legal - unit 3 - aos 2 - civil law

fairness

refers to the legal principle where legal processes are unbiased and impartial, and all parties receive a hearing without discrimination.

equality

refers to the legal principle where all people are treated the same before the law, with a like opportunity to present their case (irrespective of personal characteristics such as wealth, language background and so on)

access

refers to the legal principle where individuals in society have an understanding of legal rights and an ability to pursue their case.

burden of proof

Refers to the party who has the responsibility for proving the facts of the case. In civil law it is the Plaintiff. it can shift to the defendant when counter-suing.

standard of proof

the degree or extent to which a case must be proved in court. in civil law this is on the balance of probabilities - meaning the version of the facts presented by the plaintiff is more likely to be correct

representative proceedings

when a group of people come together to lodge a single civil action, also known as a class action.

criteria for a representative proceeding/class action.

1. 7 or more people claiming loss
2. arising out of the same or related facts
3. identical legal issue to be decided

factors to consider when initiating a civil claim

* Costs
* Limitation of actions
* Enforcement issues
* Negotiation
* Scope of liability

negotiation

when the parties to a civil dispute (with or without their legal representation present) discuss ways to resolve the dispute by agreement, or have their legal representatives negotiate on their behalf.

when is negotiation appropriate

* Both parties consent to the option.
* Parties want to maintain a working relationship.
* Parties want to negotiate before they consider court action.
* Parties want reduced costs, time delays and stress.
* Parties would like some control over the outcome.

when is negotiation not appropriate

* One party won't consent to the negotiation option.
* There is a history of violence or animosity (bad blood) between the parties, or an imbalance of bargaining power (parents vs. international company).
* Parties have already tried and failed to negotiate.
* Parties want their day in court to be vindicated (proved right)

costs

the amount of money that has to be paid to resolve a legal dispute.

limitations of actions

the legal time frame in which a plaintiff needs to being their civil action

scope of liability

refers to who/how many people of liable for harm caused to the plaintiff and how responsible that party is/those parties are.

enforcement issues

refers to the capacity of the defendant to fulfil their legal obligation to compensate the plaintiff

Consumer Affairs Victoria (CAV)

* a civil complaint body that assists people in resolving disputes.
* Hears disputes between consumers and traders, and landlords and tenants, with a dispute resolution process. It also offers no cost dispute resolution.
* mainly uses conciliation

when is CAV appropriate

* The dispute is within jurisdiction
* Parties have tried to negotiate a settlement themselves
* Both parties are willing to attend and participate in conciliation

when is CAV not appropriate

•Court system has already ruled on the matter

•There is a better way to solve the dispute

•Parties have not tried to negotiate

•One party is unwilling to participate in conciliation

CAV - how is access promoted

* **free service**
* **informal**: process of conciliation is used which supports any continuing relationship between parties

CAV - limitations in achieving access

**limited jurisdiction:** many disputes cannot be resolved using conciliation at CAV

CAV - how is fairness promoted

* **mutually acceptable solution:** parties retain control over any decision, and the resolution is based on finding a solution rather than determining who is right/wrong
* **timely:** CAV provides a quicker method of dispute resolution which allows parties to reach a decision without an stress and delays.

CAV - limitations in achieving fairness

**cannot force parties to attend and participate in conciliation:** if a landlord/business refuses to attend conciliation then the consumer/tenant will need to pursue legal action in VCAT or a court, which is unfair because one party wants conciliation and the other doesn't.

**cannot enforce decisions:** there is a risk that an agreement reached by conciliation at CAV will not be adhered to as there is not legal mechanism to ensure the agreement is followed.

CAV - how equality is promoted

**conciliator**: ensures that both parties have the same opportunity to present their point of view and come to a mutually acceptable resolution.

CAV - limitations in achieving equality

**not available for all parties:** limited jurisdiction so CAV is only available for a small proportion of civil matters. additionally if one party does not want to participate in conciliation then the other party will not be able to gain a resolution through CAV, which does not promote equality.

VCAT

The Victorian Civil and Administrative Tribunal with the power to hear limited types of civil and administrative disputes.

purposes of VCAT

to provide Victorians with

* Low-cost
* Accessible
* Efficient
* Independent

tribunal that delivers high quality dispute resolution

VCAT jurisdiction

* administrative (review of government decisions regarding professional conduct)
* human rights (guardianship, equal opportunity, information and privacy)
* residential tenancies (disputes between tenants and landlords)

VCAT'S dispute resolution methods

mediation, conciliation and arbitration

when is VCAT appropriate?

•The cases fall within their jurisdiction

•Parties are unable to resolve dispute another way

•Parties are happy to appeal only on questions of law

•Parties prefer an informal dispute resolution process

when is VCAT not appropriate?

•The cases are outside the jurisdiction

•Parties unwilling to negotiate

•Parties want greater ability to appeal

•Parties prefer legal rep to conduct case

•The claim is a large amount of damages

Complex legal issue

VCAT - how is equality promoted

**flexible** - the role of a VCAT member is flexible enough ti ensure that unrepresented parties have an equal opportunity to understand processes and present their case

VCAT - limitations in achieving equality

**not available for all disputes** - VCAT has a limited jurisdictions and cannot resolve large and complex disputes, such s class actions.

VCAT - how is fairness promoted

**binding** - outcomes at VCAT are legally binding. this promotes fairness for parties since it ensures that no party will neglect to uphold an agreement settles upon at VCAT

**supportive methods** - encourages parties to resolve matters through mediation which is cheaper and more supportive. this control allows the parties to feel that the outcome is fair

**timely** - disputes in VCAT are solved more quickly since less pre-hearing steps. no serous backlog of cases and lack of strict rules means quicker hearing. this leads to disputes being solved with less stress and delays which is fair.

VCAT - limitations in achieving fairness

**no juries** - can seem unfair for parties who wish to have their case heard by a jury as there are no peers to hear their case.

**no legal representation** - legal rep allows parties to present their case in the best light, this provides the best chance of winning the case so it can seem unfair for those who cannot self represent under circumstances such as being from a non-english speaking background or being poorly educated.

**limited appeals** - there is a limited right to appeal VCAT decisions, which may be unfair to parties that wish to have their case reheard as they are dissatisfied with the outcome of their case.

VCAT - how is access promoted

**low cost** - relatively cheap due to the methods of dispute resolutions used, which promotes access to justice.

**less formal** - VCAT is less formal which promotes access to justice

**supportive** - VCAT provides information and support to parties to civil disputes when submitting an applications and preparing for their hearing.

VCAT - limitations in achieving access

**limited jurisdiction** - VCAT can only solve disputes within their jurisdiction, some civil matters must proceed to the courts such as representative proceedings (class actions)

**increasing costs** - costs in some VCAT lists are increasing, which may make VCAT inaccessible to some people in society

civil pre-trial procedures

1. pleadings
2. discovery

pleadings

a series of documents lodged in court by both parties that outline the others claim.

* writ
* statement of claim
* statement of defence

writ

a document filed by the plaintiff with the court (and a copy is provided to the defendant); this informs the court and the defendant that he/she is being sued in a particular court.

statement of claim

a document filed by the plaintiff in court (and with the defendant), which outlines the legal nature of their claim, the material facts and the remedy being sought.

statement of defence

a document filed by the defendant with the court (and the plaintiff ) outlining how the defendant plans to defend the claim made by the plaintiff.

discovery

the process in which parties establish the facts of the case and the evidence that will be used to prove those facts. It is the process whereby parties seek evidence from the opposing party.

purpose of pre-trial procedures

* encouraging an early settlement
* ensuring the trial runs smoothly as parties and the court are fully informed

pre-trial procedures - how is access promoted

**saves court time and resources** - by encouraging early settlements of disputes they help minimise costs, ensuring that the courts are more accessible asa dispute resolution body.

pre-trial procedures - limitations in achieving access

**complex** - law regarding content and format of pleadings and discovery is complex, meaning that legal representations is necessary. people who cannot afford legal representation are at a disadvantage when seeking access to the courts to resolve civil matters.

pre-trial procedures - how is fairness promoted

minimises delays - clarifying legal issues and facts before trial ensures that the trial runs smoothly and more quickly, reducing stress and delays which is fair.

parties can present their case in the best possible light

eliminates any element of surprises

pre-trial procedures - limitations in achieving fairness

**complexity** - pre-trial procedures are complex, and those without legal representations will have difficulty completing these steps, which is unfair.

**delays in discovery** - if one party completes the discovery process slowly or if there is a very large volume of evidence there can be delays with the resolution of the case, which is unfair.

pre-trial procedures - how is equality promoted

applies to all parties - all parties must completes the civil pre-trial procedures to clarify the legal issue in the dispute and the facts/evidence that they will rely on regardless of their personal characteristics such as race, gender, religion, etc.

both parties must participate in discovery

pre-trial procedures - limitations in achieving equality

one party may be disadvantaged - if parties have differing quality of legal representations, then the discovery process may be completed more favourably towards one party than the other due to the skill of their legal representatives, which can cause unequal participation in the justice system, thus not promoting equality.

reasons for a court hierarchy

* administrative convenience
* appeals

appeals process

the legal process that a dissatisfied party should pursue to have the courts decision reviewed by a higher court.

grounds for appeal

* A point of law
* A question of fact
* The remedy awarded

civil jurisdictions of the magistrates court

original: claims up to $100 000

appellate: none

civil jurisdiction of the county court

original: claims for unlimited amounts

appellate: none

civil jurisdiction of the supreme court - trial division

original: claims for unlimited amounts

appellate: appeals from VCAT and magistrates court - questions of law

civil jurisdictions of the supreme court - court of appeal

original: none

appellate: appeals from county and supreme court (trial division)

civil jurisdiction of the high court

original: none

appellate: appeals from the court of appeal

administrative convenience

the benefit we derive from the organisation of cases according to how serious or complex the matters are

the court hierarchy - how's access promoted

**administrative convenience** - parties have access to the correct court for their matter

the court hierarchy - limitations in achieving access

**cost of appeals** - limited in the sense that the party seeking to appeal must bear the cost of the applications and legal fees

court hierarchy - how is fairness promoted

**appeals are available to everyone** - all parties have the same opportunity to appeal which ensures that any errors are corrected which is fair

**consistent process** - although process may vary slightly, all courts provide a public, independent process for resolving civil disputes

**minimising delays** - the administrative convenience achieved by separating cases across the hierarchy minimises delays, which reduces the stress and anxiety of the parties to a dispute.

court hierarchy - limitations in achieving fairness

cost of appeals - the party seeking the appeal must bear the costs involved, some dissatisfied parties may be unable to lodge an appeal meaning incorrect decisions are not corrected.

court hierarchy - how is equality promoted

right to appeal - both plaintiffs and defendants have the right to appeal

similar case resolved in a like manner - each case is heard in the appropriate court; similar cases are resolved in the same way within a given court.

court hierarchy - limitations in achieving equality

cost of appeals - an appeals may not be available to some parties if they cannot afford the cost of applications and additional legal fees. not available to the poor.

judge

an individual that is appointed to conduct trials/hearings and resolve legal disputes

responsibilities of a judge

\-Managing the trial

\-Determining the liability of the defendant

\-Directing the jury if present

\-Remaining impartial throughout the trial

judge - how is access promoted

**manage the trial** - judges; ability in civil trials to actively manage proceedings minimises costs in civil trials, meaning the civil justice system remains more accessible

judge - limitations in achieving access

**cannot assist self-represented parties** - judges remain impartial meaning that they cannot assist parties without legal representation; the judge's independence does not promote access to justice

judge - how is fairness promoted

**impartial** - independent judges ensure that trials are conducted without bias, according to the rules of evidence; this ensures fairness as decisions are based on law and facts alone.

judge - limitations in achieving fairness

**potential bias** - while judges are impartial, they are still subject to personal bias and may unconsciously discriminate against certain parties, however judges are skilled in remaining independent, so this is a small weakness

**limited control** - judges rely on the parties to present all relevant evidence, meaning they cannot seek out evidence that they may need to deliver a verdict.

judge - how is equality promoted

**rules of evidence** - judges ensure rules of evidence and procedure apply equally to all parties

jury

a collection of six individuals randomly selected from the electoral roll who decide questions of fact and reach a decision in a case

jury's responsibilities

\-Being objective

\-Listening to the evidence, the judges directions and legal representatives submissions

\-Deciding liability and damages

jury - how is access promoted

**plain english** - less legal jargon ensures that all jury members are able to understand the court's procedures and evidence that they are being asked to make a decision upon.

jury - limitations in achieving access

**cost** - additional fees are required for jury trials, meaning it may not be financially viable to some parties to request them

**limited use** - many civil disputes are resolved in VCAT or the magistrates' court, so access to jury is further limited.

jury - how is equality promoted

**available to all parties** - both parties can request a jury

jury - limitations in achieving equality

**not always a true cross-section of society** - some individuals are ineligible or disqualified from jury service; as a consequence some parties to civil cases may not feel tried by their peers

jury - how is fairness promoted

**trial by peers** - in serious civil cases, a cross section of the community is used as the decision maker, so parties in a. civil case should feel that they case has been decided fairly by their equals.

**democratic** - trial by peers protects democracy, ensuring decisions are based on the facts and the law, not politically motivated which is fair.

**independent** - juries are independent of all parties to a dispute, they are randomly selected from he community and have no connection to the plaintiff, defendant, witnesses, etc.

**impartial** - jurors cannot seek additional information about the case outside the courtroom, which ensures them to be completely impartial

jury - limitations in achieving fairness

**potential bias** - jurors may be influenced by what they hear about a party to a case in the media and may make a decisions based on preconceived ideas about the case

**civil cases are complex** - making decisions illegal cases is a complex task undertaken by people with no legal training, creating the risk of an incorrect verdict which is unfair.

**delays** - juries cause delays; time taken to empanel the jury, court procedures, explain evidence, etc. which can be unfair on all parties dealing with he stress and anxiety of the delays.

**very few matters** - juries are used in a very small proportion of civil cases, juries promote fairness in relatively few cases.

party

a person or company bringing their case or defending their case in court. There can be multiple plaintiffs and defendants

responsibilities of the parties

\-Opening and closing address

\-Present case to judge (and jury)

\-Follow their obligations e.g. act honestly, not mislead or deceive etc.

parties - how is access promoted

**self-represented parties** - courts provide some guidance of a general kind to parties who are representing themselves

parties - limitations in achieving access

**legal** **aid funds are very limited** - VLA is often not able to support civil disputes, so parties without legal representations will struggle to understand how to present legal argument and evidence.

parties - how is fairness promoted

**party control** - parties have control over their own case and are responsible for deciding what facts to present, how, etc.

parties - limitations in achieving fairness

**self-represented parties** - unrepresented parties may not present all relevant evidence to the court, which can disadvantage themselves.

parties - how is equality promoted

**opportunity to present case** - both parties are given equal opportunity to present their case to the court

parties - limitations in achieving equality

**availability of legal representation** - not all parties are equally equipped to present their case

**role of the judge** - judges' intervention in managing the trial may impact on a party's perception of whether they have been treated equally.

legal practitioner

An individual with legal training, qualified to give advice and appear in court.

responsibilities of a legal practitioner

\-Opening and closing address

\-Present case to judge and jury

\-Follow obligations.

legal practitioners - how is access promoted

**plaintiff and defendant have a better understanding of legal processes** - legal practitioners help parties prepare their case and explain court proceedings

**cost options** - some law firms have a 'no win, no fee' arrangements and provide assistance for those with limited funds

legal practitioners - how is fairness promoted

**case is present in the best possible light** - using a legal practitioner can increase a party's chance of success as the case is presented in the best possible light by an expert

legal practitioners - limitations in achieving fairness

**unrepresented parties** - parties without legal representations cannot prepare and present a case of equal quality which may lead to an unfair outcome as the quality of presentation may influence the outcome rather than being solely based on facts.

legal practitioners - how is equality promoted

**choice of the parties** - all parties to civil proceedings have equal capacity to choose their own legal representation putting aside financial constraints

**legal representation is available to everyone** - equal access to legal representations is promoted because legal practitioners must prove their services to all those who seek their assistance

legal practitioners - limitations in achieving equality

**cost** - some financially disadvantaged parties may not be able to afford any/good quality legal representation

judicial powers of case management

* power to order mediation
* power to give directions

power to order mediation

a court may make an order for a civil proceeding or part of to go to an appropriate dispute resolution.

purpose of power to order mediation

to assist parties to come to a fast and cost effective resolution.

power to order mediation - how is access promoted

**available to all parties** - almost all parties to a civil dispute have access to mediation through the pre-trial stage

**minimises costs** - order to attend mediations minimise the time for which parties need to engage legal representations and often avoid the need for a trial

power to order mediation - how fairness is promoted

**saves parties time and money** - many civil disputes settle at mediation before they teach the trial stage saving parties time and money

**avoids trial** - judges directing parties to mediation prior to trial often results in a successful resolution of the dispute without the stress and delay associated with a trial

power to order mediation - limitations in achieving fairness

**not suitable for all disputes** - some disputes may not be able to find a resolution through mediation; if one party is not willing to negotiate, if there is hostility between both parties, if the issue is large and complex, etc. in this case ordering mediation will cause further delays however it is a small weakness