Legal Studies - Unit 3 AOS2 (Part A)

Writ

Writ

Notifies the defendant of the case and informs them that litigation has been initiated against them

Purpose of a Writ

Promoting the timely resolution of disputes, by providing a timeline for the execution of the writ, which gives the defendant a certain amount of time to decide whether they intend to defend the claim.

Administrative Convenience + Access

The allocation of cases within the courts according to their complexity

• Promotes access by reducing the likelihood of delays, and allows people to access the courts resources in a timely manner

Damages

The defendant paying a sum of money to compensate for the injury or damage suffered by the plaintiff

Purpose of Damages

Returning them to the position they were in prior to the loss or damage occurring, by providing them with financial compensation

General Damages

Amounts of compensation that cannot be accurately assessed

• The judge and jury estimate the monetary value

Special Damages

Amounts of compensation that can be accurately assessed, and expenses can be calculated directly

Exemplary Damages

The defendant being ordered to pay a large amount of money to punish them and deter others from acting in the same way

Burden of Proof

The Burden of Proof lies with the plaintiff in civil cases

Standard of Proof

The amount of evidence the plaintiff must present to the court to win

• On the balance of probabilities

Victorian Civil and Administrative Tribunal (VCAT)

An independent government body established to resolve disputes at tribunal in an efficient and cost-effective manner

Costs (Considerations when initiating a civil claim)

The cost of legal proceedings could be greater than the amount of compensation or damages awarded

Limitation of Actions (Considerations when initiating a civil claim)

The maximum time limit that a plaintiff has to initiate a civil claim against a defendant

Arbitration

An arbitrator listening to the evidence and arguments of both parties, and making an order that is legally binding

Conciliation

An impartial third party listening to both sides and suggesting ways in which the parties could resolve the dispute

Advantages of Arbitration

Provides a legally binding decision and is more informal than court

Advantages of Conciliation

Results in both parties reaching a mutually acceptable decision (win-win outcome), and is cheaper than Arbitration

Conciliation is least appropriate:

When the parties are not willing to negotiate in good faith

Arbitration is most appropriate:

When a legally binding decision is required, in favour of only one party

Costs

Involve the plaintiff having to pay expensive legal fees associated with legal representation and court costs

Cost impact on Principles of Justice

High costs diminish fairness:

• May result in an unfair outcome for parties from a low socioeconomic background

High costs diminish equality:

• Those unable to afford representation are at risk of unequal treatment

High costs restrict access:

• Individual is unable to access legal information, advice, and representation

Recent Reform: Improvements to VCAT (Annual Report 2017-2018)

VCAT conducted an online pilot using web-based dispute resolution technologies

• Promotes access by reducing the cost of in-person court fees, while still allowing the individual to resolve their dispute