Studied by 2 people
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.
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.
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.
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)
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)
the supply of goods and services
residential tenancies
retirement villages
owners’ corporations
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
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.
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.
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
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
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)
low-cost
accessible
efficient
independent
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.
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.
retail and residential tenancies
purchases of goods and services
discrimination
guardianship
domestic building works
registration of professionals
representative proceedings or
disputes between employers and employees
disputes between people involved in car accidents
disputes between neighbours
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.
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
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
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
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.
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.
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
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.
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
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.
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.
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
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.
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.
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
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
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.
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.
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
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
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
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 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.
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 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 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.
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
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
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
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.
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.
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
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.
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
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
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.
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
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.
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.
