Studied by 2 peoplecivil law
an area of law that defines the rights and responsibilities of individuals, groups and organisations in society and regulates private disputes.
civil dispute
a dispute (disagreement) between two or more individuals (or groups in which one of the individuals (or groups) makes a legal claim against the other
burden of proof
refers to the onus or responsibility that one party has to prove the facts of the case. The burden of proof lies with the person or party bringing the case. In a civil dispute, this is the plaintiff. When a plaintiff sues a defendant, the plaintiff must show that the defendant was in the wrong.
standard of proof
the degree or extent to which a case must be proved in court. In civil law this is based on a balance of probabilities
balance of probabilities
the standard of proof in civil disputes. This requires the plaintiff to establish that it is more probable (likely) than not that their version of the facts is correct.
representative proceedings
a legal proceeding in which a group of people (7 or more 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) (can only happen in supreme court)
why might a plaintiff decide not to go to court?
-time-consuming
-cost
-publicity
-likelihood of success
-limitation of actions
-scope of liability
Factors considered when initiating civil claim:
Negotiation Options
In some circumstances, it may be possible for the plaintiff to try to negotiate a resolution of the dispute directly with the defendant without initiating a claim, or the parties may be able to agree on what the issues are during negotiation. Negotiation normally involves the parties interacting directly with each other to try to resolve the dispute.
benefits of negotiating
The cost, time and stress involved in commencing a formal civil action may be avoided.
The parties have more control over the outcome, as opposed to it being decided by a third party.
The parties may be more prepared to accept an outcome they have both contributed to.
when negotiation may not be an option
One or both parties do not want to resolve the dispute.
There have already been attempts to negotiate and they have all failed.
One of the parties has been harmed or threatened by the other party.
Costs
A party involved in a civil dispute may incur costs in resolving a civil dispute. The costs include fees for legal representation, disbursements (such as court fees, meditation fees and expert witness fees), and possible costs to be paid to the other party if the plaintiff is not successful.
limitation of actions
Plaintiff must bring their cases to court within a time limit (called a limitation period). Limitation of actions refers to the restrictions placed on a time within which a civil action can be commenced. For most types of claims, the plaintiff will need to commence an action within a certain number of months or years.
scope of liability
Before initiating a civil claim, a plaintiff needs to determine: who are the possible defendants, to what extent the defendant may be liable (responsible)
enforcement issues
The plaintiff will need to consider whether the defendant is able to pay and whether the defendant will pay.
Will the plaintiff be able to enforce the remedy they have been awarded?
Consumer Affairs Victoria
is a complaints body that assists people in resolving disputes. It is an agency of the Victorian Government. It uses conciliation as a dispute resolution method
purpose of CAV
aims to help people settle their disputes efficiently and constructively, without any cost and assist in resolving disputes without imposing a decision.
purposes of CAV (in more detail)
Reviews consumer legislation and industry codes and recommends changes to the Victorian government
Provides advice and education on rights and responsibilities to consumers, tenants, landlords and businesses
Registers and issues licences to businesses and occupations (such as estate agents, motor vehicle traders, second-hand dealers and pawnbrokers)
Conciliates disputes such as between consumers and traders, and landlords and tenants
Enforces compliance with consumer laws.
CAV is appropriate when
the dispute is within the jurisdiction
parties have tried to negotiate a settlement themselves
both parties are willing to attend and participate in conciliation ( a consumer/renter may seek out assistance from CAV with a complaint like those above, but CAV cannot compel a business or landlord to attend/participate in conciliation)
CAV is not appropriate when
the court system has already ruled on the matter
there is a better way to resolve the dispute
for example, water billing issues should be heard by the Energy and Water Ombudsman Victoria.
parties have not tried to negotiate a resolution
one part is unwilling to participate in conciliation (CAV cannot compel parties to attend and participate in conciliation)
CAV Jurisdiction
the supply of goods and services
residential tenancies
retirement villages
owners’ corporations
the likelihood of resolving a case through CAV depends on…
the behaviour of the complainant
delay in receiving the complaint
previous cases involving the other party
the other party has already made an offer to settle
alternatives to CAV
negotiation, court or tribunal
conciliating disputes
CAV uses conciliation to resolve some disputes, generally over the phone.
The conciliator will outline the rights and responsibilities of the parties and suggest what may constitute a reasonable outcome.
Participation is informal and voluntary and CAV cannot make a binding determination in a dispute.
However, CAV will inform the parties if access to civil remedies via the courts or VCAT is an option.
CAV will not conciliate all complaints, but will provide a conciliation service where..
the dispute is within their jurisdiction
there has 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.
strengths of CAV
the conciliation service is free, so it is accessible to all Victorians
CAV will ensure the process is fair and that both parties have the opportunity to present their case
CAV aims to resolve disputes in an informal and timely manner
the agreement reached is made by the parties themselves and so should be accepted by both parties
weaknesses of CAV
CAV cannot compel parties to participate in conciliation or to participate in a positive manner
CAV is generally not appropriate to assist in solving large or complex disputes
CAV lacks enforcement power. Any agreement reached in CAV can only be enforced through the courts
The Victorian Civil and Administrative Tribunal (VCAT)
VCAT is a tribunal. Tribunals are dispute resolution bodies that deal with a limited area of law and build up expertise in that area
the process of dispute resolution is less formal than the courts and is intended to be a cheaper and more efficient way of resolving disputes
Established in the Victorian Civil and Administrative Tribunal Act 1998 (Vic)
VCAT purposes
low-cost
accessible
efficient
independent
VCAT Structure
VCAT dispute resolution methods:
Mediation
mediation is a form of dispute resolution using an independent third party (mediator) to help the parties to reach a resolution
is not legally binding but terms of settlement can be made to make the decision legally binding
There is the option for fast-tracked mediation and hearing for goods and services valued between $500 and $10 000.
Compulsory Conferences
This is a confidential meeting between the parties involved with the presence of a third party to discuss ways to resolve their differences.
The VCAT conciliator can suggest forms of settlement and assist the parties in coming to a solution.
Final Hearing
A final hearing requires that both parties present their case and is heard before a VCAT member who will make a binding decision on the parties.
Appeals can be made based on a question of law rather than the decision that was determined.
VCAT had the power to hear on
retail and residential tenancies
purchases of goods and services
discrimination
guardianship
domestic building works
registration of professionals
VCAT cannot hear:
representative proceedings or
disputes between employers and employees
disputes between people involved in car accidents
disputes between neighbours
other or better ways to resolve disputes
Whether the parties can resolve the matter through negotiation or mediation.
The nature of the fees.
Whether the parties wish to have greater avenues of appeal.
Whether one or more of the parties are unlikely to take VCAT seriously.
Whether one or more parties would prefer the formalities of court.
Whether the matter is too complex for VCAT.
strengths of VCAT
normally cheaper than courts -lower application and hearing fees, fewer pre-trial procedures, no need for legal representation
the informal atmosphere can help parties feel comfortable
the flexibility of the process ensures fairness and equality for unrepresented parties
quicker than courts
decisions are binding
specialisation means high levels of expertise among members
weaknesses of VCAT
costs are rising as fees have risen and more parties are choosing to have legal representation
some lists such as Planning and Environment have long delays
Some people may prefer formality and the chance to be legally represented
Most VCAT members are solicitors, not judicial officers and some lack experience in dispute resolution
parties have to go to court to enforce most VCAT decision
Purposes of Civil Pre-trial procedures
Pre-trial procedures are set out in the relevant rules of the court:
Supreme Court civil pre-trial procedures are specified in the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
County Court civil pre-trial procedures are set out in the County Court Civil Procedure Rules 2008 (Vic).
Pleadings
Pleadings are documents exchanged by the parties prior to the trial, to clarify and define the issues. The main documents are:
statement of claim – a document filed by the plaintiff in a civil case to notify the defendant of the nature of the claim, the cause of the claim and the remedy sought.
defence – a document filed by the defendant which sets out a response to each of the claims contained in the plaintiff’s statement of claim; part of the pleadings stage of a civil dispute
In general, if claims and defences are not included in the parties’ pleadings, they cannot make new claims and raise new defences later in court, except with the leave (permission) of the court or with the consent of the other party
Purposes of Pleadings
achieve procedural fairness by ensuring the other side knows what the claim or the defence is about
avoids taking an opponent by surprise with facts that a party is relying on to support their claim or defence
give the court a written record of the case which allows the court to understand the issues so it can manage the trial and pre-trial procedures
set the limits to the dispute which enables other procedures such as discovery to be confined to the issues in dispute.
Discovery
The discovery phase is where parties exchange documents that they will rely on in their case. These might include agreements, medical records, invoices and receipts, emails and images.
The discovery of documents stage enables parties to get copies of documents that are relevant to the issues in dispute. Documents that are relevant to the claims and defences are listed in a formal document and the other side is entitled to inspect those documents.
Purposes of Discovery
disclose or reveal all relevant documents
reduce the element of surprise at trial
allows parties to determine the strength of the opposing case
allows each party to have access to all relevant materials and documents
assists in reading an out-of-court settlement
Exchange of Evidence
allows parties to prepare for the trial – reduces the risk of surprises
allows parties to assess the strength of the opposing party’s case – which may make them more inclined to negotiate a settlement
gives parties a chance to retain experts to rebut witnesses from the other side
gives defendants clarity on the size of the claim and therefore enhances their ability to consider an out-of-court settlement.
types of evidence
lay evidence
evidence on the facts that is provided by ordinary people
Expert evidence
people with particular areas of expertise can provide opinions on an issue in a case. Expert witnesses are obliged to act independently of any party
reasons for a court hierarchy:
administrative convenience
Allocation of cases according to their complexity thereby reducing the likelihood of delays.
This efficiency provides cost savings and promotes timely access for litigants.
Minor civil cases can be allocated to the lower courts where they can be heard relatively quickly.
More complex civil matters generally take longer to hear. These cases are heard in higher courts by judges with the expertise to deal with such matters.
The jurisdiction of each court is clearly established so people do not waste time, money and energy initiating an action in an inappropriate court.
Makes efficient use of the limited financial and physical resources available.
Appeals
Parties dissatisfied with a civil court decision can appeal to a higher court based on the following:
point of law
question of fact
the remedy awarded.
Without a court hierarchy, there would be no superior courts to review decisions of inferior courts.
Other reasons:
Precedent
Precedents are established in the superior courts and are binding on all courts lower in the hierarchy, thereby providing consistency in decisions. The doctrine of precedent cannot operate unless there is a hierarchy of courts.
Specialisation
A court hierarchy enables the workload of the courts to be spread, and for courts to develop expertise in hearing particular types of disputes.
A judge in the Family Court, for instance, can become fully conversant with matters relating to family law.
Responsibilities of Key Personnel
Judicial Powers of Case Management
The overarching purpose of judicial powers is to facilitate just, efficient, timely and cost-efficient resolution of the real issues in dispute.
Two of the main case management powers given to judges are the:
power to order mediation
power to give directions
Power to order Mediation
A judge or magistrate can make an order referring a civil proceeding, or a part of a civil proceeding, to mediation. This power is given to a judge by various sections of the Civil Procedure Act, including Section 66.
Parties can be referred to mediation at any time of the proceeding, including at a very early stage or even during trial (and sometimes even after trial, but before the decision has been handed down).
Parties may also attend more than one mediation if there is a prospect that further mediation may help settle the dispute.
The power to order parties to attend mediation can assist in the prompt and economical resolution of a dispute.
Power to give directions
The Civil Procedure Act states that the court may give any direction or make any order it considers appropriate at any stage of the proceeding.
Judges can therefore actively manage civil proceedings.
They can give directions before or during the trial.
Sanctions can be imposed on a party who fails to comply with the direction of the court.
Courts can give any direction for the conduct of the proceeding that it believes will assist in the effective, complete, prompt and economical determination of a dispute.
directions BEFORE trial
the judge has powers to give directions to the parties about:
the conduct of proceedings
timetables or timelines for any steps to be undertaken
participating in any method of dispute resolution, such as mediation
directions DURING trial
the types of directions that a court can give include directions about:
the order in which evidence is to be given, or who will go first in addressing the court
limiting the time to be taken by a trial
limiting the examination of witnesses, or not allowing cross-examination of particular witnesses
limiting the number of witnesses that a party may call
legislation regarding case management
The two main sources of those powers of case management are:
the rules of the court, being the Magistrates’ Court General Civil Procedure Rules 2010 (Vic), the County Court Civil Procedure Rules and the Supreme Court (General Civil Procedure) Rules
the Civil Procedure Act.
methods to resolve civil disputes
Mediation
Mediation is a cooperative method of resolving disputes.
This is widely used by courts, tribunals and other dispute resolution bodies.
This involves the parties discussing the issues involved, developing options, considering alternatives and trying to reach an agreement through negotiation.
how mediation is used
Conciliation
Conciliation is the process of dispute resolution involving the assistance of an independent third party, with the aim of enabling the parties to reach a decision between them.
The third party makes suggestions to encourage the parties to reach a mutually acceptable decision.
The conciliator generally has specialist knowledge of the topic in dispute.
how conciliation is used
disputes SUITABLE for mediation and conciliation
the relationship between the parties will continue
both parties are prepared to meet in a spirit of compromise
a defendant admits liability and the only issues is to determine the amount being paid
the parties want privacy and confidentiality
a proceeding has been issued in a court and the court has referred the parties to mediation or conciliation
disputes UNSUITABLE for mediation and conciliation
overwhelming emotions might interfere with the negotiation process
there is a history of broken promises
there is a history of violent and threatening behaviour
one or both parties are unwilling to try and reach a mutual agreement
there is an imbalance of power between the parties
strengths of mediation and conciliation
they are much less formal than a final hearing which means it is likely to be less intimidating
they are conducted in a safe and supportive environment, in a venue that is suitable for both parties
they save time rather than waiting for a final trial or hearing
they are generally cheaper than having the matter litigated
they are private and confidential
there is flexibility in the steps
weaknesses of mediation and conciliation
the decision may not be enforceable, depending on the terms of settlement
one party may compromise too much
one party may be more manipulative or stronger, so the other party may feel intimidated (power imbalance)
one party may refuse to attend
there is no ability to appeal the agreement or go back on what was agreed, particularly if terms of settlement have been signed
arbitration
Arbitration is a method of resolving disputes without a formal court process.
An independent arbitrator will listen to both sides and make a decision that is binding.
the arbitrator…
is not bound by rules of evidence
must ensure that the parties are treated equally and given equal opportunity to present their case
is not required to conduct the proceedings in a formal manner.
disputes SUITABLE for arbitration
disputes in which the parties have agreed to arbitrate the dispute, or the claim is less than $10 000 and has been issued in the Magistrates’ Court
disputes in which the parties want the benefits of a binding and enforceable award made by an independent third party
disputes in which the parties want evidence to be presented to a third party, and some rules of evidence to apply
disputes in which the parties want to avoid the publicity of a courtroom and wish to have their matter resolved confidentially and in private.
disputes UNSUITABLE for arbitration
disputes where the parties have not agreed to arbitrate the dispute and do not want arbitration as a dispute resolution method
disputes where the parties want greater control over the dispute resolution process and outcome
disputes where the parties wish to have their ‘day in court’ and would rather not have the matter conducted in private
disputes where the parties are more comfortable with formal rules of evidence and procedure, and would rather a court conduct the process.
how arbitration is used
strengths of arbitration
the decision is binding and fully enforceable through the courts
the arbitration is normally held in private and will be confidential, which can be beneficial for parties wishing to avoid the publicity of a trial
the arbitrator is generally an expert on the subject matter
there can be a more timely resolution of the dispute as there is flexibility in the processes
weaknesses of arbitration
arbitrations can be formal if the parties have agreed on a formal method of arbitration, adding to the stress, time and costs
the parties have no control over the outcome, which will be imposed on them by the arbitrator
they can be costly and take a long time depending on the nature of the dispute and the way the parties have decided to resolve it
the right to appeal is limited
remedy
a remedy is the way a court will recognise a plaintiff’s right. It is what the plaintiff will seek, and what a court or tribunals may award, to resolve the dispute. Generally, a plaintiff will set out in the statement of claim the remedy sought.
damages
Damages is an amount of money to be paid by the defendant to the plaintiff, generally (though not always) to compensate the plaintiff for loss suffered. ‘Loss’ may be financial, physical or mental.
most common remedy sought
three categories of compensatory damages
specific damages
can be individually listed and quantified – for example, claims supported by bills, receipts, invoices or precise financial calculations (such as loss of wages)
general damages
a general, non-quantifiable estimate for things such as pain and suffering or loss of enjoyment of specified items. these need to be assessed by the court.
aggravated damages
less common, plaintiffs can be awarded aggravated damages if the defendant’s behaviour caused the plaintiff particular distress through humiliation, insult or malicious behaviour.
restrictions
Some types of claims and losses have restrictions imposed on them.
The Wrongs Act 1958 limits claims for non-economic loss in relation to personal injury to a maximum of around $600,000.
Damages for non-economic loss in defamation cases are limited to $250,000.
injunctions
An injunction is a court order directing someone to either stop doing or to do a certain act.
It aims to rectify or fix a situation caused by the wrongdoing of the defendant.
injunctions can be:
restrictive/prohibitive – orders a person to refrain from doing an action. such as building or pulling down a structure or publishing something.
mandatory - ordering a person to do a particular act, such as performing their part of a contract they have breached
these can be:
interlocutory – temporary injunction awarded with urgency to prevent or order an imminent action
final - a permanent order
main/general purpose of remedies
The main purpose of remedies: Restore to the plaintiff, as much as possible, to the position they were in before the wrong occurred.
Main aim: Provide the plaintiff with the means to go back to how they were before they were wronged and before they suffered loss.
purposes of damages
to compensate the plaintiff for losses they have suffered such as payment of medical expenses
for the plaintiff to make a point about being legally right and show their rights have been infringed
to show contempt for the claim that is made, while admitting the plaintiff’s right to make the claim
to punish the defendant for an extreme infringement of rights
purposes of injunctions
to rectify a situation caused by the person found to be in the wrong
to stop a person from undertaking an action that is or will cause a wrongdoing
to order someone to undertake a particular act to stop the breach or potential breach of a right
to preserve the position of the parties until the final determination of the matter
Factors that affect the ability of the Civil Justice System to achieve the Principles of Justice
Cost Factors
Cost factors can reduce or restrict the ability of the civil justice system to achieve justice.
This is because of the costs associated with legal representation in a civil dispute. In reality, not everyone can afford effective legal representation. The legal system is reliant on having effective legal representation which will benefit each party. That way, a party which effective legal representation will have maximum opportunity to win a civil case.
The amount of money needed often depends on the nature of the dispute. E.g. making a complaint through CAV is often free, whereas a complex claim issued in the Supreme Court will often require a large amount of money to be paid.
Time Factors
The civil justice system is often seen as being slow.
Court Delays and VCAT: The time it takes for VCAT and the courts to resolve civil disputes depends on the complexity of the case. At VCAT in the 2018 – 2019 financial year, the time it took to resolve disputes ranged on average from three weeks to 26 weeks. Court and VCAT delays have several causes: backlogs, pre-trial procedures, evidence gathering and preparation.
Use of case management powers: Giving the courts greater control over cases ensures that disputes are resolved in a more timely and cost-effective manner. For example, a judge may order the two parties to enter mediation to speed up the process or restrict the number of witnesses, as well as cancel pleadings or discovery of documents.
Accessibility Factors
Having good access to dispute resolution bodies is a good way to achieve justice.
Barriers to communication – in a legal context, barriers to communication can prevent a person from understanding their legal rights, reduce a person’s understanding of the methods and bodies used to resolve disputes, and reduce their overall understanding of the processes.
Services in rural and remote areas – services in remote and rural areas are insufficient, therefore making it more difficult for people to access services. The courts and VCAT have tried to ensure that they sit in locations that are accessible to most Victorians.
Recent Reform: technological improvements in the legal system (2019)
The use of technology within The civil Justice System has increased dramatically to enable greater access to justice and resolve disputes between parties. Some of this technology was driven by the courts such as web streaming trials and hearings) while other technology has been driven by private parties seeking to use technology as a method of resolving disputes such as mediation (only service to resolve disputes)
How does this impact the principles of justice?
fairness
strength: The courts and VCAT can make directions or orders to ensure technology allowed for procedural fairness rather than prohibit it. the technology if used will be available to all parties and the courts are likely to ensure that all parties are able to use it.
weakness:
disadvantaged /vulnerable may not be able to access technology therefore it may not be fair
people who don't know how to use technology
equality
strength: The changes try to allow for equality by giving more people access to courts and tribunals. Some people may have been disadvantaged because of where they lived or their inability to travel. Their disadvantages could potentially be removed.
weakness: However, technology may not necessarily help vulnerable people who do not have access to technology, and there may be some people (such as the elderly or disabled) that may struggle to use the technology.
access
strength: The changes enable greater access for people who may not otherwise have been able to access the court or tribunal system. This is particularly so for people in rural or remote areas, who are unable to travel to courtrooms/tribunals.
Weakness: The improvements are not widespread more needs to be done to allow for greater access.
Recommended Reform: Increased use of case management
Case management has improved efficiency in the way cases are managed in the courts. The supreme court has recognized that case management can improve the flow of cases and saves costs for the parties as well as the time and resources spent on the trials.
Case management does not only refer to the judge's powers - The Supreme Court uses a triage system - this is where case management work can be performed by registry staff, associate judges, and judicial registrars.
The Victorian law reform Commission has also recommended that the supreme court should have greater powers in order to have a greater role in case management for representative proceedings.
How does this impact the principles of justice?
fairness
The use of case management powers allows for fairness because its involves a greater use of the judge in managing the dispute, and allows for the judge more oversight into the progress of care.
equality
strength: the changes try to allow for equality by treating people equally in the process and by ensuring they are subjected to the same process
weakness: however this doesn’t mean they are treated the same, there are still some inequality issues
access
the use of case management powers allows for greater access to the courts as it can avoid the need for a trial, and it allows access to judicial staff such as judicial mediators. It can also mean that people do not have to go all the way to trial to get the outcome they were seeking
The use of case management powers can depend on which judge a party gets, and which court may be in. Some judges are better than others at case management.
Note
Flashcard