Legal Studies UNIT 3 AOS 2
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57 Terms
Burden of proof
The responsibility to provide sufficient evidence by the person providing the allegations
Plaintiff makes the claim against the defendant they have it
Defendant issues a counterclaim they have it
Standard of proof
Balance of probability, where the plaintiff must be more likely in the right and the defendant is more likely in the wrong
Costs
Before initiating a claim, the plaintiff should consider:
How much it will cost to have the dispute resolved whether they have the money to pay for those costs
Whether the damages that may be awarded outweigh the costs involved in making the claim
Whether they are eligible for legal aid or free legal assistance through other means
Whether they have the money to pay for the costs of the defendant if an adverse costs order is made
What the risks are if they are ordered to pay the other side’s costs and cannot afford to do so.
Legal Fees - Cost of employing a lawyer
Disbursement Fees - Fees that are extra and are out-of-pocket expenses or fees (other than legal fees) incurred as part of a legal case. They include fees paid to expert witnesses, court fees, and other third-party costs such as photocopying costs
Adverse Costs Order - Fees incurred when you lose the civil case, where you must pay the legal costs of the other party
Limitations of actions
The restriction placed on the time within which a civil action can be commenced.
There are different limitation periods for different claims.
Plaintiffs will need to commence the proceeding within the time limit, otherwise they may be barred (prevented) from seeking a remedy.
In some situations, the limitation period can be extended.
Reasons for the limitation of actions:
Defendant does not have to face action after a significant period of time
Evidence is not lost and people can still remember the facts
Disputes can be resolved as quickly as possible
E.g. Defamation is 12 months
Enforcement issues
Before initiating a claim, the plaintiff needs to consider whether the defendant is able to pay, and if so, whether the defendant will pay.
Enforcement issues that the plaintiff needs to consider are:
Whether the defendant has assets or money to pay anything to the plaintiff (including whether they are bankrupt)
If the defendant is in jail, overseas or uncontactable.
Even if the defendant is able to pay, the plaintiff may have to issue enforcement proceedings to force a defendant to comply with a remedy.
Mediation/Conciliation/Arbitration
Mediation | Conciliation | Arbitration | |
Description | A method of dispute resolution that uses an independent third party (the mediator) to help the disputing parties reach a resolution. | A method of dispute resolution that uses an independent third party (i.e. a conciliator) to help the disputing parties reach a resolution. | A method of dispute resolution in which an independent person (an arbitrator) is appointed to listen to both sides of a dispute and to make a decision that is legally binding on the parties. |
Name of the third party | Mediator | Conciliator | Arbitrator |
Role of the third party | Facilitates discussion between parties | Facilitates the discussion and can make suggestions on solutions | Hears both parties’ arguments |
Who makes the decision? | Parties | Parties | Arbitrator |
Is it legally binding? | No | No | Yes |
Is it enforceable? | No | No | Yes |
Is it available for all disputes? | Civil | Civil | Civil (Matters under $10,000)
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Mediation and Conciliation Appropriateness
Appropriate:
Relationships between the parties will continue (e.g. the dispute is between neighbours or family members, or between employer and employee). In this situation, mediation and conciliation may help to preserve the relationship
One or both of the parties want the dispute to be resolved privately or confidentially (in which case mediation and conciliation may be appropriate), or whether they want a public record of what occurred or the plaintiff wants to ‘make a point’ about the defendant’s conduct
Not appropriate (appropriate if the opposite occurs):
Parties are willing to meet in a spirit of compromise and stick to any agreement reached. If so, then mediation and conciliation may be more appropriate. If there is a history of broken promises or the parties do not show a willingness to compromise, they may be less appropriate
History of violent and threatening behaviour. In this case, it may be inappropriate for the parties to come together in such a setting resolution is made by the parties, voluntarily – it may be on the advice of the conciliator resolution may be enforceable if terms of settlement entered into used primarily by CAV and VCAT
Mediation or conciliation is to be held. If it is held too early, when the parties do not yet know the details of the claim or how much is in dispute, then it may fail to resolve. It may also be held too late, when the parties have already spent so much money on the claim that they feel they must go to trial or hearing on the issues
Strengths and Weaknesses of Mediation/Conciliation
Strengths:
Independent, impartial third party
Less formal thus, less intimidating, costs less, and takes less time especially for those who do not have experience in civil cases
Normally conducted in private, beneficial for parties who want to keep the settlement confidential
Weaknesses:
Final outcome/decision is not legally binding or enforceable (Makes it hard for the plaintiff to get their remedy, thus might have to continue their case)
One party may be more manipulative/stronger or one may compromise too much, causing the other party to feel intimidated as they are not in court
To be heard it must be agreed upon by both parties
Arbitration Appropriateness
Parties have agreed to arbitrate the dispute, or the claim is less than $10 000 and has been issued in the Magistrates’ Court. If so, then arbitration is appropriate. If not, then the parties may not be willing to arbitrate the dispute
Parties want the benefit of a binding and enforceable decision made by an independent third party, or whether they would prefer to have control over the outcome and decide on that outcome themselves (in which case, a method such as mediation may be more appropriate)
Parties wish to have the dispute considered by a third party and want evidence to be presented to that third party as part of the dispute so that it can be finally decided on
Strengths and Weaknesses of Arbitration
Strengths:
Decision is binding and is fully enforceable
Normally held in private and is confidential, which can be beneficial for parties wishing to avoid publicity of a trial
Arbitrator is generally an expert on the subject matter and is required to act impartially when making binding decisions
Weaknesses:
Parties have no control over the outcome, which would be imposed on them by the arbitrator, thus parties may ‘lose’ or ‘win’ without feeling they have
To be heard it must be agreed upon by both parties and be below $10,000 (otherwise it is heard in the Magistrates’ Court)
Can be formal if parties agree, increasing stress, time and cost
Final Hearing (VCAT)
If a matter doesn’t settle, a final formal hearing will see a VCAT member make a legally binding decision
E.g. Planning disputes, good and services disputes, building and construction
Low cost and quick method of resolving disputes in comparison with courts
Does NOT deal with parties in different states
Administrative Convenience
Cases can be distributed according to their seriousness and complexity
Less serious and less complex cases are heard in lower courts, while more serious and more complex cases are heard in the higher courts.
Personnel and procedures
Appeals
Someone who is dissatisfied with a decision in a civil trial can, if there are grounds for appeal, take the matter to a higher court.
Grounds for appeal in a civil case can include:
a point of law (also known as a question of law) – where the law has not been correctly applied; for example, the court heard inadmissible evidence, or applied the wrong legal test in the case
a question of fact – whether the facts of the case had been applied appropriately to reach the decision
the remedy awarded – the way in which a court enforced a right, or the order that was made by the lower court
Original and Appellate Jurisdiction
Original Jurisdiction | Appellate Jurisdiction | |
Magistrates’ Court |
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County Court |
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Supreme Court (Trial Division) |
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Supreme Court (Court of Appeal) |
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Strengths and Weaknesses of the Court Hierarchy
Strengths:
Allows courts to adopt different processes and use their resources in a way that ensures cases can be resolved efficiently. for example, given the volume of smaller cases heard in the Magistrates’ Court, there are more magistrates, and more court venues
Allows appeals to be made by both parties if there is an error in the original decision.
Weaknesses:
Different courts may be confusing for people who do not understand the civil justice system. This can be particularly so where there are overlapping jurisdictions (e.g. County Court and Supreme Court) or for self-represented parties.
No automatic right to appeal, and appeal processes are difficult to understand without a lawyer, particularly as there is generally the need to establish grounds for appeal.
Roles of Judges and Magistrates
Act impartially
Case management (before trial or hearing)
Case management (during trial or hearing)
Determine liability and the remedy
Decide on costs
Case management
A method used by courts and tribunals to control the progress of legal cases more effectively and efficiently. Generally involving the person presiding over the case (e.g. the judge) making orders and directions in the proceeding (e.g. an order that the parties attend mediation)
Before trial or hearing:
Judges and magistrates actively manage civil cases before trial to ensure a just, timely, and cost-effective resolution, using powers granted by Victorian legislation.
They can give directions (e.g. ordering parties to file documents or attend mediation), which help narrow the issues in dispute and prepare the case for trial.
Case management tools include discovery and mediation, with penalties possible for failing to follow court directions.
During trial or hearing:
They control how the trial is conducted, including the order of proceedings, time limits, number of witnesses, and what evidence is allowed.
They make rulings during the trial, such as deciding on points of law or clarifying witness evidence.
They assist self-represented parties by ensuring they understand court processes and their legal rights and obligations
Limit the time for the hearing or trial
Limit the examination of witnesses, or not allowing cross-examination of particular witnesses
Limit the number of witnesses that a party may call
Limit the length or duration of the parties’ submissions to the court
Limit the number of documents that a party may tender into evidence
The judge or magistrate also has power to ask a witness some questions to clarify their evidence, and hand down rulings throughout the trial where necessary. For example, there may be a need in the middle of trial or hearing to decide a point of law, such as whether a witness may give hearsay evidence
Criminal and Civil Roles of Judges/Magistrates’ (Similarities + Differences)
Similarities:
A judge or magistrate in a criminal case and in a civil case is expected to act impartially and without bias, making decisions during the case based on facts.
Both judges/magistrates will have the role of assisting a self-represented party if the accused or one of the parties in the civil dispute is not represented by a lawyer.
Both criminal and civil judges and magistrates have the role of instructing a jury and giving directions to the jury, if there is one in a civil case. This is not applicable to magistrates as there is no jury in the Magistrates’ Court.
Differences:
A judge in a civil trial may have to decide on liability if there is no jury, and a magistrate in a civil case will decide on liability if the case is heard in the Magistrates’ Court. However, a judge in a criminal trial in the higher courts will not decide guilt; this is left to the jury.
A judge in a civil trial may have to decide on a remedy (and a magistrate will decide on a remedy if a party proves their claim), whereas in a criminal case a judge or magistrate decides the sanction if the accused is guilty of committing a crime.
Can order both parties to undertake procedures such as mediation and discovery. While a judge or magistrate in a criminal case also has case management powers, they do not extend to ordering procedures such as these, which are civil dispute procedures.
Strengths and Weaknesses of Judges and Magistrates
Strengths:
Act as an impartial umpire. They oversee the trial process, but they do not overly interfere in a trial, nor do they ‘enter the arena’. Therefore, no one party is advantaged or disadvantaged because the judge or magistrate ‘takes sides’.
Judges and magistrates are experts in law, legal processes and cases, and can use this expertise in managing the case and in making a decision on liability.
Manage the case both before and during the trial. They have significant case management powers to ensure that disputes are resolved in a just, efficient, timely and cost-effective manner. For example, they can limit discovery, or limit the time people have to take to make submissions at trial.
Weaknesses:
Are human, and there are some risks that they may have actual or apprehended bias that impacts their decision-making, such as when they are fatigued.
Cultural and general diversity of judges and magistrates has previously been criticised by some, which may increase any distrust felt by some people in the community about whether the outcome will reflect a ‘just’ outcome.
The extent to which a case is managed by a judge or magistrate may depend on the case and who is overseeing it. Some cases may be less actively managed than others, or there may be situations where the parties continually fail to comply with pre-trial steps but no consequences arise, which means there will be a delay in the case being heard.
Roles of the Jury
Be objective
Listen to and remember evidence
Understand directions and summing up
Decide on liability and damages (for some cases)
Criminal and Civil Roles of Juries (Similarities + Differences)
Similarities:
Both juries are expected to be impartial when making their decision. They decide based on facts and evidence, not on preconceived ideas or prejudices.
Both juries must listen to and concentrate on the evidence. They can ask clarifying questions of the judge and can take notes if it helps them.
Both juries have the role of ensuring they comply with their obligations, which include ensuring they do not undertake any outside research or read anything about the case.
Differences:
The jury in a criminal trial will decide on guilt, whereas the jury in a civil trial will decide on liability.
The standard of proof is different; the jury needs to decide on guilt in a criminal trial beyond reasonable doubt, whereas in a civil trial it is a lesser standard and is on the balance of probabilities.
A jury in a criminal trial will never decide the sanction, but in some civil trials a jury may determine the damages to be awarded to a successful plaintiff.
Be careful
Outline two differences between a criminal and civil jury
Can refer to 12 jurors = Criminal while 6 jurors = Civil
Outline two differences between the role of the criminal and civil jury
Cannot refer to this
Strengths and Weaknesses of Juries
Strengths:
Jury members are randomly picked, have no connection to the parties and make a decision based on facts, not on biases or on their own inquiries. (Cross section)
Juries can use values they believe in regarding decision making, not having to directly apply the law (Peers)
Allows members of the jury to participate in the civil justice system processes and ensures that justice is ‘seen to be done’. This will therefore also enable them to become more informed about our civil justice system.
Collective decision-making can reduce the possibility of bias, as it means any personal, subconscious biases can be identified during the deliberation process and addressed by the group.
Weaknesses:
Jury members may have unconscious biases or prejudices, and as they do not give reasons for their decisions, there is no way of knowing whether a bias played a role in their decision-making.
Civil trials can be complex, including directions given to the jury and particular types of civil disputes such as defamation claims. It is not clear whether the laypersons on a jury will be able to understand the legal principles involved and the evidence that is given to then make a decision based on the facts.
Jury trials may result in further delays as matters need to be explained to the jury, and a jury may require some time to deliberate.
Jurors on a jury does not represent a true cross-section of society
Weaknesses in awarding damages:
Inconsistency (E.g. they cannot determine damages based on prior similar cases)
Roles of the Parties
Make decisions about the conduct of the case.
Disclose information to the other party
Exchange evidence
Participate in the trial
Criminal and Civil Roles of Parties (Similarities + Differences)
Similarities:
Both the prosecution and the parties in a civil case have ongoing disclosure obligations, which require them to disclose relevant documents, even if they are detrimental to their own case.
Both criminal and civil trials provide an opportunity for the parties to present their case, including allowing them to make opening and closing addresses and examine and cross-examine witnesses.
The parties in both types of trials must not mislead the court and must cooperate with each other.
Differences:
The defendant in a civil case has an ongoing discovery obligation, but this does not apply to an accused in a criminal case.
As there is normally no jury in a civil trial, the parties in a civil trial will generally not have to give opening and closing addresses to the jury or consider other jury issues (such as what instructions need to be given to a jury).
The concept of ‘party control’ does not generally extend to many parts of the criminal trial process in that the prosecutor cannot always ‘choose’ what evidence to lead or not lead in a criminal trial.
Strength and Weaknesses of the Parties
Strengths:
The parties have an ongoing obligation to disclose and ‘discover’ all relevant documents to each other. This ensures there are no surprises as to the documents that may be relevant to the issues in dispute.
Both parties have the opportunity to present their cases, including making opening and closing addresses. This also includes the opportunity to examine and cross-examine witnesses.
The parties have complete control over how they run their case. They are not forced to do or say anything and can decide whether to make certain claims or defences, or what evidence to rely on.
Weaknesses:
Some parties may be more familiar with their disclosure obligations than others; others may have less understanding of the requirement to disclose relevant documents, even those that are not helpful to their case.
The processes involved are complex and difficult to understand without the use of a lawyer, thus making it difficult for self-represented parties.
‘Party control’ means that the parties need time to prepare their case, and make decisions about how to run their case, which can add to the delays. This can be stressful and cost money.
Legal Practitioners
Solicitors and barristers who assist and represent parties in civil disputes by providing legal advice, preparing documents, and presenting the case in court
Strength and Weaknesses of Legal Practitioners
Strengths:
Experts who will be able to help the parties navigate the civil justice system. This includes assisting and conducting opening and closing addresses, examining witnesses, and defending against applications made by the other party.
Have objectivity in being able to make decisions in the civil case, such as whether to agree with the other party to negotiate a settlement. Self-represented people lack that objectivity and may be too ‘invested’ in the decision to be able to see the weaknesses in their case.
Can help avoid delays that may arise with self-represented parties (as the trial processes may slow down to allow a party to understand what is happening).
Weaknesses:
Not all legal practitioners are equal or have the same level of experience and skills. Some legal practitioners are more experienced than others, which may impact on the quality of the legal services.
Not everyone is able to afford legal representation, so some people may be left to represent themselves. However, often self-represented parties do not have the necessary skills, experience or objectivity to be able to make the right decisions.
Even if a self-represented party can afford a lawyer, this could potentially be at great expense to them or their family, particularly if they lose, and are ordered to pay the other party’s legal costs, too.
Class actions
A type of proceeding where a group of people, who all have claims against the same party, join together in a proceeding.
Seven or more people have claims against the same person
Those claims relate to the same, similar or related circumstances
The same issues need to be decided (such as whether the defendant owed a duty of care to those plaintiffs)
ONLY heard in the Supreme Court
Examples:
Cosmetic surgery errors
Bank fee erros
Lead Plaintiff:
The person who is named as the plaintiff in a class action and represents the group members; also sometimes referred to as the representative plaintiff
Litigation funders:
A third party who pays for some or all the costs and expenses associated with initiating a claim in return for a share of the amount recovered. Litigation funders are often involved in class actions
Appropriateness of Class actions
Seven or more people who have a claim against the defendant which arises out of the same or similar circumstances. If not, then a class action is not an appropriate method of resolving the claims (e.g. if there are fewer than seven people, or the claims are in relation to different facts or against a different defendant)
Plaintiff law firm or a litigation funder is prepared to fund the claim to avoid the lead plaintiff from having the burden of costs. In the past, it has been suggested that claims totalling less than $1 million are less likely to be attractive to fund, with claims totalling more than $5 million more likely to be funded
There is someone willing and able to be the lead plaintiff
The nature and size of the claims. Very small claims, for example, may not be economical (i.e. in a outcome that is worth the effort and cost)
One group member has suffered significantly more than other group members and may be prepared to conduct their own proceeding, and fund it, rather than having to ‘share’ any settlement with the other group members.
Strengths and Weaknesses of Class actions
Strengths:
The group members are not responsible for the payment of any costs (though they will share the costs if the claim is successful). This therefore increases access to justice for group members who may not otherwise be able to afford the costs of initiating a claim themselves.
It is a more efficient way of dealing with a number of claims because the court does not have to deal with multiple claims about the same issue, thus saving court time and resources.
People can pursue civil claims they may not otherwise be prepared to, because the claim is so small and the costs may be far too much. However, when the smaller claims are grouped together with hundreds or thousands of people, it becomes more economical and cost-effective to pursue the claims.
Weaknesses:
Class actions impose a large cost burden on the lead plaintiff if the class action fails and there is no litigation funder or no ‘no win no fee’ agreement with the plaintiff law firm (though this scenario is extraordinarily rare).
Even though it avoids multiple claims, the size of the class action is normally such that it takes up a significant amount of court resources and time. The approval process for a settlement can also be significant.
There has been a fear by some that class actions provide an opportunity for class action lawyers to ‘take advantage’ of class actions because they may get more out of the class action than the group members themselves. This is because while a group member may receive a very small amount, the plaintiff law firm stands to gain much more through costs to be paid to them.
10 MARK ANSWER CRITERIA
Address the statement by stating to what extent you agree with it - fence sit and say that you partially agree or agree to a certain extent.
Provide brief examples of why you partially agree. (approx 3 sentences)
Leave a line between each paragraph (like I have done here).
You can address a strength and weakness per paragraph or deal with strengths in two paragraphs and then follow that with the consideration of two weaknesses.
Body paragraph 1 - address a strength and a weakness of class actions and refer to the statement in the question. You can do this after the strength and again after the weakness or at the end of the paragraph. This paragraph will be quite long.
Body paragraph 2 - address a strength and a weakness of class actions and refer to the statement in the question. You can do this after the strength and again after the weakness or at the end of the paragraph. This paragraph will be quite long.
Conclusion
This statement will be longer than the introduction. It sums up your points and can lean to one side in terms of your agreement.
MODEL ANSWER
I disagree to a certain extent with Warne’s assessment and argue that class actions, even with their faults, are an essential component of a fair civil justice system. Warne’s April 2025 claim argues that representative proceedings—commonly known as class actions—unnecessarily burden the courts and allow individuals to take part in litigation they would not pursue independently. While this view raises legitimate concerns about fairness, it underestimates the significant role that representative proceedings play in ensuring access to justice and promoting legal efficiency.
One of the most compelling strengths of representative proceedings is that they enhance access to justice. Many individuals, particularly those from disadvantaged or vulnerable backgrounds, may be deterred from initiating legal action due to the complexities of the system. By consolidating similar claims into a single proceeding, class actions empower these individuals to hold powerful corporations or institutions accountable. Without this mechanism, legitimate claims would often go unheard, and allow poor behaviour in larger organisations to continue. However, Warne’s concerns are not without merit. One notable weakness of class actions is the limited involvement of individual class members and in particular their ability to address individual issues they may have against the defendant.. Typically, the lead plaintiff and legal representatives make key decisions on behalf of the entire group, while the majority of participants remain passive and uninformed. If a member has other claims against the defendant that are not representative of the group, then they cannot deal with them in the class action. They would need to take individual action to address these. Consequently not all claims of the participants will be met by the action.
In addition to improving access, class actions contribute to a reduction in costs and time for individuals. By combining numerous similar claims into one coordinated case, the courts can avoid the duplication of evidence, legal arguments, and judicial time. Contrary to what Warne believes, rather than clogging the court system, class actions can streamline proceedings and prevent a flood of individual cases that would place an even greater burden on the judiciary or worse, people abandoning their claims. A concern, however, is that Class actions can at times become lawyer-driven, initiated more for the financial gain of legal firms than for the benefit of plaintiffs. The percentage of the damages that a firm may ultimately receive certainly pushes for a higher damages amount for the members but also increases the payment for legal services. If this is the priority then this may diminish public confidence in the system and raise concerns about the commercialisation of civil litigation.
In conclusion, while representative proceedings are not without drawbacks—particularly regarding participation and potential exploitation—they remain a vital tool in modern civil law. They serve to redress power imbalances, enable access to justice, and reduce strain on the courts. Therefore, I largely disagree with Warne’s statement and support the continued use of class actions, provided they are carefully regulated to ensure fairness and transparency.
Consumers Affairs Victoria (CAV)
Regulates consumer law. Its purpose is to help ensure that Victorians are informed about consumer laws, and to ensure that businesses are complying with those laws.
Can be referred to as CAV in SACs and Exam
Advises the Victorian Government on consumer legislation (laws about the sale and purchase of goods and services)
Provides information and guidance to educate people about consumer laws, including what their rights and responsibilities are, and whether there have been any changes to those laws
Enforces compliance with consumer laws
In limited circumstances, provides consumers and traders, and landlords and tenants, with a dispute resolution process.
Purposes of CAV
To help people come to an agreement about how to resolve their disputes efficiently without any cost to them. This allows people with smaller disputes about goods or services provided to them, or about their tenancy, to obtain a dispute resolution service that is not expensive, or will not take too long to resolve
To try to help the parties reach a resolution that is consistent with the law, where any person who has not complied with the law is aware of that and does not breach the law again
Appropriateness of CAV
Dispute is within CAV’s jurisdiction or power. If CAV does not have jurisdiction to hear a matter, then it is not an appropriate dispute resolution body for that matter. For example, CAV cannot assist in relation to discrimination disputes, employment disputes or family law matters
Consumer or tenant has tried to resolve the matter themselves. If not, then CAV may not intervene
Complaint justifies or needs CAV’s involvement (e.g. it is not a trivial complaint)
Has been a breach of legislation or a failure to comply with legal obligations by the landlord or business (in which case CAV may be more likely to get involved)
Consumer is vulnerable or disadvantaged
Issue has already been dealt with by CAV or the Victorian Civil and Administrative Tribunal (VCAT). If so, CAV will not intervene
Issue is reasonably likely to be resolved. If so, then CAV may be more willing to assist.
Parties also need to consider whether there are other or better ways to resolve the dispute. For example, they may need to consider:
Able to resolve the dispute themselves by negotiating with each other
Dispute is best resolved by a court or tribunal making a binding order on the parties, rather than reaching a resolution themselves
Other party is unlikely to take the conciliation process seriously, or may not show up, so issuing a claim in a court or tribunal is more likely to force them into realising the seriousness of the dispute
One party would prefer the formality of the tribunal or court processes to resolve the dispute
Matter is too big or complex to be appropriate for CAV
Resolution of the matter is urgent, so a court is a better option (such as an order to stop a trader selling a car to someone else).
Strengths and Weaknesses of CAV
Strengths:
CAV’s conciliation service is free, meaning that it is accessible to all Victorians, regardless of their ability to pay.
The conciliation process is informal, and can be conducted over the telephone, which removes many anxieties people have with the formalities of a courtroom.
CAV ensures procedural fairness by allowing both sides the opportunity to present their side of the story and challenge the other side’s case as part of the conciliation process.
Weaknesses:
CAV’s assistance is limited mainly to consumer and CAV disputes, meaning that it has no power to assist with many other types of civil disputes.
CAV has no power to compel parties to undergo conciliation. A willing party to a dispute may not be able to use CAV’s dispute resolution services if the other party is not willing.
CAV has no powers to enforce any decisions reached by the parties in conciliation. unless the parties have entered into a binding agreement at conciliation, then one of the parties may just ignore the outcome. This can leave the parties no better off than they were before conciliation.
VCAT
A dispute resolution body that resolves civil disputes and is intended to be a less costly, more informal and faster way to resolve disputes than courts
VCAT Remember that the only dot point for VCAT is:
Victorian Civil and Administrative Tribunal Tribunals are not courts. They are semi-judicial bodies.
VCATs main aim is to provide quick and cheap access to dispute resolution within its jurisdiction. Online application to have a hearing is quick and hearings will take place within 3 to 4 weeks. The hearings themselves are also quick with some only a few minutes. LEGAL REPRESENTATION is discouraged but is used for complex matters in the Human Rights, Planning and Administrative Divisions. (See Source 2 on Page 236)
VCAT started in 1998 to relieve the Magistrates’ Court of most minor civil disputes and administrative areas of law. Since that day in 1998 the jurisdiction of VCAT has grown massively. It has 5 Divisions and many lists within each division
VCAT Jurisdiction (Understand generally)
Appropriateness of VCAT
Dispute is within VCAT’s jurisdiction. If the dispute is not the type of dispute that VCAT can hear (as set out in Source 3), then it is not an appropriate body to resolve the dispute. For example, VCAT cannot resolve disputes where the Commonwealth is a party or where there is a class action
Parties can resolve the dispute themselves through negotiation or mediation
Nature of the fees (for some lists, the fees are just as high as court fees, or even higher) and whether the applicant is able to pay those fees
Parties wish to have greater avenues of appeal (appeals from VCAT decisions are (limited to appeals on a question of law)
One or more of the parties are unlikely to take VCAT seriously, and so a court is the preferred dispute resolution body
One or more of the parties would prefer the formality of the courtroom
Matter is of a complexity or size that is not appropriate for VCAT
Party prefers the court to resolve the dispute because of the doctrine of precedent. VCAT is not a court, and it cannot make new law: it can only apply law made by parliament or the courts. Its own decisions do not form binding precedent in that they do not become binding on future cases (although they are binding on the parties).
Strengths and Weaknesses of VCAT
Strengths:
VCAT is normally cheaper than courts due to low application fees, usually lower or no hearing fees, the costs saved by not having to undertake expensive pre-trial procedures and parties being able to represent themselves.
VCAT generally offers a speedy resolution of disputes – the average time from application to resolution of disputes in its busiest list (the residential Tenancies List) has been as low as two to three weeks.
An informal atmosphere at VCAT ensures that parties can put their case forward in their own way, which can make people feel more comfortable with the process.
Weaknesses:
Due to increased use of legal representation, the costs of taking a matter to VCAT can sometimes be as high as, if not higher than, court costs. Changes to VCAT’s fees mean that there are now fees for some hearings, as well as large fees for major cases in the planning and Environment List.
VCAT has suffered delays in some of its lists, including following the COVID-19 pandemic. Some argue this hurts the economy, as many construction projects are unable to go ahead without the appropriate permits, as well as having a financial and mental impact on people who are waiting for their claim to be heard.
It may be too informal – some parties may feel uncomfortable or ill-equipped to deal with the lack of formal procedure or may prefer a formal process of giving evidence. others may argue that this is not the right way for the ‘truth’ to come out.
Unlimited Jurisdiction
It does not matter what amount the plaintiff is seeking; both County and Supreme courts are able to hear the dispute
Appropriateness of Courts
Dispute falls within the court’s jurisdiction
There are other or better ways to resolve the dispute
Strengths and Weaknesses of Courts
Strengths:
Various pre-trial procedures allow the parties to reach an out-of-court settlement. This includes mediation, which the judge can order the parties to attend before trial. This can potentially save the costs, time and stress of going to trial.
In undertaking various pre-trial procedures, the parties to ensure a more efficient and timely resolution of dispute have an opportunity to know the strengths and weaknesses of each other’s case, which may help narrow the issues in dispute or even help resolve the matter before trial.
Weaknesses:
The costs in having a dispute resolved in court may restrict access to the courts, and may jeopardise parties being treated equally because of their socio-economic status. This includes the costs of engaging a lawyer.
Many of the procedures are complex and difficult to understand without a lawyer. These include pleadings and directions, and trial procedures such as cross-examination of witnesses.
Costs
The costs associated with civil disputes include costs of legal representation, and disbursements such as expenses associated with engaging expert witnesses, filing and hearing fees, and jury fees (if there is one and the party requests it).
The nature of the court system generally relies on legal representation. Legal practitioners can maximise a person’s chance of succeeding and getting a just outcome.
The amount of legal costs depends on the nature of the dispute and the way the case needs to be resolved. for example, costs associated with court cases are generally higher than VCAT cases.
Time
Quick and efficient hearings are better hearings. The delay in resolving a dispute can affect the reliability of evidence, jeopardising a fair outcome. Previous cases have found that extraordinary or significant delays can impact on procedural fairness.
Delays can have a serious impact on more vulnerable parties is an injured person, or somebody with little or no money).
Delays can also affect parties who are generally not familiar with litigation and can be stressed by the inconvenience of court processes (unlike larger businesses).
Remedy
Any order made by a court (or a tribunal) designed to address a civil wrong or breach
Should provide a legal solution for the plaintiff for a breach of the civil law by the defendant
Damages
Amounts of money awarded to the plaintiff, to be paid by the defendant
Returns the plaintiff to the position they were in before the wrong occurred
Compensatory damages
An amount of money awarded to a plaintiff for harm, injury, or other losses suffered
Includes general damages, special damages, and aggravated damages
Exemplary damages
A very large amount of money awarded to show strong disapproval of the defendant’s conduct; also called punitive (punishing) damages
Nominal damages
A small amount of money awarded to confirm that a plaintiff’s rights have been infringed even though the losses were not substantial
Contemptuous damages
A very small amount of money awarded by a court to show that even though the plaintiff’s claim succeeded legally, the court disapproves of it in moral terms
Restrictions on damages
Certain types of claims and certain types of loss have restrictions imposed on damages.
For example:
For personal injury claims made under the Wrongs Act 1958 (Vic) (such as personal injuries suffered from a negligent act), and claims for non-economic loss, being pain and suffering and loss of quality of life, are limited year by year to an amount fixed by parliament
In defamation claims, damages for non-economic loss (generally, pain and suffering) are also limited to $250 000 (though in some circumstances this can be increased).
Damages + Purposes + Ability to achieve purposes
Damages and purposes | Factors to consider when assessing the ability of damages to achieve their purposes |
Compensatory damages: Depending on the injuries and loss suffered, compensatory damages can restore the plaintiff to the position they were in before the wrong occurred. |
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Exemplary damages: May be awarded to punish the defendant for an extreme infringement of rights and deter others from undertaking the same type of actions. |
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Nominal damages: Seek to uphold the plaintiff’s rights without awarding any substantial damages. |
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Injunctions
A remedy in the form of an order requiring the defendant to do something or not to do something
Designed to prevent a person doing harm (or further harm), or to rectify some wrong
Restrictive injunctions
An order that someone stop (or refrain from) doing something that is harming (or will harm) the plaintiff; also called a prohibitive injunction
Mandatory injunctions
An order requiring someone to do something, or take active steps to prevent harm (or further harm) to the plaintiff
Injunctions + Purposes + Ability to achieve purposes
Injunctions and purpose | Factors to consider when assessing the ability of injunctions to achieve their purposes |
Restrictive injunction: Aims to prevent harm, or further harm, from being caused to the plaintiff by ordering someone to refrain from taking steps (or any further steps). |
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Mandatory injunction: Requires a person to take certain steps or do a particular act, which will prevent further harm from being suffered by the plaintiff, or to remedy the situation caused by the defendant not taking certain actions. |
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