9: CAV, VCAT and Courts in resolving civil disputes

CAV

Purpose/define

• is a business unit of the Victorian Government department of justice & regulation

• Vic consumer affairs regulator, advises vic gov on consumer regulation, info & guidance to educate ppl abt consumer laws, & enforces compliance w consumer laws

• helps ppl to settle disputes w/o any costs

• role is to provide consumers and traders, and landlords and tenants, with a dispute resolution process

Dispute Resolution used

• main method used is concilliation (3rd party, independant to mutually come to decision)

• Concil does not make decision on behalf of the parties, but listens & parties come to a decisions themselves, they can make suggestions (they have specialised knowledge)

• deed settlement (binding decision)

• over the phone

• only deals w disputes in their juristiction ( tenants, landlords, buyers, suppliers)

Appropriateness

Not all Civil disputes use CAV, certain criteria if its appropriate are as follows:

whether……

• dispute is within juristiction

• disputes are likely to settle

• are better ways to solve (VCAT, courts, mediation)

• complainant has attempted to resolve (VCAT, courts)

• complainant is vulnerable or disadvantaged

• already been reffered to CAV, Court or VCAT (then they will not hear)

• whether there is a better way to resolve (court for complexity of case)

• its a complex case

S&W of CAV

S

• Concilliation service is free

• process is informal, over the phone, removes anxiety/formalities

• ensures procedural fairness, allows both sides to present arguments & challenge (concilliation proccess)

• Asseses disputes individually, reducing waste of time & resources that are clearly unlikely to be resolved

• Concilliation offered by CAV ensures parties reach resolution before themselves

W

• CAV assistance is limited mainly consumer and CAV cases only

• has no power to compel parties to conciliation as both parties must be willing

• no power to enforce any decisions ubnless binding settlement agreed upon then one party may ignore outcome

• not all cases accepted by CAV & concilliation services limited

• not appropriate for complex and large cases

VCAT

Purpose/define

• VCAT hears & determines a range of civil & admin cases

• divided into 5 divisions (Recreational, civil, human rights, planning & enviromental, administrative divisions)

• The president of VCAT is judge of the Supreme Court

Purposes of VCAT:

• Low cost- only need to pay a small ammount ( as of july 2023 was $70), parties can afford to rep themsleves, many parties dont need to pay hearing fees

• Accessible- various locations, offers over the phone and video calls in place of tribunals, less formal which means ppl more comfortable to use its services

• Efficent- aims to reduce waiting times for parties which leads to process being more efficent

• Independent- members are independent and will act as unbiased adjudicators

Dispute Resolution used

1. Mediation

• 3rd party, independent, non binding process (unless terms of settlement is agreed), helps reach agreement between parties

• fast tracks mediation and hearing, goods and services up to 10k fast tracked, mediation takes only 1 hour if not resolved schedule VCAT hearing

2. Compulsory conferences (Concilliation)

• meeting w VCAT member, does not hear case at final hearing and council

uses concil proccess

3. Final hearing

   if not settled goes to final hearing, like court ( giving evidence, presenting case, witnesses, etc), binding decision, less formal than court

Appropriateness

• if in juristiction of VCAT

• whether there are better or other ways to resolve dispute using ADR’s (alternative dispute resolution)

• fees & whether the applicant can afford it

• whether court is more suitable (appeals, formality, complexity, seriousness, rely on precedent (VCAT not bound by precedent))

S&W of VCAT

S

• cheaper than court (low application fees, no pre trail procedures, self rep)

• efficent (time) decisions made on the spot. 2-3 weeks for resolution

• informal

• binding/enforceable

W

• can be costly w legal rep expensive, vcat fees, large fees for major cases

• backlogs from covid, incresaes stress on parties

• large + complex cases is not appropriate

• limited right to appeal, only point of law goes to supreme which is timely and expensive

• not bound precedent, inconsistency

• not part of court hiearchy

Courts

Appropriateness

it is the most expensive means to resolve civil law disputes

parties must consider…..

• juristictions of each court

• whether ther is a better way to solve dispute

Complexity, expertise, certainty

Other/better ways to resolve dispute

Some cases cannot be reffered to arbitration as VCAT has exclusive juristiction over…..

• domestic building disputes

• residential building disputes

• retail tenancy disputes

• planning disputes

Juristiction

• Mag court up to $100,000. cases under 10k reffered to arbitration

• County and supreme are unlimited

better ways to resolve than courts

• can parties resolve by themselves

• cost of courts vs ADR method or alternative institution

• risk of 3rd party making the decision & the risk of an adverse court order

• whether comfortable w formalities of the courts

S&W of Courts

S

• various pre-trail procedures allow parties to reach an out of court agreement (mediation), pot saves costs, time, stress

• pretrail more eff & timely, allows to get to know S&W of the cases. can help solve before trail & narrow issues

• uses processes to ensure procedural fairness (discov ordered by judge)

• allows interaction between court & parties

• courts decision is binding and enforceable. also there is a certain outcome

W

• often suffer delays, pretrail takes a long time. Judges take too long sometimes, discovery adds to length of the trail

• cost may restrict access to courts

• complex, diff w/o lawyer

• formalities may be stressful

• do not allow compromise, decision is binding