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the victorian civil justice system - Coggle Diagram
the victorian civil justice system
key concepts
burden of proof
the onus or responsibility that a party has to prove the facts of the case.
lies with the plaintiff
counter claims
:
seperate claim made by the defendant in response to the plaintiffs claim.
eg. plaintiff claims defendant was negligent in their skydiving operations where the plaintiff was injured.
the defendant can then make a counter claim that the plantiff contributed to the injury because the plaintiff was using a device during the safety briefing (contributory negligence)
standard of proof
on the balance of probabilities
party must prove that they are most probably or most likely in the right and the other party is in the wrong
representative proceedings
class actions are the mian type of representative proceeding.
brought in the name of one person or on behalf of someone else.
seven or more people have to have made a claim against the same person
claims need to relate to the same, similar or related circumstances
same issue needs to be decided (was their a breach of duty of care to the plaintiffs)
continued
lead plaintiff is the person that represents the group.
others in the group are called group members
most class actions are an opt out method in australia
once lead plaintiff describes the group, all people in group are group members
even if they do not know about the claim, or the lead plaintiff doesnt know who they are
if group member does not want to be part of class action they can fill in a form and give it to the court
if the group member opts out, they will not receive any of the remedies rewarded and may not be able to pursue the case on their own at a later date.
factors to consider when initiating a civil claim
negotiation options
plaintiff should consider whether they could try and negotiate a resolution of the dispute without initiating a claim.
possible negotiation options include the parties interacting directly with eachother to try and resolve the dispute, with or without legal rep, a mediation with or wih=thout legal rep arranged themselves, and arranging a negotiation or other dispute resolution method through a body such as the dispute settlement center of victoria
when negotiation options arent an option
one or both of the parties do not want to resolve the dispute, or isnt interested in negotiating
previous attempts to negotiate have failed because one of the parties has been harmed or threatened by the other party
there are no issues or dispute to be negotiated, negotiation isnt likely to provide successful outcome
there is urgency in having matter resolved through court
significant power imbalance between parties
benefits of negotiating
avoids the costs, time and stress involved in formal civil action
parties have control over the outcome, opposed to it being decided for them by a third party
parties may be more prepared to accept an outcome they have reached themselves
costs
before initiating a claim the plaintiff should consider:
how much it will cost to resolve the dispute and if they can afford the costs
if they are eligible for legal aid or free legal assistance through other means
if they have the money to pay for the costs of the defendant if the adverse costs order is made
what the risks are if they ordered to pay the other side and cannot afford to do so
costs cont.
disbursements include:
court fees (court filing fees, court hearing or trial fees, jury costs)
mediation fees (when a plaintiff initiates a claim in court, the court will often order the parties to attend mediation)
costs cont.
mediation
expert witness fees (the plaintiffs claim may require an expert to gie an opinion, depending on the nature of the claim
-
adverse costs orders
typically in a civil dispute the successful party should receive an order from the court that their costs are being paid by the unsuccessful party
if a plaintiff isnt successful in court, they will possibly have to pay for their own legal costs and the defendants costs
limitation of actions
plaintiffs need to bring their cases to court within a limitation period
once the time has passed, the defendant may be able to raise a defence that the plaintiff is out of time and can no longer bring the claim
reasons for imposing limitations are:
the defendant does not have to face an action after a significant amount of time
evidence is not lost and people can remember what happened
disputes can be resolved as quickly as possible
for people who suffered physical or sexual abuse as aa minor or psychological abuse that arouse out of that abuse, there are no time limitations
time limit can be extended in some circumstances
scope of liability
before initiating the claim, the plaintiff needs to determine who the defendants are and to what extent they are liable
possible defendants include employers, insurers, and persons involved in wrongdoing
extent of defendants liability
defendant may argue that if they are found liable, they are only liable for part of the plaintiffs loss or damage.
defendant may argue that the plaintiff was in part to blame for the harm done (can occur in negligence claims)
defendant may also argue that someone other than the plaintiff was liable, and therefore try to reduce their liability
enforcement issues
two ways that a plaintiff will obtain settlement or remedy:
settling with defendant before the court or tribunal hands down a decision
obtaining a remedy from a dispute resolution body such as a court
plaintiff needs to consider whether the defendant is able to pay
defendant may be bankrupt or for other reasons unable to pay
defendant my be in jail
defendant may be a company
defendant is overseas or unable to contact
even if defendant is able to pay, plaintiff may have to issue enforcement proceedings to force defendant to comply with the remedy
consumer affairs and VCAT
consumer affairs victoria
purposes
provides information and guidance to educate people about consumer laws and enforces compliance with consumer laws
provides consumers and traders, landlords and tenants, with a dispute resolution process
people can use CAV to exercise their consumer rights when they may have been infringed
aims to resolve disputes efficiently and effectively, to ensure any innapropriate conduct is stopped, and to help any party that has been wronged seek compensation for the loss they have suffered
dispute resolution methods used
conciliation: the assistance of a third party who helps the parties reach a mutually acceptable decision between them
the third party does not make decisions on behalf of the parties but can make suggestions and help the parties come to their own decision
the conciliator usually has specialist knowledge of the nature of the dispute
CAV primarily offers dispute resolution services over the phone to try and resolve the dispute
CAV can also initiate proceedings on behalf of a person in relation to a consumer dispute
strengths
conciliation service is free
process is informal
aims to ensure procedural fairness
access disputes on a case by case basis
aims to resolve disputes in a timely manner
parties reach a resolution themselves and is not imposed on them
weaknesses
CAVS jurisdictions are limited
CAV has no powers to compel parties to undergo conciliation
CAV has no powers to enforce any decisions made by the parties
not all cases are accepted by CAV
parties may not take the matter seriously because of the process
may not be appropriate for large and complex civil claims
appropriateness
whether it is in CAVS juridiction
the supply of goods and services (40,000 or less)
residential tenancies (certain disputes between tenants and landlords)
retirement villages - goods and services
disputes in relation to owners corporation
whether dispute is likely to settle
there has been no delay in the person complaining to CAV
CAVS databases of complaints does not show that the other party has previously refused to participate in conciliation
the person complaining has not contributed to the dispute through innapropriate behaviour
trader hasnt already made a reasonable offer that was rejected by customer
tried to resolve dispute themselves
-whether there are better ways to resolve the dispute
where the dispute is best reolved (court or tribunal)
if other party isnt able to take conciliation processes seriously
victorian civil and administrative tribunal
tribunals are dispute resolution bodies that deal with a limited area of law, are less formal than courts, and are intended to be a cheaper and more efficient way of resolving disputes
jurisdiction and structure
administrative
: deals with professional conduct inquiries and applications from people seeking a review of decisions made by government and other authorities.
lists:
legal practice
planning and environment
review and regulation
jurisdiction and structure
civil
: deals with a range of civil disputes relating to consumer matters, domestic building works, owners coroporation matters, retail tendencies, sale and ownership of property, use or flow of water between properties
lists:
civil claims
building and property
owners corporations
jurisdiction and structure
human rights
: deals with matters relating to guardianship and administration, equal opportunity, racial and religious vilification, health and privacy information, disability matters and decisions made by the mental health tribunal
lists:
guardianship
human rights
jurisdiction and structure
residential tendencies
: deals with tenancy disputes, includin55tggggggggggggggggggggggggggggg disputes between residential tenants and landlords, rooming house owners and residents, and site tenants and owners - lists:
residential tendencies
purposes
provide low cost, accesible, efficient, and independant tribunal dispute resolution processes
dispute resolution methods
mediation
: independant third party helps the disputing parties to reach a resolution.
most disputes at VCAT will to mediation before a final hearing
short mediation and hearing process- used for small civil claims. mediation and hearing is usually on the same day.
dispute resolution methods
compulsory conference
: confidential meeting during which the parties discuss ways to resolve their dispute in the prescence of a VCAT member.
conciliation process is used where the VCAT member may suggest forms of settlement and explore the likely outcomes of a hearing
dispute resolution methods
final hearing
: if a matter is not settled in mediation or compulsory conferences then it will be listed with a final hearing before a VCAT member.
the VCAT member will oversee the hearing and make a binding decision on the parties
the types of order that VCAT can make in a hearing vary from list to list
strengths
normally cheaper than the courts
quick resolution of disputes
-informal atomosphere may ease the parties
decision made in final hearing is binding
weaknesses
costs have recently increased
for large and complex civil claims, VCAT is not appropriate
limited right to appeal VCAT decisions
may be too informal
appropriateness
jurisdiction
: exclusive jurisdiction means only VCAT has the power to hear and determine that type of dispute, and not a court. types of claims that can be heard by VCAT include:
purchases or sales of goods or services, disputes between tenants and landlords, owners corporations
discrimination, sexual harrassment, victimisation or vilification, domestic building works
lawyers, lawyers conduct, and the provision of legal services
disputes VCAT cant hear
representative proceedings
disputes between employers and employees
disputes between neighbours
disputes between drivers in car accidents
disputes between tenants and landlords
disputes in federal or state law where VCAT has not been given any power to hear the matter.
purposes of pre trial procedures
pleadings
series of documents filed and exchanged which set out and clarify the claims and defences, and help to define the issues that are in dispute.
two main pleading documents:
statement of claim
: filed by the plaintiff that sets out the detail the claims made against the defendant and the remedy sought
defence
: filed by the defendant. sets out the defendants response to each of the plaintiffs claims
if claims and defences arent included in pleadings, the parties cannot make new claims and raise new defences later in court except with leave or consent.
purposes
require parties to state the main claims and defences of their case
compel each party to state the material facts ad=nd particulars they are replying on to prove their claims and defences
give the court a written record of the case which allows the court to understand the issue so it can manage the trial and pre trial procedures
discovery of documents
enables parties to get copies of documents that are relevant to the dispute
eg. if the plaintiff claims that there is a written contract you would expect they would have a copy of it
if the plaintiff claims to have suffered physical injuries you would expect them to have medical records
purposes
require the parties to disclose or reveal all relevant documents to the other side so that all parties have access to the documents, ensuring fairness in the process
reduce the element of surprise at trial
allow each party to determine the strength of the other sides case
reasons for the victorian court hierachy
administrative convenience
the magistrates court is equipped with the staff to hear many cases a day. they do this efficiently and are used to having accused who are unrepresented needing assistance to navigate the court
the county and supreme courts are equipped with staff who are used to dealing with long and more complicated cases. they also have provisions to look after the jury.
the courts are set up to deal with the types of cases based on complexity to be efficient and run as smoothly as possible
appeals
without having differing levels of courts, a system of appeals would be impossible to maintain.
if the party is unhappy about the outcome of their case, having a court hierarchy enables them to have the case reviewed by moore experienced judges in higher courts
judicial powers of case management
case management
the management of a civil dispute before the court by a judge or magistrate
what a judge can do
power to order mediation
a judge/ magistrate can order parties to mediate part or all of a civil dispute
courts can order the dispute to be mediated by a court officer or instead that the parties find a private mediator
parties can be referred to mediation at any time during the proceedings and can be referred to mediation more than once during the dispute
can facilitate a cheaper and quicker resolution of the dispute
power to give directions
a direction is an instruction given by the judge or magistrate to a party imposing an obligation on that party to do something, such as:
attending court
filing a document
attending mediation
directions
before the trial
can include:
directions regarding the conduct of proceedings
timetables and timelines
participating in mediation
expert evidence
directions
at the trial
can include:
order in which evidence is to be given
directions about how many witnesses being called
type of evidence being led
questioning of witnesses
principles of justice
fairness (achieves)
through judicial powers of case management the judge, a legal expert can ensure the proceedings are fair and no party is favoured over the others
fairness (does not achieve)
as the judge is looking for an efficient resolution that is fast and cost effective, this could limit fairness as the judge may put limitations on the parties in regards to witnesses, evidence etc. could lead to an unfair outcome and the parties not feeling that they can present their best case.
whilst judges are impartial and independant, powers of case management rest with only one individual, possibly increasing the risk of bias and prejudice which could lead to an unjust outcome.
equality (does not achieve)
judges may apply different directions to similar cases, making it unequal
access (achieves)
judicial powers of case management upholds access as it assists with the speedy resolution of disputes. this ensures other cases awaiting trial are able to have their case heard without lengthy delays.
judges can order parties to mediate, which is cheaper for parties, allowing them to access a dispute resolution method is a cost effective way. this may also lead to a timely way to resolve the civil dispute
access (does not achieve)
ordering parties to attend mediation can add another step in the resolution of a dispute if they do not resolve it. this means parties will need to undertake mediation, wasting time and money, and still need to go to court. this hinders access to a timely resolution.
explain two powers of case management given to a judge in civil law
in a civil proceeding, a judge has the power to order mediation and give directions.
a judge may order the parties in a civil trial to attend mediation at any time during the proceedings in an attempt to resolve the dispute amongst themselves, which can assist in the prompt and economical determination of the case. as part of the prder, the judge has the power to stipulate that a court officer act as a mediator.
a judge may give directions or make any order it considers appropriate during the proceedings. this means the judge can give instructions to the parties about time limits or the way the proceeding is to be conducted. this allows parties to actively manage proceedings both before and during the trial. such directions may include timetables and timelines, participation in mediation, limitations during trial and the number of witnesses, the length and duration of submissions, and the number of documents released tended as evidence.
key personnel in a civil trial
the jury
a civil trial does not usually have a jury
a jury may be used where one of the parties requests one during the pleading stage, or when the court orders that a proceeding be tried by jury (rare).
a civil jury will be the decider of facts and may be required to assess damages (except in defamation cases, where only a judge can assess damages)
a civil jury has six members who are randomly selected
responsibilities of the jury
:
be objective
listen to and remember the evidence
understanding directions and summon up
decide on liability and balance of probabilities and in some cases, damages
evidence
must listen to all the evidence presented in a trial with no bias or preconcieved ideas
anyone connected to the case is not allowed to sit on the jury
follow instructions from the judge
may not be able to take certain evidence into account
the judge will explain explicit meaning of the law such as explaining what words mean
the judge will explain the burden and standard of proof
delivering a verdict and assess damages
when the case is finished, the jury deliberates on the evidence and votes on the verdict
the jury will decide if the defendant is liable or not liable
in cases where damages are awarded, the jury will determine the amount of damages, excluding defamation cases
limitations
not legal experts, some matters can be incredibly complex
jury deliberations are completely secret, even to the judge, no way to know if the bop and sop wer applied
bias and prejudice are apart of human nature
assesding damages is tricky
with only six jurors, it means that it is less people that need to be convinced that the standard of proof was applied
responsibilities of legal practitioners
legal practitioners usually prepare and conduct the case with advice and instruction from the parties
necessary for a civil trial to advise the parties on different options that can be taken, or legal processes that need to be followed
make opening and closing addresses
to present the case to the judge or jury
to comply with the overarching obligations to the court
limitations of legal practitioners
because the system has evolved to rely upon parties having legal rep, parties can rely heavily on legal reps to present their case, especially complex cases
legal representation can be very expensive
limited legal aid funding for civil manners, depending on the case, some community legal centres may provide low cost representation
responsibilities of the parties
trial system works such that each party controls its own case and has complete control over decisions about how the case will run
many of the responsibilities of the parties are shared with legal practitioners
make opening and closing addresses
present their case to the jury
comply with overarching obligations
limitations
parties may be companies with easier access to legal representation
parties may be unevenly represented
principles of justice
fairness (achieves)
parties have control over their case, so the best evidence for their case can be presented
legal practitioners give parties an advantage to a fair trial as they can advocate that processes are upheld
fairness (does not achieve)
civil trials are very complex and really require a legal practitioner, so the parties are unadvised to self represent for a complex manner
parties have to rely upon legal practitioner advice which takes some of their control away
equality (achieves)
both parties recieve the same direction and guidance from the judge
equality (doesnt achieve)
a more expensive legal rep could mean they have more time and expertise for the case, so the parties may not be equally represented
access (achieves)
legal reps help the parties to prepare and present their case
access ( does not achieve)
not everyone can afford legal rep
not all parties can afford a jury
methods of dispute resolution
mediation
third party that helps parties communicate without offering suggestions
parties come to a decision themselves
not binding
VCAT
: often refers to disputes to mediation. in small claims referring to goods and services, VCAT uses mediation as a way to resolve the dispute. if it does not settle, the final hearing is scheduled for the same day.
CAV
: has the power to use mediation, however mainly uses conciliation
private use
: individuals can attempt to use mediation at any time
conciliation
third party that helps parties communicate and as they are an expert in the area of dispute, offers suggestions on how the parties can resolve the issue
parties come to a resolution themselves
not binding
VCAT
: parties may be told to take part in compulsory conference to identify and clarify the nature of the issues in dispute and promote a settlement before heard in tribunal.
-
CAV
: the primary method of solving disputes is through conciliation
private use
: parties can attempt at any time
arbitration
third party (judicial officer/ arbitrators) that hear the evidence and both sides of the dispute
judicial officers decide on the outcome
binding decision on parties which is enforceable at court
VCAT
: final hearings are arbitrations
CAV
: does not use arbitration
private use
: parties can organise a private arbitration
mediation/ conciliation is suitable for
disputes where an ongoing relationship is wanted
disputes where both parties are willing to meet and compromise
disputes in which parties expect high legal costs
disputes that want to be resolved sooner
mediation/ conciliation is not suitable for
disputes with overwhelming emotions in which could interfere with the negotiation process
history of broken promises
when one or both parties are unwilling
when there is a large imbalance in power
when matter is urgent
arbitration is suitable for
disputes in which parties have agreed to arbitrate the dispute
when a claim is less than 10,000 dollars and has been issued in the magistrates court
disputes in which parties want the benefits of a binding and enforceable award made by an independant third party
disputes in which parties want evidence to be presented to a third party and some rules of evidence to apply
arbitration is not suitable for
disputes where parties have not agreed to arbitrate the dispute and do not want arbitration as a dispute resolution method
dipsutes where parties want greater control over the dipsute resolution process and outcome
disputes where parties want their day in court and dont want it conducted in private
disputes in which parties are more comfortable with formal rules of evidence and procedure and would rather go to court
principles of justice
fairness (upheld)
parties have control over the process (mediation and conciliation)
impartial and independent third party ( all)
fairness (hindered)
might be a power imbalance so one party has to compromise too much (mediation, conciliation)
the truth might not come out as there is not the strict rules of evidence and procedure of courts (all)
equality (upheld)
process of the method applies to both parties (all)
parties need to agree to enter the process ( all)
equality (hindered)
one party might use legal rep which tips the balance of power between the parties (all)
access (upheld)
reduced costs compared to court ( all)
simple process that usually does not require legal representation (mediation, conciliation)
access (hindered)
arbitration is expensive and usually requires legal representation
might be hard for a party to know how to access these methods, so might default by going straight to the courts ( all)
purposes of remedies
injunctions
non financial remedy where a party may be compelled to undertake, or to refrain from undertaking a particular behaviour
purpose is to rectify a situation caused by the person who was found to be in the wrong
restrictive/prohibitive injunction
restrains a party from undertaking a specific act
ordering a person to refrain from undertaking an action
eg. company must not demolish a building
mandatory injunction
compels the party to undertake a specific action
eg. defendant must not complete building house
final order
determination at the hearing or trial
interlocutory injunction
temporary remedy until the case is heard (used when the matter is urgent. eg, coles protests)
purpose of injunctions
to restore the party that has suffered loss or harm, or will suffer loss or harm to their original position by stopping the harm from continuing, or preventing the harm from occurring
damages
an amount of money to be paid by the defendant to the plaintiff
specific damages
damages that can be accurately assessed ( eg. physical injury= $150 of lost earnings, couldnt work for a division of administrative rules plus $160 of doctors appointments)
general damages
amounts of compensation that cannot be accurately meassured
assessed by the court according to the magnitude of the wrong done and the long term consequences of the wrong
suffering loss of enjoyment of life, which cant be worked out to a dollar amount
aggravated damages
can be awarded to compensate the plaintiff further if the court believes that the defendants conduct injured the plaintiffs feelings by causing humiliation as an insult
exemplary damages
awarded where the court intends to make an example of the defendant as punishment
the purpose is to punish and deter the defendant where conduct is wanton, malicious, violent, cruel, or in scornful disregard of the plaintiffs rights
nominal damages
where a plaintiff may have not suffered a significant loss, but it is important to award damages as a matter of principle
purpose is to uphold the plaintiffs right without awarding any substantial amount of damages
contemptous damages
awarded when the plaintiff may have a valid claim, but the court is not sympathetic to the matter
court or tribunal may feel that a plaintiff does not really deserve to be paid damages, but legally they have a right to damages
small sum of money
remedies, purposes, and the extent to which it was received
damages
:
purposes: compensate plaintiff for losses suffered, allow plaintiff to show their legal rights were breached, show courts contempt for claim by plaintiff
factors to consider: can damages compensate for the specific type of loss suffered by the plaintiff?, can the loss be accurately quantified?, can the defendant afford to pay?
injunctions
purposes: rectify position caused by the person in the wrong, stop person undertaking an action to halt the harm, order person to undertake specified action to remedy the harm
factors to consider: has the defendant already done something to infringe on the plaintiffs rights?, will defendant comply with injunction?, who will enforce it?
factors that affect the ability of the civil justice system to achieve the principles of justice
costs
legal rep costs depends on the nature of the dispute
estimates amount spent in legal costs by an average plaintiff on a supreme court court matter was around $60,000
most civil parties cannot access legal aid as a majority of the legal aid funding is spent on criminal and family law cases
costs associated with engaging expert witnesses and mediators, filing and hearing fees and using a jury.
legal costs and POJS
fairness
if people do not have access to money to pay for legal costs, they may be forced to settle or withdraw their claim, or self represent, which can lead to unfair outcomes
a courts duty to ensure a fair trial and a judges responsibility to assist a self represented party can help ensure fairness, but self represented litigants may still struggle to understand legal issues or procedures
self represented litigants do not have the same objectivity as a party who is represented by an experienced legal practitioner, may not be able to make right decisions in the case because they are too emotionally invested
equality
self represented parties or parties with less skilled legal representation can often have an unequal footing in court, particularly given the skills necessary to argue the case in front of a judge ( and jury if there is one). a lack of legal rep can impact on more vulnerable people
access
costs can prohibit a persons access to the legal system, particularly courts, as they often are deterred from making or defending a claim, or will have to settle the claim to avoid trial
cost issues
VCAT ensures lower costs by charging low fees and and requiring parties to be self represented and can avoid costs associated with pre trial procedures and formalities, though it depends on the case.
costs have been increasing since 2016
VCAT fees are still quite low
time factors- court delays
the time it takes for courts to resolve disputes can vary greatly.
eg. in lower courts it can take 6 months, in superior courts it can take more than 12 months
court delays causes: court backlogs, pre trial procedures, evidence and gathering information, covid.
court delays and the principles of justice
fairness
the passage pf time can impact on the reliability of evidence, jeopardising a fair outcome
delays deny the parties fair and due process
equality
delays can have a particularly serious impact on some parties (injured persons)
can also impact on more vulnerable parties, whoa re generally not familiar with litigation and can be stressed by the inconvenience of court processes (unlike larger businesses)
a lack of legal rep can impact on more vulnerable people
access
delays may enforce parties to settle or withdraw their claim, frustrated by the loss of time or unable to continue without settlement. can reduce genuine access to the civil justice system
the reality of possible delays may also deter parties from pursuing their claim in the first place
cultural differences- barriers to communication
barriers to communication can include anything that prevents a person from revieving and understanding information. in the legal context barriers to communication can:
prevent a person from understanding their legal rights
reduce a persons understanding the methods and bodies used to resolve disputes
fairness
people who are unable to communicate well in english may not understand their legal rights or the dispute resolution methods or bodies that can help them resolve a dispute. reduces their ability to assess procedures and engage in trial and hearing, therefore reducing their ability to present their case in the best light possible
equality
people who experience communication barriers may struggle to tell their side of the story. this can make them unequal before the law or deny them equal opportunity to present their case
access
a person with little understanding of their legal rights and the mechanisms used to resolve disputes may abandon their claim or defence, may not know they have a claim or defence in the first place, or may compromise or withdraw their claim or defence just because they feel uncertain about what needs to happen to pursue their case.