Civil Law Unit 3 AOS 2

all KKDP

Need for LP in a civil dipute

• on behalf of the parties, practioners will undertake the role of prepping & conducting a case. w/o rep is difficult

• ensure parties are able to present best possible case, assists in achieving a fair outcome.

• LP have special duties + obligations imposed by law.

• They cannot mislead or decieve the court

• LP’s duty to the court is above the duty to client. They must put court and the law first

Strengths of Need for LP’s

• LP are experts who will be able to help the parties navigate Civil Justice system. includes assisting, conducting op & closing adresses, examining witnesses

• LP have objectivity in being able to make decisions in civil

• LP can help avoid delays that may arise w self-rep parties

Weaknesses of need for LP’s

• not all LP’s are equal or have sam lvl of experience + skill

• Not everyone is able to afford legal rep so some ppl may be left to rep themselves

• proceedings expensive for self rep, especially if they lose and have to pay the other parties costs

Class Actions

if a group of ppl all have claims against same party, may be able to come together to commence a civil action

How class actions are commenced

• 7 or more ppl have claims

• claims relate to the same/ similar circumstances

• same issues need to be decided

• if applied can be commenced a person becomes the lead plaintiff, ppl apart are group members

Costs of a class action

• if class actions fail lead plaintiff, burdens the cost

• in some cases, a litigation funder (3rd party agrees the legal costs) may be prepped to fund class action.

• they do this for a percentage (20-40%) of any settlement or damages awarded

• will ussually pay costs if actions fail (no win no fee firms)

Appropriatness of class actions

• whether there is 7 ppl

• whether 3rd party is funding

• whether someone is willing to be the lead plaintiff

• nature and size of claim ( smaller not suitable usually)

• loss of each group member & if they are similar

strengths of class actions

• ppl can pursue civil claims they may not be prepped for

• use of litagation funders & plaintiff law firms who are prepped to act on a ‘no win, no fee’ basis or recieve fee if successful, increases access to justice

• reduce costs of defendant

Weaknesses of class actions

• been a fear by some that class actions provide an opportunity for class actions lawyers to ‘take advantage’ of class actions

• lit funders have been critisised for taking lots of money

• something multiple class actions are commenced by different law firms in relation to the same issue which increases defendants costs

CAV

Consumer Affairs Victoria

what is CAV?

• is a business unit of the Victorian Government department of justice & regulation

• Vic consumer affairs regulator, advises vic gov on consumer regulation, info & guidance to educate ppl abt consumer laws, & enforces compliance w consumer laws

role/purpose of CAV

• helps ppl to settle disputes w/o any costs

• role is to provide consumers and traders, and landlords and tenants, with a dispute resolution process

Dispute resolution used CAV

• main method used is concilliation (3rd party, independant to mutually come to decision)

• deed settlement (binding decision)

• over the phone

• only deals w disputes in their juristiction ( tenants, landlords, buyers, suppliers)

Appropriateness/criteria of CAV

• dispute is within juristiction

• disputes are likely to settle

• are better ways to solve (VCAT, courts, mediation)

• complainant has attempted to resolve (VCAT, courts)

• complainant is vulnerable or disadvantaged

• already been reffered to CAV, Court or VCAT (then they will not hear)

• whether there is a better way to resolve (court for complexity of case)

• its a complex case

Strengths of CAV

• Concilliation service is free

• process is informal, over the phone, removes anxiety/formalities

• ensures procedural fairness, allows both sides to present arguments & challenge (concilliation proccess)

• Asseses disputes individually, reducing waste of time & resources that are clearly unlikely to be resolved

• Concilliation offered by CAV ensures parties reach resolution before themselves

Weaknesses of CAV

• CAV assistance is limited mainly consumer and CAV cases only

• has no power to compel parties to conciliation as both parties must be willing

• no power to enforce any decisions ubnless binding settlement agreed upon then one party may ignore outcome

• not all cases accepted by CAV & concilliation services limited

• not appropriate for complex and large cases

VCAT

Victorian Civil and Administrative Tribunal

Define VCAT

• VCAT hears & determines a range of civil & admin cases

• The president of VCAT is judge of the Supreme Court

• divided into 5 divisions

Divisions of VCAT

Recreational, civil, human rights, planning & enviromental, administrative

Purposes of VCAT

• Low cost- only need to pay a small ammount ( as of july 2023 was $70), parties can afford to rep themsleves, many parties dont need to pay hearing fees

• Accessible- various locations, offers over the phone and video calls in place of tribunals, less formal which means ppl more comfortable to use its services

• Efficent- aims to reduce waiting times for parties which leads to process being more efficent

• Independent- members are independent and will act as unbiased adjudicators

Dispute resolution used VCAT

Mediation, compulsory conferences and final hearing

Mediation-VCAT

• 3rd party, independent, non binding process (unless terms of settlement is agreed), helps reach agreement between parties

• fast tracks mediation and hearing, goods and services up to 10k fast tracked, mediation takes only 1 hour if not resolved schedule VCAT hearing

Compulsory conferences (Concilliation)-VCAT

• meeting w VCAT member, does not hear case at final hearing and council

• uses the concil proccess

final hearing-VCAT

if not settled goes to final hearing, like court ( giving evidence, presenting case, witnesses, etc), binding decision, less formal than court

Appropriateness of VCAT

• if in juristiction of VCAT

• whether there are better or other ways to resolve dispute using ADR’s (alternative dispute resolution)

• fees & whether the applicant can afford it

• whether court is more suitable (appeals, formality, complexity, seriousness, rely on precedent (VCAT not bound by precedent))

Strengths of VCAT

• cheaper than court (low application fees, no pre trail procedures, self rep)

• efficent (time) decisions made on the spot. 2-3 weeks for resolution

• informal

• binding/enforceable

Weaknesses of VCAT

• can be costly w legal rep expensive, vcat fees, large fees for major cases

• backlogs from covid, incresaes stress on parties

• large + complex cases is not appropriate

• limited right to appeal, only point of law goes to supreme which is timely and expensive

• not bound precedent, inconsistency

• not part of court hiearchy

Appropriateness of courts in civil trial

it is the most expensive means to resolve civil law disputes

parties must consider…..

• juristictions of each court

• whether ther is a better way to solve dispute

courts reffering to arbitration

cases cannot be reffered to arbitration as VCAT has exclusive juristiction over…..

• domestic building disputes

• residential building disputes

• retail tenancy disputes

• planning disputes

juristiction of courts

• Mag court up to $100,000. cases under 10k reffered to arbitration

• County and supreme are unlimited

better ways to resolve civil disputes than courts

• can parties resolve by themselves

• cost of courts vs ADR method or alternative institution

• risk of 3rd party making the decision & the risk of an adverse court order

• whether comfortable w formalities of the courts

Strengths of courts

• various pre-trail procedures allow parties to reach an out of court agreement (mediation), pot saves costs, time, stress

• pretrail more eff & timely, allows to get to know S&W of the cases. can help solve before trail & narrow issues

• uses processes to ensure procedural fairness (discov ordered by judge)

• allows interaction between court & parties

• courts decision is binding and enforceable. also there is a certain outcome

Weaknesses of courts

• often suffer delays, pretrail takes a long time. Judges take too long sometimes, discovery adds to length of the trail

• cost may restrict access to courts

• complex, diff w/o lawyer

• formalities may be stressful

• do not allow compromise, decision is binding

3 Cost factors on the civil justice system

1. disbursments: such as mediators, filling/hearing fees, adverse costs, jury fees

2. Legal rep

3. VCAT fees increasing, commonly have legal rep which is expensive

• there has been an increase in self rep parties, an increase in ADR’s, CAV and parties abandoning their claims or settling outside of court as a result of these costs

measures to reduce cost

• settle outside the court (sometimes VCAT as well) with the use of ADR’s and other institutions such as CAV + CAV

• case mangemnet powers from the judge, directions such as reducing discovery or mandating mediation to save costs

• pro bono such as justice connect

• judges give assistance to self rep parties

3 Time factors (delays) on the civil justice system

1. Pre trial procedures

2. Backlogs

3. evidence gathering and prep

pre trail procedures (time factors)

• are significant such as: discovery, pleadings and exchange. judge can set timeline (not always the case)

• sometimes parties are not punished for not following timelines

Backlogs

delays can be significant for parties seeking quick settlement. delays since covid impacted the court and VCAT

evidence gathering and prep

significant for large cases wher ther is lots of evidence, witnesses and issues to be discussed

measures to reduce time

1. case management powers

2. VCAT programs to manage delays

3. online methods

4. ‘on the papers’ dealings

Case management (reducing time)

• ordering parties to attend mediation or other ADR’s

• limiting discovery

• ordering ‘no pleadings’ are required

• strict timelines for hearings/trials. limiting witnesses and time for cross exam

VCAT programs (reducing time)

such as pilot program in county and backlog recovery program for residential tenancies

‘on the papers’ dealings (reducing time)

where only evidence is submitted (no witnesses) used by VCAT

Online methods (reducing time)

hearings and mediation online

Damages

monetary payments awarded to the plaintiff by the defendant

purpose of damages

is to restore party back to original position before the wrong occured

types of damages

compensatory, exemplary, nominal, contemptuous

aim of compensatory damages

restore the wronged party

Compensatory damage types

special/ specific = easily calculated/quantifiable (med bills)

general = Not easily calculated/ not easily quantifiable (pain and suffering)

aggravated = When hummiliation is caused (also note easily calculated)

exemplary damages aim

Aim is to punish the defendant and deter others. (infringement of rights)

Nominal damages

minimal ammount paid. plaintiff wanted to prove their case but didnt seek many damages

Contemptuous damages

technically there was a loss to the plaintiff however, claim is morally wrong and min ammount is awarded to plaintiff

compensatory damages achieve purposes

• whether loss is financial only, then easy to quantify

• whether the loss is a loss of amenity, then not easy to quantify

• whether future loss has been suffered, hard to quantify as no one can predict future (wages etc)

• whether damages are paid

• whether orders are made or required e.g interest on loss, advers court costs etc

• whether there are caps on the amm of damages e.g def claims usually have cap of $250,000 on non economic loss

exemplary damages achieve purposes

• the ammount

• ability of the defendant to pay

• extent to which damages is known to teh public (to deter others)

• whether there are caps on these damages

nominal damages achieve purposes

• whether plaintiff suffered a loss

• amm of damages

• costs incurred by the plaintiff which likely wont be returned to plaintiff

injunctions

to rectify the issue these stop or compel a party to undertake a certain act.

can take place before a case is due to an urgent matter (interlocutory injuctions) which can be overturned once case is finalised

other type is after a case is heard (final injuctions)

types of injuctions + explanation

Mandatory= forces party to do something

restrictive = stop a party from doing something

ability for restrictive injuctions to achieve their purposes

• will def comply

• whether loss has already been suffered

• whether this injuction alone is sufficent and if another order is need (damages)

ability for mandatory injuctions to achieve their purposes

• whether defendant will do what is ordered

• whether hard has already been suffered

• whether this injuction alone is sufficent and if another order is needed (damages)

Injunction def

is a civil court order (remedy) directing someone to stop doing a certain act, or compelling someone to do a certain act

Standard of proof

refers to the strength of evidence needed to prove the case, which is on the balance of proability

Burden of proof

• refers to the responsibility that one party has to prove the factors/facts of the case

• lies with the person or party bringing the case. lies on the plaintiff

difference between balance of probabilities and beyond reasonable doubt

beyond reasonable doubt = undenaible proof

balance of probabilities = probable that the party did it

Factors to consider when initiating a civil claim

Costs, limitation of actions, enforcement issues

Costs

party involved may incur costs such as fees for legal representation, court costs etc.

fees for legal representation

costs of legal rep depends on complexity of case, if the court needs it to go, size of the case

Disburments

is out of pocket costs or fees excluding legal fees

Limitation of actions

refers to the restrictions placed on the time which a civil action can be commenced

Reasons for the limitation of actions

• def doesnt have to face an action after a sig period of time

• evidence is not lost and ppl remember

• disputes can be resolved as quick as possible

Enforcement issues

this is considering whether defendant i sable to pay or whether they will pay, even if def is able to pay, plaintiff may find trgetting def to comply w remedy

Considerations for enforcement issues

• def may be bankrupt

• def may be in jail

• if def is company, comp may not have assets or uncontactable

Principles of Justice

Fairness, Access and Equality

Fairness definition

All people should participate in the justice system & its proccesses should be open & impartial

Participation

ensures opportunites for parties to participate, interpret with unreasonable delays

Open processes

Civil trails should be open to the public, can be in private if it has sensitive information such as contract disputes

Impartial proccesses

justice must be free from bias and must be impartial

Access definition

All people should be able to engage with the justice system & its proccesses on an informed basis

Engagement

different ranges of dispute resolution method bodies for example physical access and tech access

Informed Basis

people engaged, should recieve relevant &constructive information related to that issue

Equality definition

All people should be treated in the same way

Same treatment (formal)

laws that apply to all people equally, all people treated in the same way

Different treatment (substantive/informal)

if results in disadvantage, measures should be taken to remove disadvantage

Mediation characteristics

• is a cooperative method of resolving disputes, used in courts

• structured, joint problem solving considers alternative to try agreement

How mediation is used

• courts refer civil disputes to mediation

• VCAT often refers a claim to mediation before final hearing

• used in privately before or after claim

Conciliation characteristics

• experts in dispute resolution management

• more influence than mediation

How conciliation is used

• do not generally send cases to conciliation

• parties may be ordered to take part in a compulsory conference which identifies the natures of the issues

when conciliation and mediation is appropriate

• relationship between parties will continue

• meet in the spirit of comprimise

• defendant admits liability, only issue is may not pay

• private and confidential

• combination of remedies to achieve plaintiff outcome

when conciliation and mediation is innappropriate

• overwhelming emotions

• list of broken promises

• violent threatening behaviour

• power imbalance

• urgent

• unwilling to reach an agreemen

Strengths of mediation and concilliation

• independant & unbiased + impartial

• cheaper

• less formal

• private +confidential

• voluntary

Weaknesses of mediation and concilliation

• high profile cases that is resolved in priv, society may want to know process

• not enforceable

• power imbalance

• one may refuse to attend

• may not be resolved so needs to be litigated

Arbitration characteristics

• independant 3rd party will listen to both sides & make a decision that is binding + enforceable

• private, allows parties to decide how casual or formal, cheaper than courts

• if want a formal process of evidence the loss can add up, will have to pay

how arbitration is used

• not bound by rules of evidence but may inform themselves

• impartial & unbiased

• ensures parties are treated equally

• not required to continue if parties do not want

when arbitration is appropriate

• parties agree to settle that dispute want to be in control of rules of evidence & procedure

• stated in contract

• court orders parties to arbitration

• claim w mag, if 10k or less refer to arbitration

when arbitration is innappropriate

• parties may not agree to arbitrate the dispute

• parties want greater control over the outcome

• parties wish yo have their day in court

• more comfortable w formal rules

strengths of arbitration

• binding & fully enforceable

• held in private

• an expert on matter

• have control over the proceedings such as formalities & rules of evidence

• ussually less costly

Weaknesses of arbitration

• have no control of the outcome which is imposed by the arbitrator

• right to appeal is limited

• can be formal if parties have agreed on formal method of arbitration

• may not want to undertake arbitration but may be forced to

• may not fit the criteria (under 10k)

Reasons for a court hierarchy

Administrative convinience and appeals

Administrative Convinience

• less serious & less complex cases heard in lower courts, while more seroious & more complex cases heard in higher courts

• minor civil (under $100,000) can be heard in mags court, heard quickly & less exclusively

• more serious & complex cases heard in county & supreme have unlimited juristiction class actions go to supreme

strength & weakness of admin convinence

Strength:

• court hiearchy allows courts to adapt diff processes & case resources in away for efficiency

Weakness:

• diff courts may be confusing

Appeals

• ppl who disatisfied w a decision in civil trail can, if there are grounds for appeal, take manner to a higher