Unit 4 AOS1b - Chapter 6: Resolution Bodies and Methods Flashcards Preview

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Flashcards in Unit 4 AOS1b - Chapter 6: Resolution Bodies and Methods Deck (105):
1

What are tribunals?

Tribunals provide a cheaper, quicker and less formal method of dispute resolution for civil disputes than taking the matter to court.

They usually deal with a limited area of the law, and build up expertise in that area.

2

How do tribunals differ from the courts?

In some instances legal representation is not allowed, which means the parties are able to conduct their own cases.

The process of dispute resolution is less adversarial (two sides battling to win) than the courts.

The emphasis is on finding an appropriate resolution acceptable to both parties.

3

What does VCAT stand for?

Victorian Civil and Administrative Tribunal?

4

Explain the following division of VCAT: civil division

The Civil Division hears and determines a range of civil disputes relating to:
. consumer matters
. domestic building works
. owners corporation matters
. retail tenancies
. sale and ownership of property
. use or flow of water between properties.

Civil Division has three Lists:
. Civil Claims - deals with disputes between buyers and sellers of goods or services, including claims involving faulty consumer goods and services and deceptive conduct. Also hears disputes relating to owners’ corporations (body corporates) in multi-unit developments, including issues involving common property.

. Building and Property - hears disputes involving domestic building works between owners and builders, and appeals against decisions of insurers. It also hears disputes relating to real estate, such as disputes between co-owners and water flow disputes.

. Owners Corporations - deals with disputes between buyers and sellers of goods or services, including claims involving faulty consumer goods and services and deceptive conduct. Also hears disputes relating to owners’ corporations (body corporates) in multi-unit developments, including issues involving common property.

5

Explain the following division of VCAT: residential tenancies division

Deals with disputes between landlords and tenants, such as non-payment of rent, damage to premises, bond refunds, maintenance of property. The same issues can be heard between:
. Site tenants and site owners
. Rooming house owners and residents
. The Director of Housing and public housing tenants
. Caravan park owners and residents

This used to be part of the civil division, however because it made up 65.6% of all cases received by the VCAT it got its own division.

6

Explain the following division of VCAT: administrative division

Administrative Division deals with professional conduct inquiries and applications from people seeking review of decisions made by government and other authorities. It has three Lists:
. Legal Practice - hears disputes between clients and lawyers, and discipline cases brought under the Legal Professionals Act 2004 (Vic.) about a lawyer’s conduct.

. Planning and Environment - deals with appeals and applications about the use and development of land, such as complaints about local council planning decisions or permits. It also hears disputes regarding land valuation and compensation for damage to or acquisition of land.

. Review and Regulation - deals with reviews of decisions made by licensing bodies, such as those bodies that regulate estate agents, motor car traders, taxis, racing and teachers.

7

Explain the following division of VCAT: human rights division

The Human Rights Division deals with matters relating to:
. guardianship and administration
. equal opportunity
. racial and religious vilification
. health and privacy information
. the Disability Act 2006 (Vic)
. decisions made by the Mental Health Tribunal.

Human Rights Division has two Lists:

. Guardianship, including Powers of Attorney - hears cases involving people who cannot make reasonable personal or financial decisions for themselves due to a disability so a guardian needs to be appointed to look after the person’s legal affairs.

. Human Rights - hears disputes regarding discrimination and equal opportunity, reviews of decisions made by the Mental Health Review Board, and complaints under various Acts relating to access to private health records.

8

When and why was the VCAT introduced.

The VCAT began operation on the 1st of July 1998 and was introduced because there used to be a number of tribunals operating in Victoria, which resulted in public confusion and expensive administration.

The VCAT was able to address this problem because it amalgamated (combined) 15 boards and tribunals to offer a one-stop shop dealing with a range of civil disputes.

9

Explain the structure of the VCAT (include how many divisions it has).

VCAT began operations on 1 July 1998 and deals only with civil disputes. It does not deal with any criminal cases. It is made up of four divisions:
. Civil Division
. Residential tenencies division
. Human Rights Division
. Administrative Division.

The cases are divided into various lists, which are sections that specialise in particular types of cases. For example, the Human Rights List hears equal opportunity cases.

10

What is structure of the VCAT?

VCAT consists of the president, a number of vice-presidents, and deputy presidents, and senior and ordinary members.

The president must be a judge of the Supreme Court. Vice-presidents must be judges of the County Court.

Each deputy president manages one or more of the lists.

Hearings are conducted in the VCAT building in Melbourne, in addition to sittings being held at Magistrates’ Court premises and other appropriate centres – nine in the metropolitan area and 27 in country locations.

11

What is the role of the VCAT?

VCAT was established as an avenue of dispute resolution that is easily accessible to people in the community, using informal processes that are easy to understand.

The tribunal aims to provide low- cost proceedings and timely resolution of civil disputes, as well as experts in particular fields of law, such as anti-discrimination. The decisions of the tribunal are binding on the parties and can be enforced through the courts.

Since its inception, VCAT’s purpose has been to provide Victorians with a low-cost, accessible, efficient and independent tribunal delivering high-quality dispute resolution.

12

How does VCAT resolve disputes?

With:
. Low costs
. Timely resolutions
. Accessibility and informal settings
. Expert bodies

13

Explain the following purpose of the VCAT: low-costs

For many proceedings the parties need only pay a nominal amount for filing their claim, although costs vary from list to list.

As approximately 82 per cent of claims in the Civil Claims List, for example, fall into the small claims category (less than $10000), this provides cost-effective access to the legal system for many people in civil disputes.

If payment of the VCAT fee is likely to cause financial hardship, the principal registrar has the power to waive the fee.

Costs are further reduced for disputes heard at VCAT because the parties are able to represent themselves, rather than having to engage legal representation.

VCAT provides assistance to parties who are unrepresented through members’ guidance in hearings; Victoria Legal Aid duty lawyers will also provide unrepresented parties with free and confidential legal advice.

14

Explain the following purpose of the VCAT: timely resolution

A matter before VCAT can be heard in a shorter time than taking a matter to a court.

For example, in the Residential Tenancies division, the busiest division of VCAT, the average time delay from application to hearing is two weeks.

The time taken at the actual hearing is also short, depending on the complexity of the case, with most hearings taking less than a day.

15

Explain the following purpose of the VCAT: accessible and informal

Hearings are less formal than using the courts and are not bound by the rules of evidence and procedure used in courts.

Tribunals use a more conciliatory process rather than the adversarial process used in the courts of two parties fighting to win; in some instances the parties may be directed to attend mediation or a compulsory conference.

VCAT conducts hearings in various locations in Victoria. Its main centre is at King Street, Melbourne, but VCAT has a further 36 centres across the state, 27 of which are in country areas.

VCAT actively tries to increase its accessibility for ordinary people, using processes such as SMS reminder messaging for tenants in residential tenancy hearings, telephone and video conferences in place of attending the tribunal, lodging documents online and conducting hearings online via the Internet using VCAT Online.

16

Explain the following purpose of the VCAT: expert bodies

Each of the lists within VCAT is staffed by personnel who are experienced in working in that list. This enables members and support staff to develop expertise in dealing with the specific laws and related disputes in that area.

VCAT members include legal practitioners and other professionals with specialised knowledge or expertise, such as planners, engineers, architects, medical practitioners, accountants, land valuers and real estate agents. Some work across a number of lists.

Professional development for members and staff is ongoing. VCAT established an in-house learning centre in 2009, which works closely with the Judicial College of Victoria, to ensure that VCAT provides ongoing professional development, training and support for staff.

17

What are the types and incidence of disputes heard at the VCAT?

. consumer matters
. credit
. discrimination and equal opportunity
. domestic building works
. guardianship and administration
. residential tenancies and retail tenancies
. disputes between people and government agencies about land valuation; about licences to carry on businesses including travel agents, motor car traders and others; and about planning or state taxation
. government decisions, such as Transport Accident Commission decisions and freedom-of-information issues.

18

Where does the VCAT's original jurisdiction come from?

VCAT’s power comes from many Acts, including the Victorian Civil and Administrative Tribunal Act 1998 (Vic.) and other enabling Acts such as the Residential Tenancies Act 1997 (Vic.) and the Equal Opportunity Act 2010 (Vic.).

19

How can VCAT review decisions made by decision-makers?

The tribunal hears disputes involving individuals and organisations, and also reviews decisions of some other decision-makers. An Act may specify that a review of a decision may be made by VCAT. For example, the Victims of Crime Assistance Act 1996 (Vic.) specifies that a decision of the Victims of Crime Assistance Tribunal can be reviewed by VCAT. The Transport Act 1983 (Vic.) specifies that a decision of the Public Transport Corporation can be reviewed by VCAT.

20

What can VCAT do when it reviews a decision of a decision maker?

. affirm the decision
. vary the decision
. set aside the decision and make another decision in substitution
. set aside the decision and remit the matter for reconsideration by the decision-maker.

As with the courts, the decision of VCAT is binding on the parties.

21

What are the types of orders that VCAT can make?

. Require a party to pay money
. Require a party to do something, such as perform work, carry out repairs, vacate premises
. Require a party to refrain from doing something
. Declare that a debt is or is not owing
. Review, vary or cancel a contract
. Dismiss a claim.

22

More on VCAT orders.

Decisions of VCAT are binding on the parties.

When VCAT has made an order requiring money to be paid to a person, and the money has not been paid, the person to whom the money is owed can have the tribunal’s order enforced by filing a copy of the order with the relevant court, for example the Magistrates’ Court for orders under $100 000.

That court will then certify the order so that the person can enforce it.

Orders that do not require the payment of money, such as an order that work be done to fix a defective good, can be certified by filing the order at the Supreme Court.

23

Explain appeals from the VCAT.

Appeals from a decision made by VCAT may only be made on a point of law.

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.

24

What are dispute resolution methods?

These are the range of methods used by courts and tribunals to resolve disputes, particularly in civil matters.

25

What do most criminal cases use for resolving disputes?

Most criminal cases use judicial determination as a method of resolving disputes.

That is, they are heard before a judge and jury (except cases in the Magistrates’ Court or appeals).

The judge hears the case and a legally-binding decision is reached (by the jury, if present).

26

What do most civil cases use for resolving disputes?

Most civil cases are resolved through other dispute resolution methods such as mediation, conciliation and arbitration.

This is less formal dispute resolution, where a dispute is reconciled between the parties with the help of an independent third party.

However, civil cases also use judicial determination as a method of resolving disputes.

27

What are other dispute resolution methods?

Other dispute resolution methods (such as mediation, conciliation and arbitration) are less formal dispute resolution, where a dispute is reconciled between the parties with the help of an independent third party.

28

What is often a compulsory step in most state courts before civil matters reach a hearing before a court or VCAT?

Mediation.

29

What are generally not appropriate for criminal cases?

Mediation, conciliation and arbitration are generally not appropriate for criminal cases, although victim–offender mediation is used in some instances.

30

What are the other dispute resolution methods also known as?

Other dispute resolution methods = Alternative Dispute Resolution OR Appropriate Dispute Resolution (ADR).

31

Where can the ADR methods be used?

They can be used by the parties without going to VCAT or the courts. However, these methods are also used by the courts and VCAT to resolve disputes before, or as an alternative to, judicially determining the case.

32

What are the ADR methods?

. Mediation
. Conciliation
. Arbitration
. Also negotiation and collaborative law (only need to know first three)

33

Explain mediation.

This is the cooperative methods of resolving disputes and is widely used in our legal system.

The parties in conflict sit down and discuss the issues involved, develop options, consider alternatives and reach an agreement through negotiation.

This is done through the help of one or two mediators. Mediators are usually people the parties can relate to (eg. If parties to the dispute are a man and a woman, the mediators may be the same).

This helps the parties feel more comfortable and less threatened. The parties may require profession mediators such as social workers or solicitors.

34

Mediation.

The mediator does not interfere, but allows the parties to have control of their dispute, explore the options and attempt to resolve the dispute by reaching an agreement that satisfies the needs of both parties.

The role of the mediator is to facilitate discussion, but not interfere, between the disputing parties in order to ensure that both parties are being heard.

If focuses on feelings and values of the parties as well as the facts involved.

35

What are the disputes suitable for mediation?

Mediation is more appropriate when a continuing relationship is required and is most successful with neighbour and family matters.

Mediation will only work when both parties decide to take part and are willing to abide by any agreement reached.

36

What are the disputes unsuitable for mediation?

Mediation is not appropriate when there is imbalance between the parties in terms of power and resources (eg. Employer and employee)

Also when:
. There is no continuing relationship
. Both parties unwilling to attend
. Overwhelming emotions involved
. History of broken promises
. Landlords and tenants (rent and occupancy)
. Violent and threatening behaviour (eg. Child abuse)
. Both parties are not willing to try to reach a mutual agreement
. Gross imbalance of power
. Serious criminal matters

37

Explain how a successful mediation occurs.

A successful outcome in mediation will have occurred if the parties reach a fair compromise, make an agreement that is workable and take responsibility for keeping the agreement.

Agreements made through mediation are not legally binding or enforceable (unless a contract is signed).

38

Explain the use of mediation in the courts.

The Magistrates' Court, County Court and Supreme Court refer civil cases to mediation to speed up their resolution and reduce the backlog of cases. Mediation is seen as working alongside courts. It is offered in suitable cases at a fixed point before the cases are set down for trial or hearing, or earlier if possible.

Courts may order a proceeding to mediation, with or without the consent of the parties, or parties can ask the court to refer them to a mediator. The mediator can be appointed by the court, or agreed upon by the parties.

39

Explain the use of mediation in the VCAT.

VCAT encourages parties to try to resolve their dispute using mediation, as it minimises costs and disruption to the parties, and helps them to stay in control of the outcome.

The preferred forms of dispute resolution other than judicial determination and a final hearing at VCAT are mediation and compulsory conferences, although other methods are also used.

40

Explain other uses of mediation.

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41

What are the advantages of mediation?

. Allows parties to have their say without rules of evidence and procedure
. Provides parties with the opportunity to enter into voluntary agreement between themselves
. If a dispute is not resolved the mediation process can help to clarify issues in a dispute

42

What are the disadvantages of mediation?

. One party may be uncooperative
. One party may not attend
. One party may try to dominate proceedings

43

Explain conciliation.

Conciliation is the process of dispute resolution with the assistance of a third party. The third party does not make the decisions, but instead listens to the facts, makes suggestions and assists the parties to reach their own decision.

44

Conciliation.

The conciliator assists by exploring solutions to the dispute and suggesting possible options.

Conciliation differs from mediation in that the conciliator explores a greater influence over the outcome that is done in mediation.

The decision made by the parties is not binding, but is more likely to be followed as it has been made in front of a third party.

45

Explain the use of conciliation by the courts. Notes

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46

Explain the use of conciliation by the VCAT.

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47

Explain the other uses of conciliation.

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48

What are the advantages of conciliation?

. Not as formal as going to court
. Conciliator can provide I reaction and suggestions

49

Explain arbitration.

This is the use of a third party, which the parties have previously agreed to follow, to listen to the facts of the dispute and make a decision on behalf of the parties.

The decision made by the arbitrator is legally enforceable.

Arbitration is used in commercial disputes and the magistrates court for disputes less than $10,000.

50

Arbitration.

. Involves two parties
. The arbitrator helps the parties to negotiate and makes a resolution
. Binding

51

Explain the use of arbitration by the courts.

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52

What are the advantages of arbitration?

. More formal
. Decision is binding
. Faster than going to court

53

What are the disadvantages of arbitration?

. Parties are less able to discuss matters freely and only certain cases are suitable for arbitration
. Parties may prefer to reach a decision between themselves
. Parties may not be happy with the decision of the arbitrator

54

Explain the use arbitration by the VCAT.

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55

Explain other uses of arbitration.

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56

Explain judicial determination.

This refers to the dispute resolution process which involves the parties to the dispute presenting arguments and evidence to a judicial officer, such as a judge, magister or member of VCAT, who then makes a binding decision about the outcome of the case.

57

Features of Judicial determination.

. Impartiality - a judge or magistrate is an impartial adjudicator
. They hear evidence presented by both parties
. They are I dependant of the government (separation of powers) and are not subject to political pressures when making decisions.

58

What are the disadvantages of conciliation?

. Parties may prefer to reach agreement between themselves without interference by a third party
. Parties may feel directed into making a resolution that they do not want

59

Things you should know about judicial determination.

Rules of evidence - the judge or magistrate is to hear and determine cases based on evidence presented.

The judge or magistrate may also need to determine the admissibility of evidence.

Strict rules of procedure - the court has strict rules of procedure and evidence and the Judge or magistrate must ensure that these are adhered to.

Decide questions of fact and law - the judge or magistrate is responsible for determining both the facts and the applicable legal principles. In cases heard by judge and jury, it is the role of the judge to determine questions of law and that of the jury to decide questions of fact.

Reach a binding decision - the judge or magistrate is required to reach a decision in favour of one of the parties to the dispute. In a civil cases the decision is based on the balance of probabilities and in a criminal case the magistrate or jury (in the county or Supreme Court) must decide beyond reasonable doubt that the accused committed the alleged offence.

60

Explain the use of judicial determination by the courts.

Most courts in the Victorian court hierarchy engage in judicial determination to resolve cases. The processes by which this occurs are called trials in superior courts and hearings in the Magistrates’ Court.

Trials conducted by magistrates or judges in courts, with judicial determination, are the predominant method used to hear criminal cases. Courts also use judicial determination to resolve civil disputes if alternative dispute resolution methods have been unsuccessful or are inappropriate.

61

Explain the use of judicial determination by the VCAT.

Decisions made by the president or vice-president at the Victorian Civil and Administrative Tribunal could also be considered to be judicial determination as the president and vice-presidents are required to be judges of the Supreme Court and County Court, and are thus judicial officers.

If the hearing was heard by the president or a vice-president, a party must appeal to the Court of Appeal.

All other matters are appealed to the Supreme Court (Trial Division).

The evidence and arguments of the disputing parties are heard, and a binding decision or resolution of the case is reached.

VCAT hearings are not subject to the strict rules of evidence and procedure used in courts.

62

What are the advantages of judicial determination?

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63

What are the disadvantages of judicial determination?

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64

What are the similarities between the dispute resolution methods?

. Independent third party
. Attendance
. Consideration of the evidence or the claims being made
. Enforceable
. Use of a legal representative

65

Explain the following similarities between the dispute resolution methods: independent third party, attendance and consideration of evidence or claims being made.

Independent third party - each makes use of an independent third party to resolve a dispute (either a mediator, conciliator, arbitrator or judge).

Attendance - all normally requires the attendance by the parties or their legal representatives to make arguments or submissions about the strength of their case.

Consideration of the evidence or the claims being made - all dispute resolution methods may involve a consideration of the evidence or the claims being made for the dispute to be resolved.

66

Explain the following similarities between the dispute resolution methods: enforceable decision and use of a legal representative.

Enforceable decisions - all may involve an enforceable decision being made:
. in mediation and conciliation, this may involve terms of settlement signed by the parties
. in arbitration, an arbitration award will be handed down
. in judicial determination, it will be a court order.

Use of a legal representative - each can involve the use of a legal representative who appears on behalf of the parties.

67

What are the differences between the dispute resolution methods?

. Binding decision
. Fees and costs
. Types of disputes
. Role of the third party
. Privacy and confidentiality

68

Explain the following differences between the dispute resolution methods: binding decision, fees and costs as well as types of disputes.

Binding decision - A binding decision is only made in arbitration (arbitration award) and judicial determination (court order), whereas in mediation and conciliation no binding decision is made by a third party (though the parties can enter into terms of settlement, which can be legally enforceable).

Fees and cost - The fees and costs involved in judicial determination are much higher than in mediation and
conciliation.

Types of disputes - The types of disputes each method is used for are different. Conciliation, where the third party has more involvement, can be more appropriate for family matters than mediation, whereas judicial determination can be more appropriate where there is hostility between the parties.

69

Explain the following differences between the dispute resolution methods: role of the third party as well as privacy and confidentiality.

Role of the third party - The role of the third party is substantially different in each method. In mediation, the mediator makes no suggestions but is there to keep the parties on track and focused. In conciliation, the conciliator can offer solutions to the parties. In arbitration and judicial determination, the third party will listen to the arguments and make a binding decision.

Privacy and confidentiality - Mediation, conciliation and arbitration can be conducted privately and in confidence, whereas judicial determination is normally conducted in an open courtroom.

70

Fact about civil disputes.

About 85 per cent of all civil disputes use mediation, conciliation or arbitration to try to settle disputes, or reach an agreement over some of the issues.

Organisations that use alternative dispute resolution, such as VCAT, courts and the Dispute Settlement Centre of Victoria assist the public to generate win- win solutions as an alternative to judicial determination.

71

What are the strengths of mediation, conciliation and arbitration?

Quick SIC

. Quick
. Satisfaction
. Informal
. Cheaper

Can also talk about:
. The use of a third party
. How it is private and confidential
. How it is voluntary

72

Explain the following strength of ADRs: Quick.

They are able to save time in having the dispute resolved rather than waiting for the pre-trial procedures to be completed, and for a hearing or trial date to be obtained. This means time is saved for parties to the dispute as well as the justice system.

73

Explain the following strength of ADRs: satisfaction

Consider a broad range of issues - The parties are able to consider a broad range of solutions as part is can tailor a resolution or compromise that suits them, rather than being restricted to orders available to judicial officers or the remedies being sought in the statement of claim.

Flexibility - There is flexibility in how proceedings are conducted, which can be modified to suit the needs of the parties. For example, one party may wish to speak first and the parties and the third party may agree to this. The rules of evidence and procedure in judicial determination generally do not allow much flexibility in the procedure used.

More likely to reach a decision that will be followed - The parties are more likely to reach decisions that will be followed because they have reached the decisions themselves (except arbitration).

Not adversarial - They are not adversarial and therefore both parties can come away from the process feeling as if they have won.

74

Explain the following strength of ADRs: Informal.

Mediation, conciliation and arbitration are much less formal than court processes, as strict rules of evidence and procedure are not followed, and are therefore less likely to be intimidating for parties.

Research by the National Alternative Dispute Resolution Advisory Council (NADRAC) shows that participants have a high level of satisfaction with the mediation process (as well as the outcome).

They are conducted in a safe and supportive environment as mediators are trained to make the parties feel comfortable, supported in their point of view and listened to. This will assist the parties to feel less intimidated and more open to reaching a resolution.

75

Explain the following strength of ADRs: Cost.

They are generally cheaper than judicial determination. This is because the parties can avoid many of the pre-trial procedures that are expensive, such as discovery, preparing evidence for trial and attending directions hearings.

They are able to offer savings for the justice system as cases resolved through ADR save time, money and resources of the courts and VCAT so that these are available for other cases.

76

Explain the following strengths of ADRs: the use of a third party, privacy and confidentiality as well as parties using them voluntarily.

Third party - They make use of a third party who normally has expertise in resolving matters through mediation, conciliation and arbitration. The third party will encourage the parties to resolve the dispute in mediation, will offer up solutions in conciliation, and will hear both sides and make a determination in arbitration.

Privacy and confidentiality - They are private and confidential, unlike a court, which is usually open to the public. This can be beneficial, particularly for parties that wish to avoid public knowledge of the dispute or the outcome, such as large corporations or families.

Voluntary - They are voluntary, which means the parties can leave at any time and are not forced into doing or saying anything they do not wish to.

77

What are the weaknesses of mediation, conciliation and arbitration?

. May need to be taken to court anyway
. Dissatisfaction (compromise too much, manipulation, compelled)
. Not always appropriate (refuse to attend, not always appropriate)
. Will not form precedent

78

Explain the following weakness of ADRs: May need to be taken to court anyway

If a decision cannot be reached between the parties the matter may need to be taken to court anyway, delaying the time of final resolution.

79

Explain the following weakness of ADRs: Dissastisfaction

Compromise too much - One party may compromise too much because he or she is trying to cooperate as much as possible.

Manipulation - One party may be more manipulative or stronger than the other party and the other party may feel intimidated into reaching a resolution.

Compelled - One party may feel compelled to reach a resolution and may therefore feel dissatisfied that he or she has not achieved the desired outcome.

80

Explain the following weakness of ADRs: Not always appropriate

Animosity - The methods used in ADR may not be appropriate if there is animosity between the parties as the parties are unlikely to attend them in a spirit of cooperation.

Not always appropriate - It is not appropriate for the resolution of most criminal cases or for large civil disputes.

81

Explain the following weakness of ADRs: Decision doesn't always have to be followed

Refusal to attend - One party to the dispute may refuse to attend the resolution process if it is voluntary and therefore it will be a waste of time and money.

Although ADRs are cheaper, the decisions will not form any precedent and will not change any existing precedent. This is a downside for any areas of law where the dispute had the potential to create a new precedent or change the nature of an old precedent.

82

What are the strengths of judicial determination?

. Decisions are binding
. Experienced legal professionals
. Feel more satisfied from the formality
. Strict rules of evidence and procedure
. Tried by peers
. Precedent
. Certainty

83

Explain the following strengths of judicial determination: Decisions are binding, experienced legal professionals and feel more satisfied from the formality.

Decisions are binding - The decision is binding and can be enforced through the courts, although in some instances it
can be appealed against. This provides comfort to the party who is successful, who will now have a court or VCAT order which is enforceable.

Experienced legal professionals - Judicial officers are experienced legal professionals, with expertise in the law and its application,
which can assist the parties during the hearing or trial, as well as ensure that the outcome is being decided by someone who understands the law.

Feel more satisfied from formality - Parties may feel more satisfied with the formality of having a judge deciding a case for them, rather than having a method that is flexible.

84

Explain the following strengths of judicial determination: Strict rules of evidence and procedure, tried by peers, precedent and certainty.

Strict rules of evidence and procedure - Strict rules of evidence and procedure would have applied to the trial or hearing, thus ensuring both parties are subject to the same rules of what evidence can be admitted and how the parties are to proceed. This ensures natural justice and fairness in the way the dispute is resolved.

Tried by peers - Parties are tried by peers when there is a jury present, which can result in a fair and unbiased hearing.

Precedent - The decision may form a new or developed precedent which can be used in future cases. This is particularly important for areas of law where there is an outdated precedent, or where there is
room for the precedent to develop further.

Certainty - It gives parties certainty in the outcome, rather than relying on one party to fulfil what they said they would do in a mediated outcome.

85

What are the weaknesses of judicial determination?

. Expensive
. Formality
. Time
. Very stressful
. Bound by precedent
. Parties feeling dissatisfied

86

Explain the following strengths of judicial determination: Expensive, formality and time.

Expensive - It is usually expensive, due to the court fees, the costs associated with pre-trial procedures and preparing for trial, as well as the need to engage legal representation.

Formality - Judicial officers are bound by formality in their dispute resolution, such as strict rules of procedure in courts, which causes some parties anxiety and intimidation.

Time - The time it takes for a case to be ready for hearing or trial, for the court to set down the matter to be heard, and for the judicial officer to reach a decision can result in the remedy being delayed even longer.

87

Explain the following strengths of judicial determination: Very stressful, bound by precedent and parties feeling dissatisfied.

Very stressful - The process can be very stressful, particularly for those parties who are individuals or who are self-represented. The rules of evidence and procedure, the formalities and the general layout of a courtroom can all add to the stress on one party.

Bound by precedent - If the matter is being heard in a lower court, the judicial officer may be bound by a precedent that is outdated. This will mean that the party will have to incur the expense of appealing the case to a higher court in the hope that the precedent is changed.

Parties feeling dissatisfied - The final resolution of the judicial officer will usually be a win to one party and a loss to the other (this can lead to one of the parties feeling dissatisfied with the decision).

88

What are the similarities between the operation of the courts and VCAT?

. Fee
. Independent third party
. Make use of dispute resolution methods
. Use legal representation
. Both hear civil cases
. Appeal a decision
. Binding
. Judicial determination

89

Explain the following similarities between the operation of the courts and VCAT: Fee, independent third party, make use of dispute resolution methods and use of legal representation.

Fee - Both VCAT and the courts charge a fee for most types of cases. The fee is charged at the time the application is made at VCAT, or at the time the complaint in the Magistrates’ Court and the writ in the County Court and Supreme Court are filed.

Independent third party - Both use an independent third party to resolve a dispute. Courts use magistrates and judges, while VCAT use members, the vice-presidents or the president.

Make use of dispute resolution methods - Both make use of dispute resolution methods such as mediation, conciliation and arbitration. Both bodies have the power to refer parties to these methods before finally resolving the dispute.

Use legal representation - The parties can use legal representation in resolving the dispute, though legal representation is
used much more in courts than in VCAT.

90

Explain the following similarities between the operation of the courts and VCAT: Appeal a decision, binding and judicial determination.

Appeal a decision - The parties can appeal a decision made by courts and VCAT, except for a decision made by the High Court (full bench), and VCAT appeals can only be on a point of law.

Binding - A decision that is binding is made at the final hearing or trial, which can be enforced by the parties (though the enforcement method is slightly different).

Judicial determination - Depending on who hears the case in VCAT, both can use judicial determination as a method to resolve disputes.

91

What are the differences between the operation of the courts and VCAT?

. Separated
. Fee structure
. Jury
. VCAT decision has to be certified
. Legal representation
. Rules of evidence and procedure
. Pre-trial procedures
. Criminal cases

92

Explain the following differences between the operation of the courts and VCAT: Separated, fee structure, jury and VCAT decision has to be certified.

Separated - VCAT is a one-stop shop for the resolution of disputes, whereas the courts are separated into a hierarchy and can hear different cases depending on their jurisdiction.

Fee structure - The fee structure is substantially different. For some VCAT cases, there is no application fee (such as cases relating to discrimination). There is also no hearing fee for the first day of hearing. In contrast, the courts charge a fee on filing a claim and for each hearing day.

Jury - A jury is not available in VCAT for civil cases; on the other hand, a jury of six is optional for civil cases in courts.

VCAT decision has to be certified - While both make decisions that are binding, a VCAT decision has to be certified in the relevant court before it can be enforced on the other party, whereas a court decision is immediately enforceable.

93

Explain the following differences between the operation of the courts and VCAT: Legal representation, rules of evidence and procedure, pre-trial procedures and criminal cases.

Legal representation - Legal representation is generally not used in VCAT, whereas in courts legal representation is usually required.

Rules of evidence and procedure - VCAT generally does not use rules of evidence and procedure, whereas courts do, therefore VCAT is more informal than courts.

Pre-trial procedures - VCAT cases do not generally require the completion of pre-trial procedures, whereas courts use these procedures in both criminal and civil cases.

Criminal cases - VCAT is not available for criminal cases; on the other hand, courts hear both criminal and civil cases.

94

What are the strengths of courts in resolving disputes?

. Courts can hear all types of cases
. Specialised lists or courts
. Use of legal representation
. Independent experts
. Rules of evidence and procedure
. Adversarial
. Trial by ones peers
. Binding decisions
. Able to refer matters
. Appeal

95

Explain the following strengths of courts in resolving disputes: Courts can hear all types of case, specialised lists or courts, use of legal representation and independent experts.

Courts can hear all types of cases - The courts can hear all types of cases, both criminal and civil. They are not limited by any legislation which specifies the types of disputes that can be heard.

Specialised lists or courts - The courts have developed specialised lists or courts to allow for greater administrative convenience and specialisation for certain cases. Examples of specialised lists or courts include the Drug Court and the Assessment and Referral Court List in the Magistrates’ Court, the Koori Court Division in the Magistrates’ Court and County Court, and the Commercial Court in the Supreme Court.

Use of legal representation - The use of legal representation ensures that parties are equally represented and able to argue their case, which can benefit the parties in ensuring rules of evidence and procedure are complied with and their best case is put forward.

Independent experts - The courts use independent experts whose specialist skills help determine the outcome of cases. The judges are experts in their area and will use their skills and experience in handing down a decision.

96

Explain the following strengths of courts in resolving disputes: Rules of evidence and procedure, adversarial, trial by ones peers, binding decisions, able to refer matters and appeals.

Rules of evidence and procedure - Ensure that all parties are treated in a fair manner.

Adversarial - The adversarial atmosphere is more suitable when there is animosity between the parties.

Trial by ones peers - There is an ability to have trial by one’s peers, via a jury (for indictable offences in higher courts, and optional in civil cases).

Binding decision - The decision is binding, ensuring certainty in the outcome and allowing the winning party to enforce the decision if it is not complied with.

Can refer matters - The courts are able to refer matters to mediation, conciliation or another form of dispute resolution, such as early neutral evaluation or a case management conference to resolve or narrow
the issues.

Appeals - The courts enable parties to appeal a case if one party is dissatisfied with the decision.

97

What are the weaknesses of courts in resolving disputes?

. Expensive
. Delays
. Formality
. Adversarial
. Legal representatives

98

Explain the following weaknesses of courts in resolving disputes: Expensive and delays.

Expensive - High court fees and the need for legal representation make it expensive, which may lead to people not pursuing their cases.

Delays - Delays are very common and often there is a backlog of cases waiting to be heard. This can cause issues for the parties, such as longer delay in getting a just outcome, problems with witnesses being able to recall their evidence, and the possibility of some parties or even witnesses dying before the case is heard.

99

Explain the following weaknesses of courts in resolving disputes: Formality, adversarial and legal representatives.

Formality - Strict rules of evidence and procedure are followed; this formality could be intimidating for parties.

Adversarial - It is adversarial in nature, with one party winning and the other losing, which could increase tension between the parties.

Legal representatives - Due to the need for legal representatives and their influence on the case, the better prepared and more experienced barrister may win rather than the party with right on their side.

100

What are the strengths of VCAT in resolving disputes?

. Cheaper
. Quicker
. Informal
. Specialised
. Parties are encouraged to reach a solution
. Binding

101

Explain the following strengths of VCAT in resolving disputes: Cheaper, quicker and informal.

Cheaper - VCAT is normally cheaper than courts due to low application fees (about $44.90 for small claims) and parties being able to represent themselves.

Quicker - There is quicker resolution of disputes – the average time from application to resolution of disputes in some lists is about five weeks.

Informal - An informal atmosphere ensures that parties can put their case forward in their own way, rather than be subject to strict rules of evidence and procedure. Telephone and video conferences are also available in place of attending the tribunal, as well as online resolution.

102

Explain the following strengths of VCAT in resolving disputes: Specialised, parties are encouraged to reach a solution and binding.

Specialised - Each list operates in its own specialised jurisdiction, resulting in the tribunal personnel developing expertise in resolving disputes in that area.

Parties are encouraged to reach a resolution - between themselves, and often VCAT will refer matters to mediation or conciliation, or a compulsory conference, before the matter is determined by the tribunal.

Binding decision - The decision is binding on the parties.

103

What are the weakness of VCAT in resolving disputes?

. Only able to resolve civil disputes
. Increased use of legal representation
. Not an appropriate forum
. Limited right to appeal
. Too informal
. VCAT members are often non-judicial officers
. Delays

104

Explain the following weaknesses of VCAT in resolving disputes: Only able to resolve civil disputes, increased use of legal representation and not an appropriate forum.

Only able to resolve civil disputes - VCAT is only able to resolve civil disputes, not criminal disputes, therefore it is limited in its ability to hear all matters.

Increased use of legal representation - Due to increased use of legal representation, the costs of taking a matter to VCAT can increase and often be as high as taking the matter to court. Further, recent 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.

Not appropriate - For large and complex civil claims, VCAT is sometimes not an appropriate forum to resolve the dispute.

105

Explain the following weaknesses of VCAT in resolving disputes: Limited right to appeal, too informal, VCAT members are often non-judicial officers and delays.

Limited right to appeal -There is a limited right to appeal VCAT decisions. Decisions can only be appealed on a point of law, and to the Supreme Court (Trial Division or Court of Appeal), making it very difficult and very expensive to appeal a case.

Too informal - some parties may feel uncomfortable or ill-equipped to deal with the lack of formal procedure.

VCAT members are normally non-judicial officers - meaning they may be casual, sessional members without as much experience in hearing matters as judges and justices.

Delays - Recently VCAT has suffered long delays in some of its lists, particularly the Planning and Environment List. Some have argued this is hurting the economy as many construction projects are unable to go ahead without the appropriate permits.