Legal Studies - Unit 3 SAC 2

Key principles in the Victorian civil justice system, including the burden of proof and the standard of proof

Burden of proof

• on the plaintiff

• has to prove defendant was in the wrong

• preponderance of evidence must be in plaintiffs favor to be successful

Standard of proof

• balance of probabilities

• case that is more probable should succeed

• court decides which version of events is likely true

• If equal, plaintiff will lose as they initiated the civil action

Factors to consider before initiating a civil claim, including costs, limitation of actions and enforcement issues.

Costs

• fees for legal representation, court costs and other disbursements, and possible costs to be paid to other party if plaintiff is unsuccessful

• effective access to legal system can be compromised due to costs

• court costs can be expensive - lawyers who are often needed to achieve fair outcomes are expensive - can restrict people/stop them from taking legal action

• People do not have easy access to courts to resolve disputes due to high costs that may outweigh potential benefits

Limitations of actions

• restriction on bringing a civil claim after the allowed time - Limitation of Actions Act 1958 (Vic)

• Plaintiffs must bring their cases to court within a time limit - limitation period

• Most claims plaintiff will need to commence proceeding within a number of months or years - once period has passed, defendant may raise defense that plaintiff is out of time and can no longer bring the claim

• rationale for imposing limitations on plaintiff - defendant does not have to face action after significant amount of time - evidence is not lost, people can still remember what happened

• disputes can be resolved quickly as possible so as to promote social cohesion

Enforcement issues

• two ways plaintiff will obtain settlement or remedy - settling with the defendant before the court or tribunal hands down a decision - obtaining a remedy from a dispute resolution body such as a court

• to enforce the remedy awarded, plaintiff will need to consider whether defendant is able to and will pay

• issues to consider - bankruptcy/financial issues, jailed, defendant is company, defendant overseas/uncontactable, inability to locate

The principles of justice: fairness, equality and access

Fairness

• People engaging with the justice system and its processes should be treated impartially and without bias

Equality

• People engaging with the justice system and its processes should be treated in the same way. If treating them in the same way would create disparity or disadvantage, adequate measures should be implemented for them to engage with the justice system

Access

• People should be able to engage with the justice system and its processes on an informed basis

The purposes and appropriateness of methods used to resolve civil disputes, including mediation, conciliation and arbitration

Mediation

• Cooperative, non-judicial dispute resolution process involving independent third party - mediator

• Mediator - encourages two parties to communicate, assisting the parties to come to resolution voluntarily

Conciliation

• Non-judicial resolution process involving independent third party - conciliator 

• Conciliator - specialist knowledge about type of dispute in question, encourages two parties to communicate, assisting the parties to come to a resolution voluntarily

Arbitration

• Dispute resolution process involving independent third party - arbitrator 

• Arbitrator - listens to parties present evidence and makes binding decision

The reasons for the Victorian court hierarchy in determining civil disputes, including administrative convenience and appeals

Administrative convenience

• cases distributed to a court according to seriousness

• more serious and complex cases heard in higher courts - take longer to hear and require judges who are experts in complicated points of law - may involve a jury

• minor cases heard quickly and less expensively in the lower courts - higher courts can more easily manage time allocation for longer, more complicated cases

• legal personnel also allocated to courts according to their level of expertise - more experienced personnel can deal with complex issues

Appeals

• allows higher courts to review decisions of lower courts - appeals are key element of achieving principles of justice

• if party is dissatisfied with decision, they can access and take the matter to higher court if there are grounds for appeal - provides fairness and should allow any mistakes to be corrected

• No court hierarchy could create unfairness if cases were incorrectly determined by a court

The roles of key personnel in a civil dispute, including the judge or magistrate (including the role of case management), the jury, and the parties

Judge

• in cases without a jury, listens to all parties and make findings on points of law and points of fact - in cases with a jury, guide jury about points of law - work with legal teams to ensure trial is run properly and is fair

• judges can make orders or give directions to the parties, purpose is to facilitate just, efficient, timely and cost-effective resolution of real issues in dispute and encourage early settlement

Jury

• 6 jurors, decide if defendant is at fault and what damages/compensation will be awarded to the plaintiff, if needed

The need for legal practitioners in a civil dispute

• Help provide expertise and advocacy for parties, ensure principles of justice are upheld and that each party has an equal opportunity to share their version of facts

The use of class actions to resolve civil disputes

• Also known as representative proceedings 

• Commenced by ‘lead plaintiff’ claiming 7 or more people have claims arising from same/related circumstances

Benefits - principle of access

• All plaintiff's support each other and share costs 

• Efficient - saving court/court personnel time 

• Allows people to pursue civil action they may not have been able to afford individually

Lead plaintiff - responsibilities

• Describe class of people being represented 

• Once described every person is part of action unless opting out by notice 

• Consent of class members is unnecessary and their anonymity can be kept

The purposes and appropriateness of institutions used to resolve disputes, including Consumer Affairs Victoria, the Victorian Civil and Administrative Tribunal and the courts

CAV

• business unit in Department of Justice and Regulation with Vic gov't 

• Purpose - help Victorians be responsible and informed businesses and consumers 

• Advises and assists on topics - housing (renting and accommodation), estate agents, building, shopping and trading, businesses, clubs and not-for-profits, motor cars 

• Businesses are complaint with consumer laws, Victorians exercise their consumer rights, fair and safe rental market, modern and effective consumer law framework, sustainable and innovative regulator

• Use of conciliation

Strengths

• Conciliation service is free, process is informal - removes courtroom anxiety, fair, case by case basis - time is used efficiently, parties reach resolution themselves - more likely to accept

Weaknesses

• Covers limited Disputes, conciliation is not compulsory, decision reached is not compulsory unless binding agreement is entered, not all cases accepted, informality may result in a lack of seriousness, may be inappropriate for large and complex issues

VCAT

• Purpose - to provide Victorians with a low cost, accessible, efficient and independent tribunal delivering high quality dispute resolution processes, including through alternative dispute resolution services 

• Jurisdiction - Can only hear cases through legal authority, fees apply 

• Four divisions - administrative, civil, human rights and residential tenancies - lists within divisions 

• Orders and appeals - orders from VCAT decisions vary and are binding, appeals can only be made on a question of law, leave/permission required to appeal VCAT decision

Strengths

• Cheaper than courts due to low application fees, usually lower hearing fees, costs saved by not having to undertake expensive pre-trial procedures and parties being able to represent themselves

• Offers a quick resolution of disputes 

• Informal atmosphere can make parties feel more comfortable 

• Flexibility of hearing process ensures fairness and equality for unrepresented party as they have equal opportunity to understand processes and present their case 

• Specialisation - each list operates in specialised jurisdiction, tribunal personnel develop expertise in resolving disputes in that area of law 

• Resolution - parties are encouraged to reach resolution between themselves 

• The decision made in a final hearing is binding on the parties meaning it is enforceable

Weaknesses

• Due to increased legal representation, the costs of taking a matter to VCAT can be as high/higher than going to court 

• Large and complex civil claims are not appropriate for VCAT 

• Limited right to appeal decisions - must be on a point of law and to the supreme court 

• Informal procedures may make some uncomfortable 

• VCAT members are often not judicial officers - may not have as much experience in hearing matter 

• Some lists suffer long delays 

• Not bound by precedent as it is not part of court hierarchy - inconsistency may develop overtime 

• VCAT decision are binding but need to be certified by court - can be more time-consuming

The impact of costs and time on the ability of the civil justice system to achieve the principles of justice during a civil dispute.

• Costs may impact the ability of certain people to access the civil justice system, especially when going against a wealthy person/company 

• People may not pursue legal action in the first place due to the costs 

• Delays can restrict the achievement of justice - can compromise procedural fairness and increase stress

Damages and injunctions and their specific purposes.

• Remedy - to restore the plaintiff to the position they were in before the harm occurred, plaintiff sets out remedy sought in the statement of claim, often more than one remedy is sought 

Damages 

• Monetary compensation awarded to plaintiff to be paid by the defendant 

• Purpose - to compensate the plaintiff for losses suffered in order to return them to their previous position before the defendant cause the harm 

• Compensatory damages - most common 

  → Specific damages - monetary value - loss of wages

  → General damages - assessed by the court - future loss of wages 

  → Aggravated damages - awarded to compensate the plaintiff further - humiliation and insult 

• Nominal damages - small amount of money paid in the way of damages - to make a point about legal rights 

• Contemptuous damages - plaintiff has legal right but no moral right - plaintiff does not deserve to be paid damages 

• Exemplary damages - punitive damages, extreme infringement of rights, to punish and deter - conduct is cruel, violent disregard of the plaintiffs rights 

Injunctions 

• Order issued by a court that forces the defendant to do something or stop doing something

• Purpose - to prevent an action, put a stop to ongoing or repeated conduct that violates a person’s rights or causes injury or to force a defendant to take action in order to prevent harm 

• Mandatory injunction - to order a particular act 

• restrictive/prohibitive injunction - ordering a person to stop doing something 

• Injunctions are usually considered a legal remedy of last resort, plaintiff must show injunction is needed because no other remedies are adequate