Studied by 10 people
Civil dispute
An infringement of rights which leads to individuals or groups making a legal claim against the other.
Dispute resolution bodies in Victoria: CAV
Consumer Affairs Victoria (CAV): A complaints bodies that provides information and advice to parties.
Cannot make binding decisions.
Usually free, efficient, and speedy.
It has a broad jurisdiction.
Uses conciliation.
CAV is appropriate if …
The dispute is within their jurisdiction.
There has already been an attempt to resolve the dispute.
The dispute has not been determined by, or is not pending in, VCAT or a court.
There is a 'reasonable likelihood' of settlement.
Dispute resolution bodies in Victoria: VCAT
Victorian Civil and Administrative Tribunal (VCAT): A government funded agency, which hears and determines cases according to the law.
Tribunals are less formal and generally quicker and less expensive than courts.
They offer mediation and compulsory conference. If these fail, there will be a final hearing where a binding decision is made.
The 5 divisions of VCAT
Residential Tenancies Division.
Civil Division.
Human Rights Division.
Planning and Environment Division.
Administrative Division.
VCAT is appropriate if …
The parties can resolve the dispute themselves.
The parties are happy to only be able to appeal on questions of law.
The parties prefer an informal dispute resolution process.
Dispute resolution bodies in Victoria: The Courts
The Victorian courts - Magistrates' court, County court and Supreme courts.
Pre-trial procedures: Number 1
Pleadings: A series of documents filed and exchanged between the plaintiff and the defendant, which set out the claims and defences.
The two main documents in the pleadings stage are
The statement of claim, which is filed with the court by the plaintiff; sets out the claims and the remedy the plaintiff wants.
The defence, which is filed by the defendant; sets out the defendants responses to each of the plaintiff's claims.
Pre-trial procedures: Number 2
Discovery of documents: Documents that are relevant to the trial are shared between parties.
Pre-trial procedures: Number 3
Exchange of evidence: Parties exchange the evidence that will be given at trial.
Lay evidence - People give evidence on what they saw.
Expert evidence - Experts give evidence about their professional opinion.
Pre-trial procedures: Number 4
Mediation: The judge may order the parties to attend mediation by a certain date to try and resolve the issue before trial.
Plaintiff
The party who commences legal action and claims their rights have been infringed or breached.
What is the responsibility of the plaintiff?
To prove the defendant caused them harm on the balance of probabilities.
Defendant
The party who is alleged to have infringed or breached the plaintiff's rights.
Who can be found liable?
Both the defendant AND plaintiff can be found liable, not liable, or partially liable.
Vicarious liability
An employer is responsible for the actions of an employee.
Litigation guardian
A child under the age of 18 can sue or be sued by another person or group, so an adult will conduct the case for them.
Types of civil disputes
Defamation.
Negligence.
Breach of contract.
Nuisance.
Wills and inheritance.
The burden of proof
The party that responsible for bringing the case and must prove the facts of the case.
Usually the plaintiff, unless the defendant raises a defence.
The standard of proof
The strength of evidence needed to prove the case and the level of certainty of the person who is deciding the outcome of the case.
The standard of proof happens on the Balance of probabilities.
Three factors a plaintiff needs to consider before initiating a civil claim: Number 1
Costs. All costs that the plaintiff would need to pay to bring the case to court.
Fees for legal representation, disbursements (fees of the trial), and adverse costs orders (the unsuccessful party pays for all the fees).
Three factors a plaintiff needs to consider before initiating a civil claim: Number 2
Limitation of actions. How long the plaintiff has to initiate a court case.
Usually 1 to 6 years.
What can be done to extend the period of time?
Three factors a plaintiff needs to consider before initiating a civil claim: Number 3
Enforcement issues. Can the outcome actually be enforced on the unsuccessful party?
What are some of the reasons why the outcome of the case could not be enforced? Party is no longer in the area, the party can’t pay the damages, etc.
Fairness
All people can participate in the justice system and its processes should be impartial and open.
Fairness - Impartial processes.
Everyone must be independent and not influenced by what others say.
The case must be decided on facts and law only, and not on what a person thinks about the party (e.g., the plaintiff or defendant) in a case.
Fairness - Open processes.
Ensures transparency and allows the public to see the court process.
Although for some it can be closed to the public and be resolved in private.
Fairness - Participation in processes.
Everyone should know the facts and evidence of the case in advanced so both parties can prepare.
(This overlaps with the principles of access.)
Equality
All people engaging with the justice system and its processes should be treated the same way. However, if the same treatment creates disadvantage, adequate measures should be taken to allow all to engage in the justice system without disadvantage.
Formal equality/Equality - Same treatment
Everyone is consistently being treated the same way and are given the same levels of support.
Substantive equality/Equality - Adequate measures.
Special measures are given out to people so that they are not disadvantaged because of who they are.
Access
All people should be able to engage with the justice system and its processes on an informed basis.
Access - Engaging justice.
All people should be able to use and participate in the justice system.
Access - Informed basis.
All people should be able to understand and participate in the justice system.
Knowledge based, financial based, and physical/technology based access.
Appeals
If a party is unhappy with the outcome of the case the court hierarchy allows the decisions in criminal cases to be reviewed by a superior court to ensure fairness.
Administrative Convenience
Enables the distribution of resources. Complex cases are heard in superior courts (more time/more resources) while less complex cases are heard quickly in lower courts (quicker/cheaper) to help reduce delays.
Court Hierarchy (Levels of the courts)
High Court.
Supreme Court - Court of Appeals.
Supreme Court - Trial Division.
County Court.
Magistrates Court.
Mediation
A process which involves an independent third party who supports communication and assists the parties to reach a voluntary resolution.
The decision made is not automatically binding. If parties come to a voluntary decision, they can make it binding by signing a terms of settlement.
The cost is cheap, sometimes free, but will be split between the parties.
When mediation is or isn’t appropriate
Appropriate:
Parties genuinely want to resolve the dispute.
A continuing relationship needs to be maintained (e.g. neighbours, family).
The parties prefer privacy and confidentiality.
Not appropriate:
There is a history of broken promises.
There is a history of violent and threatening behaviour.
One or both parties are unwilling to negotiate.
Conciliation
A process involving an independent third party (with specialised knowledge) who assists the parties and provides suggestions to get them to reach a voluntary resolution.
The decision is not binding unless the terms of settlement is signed.
When conciliation is or isn’t appropriate
Appropriate:
Parties genuinely want to resolve the dispute.
Parties require suggestions and solutions to initiate discussion.
There is an admission of liability, and the only issue to determine is the amount to be paid.
Not appropriate:
A debt is clearly owed by one party.
The matter is urgent.
There is a gross imbalance of power between the parties.
Arbitration
A dispute resolution process involving an independent third party who listens as both parties present their evidence and makes a binding decision.
Less expensive and less formal than attending a court hearing or trial, but generally more expensive and more formal than mediation or conciliation.
When arbitration is or isn’t appropriate
Appropriate:
Parties genuinely want to resolve the dispute.
The amount claimed is less than $10,000 and it has been initiated in the Magistrates’ Court.
The case requires a binding and enforceable decision.
Not appropriate:
The parties prefer the matter to be resolved by a jury.
The parties do not agree to arbitrate.
The parties want greater control over the process and outcome.
The judge or magistrates’ need to …
To act as an impartial third party when determining liability and/or deciding on the remedy.
Role of the magistrates’/judge:
Decide on appropriateness of evidence.
Case management.
Determine liability.
Decide the remedy.
Decide on costs.
Can send the parties to mediation before allowing them to come to court.
Case management
Any method used by courts and tribunals to control the progress of legal cases more effectively and efficiently.
Limit the amount of witnesses, amount of evidence, amount of time for a case, etc.
Direct the parties to go to mediation.
Direct the conduct of the proceedings.
The jury needs to …
To act as an impartial third party when deciding liability.
It is optional and only contains 6 people.
The party who asked for a jury must be the one to pay the cost for having one.
The court can refuse or recommend one.
The role of the jury
Decide on liability based on the facts of the case.
In some cases, decide on damages.
Listen to and remember the evidence.
Understand directions and summing up.
Be objective, impartial, and not influenced by other jurors.
The parties and legal representation need to …
To present their case in the best light possible.
The role of the parties and legal representation is to
Make decision about the conduct of the case (party control).
Disclose information to the other party during pre-trial procedures.
Give an opening and closing address.
Examine and cross-examine witnesses.
Comply with their overarching obligations to the court.
Why do we need legal representation?
Not every civil dispute needs legal representation.
If one party has legal representation and the other doesn’t they will disadvantaged.
Legal representation has more specialised knowledge of the legal field.
Legal representation can be objective, unlike the parties.
The availability of legal representation.
Class actions
When a group of (at least 7) people make the same legal claim against the same person/company for loss because of similar circumstances.
Includes a lead plaintiff, which will initiate the proceedings and represent the group members.
They can only be heard in the Supreme Court.
Group Costs Order (GCO)
A legal firm will represent the lead plaintiff and class members, and will receive an agreed upon percentage of the damages to cover their legal expenses. Meaning costs are shared by all class members to pay for the legal representation.
Class actions are more appropriate when:
There are seven or more people with the same claim against the same defendant for similar circumstances.
A law firm or litigation funder is prepared to fund the claim.
The group members have suffered a similar level of harm so shared/split damages are appropriate.
There is a plaintiff willing to be the lead plaintiff.
Class actions are less appropriate when:
There are less than seven people with the same claim against the same defendant for similar circumstances.
A law firm or litigation funder isn't prepared to fund the claim.
The group members have not suffered a similar level of harm so shared/split damages are appropriate.
There is not a plaintiff willing to be the lead plaintiff.
Cost factors that prevent/enable principles of justice from being achieved
Prevents:
Expensive legal representation fees result in increased self-represented parties.
Court filing and hearing fees are expensive (based on the court).
VCAT has hearing fees for most disputes (while cheaper aren’t generally free).
Enables:
Alternative dispute resolution methods usually do not require legal representation.
Litigation funders and GCOs are available.
Low or no fee VCAT hearings and filing fees are available.
Tiered fee system (Helps costs factors)
Fees are adjusted to reflect on individual's needs. Making people with more money pay more fees and those with less money pay less fees.
Time factors that prevent/enable principles of justice from being achieved
Prevents:
The courts and VCAT are experiencing significant delays post-COVID.
Delays for one case add to the backlog other cases must endure.
Enables:
Administrative convenience ensures complex cases are provided the time and resources required.
Matters heard through VCAT are generally resolved within weeks (rather then months or years).
Class actions allow multiple disputes to be heard through one trial.
What is the purpose of remedies?
To restore the injured party to their original position or compensate for the loss.
Damages
An amount of money paid to the plaintiff by the defendant to compensate for loss or injury caused by wrongful acts of the defendant.
Types of Damages: Compensatory - Specific
A precise amount of money to compensate for loss.
E.g., Medical bills, damage to property.
The purpose of compensatory - specific damages
To reimburse and precisely compensate the plaintiff for the exact amount of money lost to return them to their original position.
Types of Damages: Compensatory - General
An amount of money that does not have a precise value to compensate for loss.
E.g., Pain and suffering, loss of quality of life.
The purpose of compensatory - general damages
To reimburse and generally compensate the plaintiff for an estimated amount of money lost to return them to their original position.
Types of Damages: Compensatory - Aggravated
An amount of money when a plaintiff has suffered extreme humiliation, embarrassment or insult.
E.g., Loss of reputation, media humiliation.
The purpose of compensatory - aggravated damages
To reimburse and compensate the plaintiff for the humiliation or distress suffered.
Types of Damages: Exemplary
A large amount of money to show the court’s strong disapproval of the defendant’s conduct.
E.g., Cruelty, revenge, or scornful disregard of the plaintiff’s rights.
The purpose of exemplary damages
To punish and deter the defendant and denounce the actions.
Types of Damages: Nominal
A small amount of money, usually $1, to confirm that the plaintiff’s rights had been infringed even though there wasn’t a high level of loss.
The purpose of nominal damages
To reflect that the plaintiff was legally right without the requirement for the defendant to pay substantial damages. (As they are given a $1)
Types of Damages: Contemptuous
A small amount of money, usually $1, to show that even though the plaintiff’s claim succeeded legally, the court disapproves of it in moral terms.
The purpose of contemptuous damages
To reflect that the plaintiff was legally right but shows the court’s contempt of the claim. (Basically “you wasted our time, but here’s a dollar“)
Injunctions
A court order directing a person to undertake a specific action, or to stop a specific action.
This is normally ordered to prevent harm, or further harm, to the plaintiff.
Types of injunctions: Mandatory
An order requiring someone to do something, or take active steps to prevent harm to the plaintiff.
E.g., Publish an apology for defamatory comments.
The purpose of mandatory injunctions
To prevent harm or further harm being caused to the plaintiff, and restoring them as much as possible to their original position.
Types of injunctions: Restrictive
An order requiring someone to stop doing something that is harming the plaintiff.
The purpose of restrictive injunctions
To prevent harm or further harm being caused to the plaintiff, and restoring them as much as possible to their original position.
