong or breach. A remedy should provide a legal solution for the plaintiff for a breach of the civil law by the defendant

Answer 99

* opportunity to know the case put against them * opportunity to present their version of the case * use of an interpreter * no delays

Answer 100

both parties should have the opportunity to know the case that is put against them. This includes a requirement for the plaintiff and the defendant, before trial, to disclose their claims and defences, and all the relevant documents and evidence they will rely on in support of their case. This can be achieved through pre-trial procedures, which are steps taken by the parties before trial to try to narrow the issues in dispute, which provide an opportunity for the other side to understand the case that is put against them, and which try to limit the scope of the dispute. It also extends to participation in trial or hearing processes

Answer 101

both parties should have the opportunity to make submissions, call their own witnesses, and produce documents in support of their case and in an attempt to show why they are right, and the other side is wrong. They should also have the opportunity to conduct a cross-examination of the other side's witnesses

Answer 102

if a person is not able to understand English, they should have access to an interpreter. However, free interpreter services are not available for people involved in civil matters

Answer 103

a fair trial or hearing is one where there are no unreasonable delays. Delays can lead to unfair outcomes, such as witnesses forgetting what happened, or the plaintiff being so old that they cannot 'enjoy' any remedy awarded to them.

Answer 104

Fairness in a civil case does not mean that every plaintiff should have the same outcome or remedy for every dispute of the same nature. As with the criminal cases, fairness is not about the outcome of the case. Instead, it is about the processes used to ensure a proper outcome.

Answer 105

one of the principles of justice; in VCE Legal Studies, equality means 'all people engaging with the justice system and its processes should be treated in the same way. If the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow everyone to engage with the justice system without disparity or disadvantage'

Answer 106

a situation in which two or more things or people are not equal, and the inequality causes unfairness

Answer 107

a person before a court or tribunal who has not engaged (and is not represented by) a lawyer or other professional

Answer 108

Equality is about how the parties are treated in the proceeding, which could involve same treatment, or different treatment.

Answer 109

- Same treatment - Different treatment

Answer 110

As in the criminal justice system, the parties to a civil dispute should be treated in the same way. This is known as 'formal equality'; all people are treated the same and given the same levels of support, regardless of who they are.

Answer 111

By way of example, as explained above, courts use pre-trial procedures as part of resolving disputes, which are steps taken by the parties before trial to try to narrow the issues in dispute and to resolve the dispute before hearing or trial. If both parties are treated the same, then the court will require both parties to complete these pre-trial procedures, regardless of who they are or whether they are represented by a lawyer.

Answer 112

The second feature of equality is that sometimes people need to be treated differently; known as 'substantive equality'. Sometimes, treating two parties the same way results in disparity or disadvantage.

Answer 113

For example, in an attempt to 'level the playing field' in a case where one party has legal representation and the other does not, the judge may need to assist the self-represented party by explaining the pre-trial procedures, or the court may need to assist the self-represented party by giving them instructions on how to complete those procedures.

Answer 114

To achieve equality, the courts have recognised that changes may need to be made to processes to try to avoid, as much as possible, any disparity or disadvantage suffered by a person because of who they are.

Answer 115

a solemn declaration by which a person swears the truth on a religious or spiritual belief. Without the religious or spiritual belief, it is called an affirmation

Answer 116

* assistance to a self-represented party * interpreters * changes to court or tribunal processes * different form of giving evidence

Answer 117

a judge or magistrate may need to take steps to explain certain rights or processes to a self-represented party, such as explaining what it means to cross-examine a witness; or they may have to provide some flexibility to the self-represented party when they may get things wrong (such as asking a witness a question they should not ask)

Answer 118

interpreters may be required for people who are not able to understand or communicate in English

Answer 119

there may be a need for information to be communicated in a different way. For example, people with no or little English may need to get information in their own language; and in some situations there may be a need to speak more slowly and in an ordinary tone

Answer 120

in some circumstances, it may be necessary to change processes. For example, the use of audio-visual links may be needed to assist people who are overseas or in a remote area

Answer 121

people who do not practise a religion can choose not to 'swear by almighty God'; alternatively, those who do practise a religion may wish to swear an oath using a particular religious text.

Answer 122

one of the principles of justice; in VCE Legal Studies, access means that all people should be able to engage with the justice system and its processes on an informed basis

Answer 123

- Engagement - Informed basis

Answer 124

People should be able to use and participate in the civil justice system and its processes.

Answer 125

* providing a range of dispute resolution methods * physical access * technological access * financial access * no delays

Answer 126

The consumer affairs regulator in Victoria, with advisory. information, compliance and enforcement roles

Answer 127

a tribunal that deals with disputes relating to a range of civil issues heard by various lists (sections), such as the Human Rights List, the Civil Claims List and the Residential Tenancies List

Answer 128

using the courts to resolve a civil dispute can be costly and intimidating, so people need to have access to dispute resolution bodies and methods other than courts, including: - complaint bodies, such as Consumer Affairs Victoria (CAV) - tribunals, such as the Victorian Civil and Administrative Tribunal (VCAT)

Answer 129

people should be able to physically access the courts, tribunals, services or legal representation. This may be more difficult for people in rural or remote areas, or for people who have disabilities that mean they are not able to physically attend

Answer 130

if virtual or online methods are used to provide services or even conduct hearings, then people should be able to engage with those methods. This may be more difficult for people with special needs, those who are not able to use technology, or for people who do not have computer access (such as the elderly)

Answer 131

people should not be prohibited from using the civil justice system because they do not have the financial means to do so. This has historically been one of the greatest challenges of the civil justice system, in that it is seen to be expensive and out of reach for some

Answer 132

the ability to engage in the civil justice system also extends to the ability of the justice system to be able to resolve the case without unreasonable delays. Delays impact on access as it limits the ability of the system to achieve a just outcome, particularly if it impacts on people's memories about what happened.

Answer 133

For people to engage with the civil justice system, they should be able to get information and use the procedures, methods and institutions that resolve a civil dispute. This includes the courts, tribunals, and bodies and institutions that provide legal advice, education, information, assistance and representation. People should also be informed about their rights, when those rights may have been infringed, and what remedies may be available to them.

Answer 134

* education * information * legal services * legal representation

Answer 135

a person who has a better understanding of the civil justice system or their rights may be better informed than others. Young people, people who are not familiar with our justice system, or people with lower literacy levels may be at a disadvantage in understanding the civil justice system

Answer 136

people should have access to information about the civil justice system, how to resolve disputes, and their rights. This information may be available from the courts, tribunals or other bodies such as community legal centres. For example, CAV has information on its website and also provides information to people about their rights and where they can go to get help for their problem

Answer 137

people should have access to legal services. The legal services could be to inform people of their rights, or to advise them on the best way to resolve a dispute

Answer 138

having legal representation is one of the most effective ways for a person to be informed about the civil justice system, as legal practitioners are skilled and experienced in dispute resolution processes, the law and rights. Therefore, there may be greater access to justice if a person is able to afford legal representation.

Answer 139

Parties and dispute resolution bodies can use a range of methods to resolve civil disputes. These include mediation, conciliation and arbitration, which are often referred to as alternative dispute resolution methods (ADR).

Answer 140

ways of resolving or settling civil disputes without having a court or tribunal hearing le.g. mediation, conciliation and arbitration); also known as appropriate dispute resolution methods

Answer 141

Mediation, conciliation and arbitration are dispute resolution methods that can be used by the parties without going to a court or tribunal. However, these methods are also used by dispute resolution bodies, such as courts and tribunals, to resolve disputes as an alternative to a final hearing or trial.

Answer 142

Very few civil cases initiated in court will proceed to a final hearing or trial; in fact, it is estimated that fewer than 5 per cent of cases will proceed to hearing. Most cases settle before the final hearing or trial, often because the parties have attended mediation.

Answer 143

a method of dispute resolution that uses an independent third party (i.e. a mediator) to help the disputing parties reach a resolution

Answer 144

an independent third party who does not interfere or persuade but helps the parties in a mediation as they try to reach a settlement of the matter

Answer 145

a document that sets out the terms on which the parties agree to resolve their dispute

Answer 146

Mediation is a cooperative method of resolving disputes that is widely used by courts, tribunals and other dispute resolution bodies. It is a tightly structured, joint problem-solving process in which the parties in conflict sit down and discuss the issues involved, develop options, consider alternatives and try to reach an agreement through negotiation and compromise.

Answer 147

They do this with the help of an independent mediator who, rather than advocating (or arguing) for either party, facilitates communication between the parties and encourages them to reach their own agreement to resolve the dispute. Any decision reached is voluntarily made by the parties (not the mediator).

Answer 148

If the parties come to a decision, they may sign terms of settlement or a deed of settlement, which reflects their agreement about the way they will resolve their dispute. The terms of settlement may then be enforceable through a court if one of the parties does not follow through with the promises they made.

Answer 149

If the plaintiff issues their claim in court, the court will generally order the parties to go to mediation before the final trial or hearing, with or without the consent of the parties.

Answer 150

The mediator can be appointed by the court or agreed on by the parties.

Answer 151

The cost of the mediation is usually split between the parties.

Answer 152

Associate judges (judges who have certain powers to resolve disputes) in the County Court and Supreme Court can also mediate disputes. This is known as 'judicial mediation'.

Answer 153

In 2021-22, the Supreme Court of Victoria estimated that 1035 hearing days were saved through using judicial mediation. This was in addition to savings in litigation costs, courtroom facilities, judgment writing time and reduction in stress on parties who are going through litigation.

Answer 154

The Victorian Civil and Administrative Tribunal (VCAT) also often refers a claim to mediation before a final hearing.

Answer 155

Alternatively, the parties may attempt to mediate the dispute at any time prior to or after they initiate a claim.

Answer 156

Mediators can be accessed through centres, such as the Dispute Settlement Centre of Victoria, or through private mediation service providers.

Answer 157

- two disputing parties, with possible representatives - third party = mediator whose role is to facilitate communication between the parties - resolution is made by the parties, voluntarily - resolution may be enforceable if terms of settlement entered into - used extensively in Victorian courts and VCAT

Answer 158

a method of dispute resolution that uses an independent third party (i.e. a conciliator) to help the disputing parties reach a resolution

Answer 159

the independent third party in a conciliation, who helps the parties reach an agreement that ends the dispute between them. The conciliator can make suggestions and offer advice to assist in finding a mutually acceptable resolution, but the parties reach the decision themselves

Answer 160

Conciliation, another co-operative method of dispute resolution, involves the use of an independent third party, a conciliator, to assist the disputing parties to resolve their conflict through negotiation and compromise. Rather than making the decision to resolve the dispute, the conciliator listens to the facts, makes suggestions about possible ways to resolve the dispute and assists the parties to reach their own mutually acceptable agreement or decision.

Answer 161

Conciliation can differ from mediation in that the conciliator has more influence over the outcome.

Answer 162

The conciliator, who is usually someone with specialist knowledge, suggests options and possible solutions and is more directive than a mediator.

Answer 163

However, their processes are very similar. Like with mediation, the parties can agree to enter into terms of settlement which document the basis upon which the parties agreed to resolve the dispute.

Answer 164

Generally, the courts do not use conciliation, preferring to refer parties to mediation. However, all courts have the power to order any civil dispute issued in court to attend conciliation.

Answer 165

Conciliation is used by other bodies, such as Consumer Affairs Victoria (CAV), which you will learn about later in this chapter. VCAT can also order parties to take part in a compulsory conference to identify and clarify the nature of the issues in dispute in the proceedings, and to promote a settlement before a matter is heard in the tribunal. This conference is conducted using a conciliation-like process Otherwise, like mediation, parties can themselves arrange a conciliation at any time.

Answer 166

- two disputing parties, with possible representatives - third party = conciliator whose role is to facilitate communication between parties, and offer suggestions and solutions - resolution is made by the parties, voluntarily - it may be on the advice of the conciliator - resolution may be enforceable if terms of settlement entered into - used primarily by CAV and VCAT

Answer 167

* whether the relationship between the parties will continue (e.g. the dispute is between neighbours or family members, or between employer and employee). In this situation, mediation and conciliation may help to preserve the relationship * whether the parties are willing to meet in a spirit of compromise and stick to any agreement reached. If so, then mediation and conciliation may be more appropriate. If there is a history of broken promises or the parties do not show a willingness to compromise, they may be less appropriate * whether there is a history of violent and threatening behaviour. In this case, it may be inappropriate for the parties to come together in such a setting * whether one or both of the parties want the dispute to be resolved privately or confidentially (in which case mediation and conciliation may be appropriate), or whether they want a public record of what occurred or the plaintiff wants to 'make a point' about the defendant's conduct * when the mediation or conciliation is to be held. If it is held too early, when the parties do not yet know the details of the claim or how much is in dispute, then it may fail to resolve. It may also be held too late, when the parties have already spent so much money on the claim that they feel they must go to trial or hearing on the issues * whether the matter is urgent. If so, and there is a need for urgent court intervention, the parties may not be able to wait for a mediation or conciliation to be held * whether there is a gross imbalance of power. If that is the case, the other party may prefer to resolve it in court or at a tribunal.

Answer 168

- Mediation and conciliation involve an independent, impartial third party the mediator or conciliator who does not take sides but facilitates the discussion and may assist the parties to reach a resolution themselves. - Mediation and conciliation are much less formal than a court hearing, and therefore are likely to be much less intimidating, stressful and daunting for parties, particularly those who do not have experience in civil disputes. - Mediation and conciliation are conducted in a safe and supportive environment, in a venue that is suitable for both parties rather than a venue such as a courtroom, which one or both parties may find confronting or difficult to attend. - If successful, mediation and conciliation can save significant time in waiting for a final hearing or trial. They also save the costs of the final trial or hearing, which can be significant. This can also be a saving for the civil justice system itself. - Mediation and conciliation are normally conducted in private. This can be beneficial particularly for a party who wishes to keep the settlement confidential.

Answer 169

- The decision reached may not be enforceable, or may be difficult to enforce, depending on the terms of settlement. If that is the case, there may be a lot of money and time spent on reaching a resolution, but the plaintiff will need to continue with their case anyway if the defendant fails to comply with the terms. - Because the court is not deciding the case, one party may compromise too much, or one may be more manipulative or stronger, so that the other party may feel intimidated. - One of the parties may refuse to attend, or if they do attend, they may refuse to participate, in which case it may be a waste of time and money. - If the matter does not resolve, then it may be a waste of time and money. Often the parties have to spend money on legal fees preparing for and attending the mediation or conciliation, only for it to be unsuccessful. - Particularly for high-profile disputes where the community may have an interest in the outcome, there is no 'open justice' or no ability to know what the outcome was, or whether the defendant admitted that they were liable.

Answer 170

a method of dispute resolution in which an independent person (an arbitrator) is appointed to listen to both sides of a dispute and make a decision that is legally binding on the parties. The decision is known as an arbitral award

Answer 171

a legally binding decision made in arbitration by an arbitrator

Answer 172

Arbitration is a method of resolving disputes without a formal court process. An independent arbitrator (a third party given the task of presiding over the discussion) will listen to both sides and make a decision that is binding on the parties. Unlike mediation and conciliation, in an arbitration the arbitrator makes a final and binding decision. The final order is known as an arbitral award, and it is enforceable.

Answer 173

Arbitration is often conducted in private, and it can be less formal and more cost-effective than attending a court hearing or trial. Parties have much more control over the process and are free to agree on the procedure. For example, they may be able to agree on how evidence is to be submitted, or the time by which steps are to be completed.

Answer 174

* is not bound by rules of evidence but may inform themselves on any matter as they think fit * must ensure that the parties are treated equally and each party is given a reasonable opportunity to present their case * is not required to conduct the proceedings in a formal manner.

Answer 175

* the parties have agreed to settle their dispute by arbitration. For example, a contract between two parties might include a clause stating that if a dispute arises, both parties agree to follow the decision of an independent arbitrator * the court orders the parties to arbitration (though the consent of the parties is required for this to occur) * the claim has been filed in the Magistrates' Court and the plaintiff is seeking $10 000 or less, in which case the Court will normally hear the case through arbitration.

Answer 176

- two disputing parties, with possible representatives - third party = arbitrator whose role is to listen to the evidence and arguments of the disputing parties, then make a decision - resolution is decided by the arbitrator - arbitral award is legally binding - used in the Magistrates Court for claims of less than $10 000, and in private and commercial disputes

Answer 177

The courts and VCAT have power to refer disputes to arbitration prior to a final hearing or trial, as long as the parties consent (with the exception of small claims in the Magistrates' Court). For small claims in the Magistrates' Court (less than $10000), the Magistrates' Court can refer a dispute to arbitration by a magistrate.

Answer 178

Otherwise, arbitration is commonly used in a private setting, where it is arranged by the parties themselves because there is a term in the contract which states that the parties must arbitrate if a dispute arises.

Answer 179

Arbitrators can be found using institutions such as the Resolution Institute or the Victorian Bar. The Melbourne Commercial Mediation and Arbitration Centre offers facilities for an arbitration, which can be booked by the parties.

Answer 180

* whether the parties have agreed to arbitrate the dispute, or the claim is less than $10000 and has been issued in the Magistrates' Court. If so, then arbitration is appropriate. If not, then the parties may not be willing to arbitrate the dispute * whether the parties want the benefit of a binding and enforceable decision made by an independent third party, or whether they would prefer to have control over the outcome and decide on that outcome themselves (in which case, a method such as mediation may be more appropriate) * whether the parties wish to have the dispute considered by a third party and want evidence to be presented to that third party as part of the dispute so that it can be finally decided on * whether both or one of the parties want the dispute to be resolved privately or confidentially (in which case it may be more appropriate), or whether they want a public record of what occurred or the plaintiff wants to 'make a point' about the defendant's conduct (in which case it may be less appropriate).

Answer 181

- The decision is binding and is fully enforceable through the courts. This means that there is certainty in the outcome. - The arbitration is normally held in private and will be confidential, which can be beneficial for parties wishing to avoid the publicity of a trial. - The parties have control over how the arbitration is conducted, by determining how evidence is to be presented and when steps are to be undertaken. - The arbitrator is generally an expert on the subject matter and is required to act impartially when making a binding decision.

Answer 182

- The parties have no control over the outcome, which will be imposed on them by the arbitrator. This means that a party could lose' or win', without feeling like they have both won and lost las can be the case in a mediation). - It is not available if the parties have not agreed to this form of dispute resolution, or if the claim is not a small claim in the Magistrates Court. - It can be costly and take a long time depending on the nature of the dispute and the way the parties have decided to resolve it. For example, if the parties have agreed to exchange evidence and have a hearing, this will be much more expensive than a mediation. - Arbitrations can be formal if the parties have agreed on a formal method of arbitration, adding to the stress, time and costs.

Answer 183

This means they are ranked in order of the complexity and severity of cases that they hear. The Magistrates' Court is at the bottom of the hierarchy and deals with less serious issues. The Supreme Court of Victoria is the highest Victorian court.

Answer 184

the ultimate court of appeal in Australia and the court with the authority to hear and determine disputes arising under the Australian Constitution

Answer 185

an application to have a higher court review a ruling (decision)

Answer 186

The High Court is a federal court. It can hear appeals from the Court of Appeal, but a party must first get the High Court's leave (permission) to appeal.

Answer 187

* ensure administrative convenience * allow for appeals to be made.

Answer 188

Using a hierarchy for courts means that cases can be distributed according to their seriousness and complexity. Less serious and less complex cases are heard in lower courts, while more serious and more complex cases are heard in the higher courts.

Answer 189

Minor civil disputes (claims where the plaintiff is seeking $100 000 or less) can be heard in the Magistrates' Court. These cases can be heard quickly and less expensively in the Magistrates' Court. Because there are a significant number of smaller disputes in Victoria, there are a greater number of magistrates, and there are more Magistrates' Courts across the state. If smaller claims had to be heard in the higher courts along with larger claims, then they would take longer to hear. With the Magistrates' Court hearing smaller disputes, they can then allocate resources and create processes to ensure those disputes are resolved efficiently.

Answer 190

The more serious and complex civil disputes are heard in the County Court and the Supreme Court, which both have an unlimited jurisdiction. Technically, a plaintiff with a large claim could choose to file it in either the County Court or the Supreme Court, but will generally opt for the Supreme Court when the matter is significantly large or complex, or is of a particular type of dispute that is better suited to Victoria's highest court (e.g. a complicated construction dispute). By being part of a court hierarchy, the County and Supreme Courts can more easily manage the allocation of time for the longer, more complicated cases. Class actions are only heard in the Supreme Court. They take longer to hear and require judges who are experts in managing class actions.

Answer 191

- High Court of Australia (federal) - Supreme Court of Victoria (Court of Appeal) - Supreme Court of Victoria (Trial Division) - County Court of Victoria - Magistrates Court of Victoria

Answer 192

a legal proceeding in which a group of seven or more people who have a claim against the same person based on similar or related facts bring that claim to court in the name of one person; also called a representative proceeding or a group proceeding

Answer 193

Someone who is dissatisfied with a decision in a civil trial can, if there are grounds for appeal, take the matter to a higher court.

Answer 194

* a point of law (also known as a question of law) - where the law has not been correctly applied; for example, the court heard inadmissible evidence, or applied the wrong legal test in the case * a question of fact - whether the facts of the case had been applied appropriately to reach the decision * the remedy awarded - the way in which a court enforced a right, or the order that was made by the lower court.

Answer 195

If there were no court hierarchy, then there would be no higher court to review a decision that a party believes has been made in error. Therefore, having a court hierarchy ensures there is a system by which a decision can be reviewed by a more superior court. That is, it is accepted that sometimes, our courts get it wrong

Answer 196

Most civil disputes now require leave to appeal. Getting the court's consent to hear an appeal in a civil case will usually require the party to satisfy the court that there is a real prospect of success. Both the Court of Appeal and the High Court can determine special leave applications 'on the papers', which means that no formal hearing may be required.

Answer 197

The aim of hearing applications this way is to streamline processes and to reduce the time, costs and stress involved in a formal hearing

Answer 198

Claims of up to $100000

Answer 199

Unlimited in all civil claims

Answer 200

Unlimited in all civil claims

Answer 201

No original jurisdiction

Answer 202

No appellate jurisdiction

Answer 203

No appeals, unless given power under a specific Act of Parliament

Answer 204

On a question of law from the Magistrates Court (unless the Chief Magistrate made the order) and from VCAT lunless the President or a vice-president made the order)

Answer 205

* All appeals from a single judge of the County Court or Supreme Court * On a question of law from the Magistrates' Court when the Chief Magistrate made the order * On a question of law from VCAT when the President or a vice-president made the order

Answer 206

- A court hierarchy allows courts to adopt different processes and use their resources in a way that ensures cases can be resolved efficiently. For example, given the volume of smaller cases heard in the Magistrates' Court, there are more magistrates, and more court venues. - A court hierarchy allows appeals to be made by both parties if there is an error in the original decision.

Answer 207

- The different courts may be confusing for people who do not understand the civil justice system. This can be particularly so where there are overlapping jurisdictions (e.g. County Court and Supreme Court) or for self-represented parties. - There is no automatic right to appeal, and appeal processes are difficult to understand without a lawyer, particularly as there is generally the need to establish grounds for appeal

Answer 208

* the judge or magistrate, depending on the court * the jury (if there is one) * the parties (the plaintiff and the defendant).

Answer 209

If the plaintiff issues the claim in the County Court or Supreme Court, the judge will be the central figure with authority over the case.

Answer 210

If the plaintiff issues the claim in the Magistrates' Court, the magistrate will have the primary role.

Answer 211

Unlike criminal trials, where indictable offences start in the Magistrates' Court and then move to one of the higher courts, civil cases do not generally involve a court other than the court in which the plaintiff issues the claim.

Answer 212

the judge (in County and Supreme Court cases) or magistrate (in Magistrates' Court cases) acts as an impartial and independent 'umpire' or 'referee' in a trial, ensuring that the court procedures are carried out in accordance with the court's rules and that each of the parties is treated fairly.

Answer 213

Where there is no jury to decide on the facts, the judge (in the higher courts) must make a decision on liability based on the facts and assess damages where necessary. In the Magistrates' Court, where there is never a jury, the magistrate will decide on liability and remedy.

Answer 214

In fact, in most civil cases there is no jury, therefore the judge or magistrate plays a central role in the case.

Answer 215

- act impartially - case management (before trial or hearing) - case management (during trial or hearing) - determine liability and the remedy - decide on costs

Answer 216

The judge or magistrate in a civil case must be impartial. This means the judge or magistrate must ensure that they oversee the case and make a decision on liability without any bias toward or against either party. Judges and magistrates are also independent of government and the parliament. They do not make decisions in favour of political parties or in favour of a particular interpretation of the law. The use of an independent and impartial judge or magistrate ensures that the rule of law is upheld.

Answer 217

Another role of the judge (or magistrate) is to manage the case during the pre-trial stages. Judges and magistrates do not only become involved in cases at the hearing or trial stage; rather, they will be actively involved in ensuring the case is ready for trial.

Answer 218

In doing so, they will aim to ensure the just, efficient, timely and cost-effective resolution of the real issues in dispute.

Answer 219

a method used by courts and tribunals to control the progress of legal cases more effectively and efficiently. Case management generally involves the person presiding over the case (e.g. the judgel making orders and directions in the proceeding le.g. an order that the parties attend mediation)

Answer 220

instructions given by the court or tribunal to the parties about time limits and the way a civil proceeding is to be conducted

Answer 221

The Victorian Parliament has passed laws that give powers to Victorian judges and magistrates to actively manage civil disputes in Victorian courts. This gives judges and magistrates significant powers of case management. One of these powers is the power to give directions to the parties.

Answer 222

A direction is an instruction given by the court to one or more of the parties, which imposes an obligation on a party to do something by a certain time or specifies how a civil proceeding is to be conducted. It might be that one of the parties has to file a particular document by a certain date, or that both parties must attend mediation by a certain time.

Answer 223

For example, the judge or magistrate may give directions to the parties to complete pre-trial procedures to ensure the case is ready for trial, the issues in dispute are narrowed, or the parties have an opportunity to settle the case before trial.

Answer 224

- Discovery - mediation

Answer 225

which enables the parties to get copies of each other's documents that are relevant to the issues in dispute. The judge or magistrate also has the power to limit discovery to a certain category or categories of documents, or even make different discovery orders in relation to each party. Often, 'discovery' occurs electronically, with the parties exchanging their documents using a document management platform, or by email

Answer 226

The judge (or magistrate) may order the parties to attend mediation by a certain date to try to resolve the dispute before trial. Most civil proceedings in the Supreme Court go to mediation before trial, and mediation is considered successful in helping to resolve disputes.

Answer 227

Judges and magistrates maintain control of a proceeding by giving directions along the way, so that delays can be minimised and the parties know what procedures they need to follow.

Answer 228

Directions can be given at any time, but can be also given at what are known as directions hearings, which are pre-trial hearings before a judge or an associate judge (in the higher courts) or the magistrate in some civil matters (in the Magistrates' Court).

Answer 229

Penalties can be imposed on a party who fails to comply with a direction of the court.

Answer 230

a pre-trial procedure at which the court gives instructions to the parties about time limits and the way the civil proceeding is to be conducted

Answer 231

The judge (or magistrate) also has the role of managing the trial or hearing. Generally, a final hearing will be conducted according to a set procedure (e.g. the plaintiff will present the case, followed by the defendant), but the judge or magistrate has the power to change this procedure.

Answer 232

* change the order in which evidence is to be given, or who will go first in addressing the court * limit the time for the hearing or trial * limit the examination of witnesses, or not allowing cross-examination of particular witnesses * limit the number of witnesses that a party may call * limit the length or duration of the parties' submissions to the court * limit the number of documents that a party may tender into evidence. * power to ask a witness some questions to clarify their evidence * hand down rulings throughout the trial where necessary.

Answer 233

evidence given by a person who did not personally witness the thing that is being stated to the court as true

Answer 234

The judge or magistrate can make such a ruling at any time. It is more common in the higher courts, which hear more complex disputes that run over a number of days or weeks and where issues may arise mid-trial.

Answer 235

In most civil trials, in the higher courts, there is no jury, and there is no jury available in the Magistrates' Court.

Answer 236

However, if there is a jury in the higher courts, the judge may need to address the jury during the trial, give directions to the jury, and sum up the case to the jury at the conclusion of trial.

Answer 237

If one or both of the parties is self-represented (not represented by a lawyer), the judge or magistrate has the additional responsibility of ensuring they understand processes and their obligations and rights.

Answer 238

If there is no jury in the civil trial, the judge must decide whether the plaintiff has established their claim against the defendant, and if so, what remedy (if any) should be awarded. This means that the judge, not a jury, is the decider of facts. In Magistrates' Court civil cases, there is no option for a jury, therefore the magistrate will determine both liability and the remedy.

Answer 239

Judges and magistrates will generally 'reserve' their decision and deliver it a later time. In doing so, they will normally provide their written reasons for their decision.

Answer 240

These written reasons, known as 'court judgments', should be delivered in a timely manner and in a way that is accessible and readable. What is timely will depend on the complexity of the case, but parties should not have to wait significant months or years for judgment.

Answer 241

a statement by the judge that outlines the decision of the court and the legal reasoning behind the decision

Answer 242

After each hearing in a civil case the judge or magistrate will decide which party should bear the costs. The general rule is that working out the costs is left to the end, and the successful party is entitled to costs, but that is not always the case.

Answer 243

* A judge or magistrate in a criminal case and in a civil case is expected to act impartially and without bias, making decisions during the case on facts. * Both judges/magistrates will have the role of assisting a self-represented party if the accused or one of the parties in the civil dispute is not represented by a lawyer. * Both criminal and civil judges and magistrates have the role of instructing a jury and giving directions to the jury, if there is one in a civil case. This is not applicable to magistrates as there is no jury in the Magistrates Court.

Answer 244

* A judge in a civil trial may have to decide on liability if there is no jury, and a magistrate in a civil case will decide on liability if the case is heard in the Magistrates Court. However, a judge in a criminal trial in the higher courts will not decide guilt; this is left to the jury. * A judge in a civil trial may have to decide on a remedy land a magistrate will decide on a remedy if a party proves their claim), whereas in a criminal case a judge or magistrate decides the sanction if the accused is guilty of committing a crime. * A judge/magistrate can order both parties to undertake procedures such as mediation and discovery. While a judge or magistrate in a criminal case also has case management powers, they do not extend to ordering procedures such as these, which are civil dispute procedures.

Answer 245

- Judges and magistrates act as an impartial umpire. They oversee the trial process, but they do not overly interfere in a trial, nor do they 'enter the arena'. Therefore, no one party is advantaged or disadvantaged because the judge or magistrate 'takes sides. - Judges and magistrates are experts in law, legal processes and cases, and can use this expertise in managing the case and in making a decision on liability. - Judges and magistrates manage the case both before and during the trial. They have significant case management powers to ensure that disputes are resolved in a just, efficient, timely and cost-effective manner. For example, they can limit discovery, or limit the time people have to take to make submissions at trial. - Judges and magistrates are able to assist self-represented parties, such as explaining cross-examination processes, or explaining what discovery is.

Answer 246

- Judges and magistrates are human, and there are some risks that they may have actual or apprehended bias that impacts their decision-making, such as when they are fatigued. - The cultural and general diversity of judges and magistrates has previously been criticised by some, which may increase any distrust felt by some people in the community about whether the outcome will reflect a just outcome. - The extent to which a case is managed by a judge or magistrate may depend on the case and who is overseeing it. Some cases may be less actively managed than others, or there may be situations where the parties continually fail to comply with pre-trial steps but no consequences arise, which means there will be a delay in the case being heard. - Judges and magistrates cannot interfere excessively in their cases, including those involving a self-represented party, even though the judge or magistrate is one of the most experienced people in the room.

Answer 247

* the plaintiff or the defendant can specify during the pleadings stage that they wish to have the proceeding tried by a jury, though the court can still direct that the trial be without a jury if it decides a jury is not required. The party who wishes a civil dispute to be tried by a jury must pay the applicable fee * the court may order that a proceeding be tried with a jury, though this is rare.

Answer 248

Like a criminal jury, the civil jury decides which facts it believes to be true.

Answer 249

The jury must also apply the facts to the law as explained by the judge. The judge makes decisions on points of law.

Answer 250

The jury may also be required to assess damages. However, juries in defamation cases (cases which involve untrue statements made about a person which have damaged that person's reputation) cannot decide on the amount of damages.

Answer 251

If a civil trial is to be tried by a jury, the jury is made up of only six jurors.

Answer 252

The jurors are chosen randomly from persons eligible to vote and who are on the electoral roll, and following a lengthy selection process.

Answer 253

The court can order the empanelment of up to two additional jurors, so that there may be up to eight jurors. However, when it comes to the jury deliberating on the verdict, only six jurors will be able to deliberate.

Answer 254

- be objective - listen to and remember evidence - understand directions and summing up - decide on liability, and in some cases, damages

Answer 255

The jury must be unbiased and bring an open mind to the task, putting aside any prejudices or preconceived ideas. Each juror (jury member) must have no connection with any of the parties and must be careful to decide on the facts, not on their own biases.

Answer 256

evidence can be complex, This can often be difficult for ordinary laypeople to understand

Answer 257

Jurors can take notes if it helps them to remember information, but they must make sure they still concentrate on what is taking place in the courtroom. A jury must not undertake their own investigations of what happened, conduct any research on the case, or make any enquiries about trial matters.

Answer 258

During the trial the judge will give directions to the jury about issues or points of law and will sum up the case at the end. The jury must listen carefully to the directions and summing up.

Answer 259

In a civil trial, the jury must decide who or what to believe, and whether the plaintiff has established their case on the balance of probabilities. They must also decide whether the defendant has established any defence.

Answer 260

A civil jury must try to reach a unanimous verdict (six out of six jurors), but the court may accept a majority verdict in all cases (five out of six jurors).

Answer 261

Deliberations are confidential, so that jurors can feel free to discuss the issues with each other. This is also an opportunity for jurors to act as a check on each other, in that they can challenge each other if they are making decisions based on pre-conceived ideas rather than on the evidence.

Answer 262

- Both juries are expected to be impartial when making their decision. They decide based on facts and evidence, not on pre-conceived ideas or prejudices. - Both juries must listen to and concentrate on the evidence. They can ask clarifying questions of the judge and can take notes if it helps them. - Both juries have the role of ensuring they comply with their obligations, which include ensuring they do not undertake any outside research or read anything about the case.

Answer 263

* The jury in a criminal trial will decide on guilt, whereas the jury in a civil trial will decide on liability. * The standard of proof is different; the jury needs to decide on guilt in a criminal trial beyond reasonable doubt, whereas in a civil trial it is a lesser standard and is on the balance of probabilities. * A jury in a criminal trial will never decide the sanction, but in some civil trials a jury may determine the damages to be awarded to a successful plaintiff.

Answer 264

- Jury members are randomly picked, have no connection to the parties and make a decision based on facts, not on biases or on their own enquiries. - It allows members of the jury to participate in the civil justice system processes and ensures that justice is 'seen to be done'. This will therefore also enable them to become more informed about our civil justice system. - Collective decision-making can reduce the possibility of bias, as it means any personal, subconscious biases can be identified during the deliberation process and addressed by the group. - Juries represent a cross-section of the community. They are made up of a diverse group of people, which can lead to the decision reflecting the views and values of our society.

Answer 265

- Jury members may have unconscious biases or prejudices, and as they do not give reasons for their decisions, there is no way of knowing whether a bias played a role in their decision-making. - Civil trials can be complex, including directions given to the jury and particular types of civil disputes such as defamation claims. It is not clear whether the laypersons on a jury will be able to understand the legal principles involved and the evidence that is given to then make a decision based on the facts. - Jury trials may result in further delays as matters need to be explained to the jury, and a jury may require some time to deliberate. - A number of people cannot participate in a jury because they are ineligible, excused or disqualified. Therefore, it is possible that a large section of the community is not represented.

Answer 266

- make decisions about the conduct of the case - disclose information to the other party - Exchange evidence - participate in trial

Answer 267

The parties have various roles in a civil dispute. The plaintiff has the special role of proving the facts of the case, given that they have the burden of proof.

Answer 268

The defendant has to prove that the defence has a good answer to the claim. A defendant who has filed a counterclaim will also have to prove their claim. The facts will need to be established on the balance of probabilities

Answer 269

a separate claim made by the defendant in response to the plaintiff's claim (and usually heard at the same time by the court)

Answer 270

(in relation to criminal and civil cases) a term used to describe the power that each party in a legal case has to decide how they will run their case

Answer 271

In the trial system in Victoria, each party controls its own case and has complete control over decisions about how the case will be run, as long as the rules of evidence and procedure are followed. This is known as 'party control'. This is different from a system in which an external investigator seeks out the truth to determine liability. Therefore, the parties make their own decisions about what claims they will make, what defences they will raise, and which witnesses they will call.

Answer 272

one of the key pre-trial procedures is to discover relevant documents in the proceeding. This is considered one of the most important steps in a civil proceeding, and it is the responsibility of the parties to hand over key relevant documents.

Answer 273

* if the plaintiff claims to have suffered physical injuries, there are likely to be medical records and other documents such as texts and emails to show they did in fact suffer those injuries * if the plaintiff claims the defendant sent out various emails about them which humiliated them in the workforce, those emails are likely to be relevant to the issues in dispute and should be handed over * if the defendant claims they did not breach a contract but in fact fulfilled their obligations under the contract, they may produce documents to show they did in fact fulfil the contract.

Answer 274

The parties' role to discover documents continues all the way up to and during trial.

Answer 275

To prove their case, the plaintiff and defendant will generally need to rely on evidence. This is particularly the case where the documents are unable to speak for themselves, or where someone has to prove something that is contained within the emails.

Answer 276

- lay evidence - expert evidence

Answer 277

evidence (testimony) given by a layperson (an ordinary person) about the facts in dispute

Answer 278

evidence (testimony) given by an independent expert about an area within their expertise

Answer 279

which is given by laypersons or ordinary people about what happened or what they saw. They do not give evidence about their opinion or expertise about a matter, but rather about what they know about the factual circumstances. The type of evidence from laypersons will depend on the case.

Answer 280

which is evidence given by people to give a professional opinion about an issue in the case. Depending on the nature of the case, the person may have expertise in a field such as medicine, accountancy, finance, engineering or law. Expert evidence is often given in cases involving personal or mental harm (where a medical professional may give evidence about the nature and extent of injury), and in cases involving financial or business loss (where an expert may be asked to give an assessment of the amount of loss suffered).

Answer 281

the questioning of one's own witness in court in order to prove one's own case and disprove the opponent's case

Answer 282

* making opening and closing addresses. If a party is legally represented, the legal practitioner will ordinarily present the opening and closing addresses (or submissions). The solicitor (and barrister) will prepare the submissions, and the barrister will present them orally in court * presenting the case to the judge or jury. If witnesses give evidence orally, then the barristers will ask the witnesses questions through examination-in-chief * cross-examination of the other side's witnesses. This will involve the barrister asking the other party's witnesses questions, in the hope of challenging the credibility (truthfulness) of the witness or identifying 'holes' or 'gaps' in their evidence.

Answer 283

* Both the prosecution and the parties in a civil case have ongoing disclosure obligations, which require them to disclose relevant documents, even if they are detrimental to their own case. * Both criminal and civil trials provide an opportunity for the parties to present their case, including allowing them to make opening and closing addresses and examine and cross-examine witnesses. * The parties in both types of trials must not mislead the court and must cooperate with each other.

Answer 284

* The defendant in a civil case has an ongoing discovery obligation, but this does not apply to an accused in a criminal case. * As there is normally no jury in a civil trial, the parties in a civil trial will generally not have to give opening and closing addresses to the jury or consider other jury issues (such as what instructions need to be given to a jury). * The concept of 'party control' does not generally extend to many parts of the criminal trial process in that the prosecutor cannot always choose what evidence to lead or not lead in a criminal trial.

Answer 285

- The parties have an ongoing obligation to disclose and 'discover' all relevant documents to each other. This ensures there are no surprises as to the documents that may be relevant to the issues in dispute. - Both parties have the opportunity to present their cases, including making opening and closing addresses. This also includes the opportunity to examine and cross-examine witnesses. - The parties have complete control over how they run their case. They are not forced to do or say anything and can decide whether to make certain claims or defences, or what evidence to rely on.

Answer 286

- Some parties may be more familiar with their disclosure obligations than others; others may have less understanding of the requirement to disclose relevant documents, even those that are not helpful to their case. - The processes involved are complex and difficult to understand without the use of a lawyer, thus making it difficult for self-represented parties. - 'Party control' mean that the parties need time to prepare their case, and make decisions about how to run their case, which can add to the delays. This can be stressful and cost money.

Answer 287

Legal practitioners usually undertake the role of preparing and conducting a case on behalf on the parties.

Answer 288

This representation is often necessary in a civil trial, because the legal practitioners are experts who are familiar with civil trials. These experts help to ensure that the parties are able to present their best possible case, and to assist in achieving a just outcome. They are also the ones to ensure that the rule of law is upheld, and that the law is applied equally and fairly.

Answer 289

It is difficult for a party to present their own case in a civil trial without legal representation. They may not know how to present their evidence in the most effective way or how to cross-examine a witness. A party may also be too emotionally invested in the case to be able to make objective decisions about the way they argue their case.

Answer 290

Therefore, bringing out the truth and showing your case in the best light depends on a party being legally represented, with the best lawyer possible. The truth should emerge through each party presenting their own case to the best of their ability and the other side showing the flaws in the legal arguments and the evidence being presented (e.g. by cross-examining the witnesses).

Answer 291

If one party is better represented than the other, this could lead to an unfair advantage and possibly an incorrect outcome. A person who is represented by a competent barrister may have a better chance of winning than a person whose barrister is less experienced. That is, a competent barrister may have greater skill at preparing a case and bringing out the desired evidence.

Answer 292

legal advice, education or information about the law and the provision of legal services including legal assistance and representation]

Answer 293

Obtaining legal aid through service providers such as Victoria Legal Aid (VLA) can be more challenging in the civil justice system than in the criminal justice system. That is because most of the grants of legal assistance are for criminal or family law matters.

Answer 294

In addition, VLA does not give advice on every type of case; for example, it does not assist in relation to business matters, pay disputes or work injuries. In some situations, people may be able to get some assistance from a community legal centre (CLC), but that depends on the CLC and whether they have capacity to help.

Answer 295

On the other hand, some dispute resolution bodies and methods are set up so that the use of legal practitioners is not needed (or is even discouraged). For example, the Victorian Civil and Administrative Tribunal (VCAT) generally does not allow lawyers to represent people in disputes (though for larger VCAT claims, lawyers may be necessary). Some mediations may also not require the use of a lawyer.

Answer 296

- Legal practitioners are experts who will be able to help the parties navigate the civil justice system. This includes assisting and conducting opening and closing addresses, examining witnesses, and defending against applications made by the other party. - Legal practitioners have objectivity in being able to make decisions in the civil case, such as whether to agree with the other party to negotiate a settlement. Self-represented people lack that objectivity and may be too 'invested' in the decision to be able to see the weaknesses in their case. - Legal practitioners can help avoid delays that may arise with self-represented parties (as the trial processes may slow down to allow a party to understand what is happening).

Answer 297

- Not all legal practitioners are equal or have the same level of experience and skills. Some legal practitioners are more experienced than others, which may impact on the quality of the legal services. - Not everyone is able to afford legal representation, so some people may be left to represent themselves. However, often self-represented parties do not have the necessary skills, experience or objectivity to be able to make the right decisions. - Even if a self-represented party can afford a lawyer, this could potentially be at great expense to them or their family, particularly if they lose, and are ordered to pay the other party's legal costs, too.

Answer 298

A class action (also referred to as a group proceeding or a representative proceeding) is a type of proceeding where a group of people, who all have claims against the same party, join together in a proceeding.

Answer 299

* 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 (such as whether the defendant owed a duty of care to those plaintiffs).

Answer 300

the person who is named as the plaintiff in a class action and represents the group members; also sometimes referred to as the representative plaintiff

Answer 301

(in relation to class. actions) a member of a group of people who is part of a class action

Answer 302

Class actions are normally commenced by a single person who 'represents' the group (or class). That person is known as the lead plaintiff (sometimes called the representative plaintiff). The people who form part of the group are known as group members.

Answer 303

The group members do not actively participate in the proceeding and are not named in the court documents. In fact, the group members may not even be known by the lead plaintiff or the law firm acting on behalf of the plaintiff, and the group members themselves may not even know a class action has been commenced or that they form part of a 'group'. Instead, the 'group' is broadly described in the statement of claim.

Answer 304

Once the group is described in the claim, every person in that group is assumed to be part of the representative proceeding unless they decide to 'opt out' of it by filing a notice with the court in a specified form. If a person opts out, then they will not be bound by the decision or settlement, and they may be able to pursue the defendant in separate legal proceedings. However, the group may be described in a way that requires people to 'opt in' rather than 'opt out'.

Answer 305

As noted earlier, group members do not actively participate. They do not have to give instructions to the law firm, appear in court, discover documents or give evidence. Their primary role is deciding whether to 'opt in' or 'opt out', and participating in any settlement if there is one.

Answer 306

The court actively manages and supervises class actions. In particular, the court has an important role of approving any settlement agreed to between the parties, as well as approving legal costs and fees for litigation funders.

Answer 307

This allows the court to have oversight over the settlement to ensure that group members are protected, and that the settlement is fair and reasonable for them. As most class actions settle at mediation or prior to trial (with historically very few class actions going to trial), the role of the court is to approve any settlement rather than actually deciding on liability and damages.

Answer 308

a third party who pays for some or all the costs and expenses associated with initiating a claim in return for a share of the amount recovered. Litigation funders are often involved in class actions

Answer 309

Generally, if a class action fails, then the lead plaintiff alone is responsible for the costs of the proceeding and any potential adverse costs order. This means that not everyone may be prepared to be the lead plaintiff.

Answer 310

Although the lead plaintiff is responsible for the costs if the class action fails, this is not often the case, as normally the law firm will either act on a 'no win, no fee' basis, or a litigation funder is involved

Answer 311

A litigation funder is a third party that agrees to pay the legal costs associated with the action in return for a percentage of any settlement or damages awarded. The litigation funder will also ordinarily agree that it will pay the costs of the class action if it fails. The use of litigation funders in Australia is now a regular feature of class actions.

Answer 312

The percentage is normally between 20 and 40 per cent of the total amount awarded, but that varies from case to case.

Answer 313

More recently, in Victoria it is possible for the plaintiff law firm (i.e. the lawyers acting for the plaintiff) to 'fund' the class action and obtain an order from the court (known as a group costs order) to charge a fee calculated as a percentage of the amount of any award or settlement.

Answer 314

This has been seen to be a positive development by some, in that it allows plaintiff law firms to fund smaller claims when a litigation funder is not prepared to, thus increasing access to justice.

Answer 315

If the class action is successful, then the group members will share the costs of bringing the proceedings as the costs will be 'taken out' of any damages amount awarded. Therefore, in that way, the costs are 'shared'.

Answer 316

* shareholder class actions * product liability class actions * class actions where employees group together to make claims in relation to underpayment or poor work conditions * natural disaster class actions

Answer 317

where shareholders of a company may make a claim about being misrepresented about the state of the company's affairs.

Answer 318

where consumers who have purchased a good or service have all suffered the same loss or damage

Answer 319

where the group members have suffered loss or damage as a result of a natural disaster

Answer 320

* whether there are seven or more people who have a claim against the defendant which arises out of the same or similar circumstances. If not, then a class action is not an appropriate method of resolving the claims (e.g. if there are fewer than seven people, or the claims are in relation to different facts or against a different defendant) * whether a plaintiff law firm or a litigation funder is prepared to fund the claim to avoid the lead plaintiff from having the burden of costs. In the past, it has been suggested that claims totalling less than $1 million are less likely to be attractive to fund, with claims totalling more than $5 million more likely to be funded * whether there is someone willing and able to be the lead plaintiff * the nature and size of the claims. Very small claims, for example, may not be economical (i.e. result in a outcome that is worth the effort and cost) * whether one group member has suffered significantly more than other group members and may be prepared to conduct their own proceeding, and fund it, rather than having to 'share' any settlement with the other group members.

Answer 321

- The group members are not responsible for the payment of any costs (though they will share the costs if the claim is successful). This therefore increases access to justice for group members who may not otherwise be able to afford the costs of initiating a claim themselves. - It is a more efficient way of dealing with a number of claims because the court does not have to deal with multiple claims about the same issue, thus saving court time and resources. - People can pursue civil claims they may not otherwise be prepared to, because the claim is so small and the costs may be far too much. However, when the smaller claims are grouped together with hundreds or thousands of people, it becomes more economical and cost-effective to pursue the claims. - The use of litigation funders and plaintiff law firms who are prepared to act on a no win, no fee basis, or receive a fee if successful, increases access to justice, particularly if there is nobody prepared to act as the lead plaintiff. - Class actions reduce the costs of defendants. Defendants respond to multiple claims, all with similarities, in the one proceeding, rather than having to respond to multiple claims in separate proceedings. - It is a more convenient way for group members who wish to pursue a claim but do not want the burden and inconvenience of having to actively participate in proceedings.

Answer 322

- Class actions impose a large cost burden on the lead plaintiff if the class action fails and there is no litigation funder or no no win no fee agreement with the plaintiff law firm (though this scenario is extraordinarily rare). - Even though it avoids multiple claims, the size of the class action is normally such that it takes up a significant amount of court resources and time. The approval process for a settlement can also be significant. - There has been a fear by some that class actions provide an opportunity for class action lawyers to take advantage of class actions because they may get more out of the class action than the group members themselves. This is because while a group member may receive a very small amount, the plaintiff law firm stands to gain much more through costs to be paid to them. - Litigation funders have been criticised for taking a large percentage of the total amount awarded to the group members, which then substantially reduces the amount paid to group members and does not reflect their actual loss. - Sometimes multiple class actions are commenced by different law firms in relation to the same issue, increasing the costs of the defendant. This has been one area of the class action regime that has been criticised. - Some group members may not get adequate or up-to-date information about the proceeding or may not even know the proceeding is 'on foot' (ongoing). This is particularly so given many class actions involve thousands of group members and it would be impossible for them to get one-on-one communication about the proceeding.

Answer 323

Consumer Affairs Victoria (CAV) regulates consumer law. Its purpose is to help ensure that Victorians are informed about consumer laws, and to ensure that businesses are complying with those laws.

Answer 324

* advises the Victorian Government on consumer legislation (laws about the sale and purchase of goods and services) * provides information and guidance to educate people about consumer laws, including what their rights and responsibilities are, and whether there have been any changes to those laws * enforces compliance with consumer laws * in limited circumstances, provides consumers and traders, and landlords and tenants, with a dispute resolution process.

Answer 325

* to help people come to an agreement about how to resolve their disputes efficiently without any cost to them. This allows people with smaller disputes about goods or services provided to them, or about their tenancy, to obtain a dispute resolution service that is not expensive, or will not take too long to resolve * to try to help the parties reach a resolution that is consistent with the law. In helping parties resolve their disputes, CAV has a compliance focus to ensure that any person who has not complied with the law is aware of that and does not breach the law again.

Answer 326

CAV only accepts complaints from consumers and tenants, not from businesses and landlords.

Answer 327

the lawful authority (or power) of a court, tribunal or other dispute resolution body to decide legal cases

Answer 328

CAV is limited to assisting people in relation to disputes that are within its power or jurisdiction. It obtains its power through Victorian statutes.

Answer 329

- Disputes between purchasers and suppliers, or consumers and suppliers, about the supply or possible supply of goods or services - Disputes between a tenant and landlord

Answer 330

* Disputes about a product that is faulty, damaged, not fit for purpose or cannot be repaired. * Disputes about a service that is not completed with care and skill, took too long, caused damage or is not fit for purpose. * Disputes about buying cars, such as in relation to warranties, the price charged or the condition of the car.

Answer 331

* Disputes about rental agreements, rent, signing or ending a lease, or rental applications. * Disputes about repairs.

Answer 332

CAV also provides dispute resolution services for other types of disputes, such as about retirement villages (where retired people over the age of 55 live).

Answer 333

CAV primarily offers dispute resolution services over the phone to try to resolve the dispute. In some cases, more tailored services can be provided such as an in-person conciliation.

Answer 334

The third party, known as the conciliator, does not make the decision on behalf of the parties, but listens to the facts, makes suggestions, and explores possible solutions with the parties to help them come to their own decision. The conciliator is usually someone with specialist knowledge of the nature of the dispute.

Answer 335

* whether the dispute is within CAV's jurisdiction or power. If CAV does not have jurisdiction to hear a matter, then it is not an appropriate dispute resolution body for that matter. For example, CAV cannot assist in relation to discrimination disputes, employment disputes or family law matters * whether the consumer or tenant has tried to resolve the matter themselves. If not, then CAV may not intervene * whether the complaint justifies or needs CAV's involvement (e.g. it is not a trivial complaint) * whether there has been a breach of legislation or a failure to comply with legal obligations by the landlord or business (in which case CAV may be more likely to get involved) * whether the consumer is vulnerable or disadvantaged * whether the issue has already been dealt with by CAV or the Victorian Civil and Administrative Tribunal (VCAT). If so, CAV will not intervene * whether the issue is reasonably likely to be resolved. If so, then CAV may be more willing to assist.

Answer 336

* whether they will be able to resolve the dispute themselves by negotiating with each other * whether the dispute is best resolved by a court or tribunal making a binding order on the parties, rather than reaching a resolution themselves * whether the other party is unlikely to take the conciliation process seriously, or may not show up, so issuing a claim in a court or tribunal is more likely to force them into realising the seriousness of the dispute * whether one party would prefer the formality of the tribunal or court processes to resolve the dispute * whether the matter is too big or complex to be appropriate for CAV * whether resolution of the matter is urgent, so a court is a better option (such as an order to stop a trader selling a car to someone else).

Answer 337

- CAV's conciliation service is free, meaning that it is accessible to all Victorians, regardless of their ability to pay. - The conciliation process is informal, and can be conducted over the telephone, which removes many anxieties people have with the formalities of a courtroom. - CAV ensures procedural fairness by allowing both sides the opportunity to present their side of the story and challenge the other side's case as part of the conciliation process. - CAV assesses disputes individually, case by case, reducing waste of time and resources on disputes that are clearly unlikely to be resolved through conciliation. - The conciliation process offered by CAV ensures that parties reach a resolution themselves. Parties may be more likely to accept an outcome if it has not been imposed or forced on them.

Answer 338

- CAV's assistance is limited mainly to consumer and CAV disputes, meaning that it has no power to assist with many other types of civil disputes. - CAV 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. - CAV has no powers to enforce any decisions 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. - Not all cases are accepted by CAV, and its conciliation services are limited. This is because of CAV's criteria and its prioritisation of cases. - CAV is not appropriate for large and complex disagreements, including those with difficult legal questions or several different parties, which can only be resolved by a court or tribunal that has greater expertise in the law.

Answer 339

a dispute resolution body that resolves civil disputes and is intended to be a less costly, more informal and faster way to resolve disputes than courts

Answer 340

Tribunals are dispute resolution bodies which deal with a limited area of law, and have expertise in that area. The process of dispute resolution is less formal than the courts, and is intended to be a cheaper and more efficient way of resolving disputes. There are a number of tribunals in Australia, including ones specifically set up to resolve mental health disputes, native title disputes, and disputes about migration decisions.

Answer 341

Victoria's biggest and most active tribunal is the Victorian Civil and Administrative Tribunal (VCAT).

Answer 342

Established in 1998, when the Victorian Parliament passed the Victorian Civil and Administrative Tribunal Act 1998 (Vic)

Answer 343

VCAT hears and determines a range of civil and administrative cases in Victoria. VCAT is one of Australia's busiest tribunals, receiving more than 85 000 claims per year.

Answer 344

The governing body of VCAT consists of the President, vice-presidents, deputy presidents, senior members and ordinary members. The President is a judge of the Supreme Court, and vice-presidents are judges of the County Court. They are responsible for the management and administration of VCAT.

Answer 345

VCAT is divided into five divisions. Each contains one or more lists, which hear certain types of disputes.

Answer 346

the person who presides over final hearings and compulsory conferences at the Victorian Civil and Administrative Tribunal (VCAT). Members include the VCAT President, vice-presidents, deputy presidents and senior and ordinary members

Answer 347

- Residential Tenancies Division - Civil Division - Human Rights Division - Planning and Environment Division - Administrative Division

Answer 348

Residential Tenancies List

Answer 349

- Civil Claims List - Building and Property List - Owners Corporations List

Answer 350

- Guardianship List - Human Rights List

Answer 351

Planning and Environment List

Answer 352

- Legal Practice List - Review and Regulation List

Answer 353

to provide Victorians with a low-cost, accessible, efficient and independent tribunal delivering high-quality dispute resolution processes.

Answer 354

* Generally the parties need only pay a small amount for filing their claim, although costs vary from list to list. As at 1 July 2023, the standard fee was just over $70 for smaller claims. * VCAT has three tiers or levels of fees: corporate, standard and health care card holders. The aim is to make corporate applicants pay higher fees, and those who are less able to pay (being health care card holders) pay only nominal fees lor for some type of disputes, no fee). * There are no hearing fees for many claims, such as civil claims where the claim is $100 000 or less or for a rental dispute that takes less than a day to hear. However, for other disputes a hearing fee may be payable. * In many lists, the parties do not have to go through pre-trial procedures, which can often add to the legal costs incurred by the parties. * Parties can represent themselves, rather than paying lawyers. More than 80 per cent of people represent themselves at VCAT.

Answer 355

* VCAT conducts hearings in various locations in Victoria. Its main centre is in Melbourne but it has several venues across the state. * VCAT allows people to make applications online and conducts hearings online or by phone. * VCAT hearings are less formal than court hearings, which makes people feel more comfortable in using its services. In many disputes, there are no pre-trial procedures or formal evidence processes.

Answer 356

* VCAT constantly aims to reduce waiting times. Reducing the waiting time for parties to have their disputes resolved makes the process more efficient. The average time for a case to be finalised in VCAT varies from list to list. * VCAT generally does not use pre-trial procedures or formal processes, making it efficient in its resolution of disputes.

Answer 357

* VCAT's members are independent and will act as unbiased adjudicators.

Answer 358

the lawful authority or power of a court, tribunal or other dispute resolution body to decide legal cases to the exclusion of alli others

Answer 359

VCAT obtains its power to hear cases through statutes made by parliament. Often the parties will have no choice but to bring their dispute to VCAT, because it has exclusive jurisdiction to hear certain types of claims.

Answer 360

Exclusive jurisdiction means that only VCAT has the power to hear and determine that type of dispute, and not a court.

Answer 361

Where VCAT does not have exclusive jurisdiction, parties can use VCAT or another dispute resolution body such as a court.

Answer 362

Tenancy disputes, including disputes between residential tenants and landlords, rooming house owners and residents, caravan park owners and residents, and site tenants and owners

Answer 363

Professional conduct inquiries and applications from people seeking a review of decisions made by government and other authorities

Answer 364

Civil disputes relating to consumer matters, building works, owners corporation matters, retail tenancies, and sale and ownership of property

Answer 365

Matters relating to guardianship and administration, equal opportunity, racial and religious vilification, health and privacy information, disability matters and decisions made by the Mental Health Tribunal

Answer 366

Reviews of decisions made by councils or other authorities

Answer 367

* Unpaid rent * Repairs, maintenance, damages or changes to property * Excessive rent increases

Answer 368

* Costs disputes between lawyers and clients * Disputes about a decision made by a government agency (e.g. decision to declare a dog dangerous

Answer 369

* Products and services bought or sold * Quality of domestic or commercial building works * Loss or damage because of water flowing onto property

Answer 370

* Discrimination complaints le.g. relating to equal opportunity, harassment or vilification)

Answer 371

* 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

Answer 372

* class actions * disputes between employers and employees * disputes between neighbours (unless it is also a dispute about an owners' corporation) * disputes between drivers in car accidents * disputes involving federal or state law where VCAT has not been given * VCAT cannot decide cases where the parties are residents of different Australian states, or where the Commonwealth is a party.

Answer 373

* mediation, including a fast-track mediation and hearing process for small civil claims * compulsory conferences * a final hearing before a member.

Answer 374

VCAT actively uses mediation to help resolve disputes. As previously explored, mediation is a cooperative method of resolving disputes. It is a process in which the parties discuss the issues involved, develop options, consider alternatives and reach an agreement through negotiation. Parties may bring support people or legal representatives with them.

Answer 375

Although mediation is not legally binding, in most situations a deed or terms of settlement is drawn up once the parties reach a resolution. The deed of settlement is then enforceable through the courts if one party does not comply with its terms. In some situations, VCAT may make an order which gives effect to the terms of settlement, so that the terms will become a formal order of the tribunal and be binding. If the matter settles at mediation, then there is no need for a hearing.

Answer 376

Disputes about goods and services in the Civil Claims List valued up to $10000 may be listed for a fast track mediation and hearing. A qualified mediator conducts the mediation. If the dispute does not settle at mediation, then the matter will be listed for hearing before a VCAT member on another day.

Answer 377

a dispute resolution process used for small claims about goods and services in the Civil Claims List at the Victorian Civil and Administrative Tribunal (VCAT). Both the mediation and the hearing will be normally be conducted on the same day (if the dispute is not settled at mediation]

Answer 378

Compulsory conferences are confidential meetings during which the parties discuss ways to resolve their dispute in the presence of a VCAT member.

Answer 379

Compulsory conferences use a conciliation process. The VCAT member who assists in the process may suggest forms of settlement, and may explore the likely outcomes of the case if it goes to a hearing. That is, a member may give a view as to the possible decision that may be reached at hearing. The VCAT member who assists in the compulsory conference generally will not hear the case at the final hearing, and will not tell the member presiding over the hearing what happened at the compulsory conference.

Answer 380

a confidential meeting between the parties involved in a dispute (in the presence of an independent third party) to discuss ways to resolve their differences and explore possible resolutions

Answer 381

If the matter has not settled at mediation, at compulsory conference or in any other way, it will be listed for a final hearing before a VCAT member.

Answer 382

At the hearing the parties will be given an opportunity to present their case, which will include giving and hearing evidence, asking questions of witnesses and providing documents which support their case. A VCAT member will oversee the hearing and make a binding decision on the parties. VCAT must conduct each proceeding with as little formality and technicality as possible, though it can adopt rules of evidence or procedures if necessary. VCAT also has an obligation to act fairly when resolving disputes.

Answer 383

* require a party to pay money (e.g. where a person has purchased goods or services and has not paid for them) * require a party to do something, such as perform work, carry out repairs or vacate premises (e.g. where a landlord refuses to repair a kitchen of the house they rent to tenants) * require a party to refrain from doing something (e.g. to stop a demolition) * declare that a debt is or is not owing (e.g. where there is a dispute about money owing under a contract) * review, vary or cancel a contract * dismiss a claim (where the applicant has been unsuccessful in providing their claim).

Answer 384

Decisions of VCAT are binding on the parties and can be enforced if a party does not comply with the decision.

Answer 385

Appeals from a decision made by VCAT may only be made on a question of law (also known as a point of law). Leave (permission) is required to appeal a VCAT decision. If the tribunal was presided over by the President or a vice-president, the appeal will be heard in the Court of Appeal. All other appeals will be heard in the Trial Division of the Supreme Court.

Answer 386

* whether the dispute is within VCAT's jurisdiction. If the dispute is not the type of dispute that VCAT can hear (as set out in Source 3), then it is not an appropriate body to resolve the dispute. For example, VCAT cannot resolve disputes where the Commonwealth is a party or where there is a class action * whether the parties can resolve the dispute themselves through negotiation or mediation * the nature of the fees (for some lists, the fees are just as high as court fees, or even higher) and whether the applicant is able to pay those fees * whether the parties wish to have greater avenues of appeal (appeals from VCAT decisions are limited to appeals on a question of law) * whether one or more of the parties are unlikely to take VCAT seriously, and so a court is the preferred dispute resolution body * whether one or more of the parties would prefer the formality of the courtroom * whether the matter is of a complexity or size that is not appropriate for VCAT * whether the party prefers the court to resolve the dispute because of the doctrine of precedent. VCAT is not a court, and it cannot make new law: it can only apply law made by parliament or the courts. Its own decisions do not form binding precedent in that they do not become binding on future cases (although they are binding on the parties).

Answer 387

the rule that the reasons for the decisions of higher courts are binding on courts ranked lower in the same hierarchy in cases where the material facts are similar

Answer 388

- VCAT is normally cheaper than courts due to low application fees, usually lower or no hearing fees, the costs saved by not having to undertake expensive pre-trial procedures and parties being able to represent themselves. - VCAT generally offers a speedy resolution of disputes - the average time from application to resolution of disputes in its busiest list (the Residential Tenancies List) has been as low as two to three weeks. - An informal atmosphere at VCAT ensures that parties can put their case forward in their own way, which can make people feel more comfortable with the process. - The flexibility of VCAT's hearing processes ensures fairness and equality for an unrepresented party, because the member can aim to ensure an unrepresented party has an equal opportunity to understand processes and present their case. - Each VCAT list operates in its own specialised jurisdiction, resulting in tribunal personnel developing expertise in resolving disputes in that area of law. - A decision made in a final hearing is binding on the parties, which means it is enforceable (unlike a decision that may have been reached by the parties themselves).

Answer 389

- Due to increased use of legal representation, the costs of taking a matter to VCAl can sometimes be as high as, if not higher than, court costs. Changes to VCAT's fees mean that there are now fees for some hearings, as well as large fees for major cases in the Planning and Environment List. - VCAT has suffered delays in some of its lists, including following the COVID-19 pandemic. Some argue this hurts the economy, as many construction projects are unable to go ahead without the appropriate permits, as well as having a financial and mental impact on people who are waiting for their claim to be heard. - It may be too informal - some parties may feel uncomfortable or ill-equipped to deal with the lack of formal procedure or may prefer a formal process of giving evidence. Others may argue that this is not the right way for the 'truth' to come out. - VCAT is not a court, and it cannot create precedents: it can only apply law made by parliament or the courts. Its own decisions are do not form binding precedent in that they do not become binding on future cases - Decisions can only be appealed on a point of law, and to the Supreme Court, making it complex and expensive to appeal a case. - VCAT orders will still need to be enforced through the courts, which takes a little longer, rather than VCAT being able to assist in enforcement.

Answer 390

* whether the dispute falls within the court's jurisdiction * whether there are other or better ways to resolve the dispute

Answer 391

Both the County Court and the Supreme Court of Victoria have unlimited jurisdiction to hear civil disputes. That means that it does not matter what amount the plaintiff is seeking; both those courts are able to hear the dispute.

Answer 392

The Magistrates' Court jurisdictional limit is $100 000. A plaintiff who is seeking damages of more than $100000 must issue the claim in either the County Court or the Supreme Court. Alternatively, a plaintiff who prefers to go to the Magistrates' Court can always give up part of the claim to reduce it to below $100 000. This brings it within the Magistrates' Court's limit.

Answer 393

* domestic building disputes * residential tenancies disputes * retail tenancies disputes * planning disputes

Answer 394

* whether the parties can resolve the dispute themselves through negotiation or mediation * the costs of taking a matter to court, and whether CAV, VCAT or a private method might be better * whether they are prepared to accept the risks and uncertainty involved with a third party making a decision on the dispute. This includes the possible risk of an adverse costs order * whether they have access to and can afford legal representation, which is likely to be necessary to undertake pre-trial procedures and for trial * whether they are comfortable with the formalities of the courtroom and the rules of procedure * the size and complexity of the matter. In particular, more complex and larger claims are best dealt with in the Supreme Court, while smaller claims are best heard in the Magistrates' Court * whether the proceeding is a class action that needs to be determined by the Supreme Court of Victoria * the time it will take to have the matter heard in court, and possible delays in having the case resolved. If they want a swift resolution, then CAV, VCAT or a private mediation may be better * whether the parties are prepared to have their disputes aired in an open hearing where members of the public and the media can be present. If they are sensitive to publicity, an arbitration may be better, because the dispute can then be heard in private.

Answer 395

- Various pre-trial procedures allow the parties to reach an out-of-court settlement. This includes mediation, which the judge can order the parties to attend before trial. This can potentially save the costs, time and stress of going to trial. - In undertaking various pre-trial procedures, the parties to ensure a more efficient and timely resolution of dispute have an opportunity to know the strengths and weaknesses of each other's case, which may help narrow the issues in dispute or even help resolve the matter before trial. - Courts use processes to ensure procedural fairness. For example, the judge can give directions and orders to ensure the dispute is resolved in a timely manner and will ensure that parties undertake procedures such as discovery which ensures both parties know the case that is put against them. - Court processes allow interaction between the court and the parties. For example, pleadings provide the court with a written record of the claim, and at directions hearings, the parties can raise issues with the judge and the other side that may need to be resolved. - The court makes a binding decision, meaning that the outcome is certain, and is enforceable.

Answer 396

- Cases taken to court often suffer delays. Pre-trial procedures take a long time to complete. Discovery of documents in particular has been criticised for adding to the time it takes for a trial to be heard and determined. Judges have sometimes been criticised for taking too long to deliver their decision, and if there is a jury, the trial may take longer. - The costs in having a dispute resolved in court may restrict access to the courts, and may jeopardise parties being treated equally because of their socio-economic status. This includes the costs of engaging a lawyer. - Many of the procedures are complex and difficult to understand without a lawyer. These include pleadings and directions, and trial procedures such as cross-examination of witnesses. - The formalities of the court can be stressful. The courtroom has previously been criticised as being inaccessible to some parties because of formalities, and the idea of party control can be stressful and time-consuming for a party that needs to gather evidence. - Courts do not allow for compromise or win-win situations. Their decisions determine who bears responsibility for the plaintiff's loss, if any, and what remedy should be awarded.

Answer 397

- costs - time

Answer 398

As you have learnt, some aspects of the civil justice system - such as alternative dispute resolution methods like mediation and conciliation - have been designed to help reduce legal costs for parties. However, even though some parts of our civil justice system aim to reduce costs, many people will still pay high costs to have their civil disputes resolved.

Answer 399

These high costs can sometimes discourage or prevent people from pursuing civil claims or defences, or may mean they do not adequately make out their case because they represent themselves, but lack the skills, experience and objectivity to do so.

Answer 400

- One of the costs incurred by the parties in resolving a civil dispute is the cost of legal representation. - court costs and disbursements (out of pocket' expenses)

Answer 401

In theory everyone has the right to legal representation, but in reality not everyone can afford this right. The nature of the court system relies on both parties having good legal representation. This way, the chance of each party winning the case is maximised, the truth will come out, and a fair outcome will be achieved.

Answer 402

The amount of money a party spends on representation often depends on the nature of the dispute and the way the case needs to be resolved. For example, making a complaint through Consumers Affairs Victoria (CAV) is free, whereas a more complex claim issued in the Supreme Court of Victoria will often result in both parties spending a significant amount of money on legal costs. Issuing a claim through the Victorian Civil and Administrative Tribunal (VCAT) can be inexpensive - but that depends on the type of claim, and who is making it.

Answer 403

* engaging expert witnesses and mediators * filing and hearing fees * using a jury (if a party requests one). On top of those costs is the possibility of having to pay some of the other side's costs if the claim or defence is unsuccessful

Answer 404

Costs are one of the reasons for the increase in self-represented parties in the courts. While VCAT encourages self-representation, it is not suitable for everyone. Many people need some assistance to help them navigate the system. In particular, if one of the parties is poorly represented, or not represented at all, this can have a negative impact on their ability to make out their case.

Answer 405

Furthermore, most civil parties are not able to access legal aid, because most of the legal aid funding is spent on aid for criminal and family law cases rather than civil disputes. As a result, some people pursuing civil disputes are forced to settle or withdraw their claims because of the costs involved in taking a matter to trial, and some are not able to initiate a claim at all.

Answer 406

Furthermore, most civil parties are not able to access legal aid, because most of the legal aid funding is spent on aid for criminal and family law cases rather than civil disputes. As a result, some people pursuing civil disputes are forced to settle or withdraw their claims because of the costs involved in taking a matter to trial, and some are not able to initiate a claim at all

Answer 407

alternative dispute resolution methods such as mediation and conciliation can avoid a final hearing or trial in courts or at VCAT, and therefore avoid the significant costs that may be incurred in a civil case.

Answer 408

1 - The earlier a dispute is resolved, the more money is saved. Parties avoid the significant costs involved with pre-trial procedures and trial procedures. The settlement of a dispute before trial also saves a party having to pay the winning side's costs, which may be substantial. 2 - The costs saved by resolving a matter before trial or hearing means a saving for the court or VCAT, and therefore a saving for the entire civil justice system. The more that is spent on trials and hearings, the more funding is required for our dispute resolution bodies. Resolving matters through dispute resolution methods such as mediation can therefore save the time and costs of the courts and tribunals.

Answer 409

* the use of Consumer Affairs Victoria (CAV) and VCAT to help resolve disputes without the need to go to court. These bodies provide no or low-cost dispute resolution services and assistance, and legal representation is not generally required (and is often discouraged) * the use of case management powers in court to try to narrow the issues in dispute and ensure a cost-effective resolution to the dispute. For example, a judge may narrow discovery or require the parties to attend mediation early, which can help to reduce costs * a number of bodies and organisations in Victoria provide pro bono assistance to individuals. For example, Justice Connect is an organisation that assists vulnerable people in the community. The Victorian Bar also has a committee that oversees pro bono assistance.

Answer 410

a Latin term meaning 'for the public good'; a term used to describe legal services that are provided for free (or at a reduced rate)

Answer 411

Quick and efficient hearings are often the fairest. If a dispute takes a long time to be heard - or the hearing itself is very lengthy - it can become increasingly unfair to one or both parties.

Answer 412

The time it takes for courts and VCAT to resolve disputes can vary greatly depending on the complexity of the case, the type of claim, the number of parties involved, and where the claim was issued.

Answer 413

* backlogs * pre-trial procedures * evidence gathering and preparation

Answer 414

while delays in having cases listed for hearing or trial (that is, obtaining a hearing date) have improved in recent years, it largely depends on the court or the VCAT list

Answer 415

pre-trial steps can be complex and lengthy. Most criticised is the process of discovery, which can take months. Courts that use case management processes often make orders about discovery and other pre-trial steps to streamline the process.

Answer 416

the time it takes for the parties to get a case ready for hearing (including gathering evidence and preparing for the hearing)

Answer 417

Delays have an impact on parties to a civil dispute. Some people choose not to pursue a legal claim because it would take too long to resolve. Delays in getting an outcome can cause stress, wasted time and inconvenience. Delays can also add to the costs. They can result in a plaintiff settling their claim for less than what it is worth, or withdrawing their claim entirely.

Answer 418

At times, a backlog of cases in court or at VCAT will need to be resolved and determined (i.e. cases that are 'in line' for a hearing or trial). Following the COVID-19 pandemic, there has been an increase in this backlog, particularly at VCAT. In its 2021-22 annual report, VCAT noted that the backlog was one of its most significant challenges, particularly in the Residential Tenancies List. In the past a hearing in this list would be held within two to four weeks of an application being made. In 2021-22, this increased to 22 weeks.

Answer 419

One of the ways that delays in a case can be managed is the use of case management powers.

Answer 420

Case management powers are used widely across the courts and tribunals in Victoria and elsewhere in Australia, and can result in a significant modification of procedure rules, as well as modification of rules relating to pleadings, discovery and evidence preparation. Giving the courts greater control over cases ensures that disputes are resolved in a more timely and cost-effective manner.

Answer 421

* order that the parties attend mediation or some other form of dispute resolution method * 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, including limiting the number of witnesses and the time to make submissions or cross-examine witnesses.

Answer 422

It is widely seen that case management procedures reduce delays, and a pro-active judge will help parties narrow the issues in dispute, undertake only those steps that are relevant, and keep to the timelines set by the court. Judges achieve this by making orders along the way and requiring them to be complied with.

Answer 423

* VCAT has established dedicated programs to manage delays. This includes a pilot program with the County Court under which judges would hear and determine complex building disputes waiting in the Building and Property List, and a backlog recovery program to deal with the significant backlogs in the Residential Tenancies List. * Some matters are now dealt with 'on the papers', avoiding the need for a hearing. For example, in VCAT some cases are now decided based solely on written documents provided by the parties, which results in faster decisions made without the need for parties to present their case at a hearing. * The courts are increasingly using online methods to resolve disputes, including holding hearings and even mediations online. This can help the courts be more efficient (by avoiding the need to physically attend court) as well as providing opportunities to access hearings remotely when parties may not otherwise be able to attend in person.

Answer 424

* The costs associated with civil disputes include costs of legal representation, and disbursements such as expenses associated with engaging expert witnesses, filing and hearing fees, and jury fees (if there is one and the party requests it). * The nature of the court system generally relies on legal representation. Legal practitioners can maximise a person's chance of succeeding and getting a just outcome. * The amount of legal costs depends on the nature of the dispute and the way the case needs to be resolved. For example, costs associated with court cases are generally higher than VCAT cases. * Although people are entitled to representation, many people cannot afford a lawyer, and may be deterred from initiating a claim. Alternatively, some people may decide to represent themselves. If one or both parties are poorly represented, this can have a negative impact on their ability to receive a just outcome. Self-represented litigants do not have the same objectivity as a party who is represented by an experienced legal practitioner and may not be able to make the right decisions in the case because they are too emotionally invested. * Legal aid is very difficult to obtain for a civil matter, with most funding directed to criminal and family law matters. * A court's duty to ensure a fair trial and a judge's responsibility to assist a self-represented party can help ensure fairness, but self-represented litigants may still struggle to understand legal issues or procedures. * Some measures are in place to seek to reduce the costs, such as the use of alternative dispute resolution methods, the use of case management, and pro bono bodies and schemes.

Answer 425

* Quick and efficient hearings are better hearings. The delay in resolving a dispute can affect the reliability of evidence, jeopardising a fair outcome. Previous cases have found that extraordinary or significant delays can impact on procedural fairness. * Delays can have a serious impact on more vulnerable parties is an injured person, or somebody with little or no money). * Delays can also affect parties who are generally not familiar with litigation and can be stressed by the inconvenience of court processes (unlike larger businesses). * 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. * In recent times, there has been a significant backlog of cases in VCAT which is identified as being one of its biggest challenges. * VCAT has put in place some programs to seek to address the issue of delays. In addition, measures such as case management powers and the use of alternative dispute resolution methods can also help reduce backlog, as can online hearings.

Answer 426

A remedy is the way a court recognises a plaintiff's right. It is what the plaintiff will seek, and what a court or tribunal may award if the plaintiff is successful in proving their claim. Generally, a plaintiff will set out in the statement of claim the remedy or remedies sought.

Answer 427

Remedies can be awarded by a court or a tribunal such as the Victorian Civil and Administrative Tribunal (VCAT). Alternatively, the parties may agree between themselves an appropriate remedy that will seek to 'right' the wrong suffered by the plaintiff.

Answer 428

Unlike sentencing, there is no single statute that sets out all the remedies available, as many of them depend on the nature of the claim.

Answer 429

damages and injunctions

Answer 430

The type of remedy sought depends on the nature of the claim and the area of civil law. Unlike sentencing, there is no 'more severe' remedy or 'less severe' remedy.

Answer 431

An amount of money awarded by the courts to compensate the plaintiff for loss or injury caused by the wrongful acts of the defendant. There are different types of damages, some of which are more easily quantifiable (calculated) than others.

Answer 432

A court order directing a person to undertake a specific action, or to stop (cease) a specific action. It is normally ordered to prevent harm, or further harm, to the plaintiff. Set an alarm for 3:50 and cut moisturise and wear bad trackies because you'll get them

Answer 433

Damages of various kinds is the most common remedy sought in civil claims. They are amounts of money awarded to the plaintiff, to be paid by the defendant.

Answer 434

The main purpose of damages is to return the plaintiff to the position they were in before the wrong occurred.

Answer 435

compensatory, exemplary, nominal and contemptuous damages

Answer 436

an amount of money awarded to a plaintiff for harm, injury, or other losses suffered. It includes general damages, special damages, and aggravated damages

Answer 437

Compensatory damages are the most common damages sought.

Answer 438

The aim of compensatory damages is to restore the party whose rights have been infringed as far as possible to the position they were in before the infringement occurred.

Answer 439

However, it may not be possible to do this where there has been physical loss - for example, if a person has been left with a permanent injury - but damages can be given to compensate the person for their losses, and to make up for the fact that the person will suffer in the future.

Answer 440

Compensatory damages can be special damages (also referred to as specific damages), general damages and aggravated damages.

Answer 441

an amount of money that one party is ordered to pay to another party to compensate for losses that are easily quantifiable (e.g. medical expenses or loss of wages)

Answer 442

an amount of money that one party is ordered to pay to another party to compensate for losses that are not easily quantifiable (e.g. pain and suffering)

Answer 443

an amount of money that a defendant may be ordered to pay when a plaintiff has suffered extreme humiliation, embarrassment or insult because of the defendant's conduct

Answer 444

removal of a person's ability to enjoy or benefit from something they used to have

Answer 445

Also known as specific damages, special damages aim to compensate the plaintiff for losses that are quantifiable li.e. have a precise monetary value and can be easily calculated).

Answer 446

General damages aim to compensate for losses that are not easily quantifiable and will be calculated by the court based on evidence.

Answer 447

* Medical expenses (past and future) * Loss of wages * Property damage * Loss of profits * Loss of assets or other property (e.g. personal goods)

Answer 448

* Pain and suffering (past and future) * Long-term job prospects * Loss of amenity * Physical impairment or disfigurement * Mental health or psychological injuries

Answer 449

Aggravated damages are awarded where the court believes the plaintiff suffered humiliation, embarrassment or insult because of the defendant's conduct le.g. where the conduct has been cruel).

Answer 450

* Humiliation, distress, embarrassment or insult

Answer 451

a very large amount of money awarded to show strong disapproval of the defendant's conduct; also called punitive (punishing) damages

Answer 452

Exemplary damages are the only consequence of a civil action that in some way aims to punish the defendant for an extreme infringement of rights, and deter others from undertaking the same type of actions.

Answer 453

Exemplary damages are also known as punitive damages.

Answer 454

The purpose of exemplary damages is to punish and deter the defendant where conduct is malicious, violent, cruel, insolent or in scornful disregard of the plaintiff's rights.

Answer 455

Exemplary damages cannot be awarded to a plaintiff for defamation.

Answer 456

a small amount of money awarded to confirm that a plaintiff's rights have been infringed even though the losses were not substantial

Answer 457

When nominal damages are awarded, a small amount of money is paid by way of damages. This may be where the plaintiff has proved that they have been wronged, but no injury, loss or damage was suffered.

Answer 458

Therefore, the purpose of nominal damages is to uphold the plaintiff's rights without awarding any substantial damages.

Answer 459

a very small amount of money awarded by a court to show that even though the plaintiff's claim succeeded legally, the court disapproves of it in moral terms

Answer 460

A court or tribunal might feel that the plaintiff has a legal right to damages but does not have a moral right - that is, the plaintiff does not really deserve to be paid damages.

Answer 461

In such a situation, the aim of awarding a small amount of damages is to show contempt for the claim that is made, while admitting the plaintiff's right to make the claim. Contemptuous damages are rarely awarded, but were awarded

Answer 462

* for personal injury claims made under the Wrongs Act 1958 (Vic) (such as personal injuries suffered from a negligent act), and claims for non-economic loss, being pain and suffering and loss of quality of life, are limited year by year to an amount fixed by parliament * in defamation claims, damages for non-economic loss (generally, pain and suffering) are also limited to $250 000 (though in some circumstances this can be increased).

Answer 463

depending on the injuries and loss suffered, compensatory damages can restore the plaintiff to the position they were in before the wrong occurred

Answer 464

* Whether the loss suffered was financial loss only. If the loss suffered is financial only (e.g. lost property, lost wages), then it is easily calculated, and the plaintiff may be able to be restored to their original position. Loss of wages, medical expenses, and loss of profits are not difficult to calculate and can be compensated by way of special damages. * Whether the loss suffered was pain and suffering, mental anguish, disfigurement or impairment. These losses are not easily quantifiable, and in some situations no amount of damages can ever restore a plaintiff to their original position; they can only compensate the plaintiff (e.g. impairment and disfigurement are permanent forms of damages that cannot be removed). * Whether future loss has been suffered. Future types of loss may be harder to identify and quantify. If a person has lost their reputation, or they cannot get a job, it may be difficult to predict what they would have earned, or what they have lost, as a result. * Whether sufficient evidence is before the court about unquantifiable losses. A court or tribunal can only calculate losses if they have evidence about them, such as evidence about lost earning capacity or about the impairment suffered by the plaintiff. If the court does not have this evidence le.g. the plaintiff is not represented and does not understand the processes then the damages awarded may not be accurate. * Whether the damages are actually paid. If the damages are not paid, then they will not have returned the plaintiff to the position they were in. For example, this may occur if the defendant is bankrupt or is uncontactable. * Whether other orders or remedies may be required. For example, damages do not compensate for costs or interest, so additional remedies (such as an order for costs or an order that interest be paid may be required. As another example, an injunction may also be required to stop further harm being caused. * Whether there are caps lor limits) on the amounts that can be awarded. If there are caps (e.g. under the Wrongs Act) this may limit the ability of damages to achieve Its purpose.

Answer 465

exemplary damages may be awarded to punish the defendant for an extreme infringement of rights and deter others from undertaking the same type of actions

Answer 466

* The amount of exemplary damages. If the amount of exemplary damages is small, it may not be sufficient to punish the defendant or act as a deterrent. If the amount is high, it is more likely to punish and deter. * The ability of the defendant to pay. Regardless of whether the amount is small or large, the ability of the defendant to pay is important. If the defendant has little money, they may not pay at all and so they may not be punished. Alternatively, if they have significant amounts of money, it may act less as a punishment. * The extent to which the award of damages is known. To deter others, the award of exemplary damages must be known to other people. This means it should be publicised in some way. * Whether there are caps on the amounts that can be awarded. If there are caps, such as under defamation laws, this may limit the ability of damages to achieve its purpose.

Answer 467

nominal damages seek to uphold the plaintiff's rights without awarding any substantial damages

Answer 468

* Whether the plaintiff suffered loss. If the plaintiff did in fact suffer loss, but there was no evidence of that loss, or the court was not convinced there was loss, the plaintiff's rights may not be fully upheld. * The amount of the damages. If the amount is too small, some people may not view the damages as upholding the plaintiff's rights. * The costs incurred. The plaintiff may have incurred significant costs to initiate and conduct the civil claim, which cannot be compensated through nominal damages. Therefore, although nominal damages uphold the plaintiff's rights, the plaintiff may have suffered an additional form of loss through payment of costs.

Answer 469

a remedy in the form of an order requiring the defendant to do something or not to do something. An injunction is designed to prevent a person doing harm (or further harm), or to rectify some wrong

Answer 470

an order that someone stop (or refrain from) doing something that is harming (or will harm) the plaintiff; also called a prohibitive injunction

Answer 471

an order requiring someone to do something, or take active steps to prevent harm (or further harm) to the plaintiff

Answer 472

An injunction is a court order directing someone to stop doing a certain act, or compelling someone to do a certain act.

Answer 473

The purpose of an injunction is to rectify a situation caused by the person who was found to be in the wrong.

Answer 474

It can be either a restrictive injunction or a mandatory injunction.

Answer 475

An injunction can be interlocutory or final.

Answer 476

An interlocutory injunction is a temporary injunction that is awarded quickly and in circumstances where there is an urgent situation and an injunction is needed as soon as possible to avoid further harm. At the final trial or hearing, the interlocutory injunction can become a final (permanent) injunction, or it can be dismissed (overturned).

Answer 477

A final injunction is a final order, which means that it is the 'final say' on the matter unless one of the parties appeals the order.

Answer 478

Restrictive injunction: prevents someone from doing something

Answer 479

Mandatory injunction: forces someone to do something

Answer 480

A restrictive injunction, also known as a prohibitory injunction, is a form of remedy that requires a person to refrain from doing something.

Answer 481

This is the most common form of injunction. Its purpose is to prevent harm, or further harm, from being caused to the plaintiff. That harm may be irreparable or permanent, such as knocking down a building.

Answer 482

A mandatory injunction is a form of remedy that orders a person to do a particular act, such as performing their part of a contract they have breached or forcing someone to hand over documents they are holding.

Answer 483

The purpose is to require the defendant to take action to prevent further harm from being suffered by the plaintiff or to take action that will remedy the situation.

Answer 484

A mandatory injunction will only be awarded if a court is satisfied that the defendant knows exactly what they have to do to fulfil the order of the court. It must also be satisfied that the plaintiff will suffer significant damage if a mandatory injunction is not ordered

Answer 485

a restrictive injunction aims to prevent harm, or further harm, from being caused to the plaintiff by ordering someone to refrain from taking steps lor any further steps)

Answer 486

* Whether the defendant will comply. If the defendant does not comply with the injunction, it may not prevent further harm. For example, a person may ignore a court's order to take down defamatory posts, in which case the plaintiff may continue to suffer harm. * Whether harm has already been suffered. If the plaintiff has already suffered loss or damage, an injunction alone may not be able to address that harm. In this case, damages may also be required. * Whether a restrictive injunction alone is sufficient. In some situations, a mandatory injunction may also be required. For instance, the defendant may have posted information online. A restrictive injunction may stop the defendant from posting any further, but a mandatory injunction may also be required to force the defendant to take the posts down. * Whether there are other orders that may be required. Injunctions do not address the costs, stress and inconvenience involved in taking the action, so they do not fully address all the harm that may have been suffered.

Answer 487

a mandatory injunction requires a person to take certain steps or do a particular act, which will prevent further harm from being suffered by the plaintiff, or to remedy the situation caused by the defendant not taking certain actions.

Answer 488

* Whether the defendant will do what is ordered. The defendant may ignore the order and not do anything, in which case the purpose will not be achieved. Alternatively, the defendant may take some steps, but not others, in which case the situation may not be fully remedied. * Whether harm has already been suffered. If the plaintiff has already suffered loss or damage, an injunction alone may not be able to address that harm. In this case, damages may also be required. * Whether a mandatory injunction alone is sufficient. In some situations, a restrictive injunction may also be required. For instance, the defendant may be required to sign a document and hand it over, as well as be restrained from taking steps they were proposing to take. * Whether there are other orders that may be required. Injunctions do not address the costs, stress and inconvenience involved in taking the action, so they do not fully address all the harm that may have been suffered.

Unit 3 AOS 2 Flashcards

The Victorian Civil Justice System (513 cards)