legal Unit 3 aos2 sac b

Solicitor

lawyer who advises clients about legal matters, prepares legal documentation for trial, communicates with the other party’s legal representation, researches the relevant laws, and when required engages the services of a barrister and briefs them to represent a client in court.

Legal practitioner

a lawyer with an Australian legal practising certificate.

Barrister

a self-employed lawyer who regularly appears in court and is responsible for representing a party in a trial by making legal arguments, questioning witnesses, and summarising the case to the judge and/or jury.

the need for legal practitioners in a civil dispute

• Advise clients on their legal rights

• Present evidence and cross-examine witnesses

• Provide objectivity

• Ensure documents are properly drafted and handled

• Provide support

evaluating legal practitioners ability to achieve fairness

• The duty of both parties’ legal representatives to present all relevant evidence and legal principles to the court helps ensure the whole truth emerges and a just outcome is produced, promoting fairness.

• When only one party has legal representation it may lead to an unfair outcome, as each party cannot prepare and present a case of the same quality.

evaluating legal practitioners ability to achieve equality

• All parties in a civil proceeding have the same ability to choose their own legal representation.

• Some financially-disadvantaged parties may be unable to afford good quality legal representation, or any at all. This may result in cases not being equally prepared and presented and can create power imbalances between parties.

evaluating legal practitioners ability to achieve access

• Legal practitioners help parties to prepare and present their case, increasing access to justice as a party’s understanding of the law and legal proceedings is increased.

• The costs of legal practitioners make it less accessible for many individuals.

class action

a legal proceeding brought by one or numerous plaintiffs acting for themselves as well as on behalf of a wider group of people who have a claim with similar facts.

• eg. workplace accidents

criteria for a class action

1. Seven or more people are claiming against the same defendant (s).

2. The claim must be in respect of, or arise from, the same, similar, or related circumstances.

3. The claim must give rise to a common issue of law or fact, meaning the same issues are determined by the court for all claims.

if class action fails

• the lead plaintiff is solely responsible for the costs of the proceedings and any adverse costs orders.

• Generally, group members are under no obligation to contribute to proceeding costs unless, or until, a successful outcome is known.

if class action is successful

• If the class action succeeds, the class members will share the costs of bringing the proceedings. The costs of winning a class action are shared among the class members.

• The type and amount of costs depend on how the risks of losing have been covered during proceedings.

evaluating class actions ability to achieve the principle of fairness

• Class actions may provide a remedy for those who have suffered a loss that would be too small to recover individually in the courts, enabling these individuals to participate in the justice system, thus promoting fairness.

• Fairness can depend on the settlement reached. If the amount of compensation received is less than anticipated, the group members may not be compensated sufficiently.

evaluating class actions ability to achieve the principle of equality

• If litigation funding is obtained, this may allow a class action to commence as the costs are covered, ensuring group members are not disadvantaged on the basis of their socioeconomic status.

• If litigation funding is not obtained, a lead plaintiff may be unwilling or unable to bear the costs associated with bringing a class action, disadvantaging them on the basis of their socioeconomic status

evaluating class actions ability to achieve the principle of access

• Individuals who cannot afford to initiate a civil claim by themselves can still access the justice system by joining a class action.

• Class actions can take time to be heard, sometimes several years, thus delaying access to a potential remedy.

Consumer Affairs Victoria (CAV) 

the Victorian civil complaints body that provides information and helps resolve disputes to create a fair and competitive marketplace for consumers and businesses. (GOVERNMENT)

• deed of settlement

purpose of CAV

• Creating a fair and competitive marketplace

• Providing information and advice

• Providing accessible dispute resolution services

• Providing an avenue to resolve minor disputes efficiently and with minimal costs

circumstance where CAV is appropriate

• The dispute falls within CAV’s jurisdiction.

• Parties have attempted to resolve the dispute themselves.

circumstances where CAV is not appropriate

• The dispute does not fall under CAV’s jurisdiction.

• Parties have not attempted to resolve the dispute by themselves.

Evaluating CAV’s ability to achieve the principle of fairness

• CAV provides a quick method of dispute resolution that allows parties to reach a just outcome without experiencing the stress and delay associated with a trial, ensuring impartial processes, thereby achieving fairness.

• CAV cannot impose a legally binding resolution, meaning there is a risk of non-compliance with agreements reached during conciliation, limiting fairness.

Evaluating CAV’s ability to achieve the principle of equality

• CAV uses a conciliator to facilitate discussions between parties, which can ensure both parties have the same opportunity to present their perspective and reach a mutually acceptable resolution, achieving equality

• CAV has limited jurisdiction and is only available as a means of dispute resolution for a small proportion of civil matters. Thus, not all parties to a civil dispute have the same ability to obtain CAV’s services.

Evaluating CAV’s ability to achieve the principle of access

• CAV provides free services to all members of the Victorian public and is therefore an accessible method of dispute resolution.

• CAV has limited jurisdiction, meaning many disputes cannot be resolved using CAV’s conciliation, limiting access to justice.

Victorian and Administrative Tribunal (VCAT)

a dispute resolution body that has the power to hear and determine certain types of civil and administrative disputes. (INDEPENDENT)

Purpose of VCAT

• To provide low-cost dispute resolution services

• To provide efficient dispute resolution services

• To provide accessible dispute resolution services

circumstances where VCAT is appropriate

• The dispute falls within VCAT’s jurisdiction

• Parties prefer an informal dispute resolution process.

circumstances where VCAT is not appropriate

• The case does not fall within VCAT’s jurisdiction.

• One or both parties are unwilling to negotiate to try and resolve their dispute, or parties have tried and failed to negotiate their dispute.

Evaluating VCAT’s ability to achieve the principle of fairness

• Outcomes at VCAT hearings are legally binding, promoting fairness as it ensures the parties abide by VCAT’s decisions.

• There is a limited right to appeal VCAT decisions, which may be seen as unfair to parties dissatisfied with the outcome of their case.

Evaluating VCAT’s ability to achieve the principle of equality

• Both sides have equal opportunity to present their case during mediation, a compulsory conference, and a final hearing.

• VCAT has limited jurisdiction and cannot resolve large and complex disputes, such as class actions or defamation. Thus, it is not equally available for all civil disputes.

Evaluating VCAT’s ability to achieve the principle of access

• VCAT provides low-cost dispute resolution services, allowing more people to be able to afford to bring their civil claims to VCAT and engage with the justice system, which promotes access to justice.

• VCAT can only resolve matters within its jurisdiction, meaning some civil matters must proceed to the courts, reducing access to justice for some, such as if they cannot afford to take the matter to court.mnmgnn

judicial determination

a method of dispute resolution whereby a judge or magistrate will make a legally binding decision after the parties present their cases at a trial or hearing

purpose of the courts

• Provide access to an independent, experienced, and knowledgeable judicial officer

• Enforce procedural fairness

• Provide access to a trial by jury

• Provide a dispute resolution avenue for class actions

• Provide a legally binding outcome

• Order a remedy

• Provide an opportunity to appeal the outcome of a case

• Set precedent for future cases

circumstances where the courts are appropriate

• The claim falls within the courts’ jurisdiction and does not fall under VCAT’s exclusive jurisdiction.

• If the parties prefer to have an independent and experienced judge or magistrate impose a legally binding decision.

circumstances where the courts are not appropriate

• If the parties want to negotiate and resolve the dispute themselves.

• If the parties do not want to deal with the formalities and complexities of a court proceeding.

Evaluating the courts’ ability to achieve the principle of fairness

• Judges are independent, impartial, and knowledgeable decision-makers, meaning they can objectively listen to the evidence presented and produce a just outcome.

• Court trials are often time consuming and can face delays due to their complex processes. This can prolong the achievement of justice and increase the risk of an unfair trial.

Evaluating the courts’ ability to achieve the principle of equality

• The court procedures and laws apply equally to both parties. The plaintiff and defendant must follow the same rules, laws, and procedures.

• • If only one party has legal representation, the self-represented party may not be on equal footing, due to their inexperience and lack of legal knowledge. Judges have a responsibility to assist self-represented parties but they can only explain the legal processes and cannot provide any further legal advice.

Evaluating the courts’ ability to achieve the principle of access

• Court hearings and trials enable parties to access a binding resolution that is legally enforceable.

• The high cost of court proceedings and legal representation can make the courts inaccessible to parties.

Types of legal costs incurred during a civil dispute

• Barristers’ fees

• Solicitors’ fees

• Expert witness fees

• Court fees

• Fees for filing court documents

• Use of a jury

• Appeals

Evaluating the ability of the civil justice system to achieve the principle of fairness

• Court fees and VCAT fees are tiered and the fees individuals must pay are in accordance with distinct categories, including corporate, standard, and concession or healthcare

• The high costs associated with defending a civil claim may encourage some defendants to settle rather than challenge a claim, leading to an unfair outcome

Evaluating the ability of the civil justice system to achieve the principle of equality

• Parties that are eligible for VLA can acquire legal representation, reducing the likelihood of unequal footing in the courtroom.

• Parties do not equally have the opportunity to have their civil disputes resolved, due to the costs associated with pursuing a civil claim

Evaluating the ability of the civil justice system to achieve the principle of access

• Judicial powers of case management that allow judges to order parties to attend mediation can reduce legal costs as the matter can be promptly resolved, enabling the civil justice system to remain accessible to more individuals.

• The high costs associated with civil proceedings, such as court and legal representation expenses, can discourage individuals from initiating civil cases, hindering access to justice.

Types of delays incurred during a civil dispute

• Court backlogs

• VCAT delays

• Gathering evidence and preparation for a trial

• Trial procedures

Evaluating the ability of the civil justice system to achieve the principle of fairness in relation to time

• Case management powers can reduce the time taken to resolve a dispute, and encourage procedural fairness, by directing parties to abide by certain rules and procedures that support a swift resolution of the case.

• Delays can negatively impact the credibility of evidence, which inadvertently increases the risk of an unfair outcome.

Evaluating the ability of the civil justice system to achieve the principle of equality in relation to time

• Orders and directions given by a dispute resolution body to reduce delays apply equally to both parties and the directions given attempt to ensure equality is achieved between the parties.

• The use of case management powers can differ between judges, creating the potential for unequal treatment of parties in the courts. Whilst proactive judges can encourage equality in cases, inequalities may be heightened in cases where case management powers are not used to their full extent

Evaluating the ability of the civil justice system to achieve the principle of access in relation to time

• The range of dispute resolution bodies available to parties can ensure justice is accessible and delivered in an efficient manner.

• The delays in the justice system may discourage a prospective plaintiff from initiating legal action in the first place, limiting access to a remedy.

remedy

a court order that aims to enforce a right by preventing a civil breach, or correct a civil breach and return the plaintiff to the position they were in prior to the breach by the defendant.

damages

a type of remedy in which monetary compensation is awarded to the plaintiff in a civil dispute to compensate their loss caused by a civil breach.

types of compensatory damages

• Specific damages (have a precise value and are easily quantifiable)

• general damages (no precise value)

• aggravated damages (further compensate the plaintiff for humiliation suffered)

strengths of damages

Compensatory damages are intended to compensate the plaintiff for their actual losses, such as medical bills, lost income, and property damage, with the purpose of making the plaintiff ‘whole’ again after their loss. Specific damages can be quite effective at achieving this.

limitations of damages

Damages, despite providing monetary compensation, may not fully restore non-monetary losses, such as pain and suffering or emotional distress.

the ability of damages to deter others from civil breaches

• In some cases, the defendant’s actions may have been intentional or reckless, and damages can be awarded to deter similar behaviour in the future. This aspect of damages upholds the plaintiff’s right to be protected from future harm by holding the defendant accountable for their actions.

• Whilst damages can be awarded to deter future harmful conduct, there is no guarantee that this will be effective if others perceive the potential risk of wrongful actions to be outweighed by the benefits of completing that action.

injuctions

 a type of remedy requiring a party to either perform a specific action or prohibiting a party from taking a particular action.

types of injunctions

• mandatory injunction (forces party to do something)

• restrictive injunction (prevents party from doing something)

• interlocutory injunction (only lasts for short time)

• final injunction (permanent)

injunction strengths

Injunctions aim to return the plaintiff to their original position by forcing the defendant to take action to prevent further harm to the plaintiff.

injunction limitations

Interlocutory injunctions are merely temporary and when the time period has been completed, the defendant is able to continue their disruptive behaviour.

The ability of injunctions to uphold the plaintiff’s rights

• By granting an injunction, the legal system demonstrates its commitment to protecting and upholding the rights of individuals in civil matters, providing a powerful tool for plaintiffs to seek justice and remedy breaches of their rights

• Initiating a civil claim comes with high costs, meaning that people of high socioeconomic status can protect their civil rights more readily. In contrast, someone of medium or low socioeconomic status may not have the resources to seek out a civil remedy.

purposes of injunctions

• Return the plaintiff to their original position

• Uphold the plaintiffs’ rights

• Change the behaviour of the defendant

appellate vs non appellate

Appellate judges review decisions made by lower courts, focusing on legal errors, while non-appellate (trial) judges oversee initial hearings, gather evidence, and establish the facts of a case. [1, 2]