Legal Studies - Unit 3 AOS 2

Accessibility factors

Accessibility factors

Having good access to the civil justice system is vital to achieving justice
Lack of access can lead to valid civil claims being abandoned, withdrawn or settled for much less
Access is often reduced by:
- Communication barriers
- Lack of services in rural areas
- The use of representative proceedings can increase access

appellant

a person who appeals a ruling or decision (i.e. a person who applies to have the ruling of a lower court reviewed or reversed by a higher court)

arbitration

Cooperative method of resolving disputes
More formal than mediation and conciliation
Often used in commercial disputes
Arbitrator generally has specialist knowledge
Arbitrator helps the parties negotiate and makes suggestions
Arbitrator can make a binding decision if needed.

burden of proof

the obligation (i.e. responsibility) of a party to prove a case. The burden of proof usually rests with the party who initiates the action (i.e. the plaintiff in a civil dispute and the prosecution in a criminal case)

case management

a method used by courts and tribunals to control the progress of legal cases more effectively and efficiently.
Case management generally involves the person presiding over the case (e.g. the judge) making orders and directions in the proceeding (such as an order that the parties attend mediation)

civil dispute

a dispute (i.e. disagreement) between two or more individuals (or groups) in which one of the individuals (or groups) makes a legal claim against the other

conciliation

Cooperative method of resolving disputes
Parties negotiate with the help of trained conciliator
Conciliator suggests options and possible solutions
Conciliator usually has specialist knowledge
Used in the Anti-Discrimination List of VCAT
Decisions reached are not binding, unless deed of settlement is entered into
Aims for win-win outcome.

costs factors

High court fees and the cost of legal rep reduces ability to achieve fairness, equality and access
People may be forced to settle or withdraw their claim, or self-represent, which can lead to unfair outcomes.

counter claim

a separate claim made by the defendant in response to the plaintiff's claim (and heard at the same time by the court)

damages

the most common remedy in a civil claim an amount of money that the court (or tribunal) orders one party to pay to another

term of settlement

a document that sets out the terms on which the parties agree to resolve their dispute

directions

instructions given by the court to the parties about time limits and the way a civil proceeding is to be conducted

directions hearing

a pre-trial procedure at which the court gives instructions to the parties about time limits and the way the civil proceeding is to be conducted

discovery of documents

a pre-trial procedure which requires the parties to list all the documents they have that are relevant to the case.
The purpose of the discovery stage is to:
- require parties to disclose all relevant documents
- reduce the element of surprise at trial
- allow parties to determine the strength of the other side's case
- assist in reaching an out-of-court settlement

enforcement issues

The plaintiff will need to consider whether the defendant is able to pay any money as damages, due to:
- Being bankrupt or having very few assets
- Being in jail
- Being overseas / uncontactable
- Defendant may not be known

EVALUATE CAV
Free

CAV's conciliation service is free
- Increases access for all Victorians
- regardless of their ability to pay
However
- CAV's role is limited mainly to consumer and landlord disputes,
- It has no power to assist with the other civil disputes
- Its ability to reduce delays in the legal system is limited.

EVALUATE CAV
Informal

the conciliation process is informal
- can be conducted over the telephone
- removes many anxieties people have with court
- increases access and chances of a fair outcome
However
- Not appropriate for large and complex disputes
- Not suitable if there is:
- a power imbalance
- a history of violence or distrust
- Informality may mean a party accepts a resolution they are unhappy with

EVALUATE CAV
Parties reach agreement themselves

Conciliation ensures parties reach a resolution themselves
- Parties tend to be happier with an outcome that has not been imposed on them
- More likely to be a win-win outcome
However
- CAV has no powers to enforce any decisions
- One of the parties may just ignore the outcome
- Can leave parties no better off than before conciliation
- May end up needing to go to court, which increases delays.

EVALUATE CAV
Procedural fairness

CAV ensures procedural fairness
Both sides are able to:
- present their case, and
- rebut the other side's case
Helps ensure a fair outcome is reached
However:
- CAV cannot compel parties to undergo conciliation
- A party may not be able to use CAV if the other party is not also willing.

EVALUATE CAV
Timely resolution

CAV aims to conciliate disputes in a timely manner
- Parties do not have to wait months or years for resolution as they do in the courts
- Reduces the anxiety, stress and costs of waiting for a dispute to be resolved
However, if the dispute is unable to be resolved by CAV:
- may mean the parties need to go to court anyway
- this would further increase delays.

EVALUATE VCAT
Cheaper than courts

low application fees
generally no need for legal rep
no pre-trial procedures
increases access
However
- due to increased use of legal rep, cost of VCAT has escalated
- there are now fees for some hearings
- large fees for major cases in the Planning and Environment List

EVALUATE VCAT
Less adversarial

Parties encouraged to come to an agreement themselves
More likely to abide by the decision and be satisfied with the outcome
If parties cannot reach a compromise, a binding decision can be made
However:
- Parties may prefer adversarial nature of court if there is anger and animosity towards the other party
- Courts are more suitable for criminal cases

EVALUATE VCAT
Much less formal

No strict rules of evidence and procedure
Less intimidating for the parties
Parties are encouraged to reach a decision themselves
Ensures fairness and equality
However
- parties may feel influenced into accepting a decision they are not satisfied with
- VCAT is not suitable:
- For large civil claims
- Where there is animosity between the parties

EVALUATE VCAT
Timely resolution

Able to resolve disputes much faster than courts
Generally, less than a day
Reduces stress and costs involved
However:
- Decisions can be appealed, which would increase delays + costs
- Long delays in some lists, esp. Planning and Environment List

exchange of evidence

Allows evidence to be exchanged prior to trial, generally in written form via. For example, a written report from an expert witness.
The purposes of exchanging evidence are to:
- reduce the element of surprise at trial
- allow parties to determine the strength of the other side's case
- provide parties the opportunity to 'rebut' expert evidence
- allow defendant to understand the amount of damages that the plaintiff is seeking

group member

a member of a group of people who are part of a representative proceeding (i.e. class action)

injunction

a remedy in the form of a court order to do something or not to do something. An injunction is designed to prevent a person doing harm (or further harm), or to rectify some wrong
can be mandatory or restrictive
can be permanent or temporary

judicial powers of case management
The power to give directions"

Judges can actively manage civil proceedings
The Civil Procedure Act states that:
- the court may give any direction
- or make any order
- at any stage of the proceeding
Sanctions can be imposed if a party fails to comply.

judicial powers of case management
The power to order mediation"

The Civil Procedure Act and court rules allow that at any time during the pre-trial or trial proceedings, the court may order the matter to be referred to mediation
Mediation may be facilitated by:
- A court officer
- Private mediation
Most disputes attend mediation before trial
Can assist prompt and economical resolution.

lead plaintiff

the person named as the plaintiff on behalf of the group members in a representative proceeding (i.e. class action)

limitation of actions

the restriction on bringing a civil claim after the allowed time

litigation funder

a third party who pays for some or all of the costs and expenses associated with initiating a claim in return for a share of the proceeds. Litigation funders are often involved in representative proceedings

mediation

Cooperative method of resolving disputes
Parties negotiate with help of trained mediators
Mediator facilitates discussion + ensures both parties are heard
Mediator does not suggest ways to resolve dispute
Focuses on relationship b/w parties
Decisions reached are not binding, unless a deed of settlement is entered into.

negotiation

informal discussions between two or more parties in dispute, aiming to come to an agreement about how to resolve that dispute

plaintiff

(in civil disputes) the party who makes a legal claim against another person (i.e. the defendant) in court

REASONS FOR A COURT HIERARCHY
administrative convenience

Cases are distributed according to their seriousness. This:
- reduces delays in lower courts
- allows higher courts to allocate more time to more complex cases
- allows legal personnel to be allocated according to expertise
However, duplication of administration:
- increases costs
- can result in confusion as to which court to go to

remedy

a term used to describe any order made by a court designed to address a civil wrong or breach.
A remedy should provide a legal solution for the plaintiff for a breach of the civil law by the defendant and (as much as possible) restore the plaintiff to their original position prior to the breach of their rights

representative proceeding

a legal proceeding in which a group of people who have a claim based on similar or related facts bring that claim to court in the name of one person also called a class action or a group proceeding

role of VCAT

Four main roles:
- low cost dispute resolution (nominal fee and no need for legal rep)
- accessible and informal (less intimidating than court)
- timely resolution (dispute heard in approx 2 weeks and resolved in a day)
- expert bodies (VCAT lists deal with specific area of law)

self-represented party

a person with a matter before a court or tribunal who has not engaged (and is not represented by) a lawyer or other professional

standard of proof in civil disputes

the balance of probabilities. This requires the plaintiff to establish that it is more probable (i.e. likely) than not that his or her side of the story is right

sue

to take civil action against another person, claiming that they infringed some legal right of the plaintiff (or did some legal wrong that negatively affected the plaintiff)

the purpose of CAV

CAV is Victoria's consumer affairs regulator. It's purpose is to:
- advise the government on consumer legislation
- educate people about consumer laws, and
- enforce compliance with consumer law
- provide consumers and traders, and landlords and tenants, with a dispute resolution process.

Time factors

Delays are a big issue in our legal system, due to:
- Limited court resources
- Complexity of pre-trial procedures
- Increasing number of civil cases
Delays can:
- Increase stress, costs and financial hardship
- Force parties to settle or withdraw
- Impact reliability of witnesses

VCAT member

the person who presides over final hearings and compulsory conferences at VCAT. Members include the President, vice-presidents, deputy presidents and senior and ordinary members