The Victorian Civil Justice System

burden of proof

the responsibility of a party to prove the facts of a case

burden of proof - party

plaintiff

standard of proof

the degree/extent to which the facts in a case must be proven

standard of proof - civil

on the balance of probabilities

limitation of actions

The time limit of bringing a case to the court, outlined in the Limitations of Actions Act 1958 (Vic)

limitation of actions - purpose

• ensures proper and sufficient evidence

• reduces backlog of the courts

enforcement issues

will the plaintiff get anything out of the defendant

orders if defendants do not pay

• garnishee order - pay

• examination process - assets

principles of justice

• fairness

• equality

• access

fairness

all people can participate in the criminal justice system and its processes should be impartial and open

aspects of fairness

• impartial processes

• open processes

• participation

impartial processes

all people involved in the legal system are independent, unbiased and only make opinions based on evidence and facts

open processes

all processes in the legal system should be able to be viewed and scrutinised by the public

equality

all people engaging in the justice system and its processes should be treated in the same way, however if the same treatment causes disparity or disadvantage, adequate measures should be implemented to allow all to engage with the legal system without disparity or disadvantage

types of equality

1. formal

2. substantive

formal equality

treating all people the same

substantive equality

making adjustments to remove any disparities or disadvantages a party may face

access

all people should be able to engage with the justice system on an informed basis

mediation/conciliation

discussion to help the parties come to a resolution with a mediator/conciliator in a co-operative manner

mediators

• facilitates conversation

• no interference

• act as a third-party

mediation/conciliation is appropriate if:

the parties are willing/wanting to

• attend

• co-operate

• a relationship

• compromise

conciliator

• third party

• less formal

• safe and supportive environment

• more private

weaknesses of mediation/conciliation

• no guarantee for a decision

• one party may have more power

• one party may not co-operate

• no transparency

arbitration

when both parties explain their side to the arbitrator who will make a legally binding decision

arbitration decision name

arbitral award

Arbitration is appropriate if:

• the parties cannot come to an agreement

• there is a history of distrust

• for businesses and entities

strengths - arbitration

• decision is binding

• it is private

weaknesses of arbitration

• parties have no control over the outcome

• can be costly

• can be formal

methods of dispute resolution - fairness

breached

• some parties may compromise too much

• lack of rules of evidence

methods of dispute resolution - equality

supported

• both sides have to agree - m/c

• both parties are heard equally

breached

• one party may have more resources

methods of dispute resolution - access

supported

• reduces costs

• increases efficiency

breached

• not easily accessible

court hierarchy

ranking of the courts

reasons for a court hierarchy

• appeals

• administrative convenience

appeals

• when a dissatisfies party takes the matter to a higher court as a new hearing

• court hierarchy gives the superior court

grounds of appeal

• point of law

• question of fact

• remedy awarded

administrative convenience

• focuses on efficiency

• court hierarchy allows for distribution of cases

strengths - court hierarchy

• appeals

• administrative convenience

weaknesses - court hierarchy

• makes court system confusing

• no automatic right of appeal

court hierarchy - fairness

appeals

supported

• any bias can be removed

court hierarchy - equality

appeals

supported

• any inequalities can be removed

court hierarchy - access

administrative convenience

supported

• efficiency

appeals

breached

• can’t always access

role of the judge/magistrate

• impartial third-party

• rules of evidence

• verdict and remedy

• case management

case management

must ensure the just, efficient, timely, cost-effective resolution of the issues in dispute

judge/magistrate - similarties crim

• impartial third-party

• direction of jurors

• rules and procedure

judge/magistrate - differences crim.

• judge may not handle punishment

• may decide on decision

• more flexibility in case management

• standard of proof is less strict

judge/magistrate - strengths

• impartial umpire

• have expertise

• ensure efficiency

juδge/magistrate - weaknesses

• may have bias

• not culturally diverse

• case management abilities fluctuate

• cannot interfere excessively

role of jury

• be objective

• listen to evidence

• follow directions from t he judge

• determine liability

• can determine remedies

jury - similarities crim.

• decison

• objective

• listen to all evidence

• follow judge’s directions

jury - differences crim.

• lesser standard of proof

• may decide on punishment

jury - strengths

• randomly picked

• openness with public

• collectiveness removes bias

• diverse group

role of parties

present evidence and arguments

plaintiff - similiarties crim.

• hold burden of proof

• pre-trial responsibility

plaintiff - differences crim.

• organise own legal rep.

• lesser standard of proof

• different names

defendant - similarties crim.

• rebutt and defend

• take part in pre-trial processes

defendant - differences crim.

no right to silence

key personnel - fairness

achieved

• judge ensure no bias

• parties have control

breached

• may be biases

key personnel - equality

supported

• parties are both listened to equally

breached

• jury may not treat similar situations the same

key personnel - access

breached

• hard to access legal rep. for parties

role of legal practitioners

• use legal expertise to help resolve

• prepare legal paperwork

• manage pre-trial processes

• present evidence and arguments to the courts

• abide by overarching obligations

need of legal practioners

• navigate processes

• present the best case

• increase efficiency

• ensure both parties have same knowledge

• objective

legal practitioners - similarties crim.

• legal expertise

• present evidence

• obligation to the court

legal practitioners - differences crim.

• greater flexibility in negotiations

• plaintiff has a choice in institution

• extensive overarching obligations

legal practitioners - strengths

• experts

• objective

• avoid delays

legal practitioners - weaknesses

• not equal

• not everyone can afford

class actions

when a group of 7 or more people bring a civil action together as one proceeding rather than initiate separate proceedings

role of lead plaintiff

• initiated under the name

• liable for any costs

class actions - reasons

• cost beenfits

• more efficient

class actions - appropriate if

• some members cannot seek justice seperately

• efficient resolution is needed

• great oversight of the courts is needed

class actions - inappropriate if

• all plaintiffs want control

• no one wants to be the lead plaintiff

• large number of damages is needed

class actions - strengths

• group members are not responsible for any costs

• more efficient

• more people are able to pursue civil claims

• reduces costs of the defendant

• more convenient

class actions - weaknesses

• potential for a large cost burden on the lead plaintiff

• take up resources and time

• some lawyers and funders take advantage and damages

class actions - fairness

achieved

• justice being achieved for small claim

breached

• large portion of damages may be absorbed by costs

class actions - equality

achieved

• all members getting the same outcome

class actions - access

achieved

• cost benefits

• more efficient

breached

• complexity increases time

• some members cannot engage

CAV

• Consumer Affairs Victoria

• a dispute resolution body that ensures businesses comply with consumer law

disputes heard by CAV

• tenant/landlord

• consumer/supplier

CAV method

conciliation

CAV - appropriateness

• whether it is within jurisdiction

• whether the parties have tried to resolve it themselves

• whether the dispute is likely to be resolved

• whether the dispute is compatible with the lower formality

• whether conciliation is appropraite

CAV - strengths

• informal

• free

• allows individuals an alternate way to resolve a dispute

• parties reach solution themselves

CAV - weaknesses

• limited jurisdiction

• no pwoer to enforce decisions

• not all cases are accepted

• not appropriate for large disputes

VCAT

• Victorian Civil and Administrative Tribunal

• a tribunal that can hear a broad range of civil matters

Purposes of VCAT

• low-cost

• accessible

• efficient

• independant

VCAT Lists

• civil

• administrative

• resedential tenancies

• human rights

• planning and environment

VCAT methods

• mediation

• compulsory conferences

• mediation

VCAT appropriateness

• whether the matter is within jurisdiction

• whether a binding outcome is wanted

• whether the parties have tried to resolve the disputes themselves

• the nature of the fees

• complexity of the matter

VCAT - strengths

• cheaper

• quicker

• infomral

• lists have specialist jurisdiction

• decisions are binding

VCAT - weaknesses

• costs can be high

• delays can occur

• may be too formal

• cannot create precedent

• only point of law appeals

• orders must be enforced through the courts

courts - method

judicial determination

courts - appropriateness

• whether the formality is wanted

• whether the parties are okay with lack of control of outcome

• whether the parties can afford the costs

• whether they have time for the lengthy process and delays

courts - strengths

• pre-trial procedures may remove trial

• processes ensure fairness

• allows interaction between parties

• binding decision

courts - weaknesses

• delays

• costs

• complexity

• stressful

• inflexible

institutions - fairness

supports

• providing expertise in outcomes

institutions - equality

support

• ensures no unfair advantage of legal practitioners

breached

• similar disputes can be handled in different ways through different bodies

institutions - access

achieved

• increases efficiency

• cost-effective

breached

• backlogs increase delays

costs - fairness

supported

• ensures best processes and evidence

breached

• may lead someone to not pursue a claim or be self-represented

costs - equality

achieved

• same for both parties

breached

• different levels of resources can differ based on costs

costs - access

breached

• limits engagement

• measures are not automatic

• can limit informity

remedies purpose

to return the plaintiff to their original position

damages

an amount of money awarded by the court for the defendant to be paid to the plaintiff