VCE Legal Studies - Unit 3 AOS 2

Unit 3 AOS 2:

-              Fairness: all people can participate in the justice system & all processes are impartial and open.

-              Equality: All people are treated the same, where this creates disparity, measures are implemented to remove it.

-              Access: means all people should be able to engage with the justice system and its processes on an informed basis.

Key concepts in civil:

-              The burden of proof: The responsibility to prove the facts of the case, rests on the party bringing the case to court (plaintiff) and can be reversed when there is a counterclaim.

-              The standard of proof: the strength of evidence required to prove the facts of the case, on the balance of probabilities meaning it is more probable than not that the defendant is liable.

Factors to consider when initiating a civil claim:

-              Costs: are the amount of money incurred in resolving a civil claim such as legal rep fees, hearing fees and jury fees.

-              Limitation of actions: are time restrictions placed on initiating a civil claim.

·       Once the time limit passes, the defendant can raise this as a defence and the plaintiff won’t be able to bring the claim.

·       Ensures that evidence is readily available and that defendants don’t have possible actions hanging over them for an indefinite period.

-              Enforcement issues: the process of ensuring a party complies with the orders and remedies awarded against them by a court.

·       The defendant may be in jail, bankrupt, overseas, uncontactable or have no assets.

Judicial powers of case management

-              Purpose: to facilitate the just, efficient, timely and cost-effective resolution of real issues in the dispute.

·       Power to order appropriate alternative method of resolution: The court may order a referral to an appropriate method of resolution such as mediation to assist parties quickly and cost-effectively by avoiding the need for a trial.

·       Power to give directions: a direction or order may be made to ensure the proceeding is managed and conducted in accordance with the overarching purpose.

o   EG. Time limits, limit number of witnesses, timeline of proceedings.

Purposes of Remedies:

-              Remedies: a court order that upholds civil rights by providing relief for loss or harm suffered.

o   Purpose: to restore the plaintiff, as far as possible, back to the original position they were in before the wrong occurred.

o   Purpose: ‘As far as possible’ – may not always be able to return them, such as if the harm was irreversible (amputation) or irreplaceable loss (art damaged).

Reasons for court hierarchy in civil:

-              Administrative convenience: allows the courts to efficiently allocate resources by distributing cases to courts based on the seriousness and complexity of the dispute.

o   Higher courts such as County Courts take longer to resolve and benefit from the expertise of the personnel in these courts.

o   Lower courts such as the Magistrate’s Court deal with minor civil disputes, which allows them to be dealt with quickly and less expensively.

-              Appeals: allows the decisions of lower courts to be reviewed by higher courts to correct any errors in law, fact or the remedy awarded.

o   No court hierarchy, and no higher courts to appeal to.

o   Can only appeal if there are grounds for it (reasons such as point of law)

Use of class actions to resolve civil disputes:

-              Class Action: this type of proceeding where a lead plaintiff initiates a civil claim on behalf of a group of seven more people who have similar claims against the same defendant from similar circumstances and require similar issues to decide.

o   Heard only in the Supreme Court

·       Eligibility: 7 or more people, similar circumstances, same issues to be decided.

-              Strength:

o   People can pursue civil action they wouldn’t have been able to afford individually.

o   More efficient way of using court time and resources prevents backlog allowing others to engage.

o   Group members can share the cost of participation without putting themselves under financial stress.

-              Weakness:

o   The lead plaintiff bears all the risk of initiating a class action.

o   Class actions may not consider all claims leading to them not being treated equally before the law.

o   Litigation funders and law firms expect a return on their investment, high fees lead to people opting out preventing people from engaging.

Purposes of damages and injunctions:

-              Damages: a type of remedy consisting of an award of monetary compensation.

·       Purpose: return the plaintiff to their original position by contemplating them, whilst also punishing the defendant and recognising the plaintiff’s rights.

o   Compensatory: aims to restore the part to their original position they were in before the civil wrong occurred.

§  Specific: precise monetary value (quantifiable)

§  General: assessed by the court for long-term loss

§  Aggravated: awarded in addition to specific or general damages if the defendant’s conduct was aggravating.

o   Nominal: a small amount of money awarded to the plaintiff to show they were legally right, but there was no substantial loss.

o   Exemplary: a large amount of money awarded to the plaintiff to punish the defendant for extreme infringements.

o   Contemptuous: a small amount of money to recognise a legal right exists, but there was no moral right to make the claim.

Injunctions on the next page.

-              Injunctions: are a type of remedy consisting of a court order compelling a party to do something (mandatory) or preventing a party from doing something (restrictive).

·       Purpose: rectify a situation by restoring the plaintiff or preventing further harm/loss.

o   Restrictive: orders a person to stop or refrain from performing a certain act.

o   Mandatory: orders a person to perform a certain act.

o   Interlocutory: a temporary order awarded where there is an urgent matter.

o   Permanent: orders that provide final relief for the plaintiff, on an ongoing basis.

Responsibilities of key personnel in a criminal trial:

-              Judge: acts as an impartial umpire who is responsible for:

o   Acting impartially

o   Manage the trial or hearing

o   Attending jury matters

o   Determine a remedy

-              Jury: a group of randomly selected members of the community who represent community views, values and standards in determining a verdict.

o   Approach the case without any bias or preconceived ideas (objectiveness)

o   Listen to and consider the evidence

o   Determine and deliver a verdict

-               Parties: the plaintiff is the person bringing the case to court, and the defendant is the party alleged to have breached civil law and is being sued by the plaintiff.

o   Plaintiff & Defendant both.

§  Commence the case

§  Participate in the trial or hearing

§  Participate in pre-trial procedures

-              Legal practitioners: are barristers and solicitors that represent the parties in legal proceedings.

o   Barrister: presents the parties’ case in court and the accused’s barrister will argue on their behalf.

o   Solicitor: will draft documents, communicate with the other party and the court and prepare the case.

Consumer Affairs Victoria (CAV) and Victorian Civil and Administrative Tribunal (VCAT):

-              Consumer Affairs Victoria (CAV): is a consumer regulator that provides dispute resolution services in limited circumstances (consumer v trader, tenant v landlord)

o   Purpose: assist people in resolving disputes efficiently and without any cost.

o   Purpose: to encourage voluntary compliance with consumer law.

o   Appropriateness (for): The dispute is within CAV’s jurisdiction as it is free.

o   Appropriateness (against): CAV has already provided assistance or VCAT/court has already ruled on the issue.

·       Strength:

o   Allows parties to retain control over the outcome, allowing them to arrive at a mutually acceptable solution.

o   CAV is free and accessible to all Victorians.

o   CAV use a conciliator who provides both parties with equal opportunities to make suggestions on ways to resolve the dispute.

·       Weaknesses:

o   Cannot compel the parties to engage in conciliation or other services they offer.

o   CAV has limited jurisdiction to be able to resolve disputes.

-              Victorian Civil and Administrative Tribunal: is a tribunal that hears and decides civil and administrative legal cases in Victoria.

o   Purpose: provide a low-cost, accessible, efficient and independent tribunal.

o   Purpose: provide a binding decision in a formal hearing.

o   Methods used: mediation, VCAT member will facilitate discussion and encourage parties to come to their conclusion, compulsory conference which is confidential conciliation, and if not settled – a final hearing for a binding decision.

·       Strengths:

o   VCAT is typically cheaper and faster than going to court.

o   Provides flexibility in how cases are heard, which can allow VCAT members to ensure both parties have an equal opportunity to present their case.

o   Informality reduces stress and anxiety on parties who are engaging.

·       Weakness:

o   No jurisdiction for large and complex claims like class actions.

o   VCAT’s jurisdiction is limited and therefore is not available to all parties who have a civil dispute.

o   The right to appeal is limited to questions of law and may result in an unfair outcome.

-              Courts: are institutions that have the power to interpret the law and apply it to cases before them to resolve disputes.

o   Purpose: Interpret the law and apply it to cases before them.

o   Purpose: determine whether a party is liable.

o   Methods used: mediation, conciliation, arbitration and final hearing.

·       Strengths:

o   Courts provide a binding decision that can provide parties with certainty about their future.

o   The court’s processes and procedures apply to all parties equally.

o   Pre-trial proceedings provide the parties with details such as the strength of their respective cases allowing them to make informed decisions about the direction of their case.

·       Weaknesses:

o   A jury is made up of lay people meaning there is a risk they won’t understand issues or evidence.

o   High costs and time required may prevent people from being able to engage with the civil justice system.

o   Self-represented parties may find it difficult to navigate court processes and procedures due to limited knowledge and prevent informed decisions.

Impacts of cost and time on the civil justice system to achieve POJs:

-              Costs (Equality): institutions like VCAT and CAV typically don’t require legal representation, which places the parties on an equal footing and treats them equally.

-              Costs (Participation): A party may be required to place themselves in financial distress to afford the costs to participate in the justice system by pursuing a claim or defence.

-              Time (Participation): institutions and methods can enhance participation in the justice system by providing alternate avenues for resolving disputes timely such as CAV.

-              Time (Engagement): Delays in civil proceedings can lead to an increase in court backlog, which reduces the ability of others to engage with the justice system to pursue a case.

Methods used to resolve civil disputes

-              Mediation: involves an independent and impartial 3^rd party called a mediator who facilitates discussion and encourages parties to come to their conclusion.

o   Appropriateness: both parties are willing to discuss issues and reach an agreement, and there is no power imbalance between the two parties.

-              Strength:

o   Participation: Allows parties to directly participate in the process, without the need for legal representation.

o   Impartial processes: Enables a flexible resolution to be put in place, which may be fairer than one party ‘winning’ and one party ‘losing’.

o   Informed basis: Allows parties to articulate their views in non-legal language, which may assist them in understanding the key issues in the dispute allowing them to make decisions on an informed basis.

-              Weakness:

o   Impartial processes: An agreement may not be enforceable and waste the parties’ time and money by needing to litigate the dispute anyway.

o   Formal Equality: Parties with language barriers may have trouble participating in the process and therefore may not have an equal opportunity to present their side of the dispute or have equal bargaining power in coming to a resolution.

o   Engagement: Some parties may find it difficult to present or convey their points of view, which may discourage them from engaging with these methods.

-              Conciliation: is a dispute resolution method that involves an independent and impartial 3^rd party called a conciliator, who has expertise in specific areas and makes suggestions about possible solutions, which the parties can consider when coming to their own conclusion.

o   Appropriateness: both parties are willing to discuss issues and reach an agreement, and there is no power imbalance between the two parties.

·       Strengths and weaknesses are the same as mediation.

-              Arbitration: is a dispute resolution method with an independent and impartial 3^rd party called an arbitrator, who listens to the party’s present evidence and makes a binding decision.

o   Appropriateness: the dispute needs a binding and enforceable decision; parties cannot agree.

-              Strengths:

o   Participation: Parties retain control over how evidence and legal arguments are presented without having to comply with strict rules of evidence or procedure.

o   Formal Equality: Parties select the arbitrator to ensure they are independent and will provide equal treatment throughout the process.

o   Engagement: saves cost and time in resolving disputes compared to court.

-              Weakness:

o   Impartial: Parties have no control over the outcome, and there are minimal avenues to appeal meaning an unfair resolution may be handed down.

o   Formal Equality: Parties with language barriers may have trouble participating in the process and therefore may not have equal opportunity to present their side of the case.

o   Engagement: can be costly and take a long time to resolve where the dispute is complex