legal AOS 3 - UNIT 3 part b

difference between solicitor and barrister

Solicitors:

• assist in day-to-day legal matters and concerns.

• prepares legal documentation for trial,

• responsible for fulfilling numerous legal obligations + duties eg. offering clients advice and strategies to address a wide range of legal issues.

• researches the relevant laws

barrister:

• representing party in a trial by making legal arguments, questioning witnesses, + summarising the case to the judge and/or jury.

MAIN DIFF:

The main difference between barristers and solicitors is that solicitors advise clients on a broad range of legal issues, whilst barristers present arguments in court.

VLA

primarily focuses on criminal, difficult for parties of low socioeconomic status in civil dispute to obtain rep. 

• legal assistance if civil claim is $5,000 or more OR The defendant’s sole home is at immediate risk in the action & There is a strong prospect that the defendant can defend the action. 

CLC

Community legal centres (CLCs) may be able to provide legal advice or representation in a civil dispute, for example:

• AED Legal Centre in Melbourne assists people with a disability who have employment and education-related legal problems, such as an unfair dismissal claim.

• Disability Discrimination Legal Service (DDLS) in Melbourne specialises in disability discrimination matters.

• Eastern Community Legal Centre provides free legal advice to people in Melbourne’s Eastern suburbs in civil matters relating to family law, divorce, discrimination, neighbourhood disputes, and more.

need for legal practitioners

1. Advise clients on their legal rights

• enable party to better understand their rights + obligations so they’re able to make informed decision about how to handle dispute

1. Present evidence and cross-examine witnesses

• procedural standards that must be followed to ensure irrelevant questions are not being asked. Therefore, a barrister who is familiar with rules will be able to ask relevant questions to witnesses and present compelling evidence to support their client’s case.

1. Provide objectivity

2. Ensure documents are properly drafted and handled

3. Provide support

legal practitioners’ + principle of justice

1. fairness

• present all relevant evidence and legal principles impartial outcome

• objectivity when making decisions bc not personal or emotional connection to dispute

• however: expensive + only one legal representation bc one cannot prepare and present a case of the same quality.

equality

• same ability to choose their own legal representation.

• judge assist self-represented party by informing them about legal practices and proceedings involved in the dispute = not in disadv

• however: self rep: equally prepared and presented and can create power imbalances between parties.

Access:

• Legal practitioners help parties to prepare and present their case= increasing access to justice as a party’s understanding of the law and legal proceedings is increased.

• law firm has ‘no win, no fee’ arrangement, encourage a plaintiff to seek justice as, where they lose the dispute, no financial burden is incurred = more people engage legal representation, preventing the cost of legal representation from acting as a barrier to justice.

• however: expensive + no legal rep = not understanding procedures

Class action

legal proceeding brought by one or numerous plaintiffs acting for themselves as well as on behalf of a wider group of people who have a claim with similar facts

• seven or more people have claims against the same person

• claims relate to the same, similar or related circumstances, +
  the same issues need to be decided (e.g. whether the defendant owed a duty of care to those plaintiffs). 

Lead plaintiff: One person in a group is named as the plaintiff on behalf of the group. 

• doesnt need to consent grp mems

• assumes risk +cost of litigation for grp

• Instructs solicitors / barristers

• action under name

class actions: costs

Successful: costs are shared across all members of the action. 

cost effective: grp mem arent responsible for the costs associated with the trial or adverse cost orders = less expensive + stressful than an individual civil claim, whilst they provide more people with greater access to the civil justice system.

If the action doesn’t succeed - the lead plaintiff is solely responsible for costs (and any adverse costs orders)

class action and principles of justice

Fairness:

• remedy for those who have suffered a loss that would be too small to recover individually in the courts, enabling these individuals to participate in the justice system.

• experienced + impartial judges, ensure case conducted efficiently + impartially.

• HOWEVER: if amount of compensation received is less than anticipated, the group members may not be compensated sufficiently.

• lead plaintiff is required to assume the risk + cost of the litigation on behalf of grp=unfair.

Equality:

• If litigation funding is obtained, this may allow a class action to commence as the costs are covered, ensuring group members are not disadvantaged on the basis of their socioeconomic status.

• HOWEVER: If litigation funding is not obtained, a lead plaintiff may be unwilling or unable to bear the costs associated with bringing a class action, disadvantaging them on the basis of their socioeconomic status.

Access:

• cannot afford to initiate a civil claim by themselves can still access the justice system by joining a class action.

• save the courts’ time + resources by grouping together numerous claims, reducing the number of cases the court=access to justice for others by reducing court delays.

• HOWEVER: Access to justice may be reduced, depending on the settlement reached and the share given to each plaintiff, particularly where a large percentage of damages is provided to litigation funders.

• COSTLY

• Class actions can take time to be heard, sometimes several years, thus delaying access to a potential remedy.

Consumer Affairs Victoria (CAV)

Victorian civil complaints body that provides information and helps resolve disputes to create a fair and competitive marketplace for consumers and businesses.

• educate consumers, tenants, business on rights+resp(online, phone)

• conciliate disputes b/w consumers and traders + tenates

• review + advise the state gov on consumer law

• accessible dispute res by conciliation (free+quick)

Types of disputes:

• b/w purchasers and suppliers when amt paid $40000 or less

• dispute b/w tenant and landlord (complaints)

CAV uses conciliation:

• voluntary participation

• willing to compromise

• not automatically legally binding → sign deed of settlement

Appropriateness of CAV

Approp:

• Within its jurisdiction

• Parties have already tried to resolve

• Both parties willing to;

  • Attend, Participate, Settle / compromise, Comply with agreement

• Parties want to reduce costs / delays

Inapprop:

• Is outside its jurisdiction

• No attempt made to settle dispute

• One or both parties are unwilling to;

  • Attend, Participate. Settle / compromise

• One or both want a legally binding agreement

• Dispute is better addressed elsewhere (VCAT / Courts / is a class action)

CAV and principles of justice

fairness:

• Quick = reduces stress (over phone=no intimidation)

  (and they still have an impartial 3rd party)

• Free - regardless of financial resources anyone can still participate & get justice

• Using conciliation - parties control outcome

• HOWEVER: Can’t compel parties to participate + not legally binding→ party may choose not to comply.

equality:

• facilitate discussions b/w parties = same opportunity to present their evi + reach mutually acceptable resolution,

• HOWEVER: limited jurisdiction + only available for small prop of civil matters.

Access:

• free (over phone)

• Informal = less intimidating/removies barrier to claim

• private

• HOWEVER: limited jurisdiction, not legally binding.