unit 3 aos2 SAC2- victorian civil justice system

what are difficulties faced by self represented parties?

• lack of objectivity

• lack of legal expertise

what are weaknesses of legal practitioners in civil cases?

• quality of legal practitioners ranges

• expensive

• can be risky as if they lose, they may have to pay for other partys legal costs as well as own lawyer

what is a class action?

where a group of 7+ people who all have similar claims against the defendant join together, heard in the supreme court- trial division

what are the two types of roles in class actions?

• lead plaintiff- single person who represented the group and usually initiates claim and is responsible for costs

• group members- dont actively participate in proceeding and are not named in court documents

how is costs handled in class actions?

• lead plaintiff is responsible for costs and potential adverse costs orders

• if class action wins, group members share costs of initiating proceeding

  or

• litigation funder- 3rd party can exist who agrees to pay legal costs associated in return for percentage of settements/damages awarded even if the class action fails (depends)

• law firm support- plaintiff law firm can fund class action and obtain order to charge fees as a percentage of the amount of any award/settlement

what are the strengths of class actions

• group members are not responsible for any costs unless the claim is successful which increases access to justice for group members who may otherwise not be able to afford

• more efficient way of dealing with multiple claims about the same issue

• litigation funder and plaintiff law firms increases access to justice particularly if there is no one prepared to act as a lead plaintiff

• reduce costs of defendants as otherwise they would have to respond to multiple claims

• convenient way for group members who do not want the inconvenience of actively participating in proceedings

what are the weaknesses of class actions?

• large cost burden on lead plaintiff particularly if class action fails and there is no litigation funder or plaintiff law firm

• takes up significant court resources and time

• sometimes multiple class actions are initiated by different law firms in relation to the same issue- increases defendant’s costs

• group members may not receive adequate or up to date info about proceeding

what is the cav (consumer affairs victoria)

a complaints body that assists people in resolving disputes through conciliation without any cost

what cases does CAV have the jurisdiction to hear?

disputes between:

• purchasers and suppliers

• consumers and suppliers

• tenants and landlords (residential/business)

what are the strengths of CAV?

• CAV’s conciliation is free upholding access- engagement

• CAV conciliation process is informal and occurs on the phone- engagement and participation

• procedural fairness in conciliation process- impartial processes

• CAV chooses cases that are heard which ensures resources are used efficiently for more important cases

• CAV conciliation process allows CAV to reach the resolution by themselves

what are the weaknesses of the CAV?

• cannot assist with many cases- limits engagement

• CAV cannot force parties to attend conciliation- limits participation

• CAV cannot enforce any settlement- limits

• not all cases are accepted by CAV

• CAV not appropriate for large complex cases

what must be considered when engaging with the CAV

• whether CAV can hear case (has jurisdiction)

• whether the complaint justifies or needs CAV’s involvement

• if issue has already been dealt with by CAV or VCAT

• how likely the issue is to be resolved

what is VCAT?

dispute resolution tribunal that has low fees or no fees for most hearings and generally has no pre trial procedures and aims to be low cost, accessible, independent and efficient

what cases does VCAT have jurisdiction to hear?

disputes between:

• domestic building disputes

• residential tenancies disputes

• retail tenancies disputes

• planning disputes

(anything to do with buildings)

• human rights

what are the dispute resolution methods used at VCAT?

• mediation

• compulsory conferences

• final hearing

what is a compulsory conference?

conciliation process with a VCAT conciliator

what is a final hearing?

like a court hearing but is less formal than courts

what must be considered when engaging with VCAT?

• whether VCAT can hear the case (has jurisdiction)

• how complex the case is

• nature of fees and can applicant pay them

• if dispute can be resolved via other means

what are the strengths of VCAT?

• VCAT is cheaper than courts

• quick resolution

• informal- comfortable process

• ensures fairness and equality for unrepresented party due to VCAT’s informality and flexibility

• VCAT lists have specialised jurisdiction

• final hearing decision is enforceable

what are the weakness of VCAT?

• due to increased legal representation- the costs of taking a matter to VCAT can be as high or higher than court fees

• VCAT has had delays in some of its lists due to covid

• can be too informal for parties

• VCAT cannot make precedents and can only apply law made by parliament or courts

• appeals are limited and can only be on a point of law to the supreme court

• vcat orders still need to be enforced through courts

what is the jurisdiction of the court hierarchy?

magistrates- up to $100, 000

county+supreme- unlimited jurisiction

what are the strengths of the courts?

• pre trial procedures allow parties to reach out of court settlement

• courts use processes to ensure procedural fairness like directions

• court processes allow interaction between judge and parties

• court makes enforceable decision

what are the weaknesses of the courts?

• complex procedures that are difficult to understand without a lawyer

• formalities of courts can be stressful

• no opportunity to compromise decision

• delays are common

• may not be treated equally because of costs involved

what are measures in place to address costs?

• alternative dispute resolution methods

• CAV and VCAT

• use of case management powers in court

• pro bono assistance

what contributes to delays?

• vcat and court backlogs

• pre trial procedures

• evidence gathering and preparation

what are measures in place to address delays?

• case management powers

• VCAT programs to deal with backlogs

• online methods to resolve disputes

what is a remedy?

an order made y a court/tribunal to address a civil wrong/breach

what is the purpose of a remedy?

return the plaintiff to their original state prior to the breach of their rights

what are types of damages?

• special- damages that are given for things that can be measured eg:medical fees

• general- damages that are given for things that cannot be measured eg:pain and suffering

• aggravated- damaged that are given if the defendant has suffered humiliation, distress or insult

what are the types of injunctions?

• restriction injunctions- an order to stop someone from doing something

• mandatory injunctions- an order to have someone do a particular act