Unit 3 AOS 2 Brief Overview
- Parties are plaintiff, the party who commences civil action and the defendant, the alleged infringer of rights or wrongdoing. Can be multiple plaintiffs and defendants. To sue or litigate.
- Aim of civil action is to obtain remedy that will compensate a successful plaintiff (damages, monetary compensation to put plaintiff in place before injury/harm occurred; injunction, legally binding order that either compels a defendant to perform an act or stipulates that the aforementioned refrains from performing an act (mandatory and restrictive, respectively)).
- Types of civil disputes: fam law, breach of contract & four tort, births, deaths & marriages.
- Dispute resolution bodies; complaint bodies like CAV, ombudsman offices, tribunals (VCAT) and courts. ADRs are mediation, conciliation and arbitration.
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3.2.1 THE PRINCIPLES OF JUSTICE
- Fairness means fair processes and a fair hearing/trial (inc pre-trial & mediation) in civil. Parties should be aware of case against them so can adequately prepare, dispute res processes should operate to ensure no disadvantage and impartiality is guaranteed. Aspects of fairness include timely dispute res, availability of legal rep, appropriate assistance and proper understanding, compliance with due process and proper law application and ensured bias-free treatment of parties.
- Equality means all people are equal before the law, same treatment for all and equal opportunity to present a case in civil, free from bias and prejudice. Aspects of equality include impartiality of judge and jury, conformance to due process, the extent to which CJS is available to all, disadvantage faced by vulnerable (Indigenous, disabled, low socio-eco), the impact of legal rep and its availability and the opportunity to be equally repped.
- Access means the ability to approach and make use of the legal system when pursuing a civil claim. Should be able to get info, use procedures and ADR methods & institutions to resolve disputes. Aspects of access include avail. of methods and bodies to resolve disputes, interpretation services, associated costs and delays, complex nature of civil procedures, avail. of legal adv & ass, formalities of trial and courts.
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3.2.2 KEY CONCEPTS IN THE CIVIL JUSTICE SYSTEM
- Standard of proof on the balance of probabilities, party whom is more likely to be in the wrong than not (liable); 51% - 49% can result in a win. Much less strict than criminal.
- Plaintiff has burden of proof, ‘onus to prove guilty’. Defendant can have burden of proof onus if a counterclaim is lodged or if a certain defence is raised (contributory negligence in a negligence claim). Upholds fairness.
- Representative proceedings - or class actions/group proceeding - is a civil claim initiated by a lead plaintiff on behalf of at least seven other members who all have a claim arising from the same or similar nature/facts. Types include shareholder class action, product liability class action (Toyota recall) & natural disaster class action (Jack River bushfire). ‘Loser pays’.
- Benefits of CAs include; group members can share costs, more efficient and reduces number of individual claims, people can pursue civil actions they ordinarily would not be able to afford in an individual case and litigation funders can fund the CA in return for a portion of the settlement, ultimately increasing access. However, a significant amount of the settlement may be payable for fees, especially to litigation funders, thus reducing the damages obtained. CAs may also increase number of unmeritorious actions against businesses. SIGNIFICANTLY INCREASES ACCESS.`
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3.2.3 FACTORS TO CONSIDER WHEN INITIATING A CIVIL CLAIM
- NEGOTIATION OPTIONS; can it be solved through ADR or a tribunal? Can reduce time, cost, emotional upheaval and animosity; advisable for all (ACCESS). Encouraged to resolve dispute individually before hiring third party (ADR). Beneficial as time & costs of court are avoided, parties have control over outcome, more prepared to accept mutual agreement rather than court-ordered. Not advisable when one party refuses, previous attempts have failed, risk of violence or harm, urgency to hear in court, significant power imbalance (young employee against a wealthy employer).
- COSTS include fees for legal rep (billable hours), court costs & disbursements (out of pocket eg expert witness). Engaging a solicitor and barrister is $$$, can be prohibitive and cost of legal rep dependent on complexity, length, expertise, size of case and court. Disbursements include court filing fees, court hearing/trial fees, jury costs if applicable, mediation fees and expert witness fees. Adverse costs is ‘loser pays’ for theirs and opposition. Imposable through a court order. VLA provides some legal rep for civil but tight eligibility criteria. Prioritised to crim & fam cases. Plaintiff needs to consider dispute resolution cost, their financial status, VLA eligibility - can they afford adverse costs order should one be imposed?
- LIMITATION OF ACTIONS is the restrictive allocated period to commence a civil claim in court. Defendant can use this defence if period has expired; may bar plaintiff from obtaining a remedy. Personal injury period is three years (average), whereas defamation is 12 months. Limitation of Actions Act 1958.
- SCOPE OF LIABILITY, needs to determine possible defendants and their liability (how much of the onus pie?), contributory negligence is often claimed in relevant cases to decrease liability. Employers can be responsible for employees under vicarious liability as well as insurers. Accessorial liability can find some liable if they were directly or indirectly involved (eg encouraging someone to cause harm, aiding, abetting, urging or conspiring).
- ENFORCEMENT ISSUES – can the defendant actually pay? Will they? Follow may affect: bankruptcy, imprisoned defendant, company without assets, uncontactable and an unknown defendant (random attack). Enforcement method includes court order to seize assets and sell them to ensure settlement funds. Should any enforcement issues arise, may inhibit plaintiff’s ability to obtain a remedy.
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3.2.4 THE PURPOSES AND APPROPRIATENESS OF CAV AND VCAT IN THE RESOLUTION OF CIVIL DISPUTES
Consumer Affairs Victoria (CAV) is a complaint body that offers dispute resolution services, focusing on the business side. Advises VicGov on consumer legislation and ensure compliance with consumer law. Provides consumers & traders, landlords & tenants, with a DRP and helps people settle their disputes efficiently without cost. Only accepts complaints from consumers & tenants, not businesses & landlords.
- Mainly uses conciliation in which a terms of settlement is usually drawn, reflects the agreement and can be legally enforceable (court) if breached.
- Purpose: to provide consumers and tenants with a constructive, cost-free and efficient method of dispute resolution in an informal and timely manner. (whatever you CCE IT as)
- Appropriateness: if within CAV’s jurisdiction (supply of goods/services, residential tenancies, retirement villages and owners’ corporations) ; if case is likely to settle. May not be appropriate if there is an alternative method to resolve (tribunal for larger cases? Mutual negotiation to be tried beforehand).
- Strengths; free conciliation service, informal process, ensures procedural fairness, timely manner (matter of weeks), encourages agreement between parties through low level of professional interference.
- Weaknesses; CAV’s role is limited, cannot compel parties to participate in conciliation, cannot enforce agreed decisions/not legally binding, not appropriate for large cases, informality may result in lack of seriousness deriving from one party.
Victorian Civil and Administrative Tribunal (VCAT) is a tribunal. Its purpose is to resolve disputes in a cost-efficient, accessible, independent and timely manner (CAIT), as an alternative to court.
- Governing body; president (VSC judge), vice-pres’ (VCC judges), responsible for VCAT management and admin. Four divisions – admin (legal practice, planning & environment and review & regulation), civil (claims, building & property, owners corporations), HR (guardianship & HR) and residential tenancies. If a matter doesn’t settle, a final formal hearing will see a VCAT member make a legally binding decision.
- Low cost is ensured with small filing claim fee ($62.70), three tiers of fees payable (with companies with revenue over $200K paying most, ensures fairness for low socio), no hearing fees for some claims (eg less than 15K), abolition of pre-trials in many cases as well as increased self-representation. Court fees can be ongoing, from $500 filing fee in MC. Legal rep not allowed in some lists; puts parties on a more EQUAL footing as quality of barrister not needed to be matched, can relieve cases of financial hardship.
- Orders can include payments, compel or refrain, dismiss a claim etc. Appeals can only be made on a point of law to be heard in VSC or VSCA if heard by a president or vice-president.
- VCAT’s appropriateness for a case is determined through its jurisdiction and better ways to resolve the dispute.
- VCAT has exclusive jurisdiction to hear certain cases and review jurisdiction from some institutions. It can hear goods & service claims (from businesses, sellers and consumers), residential disputes, discrimination & vilification, retail tenancies, lawyers’ conduct etc. Can’t hear class actions, employee/r claims, disputes between drivers in car accidents, or disputes between neighbours. Parties should also consider negotiation, nature of fees, too complex for VCAT, or formality of a courtroom is preferential.
- Strengths: cheaper and affordable, speedy resolution, informal, flexibility ensures fairness and equality (self-representation), negotiation and ADR is encouraged to reduce animosity and preserve relationships, decisions made in a final hearing are binding.
- Weaknesses: can be as expensive as court (increased legal rep & hearing fees), not appropriate for large/complex cases, limited right to appeal on point of law (VSC & A if heard by pres/vice-pres, expensive), may be too informal & VCAT members not usually judicial officers with more experience, not bound by precedent due to its absence in court hierarchy, inconsistencies may develop as result.
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3.2.5 THE PURPOSES OF CIVIL PRE-TRIAL PROCEDURES
- Pleadings are a pre-trial proc, exchanged between parties, lays out and clarify claims and defences,
- Statement of claim defines claims against defendant and remedy sought. A defence, filed by d, sets out their response to individual claims. Claims and defences cannot be later raised if not in pleadings. Purposes include procedural fairness by compelling parties to state material facts and ensure opponent is aware, avoids ambush or surprise, gives court written record of case, sets limits to the dispute, can assist in out-of-court settlement (eg strong case, might force opponent to settle before trial).
- Discovery of documents enables parties access to documents relevant to the claim and pleadings through the disclosure of all documents. Eg. medical bills and records, contract in breach of contract, invoices, abusive emails. Purposes include disclosure of documents to ensure procedural fairness and reduce risk of surprise and trial by ambush, determine strength of opposing case and likelihood of success, ensure court has relevant materials and documents to achieve a just outcome, assist in reaching an out-of-court settlement in compelling cases.
- Exchange of evidence is relied upon by parties to present a case/rebut. Lay evidence is that from an ordinary person, evidence about factual circumstances. May give evidence orally or viva voce under oath, as a witness outline, filing a witness statement (written form, witness only need attend for cross-exam & re-exam). Expert evidence is opinionated with expertise in a professional field (coroner, accountant). Often submitted as a written report and only within their area of expertise. Must remain independent and honour their duty to the court. Purposes include reducing surprise & ambush, determine strength of case, opportunity to rebut & prepare an adequate case, allow defendant to comprehend amount of damages sought to consider settlement prior trial.
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3.2.6 THE REASONS FOR A VICTORIAN COURT HIERARCHY IN DETERMINING CIVIL CASES
- Reasons for appeal include administrative convenience, ensuring efficient utilisation of court resources and avoiding delays. Cases are distributed according to their seriousness & complexity. Minor civil claims heard in Mag (less than 100K), less serious and quicker but more Magistrates due to high demand; major cases heard in higher courts where there are less cases which take longer to hear & expert judicial officers. VCC & VSC have unlimited jurisdiction and VSC only can hear class actions, inclusion in court hierarchy allows easier allocation of time for complex cases.
- Appeals are enabled through CH, allows parties to appeal to a higher court to have the case reviewed regarding concerns of remedies, question of fact or point of law. Leave is usually require in civil. (SIMILAR EXPLANATION AS CRIMINAL APPEALS, THOUGH REASONS FOR APPEALS DIFFER)
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3.2.7 THE RESPONSIBILITIES OF KEY PERSONNEL IN A CIVIL TRIAL
- Judge is an impartial adjudicator in a civ trial. Significant powers of case management (order mediation, give directions), decide on admissibility of evidence, attend to jury if applicable, determine liability & remedy in defamation cases, make a decision on costs (eg adverse costs order). Cannot overly interfere or assist self-repped to risk a mistrial.
- Jury (if applicable) of six can be requested by plain or def in pleadings or ordered by court, although rare. Must be impartial and objective, listen to and remember evidence presented (research results in dismissal), understand directions and summing up towards conclusion, decide on liability on the balance of probabilities with a unanimous verdict typically.
- Parties operates trial (party control), makes opening and closing addresses (outline and summary), present case to judge/jury and lay & expert witnesses, compliance with overarching obligations (reasonable endeavours to resolve disputes, disclosure of documents, acting to minimise delay and not mislead or deceive). Unrepresented may cause delays, highly complex and favourable to hire a legal practitioner.
- Legal practitioners on behalf of parties (typically solicitor, firm, and barrister, independent) ensure procedural fairness and strive towards a just outcome with their intimate knowledge of the law. Most crucial is duty to court and administration of justice, must make opening and closing submissions, present case in best possible light and comply with the ten overarching obligations as per the Civil Procedure Act (2010). The engagement of quality counsel is incredibly costly, though better representation may mean favourable outcome.
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3.2.8 JUDICIAL POWERS OF CASE MANAGEMENT
Case management power given by court rules (Magistrates’ Court General Civil Procedure Rules 2010 (Vic), County Court Civil Procedure Rules and Supreme Court (General Civil Procedures) Rules) & Civil Procedure Act, whose purpose is to facilitate just, efficient, timely & affordable resolution. Power to order mediation; s66 of CPA. Can order court officer to act as mediator or arrange private mediation. Can occur at any time. Can assist prompt and economical resolution. Power to give directions before in pre-trial directions hearings (hearing regarding time limits and conduction of civil proceedings); can include directions regarding timelines/limits, conduct, mediation, expert evidence and its limitations, and providing or limiting discovery. Directions during trial include evidence orders and what to be given, limit on trial period, limiting witness exams and number, vica voce or written evidence and which party bears the costs (adverse costs order).
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3.2.9 EVALUATION OF THE COURTS
- VCC and VSC have unlimited jurisdiction. VMC’s jurisdiction is civil claims up to $100K, an amount more than this should be reduced or escalated to VCC or VSC. VCAT has exclusive jurisdiction over some cases, thus they cannot be heard in court – includes domestic building, retail tenancies, residential tenancies and planning disputes.
- Strengths of the court includes admin convenience through court hierarchy; opportunities to reach out-of-court settlement; procedural fairness is achieved through conduct of proceedings; laws apply equally to all (equality); jury allows reflection of community values in decision-making/verdict; engagement of expert figures ie judges & legal practitioners; court and its figures are impartial and independent; binding and certain outcome.
- Weaknesses of the court includes delays which can contribute to unfairness; significant costs may restrict access and pose a disadvantage, especially to low socio; complex procedures are difficult to navigate w/o legal rep (contribute to cost); lack of assistance for self-repped, disadvantageous; jurors are not expert figures and may jeopardise a fair outcome; deliberations are confidential and no reason has to be given for verdict, biases may be present; legal reps may mean outcome is based on presentation of case, not true liability.
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3.2.10 THE METHODS USED TO RESOLVE CIVIL DISPUTES, INCLUDING MEDIATION, CONCILIATION, AND ARBITRATION AND THEIR APPROPRIATENESS
Mediation is a method of alternative dispute resolution whereby a neutral third party – a mediator – facilitates a discussion between the parties in dispute, whom strive to reach a mutual agreement. Outcome is not automatically binding nor enforceable, though parties typically establish a terms of settlement upon conclusion.
Conciliation is a method of alternative dispute resolution whereby a neutral third party – a conciliator – facilitates a discussion between the parties in dispute. However, unlike a mediator, the conciliator makes suggestions as to possible solutions to the dispute, though parties must still reach a mutual agreement. Outcomes are also not automatically binding nor enforceable, though a terms of settlement is typically established.
Appropriate for mediation and conciliation if animosity needs to be reduced (eg divorced parents); parties willing to compromise; confidentiality is sought; case referred to such ADR; matter can be resolved earlier out-of-court. Inappropriate for mediation and conciliation if power imbalance exists; matter is urgent; party is unwilling; risk of violence or threatening behaviour; emotion may interfere with the negotiation process.
- Strengths include less formal and more flexible; safe and supportive environment; much cheaper w/o pre-trials and delays are reduced; saves court resources and that of its personnel.
- Weaknesses include not binding w/o terms of settlement; cannot compel parties to participate; matter may proceed to litigation anyway, thus wasting time and money; power imbalance may intimidate party and they may compromise too much, hence leading to dissatisfaction and injustice.
Arbitration is an ADR which uses a neutral and impartial third party whom listens to facts of the dispute and makes a legally binding decision, an arbitral award. Available to parties when both agree to use arbitration, court-order with parties’ consent or claim filed in VMC for less than $10,000.
VMC, VCC & VSC have power to refer disputes to arbitration prior to final proceeding with consent of the parties. VMC uses for claims of less than $10K. VCAT hearings are not arbitration, although they may refer matter if it is more appropriate than their services. Individuals can organise their own arbitration to resolve a dispute.
Appropriate when parties have agreed to arbitrate dispute, or less than 10K in VMC; parties want binding decision and arbitral award instead of court order; parties want to avoid the publicity of a court room. Inappropriate when parties do not desire or consent to arbitration; parties want more control regarding the outcome; parties seek their ‘day in court’; formal court procedure is sought.
- Strengths of arbitration include binding & enforceable decision; confidentiality and guaranteed privacy; generally less costly than court due to flexibility (no need for legal rep and absence of pre-trials); arbitrator is typically an expert.
- Weaknesses include no control over outcome and arbitral award; limited right to appeal opposed to a trial; not available if parties don’t agree or not a small VMC claim; can be formal if desired, adding to time, cost and emotional upheaval.
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3.2.11 THE PURPOSE OF REMEDIES
A remedy is an order made by a court or tribunal that aims to address a civil breach or wrong which results in injury or loss. Its general purpose is to restore the plaintiff, as far as possible, to the position they were in before the wrong occurred, prior to harm or damage.
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3.2.12 DAMAGES AND INJUNCTIONS, AND THEIR SPECIFIC PURPOSES
- Damages is financial compensation awarded to a plaintiff upon the conclusion or resolution of a dispute, to be paid by the defendant. Its purpose is to compensate the plaintiff for any harm or damage suffered.
- Compensatory damages are most common, aims to restore plaintiff as far back to their original position as possible by compensating them for losses suffered.
- Specific damages are quantifiable and can be given a monetary value, eg medical bills.
- General damages are an estimate, incalculable and consider matters like future loss of wages, long-term job prospects and past and future pain and suffering.
- Aggravated damages are awarded to compensate further if the defendant’s actions caused humiliation, mental stress and insult.
- Nominal damages may be awarded when a plaintiff is seeking to make a point about their legal rights being infringed but is not looking for a large amount. Awarded to uphold the plaintiff’s right w/o awarding a substantial amount.
- Contemptuous damages may be awarded when a plaintiff has a legal right to damages but no moral right (eg. stupid claim). May be given $1 to recognise right.
- Exemplary damages seek to punish the defendant for an extreme infringement of rights and deter others (denunciate & deter). Cannot be awarded to a plaintiff in defamation.
- An injunction is a court order directing someone to perform an action, or restricting them from carrying out an action. Aims to rectify a situation caused by the defendant. Restrictive & mandatory. An interlocutory injunction is temporary, awarded quickly where there is urgent need (eg neighbour about to demolish your house). Its aim is to preserve the position of the parties until the final determination of the matter, where it can either be overturned or become a perpetual injunction.
- EVALUATE: To what extent do damages achieve their purpose (returning to original position)? Very appropriate for cases involving economic loss, as specific damages can compensate for all lost, including calculable loss of wages. Compensation is also typically acceptable to make up for breach of one’s rights and any injury or harm. Conversely, damages can only compensate for the infringement, do not take into account time and stressful nature of court proceedings. Aside from the penalty, no persisting effect/ punishment for defendant. Money cannot account for suffering, loss of function, crippling injury, future earnings and overall quality of life. Damages are restricted also in the amount to be awarded.
- EVALUATE: To what extent do injunctions achieve their purpose (returning plaintiff to original position)? Mandatory injunctions can order a defendant to fulfil an obligation, therefore restoring the plaintiff and restrictive injunctions can prohibit actions, thus they cannot continue to harm the plaintiff. Contrarily, a defendant’s non-compliance will lengthen court proceedings and stress of plaintiff due to contempt of court action. In comparison to damages, tangible compensation is not obtained and may not directly benefit plaintiff, hence they may not be returned to their original position.
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3.2.13 FACTORS THAT AFFECT THE ABILITY OF THE CIVIL JUSTICE SYSTEM TO ACHIEVE THE PRINCIPLES OF JUSTICE
COSTS FACTORS can impede or enhance the ability of the civil justice system to achieve justice.
- Legal costs can restrict. Engagement of legal rep incurs significant costs, though complex nature of proceedings rely on rep for a fair trial, thus achieving a fair outcome. Low socio populations may be disadvantaged if they have to self-rep or have low qual rep, contradicting fairness and disallowing equal footing, and can negatively impact justice. Average plaintiff costs for VSC proceedings $60K. Acts as a deterrent from accessing civil JS and pursuing action for a breach of their rights. Most civil parties cannot access legal aid (prioritised for crim & fam), resulting in forced early settlement or withdrawal, even not initiating claim. Court costs and disbursements (expert witness fees, mediation, filing & hearing, jury if applicable) and adverse costs if unsuccessful. Judicial assistance given to self-repped may alleviate struggles to an extent, though will not completely overcome difficulty and cannot advocate for party.
- VCAT costs can enhance and hinder. Tribunal provides alternative to court which is cost-effective, accessible, informal and timely (CAIT). Caters for self-rep (informality) and its three-tier fee structure allows accessibility to a dispute resolution body (health-care card, standard & corporate). Although aims to reduce costs, they have risen since 2013 alongside the costs of operation. Application fees have risen by more than $300 for a Civil Claims List matter in five years. Still lower than court fees, although VCAT 2016 Annual Report noted decrease in app. since price rise, thus inhibiting justice.
- Increased use of ADR has enhanced justice, avoiding final hearing or trial in court or VCAT. Earlier resolution of a dispute results in sparing costs; avoids pre-trials and need for legal rep, as well as erasing possibility of adverse costs. Also saves costs for court or VCAT and the CJS. More spent on trials means more funding for dispute resolution bodies, thus ADR saves time and cost of courts and tribunals and diminishes backlogs. Although, mediation too early may be ineffective and add to costs rather than reduce due to failed attempt which requires further action.
TIME FACTORS can affect the ability of the civil justice system to achieve justice.
- Court delays can restrict. Dependent on the nature of the claim, the court it is to be heard in and the number of parties involved. Most disputes in the lower courts were resolved within six months, whilst more than a third of cases in superior courts took more than 12 months. Caused by several factors like court backlogs, which affect all courts and can make obtaining a court date for a hearing or trial a long process. Pre-trial procedures can be complex and lengthy, though they can encourage an out-of-court settlement which improves access. Discovery is often criticised for its length, though case management powers can make orders and streamline this process. Also takes time to prepare and gather evidence ready for trial.
- VCAT waiting times, though aiming to be more efficient than court, can still be very long in some lists like planning and environment. Average waiting time sits at ten weeks, though can be as short as two in residential tenancy disputes – helpful to ensure that personal disputes are resolved quickly.
- Appeal processes have been reformed in the VSCA and HCA to reduced delays. In 2014, Supreme Court Act 1986 was amended to require leave for appeals regarding all civil disputes, and very few cases have a right to appeal. Standard timeframes implemented for certain actions and applications can be decided on the papers (without hearing) to reduce time. Imposed to ensure the timeliness of civil appeals and efficient, faster and high likelihood of success. HCA appeals require VSCA leave. In 2016, in represented applications, a panel of Justices would determine the need for an oral hearing and if appropriate for a decision on the papers. Expected to reduce time between application filing and hearing.
- Use of case management powers facilitate a just, efficient and timely trial (mediation & directions). Gives courts greater control through order of mediation or ADR, limiting scope of discovery (particularly in large cases to reduce time), order that pleadings are not required, restrict time for final hearings through limitation of witnesses and the time for cross-exams and submissions. Proactive judges help to narrow the issues in dispute and undertake only relevant steps by sticking to timelines, thus reducing delays.
ACCESSIBILITY FACTORS can enhance or impede the ability of the CJS to achieve justice.
- Barriers to communication can restrict. Can prevent a person comprehending their legal rights, limit their understanding of methods and bodies of dispute resolution and their understanding of processes. Often language based, little chance of successful navigation of the legal system. Extends to Indigenous and CALD populations where English is not the native language. More attention to this area is required, interpretation and general info published in many languages.
- Services in remote and rural locations can hinder. Services are often insufficient in some areas, outside metro parameters, and bodies may not be within close proximity. Courts and VCAT typically sit in areas convenient and accessible, use the circuit-court system to determine every court sitting. Ballarat, Bendigo, Geelong, Horsham, Mildura, Morwell, Sale, Shepparton, Wangaratta, Warrnambool & Wodonga have access to courts of all levels and VCAT. 37 VCATs, 51 VMC, 13 VCC & 13 VSC. Thus, people may not be equal before the law.
- Representative proceedings can increase. Increase people’s access to dispute resolution; litigation funding available, solidarity of plaintiffs ensures lower costs, increases accessibility to VSC by reducing number of small claims initiated with one large rep pro – ensures pursuit of legal rights and just outcome. Group members don’t have to be present, pay hefty costs, direct legal rep or give evidence. However, whilst facilitating access to courts, unmeritorious claims are more easily pursued, especially with a litigation funder, settlement amounts are significantly decreased for plaintiffs when gobbled up by fees from LF and class actions can be detrimental to businesses.
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3.2.13 RECENT AND RECOMMENDED REFORMS TO ENHANCE THE ABILITY OF THE CIVIL JUSTICE SYSTEM IN THE ACHIEVEMENT OF THE PRINCIPLES OF JUSTICE
Recent reforms addressing costs:
- Introduction of three-tier fee system in VCAT (2016). Corporate, standard and health-care card holder. Health care is capped at $150 regardless of nature of dispute. Intend to ensure accessibility of VCAT to society’s vulnerable and eliminating incurrence of significant fees; ensures fairness and equality by charging businesses (over $200K rev) higher fees. Some lists still have high fees, and health cares are still subject to an application fee which can be $$$.
- Use of Technology Assisted Review (TAR) in VSC (2017). Approved use of predictive coding during discovery in some cases; as accurate as a person managing discovery and is more efficient, cost-effective and timely than a lawyer doing same task. For example, in McConnell Dowell v Santam  VSC 640, the dispute generated in excess of 4mil documents which was reduced to 1.4 mil with TAR’s predictive coding. Manual discovery in this case would have been exorbitant, expected to have taken a junior solicitor 583 working weeks (10+ years) if they spent a minute reviewing each document. However, not all parties have access to TAR (inequality), doesn’t address costs of reviewing documents.
Recent reforms addressing time:
- Introduction of Judicial Commission of Victoria (JCV) (2016). A body for complaints regarding judicial officers or VCAT members about their capacity or conduct. Complaints include excessive delays in judgments. Allows scrutiny of such figures and ensure transparency of hearings/trials, though the JCV will not focus on general delay issues such as pre-trials, thus its ability to speed up justice is limited in its ability.
- Changes to HCA appeal processes (2016). Rather than allowing all leave applications to proceed to oral hearing, a panel of Justices decides whether an oral hearing is needed ; if not, heard on the papers. Reduces time and costs associated with HCA appearance as determines whether leave to be granted.
Recent reforms addressing accessibility
- Use of technology in civil litigation (2017). VSC practice note ‘technology in civil litigation’ aims to promote technology in civil conduct to reduce time and costs, as well as access of documents and info for trial (eg e-discovery). Specifies that emails are preferred, documents can be filed electronically and e-discovery. Provides greater access by allowing documents to be filed electronically instead of manually, and deals with litigation more efficiently. However, uptake of technology is relative new and slow, improvements are needed.
- Removal of judicial wigs (2016). All judges are to stop wearing wigs in civil matters, as they are archaic and do not assist in admin of justice. Modernises courts and ensures accessibility through absence of intimidating formality. Currently only applies to VSC and VCC, and does not address other stressors of the courtroom.
- VLA online tool (2017). People w/ legal issues can access website to garner advice, determine legal aid eligibility, advise where they can approach for help and answer simple legal questions. Currently only a prototype and offers limited assistance for civil disputes. Will not replace need for legal representation.
To discuss each reform: What problem or difficulty is it trying to overcome? Is it short-term or long-term? Which principles of justice is it improving? Any statistics or data to show its improvement? Total solution or other factors to needing improvement to address the issue?
Self-represented parties can hinder the effectiveness of the courts; like the wrong fuel being put into a car, won’t work the same and will be much slower.
Recommended reforms addressing costs
- Increased use of ADR methods. Victorian Access to Justice Review Report (VAJRR) suggests the expansion of ADR in resolution, whilst recommending that VCAT expands its SMAH into regional areas. ADR w/o final hearing can improve access to justice, provides parties with equal opportunity to present their case regardless of rep, though some disputes are not appropriate for court and may deny parties having their ‘day in court’.
- Greater legal aid funding to improve access to the civil justice system as many are barred due to the lack of grants for civil disputes. Increase access to justice and ensure equality and fairness, relieve pressure from legal system regarding the provision of advice. Relies on gov. funding which is unlikely to gain traction as voters perceive it as increasing funding for criminals.
- Online system for resolution of small civil disputes. VAJRR recommends that VicGov, whom agrees, introduces an online system for dispute resolution, a more accessible and cost-effective resolution of claims. Provide greater access, particularly those from rural and remote areas, could avoid the need for legal rep, relieve the pressure of courts since many claims and relatively small; though likely to require significant funding and may not be fully functional for a while.
- Assistance for self-represented parties. Productivity Commission recommended all court and tribunal forms to be written in plain language, and guidelines for self-rep help from staff. Will provide greater information and assist in understanding legal rights, though does not replace need for legal aid and guidelines are present in some courts, but do not alleviate issues.
Recommended reforms addressing time
- Improvements and increase in case management. Productivity Commission suggest that case management be used more, replacing formality with less formal concepts, requiring strict time limits and limiting manual discovery in place of e-discovery to facilitate efficiency and reduce delays. Modernisation will focus instead more on dispute and less on procedural steps. Can reduce delays and costs, though some do not wish to move away from pre-trials like pleadings.
- Easier enforcement of VCAT orders. VAJRR recommends simpler enforcement. Recommends that a monetary order should be an order of the court, automatically enforceable w/o certification of the court. Also suggests that non-monetary be enforceable without proceeding to VSC; VicGov agreed with recommendation, thus should be introduced sometime soon. Will reduce delays and costs if automatically enforceable w/o VSC action, enables greater ability for enforcement of compliance and advocates social cohesion.
Recommended reforms addressing accessibility
- Expansion of VLA info. VAJRR recommends that its website includes a web-chat service and info in an array of languages in accessible formats, whilst expanding its telephone services. Will enable knowledge regarding basic rights, help those from CALD backgrounds to understand justice system, though will require significant gov funding.
- Greater coordination between legal service providers. Productivity Commission (2014) and VicGov (2016) both suggested that coord should occur between legal aid bodies, tribunals and courts. Includes building upon existing phone hotlines and websites, and referrals where appropriate. Info should also be shared. Increase access to justice, allows citizens to be aware of their options, though likely to require significant effort and does not replace the need for legal rep.
- Publication of plain English and multilingual guides and info. Productivity Commission (2014) suggested all gov agencies should publish guides that summarise legislation in areas frequently encountered, focusing on disadvantaged populations. VicGov recommended that courts and tribunals should increase accessibility of their sites and legal info, ensuring publication to cater for CALD and Indigenous. Will ensure disadvantaged populations can recognise a breach of their rights, though likely to require significant funding from gov bodies.
- Improving access to interpretation services. Productivity Commission suggested National Indigenous Interpreter Service to maximise communication and inclusivity. VAJRR also advocated adequate interpretation services in all legal institutions. Will ensure greater understanding of court processes which supports all three principles of justice, though likely to require significant funding.
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