The Victorian Civil Justice System

The institutions used to resolve civil disputes

Consumer Affairs Victoria (CAV)

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

-        Established by the Australian Consumer Law and Fair Trading Act 2012 (Vic)

Type of dispute

• Consumers and business – The Australian Consumer Law and Fair Trading Act 2012 (Vic) has been breached

• Residential tenancies Landlord or tenant – Residential Tenancies Act 1997 (Vic) has been breached

Purposes of CAV

• providing free information and advise

• creating a fair and competitive marketplace

• provide an avenue of resolving disputes efficiently with minimal costs

providing free information and advise

information and advice to consumers, businesses, tenants and landlords in relation to their rights and responsibilities, as well as any changes to relevant law.

• CAVs website contains guides omitting step by step processes of resolving thier disputes

Creating a fair and competietive market place

Responsible for registering and licensing certain businesses and occupations - they also review and advise the Victorian Government on the conusmer protection framework

provide an avenue to help resolve disputes efficiently with minimal costs

Free information and dispute resolution method services for individuals as well as experiencing less delays then the courts (conciliation)

Where is CAV appropriate

• if the dispute is within CAVs jurisdiction

• if the dispute is likely to settle - parties are willing to negotiate

• when parties are looking for affordable, accessible dispute resolution

Where is CAV inappropriate

• if the court has already ruled on the matter

• if there is no oether method of dispute reolution which is beneficial - if parties are unwilling to negotiate

• if parties have not yet tried to resolve the dispute

• if parties want a legally binding solution

• if the claim is initiated by landlords or businesses

• Class actions

Fairness (+)

• quick dispute resolution method and conciliation occurs in an informal manner which reduces the stress and potential delays of the courts

• CAV processes are free - ensures parties who cannot afford to take their matter to VCAT or the courts are still able to access justice

• The use of conciliation requires parties to willingly attempt to resolve the dispute and come to an agreement (a “win, win”) situation therefore the relationship can be mainatined between parties

Fairness (-)

• CAV cannot force parties to attend conciliation - requires the agreemnt of both parties

• CAV is unable to impose a legally bidning decision

• CAV has limited jurisdiction therefore parties with complex disputes are not treated in the same manner as parties with disputes within CAVs jurisduction

Equality (+)

• The independent conciliator must ensure both parties have equal opportunities to present their case

• CAV’s website provides free and accessible guidance regarding rights (renting, refunds) so that people are not unfairly disadvantaged before the law

• Conciliators provide expert knowledge, ensuring both parties have equal access to legal information and reducing disadvantage from unequal legal understanding.

Equality (-)

• CAV has limited jurisdiction therefore parties with complex disputes are not treated in the same manner as parties with disputes within CAVs jurisduction

• During conciliation parties are allowed to utilise legal representation - this can disadvantage the party wothout legal representation as they will be unable to understand processes to the same extent

• Lower socioeconomic parties who can not afford VCAT or the courts are disadvantaged and cannot access a legally binding decision due to CAVS limited jurisdiction

Access (+)

• Provides free services to all members in Victoria (as long as the dispute is within CAVs jurisdiction)

• Conciliation can be conducted over the phone or video conference

• Conciliation promotes privacy - beneficial if parties do not want a public trial

• Access to a less intimidating dispute resolution method as compared to the courts

Access (-)

• CAV has limited jurisdiction therefore parties with complex disputes are not treated in the same manner as parties with disputes within CAVs jurisduction

• Parties of a lower socioeconomic status can not access a legally binding decision

• Conciliation requires both parties to come to an agreement - justice is limited if one party agrees and the other does not

Victorian Civil and Administrative Tribunal

A dispute resolution body that aims to provide Victorians with a low cots, efficient, accessible and independant tribunal that delivers high quality dispute resolution and is governed by the Victorian Civil and Administrative Tribunal Act 1988 (Vic)

VCAT divisions (lists)

• Civil division

• Administrative division

• Human rights division

• Residential Tenancies division

• Planning and environmental division

Types of disputes

• Residential landlords and tenants - Residential Tenancies Act 1997 (Vic) - Residential Tenancies Division

• Equal Opportunity Act 2010 (Vic) - Human Rights Division

• Australian Consumer law and Fair Trading Act 2012 (Vic) - civil division

• building and construction dispute - civil disputes

Purposes of VCAT

• Low-cost dispute resolution

• Efficient dispute resolution

• Accessible dispute resolution

Low Cost

• disputes do not require legal representation

• Fees are low and waived in some cases (no hearing fees for goods and services under $15000, no application fees)

• ADRs - medation and coniliation are relied on to minimise costs

Efficient

• hearings are resolved in a short period of time (no pretrial processes of the courts) EG. Residential Tenancies disputes are resolved on average within 2 weeks and Goods and Services disputes witthin 11

Accessible

• low cost - designed so more people can access

• many VCAT offices around Victoria

• allows video conferences and over the phone mediation and compulsury conferences (conciliation)

• informal processes compared to the courts

• no requirement of legal representation

• VCAT assists parties throughout the whole process

VCAT dispute resolution methods

• goods and services claims up to $10,000 - parties will attend mediation (free)

• compulsory conferences - confidential process in which parties undertake conciliation processes to attempt to settle the dispute before the final hearing (VCAT member makes suggestions

• Final hearing - If the dispute cannot be resolved through ADRs - both parties present evidence and a VCAT member will hand down a final order (can be enforced by the courts)

• Appealing a VCAT decision - only on a question of law and is heard in the supreme court trial division or court of appeal

VCAT fees

• claims between $3,000 to $15,000 have application fees $224 for individuals and $320 for businesses

• Hearing fees - day one for claims exceeding $100000 is $375 compared to no hearing fees for day one for claims below this amount (however followed by $375)

Where is VCAT appropriate

• Claims which fall within VCATS jurisdiction

• parties are happy to appeal only on a question of law

• parties prefer informal dispute resolution that is low cost

• parties want to negotiate and are willing to comply with the agreement

Where is VCAT not appropriate

• The case is outside of their jurisdiction

• Parties want greater ability to appeal

• The claim is for very high amounts of damages or complex cases

• class actions

Fairness (+)

• If the case initiates to the final hearing a legally binding decision can be imposed ensuring parties abide

• VCAT encourages resolution through ADRs - allowing parties to have control over the outcome

• Resolved in a quick and efficient manner (compared to the courts)

Fairness (-)

• VCAT does not utilise juries and therefore limiting parties ability to trial by their peers and a cross section of the community

• There is a limited ability to appeal VCATs decision

• VCAT does not provide strict rules and procedures to the same extent as the courts - inconsistency between the parties

Equality (+)

• During a hearing VCAT members take special measures to allow those with social, cultural, physical disadvantages to participate

• Both parties have equal oppurtunities to present their case

• Low costs allows those of a lower socioeconomic status to not be disadvantaged - able to access justice in the same manner

Equality (-)

• VCAT has limited jurisdiction and cannot resolve large complex disputes - class actions (not giving all parties equal access)

• Parties who choose to rely on legal representation may be advantaged compared to those who cannot afford it

• VCAT mambers are not able to assist self represented parties

Access (+)

• Provides low cost dispute resolution methods - increasing accessibility for more people to engage in the justice system

• VCAT provides video conderence or over the phone ADRs

• VCATs processes and procedures are less formal then the courts - enabling parties to better understand

Access (-)

• Can only resolve matters within its jurisdiction - some civil disputes simply must proceed to court

• Some fees at VCAT remain high - hearing and application fees

• Access to appeals is limited - only on questions of law

The courts

Legal Institution concerned with the interpretation and application of laws in order to make legal decisions involving civil disputes

• generally the last resort due to cost and time

Judical determination

Method of dispute resolution in which a judge or magistrate will make a legally binding decision after the parties present their case at trial

Purposes of the courts

• provide access to a judical officer

• procedural fairness

• Access to trial by jury

• provide legally binding outcomes

• order a remedy

• set precedent for future cases

Provide access to a judical officer

These officers are knowledgable and experienced about the law, court rules, and procedures - enables parties to be sure that their case is being determined by an impartial individual who can offer a just outcome

Procedural fairness

The formal and structured environment within the courts enable the effective implementation of rules and processes consistently within parties - they ensures rules of evidence have been upheld

EG. admissible evidence, jury empanlement, witnesses (examination and corss examination)

Access to trial by jury

If both parties agree they are able to request access to a jury - this is if they are willing to cover expenses allowing their case to be determined by a cross section of the community

provide legally bidning outcomes

judicial determination allows the outcome to be legally enforceable therefore ensuring parties abide

Order a remedy

Civil grievances can be resolved by ordering for a remedy - damages, injunctions

Set precedent for future cases

Develops common law which enables legal principles to be established in court and which must be followed in subsequent cases that share similar material facts

Where are the coutrs appropriate

• if parties prefer to have an impartial and experienced judge or jury impose a legally binding decision

• large and complex cases (class actions)

• If parties cannot resolve the dispute through out of court settlement options

• both parties can afford adequate legal representation

Where are the courts not appropriate

• if the parties want to negotiate or be in crontol over the outcome (adversarial nature)

• if parties do not want to deal with the formalities and complexities of court

• if parties prefer less time consuming and costly dispute resolution

• if parties cannot afford legal representation

• if parties have not attempted to resolve with out-of-court settlement options

Fairness (+)

• Jucical officers within the courts are formal and impartial meaning they listen objectiveky to evidence and base their decision soley on evidence

• juries can be requested which represent a corss section of the community and reflect views of the community

• Procedural fairness can be achieved through a judge or magistrates case management powers - ensures consistency between parties

Fairness (-)

• Court trials are time consuming and can face delays due to the complex nature - increases stress and costs

• If jury is utilised it may risk an unjust outcomes due to members of the community having limited legal knowledge

• legal represenation is required to understand complex processes and increase chance of just outcome - expensive

Equality (+)

• Procedural fairness ensures the strict rules of evidence and procedures apply consistently to both parties

• Parties both have equal opputunity to present therir case

• Parties have equal oppurtunity to select their legal representation

Eqaulity (-)

• those of a lower socioeconomic status who may not be able to afford high quality legal representation may be negatively disadvantaged

• self represented parties may not be able to present their case in the best light possible to the same extent as those with legal representation who have increase understanding of processes

• Formalities and strict regulations of court - legal representation, hearing fees, application fees may deter parties from initiating a claim

Access (+)

• Court hearings enable parties to access legally binding resolutions - parties must oblige

• the courts have the highest jurisdiction and can here a vast range of cases ensuring a resolution for parties

• Interpreters, disability access, and assistance for self-represented litigants help people participate effectively.

Access (-)

• the high cost of proceedings and legal representation may deter parties from accessing the courts - cannot access justice

• Those from a lower socioeconomic status may not be able to afford good quality or any legal representation - cannot access a just outcome

• Due to delays which the courts experience - stress is increased significantly