UNIT 3 - aos2 Flashcards

Question

limits of court hierarchy

Answer 1

Complexity for Litigants: The court hierarchy can be confusing, especially for those who do not understand the civil justice system. This confusion is more pronounced when jurisdictions overlap (e.g., County Court vs. Supreme Court) or for self-represented parties. Appeal Processes: While a court hierarchy allows appeals, there is no automatic right to appeal. The appeal process is often difficult to understand without legal representation, as parties generally need to establish grounds for appeal.

Answer 2

Act Impartially: Must oversee cases and make decisions without bias, ensuring fairness for both parties. Independent from the government and parliament, ensuring decisions are based purely on law. Upholds the rule of law and ensures impartiality. Case Management (Before Trial): Actively involved in pre-trial stages to ensure the case is ready for trial, aiming for efficiency and cost-effectiveness. Directions: Judges and magistrates can give directions to the parties (e.g., filing documents, attending mediation). Discovery: Ordering the exchange of relevant documents between parties. Mediation: May order mediation to resolve disputes before trial. Penalties: Imposed on parties who fail to comply with directions. Case Management (During Trial): Manage the trial by adjusting procedures (e.g., changing the order of evidence presentation, limiting cross-examination). Questions: Can ask witnesses to clarify evidence and make rulings during the trial. Jury: In higher courts, the judge may address or give directions to the jury. Self-Represented Parties: Ensure those without legal representation understand their obligations and rights. Determine Liability and Remedy: Judge (or magistrate) decides if the plaintiff's claim is valid and determines what remedy (if any) to award. In the Magistrates’ Court, there is no jury, and the magistrate decides on both liability and remedy. Decisions are often "reserved" and delivered with written reasons (court judgments). Decide on Costs: The judge or magistrate determines which party should bear the legal costs after each hearing. The successful party generally gets costs, but this is not always the case.

Answer 3

Impartial umpire: Judges and magistrates must remain neutral, ensuring that both parties are treated equally and fairly. This helps uphold the principle of fairness. Legal expertise: Their deep understanding of civil law, court procedure, and legal precedent ensures decisions are made consistently and justly. Case management powers: They actively manage cases pre-trial and during the trial by giving directions, setting deadlines, limiting discovery, and ensuring the dispute progresses efficiently. Support for self-represented parties: Can explain processes (e.g., discovery, cross-examination) without compromising neutrality, helping improve access to justice for those without legal representation. Efficient & timely resolution: Judges and magistrates help reduce delays by streamlining processes, which helps uphold access and timely justice. Decide on costs: After the hearing, they fairly determine which party is responsible for legal costs, which can discourage unnecessary litigation. Consistency in legal outcomes: Their written judgments form part of case law, which contributes to equality and predictability in future legal decisions.

Answer 4

Human error and bias: Being human, they may show unconscious bias or become fatigued, which could influence decisions and impact fairness. Lack of diversity: The bench may not always reflect the diverse makeup of the community, leading to perceptions of inequality or cultural misunderstandings. Inconsistent case management: The level of involvement can vary. Some cases are poorly managed due to judges or magistrates not strictly enforcing directions, which may delay justice. Limited assistance to self-represented parties: Judges must stay impartial and cannot advocate for one party, even if one side is clearly disadvantaged without legal counsel—this can create an imbalance. Cannot enter the arena: Judges are restricted from overly involving themselves in the facts or helping a party argue their case, even if one side is clearly struggling. Complex language: Legal terminology used during hearings may be confusing for those without legal training, limiting access and understanding.

Answer 5

Similarities * Must act impartially and without bias in both civil and criminal cases * Assist self-represented parties where needed (e.g. explain procedures) * Instruct and give directions to a jury (if one is present – judges only, not magistrates) Differences * In civil cases, a judge or magistrate decides liability if there is no jury * In criminal cases, a jury decides guilt, not the judge (in higher courts) * In civil cases, the judge/magistrate decides on the remedy (e.g. damages) * In criminal cases, the judge/magistrate decides on the sanction (e.g. imprisonment) * Civil judges/magistrates can order pre-trial procedures like mediation and discovery * In criminal cases, these civil procedures are not used

Answer 6

When is a jury used in civil trials? Civil juries are rare but may be used when: * A party (plaintiff or defendant) requests a jury during pleadings and pays the fee * The court orders a jury trial (very rare) Juries consist of 6 jurors, with up to 2 extras allowed (only 6 deliberate). Key Roles of a Civil Jury: Be Objective Must be unbiased and impartial No connection to the parties Decide based on facts and evidence, not personal beliefs Listen to and Remember the Evidence Evidence can be complex (e.g. business valuations) Jurors may take notes No independent research or investigations allowed Decide Liability and Sometimes Damages Determine if the plaintiff has proved their case on the balance of probabilities Assess damages except in defamation cases (the judge does that) Try to reach a unanimous verdict (6/6), but majority verdict (5/6) is acceptable Deliberations Must be confidential to allow open discussion Jurors act as a check on each other to ensure decisions are fair and evidence-based

Answer 7

✅ Similarities * Must be impartial – decisions must be based on evidence, not bias or prejudice * Must listen carefully, follow proceedings, and can take notes or ask clarifying questions * Must not conduct outside research or discuss the case beyond the jury room ❗ Differences * Criminal jury decides on guilt; civil jury decides on liability * Standard of proof: – Criminal = beyond reasonable doubt – Civil = balance of probabilities (lower standard) * Criminal juries do not decide sanctions * Civil juries may decide damages (except in defamation cases – damages are set by the judge)

Answer 8

Jury members are randomly selected, independent, and must decide based on facts, not bias. Encourages community participation in justice and helps demystify the civil legal system. The jury process ensures that justice is seen to be done, increasing public confidence. Collective decision-making reduces the impact of individual biases. Juries can reflect community values, as they represent a cross-section of society.

Answer 9

Jurors may have unconscious biases or prejudices, and their decisions are not explained, so biases can go unchecked. Civil trials can involve complex evidence or legal principles that jurors may struggle to understand. Juries may slow down proceedings due to the need for explanations and time taken to deliberate. Not everyone is eligible to serve on a jury (e.g. disqualified or excused), so they may not fully represent society.

Answer 10

Make decisions about the conduct of their case Parties have full control over how to run their case — this is called party control. They choose what claims to make, what defences to raise, which witnesses to call, and what evidence to present. Must follow rules of evidence and procedure. Disclose information to the other party Parties must hand over all relevant documents during discovery. This includes things like contracts, emails, photos, or medical records. Discovery helps ensure both sides know the evidence being relied upon. The duty to disclose continues up to and during the trial. Exchange evidence Lay evidence: Provided by ordinary people based on what they saw or know. Expert evidence: Provided by professionals (e.g. doctors, engineers) who give an opinion on aspects of the case. Evidence is necessary to prove or defend a claim. Participate in the trial Parties (or their lawyers) make opening and closing submissions. They present their case, call and question witnesses, and cross-examine the other side’s witnesses. Active participation is key to the outcome of the case.

Answer 11

Similarities * Both the prosecution (criminal) and the parties (civil) must disclose relevant documents, even if it harms their own case. * Both types of trials allow parties to present their case, including opening/closing addresses and examining/cross-examining witnesses. * Parties in both must cooperate with each other and not mislead the court. Differences * In civil trials, defendants have a discovery obligation. This does not apply to accused persons in criminal trials. * Since civil trials often don’t involve juries, parties don’t need to tailor their opening/closing addresses for a jury. * In criminal cases, ‘party control’ is limited — prosecutors don’t always choose what evidence can or cannot be presented.

Answer 12

Disclosure Obligations Parties must disclose all relevant documents (even if they are harmful to their case), promoting transparency and fairness. Equal Opportunity to Present a Case Each party can make opening and closing statements, call witnesses, and cross-examine, ensuring both sides can be heard. Party Control Parties are in control of how they present their case — what evidence to use, which claims or defences to raise — which upholds autonomy and fairness. Access to the Justice System The process gives both parties a formal opportunity to seek a resolution and assert their legal rights.

Answer 13

Disclosure Challenges Some parties may not fully understand their obligations to disclose relevant documents — especially if they’re self-represented. Complex Procedures Presenting a case and navigating the trial process is legally complex, making it difficult for parties without a lawyer. Party Control Can Cause Delays Because parties are responsible for preparing their case, time and cost pressures may increase, especially if one party is disorganised. Stress and Inequality The burden of managing a case can be stressful, and more resourced parties may be better equipped to handle the process than others.

Answer 14

Challenges Without Legal Representation Self-represented parties often struggle to present evidence, cross-examine witnesses, or follow legal procedures. They may be emotionally invested, leading to poor, non-objective decision-making. 🔹 Unfair Advantage A party with a skilled barrister may have a much better chance of success than someone with a less experienced or no lawyer. This creates inequality before the law, as outcomes may depend on representation quality, not the merits of the case. 🔹 Limited Access to Legal Aid Most legal aid is reserved for criminal and family law, not general civil disputes. Victoria Legal Aid and CLCs have limited capacity, especially for business, employment, or personal injury matters. 🔹 VCAT and Informal Processes Some forums like VCAT or mediation limit or discourage the use of lawyers, aiming for simplicity and self-representation. However, in complex or high-value cases, the lack of legal guidance can still disadvantage parties. 🔹 Impact on Fairness and Truth-Finding The adversarial system assumes both sides can argue their case well — but without representation, that assumption fails. The truth may not emerge, and the outcome may be incorrect or unjust.

Answer 15

🔹Expertise & Guidance Legal practitioners are experts in the civil justice system. They can assist with opening/closing addresses, examining witnesses, and responding to legal applications. 🔹 Objectivity Lawyers bring a clear, rational perspective, helping clients make strategic decisions like whether to settle or proceed. Self-represented parties may be too emotionally involved to see weaknesses in their own case. 🔹 Efficiency in Court Legal practitioners help ensure that court processes run smoothly, avoiding delays. This reduces the time courts must spend explaining procedures to self-represented parties.

Answer 16

🔹Unequal Access Not everyone can afford legal representation. Those without a lawyer are often left to navigate complex legal procedures on their own. 🔹 Variable Quality Legal practitioners vary in skill and experience, which can impact the outcome. A party with a more capable lawyer may have an unfair advantage. 🔹 High Costs & Financial Risk Even if someone can afford a lawyer, it may come at significant personal or family expense. If they lose, they may also be ordered to pay the other party’s legal costs, increasing financial strain.

Answer 17

What is a Class Action? A class action is a legal proceeding where 7 or more people with similar claims against the same party join together to take legal action. 🔹 Requirements to Start a Class Action: 7 or more people have claims Claims relate to the same or similar circumstances The case involves common legal issues 🧪 Example: Thousands become ill after eating the same faulty batch of jam → they sue the manufacturer together. 🔹 Key Terms: Lead plaintiff: Represents the group; files the case Group members: Others in the class; not named or directly involved Group members are automatically included unless they opt out 🔹 Group Member Participation: No need to appear in court, discover documents, or give evidence They choose to opt in or opt out May be entitled to part of the settlement or judgment 🔹 Court’s Role: Manages and supervises the process Must approve any settlement or legal costs Ensures fairness and protects group members’ interests 🧠 Note: Most class actions settle before trial — courts mostly oversee and approve settlements.

Answer 18

Lead Plaintiff's Responsibility: If a class action fails, the lead plaintiff is responsible for: Legal costs Adverse cost orders 🔹 Legal Costs and Payment Methods: No win, no fee: Many class actions are handled this way by law firms. Litigation funders: A third party that pays the legal costs in exchange for 20-40% of any award or settlement. Funders agree to cover costs even if the case fails. 🔹 Group Costs Order: In Victoria, plaintiff law firms can now fund class actions themselves and apply for a Group Costs Order from the court. This order allows law firms to charge a percentage of any award or settlement. Positive outcome: Helps fund smaller claims where litigation funders may not be willing to get involved, thus increasing access to justice. 🔹 Sharing the Costs: If the class action is successful: The costs of the action are deducted from the damages awarded. Costs are then shared among the group members.

Answer 19

Notable Examples: 1995: The first class action in Australia: Over 1000 people sued for salmonella poisoning from contaminated peanut butter. Represented by Slater and Gordon. Other well-known class actions: Esso Longford gas explosion (1998): Business owners suing for losses. 2009 Victorian bushfires: Claims for damages. Bank fee class actions: Customers suing for unfair bank fees. 🔹 Common Types of Class Actions: Shareholder Class Actions: Shareholders of a company can claim misrepresentation of the company’s affairs. Example: National Australia Bank (2010) - $115 million settlement for failing to disclose important information. Product Liability Class Actions: Consumers who suffered similar losses due to a defective product or service. Examples: Defective airbags, soy milk, herbicides, and medication. Employee Class Actions: Employees joining together to claim for underpayment or poor working conditions. Example: Domino’s Pizza (alleged underpayment of workers). Natural Disaster Class Actions: People affected by natural disasters joining to make claims. Example: Victorian bushfires (2009) - Resulted in the largest class action settlements in Victoria.

Answer 20

Number of Claimants: There must be seven or more people with claims against the same defendant arising from the same or similar circumstances. If there are fewer than seven claimants or claims are unrelated, a class action is not appropriate. Funding: A plaintiff law firm or litigation funder must be willing to finance the claim to avoid placing the cost burden on the lead plaintiff. Claims under $1 million may be less attractive to fund, while those above $5 million are more likely to attract funding. Lead Plaintiff: There must be a willing and able lead plaintiff to represent the group. The lead plaintiff will guide the case, even though group members do not actively participate. Nature and Size of Claims: Small claims may not be economically viable for a class action, as the outcome may not justify the costs and effort involved. Disproportionate Harm: If one group member has suffered significantly more than the others, they may choose to conduct their own separate action rather than participate in the group proceedings. This could lead to funding their own claim independently.

Answer 21

Access to Justice: Group members do not pay costs upfront. If the claim is successful, they share the costs from the award. Increases access to justice, especially for those who cannot afford individual claims. Efficiency: Class actions save court time and resources by consolidating multiple claims into a single proceeding. Avoids dealing with multiple individual claims about the same issue. Cost-Effectiveness: Small claims may not be economical on their own, but grouping them together in a class action makes it more cost-effective. Convenience: Group members do not have to actively participate in the case. They can pursue a claim without the burden of navigating the legal system alone.

Answer 22

Cost Burden on Lead Plaintiff: The lead plaintiff faces significant costs if the class action fails, unless a litigation funder or a "no win, no fee" arrangement is in place. Impact of Litigation Funders: Litigation funders take a large percentage (often 20-40%) of the settlement, reducing the amount received by group members. This can lead to concerns about lawyers and funders gaining more than the group members themselves. Defendants' Costs: Multiple class actions from different law firms on the same issue can increase the costs for the defendant. Limited Participation for Group Members: Group members may not receive sufficient updates or information about the progress of the case. Some may be unaware that a class action is ongoing or that they are included.

Answer 23

A government body that provides dispute resolution services, particularly for consumer and trader disputes and residential tenancies. Purpose of CAV: Regulates Consumer Law: Ensures compliance with consumer laws and advises the Victorian Government on relevant legislation regarding the sale and purchase of goods and services. Informs the Public: Provides guidance on consumer rights, responsibilities, and updates to laws. Enforces Compliance: Ensures businesses follow consumer laws. Dispute Resolution: Helps resolve consumer and tenancy disputes without the need for expensive legal action. - provide information about consumer laws to the public - conciliate disputes arising under consumer laws. must be voluntary - creating a fair and competitive marketplace - provide information and advice - provide accessible dispute resolution services Purposes in Dispute Resolution: Efficient and Cost-Free Resolution: CAV helps parties resolve smaller disputes efficiently, typically at no cost. Ensures Legal Consistency: Focuses on resolutions that are in line with consumer laws, reinforcing businesses' legal obligations. Consumer and Tenant Focus: CAV accepts complaints only from consumers and tenants, not businesses or landlords. Types of Disputes CAV Resolves: Consumer and Supplier Disputes: Issues like faulty goods, poor service, or disputes over the price/condition of products. Tenancy Disputes: Rental agreements, lease issues, and repair disputes between tenants and landlords. Jurisdiction: Hears cases between tenants + landlords, and consumers + businesses

Answer 24

Dispute Resolution via CAV: Primarily Over the Phone: CAV typically handles disputes through phone calls, aiming to help parties resolve their issues efficiently and at no cost. Tailored Services: In some cases, more specific services, such as in-person conciliation, are offered. Conciliation Process: Role of the Conciliator: An independent or neutral third party assists in resolving disputes. The conciliator does not make the final decision but helps guide the parties toward a mutually acceptable resolution. Process Involvement: The conciliator listens to the facts, offers suggestions, and explores possible solutions with the parties, helping them reach their own decision. Specialist Knowledge: The conciliator often has expertise in the type of dispute being resolved.

Answer 25

CAV’s Jurisdiction & Eligibility: Jurisdiction: CAV can only assist with disputes within its jurisdiction. It cannot handle issues such as discrimination, employment, or family law disputes. Self-Resolution: CAV prefers that the consumer or tenant first attempts to resolve the matter themselves before intervening. Complaint Justification: CAV evaluates whether the complaint justifies their involvement (i.e., not a trivial complaint). Breach of Legislation: CAV is more likely to get involved if there has been a breach of legislation or failure to comply with legal obligations by the other party (e.g., a landlord or business). 🔹 Other Factors for CAV’s Involvement: Vulnerable or Disadvantaged Parties: CAV may prioritize cases involving vulnerable or disadvantaged individuals. Past Involvement: If the matter has already been dealt with by CAV or VCAT, CAV will not intervene. Likelihood of Resolution: CAV is more willing to assist if the issue is reasonably likely to be resolved. 🔹 Considering Other Methods: Self-Negotiation: Whether the parties can resolve the dispute through direct negotiation. Court or Tribunal Involvement: Whether the dispute may require a formal, binding order through a court or tribunal. Conciliation Process: If one party is unlikely to take conciliation seriously, legal action may be more appropriate. Complexity or Urgency: If the matter is too complex for CAV or is urgent, a court or tribunal may be more suitable.

Answer 26

Free and Accessible: No cost for using CAV’s conciliation service, ensuring access to justice for all Victorians, regardless of their ability to pay. 🔹 Informal and Convenient: The informal process can be done over the phone, making it less intimidating than formal court proceedings. 🔹 Voluntary Participation: The process encourages self-resolution by allowing parties to reach their own agreement, which they may be more willing to accept. 🔹 Fairness: Procedural fairness is ensured, allowing both sides to present their case and challenge the opposing party’s claims. 🔹 Individual Case Assessment: CAV evaluates each dispute on a case-by-case basis, focusing resources only on disputes with a realistic chance of resolution.

Answer 27

No Enforcement Power: CAV cannot force parties to accept outcomes unless they enter into a binding agreement during the conciliation, leaving some parties in the same position as before. 🔹 Voluntary Participation: If one party refuses to participate, the conciliation process cannot proceed, limiting its effectiveness. 🔹 Limited Scope: CAV only deals with consumer and tenant disputes, and cannot help with employment, family law, or discrimination cases. 🔹 Not Suitable for Complex Cases: CAV’s conciliation is not appropriate for large, complex disputes involving difficult legal issues or multiple parties, as these require court or tribunal intervention. 🔹 Case Prioritization: CAV may not accept every case and prioritizes disputes where resolution is likely, potentially leaving some cases unresolved.

Answer 28

What is VCAT? Established in 1998 under the Victorian Civil and Administrative Tribunal Act 1998 (Vic) Hears a wide range of civil and administrative disputes across Victoria Receives over 85,000 claims per year Governed by: A President (Supreme Court judge) Vice-presidents (County Court judges) Deputy presidents, senior members, and ordinary members VCAT’s Purpose To provide a low-cost, accessible, efficient, and independent dispute resolution service How VCAT Achieves Its Purpose Low Cost: Filing fees are relatively low (e.g. around $70 for smaller claims as of July 2023) Fee tiers based on applicant type: corporate, standard, health care card holders No hearing fees for claims under $100,000 or for rental disputes lasting less than a day Most parties represent themselves (over 80%), reducing the need for costly legal representation Accessible: Hearings conducted in multiple locations across Victoria Applications can be submitted online; hearings may occur via phone or online Less formal than courts; no need for complex pre-trial procedures in most cases Efficient: Focus on reducing wait times and resolving cases quickly Minimal formalities and streamlined processes Independent: Tribunal members are impartial and legally bound Some matters fall under VCAT’s exclusive jurisdiction, meaning only VCAT can hear them Costs Claims between $3001 – 15,000 application fee is $224.80 Hearing Fee: exceeding $100,000 are $374.60 No hearing fees for 1 day claims below $ 100,000

Answer 29

Divisions Residential Tenancies – Rent disputes, repairs, damage, excessive rent increases Administrative – Government decision reviews, lawyer-client costs disputes Civil – Consumer goods/services disputes, building issues, owners’ corporations, property ownership Human Rights – Discrimination, guardianship, privacy, disability, mental health matters Planning & Environment – Planning permit disputes, land valuation issues Disputes VCAT Cannot Hear Class actions Employment disputes Neighbourhood disputes (unless involving owners' corporations) Car accident cases Matters under federal law or involving parties from different states (as per 2020 Court of Appeal ruling)

Answer 30

Main Dispute Resolution Methods Used by VCAT Mediation Compulsory Conferences Final Hearing 🔹 Mediation Cooperative method: parties discuss issues, negotiate, and reach agreement May include support people or lawyers Not legally binding unless: Parties sign a deed/terms of settlement (enforceable in court), or VCAT makes an official order reflecting the agreement If settled at mediation → no need for hearing 🔹 Fast Track Mediation & Hearing Applies to civil claims under $10,000 Conducted by a qualified mediator If no settlement → scheduled for hearing before a VCAT member 🔹 Compulsory Conferences Confidential dispute resolution meetings using a conciliation process Run by a VCAT member (different from final hearing member) Member may: Suggest settlements Discuss likely outcomes at a hearing Aims to reach a mutual resolution before trial 🔹 Final Hearing Occurs if mediation/conciliation fails Each party presents their case: Evidence, documents, witnesses, questioning Overseen by a VCAT member who makes a binding decision VCAT aims to conduct hearings with minimal formality Must ensure fairness 🔹 Types of Orders VCAT Can Make Require a party to pay money Order a party to do something (e.g. repairs, vacate property) Order a party to stop doing something (e.g. halt demolition) Declare whether a debt exists Review, vary or cancel a contract Dismiss a claim if unsuccessful 🔹 Appeals Can only appeal on a question of law Leave (permission) is required If heard by: President/Vice-president → appeal goes to Court of Appeal Other members → appeal goes to Trial Division of Supreme Court

Answer 31

VCAT is appropriate when: The dispute falls within VCAT’s jurisdiction (e.g. tenancy, consumer issues, discrimination, building disputes). Parties are willing to resolve the dispute through mediation or negotiation. The dispute is not too complex or large in scope or value. The parties want a low-cost and less formal resolution process. The parties are satisfied with limited appeal options (only on a question of law). The dispute does not require a binding precedent to be set. ❌ VCAT may not be appropriate when: The dispute is outside VCAT’s jurisdiction (e.g. class actions, disputes involving the Commonwealth, or parties from different states). Fees in some lists are as high or higher than court fees, making it unaffordable for some applicants. One or more parties prefer court formalities or feel VCAT won’t be taken seriously. The dispute requires the doctrine of precedent, which VCAT cannot provide. The matter is too complex and requires a court’s greater legal expertise. Parties want broader appeal rights, which courts can offer but VCAT cannot.

Answer 32

Lower Costs: Cheaper than courts due to low application and hearing fees, fewer pre-trial procedures, and self-representation. Speedy Resolution: Especially in the Residential Tenancies List, matters can be resolved in as little as 2–3 weeks. Informal Atmosphere: Less intimidating than court; parties can present their case in a relaxed setting. Flexibility: VCAT members assist unrepresented parties to ensure fairness and understanding. Binding Decisions: Decisions made in a final hearing are enforceable on all parties. Specialised Expertise: Different lists deal with specific dispute types, allowing members to build specialist knowledge.

Answer 33

Rising Costs: Legal representation and new fees (e.g. Planning and Environment List) can make VCAT as expensive as courts. Delays in Some Lists: Post-COVID delays, especially in complex lists, may affect outcomes and project timelines. Too Informal for Some: Lack of formal procedures can make some parties uncomfortable or feel justice isn’t fully achieved. No Precedent: VCAT decisions don't set legal precedent and can't create new legal rules. Limited Appeal Rights: Appeals can only be made on a point of law, and must go to the Supreme Court, which is costly. Enforcement Through Courts: VCAT decisions must be enforced via the courts, which can delay resolution.

Answer 34

Jurisdiction County & Supreme Court: Unlimited jurisdiction for civil disputes, no limit on claim amount. Magistrates' Court: Jurisdictional limit of $100,000. Claims above this must go to County or Supreme Court. VCAT Exclusive Jurisdiction: Domestic building disputes Retail tenancy disputes Residential tenancy disputes Planning disputes 🔹 Other Considerations Self-Resolution: Can the dispute be resolved through negotiation or mediation? Cost & Affordability: Is court too expensive? CAV, VCAT, or private mediation might be cheaper. Risk & Uncertainty: Are the parties okay with the risks of a third-party decision and potential adverse costs orders? Legal Representation: Do the parties need a lawyer, and can they afford it? Court Formalities: Are the parties comfortable with court procedures and formality? Size & Complexity: Larger, more complex cases go to the Supreme Court; smaller claims to the Magistrates' Court. Class Action: Only the Supreme Court can hear class actions. Time & Speed: Courts can be slow; consider CAV, VCAT, or mediation for faster resolution. Publicity: If sensitive to publicity, arbitration may be preferred as it’s private.

Answer 35

Settlement Opportunity: Pre-trial procedures like mediation may resolve disputes out of court, saving time, costs, and stress. Efficient Resolution: Parties learn the strengths and weaknesses of each other’s case, which may lead to narrowing the issues or resolving matters before trial. Procedural Fairness: Judges direct parties to ensure fairness, making sure each side knows the case against them through processes like discovery. Court Interaction: Pre-trial processes like pleadings and directions hearings allow the court and parties to address issues early, improving efficiency. Binding Decision: Courts provide certainty with a binding decision that is enforceable, ensuring a final resolution.

Answer 36

Costly: The cost of engaging a lawyer and court fees can restrict access to justice, especially for parties with fewer financial resources. Complex Procedures: Many pre-trial procedures, such as pleadings and cross-examination, are difficult to understand without legal help. Delays: Pre-trial procedures, particularly discovery, can be time-consuming, leading to delays in the resolution of disputes. Stress and Formality: The formal nature of court procedures can be stressful and intimidating for parties, making the process feel inaccessible. No Compromise: Court decisions are final, which means they do not allow for compromises or win-win situations, potentially leaving one party dissatisfied.

Answer 37

Third Party Decision-Maker CAV: No third-party decision-making power. Facilitates discussions, suggests options, and helps parties resolve the dispute. VCAT: Yes, a member makes a binding decision at the final hearing. Courts: Yes, a judge (and possibly a jury) makes a binding decision after hearing all the evidence. 🔹 Process and Procedures CAV: Conducted privately, no formal rules of evidence, no pre-trial procedures, and no need for legal representation. VCAT: More flexible rules of procedure, hearings are usually public unless settled before a final hearing, no jury, and parties can represent themselves. Courts: Public hearings, strict rules of evidence and procedure, pre-trial procedures, and legal representation typically required. Juries may be involved in higher courts. 🔹 Types of Civil Disputes CAV: Consumer-related disputes (e.g., tenant-landlord, consumer-trader). VCAT: Civil disputes, including small claims, residential tenancies, and retail tenancies. Courts: All types of civil disputes, including complex claims, with jurisdiction over all cases (Magistrates' Court has a $100,000 limit). 🔹 Dispute Resolution Methods CAV: Mediation and conciliation. VCAT: Mediation, conciliation, and hearings for final decisions. Courts: Mediation, arbitration (in some cases), and hearings for final decisions. 🔹 Jurisdiction and Restrictions CAV: Restricted jurisdiction (e.g., consumer-related disputes). VCAT: Some exclusive jurisdiction matters (e.g., residential tenancies, planning disputes). Courts: No restrictions for the County and Supreme Court, but the Magistrates' Court has a $100,000 limit. VCAT also has exclusive jurisdiction in certain cases. 🔹 Appeals CAV: No appeals, as it doesn't make binding decisions. VCAT: Appeals allowed on points of law to the Supreme Court. Courts: Appeals allowed, depending on the court level, usually on points of law to the Court of Appeal or the Supreme Court.

Answer 38

Civil justice aims to reduce legal costs through ADR (e.g. mediation, conciliation), but resolving civil disputes can still be very expensive. High costs may discourage people from making claims or lead them to self-represent, which can negatively affect the outcome. 🔹 Legal Costs Legal representation is crucial in achieving fairness, but not everyone can afford it. CAV is free, while VCAT is low-cost, but court proceedings, especially in higher courts, are often very expensive. 🔹 Additional Costs Disbursements (out-of-pocket expenses) include: Expert witnesses Mediators Filing and hearing fees Jury costs (if used) 🔹 Cost Risks A party may be ordered to pay the other side’s costs if they lose the case. Self-representation is increasing, particularly in VCAT, but not everyone can navigate the system effectively without legal help. 🔹 Access to Legal Aid Very limited for civil matters—most legal aid goes to criminal and family law. Many civil claimants are forced to settle, withdraw, or avoid claims due to high costs. Courts and tribunals offer support to self-represented parties, but this help is limited. They can explain procedures, but cannot argue the case or advocate on the party’s behalf, so challenges still remain. EXAMPLES OF COSTS Barrister’s fees: Dependent on the level of experience of a barrister a full day in court can range from $ 3,000- $ 5,000. Solicitors fees: drafting documents & letters, researching law and preparing evidence, advising and instructing barristers $ amounts Expert fees: doctors, psychiatrists, etc can charge fees Court Fees: In the Magistrates’ court of Victoria after the first day are - $ 637.60 Standard fees in the Supreme Court of Victoria are $740 Filing fees: Magistrates’ court can amount between $156 & $743.10. Use of Jury: Day 1 = $ 1,611.60 in the County Court. $301.20 for the next 6 days if longer the amount is almost double. Appeals: In the Supreme court appeals start at $740.

Answer 39

Alternative Dispute Resolution (ADR): Mediation and conciliation help parties avoid a trial/hearing, reducing overall costs. Two key cost-saving benefits: Early resolution = cost savings (avoids pre-trial/trial costs and paying the other party's costs). System-wide savings — fewer hearings mean less court/VCAT funding needed. Additional Cost-Reducing Measures: Use of CAV and VCAT: Low or no cost Legal representation often not needed Case Management by Judges: Narrowing issues, limiting discovery, early mediation Pro Bono Services: Provided by groups like Justice Connect and the Victorian Bar to assist vulnerable individuals

Answer 40

Why Time Matters Quick and efficient hearings = fairer outcomes Lengthy delays may discourage parties or pressure them to settle unfairly 🔹 Factors That Impact Time Backlogs: Common in VCAT and courts, worsened after COVID-19 E.g. Residential Tenancies List wait time increased from 2–4 weeks to 22 weeks (2021–22) Pre-trial procedures: Discovery often takes months and adds to delays Case management can streamline these steps Evidence gathering & preparation: Parties need time to collect and organise evidence 🔹 Consequences of Delays Stress and inconvenience Increased costs May lead to early, unfair settlements or withdrawal of claims

Answer 41

Case Management Powers (Courts & Tribunals) Used to streamline procedures and reduce delays. Judges can: Order parties to attend mediation or other ADR Limit the scope of discovery Decide no pleadings are required Restrict time for hearings (e.g. number of witnesses, cross-examination time) ✅ A proactive judge helps: Narrow issues Ensure relevant steps only Enforce deadlines via court orders 🔹 VCAT & Other Delay-Reduction Measures VCAT Backlog Programs: Pilot with County Court for complex building disputes Backlog recovery in Residential Tenancies List ‘On the papers’ hearings: Some matters decided using written submissions only Online hearings & mediations: Faster & more accessible Reduces need for physical attendance

Answer 42

An order made by a court or tribunal designed to address a civil wrong or breach Purpose of a remedy: A remedy should provide a legal solution to the plaintiff and attempt to restore the plaintiff to their original position prior to the breach of their rights.

Answer 43

Damages are amounts of money awarded by the court to compensate the plaintiff for loss or injury caused by the defendant’s wrongful acts. Their main purpose is to return the plaintiff to the position they were in before the wrong occurred. Types include compensatory, exemplary, nominal, and contemptuous damages.

Answer 44

Compensatory damages aim to restore the plaintiff to the position they were in before the wrongful act occurred. These damages may not always fully restore the plaintiff, especially in cases involving permanent injury, but they seek to compensate for past and future losses. There are three types of compensatory damages: Special Damages (Specific Damages) Purpose: Compensate for losses that can be precisely quantified and calculated. Examples: Medical expenses (past and future) Loss of wages Property damage Loss of profits Loss of assets or personal property General Damages Purpose: Compensate for non-quantifiable losses that the court calculates based on evidence. Examples: Pain and suffering (both past and future) Loss of long-term job prospects Loss of amenity (e.g., loss of lifestyle or enjoyment) Physical impairment or disfigurement Mental health or psychological injuries Aggravated Damages Purpose: Awarded when the defendant’s conduct causes humiliation, distress, or insult to the plaintiff. These damages are given when the defendant's actions were particularly cruel or insulting. Examples: Humiliation, distress, embarrassment, or insult caused by the defendant’s behavior

Answer 45

Exemplary damages (also known as punitive damages) aim to punish the defendant for extreme violations of rights and to deter others from similar conduct. They are awarded when the defendant’s actions are malicious, violent, cruel, insolent, or show scornful disregard for the plaintiff's rights. Purpose: To punish and deter, not just compensate the plaintiff. Limitations: Exemplary damages cannot be awarded for defamation. Example Case: In cases involving noise from a neighboring wind farm, both compensatory and exemplary damages may be sought.

Answer 46

Nominal damages are a small amount of money awarded when the plaintiff has proven they were wronged, but no actual injury, loss, or damage was suffered. Purpose: To uphold the plaintiff’s rights without awarding substantial damages. Example: In a breach of contract case, nominal damages may be awarded if the contract was breached, but no real loss or damage occurred as a result.

Answer 47

Contemptuous damages are awarded when a court or tribunal recognizes that the plaintiff has a legal right to damages but not a moral right to compensation. Purpose: To acknowledge the plaintiff’s legal right while expressing disapproval or contempt for the claim. A very small amount of money is awarded to reflect that the court considers the case to be technically valid but largely undeserving.

Answer 48

Some claims and types of loss have legal limits on the amount of damages that can be awarded. Personal Injury Claims (Victoria): Under the Wrongs Act 1958 (Vic), damages for non-economic loss (e.g. pain and suffering, loss of quality of life) are capped, with limits adjusted annually by Parliament. Defamation Claims: Damages for non-economic loss are generally capped at $250,000, although this limit can be exceeded in certain circumstances.

Answer 49

Compensatory Damages – Factors to Consider Type of Loss: Financial losses (e.g. lost wages, property damage) are easily calculated and can often fully restore the plaintiff. Non-financial losses (e.g. pain, mental anguish, disfigurement) are harder to quantify and often cannot be fully remedied. Future Loss: Losses such as diminished job prospects or lost reputation are difficult to measure, making precise compensation challenging. Availability of Evidence: Courts need sufficient evidence (e.g. expert reports, earning capacity) to calculate damages. Lack of representation may reduce award accuracy. Actual Payment of Damages: If the defendant cannot or does not pay (e.g. due to bankruptcy), the plaintiff may not be restored. Need for Additional Remedies: Damages alone may not cover costs or future harm—other remedies (like injunctions or cost orders) may be needed. Statutory Caps: Legal limits (e.g. under Wrongs Act 1958 (Vic)) may restrict the amount awarded and reduce effectiveness. 2. Exemplary Damages – Factors to Consider Amount Awarded: If too low, it may not punish or deter; higher amounts are more effective. Defendant’s Financial Capacity: A wealthy defendant may not feel punished by a high award; a poor defendant may not be able to pay. Public Awareness: For deterrence to work, others must know about the award—media coverage or legal reporting can help. Caps or Legal Restrictions: Caps (e.g. in defamation law) may limit the impact of exemplary damages. 3. Nominal Damages – Factors to Consider Actual Loss: If the plaintiff suffered real loss but couldn’t prove it, nominal damages may not reflect the full situation. Perceived Significance: Very small awards might not be seen as effectively upholding the plaintiff’s rights. Legal Costs: Plaintiffs may incur high legal fees that aren't recovered through nominal damages, leading to financial disadvantage despite "winning" the case.

Answer 50

Injunctions An injunction is a court order that either: Restrains a person from doing something (restrictive injunction), or Compels a person to do something (mandatory injunction). Purpose: To rectify a situation caused by a person found to be in the wrong. Types of Injunctions: Restrictive Injunction: Stops a party from continuing an action (e.g. publishing defamatory material). Mandatory Injunction: Requires a party to take a specific action (e.g. remove an obstruction). Timing of Injunctions: Interlocutory Injunction: Temporary Granted urgently to prevent further harm before the case is fully resolved May be overturned or become permanent at final hearing Final Injunction: Permanent Issued after a full trial or hearing Binding unless appealed

Answer 51

Restrictive Injunctions (Prohibitory Injunctions) A restrictive injunction is a court order that requires a person to refrain from doing something. Purpose: To prevent harm or further harm to the plaintiff, especially where the harm could be irreparable or permanent (e.g. demolishing a building or building a road). Common Use: It is the most common form of injunction.

Answer 52

A mandatory injunction is a court order that requires a person to do a specific act. Purpose: To make the defendant take action to prevent further harm or to remedy a situation caused by their wrongful conduct. Examples of Use: Requiring a party to perform part of a breached contract (e.g. signing and handing over a document) Forcing someone to take down defamatory social media posts Key Conditions for Granting: The court must be satisfied that the defendant clearly understands what they are being ordered to do. The plaintiff must be at risk of significant harm if the injunction is not granted.

Answer 53

Restrictive Injunctions – Factors to Consider Defendant’s Compliance: Will the defendant comply with the injunction? Non-compliance (e.g., ignoring orders to take down defamatory posts) may result in ongoing harm to the plaintiff. Harm Already Suffered: If harm has already occurred, an injunction alone may not be enough to fully address the issue. Damages may also be necessary to compensate for losses already incurred. Sufficiency of a Restrictive Injunction Alone: In some situations, a mandatory injunction may also be needed. For example, while a restrictive injunction may stop future posts, a mandatory injunction may be needed to remove already published defamatory content. Need for Other Orders: Injunctions do not cover costs, stress, or inconvenience caused by the situation. Additional remedies might be required to address all aspects of the harm suffered by the plaintiff. Mandatory Injunctions – Factors to Consider Defendant’s Willingness to Act: Will the defendant follow through with the court’s order? If they don’t comply, the purpose of the injunction will not be fulfilled. Harm Already Suffered: If harm has already occurred, a mandatory injunction may not fully address it. Damages may be needed to compensate for losses that have already taken place. Sufficiency of a Mandatory Injunction Alone: Sometimes, a restrictive injunction may also be needed. For example, after compelling the defendant to sign and return a document, a restrictive injunction may be needed to stop them from taking further actions. Need for Other Orders: Like restrictive injunctions, mandatory injunctions do not cover costs or inconvenience caused by the situation. Additional remedies might be required to fully address the harm caused to the plaintiff.

Answer 54

- even in cases where the damages awarded are minimal, or where the plaintiff is seeking nominal damages, the court's decision to award such compensation acknowledges the plaintiff's right to a legal remedy and upholds their rights to seek justice for a violation of their civil rights In some cases, the harm suffered by the plaintiff is so significant that damages cannot fully restore their rights. For example, in cases of wrongful death, no amount of compensation can restore the plaintiff’s right to life. Additionally, jurors may lack the legal expertise to award damages that uphold the plaintiff’s rights, potentially misunderstanding the value of those rights.

Answer 55

- defendant's actions may have been intentional or reckless, and damages can be awarded to deter similar behaviour in the future. Upholds the plaintiff's right to be protected from future harm by holding the defendant accountable for their actions -while damages can be awarded to deter future harmful conduct, no guarantee that this will be effective, especially if others perceive the potential risk of wrongful actions to be outweighed by the benefits, or unaware of the risk of being sued for damages. If defendant is unlikely to be deterred by the damages awarded, the plaintiff's rights may not be fully upheld - if the defendant cannot pay the damages due to limited financial means, damages cannot deter them effectively

Answer 56

Injunctions aim to restore the plaintiff to their original position by requiring the defendant to take action to prevent harm. They can also prevent future breaches by restricting the defendant’s actions.

Answer 57

interlocutory injunctions are temporary and when the time period has been completed, the defendant is able to continue their disruptive behaviour

Answer 58

- by granting an injunction, the legal system demonstrates its commitment to protecting and upholding the rights of individuals in civil matters, providing a powerful tool for plaintiff's to seek justice and remedy breaches of their rights

Answer 59

Starting a civil claim is expensive, so people with high socioeconomic status can easily protect their civil rights. In contrast, those with medium or low socioeconomic status may not have the resources to seek a civil remedy.

Answer 60

Injunctions provide immediate relief to the plaintiff by quickly stopping or restricting the defendant’s actions, preventing further harm. This swift action can also serve as a powerful deterrent other from similar breaches.

Answer 61

The court has limited ability to monitor if defendants follow injunctions. If a defendant ignores an injunction, the plaintiff may need to start more legal proceedings to enforce it, which can be time-consuming and costly. This limitation can weaken the deterrent effect of injunctions if they are not enforced.

UNIT 3 - aos2 Flashcards

(85 cards)