Legal Studies Unit 3 AoS 2 Part A Summary Slides

1. Unit 3 Rights & Justice
Area of Study 2 PART A
The Victorian Civil
Justice System

2. Key Knowledge
Key Concepts:
● the principles of justice: fairness, equality and access
● key concepts in the Victorian civil justice system, including:
○ the burden of proof
○ the standard of proof
○ representative proceedings

3. Key Knowledge
Resolving a civil dispute
● factors to consider when initiating a civil claim, including negotiation options, costs,
limitation of actions, the scope of liability and enforcement issues
● the purposes and appropriateness of Consumer Affairs Victoria (CAV) and the Victorian Civil and
Administrative Tribunal (VCAT) in resolving civil disputes
● the reasons for a Victorian court hierarchy in determining civil cases, including administrative
convenience and appeals
● the purposes of civil pre-trial procedures
● the responsibilities of key personnel in a civil trial, including the judge, jury, the parties and
legal practitioners
● judicial powers of case management, including the power to order mediation and give directions
● the methods used to resolve civil disputes, including mediation, conciliation and arbitration, and
their appropriateness
● the purposes of remedies damages and injunctions, and their specific purposes

4. Key Skills
• define and use legal terminology
• discuss, interpret and analyse legal principles and information
• analyse factors to consider when initiating a civil claim
• explain the purposes of pre-trial procedures, using examples
• explain the reasons for the Victorian court hierarchy in determining civil cases
• discuss and justify the appropriateness of institutions and methods used to resolve a civil dispute
• discuss the responsibilities of key personnel in a civil trial
• discuss the ability of remedies to achieve their purposes
• discuss recent reforms and recommended reforms to the civil justice system
• evaluate the ability of the civil justice system to achieve the principles of justice
• synthesise and apply legal principles and information to actual and/or hypothetical scenarios.

5. Principles of
Justice
Civil proceedings

6. Principles of justice in relation to civil proceedings
FAIRNESS
In the civil justice system, fairness means fair processes and a
fair hearing
● Both parties know the case against them have and have the
opportunity to present their case
● Dispute resolution is no disadvantage to one party
● Parties understand court processes and are able to participate
in hearing
What are some aspects of the civil justice system that relate to fairness?

7. Principles of justice in relation to civil proceedings
EQUALITY
In the civil justice system, equality means all people should be
treated equally before the law, with equal opportunity to present
their case
● No party should be treated favourably or unfavourably due to a
certain attribute or characteristic
● Processes should be free from bias and key personnel are
impartial
What are some aspects of the civil justice system that relate to Equality?

8. Principles of justice in relation to civil proceedings
ACCESS
In the civil justice system, access means that people should be able
to understand their legal rights and should be able to pursue their
claims
● People should easily access information about court processes
and procedures
● Access to legal aid to minimise self-represented parties
What are some aspects of the civil justice system that relate to access?

9. Key concepts in the
victorian Civil
justice system

10. Key Concepts in the civil justice system
Burden of
Proof
Standard of
Proof
Representative proceedings
The party who
must prove
the case
The plaintiff
The standard at
which the case
must be proved
Balance of
probabilities
If a group of people all have claims
against the same party, they can join
together, known as a class action
A class action is the main type of
representative proceeding, which is
bought in the name of one person on
behalf of someone else

11. Factors to consider when
initiating a civil claim
What the plaintiff must consider before proceeding
to trial

12. Relevant factors when initiating a civil claim
● When determining whether to begin a civil claim it is
important to consider the following factors
Negotiation
options
Costs

13. Negotiation options
● It may be an option to resolve the dispute
through negotiations directly with the defendant
● This is generally an informal discussion where
both parties agree on the dispute and resolution
● At times mediation may be arranged between the
two parties, or through a body such as Dispute
Settlement Victoria
In what circumstances do you think negotiation may not be an option?

14. Costs
Costs are often involved in resolving civil
disputes
● Fees for legal representation
● Disbursements
○ Out of pocket fees such as court fees, mediation and
expert witness fees
● Adverse costs orders
○ May occur if unsuccessful in claim, where the plaintiff
is required to pay the defendant’s legal costs
● Availability of legal aid

15. Considering Factors: issues affecting outcome
As well as negotiation options and costs, the plaintiff
needs to consider
Limitations
of actions
Scope of
liability
Enforcement
issues

16. Limitations of actions
● For each type of case there is a limitation period
○ Plaintiffs have to bring their case within a time limit
● Limitation of actions refers to the restriction placed on the
the time within which a civil action can be commenced
○ For example a defamation case must be brought before the
court within 1 year of the alleged defamation
● Limitations are mostly outlined in the Limitation of Actions Act
1958 (VIC)
● The limitation period can be extended in some circumstances
(fraud), and have also been completed removed in cases involving
physical or sexual abuse as a minor

17. Scope of liability
The plaintiff needs to consider
Who are the possible
defendants
The extent to which
the defendant is
liable

18. WHO IS LIABLE?
Man slips on banana peel left on floor of Safeway

19. Possible defendants
EMPLOYER
Store Manager,
though
vicarious
liability
INSURER
Insurance provider,
although not sued by
the plaintiff directly,
as a result of the
defendant payout, the
insurer wears the costs
EMPLOYEE
The person
involved in
wrongdoing (not
cleaning up the
banana peel)
The extent of liability of each may be challenged by the defendant

20. Enforcement issues
The plaintiff needs to consider
Whether the
defendant is able
to pay
Whether the
defendant will pay
It can often be extremely difficult for the plaintiff to enforce the remedy awarded due to
many reasons a defendant is unable to or will not pay

21. Resolving a civil
dispute

22. Avenues for resolving a Civil Dispute
There are many ways in which people can resolve a civil
dispute
Civil Dispute Resolution Bodies aim to assist people in
resolving their dispute
Three of these bodies are
CAV VCAT Courts

23. Consumer Affairs Victoria
(CAV)
Civil Dispute Resolution Body

24. Consumer affairs victoria (CAV)
● CAV is a complaints bodies that
are organisations who offer
dispute resolution services to
people who make a complaint about
another party
● The role of CAV is to resolve
disputes efficiently and
effectively, to ensure that any
inappropriate conduct is stopped,
and to help any party that has
been wronged seek compensation
for any loss suffered
https://www.consumer.vic.gov.au/

25. PURPOSE OF CAV
Advise the Victorian
Government on
consumer legislation
Helps people settle their
dispute efficiently &
constructively
without any cost
Provides consumers &
traders, and
landlords & tenants
with a dispute
resolution process*
Provide information &
guidance to educate people
about consumer laws &
enforces compliance with
consumer laws
*CAV only accepts complaints from tenants and consumers not from businesses and landlords

26. Dispute resolution methods used by CAV
● The main dispute resolution method used by CAV is conciliation
● Conciliation involves an independent third party that assists in
helping the parties resolve their dispute
● The conciliator does not make the decision, but rather listens
to both parties and makes suggestions to assist parties to come
to their own decision on resolution
● If an agreement is made, a terms of settlement or deed of
settlement may be signed, allowing the agreement to be
enforceable by the courts
● CAV also has the power to commence civil proceedings against the
business in some circumstances

27. When to use CAV
When determining whether CAV is appropriate for a dispute
three points are considered
1. CAV’s Jurisdiction
2. Likelihood of settlement
3. Better alternatives

28. CAV’s Jurisdiction
CAV can only assist in areas through Victorian statutes in
areas such as
● Supply of goods and services
● Residential tenancies
● Retirement villages
● Owners’ corporations (formally body corporate)

29. Likelihood of settlement
CAV will help resolve a dispute if there is a reasonable
likelihood of settlement
There are many factors that may hinder the likelihood of a
settlement
Delay in
making
complaint
Evidence of
previous refuse
to conciliate
Complainant
negative
contributions
Overly
subjective
Reasonable offer
of resolution
made

30. Better alternatives
Parties need to consider if whether there is a better
alternative to settling the dispute other than CAV, such as
a court or tribunal
Some points to consider include
Negotiation
between parties
alone
Binding Nature of
tribunal/court over
conciliation
Formality of
court/tribunal
over conciliation
Complexity of dispute may
be inappropriate for CAV
Urgency of
resolution

31. Strengths of CAV
Free Conciliation is free, allowing CAV to be accessible to all
Informal Conciliation is informal, as can be completed over the phone,
eliminating any stress of the courts
Fair Both sides are able to present their side of the story
ensuring a fair procedure
Case by case Each dispute is assessed individually, ensuring all disputes
are appropriate for CAV
Time efficient CAV aims to resolve disputes in a timely manner to avoid the
long delays experienced in more formal dispute resolution
bodies such as the courts
Individual resolution Conciliation offers parties the opportunity to reach a
resolution themselves. Parties are more likely to adhere to
the agreement when they have agreed to the outcome

32. Weaknesses of CAV
limited role CAV mainly handles disputes regarding consumer and landlord
disputes, neglecting many other types of civil disputes
Parties willingness CAV has no power to compel parties to participate in
conciliation. Both parties must be willing to take part
Limited enforcement CAV has no power to enforce parties to adhere to any
decisions made in conciliation (excluding when a deed of
settlement is signed)
Strict Criteria Not all disputes are accepted due to the strict criteria for
CAV
Lack of formality The informal nature of conciliation can often mean that one
party does not take the matter seriously
Appropriateness of
dispute
Large and complex disputes are not suitable for such an
informal dispute resolution body

33. Victorian Civil and
Administrative Tribunal (VCAT)
Civil Dispute Resolution Body

34. The Victorian Civil & Administrative Tribunal (VCAT)
● A tribunal is a dispute resolution body that resolves
civil disputes in a less costly, more timely and informal
setting than offered by the courts
● VCAT was established in 1998 under the Victorian Civil
and Administrative Tribunal Act 1998 (Vic)
● VCAT hears a range of civil cases in Victoria through
four divisions
● VCAT is managed by the President (Supreme Court Judge)
and vice-presidents (County Court Judges)
● Hearings are presided over by members of VCAT

35. Structure of VCAT
DIVISION TYPES OF DISPUTES LISTS
Administrative Deals with professional conduct inquiries and applications
from people seeking a review of decisions made by government
and other authorities
- Legal Practice
- Planning & environment
- Review and regulation
Civil Deals with a range of civil disputes relating to consumer
matters, domestic building works, owners’ corporation
matters, retail tenancies, sale and ownership of property,
and use or flow of water between properties
- Civil Claims
- Building & Property
- Owners Corporations
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
- Guardianship
- Human Rights
Residential
Tenancies
Deals with tenancy disputes, including disputes between
residential tenants and landlords, rooming house owners and
residents, caravan park owners and residents, and site
tenants and owners
- Residential Tenancies

36. Purpose of VCAT
VCAT aims to provide Victorian’s with a low-cost, easily
accessible, efficient and independent tribunal for civil
dispute resolution
VCAT members are independent and act as unbiased adjudicators similar to a
magistrate or Judge in the courts

37. VCAT - Low COst
VCAT provide low-cost dispute resolution through various
ways
● Low filing costs ($62.70 per day until July 2018)
● Three-tiered fee structure (allowing lower income earners
to pay less in fees than corporate businesses)
● No hearing fees for some claims (civil claims <$15,000)
● No pre-trial procedures for most lists
● Parties can represent themselves

38. VCAT - Accessibility
VCAT provides access to Victorian’s by
● Conducting hearings in various locations across Victoria
● Aims to improve access by adopting the use of telephone
and video conferences rather than attending the tribunal
● Allows certain documents to be lodged online
● VCAT is also less formal than the courts therefore allows
greater access to those who find the court system
overwhelming

39. VCAT- Efficiency
VCAT aims to reduce the amount of time it takes to resolve a
dispute. Often the court process can be quite lengthy,
whereas VCAT attempts to reduce wait times
Wait times vary from list to list, the average wait time
2015-16 in the Residential Tenancies List was 2 weeks
Since opening, VCAT has increased in time to resolve
disputes, however compared to courts, VCAT resolves civil
disputes in a far more timely manner

40. Dispute resolution methods used by VCAT
VCAT uses three main types of dispute resolution methods
Mediation
Including Short
Mediation and Hearing
(SMAH)
Compulsory
Conferences
Final Hearing
(before a member)

41. Mediation ● Mediation involves an independent third
party who aids the disputing parties in
making a resolution
● The mediator does not make the decision
or even offer suggestions, but rather
guides both parties in resolving the
dispute themselves through negotiation
● Mediation is not legally binding,
however often a deed or terms of
settlement is signed which is
enforceable by the courts
● Most disputes at VCAT will go to
mediation before a final hearing

42. Short Mediation And Hearing (SMAH)
Disputes about goods and services
in the Civil Claims List <$3,000
may attend a short mediation and
hearing
If the dispute is not settled in
mediation, the matter will go
straight to a hearing on the same
day

43. Compulsory Conferences
● Compulsory conferences are confidential
meetings between the disputing parties
and a VCAT member
● Unlike mediation, in the compulsory
conferences, the conciliation process is
used where the VCAT member (conciliator)
can offer suggestions on settlement and
explore possible outcomes of the final
hearing

44. Final Hearing ● If mediation, compulsory conference or any
other attempts made to resolve the dispute
have been unsuccessful, the dispute will
proceed to the final hearing
● The final hearing uses the process of
arbitration, where both parties present
their case and the VCAT member
(arbitrator) listens to both sides and
makes a binding decision
● Similar to the judicial determination used
in the courts, however far less formal
than the courts. VCAT has an obligation to
conduct the hearing with as little
formality and technicality as possible

45. Final Hearing - Orders
● The outcome of the final hearing are referred
to as orders
● The VCAT member can make a number of different
orders and these vary from list to list
● Generally VCAT may order
○ A party to pay money
○ A party to do something, such as perform
work, repairs
○ A party to stop doing something
○ Declare a debt as owing or not owing
○ Review, change or cancel a contract
○ Dismiss a claim
● Decisions are binding on parties and
enforceable by the courts

46. Final Hearing - Appeals
● Appeals from VCAT can only be made on questions of law,
that is that the law was not properly applied to the
case.
● Leave (permission) is required to appeal a VCAT decision
○ Appeals against VCAT President or vice president decision - appeal
heard in the Court of Appeal
○ All other appeals will be heard in the Supreme Court (Trial Division)

47. When to Use VCAT
When determining whether VCAT is appropriate for a dispute
two points are considered
1. VCAT’s Jurisdiction
2. Better alternatives

48. VCAT’s Jurisdiction
● VCAT obtains its power to hear cases through statutes
made by parliament
● VCAT has exclusive jurisdiction in some areas, meaning
that any disputes in these areas must be heard in VCAT,
for example domestic building disputes
● VCAT also has review jurisdiction where VCAT has the
power to revisit decisions made by certain bodies

49. VCAT’s Jurisdiction - types of claims
● Sales of goods and services
(claims from sellers and
businesses as well)
● Tenants and landlords
● Owners’ corporation
● discrimination , sexual
harassment, victimisation or
vilification
● Domestic building works
● Retail tenancies
● Lawyers and provision of legal
services
● Development of land
● Representative proceedings (class
actions)
● Disputes between employers and
employees
● Disputes between neighbours (unless
owners’ corporation)
● Disputes between drivers in car
accidents
● Disputes between tenants and
tenants
● Disputes involving federal or state
law where VCAT has not been given
power to hear case

50. Better alternatives to VCAT
Parties need to consider if whether there is a better
alternative to settling the dispute other than VCAT, such as
a CAV or the courts
Some points to consider include
Negotiation
between parties
alone
Nature of fees (some
lists VCAT is just as
high as Courts)
Formality of court
Complexity of dispute may
be inappropriate for VCAT
Greater avenues
for appeal

51. Strengths of VCAT
Less cost Generally VCAT is cheaper than the courts with low application and hearing fees
and the reduced need for legal representation
More timely Generally VCAT offers more time efficient resolution, the Residential Tenancies
List approx. 2 weeks wait time
Informal The informal environment of VCAT assists parties to feel more comfortable than in
the courtroom
Flexible Flexibility within the hearing processes allows for fairness and equality for
unrepresented parties
Specialised Each list operates in its own specialised jurisdiction allowing for expertise in
the area of law
Individual
resolution
Parties are encouraged to resolve their dispute through negotiation first as well
as being referred to mediation and compulsory conferences prior to final hearing
Streamlined Smaller claims can be streamlined more efficiently than the multiple steps
involved in a court hearing
Legally Binding The decision made in the final hearing is legally binding and enforceable by the
courts

52. Weaknesses of VCAT
Increasing cost Costs in VCAT are increasing due to the increased use of legal representation and
hearing fees
Complex claims VCAT is not appropriate for large or complex claims including class actions
Limited Appeal VCAT has limited rights to appeal with only appeals on points of law where leave
is required
Too informal The informal nature of VCAT may make parties feel ill-equipped to deal with the
procedure(s)
Not Judicial
Officers
VCAT members are not judicial officers meaning they may not be as experienced as
a judge or magistrate
Increasing
delays
VCAT is becoming more clogged, increasing delays in resolving disputes,
particularly in the Planning and Environment List
No precedent VCAT is not apart of the court hierarchy and therefore not bound by precedent
meaning inconsistency may develop over time
Certification Although VCAT decisions are binding, they require the courts to certify to be
enforceable

53. The Courts
Civil Dispute Resolution Body

54. Courts as dispute resolution bodies
● Courts are the main dispute resolution bodies in Victoria
The Victorian courts that resolve civil disputes
● If a civil claim is taken to the County or Supreme Court,
parties must complete various pre-trial procedures
Magistrates’ Court County Court Supreme Court

55. Appropriateness of courts as dispute resolution
As with CAV and VCAT, parties are to consider whether their
dispute is appropriate for the courts
JURISDICTION BETTER ALTERNATIVES

56. Civil Jurisdiction of victorian Courts
ORIGINAL JURISDICTION APPELLATE JURISDICTION
Magistrates’ Court Claims up to $100,000 No appellate jurisdiction
County Court Unlimited No appeals unless under a specific Act
Supreme Court (Trial
Division)
Unlimited On questions of law from the
Magistrates’ Court and from VCAT
Supreme Court (Court
of Appeal)
No original jurisdiction With leave, on questions of law,
question of fact or an amount of
damages from a single judge of the
County or Supreme Court and from VCAT
when the President or VP made the order
Although the County and Supreme Courts have unlimited jurisdiction, they are NOT permitted
to hear disputes that VCAT has exclusive jurisdiction over, such as domestic building or
residential tenancies disputes

57. Better alternatives
Before taking a matter to court, parties need to consider
such things as
Negotiation Costs
Legal
representation
Formal
natureTime

58. Victorian Court Hierarchy
High Court of Australia
Supreme Court
County Court
Magistrates’ Court
Trial Division
Court of Appeal

59. Reasons for civil court hierarchy
ADMINISTRATIVE CONVENIENCE
A court hierarchy allows for cases
to be disbursed according to their
seriousness and complexity,
speeding up the time it takes to
have a dispute resolved.
Smaller less complex cases can be
heard quickly and efficiently in
the Magistrates’ Court.
Complex cases are heard in the
County and Supreme Courts with
their unlimited jurisdiction
APPEALS
A court hierarchy allows for
parties who are dissatisfied with
the outcome to appeal the decision
Most civil cases require leave to
appeal (permission from the court)
Grounds for appeal include
● Point of law
● Question of fact
● Remedy awarded

60. Pre-trial procedures
Discovery of
documents
Exchange of evidence
/ Directions Hearing
Pleadings
A series of
documents between
parties outlining
the claims, defence
and remedy sought
Enables parties to
obtain all documents
relevant to claim from
the opposing party
To prove their case,
often parties rely on
evidence. Lay evidence
and/or expert evidence

61. Purpose of Pleadings
The main documents in
the pleading stage are
the statement of claim
and statement of
defence
Reach an out-of-court
settlement
Set limits on the dispute
Procedural fairness by
ensuring each side
knows what the claim
and defence is about
Avoid any surprises at
trial
Provide court with a
written record of the
case

62. Purpose of Discovery of Documents
all Parties have access
to relevant
documents
Avoid ‘trial by
ambush’
All documents
submitted to ensure
just outcome
Determine strength of
other parties case
Reach an out-of-court
settlement

63. Purpose of Exchange of Evidence/Directions Hearing
Determine strength of
case
Understand the
amount of damages
the plaintiff is
seeking
Opportunity to ‘rebut’
other side
Reduce element of
surprise & Avoid ‘trial
by ambush’
Reach an out-of-court
settlement

64. Key Personnel in the courts
In a County Court or Supreme Court civil trial, four key
personnel are involved
JUDGE JURY PARTIES
LEGAL
PRACTITIONERS

65. The Judge
The role of the Judge is to ensure that the trial upholds
the principles of justice, that is the trial is
The main responsibilities of the Judge include
● Manage the trial
● Decide on admissibility of evidence
● Attend to the jury (if present)
● Determine liability and remedy
● Make a decision on costs
FAIR EQUAL ACCESSIBLE

66. Power of the Judge - Judicial powers of case management
Judges and magistrates’ have significant powers of case management
The Victorian Parliament has passed laws that give power to judges
to manage cases before them
● The rules of the court, the Magistrates’ Court General Civil
Procedure Rules 2010 (Vic), the County Court Civil Procedure
Rules and the Supreme Court (General Civil Procedure) Rules
● The Civil Procedure Act
The purpose of the Civil Procedure Act is to assist in the just,
efficient, timely and cost effective resolution of the real issues
of the dispute

67. Power of the Judge - Judicial powers of case management
Two of the case management powers given to judges are to order
parties to mediation and to give directions to the parties
ORDER PARTIES TO MEDIATION
● Judges and magistrates
have the power to, at
any stage, make an order
referring a civil
proceeding to mediation
● Most Supreme Court civil
disputes are referred to
mediation before trial
and if often successful
in resolving the dispute
GIVE DIRECTIONS TO THE PARTIES
● Judges and magistrates have the power to
give any direction or make any order
considered to be appropriate, at any stage
of the civil proceeding
● A direction is an instruction to do
something by a specific time such as; file
a document, attend court or mediation
● Directions can be given at any time, though
often occurs during the directions hearing
as part of the Supreme Court pre-trial
procedures

68. The Jury
The presence of a jury in a civil trial is optional and may
be used in two situations
If present, the jury will consist of 6 members with the role
of making a decision about which facts are true based on a
balance of probabilities and assess damages (in defamation
cases, the jury no longer determines the amount of damages)
Either party requests a jury at their expense
(though request may be refused by court)
The court orders the case be heard by a
jury (though this is rare)

69. The Jury
The main responsibilities of a civil jury are to
Be objective
Listen to and remember
evidence
Decide on liability and in some
cases damages
Understand directions and
summon up

70. The Parties
● The main parties in a civil proceeding are the plaintiff
and the defendant
● In the adversary system of trial, parties have control
over how their case is run, known as party control
● The parties main role is present their case
Plaintiff
proving the facts of
the case
Defendant
giving a good response
to the claim(s)

71. The Parties
The main responsibilities of the parties are to
Opening and
closing
address
Present case
Comply with
overarching
obligations

72. The Legal Practitioners
The legal practitioners act on behalf of the parties
Their main role is to prepare and conduct the case
Legal representation is often needed as they have expert
knowledge of the court processes and procedures
Legal practitioners have special duties and obligations
imposed on them, the most important being the duty to the
court and the administration of justice

73. The Legal Practitioners
The main responsibilities of the parties are to
Opening and
closing
address
Present case
Comply with
overarching
obligations

74. Strengths of Courts
Strict rules Ensures procedural fairness and equality for all parties throughout the hearing
Court hierarchy Court hierarchy allows for administrative convenience and appeals ensuring cases
are heard by specialised judges and the decisions are fair
Determine
strength of case
Pre-trial procedures and court directions allow parties to determine the strength
of their case and the other parties case
Out-of-Court
Settlement
Pre-trial procedures provide parties with various opportunities to reach an
out-of-court settlement
FORMAL NATURE The formal environment of the courts ensures parties take the matter seriously
Legally Binding The decision made is legally binding and enforceable by the courts

75. WEAKNESSES of Courts
cost The courts can be quite significant with the pre-trial procedures and need for
legal representation
timely The court system often suffers long delays with pre-trial procedures, party
control, jury directions, judges decisions
Confusing Many court processes and procedures can be quite complex and difficult to
understand without legal representation
Stressful The formality of the courtroom can be very stressful for parties, particularly
where self-represented
Impartial Judge The judge is impartial and therefore cannot assist parties leading to possible
unfairness
Party Control The outcome of the case may be who presented their case better as opposed to
liability

76. Comparison of Civil Dispute
Resolution bodies
CAV, VCAT and the Courts

77. Comparison Dispute resolution bodies
It is important you can compare the three civil dispute
resolution bodies
CAV VCAT Courts
Cycle Plan 5 Summary Table Comparison of the Civil Dispute
Resolution Bodies

78. Civil Dispute Resolution
Methods
Mediation, Conciliation and Arbitration

79. Third Party -
Mediator
Facilitates
communication
between
parties
Used in courts
and VCAT
May be
enforceable
if a deed or
terms of
settlement is
signed
Resolution made
by partiesMEDIATION

80. How Mediation is used to resolve disputes
COURTS
COURTS
The Magistrates’,
County and
Supreme Courts
can order parties
to attend
mediation either
externally or
through judicial
mediation
VCAT
VCAT refers small
disputes to
mediation prior
the final
hearing. Goods
and services
cases attend SMAH
CAV
CAV can refer
parties to
mediation though
often do not as
they generally
use conciliation
as the method of
dispute
resolution
PRIVATE
Individuals may
attempt mediation
privately at any
time before or
after making a
claim

81. Third Party -
Conciliator
Facilitates
communication
between parties
and offer
suggestions
Used in CAV
and VCAT
(note Courts have
power to refer to
conciliation)
May be
enforceable if
a deed or terms
of settlement
is signed
Resolution made
by parties
CONCILIATION

82. How Conciliation is used to resolve disputes
COURTS
COURTS
Courts can refer
parties to
conciliation,
however they
generally use
mediation as
dispute
resolution. The
Family Court of
Australia uses
conciliation
extensively.
VCAT
During the
resolution
process through
VCAT, often
parties are
referred to a
compulsory
conference which
uses the
conciliation
process.
CAV
CAV’s primary
method of dispute
resolution is
though the
conciliation
process
PRIVATE
Individuals may
attempt
conciliation
privately at any
time before or
after making a
claim

83. Appropriateness of mediation & Conciliation
DISPUTES SUITABLE FOR MEDIATION &
CONCILIATION
● Continuing relationship
● Willingness to compromise
● Willingness to admit liability
● Wanting privacy and
confidentiality
● Combination of remedies
● Referred by the courts
● Parties wanting to resolve
dispute before trial
DISPUTES UNSUITABLE FOR MEDIATION &
CONCILIATION
● Emotional interference
● History of broken promises
● History of violence
● Unwillingness to reach mutual
agreement
● Imbalance of power
● Mental health of either party
● Debt clearly owing by one party
● Urgency of resolution

84. Strengths & Weaknesses of Mediation & Conciliation
Strengths
● Less formal nature, quicker and
cheaper
● Experienced third party
● Private and confidential
● Voluntary
● Flexibility - relaxed rules
● Greater range of solutions
● Parties more likely to comply
● Win-Win solution
● Terms of settlement provide a
binding agreement
Weaknesses
● Decision not binding (unless a
terms of settlement permits and
is signed)
● One party may compromise too
much
● One party may overpower other
party
● Resolution may not occur
● Some parties may not comply and
require a formal setting

85. Third Party -
Arbitrator
Listens to
evidence and
arguments
then makes a
decision
Used in
Magistrates’
Court for
claims less
than $10,000
Resolution is
legally
binding
Resolution made
by arbitratorARBITRATION

86. How Arbitration is used to resolve disputes
COURTS
COURTS
The Magistrates’,
County and
Supreme Court can
refer parties to
arbitration (with
consent of
parties), though
all small claims
<$10,000 are
referred to
arbitration
VCAT
VCAT hearings are
NOT arbitration,
however VCAT can
refer the dispute
to arbitration
where appropriate
CAV
CAV do not use
arbitration
PRIVATE
Parties can
arrange their own
private
arbitration
through certain
institutions

87. Appropriateness of ARBITRATION
DISPUTES SUITABLE FOR ARBITRATION
● Parties agree to arbitrate
● Claim <$10,000 and referred by
Magistrates’ Court
● Want a binding and enforceable
award made by an independent
third party
● Avoid publicity and resolve
dispute privately and
confidentially
DISPUTES UNSUITABLE FOR ARBITRATION
● Where there is no agreement to
arbitrate
● Where parties want greater
control on resolution
● Where parties wish to have
their ‘day in court’
● Where parties want formal rules
of evidence and procedure

88. Strengths & Weaknesses of Arbitration
STRENGTHS
● Binding and fully enforceable
decision
● Private and confidential
● Parties have control over
presenting evidence
● Experienced arbitrator
● More timely
● Less costly
WEAKNESSES
● Formal nature can be stressful
● Parties have no control over
outcome
● Can be costly and timely
depending on nature of claim
● Not available to parties who
have not consented, or too
large for small claim in
Magistrates’ Court
● Limited right to appeal

89. Civil dispute resolution summary
Civil Dispute Resolution Bodies
Civil Dispute Resolution Methods
CAV VCAT COURTS
Mediation Conciliation Arbitration

90. Remedies
Civil Dispute Resolution Outcome

91. Purpose of RemediesA remedy is the way a court
will recognise a
plaintiff’s right.
The plaintiff seeks a
remedy, the court/tribunal
awards a remedy, to legally
end a dispute
A plaintiff will outline in
their statement of claim
the remedy sought
Restore the
plaintiff, as
far as possible,
to the position
they were in
before the wrong
occurred

92. Types of Remedies
DAMAGES INJUNCTIONS

93. Damages
Damages are a amount of money
awarded to the plaintiff , to be
paid by the defendant
The purpose of damages is to
compensate the plaintiff for losses
suffered to return them to the
position they were in before the
defendant caused the harm

94. Types of Damages
Compensatory Damages
Most common form of
damages
Aims to restore plaintiff by
compensating them for their
loss, includes three types:
Nominal Damages
A small amount of money.
Mainly requested by plaintiff
to make a point about their
rights. The purpose is to
uphold the plaintiff’s rights
without awarding substantial
amount of damages
Contemptuous
Damages
Where a legal right to
damages is present,
however not a moral
right, a small amount of
damages will be awarded
Exemplary Damages
Only civil remedy aimed
at punishing the
defendant. Used were the
court believes an extreme
infringement of rights has
occurred, also known as
punitive damages
Specific: Specific monetary value that is easily quantifiable such as medical bills
General: Assessed by the court on extent of wrongdoing, taking into account future losses and pain suffering. Not easily
quantifiable
Aggravated: Further compensation awarded if the court believes the wrongdoing caused the plaintiff humiliation and insult

95. Injunctions
An injunction is a court order that
stops someone from doing something or
requires someone to do something
The purpose of an injunction is to
rectify a situation caused by the person
who was found to be in the wrong
Injunctions can be interlocutory
(temporary) or final
Interlocutory injunctions can be made
final or overturned at the final hearing
Restrictive/Prohibitive
Injunction
Orders a person to refrain from
undertaking an action (such as
stopping someone from
demolishing a building)
Mandatory Injunction
Orders a person to do a
particular act (such as finish
painting the house they
contracted to paint)
TYPES OF INJUNCTIONS

96. Effectiveness of Remedies in achieving their purpose
It is important you can explain how well (effectiveness of)
remedies achieve their purposes
DAMAGES
● The type of loss suffered
● Appropriate measure for losses not
easily quantifiable
● Can money restore plaintiff
● Can damages compensate for time,
stress
● Capacity of defendant to pay
● Another remedy better suited to case
INJUNCTION
● Has defendant already done something
that caused damage
● Will an injunction stop the defendant
● Will the defendant comply
● Will the injunction restore the
plaintiff to their original position
● Another remedy better suited to case

97. END OF PART A