legal studies u3aos2 flashcards

civil 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:


1. 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.

2. Costs

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* 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.**

3. 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.

4. 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)

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5. enforcement issues

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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)

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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)**

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VCAT purposes

* low-cost
* accessible
* efficient
* independent

VCAT Structure

VCAT dispute resolution methods:


1. 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.

2. 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.

3. Final Hearing

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* 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

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* 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

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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).

1. 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.

2. 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:


1. 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.

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2. 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:


3. 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.

4. 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.

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Responsibilities of Key Personnel

Judicial Powers of Case Management

* The overarching purpose of judicial powers is to facilitate j**ust, 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

1. 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.

2. 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

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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


1. 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 issue**s involved, **developing options,** **considering alternatives and trying to reach an agreement through negotiatio**n.

how mediation is used

2. 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

3. 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


1. 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)

2. 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.

3. 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.

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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.

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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

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**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

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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


1. 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.

2. 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.

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* 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.

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3. 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.

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* 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)

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How does this impact the principles of justice?


1. 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. 

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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

2. 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. 

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3. 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. 

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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?


1. 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.

2. 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

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weakness: however this doesn’t mean they are treated the same, there are still some inequality issues

3. 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.