CH6,7,8 - the civil justice system

factors to consider before initating a civil claim

costs, limitation of actions, enforcement issues

role of barrister

• advocate for client in pre trial hearings

• help draft court documents

• advice client about dispute

what costs are dependent on

• complexity of case and time it takes to resolve

• dispute resolution body used

• size of case

• expertise of legal practioners

potential disrbusement fees

court fees, mediation fees, expert witnesses,

adverse costs order

court order that a party pay the other party’s costs if unsuccessful

factors to consider in costs

• how much will resolution cost

• whether damages awarded outweigh the costs

• eligible for legal aid

• if they have the money to pay if an adverse costs order is made

limitation of actions

restriction placed on the time within which civil action can be commenced

purpose of limitation of actions

• defendant doesn’t have to face action after significant amount of time

• evidence is not lost and people still remember what happened

• resolved as quickly as possible to promote social cohesion

considerations for enforcement issues

• whether defendant can pay

• whether defendant is imprisoned

• whether defendant is able to be contacted

• if defendant has none whether they have access to support to help them pay

impartial process

personnel must be independent and impartial with no apprehended bias

open processes

ensures administration of justice is transparent and open to scrutiny

participation

opportunity to know case put against them and present their version of case
interpreter
no delays

measures to address equality

• assistance to self rep party

• interpreters

• providing info in a different way

• change to court processes

• different forms of giving evidence

engagement

• providing a range of dispute resolution methods

• physical

• technological

• financial

• no delays

informed basis

get info on procedures, methods and institutions that resolve a civil dispute and getting legal advice or assistance

things that make you more informed

• education

• information

• legal services

• representation

deed of settlement

• signed if mediation and conciliation is successful

• reflects the agreement about the way they’ll resolve dispute

• enforceable through a court if one of the parties doesn’t follow through

how mediation works

• court can generally order mediation before the final trial or hearing with or without consent

• mediator can be appointed by court or agreed upon by parties

• cost is split

• VCAT offers mediation before final hearing

how conciliation is used

• courts don’t generally use it but have the power to order it

• used by cav and vcat (compulsory conference)

appropriateness of mediation and conciliation

• whether relationship between parties will continue such as family

• willingness to compromise and stick to agreement

• whether there’s a history of violent or threatening behaviors

• whether one or both parties want dispute to be resolve privately or confidentially

• when it’s held

• whether it’s urgent

• whether there is an imbalance of power

strengths of mediation and conciliation

• involves independent, impartial third party that facilitates discussion

• less formal than courts, less intimidating and stressful

• conducted in a safe and supportive environment

• if successful can save significant time and costs of a final trial

• private

weakness of conciliation and mediaiton

• lack of enforceability depending on the terms of settlement

• one party may compromise or be manipulated more

• one party may refuse to participate

• wastes time and money if matter isn’t resolved

• not appropriate for high profile disputes where the community may have an interest in knowing the outcome

arbitrator

• not bound by rules of evidence

• must ensure equal treatment and opportunity to present case

• not required to conduct proceedings in a formal manner

when arbitration is available

• parties have previously agreed to settle their dispute by arbitration

• court or vcat order, consent needed

• claim under 100k filed in mag court

appropriateness of arbitration

• whether parties have agrees

• less than 100k in mag

• whether parties want a binding, enforceable decision made by a third party or have control over the outcome themselves

• whether both or one party wants the dispute to be private or public

strengths of arbitration

• certainty of outcome as decision is binging and fully enforceable through courts

• private

• parties have control over how it’s conducted by determining how they present evidence

• expert on subject matter and impartial

weaknesses of arbitration

• no control over outcome

• not available if parties haven’t agreed on it previously or if it’s not a small mag court claim

• can be costly and time consuming depending on dispute

• can be formal if parties agreed on it, adding stress, time, and costs

reasons for court hierarchy

administrative convenience, appeals

administrative convenience

• cases can be distributed according to their severity and complexity

county and supreme in administrative convenience

• more serious and complex disputes

• unlimited jurisdiction

• can easily manage the allocation of time for longer, more decomplicated cases such as class actions

appeals

ensures there’s a system by which a decisions can be reviewed by a more superior court, court must be satisfied there is a prospect of success

grounds to appeal

• a point or question of law

• a question of fact

• the remedy

county court jurisdiction

• unlimited

• no appeals unless given power under specific act of parliament

supreme court jurisdiction trial division

• unlimited

• question of law from mag unless chief magistrate ordered it, from vcat unless president or vice president made the order

strengths of court hierarchy

• allows court to adapt different processes and use their resources to ensure efficient resolution

• appeals

weakness of court hierarchy

• amount of different courts and overlapping jurisdictions can be confusing

• no automatic right to appeal

role of judge and mag

• act impartially

• case management before trial

• giving directions

• pre trial procedures

• case management during trial

• determine liability and remedy

• determine costs

act impartially judge

• ensure rule of law is upheld

• no bias

• independent of government and parliament

• don’t make decisions in favor of particular political parties or interpretations of the law

case management before a trial, judge

• ensures case is ready for trial

• aims to ensure the just, efficient and timely cost effective resolution of dispute

case management powers

method used by courts and tribunals to control the progress of legal cases more effectively and efficiently. Involves person presiding over the case making orders and directions such as ordering mediation

giving directions judge

given about time limits and the way a civil proceeding is to be conducted, such as completing pre trial procedures

pre trial procedures judge

discovery, mediation, directions

discovery

• parties obtain info and evidence including docs, witness statements and other relevant materials

• judges can limit discovery such as limiting it toa certain category of documents

• often electronic

case management during trial judge

• change the order in which evidence is given or who will address court first

• limit time

• limit witness examination or not allowing cross examination of particular witnesses

• limit number of witnesses

• limit number of docs that can be tendered of evidence

• ask witness questions

• hand down rulings such as if evidence is admissible

• help self rep understand process, obligations and rights

determine liability judge

• no jury so they usually have to do it

• generally reserve their decision and deliver a written reason called a court judgement

decide on costs judge

decide which party should bear costs, usually loosing party

strengths of judge

• impartial

• expert in law and processes

• manage case before and during trial, have significant case management trials to ensure efficiency, timeliness and cost effectiveness

• assist self rep parties

weaknesses of judges

• human, may have apprehended bias or make mistakes

• lack of diversity, may increase potential distrust in ability to decide a just outcome

• extent to which a case is managed depends on case and who’s overseeing it

• can’t interfere excessively including with self rep

conditions juries can be used

• plaintiff or defendant specify during pealing stage, court can still decline

• court order

pleading stage

pre trial procedure where documents are filed and exchanged which state the claims and defences of dispute

roles of jury

• be objective

• listen to and remember evidence

• understanding directions and summing up

• decide on liability and damages

be objective juries

unbiased, no prejudice, no connection with parties, decide based on facts

listen to and remember evidence juries

can’t undertake own investigations, conduct research or make enquires

strengths of jury

• randomly picked

• allows participation in justice system

• collective decision making can reduce possibility of subconscious bias as it can be addressed in deliberation

• represent cross section in community, reflecting society’s views and values

weaknesses of juries

• dont have to give reasons for decisions, no way to know if bias played a role

• not all members may be able to understand complex nature of the trial

• may result in further delays as matters need to be explained

• number of people are ineligible, excused or disqualified meaning large section of community unrepresented

roles of the parties

• make decisions about case conduct

• disclose info to other party

• exchange evidence

• participate in trial

make decisions about case conduct, parties

• party control

• make decisions on what claims they will make, defences they raise, and witnesses they call

party control

the power that each party has to decide how they will run their case

lay evidence

given by ordinary people about what happened or what they saw, no opinions or expertise

expert evidence

given by a professional

participate in trial parties

• opening and closing addresses

• present case to jury

• cross examination

strengths of parties

• have an ongoing obligation to disclose all relevant docs

• both have opportunity to present case

• party control

weaknesses of parties

• some parties may be more familiar with disclosure obligations

• processes are complex and difficult to understand without a lawyer

• party control means parties need time to prepare their case causing delays, stress and costs

why legal practitioners are needed

• difficult for party to present their own case without rep

• may not know how to present evidence or examine witnesses in most effective way

• parties may be too emotionally invested and not be objective

role of legal practitioners

• advise on legal rights

• present evidence and cross examine witnesses

• be objective

• ensure documents are properly handled

• provide support

legal aid from vla and clcs

• more challenging in civil because most grants are for criminal or family law

• vla have limited dispute types they give advice for

• clc can only help if claim is 5k or more, defendants sole home is at immediate risk, high chance of success

strengths of legal practitioners

• experienced experts

• objective

• can help avoid delays that arise with self rep parties

weaknesses of legal pracs

• not all equal in experience or skill

• expensive

• even if self rep can afford lawyer it could be a greater expense especially if they lose and are ordered to pay the other party’s legal costs

class actions

when a group of people who all have similar claims against the same party join together, commenced by lead plaintiff who represents group members

criteria for a class action

• seven or more people

• claims relate to the same, similar or related circumstances

• same issues need to be decided on such as whether a duty of care was owed

role of group memebrs

decide whether to opt in or out and whether to participate in any settlement if there is one

role of courts in class actions

• manage and supervise

• approve any settlement agreed between parties

• approving legal costs and fees for litigation funders to ensure group members are protected and that settlement is fair and reasonable

• approve settlement rather than liability and damages

litigation funders

• a third party that pays for some of the costs and expenses associated with initiating a claim in return for a share of the amount received

costs of class action

• if unsuccessful lead plaintiff alone is responsible

• though usually law firm will act on a no win no fee or litigation funder is involved

• if successful group members share costs which will be taken out of any damages awarded

• law firm can fund class action if they obtain a group costs order allowing them to fund smaller claims when a litigation funder is prepared to

appropriateness of class actions

• whether there are seven or more

• whether plaintiff law firm or litigation funder is prepared to fund claim

• whether there is someone willing to be lead plaintiff

• nature and size of claims

• whether one group member has suffered significantly more and wants to conduct their own claim

strengths of class actions

• group members aren’t responsible for payment but will share damages if successful

• more efficient for dealing with multiple claims

• people can pursue claims they may not have otherwise been prepared to

• use of litigation funders and plaintiff law firms who are prepared to act on a no win no fee basis or receive a fee if successful increases access

• reduce costs for defendants, all claims are in one proceeding

• more convenient for group members not having to actively participate

weaknesses of class actions

• imposes large cost burden if unsuccessful

• time consuming

• provide opportunity for class action lawyer to take advantage of group members

• litigation funders criticised for taking large percentage of award

• sometimes multiple class actions are commenced at the same time increasing costs for defendant

• some group members may not get adequate or up to date info or know the proceeding is occurring

purpose of cav

• advises about consumer legislation laws, providing info and guidance to educate people on it and their rights and responsibilities

• enforce compliance

• provide dispute resolution process

purpose of cav in dispute reoslution

• help people come to an agreement without cost

• reach a resolution consistent with consumer law

cav jurisdiction

consumers, tenants, retirement villages

cav resolution methods

over the phone, sometimes conciliation

appropriateness of cav for cav

• whether in jurisdiction or power

• whether parties have tried to resolve it themselves

• whether complaint is justified or needs involvement

• whether there’s been a breech in legislation or failure to comply with legal obligation

• whether issue has already been dealt with

• likelihood of success

appropriateness of cav for parties

• whether they can resolve it themselves

• whether dispute is best resolved by court or tribunal instead of themselves

• willingness to aprticipate

• whether parties prefer formality of tribunal or court processes

• size and complexity

• urgency

strength of cav

• conciliation is free

• informal and can be done over the phone

• ensures procedural fairness by allowing both sides to present and challenge evidence

• asses disputes individually reducing waste of time and resources on dispute that are unlikely to be resolved

• parties resolve themselves make, making satisfaction with outcome more likely

weakness of cav

• assistance is limited

• no power to order conciliation

• lack of enforceability unless deed of settlement is entered

• not all cases accepted because of criteria and prioritisation

• isn’t appropriate for large and complex cases

low cost vcat

• small fees for filing claim, just over 70 for small claims

• has tiers of fees, corporate (high), standard, health care card holders (less)

• no hearing fee for many claims like claims under 100k

• parties can rep themselves

accessible vcat

• conducts hearings in various locations

• allows online applications and hearings

• less formal

vcat jurisdiction

• obtain power through statutes

• exclusive jurisdiction

• domestic building, retail tenancies, residential tenancies, planning

disputes vcat can’t hear

class actions, employers and employees, neighbours unless about owner’s corporation, people in car accidents, federal or state law, residents of different states, involving the commonwealth

vcat resolution methods used

mediation including fast tracked, compulsory conferences, final hearing

vcat fast tracked mediaiton

for small claims about goods and services up to 10k, usually mediation and hearing are conducted on the same day

vcat compulsory conferences

uses a conciliation process in the presence of a vcat member, can suggest forms of settlement and assist parties

vcat final hearing

used if matter isn’t settled in mediation or conference, gives parties opportunities to present their case, vcat member will make binding decision

types of orders vcat can make

• damages

• injunctions

• declare a debt is or is not owed

• review, vary or cancel a contract

• dismiss a claim

vcat appeals

only on a question of law with persmission

apprpriatenss of vcat

• whether parties need representation

• in jurisdiction

• whether parties can resolve it themselves

• ability of applicant to pay

• whether parties wish to have greater avenues to appeal

• willingness to participate and take it seriously

• whether parties would prefer formality

• complexity or size

• whether parties prefer courts because of doctrine of precedent

strengths of vcat

• normally cheaper

• generally more efficient, three weeks

• informal

• flexible

• each list has specialisation

• binding and enforceable

weakness of vcat

• costs can sometimes be high

• delays and case backlog because of covid

• may be too informal where parties feel uncomfortable or ill equipped

• can’t make precedents

• decisions can only be appealed on point of law

• orders still need to be enforced through courts

circumstances where courts are more appropriate

• claim falls within court jurisdiction and not vcat

• if parties prefer independent and experienced judge to impose a legally binding decision

• in large and complex civil claims like a class action

• parties prefer formalities and procedure

• when both parties have access to and can afford rep

• when parties have considered costs, time and possible delays

• if parties wish to have large avenues to appeal

• if parties prefer application of precedent

circumstances where courts are not appropriate

• if parties want to negotiate themselves

• if parties don’t want formalities or complexities of court

• if they prefer less costly methods like mediation or conciliation

• if it’s more effective to have the matter resolved by cav or vcat due to their jurisdiction and timely processes

• if parties wish to self rep

• if parties want greater influence over final resolution