JIM OULIARIS BIANCA CRAWFORD EFFIE FRANGOULIS DANIEL GARNER LEANNE HIGHAM DARREN SELLERS

Transcription

1 COMING SOON RRP: $74.95 ISBN: PUBLISHED: December 2017 JIM OULIARIS BIANCA CRAWFORD EFFIE FRANGOULIS DANIEL GARNER LEANNE HIGHAM DARREN SELLERS VCE LEGAL STUDIES UNITS 3 & 4

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3 INTRODUCTION...00 FOREWORD...00 UNIT 1 GUILT AND LIABILITY 1. INDIVIDUALS AND THE LAW...00 THE LEGAL MAZE...00 SOCIAL COHESION...00 The role of laws in achieving social cohesion...00 The role of the legal system in achieving social cohesion...00 CHAPTER SUMMARY WHAT MAKES AN EFFECTIVE LAW?...00 THE PRINCIPLES OF JUSTICE...00 CHARACTERISTICS OF AN EFFECTIVE LAW...00 The law must reflect society s values...00 The law must be enforceable...00 The law must be known...00 The law must be clear and understand...00 The law must be stable...00 SOURCES OF LAW...00 Parliament...00 Judge-made law...00 THE RELATIONSHIP BETWEEN COMMON LAW AND STATUTE LAW...00 TYPES OF LAW: CRIMINAL LAW AND CIVIL LAW...00 The relationship between criminal law and civil law...00 The differences between criminal law and civil law...00 CHAPTER SUMMARY PARLIAMENT, COURTS AND THE LAW...00 PARLIAMENT...00 Federation...00 The Constitution...00 The structure of parliament...00 Government...00 What does parliament do?...00 THE RELATIONSHIP BETWEEN PARLIAMENT AND COURTS...00 Interpretation of legislation and precedent...00 Parliament and the common law...00 THE COURT HIERARCHY...00 Reasons for a court hierarchy...00 CHAPTER SUMMARY KEY CONCEPTS OF CRIMINAL LAW...00 THE NEED FOR CRIMINAL LAW...00 What is a crime?...00 Features of crime...00 THE PURPOSES OF CRIMINAL LAW...00 TYPES OF CRIMINAL LAW...00 KEY CONCEPTS OF CRIMINAL LAW...00 The elements of a crime: actus reus and mens rea...00 The concept of strict liability...00 The presumption of innocence...00 The burden and standard of proof...00 The age of criminal responsibility...00 POSSIBLE PARTICIPANTS IN A CRIME, INCLUDING PRINCIPAL OFFENDERS AND ACCESSORIES...00 Principal offender...00 Accessory...00 THE DISTINCTION BETWEEN SUMMARY OFFENCES AND INDICTABLE OFFENCES...00 Summary offence...00 Indictable offence...00 Indictable offence heard summarily...00 THE ROLE OF STATUTE AND COMMON LAW IN ASSAULT...00 Trends and statistics Victoria...00 Trends and statistics United States...00 CHAPTER SUMMARY THE COURTS AND CRIMINAL LAW...00 CRIMES AGAINST THE PERSON...00 Homicide...00 Murder the role of common law...00 The role of common law in the elements of murder...00 Attempted murder...00 Manslaughter...00 Infanticide...00 Child homicide...00 Driving related homicides...00 POSSIBLE DEFENCES TO HOMICIDE...00 Self-defence...00 Duress...00 Sudden or extraordinary emergency...00 Intoxication...00 Other defences for the accused...00 Rare defences for the accused...00 CHAPTER SUMMARY...00 MAC_LegalMaze_text_design_prelims_Y12_FA.indd 3 9/07/ :29

4 iv THE LEGAL MAZE UNITS 1 & 2 CONTENTS 6 CRIMINAL LAW IN ACTION...00 CRIMES AGAINST PROPERTY...00 Arson and damaging property...00 Property damage...00 Burglary...00 Theft...00 Deception offences...00 THE IMPACT OF CRIME...00 Impact on the individual including the victim and the offender...00 Perceptions of justice...00 CHAPTER SUMMARY KEY CONCEPTS OF CIVIL LAW...00 THE NEED FOR CIVIL LAW...00 THE PURPOSE OF CIVIL LAW...00 KEY CONCEPTS OF CIVIL LAW...00 Breach...00 Causation...00 Loss...00 Limitation of actions...00 Vicarious liability...00 The burden and standard of proof...00 Standard of proof...00 POSSIBLE DEFENDANTS TO A CIVIL DISPUTE...00 THE DISTINCTION BETWEEN TORTS LAW AND CONTRACT LAW...00 Contract law...00 Torts law...00 CHAPTER SUMMARY CIVIL LAW IN ACTION...00 THE LAW OF TORTS...00 NEGLIGENCE...00 What is negligence and what rights does it protect?...00 Elements of negligence...00 Conclusion...00 DEFENCES TO NEGLIGENCE...00 Contributory negligence...00 Voluntary assumption of risk...00 Illegality...00 Absence of elements...00 LIMITATIONS TO ACTIONS...00 DEFAMATION...00 What is defamation and what rights does it protect?...00 Elements of defamation...00 Conclusion...00 DEFENCES TO DEFAMATION...00 Absolute privilege...00 Qualified privilege...00 Justification...00 Contextual truth...00 Fair comment/honest opinion...00 Defence of innocent dissemination...00 Defence of triviality...00 LIMITATIONS OF ACTIONS...00 Who cannot sue for defamation?...00 Time limits...00 IMPACT OF NEGLIGENCE AND DEFAMATION ON THE PLAINTIFF...00 CHAPTER SUMMARY...00 UNIT 2 SANCTIONS, REMEDIES AND RIGHTS 9 LAW ENFORCEMENT PRINCIPLES OF JUSTICE IN CRIMINAL LAW: FAIRNESS, EQUALITY AND ACCESS INSTITUTIONS THAT ENFORCE CRIMINAL LAW, INCLUDING THE POLICE AND DELEGATED BODIES Institutions that enforce criminal law Victoria Police Police powers TALKING TO POLICE THE BALANCE BETWEEN INSTITUTIONAL POWERS AND INDIVIDUAL RIGHTS An individual s right to silence The institutional power of police to question a suspect Sheriff Australian Border Force DELEGATED AUTHORITIES Who has delegated power? Statutory authorities Local municipal councils Advantages of delegated authorities Disadvantages with delegated authorities Checks and balances on delegated legislation CHAPTER SUMMARY CRIMINAL COURTS...00 THE ROLE OF THE VICTORIAN CRIMINAL COURTS Understanding the court hierarchy The role of a court hierarchy in criminal cases Precedent Appeals Specialisation Administrative convenience to save time and money OVERVIEW OF THE CRIMINAL JURISDICTIONS OF THE VICTORIAN COURTS Victorian Court and criminal cases THE ROLE OF THE JURY IN A CRIMINAL TRIAL The jury system Selection of jurors for a criminal trial Role of a criminal jury Jury offences WHY ALTERNATIVE APPROACHES TO SENTENCING? Alternate approaches to sentencing The Drug Court Alternate approaches to sentencing The Koori Courts Alternate approaches to sentencing Diversion programs Victorian budget: State-wide push to divert youth from a life of crime Other alternate approaches to sentencing CHAPTER SUMMARY MAC_LegalMaze_text_design_prelims_Y12_FA.indd 4 9/07/ :29

5 CONTENTS v 11 THE SENTENCING PROCESS...00 THE PURPOSES OF SANCTIONS Punishment, deterrence, denunciation, protection and rehabilitation TYPES OF SANCTIONS: FINES, COMMUNITY CORRECTION ORDERS AND IMPRISONMENT Types of criminal sanctions Imprisonment Treatment orders Fines or a monetary penalty Adjournment Minor sanctions and orders SENTENCING YOUNG PEOPLE Youth justice centre order Youth residential centre order Youth attendance order Youth supervision order Probation order Fine. 000 Good behaviour bond Dismissal and undertaking Diversion program Community Correction Orders Imprisonment and the deprivation of liberty Sentencing and the principles of justice, including fairness, equality and access Balancing and considering factors for sentencing The impact of pre-sentence reports FACTORS CONSIDERED BY JUDGES IN SENTENCING CHAPTER SUMMARY RESOLVING CIVIL DISPUTES...00 INTRODUCTION THE PRINCIPLES OF JUSTICE: FAIRNESS, EQUALITY AND ACCESS IN CIVIL LAW METHODS USED TO RESOLVE CIVIL DISPUTES Mediation Arbitration Judicial determination Evaluating methods of dispute resolution relevant to civil disputes INSTITUTIONS THAT RESOLVE CIVIL DISPUTES Tribunals Ombudsmen and complaints bodies THE ROLE AND CIVIL JURISDICTION OF THE VICTORIAN COURTS The role of courts in a civil case The Victorian court hierarchy and civil cases THE CIVIL TRIAL AND THE ROLE OF THE JURY A civil trial in brief The jury in a civil trial REMEDIES IN CIVIL ACTIONS The purposes of remedies The types of remedies CHAPTER SUMMARY RIGHTS IN AUSTRALIA...00 BASIC HUMAN RIGHTS HUMAN RIGHTS IN AUSTRALIA Common law Statute law The Constitution HOW EFFECTIVE IS THE PROTECTION OF HUMAN RIGHTS IN AUSTRALIA? Strengths of human rights protections Weaknesses of human rights protections DO WE NEED TO REFORM AUSTRALIA S PROTECTION OF HUMAN RIGHTS? RIGHTS, VIOLATIONS AND INDIVIDUALS: BRINGING A CASE TO COURT Case study 1: Indigenous Australians rights Mabo v. Queensland (No 2) Case study 2: right to a fair trial and legal representation Dietrich v. R CHAPTER SUMMARY INTERNATIONAL RIGHTS...00 THE INFLUENCE OF INTERNATIONAL DECLARATIONS AND TREATIES ON THE PROTECTION OF RIGHTS IN AUSTRALIA Human rights and international law Enforcement of human rights AUSTRALIA S ROLE WITH INTERNATIONAL LAW Universal Declaration of Human Rights THE APPROACH ADOPTED BY ANOTHER COUNTRY IN PROTECTING RIGHTS Protecting Australia s rights The approach adopted in Australia in protecting rights The approach adopted in South Africa in protecting rights The approach adopted in the United States of America in protecting rights CASE STUDY IMPACTS ON THE PROTECTION OF RIGHTS IN AUSTRALIA Koowarta v Bjelke Petersen Human Rights Committee communication No. 488/1992 (Toonen v Australia) CHAPTER SUMMARY GLOSSARY...00 ACKNOWLEDGEMENTS...00 INDEX...00 CONTENTS MAC_LegalMaze_text_design_prelims_Y12_FA.indd 5 9/07/ :29

6 vi THE LEGAL MAZE UNITS 1 & 2 HOW TO USE THIS BOOK INTRODUCTION The Legal Maze Units 1&2 deals with all areas of study, outcomes, key knowledge and key skills for Units 1 and 2 of the VCE Legal Studies study design. KEY CONCEPTS OF CRIMINAL LAW AREA OF STUDY 2: The presumption of innocence The presumption of innocence is the fundamental principle of criminal law, and provides a guarantee that an accused is presumed innocent until proven guilty beyond reasonable doubt. In this area of study students develop an understanding of key concepts in criminal law, types of crime and investigate two criminal offences in detail. OUTCOME On completion of this unit the student should be able to explain the purposes and key concepts of criminal law, and use legal reasoning to argue the criminal culpability of an accused based on actual and/or hypothetical scenarios. KEY KNOWLEDGE > the purposes and types of criminal law > key concepts of criminal law, including: > the elements of a crime: actus reus and mens rea > the concept of strict liability > the presumption of innocence > the age of criminal responsibility > the burden and standard of proof > the distinction between summary offences and indictable offences > possible participants in a crime, including principal offenders and accessories KEY SKILLS > define and use legal terminology > research and analyse relevant information about criminal law and offences > explain the key concepts and purposes of criminal law > use examples to distinguish between indictable offences and summary offences 4 : KEY CONCEPTS OF CRIMINAL LAW APPLY YOUR UNDERSTANDING DID YOU KNOW THAT PATROLLED BEACHES IN VICTORIA S ARE NOW SMOKE-FREE? A patrolled beach is defined as the area between the red and yellow lifesaving flags and within a 50 metre radius of the red and yellow flags. Some local councils have also introduced local by-laws that prohibit smoking in other beach areas. Under these laws an infringement penalty notice can be issued of up 2 penalty units. 1. Using the characteristics of an effective law, answer the following questions on outlawing smoking on patrolled beaches in Victoria. > Describe the value/s this law reflects in society: social, moral, political, economic, technological or environmental > How well-known is this law by the community and beach goers? > State the reasons for this law. Are they clear and understood by the community and beach goers? > How easy is it to enforce this law on beaches? > Explain the changes to tobacco laws in Victoria. How stable has the law been in this area? 2. Using the article on p.xx, write a report using the characteristics of an effective law that address the following statement: Discuss the extent to which you believe outlawing smoking on patrolled beaches in Victoria is an effective law. Justify your response. THE PURPOSES OF CRIMINAL LAW Criminal law reflects society s views about conduct that the community regards as unacceptable. It performs a balancing act: to protect the interests of society by bringing offenders to justice, while protecting the rights (or civil liberties) of members of society to act freely. The issue of civil liberties needs to be kept in mind constantly. THE PURPOSES OF CRIMINAL LAW PUNISH DETER REHABILITATE RETRIBUTION PROTECT Criminal law is also concerned with punishing people who have been found guilty of crimes. It aims, through punishment, to do several things: punish fairly > to punish the offender in a manner that is just, given the circumstances in which the offence has been committed. In other words, to impose a sanction on the accused which considers all factors so the punishment meets the crime. deter offenders from re-offending > to impose a sentence to discourage and prevent other offender from committing the same or a similar offence. Deterrence is a way of reducing criminal behaviour and reoffending. Criminal law reflects the community s values and imposes sanctions on those who do not behave in an acceptable manner. PUNISHMENT: Lorem ipsum dolor sit amet, consectetuer adipiscing elit. Maecenas porttitor congue massa. DETERRENCE: Lorem ipsum dolor sit amet, consectetuer adipiscing elit. Maecenas porttitor congue massa. CRIMINAL LAW Purpose Types KEY TERMS actus reus assault burden of proof crime deterrence doli incapax indictable offences indictable offence heard summarily mens rea presumption of innocence principal protection punishment rehabilitation retribution standard of proof strict liability summary offences APPLY YOUR UNDERSTANDING ACTIVITIES Throughout each chapter, these activities ask you to apply the key skills and knowledge of the unit to the material you have just covered in class. Some activities are done on your own, some with partners or a group. Take these activities seriously they re an opportunity for you to put your knowledge and skills to use. 17 KEY CONCEPTS OF CRIMINAL LAW the elements of a crime: actus reus and mens rea the concept of strict liability the presumption of innocence the age of criminal responsibility the burden and standard of proof 4 : KEY CONCEPTS OF CRIMINAL LAW KEY CONCEPTS OF CRIMINAL LAW POSSIBLE PARTICIPANTS IN A CRIME principal offenders and accessories A wrongful act; the physical act constituting a crime An action that places another individual in fear of violence A duty to prove what is suspected, which rests with the party making the allegation or assertion. In criminal cases, this rests on the prosecution. An act or omission which is seen as illegal and is punishable by a court. Imposition of a sanction to discourage others from taking a similar action Lacking the capacity to be guilty of an offence; for example, children Serious criminal offences heard before a judge and jury An indictable offence heard before a magistrate A guilty mind or the state of mind required to commit a wrongful act Every person is considered to be innocent until proven guilty A person who participates in the commission of a crime Prevention of further harm A penalty or sanction imposed on a wrongdoer Improvement through programs that focus on bringing about changes in an offender s of behaviour An act done as revenge or to pay back for a wrong committed The standard against which cases are measured; in a criminal case the standard of proof is beyond reasonable doubt. Offences in which no wrongful intent needs to be established Minor criminal offences 24 SUMMARY OFFENCES AND INDICTABLE OFFENCES CASE STUDY ASSAULT 13 THE LEGAL MAZE UNITS 1 & 2 CASE CHILDREN AS CRIMINALS STUDY VICTORIA YOUTH CRIME: STATISTICS RAISE QUESTIONS ABOUT CALLS TO DEPORT YOUTH OFFENDERS By Sarah Farnsworth and Patrick Wright, 6 Dec 2016 Youth crime has been a hot topic in Victoria recently, with regular stories of violent carjackings, aggravated burglaries and riots in youth justice facilities. Commentators have linked a recent spate of crimes to the so-called Apex gang, heightening anti-migration rhetoric, but police statistics show most home invasions, car thefts and aggravated robberies are committed by people born in Australia. Data from the Victorian Crime Statistics Agency shows home invasions committed by people aged 10 to 18 have almost doubled since Chart: Home invasions in Victoria by offenders aged Source: abc.net.au/news/ /statistics-raisequestions-aboutcalls-to-deport-youthoffenders/ COUNTRY OF BIRTH AUSTRALIA NEW ZEALAND SUDAN TANZANIA TOTAL There were 81 less car thefts committed by offenders in the same age group in 2016 compared to 2015, but offences are still up about 55 per cent on WHICH YOUTHS ARE COMMITTING WHICH CRIMES? Commentary about the Apex gang has focused on children from Sudanese and Pacific Island backgrounds, leading to hard-line anti-migrant rhetoric and calls for tougher penalties for youth offenders. State Opposition Leader Matthew Guy, speaking at a recent forum for crime victims, said: If they are not an Australian citizen, then, frankly, I think they [have] worn out their welcome out and should be deported. The Federal Government has cancelled the visas of 172 convicted criminals, just two of those are linked to Apex crimes. Victoria Police does not record ethnicity in its official LEAP database, but place of birth is recorded. The figures show youth born in Australia commit the most crimes in all three categories. Last year, offences committed by youths born in Sudan jumped significantly and were second highest. Proportionally, Sudanese-born youths are vastly over-represented in the statistics, responsible for 7.44 per cent of alleged home invasions, 5.65 per cent of car thefts and 13.9 per cent of aggravated robberies. The latest census data shows people born in Sudan or South Sudan made up 0.11 per cent of Victoria s population in Peer support worker Deng Maleek, who works with youths in the Sudanese community, acknowledged there was a problem but said focusing on ethnicity was problematic. The statistics show us that a lot of those kids engaged in criminal activity are as young as 13 so they were born here, he said. They don t feel a sense of citizenship anymore and they don t feel like they belong to this country. CHAPTER OPENER Each chapter opens with a two-page spread showing the relevant study design information, a graphic summary of the chapter topics and a list of important key terms. Read through the opener carefully before starting the chapter; it will help you understand what s to come and to take control of your own learning. CASE STUDIES Most chapters have case studies that draw upon recent media articles, legal cases or statistics, along with activities that address the case study information. MAC_LegalMaze_text_design_prelims_Y12_FA.indd 6 9/07/ :29

7 HOW TO USE THIS BOOK vii 26 ASSESSMENT 1.1 Number of speeding infringements issued (July 2015 to September 2016) Source: www. camerassavelives.vic.gov. au (5 January 2017) THE LEGAL MAZE UNITS 1 & 2 SPEED LIMITS HELPING ACHIEVE SOCIAL COHESION In Victoria traffic offences can apply to drivers, motorcyclists, cyclists, pedestrians, rollerbladers or skateboarders. These offences can include speeding, driving under the influence of alcohol or drugs (including refusing to take an alcohol or drug test) and careless or dangerous driving. Cameras Save Lives is a program developed by the Department of Justice & Regulation to explain how red-light and speed cameras work whilst promoting safer road use. In the 15 months between July 2015 and September 2016 there had been 1,032,486 speeding and red light infringements issued from mobile and fixed cameras at intersections and on highways. This equates to 68, 832 fines a month or approximately 2,294 per day. OFFENCE TOTAL SPEEDING INFRINGEMENTS FROM FIXED AND MOBILE CAMERA SYSTEMS EXCEED SPEED BY LESS THAN 10 KM/H EXCEED SPEED BY 10 KM/H BUT LESS THAN 15 KM/H EXCEED SPEED BY 15 KM/H BUT LESS THAN 25 KM/H EXCEED SPEED BY 25 KM/H BUT LESS THAN 30 KM/H EXCEED SPEED BY 30 KM/H BUT LESS THAN 35 KM/H EXCEED SPEED BY 35 KM/H BUT LESS THAN 40 KM/H EXCEED SPEED BY 40 KM/H BUT LESS 748 THAN 45 KM/H EXCEED SPEED BY 45 KM/H OR MORE 829 EXCEED SPEED BY MORE THAN 20 KM/H 436 IN 110 KM/H ZONE TOTAL 913, 627 A number of speed limits apply throughout Victoria. The law places the responsibility on the motorist to pay close attention to road signs so speeding does not occur. As a general rule, 50 km per hour is the speed limit in built-up areas. Speed limits can vary depending on special conditions such as service roads, school zones or shopping centres (40 km per hour) and in these places the limit is displayed on signs. If a driver is caught for excessive speed and pleads guilty to this offence, then their licence is automatically suspended. Excessive speed is defined as 25 km per hour or more above the speed limit, or more than 130 km per hour. If the speeding was less than these limits, then a magistrate has the discretion to choose whether or not to suspend their licence. A driver caught speeding not only incurs a fine, but they also are given demerit points. This system was set up to penalise drivers for unsafe driving whilst encouraging people to drive more carefully and change poor driving behaviour. Learner permit or probationary In most cases, to be guilty of a crime a person must have actus reus and mens rea. A summary of key information found in the text. REUS: Lorem ipsum dolor sit amet, consectetuer adipiscing elit. Maecenas porttitor congue massa. MENS REA: Lorem ipsum dolor sit amet, consectetuer adipiscing elit. Maecenas porttitor congue massa. Key term definitions to help you understand and remember important legal phrases and terms. Chapter Summary page ONLINE REVISION ACTIVITIES Follow this icon to find extra revision activities in the digital version of the book. FIND OUT MORE ONLINE educationeverywhere.com/ Follow these links to find further reading online, including relevant case studies. END OF CHAPTER Each chapter ends with a chapter summary, a Check your Understanding review activity, a set of Apply activities and an assessment task. Assessment tasks are marked and should be submitted to your teacher; they may be used to determine your academic results for the year. MARGINS In the margins of most pages you ll find definitions of key terms, summaries of key information, source information for media articles and links to relevant websites. These can be helpful when revising chapters and studying for assignments. HOW TO USE THIS BOOK MAC_LegalMaze_text_design_prelims_Y12_FA.indd 7 9/07/ :29

8 viii THE LEGAL MAZE UNITS 1 & 2 EXAM PREPARATION ESSENTIALS EXAM PREPARATION ESSENTIALS UNPACKING ASSESSMENT QUESTIONS To answer questions effectively, you need the skills to unpack a range of assessment, exam and School Assessed Coursework questions that test a range of key knowledge and key skills. Regardless of whether you re attempting a short or extended-response question, it s useful to annotate and clarify exactly what the question is asking you (and what it s not asking you to do). You can do this by: Recognising and highlighting the task word(s) that show what you have to do with the question, such as Explain, Discuss, Compare etc. Recognising and highlighting the emphasis word. That is, the word that focuses your answer by defining or limiting the scope of the subject. For example, one reason or two advantages. THINKING SKILLS AND TASK WORDS UNPACKING ASSESSMENT QUESTIONS Recognising and highlighting the topic, content or subject of the question. For example, the rights of the accused or the principles of justice. Recognising and highlighting the marking allocation as well as the space available to write your answer. The allocation is a good guide to the time needed for writing your answer (e.g. 4 marks = 4 minutes). We just talked about recognising task words but what are those words and what do they mean? Bloom s Taxonomy is a model that describes different kinds of thinking skills and places them in a hierarchy, so that there are lower-order, middle-order and higher-order skills. Lower-order skills are important foundational skills, but the higher-order skills demonstrate mastery and deeper understanding of a topic. This diagram shows the different thinking skills described in some versions of Bloom s Taxonomy, along with various words used to frame questions or tasks involving those skills. produce new or original work (design, construct, develop, investigate) justify a stand or decision (argue, defend, support, critique) explain ideas or concepts (describe, explain, identify, select) CREATE EVALUATE ANALYSE APPLY UNDERSTAND draw connections among ideas (compare, contrast, examine, test) use information in new situations (discuss, demonstrate, use, interpret) recall facts and basic concepts (define, list, state, repeat) REMEMBER The Legal Studies study design has a strong emphasis on the skills in the middle of the list applying knowledge and analysing situations. While all thinking skills, whether higher and lower, are reflected in the study design, you will come across many analyse and apply tasks throughout your assessments and exams. MAC_LegalMaze_text_design_prelims_Y12_FA.indd 8 9/07/ :29

9 HOW TO USE THIS BOOK ix ANALYSING CASE STUDIES Examining, analysing and discussing case studies and hypothetical situations are a key part of Legal Studies. The purpose of these studies is for you to apply the knowledge and skills you have learned to the particular case. Follow these steps when you re presented with a case study and assessment questions: 1. Skim the questions to get a general idea of what knowledge and skills might be relevant. 2. Skim the case study to get a general idea about the situation, highlighting key points. 3. Re-read the questions carefully to get a clear, definite understanding of what is being asked. 4. Re-read the case study carefully, making note of any significant facts or pieces of information. 5. Answer each question by linking relevant concepts to specific information in the case study. Don t just describe the case or re-state information; you need to analyse it and show your own understanding. Explain and give reasons for your answers. If possible, support your ideas with information from additional sources. Write your answers in clear paragraphs, each of which has a topic and conclusion, and is supported by evidence or examples. TOP 10 EXAM DAY TIPS FROM A VCE ASSESSOR Exams test your ability to demonstrate your key knowledge through the application of key skill. You must practise developing your exam technique/strategy ( the doing ) and not just rely on the knowing ; this needs to be your focus throughout the year. Ensure you respond directly to the question you re asked, i.e., don t answer by writing your key knowledge list, or by writing answers that are tangential, irrelevant or too elaborate. Always incorporate example(s) in each answer. Don t rely on the question to ask you to incorporate an example do it automatically. Speed through the 1-2 mark questions (task words: define, explain) and spend more time on the high mark allocation questions (task words: analyse, discuss, evaluate, synthesize). These tasks demand that you elaborate your response; drill down and link your response back to the question. Jot down key points, examples (including case law or statutes) and legalese that you want to include in your longer responses, and then make sure that you incorporate these. Write with urgency. This doesn t mean you should be scribbling your responses down in haste; it means that you must focus on your writing speed. You must answer all questions in the exam to give yourself the best chance of achieving your highest mark for the year. Always refer to and incorporate stimulus material in a meaningful way. Stimulus material is there for a reason to stimulate your thinking so that your response is thoughtful. When a question asks you to Discuss the extent to which..., make sure that your answer incorporates at least two contrasting viewpoints/arguments. This demonstrates to the assessor that your understanding is nuanced and sophisticated. Avoid answers that totally agree or disagree If you don t know/aren t sure about answering particular questions, skip those questions and return to them once you ve answered other questions and built up your confidence. The exam is designed to test your ability to think critically under strict time constraints; it has to be academically rigorous. There are no easy examinations. Don t underestimate questions, irrespective of their mark allocation. EXAM PREPARATION ESSENTIALS MAC_LegalMaze_text_design_prelims_Y12_FA.indd 9 9/07/ :29

10 RESOLVING A CIVIL DISPUTE UNIT 1 AREA OF STUDY 2: The Victorian civil justice system When an individual or a party has had their rights infringed, the Victorian civil justice system provides an opportunity for them to bring an action against the other party. The purpose of civil action is to restore the wronged party to the position of their original state, before the breach of civil law occurred. OUTCOME On completion of this unit the student should be able to analyse the factors to consider when initiating a civil claim, discuss the institutions and methods used to resolve civil disputes and evaluate the ability of the civil justice system to achieve the principles of justice. To achieve this outcome the student will draw on the key knowledge and key skills below. KEY KNOWLEDGE > 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 purposes of civil pre-trial procedures > the reasons for a Victorian court hierarchy in determining civil cases, including administrative convenience and appeals 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 _LegalMaze_Y12_text_ch06_2pp.indd 2 7/13/17 1:45 PM

11 6 : RESOLVING A CIVIL DISPUTE 3 RESOLVING A CIVIL DISPUTE KEY TERMS appellant binding resolutions consumer counterclaim contract directions hearing discovery examination notice garnishee order interrogatories judgment notice of appearance ratio decidendi pleadings tort tortfeasor writ WHAT IS A CIVIL DISPUTE? Deciding whether to take civil action Enforcement issues CONSUMER RIGHTS VICTORIA Role Appropriateness for dispute resolution The person who challenges the findings of a hearing by appealing the case A legal decision that must be followed A person who purchases goods and services for less than $ or for personal or home use A cross action (response) in which a defendant who is being sued counter-sues the plaintiff for a separate infringement of their rights A legally binding agreement A hearing conducted by a judge to establish the timelines for completing the pre-trial stages Process that sets out the circumstances relating to the claim and the outcome sought A notice to examine one s financial status in pursue of money owed An order to deduct money from a bank account or employer wages for amount owing Questions sent by parties to each other to determine whether to pursue a civil dispute The order a magistrate or assessor makes when deciding a civil case for compensation A written notification by the defendant informing the plaintiff that they will be appearing in court The reason for deciding on an outcome of judgment in a case The pre-hearing stage in the preparation of a civil case in which the issues are clarified A civil wrong Limitations of CAV Role VCAT Appropriateness for dispute resolution Limitations of VCAT The wrongdoer or person who has committed the tort The initial document sent to commence a civil claim THE CIVIL PRE- TRIAL PROCESS Purpose Stages of the pre-trial process THE VICTORIAN COURT HIERARCHY Jurisdiction of Victorian courts Reasons for a court hierarchy Limitations of a court hierarchy _LegalMaze_Y12_text_ch06_2pp.indd 3

12 4 THE LEGAL MAZE UNITS 3 & 4 TORT: a civil wrong CONTRACT: a legally binding agreement TORTFEASOR: the wrongdoer or person who has committed the tort RESOLVING A CIVIL DISPUTE You should already have encountered some of the processes involved in taking civil action, and you may also be familiar with some of the organisations that support those who have been harmed by the actions of others, such as courts and tribunals. In this chapter, we will focus on the process of resolving civil disputes, what needs to be considered before deciding to take further action, various methods and bodies that hear cases, and the reasons for a court hierarchy. CAN YOU... Identify the appropriate court for hearing or settling a civil dispute? Explain any recent civil cases that were resolved using the court system? List what options would be available if you decided to take a civil dispute further? Describe ways in which to resolve a dispute without going to court? Identify the different reasons why it s often better to resolve a civil dispute out of court? WHAT IS A CIVIL DISPUTE? YES / NO / UNSURE A civil dispute occurs when an individual s rights have been infringed by the actions or omissions of another person and, that person suffers damages as a result of the action. A civil action can occur when there is a dispute or conflict between two individuals, government entities, non-government or private organisations. Every community member has certain rights and responsibilities and when individuals feel that another party has infringed their rights, they can decide to bring an action against the other party. Civil law provides an avenue for individuals who have been wronged by compensating them rather than punishing the wrongdoer. It defines the rights and responsibilities of individuals and parties when interacting with each other. There are two areas of civil law, which deal with either tort law and/or contract law: A tort is a civil wrong that entitles the innocent or grieving party to claim damages, such as money, to compensate them for any injuries or suffering. Tort comes from a French word, tortum, meaning wrong. A wrongful act that results in damage, loss or injury means that the aggrieved party can initiate civil action against the other party. Areas of torts include negligence, defamation, nuisance, trespass to goods, trespass to land and trespass to the person (such as assault, battery or false imprisonment). A contract is a legally binding agreement with specific terms between two or more parties. The plaintiff is the injured party who brings the civil action to court (cases are heard in the County or Supreme Courts) or the complainant (where cases are heard in the Magistrates Court). The tortfeasor or defendant is the person who has committed the action and against whom the civil action is brought in court. Normally, a remedy is sought from the defendant. Often this can be resolved easily through negotiating an equitable remedy without taking further legal action. When there is no resolution, legal proceedings may be necessary _LegalMaze_Y12_text_ch06_2pp.indd 4

13 6 : RESOLVING A CIVIL DISPUTE 5 DECIDING WHETHER TO TAKE CIVIL ACTION People who are in a dispute often use dispute resolution methods to try and reach the most suitable outcome for all involved. Dispute resolution is cheaper and quicker than going to court. However, this is not always possible, and while parties are encouraged to do so, not all disputes can be resolved without taking further action. Parties are encouraged to resolve their disputes outside of court and tribunals, through a variety of alternative dispute resolution (ADR) processes. There are many means by which individuals or parties can respond to disputes, including: choosing to leave things the way they are discussing the matter with the people involved with the intention of trying to find an agreed outcome; this is also known as negotiating asking a mutual person known by both parties to assist in the dispute using a person or organisation not involved in the dispute, such as: > > a governmental body, such as CAV (see p. xx) > > a lawyer to negotiate on your behalf or advise you on your legal position > > an ADR practitioner, such as a conciliator > > an ombudsman > > a tribunal such as VCAT (see p. xx) > > a court. Negotiation options Negotiation involves both parties talking or writing to each other and trying to work together to resolve the dispute. There is no third party involved, although parties can choose to bring a representative to the discussions to help with negotiations. The decision is made by the parties themselves and is not legally binding. This is the quickest and most inexpensive form of resolving a matter. For example, disputes involving neighbourhood issues like excessive noise, trees hanging over fences or roaming pets could be settled using negotiation. Negotiation does not require legal experts to be involved, and the matter is dealt with quickly. However, without legal representation, the result largely depends on the parties working collaboratively to achieve a successful outcome. Negotiations can also proceed with legal representation whereby lawyers act on behalf of their client to negotiate. Even through the different stages of the pre-trial stage of a civil dispute, and while the case is being prepared, both parties still have the option of negotiating an agreement and making an out-of-court settlement. Costs Often, parties commencing a civil claim through the court system do so without considering the risks and likely costs, especially if they lose the case. Courts such as the Magistrates Court of Victoria provide information that outline costs, along with the non-trial options available, to assist people in making an informed decision about whether to proceed with a civil claim. Several factors about costs should be considered before taking court action: Individuals taking legal action could encounter fees for legal and report fees, court costs and payment of expert witnesses. The party who wins a civil case in court is entitled to recover some of their legal costs ( party costs ). Costs will vary depending on the result of the case and are awarded against the losing party, resulting in having to also pay for the other party s costs. Civil disputes do not have to lead to civil action. Parties should try options such as negotiation or meditation first, and consider the likely costs and risks of legal action, before escalating matters to a court _LegalMaze_Y12_text_ch06_2pp.indd 5

14 6 THE LEGAL MAZE UNITS 3 & 4 Will the costs be able to be recovered by the individual proceeding with civil action? Even if a case is successful, the individual initiating legal action must be advised that the legal costs they are entitled to may be less than the amount their lawyer charges. There is no financial point in having legal representation that charges more than the amount awarded to the successful party. It is important to have written confirmation in writing before commencing or defending a claim. Are the costs able to be covered from the defendant? There is no point in pursuing a civil claim when the defendant has no money to pay for the cost of the court fees and/ or the awarded compensation. Are the parties able to make or accept a reasonable offer to attempt to settle out of court (as a last opportunity to avoid a possible trial)? For example, in the Victorian Magistrates Court, a party who fails to accept a reasonable out-of-court settlement may face additional legal costs. The following example illustrates the cost penalties that can be incurred by an unsuccessful defendant. A plaintiff notifies a defendant that they are willing to accept an out-of-court settlement of $ The defendant, however, does not agree to that sum and the matter goes to trial. The plaintiff subsequently wins the case and is awarded $ The defendant is required to pay not only the judgment but all the plaintiff s legal costs from 14 days after the acceptance offer was made. The defendant is penalised for failing to agree to the plaintiff s reasonable offer to settle out of court. Limitation of actions The Limitation of Actions Act 1958 (Vic) covers the time limits for actions. The time restrictions vary, and are designed to allow applicants an amount of time in which they can pursue a civil claim. This means that an application for proceedings must be made within the set time frame. For many years, there was a limitation of six years that an individual could proceed with a civil claim for personal injuries. However, the Limitation of Actions (Amendment) Act 2002 (LAA ACT) (Vic) and the Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003 (WLAAIRA) (Vic) have changed the period in which some claims can be brought forward to three years from when the injury was discovered. A six-year limitation period continues to apply to work injuries and transport accident injuries. These Acts specify the limitation period for adults, disabled persons, minors and persons under a legal incapacity, as well as the extensions of limitation periods. Individuals need to consider the time restriction guidelines when contemplating civil action. The scope of liability A person is liable when their behaviour or presence is likely to result in causing harm to another. When considering whether to commence a civil claim, the plaintiff must have enough evidence that the party in question was liable and what the scope of that liability was. A defendant will not be liable for damages that are too remote (outside the scope of liability), regardless if their negligent action caused them. The scope of liability refers to how liable a defendant is and to what extent the liability falls on them. The defendant may be liable for damages depending on how remote the _LegalMaze_Y12_text_ch06_2pp.indd 6

15 6 : RESOLVING A CIVIL DISPUTE 7 negligent act is from the injuries caused. The plaintiff may also be able to claim for injuries on the basis that the scope of a person s act extended to the harm or injury. In other words, it needs to be established that the acts of the defendant caused the harm. If the plaintiff can demonstrate that a connection existed between the cause and the harm, then they are more likely to succeed in a civil case. To determine the scope of liability, certain principles are applied: Causation did the defendant cause the harm? The test of remoteness was the harm caused as a direct result of the act? Reasonable foreseeability could the defendant have known that the act could cause harm? If the harm or damages caused are too remote or not caused by the defendant, the remedy will not be recoverable. CIVIL LIABILITY ACT 2002 SECT 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ( factual causation ), and (b) that it is appropriate for the scope of the negligent person s liability to extend to the harm so caused ( scope of liability ). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. ENFORCEMENT ISSUES It is one thing to win a case or be awarded a judgment in one s favour; it s another to have that order carried out. Enforcement issues arise when an outcome in a dispute has been reached but the defendant does not pay the amount decided by the judge or adjudicator involved. In considering whether to pursue a civil case, it is important for the injured party to be able to recover the awarded amount. When an individual does not pay voluntarily, collecting a judgment can be difficult. JUDGMENT: the order a magistrate or assessor makes when deciding a civil case for compensation _LegalMaze_Y12_text_ch06_2pp.indd 7

16 8 THE LEGAL MAZE UNITS 3 & 4 Winning a civil case does not guarantee that the plaintiff will collect a financial judgment. If the defendant cannot pay, the court needs to enforce its judgment using tools such as instalment orders and warrants to seize property. GARNISHEE ORDER: an order to deduct money from a bank account or employer wages for amount owing EXAMINATION NOTICE: a notice to examine one s financial status in pursue of money owed To determine whether the plaintiff would be able to collect a judgment, the court needs to investigate whether the defendant has a job, money in the bank, or assets (such as property). If the full amount cannot be paid by the other party after initial discussions, then an extension of time or instalment payments could be an option. This may need to be established in the form of a written and signed agreement. There are several ways to enforce a judgment in Victoria against judgment debtors. These are found under these Acts: Magistrates Court Act 1989 (Section 111) County Court Act 1958 (Section 53) Supreme Court (General Civil Procedure) Rules 2005 Judgement Debt Recovery Act Enforcement of civil judgments There are several ways of enforcing court judgments for an amount of money. These include: a garnishee order, which requests the deduction of money from the defendant s income or bank account; if the defendant is receiving financial benefits, a garnish cannot be issued an examination notice, which is used to collect information about the financial status of the person that owes money a writ of execution or writ for levy of property can be issued. This means the Sheriff can seize and sell a person s property. This is often the final measure used and only after giving other opportunities to the person that owes the money. The methods to enforce a judgment in these acts include similar methods for pursuing of judgment orders, including instalment orders, garnishment orders and warrants to seize property. The party who has not received their compensation could apply to a registrar at the court where the order was made. However, the other party could object, leading to further action being taken and another hearing by a judicial officer to determine whether other arrangements can be enforced. Also, the defendant may not own any assets or be in a low financial circumstance, which could result in the court not pursuing for the judgment, as there is less likelihood of the defendant completing court orders. HOW MUCH WILL IT COST? The total cost of going to court will depend on: the size of the debt (determines which court you and the hirer go to) the complexity of the situation the fees charged by the court whether you and the hirer are represented by lawyers the cost of taking time away from your business to prepare and attend court any travel and accommodation costs to get to court or to meet with lawyers. Going to court checklist Is the hirer able to pay? Is there a genuine dispute or is the court process an opportunity for the hirer to delay paying? Does a time limit apply to your claim? Can you afford it? (Costs will include court fees, legal fees, your time, and possibly the hirer s legal costs.) Will the time, money and stress be worth the outcome? _LegalMaze_Y12_text_ch06_2pp.indd 8

17 6 : RESOLVING A CIVIL DISPUTE 9 What will happen if the decision goes against you? How will a court case affect your business or reputation? (Whatever is said in court will be on the public record.) APPLY YOUR UNDERSTANDING 1. Outline the factors that need to be considered before taking civil action. 2. Explain some of the disadvantages of taking civil action. 3. How are civil factors in pursuing action different to those in considering a criminal case? Source: au/info/plan-and-start/ start-your-business/ independent-contractors/ going-to-court-over-adispute 4. Collect arguments for and against pursuing a case as a plaintiff or defendant in the following table. FOR PURSUING CIVIL ACTION 5. Analyse the factors to consider when to initiating a civil claim. CONSUMER AFFAIRS VICTORIA AGAINST PURSUING CIVIL ACTION Consumer Affairs Victoria (CAV) is a government business unit of the Department of Justice and Regulation that is designed to monitor and regulate consumer affairs. The purpose of this unit is to help Victorians make informed and responsible decisions regarding business and consumer matters. CAV registers and regulates a variety of employment areas, and is a significant party to many civil disputes involving businesses and consumers. Consumer Affairs Victoria keeps people more informed about consumer issues and to better inform businesses and consumers about their rights and responsibilities. When consumers are in dispute with a business, CAV provides guidelines and assistance. It also informs consumers of their rights when they buy, hire or lease goods, or pay for services. It is a voluntary compliance done through engaging in a proactive manner to inform and assist people regarding how to comply to the legislation that relates to their matter. The main objective is to work to prevent harm to consumers through what CAV calls a compliance approach, which focuses on early enforcement action by responding promptly to complaints and making the relevant legislation clear, working at a quick pace that does not require any bureaucracy. ROLE OF CAV Consumer Affairs Victoria provides information and advice in the following areas: businesses clubs and not-for-profits housing and accommodation motor cars shopping. CONSUMER: a person who purchases goods and services for less than $ or for personal or home use CONSUMER AFFAIRS VICTORIA Consumer Affairs Victoria registers businesses, advises consumers of their rights and attempts to mediate in appropriate disputes. It uses a compliance approach in disputes that focuses on early enforcement and avoids taking civil or criminal action unless absolutely necessary _LegalMaze_Y12_text_ch06_2pp.indd 9

18 10 THE LEGAL MAZE UNITS 3 & 4 CAV does this in several ways, including: registering and licencing businesses and occupations conciliating disputes between consumers and traders, tenants and landlords reviewing the state governments consumer legislation advising and educating consumers, businesses and landlords on their rights, responsibilities and any changes to the law establishing and applying consumer laws. Within each of the areas regulated by CAV, there are guidelines as to how to pursue a matter or obtain support from the relevant legislation that CAV administers. The Australian Consumer Law (ACL) came into effect on 1 January 2011, and is the national law for fair trading and consumer protection. It is a cooperative reform of the Federal Government and the states and territories. The ACL replaced the following Acts, which previously protected consumers in Victoria: Fair Trading Act 1999 (Vic) Trade Practices Act 1974 (Cth). The general legislation that regulates consumer affairs is the Australian Consumer Law and Fair Trading Act 2012 (ACL) and it applies to all businesses equally throughout Australia. Consumer Affairs Victoria focuses on consumer issues that are of the highest risk to Victorians. The level of risk is prioritised based on the possible occurrence or evidence of harm to the consumer. Determination of risk is based on investigation of the product, the actions of an individual business, and the impact on an entire industry. The jurisdiction of CAV extends to businesses trading in Victoria where goods and services are supplied in Victoria, regardless of the consumer s or business location. Information relating to individual complaints or issues is collated on business conduct, possible breaches of the law or practices that jeopardise the fair and equal rights of consumers. In any case, where there is a high-risk issue that needs urgent investigation, CAV steps in to help in educating and assisting consumers. Applications can be lodged and information can be sought online through the CAV website, MyCAV, Twitter and Facebook. The website was visited three-and-a-half million times in one year and there were consumers who sought assistance via phone. Consumer Affairs Victoria also advises the Victorian Government on legislative changes to improve consumer protection and remake regulations due to expire, or that no longer meet the needs of Victorian businesses and consumers. The compliance approach Figure 6.1 represents the legal actions and options available to CAV, depending on how cooperative businesses are in complying with consumer law. Most of the matters that CAV are involved with are at the base of this diagram, and involve businesses with a proactive approach to the problem. Most issues are minor breaches, such as a dealing with a faulty purchase. They do not need too many resources such as courts or legal representatives. The peak of the diagram represents matters that consume extensive resources and costs and involve more time _LegalMaze_Y12_text_ch06_2pp.indd 10

19 6 : RESOLVING A CIVIL DISPUTE 11 Figure 6.1 Legal actions and options open to CAV APPROPRIATENESS FOR DISPUTE RESOLUTION Consumer Affairs Victoria enforce their powers in aid of the following outcomes: stopping unlawful conduct ensuring future compliance raising awareness of the law deterring and punishing wrongdoers. In order to determine how appropriate CAV is in terms of resolving disputes, we need to consider how suitable and effective it is, whether it meets the demands of consumers in reaching an outcome, and how it disciplines businesses who have breached consumer law. The statistics in Tables 6.1 and 6.2 are from CAV s Consumer Affairs Annual Report They show the outcomes achieved in terms of how many matters were dealt with in each area of CAV s jurisdiction ACTUAL ACTUAL TARGET ACTUAL Quantity Information and advice provided to consumers, tenants and businesses: through telephone service Information and advice provided to consumers, tenants and businesses: through other services including written correspondence, face to face and dispute assistance Compliance activities, from compliance assistance through to court actions Transactions undertaken: registration and licensing transactions Transactions undertaken: Residential Tenancies Bonds Authority (RTBA) transactions Quality Rate of compliance with key consumer laws (per cent) Timeliness Regulatory functions delivered within agreed time frames (per cent) Cost Total output cost ($ million) CAV supplies information to almost consumers a year, but only a small number of these escalate to compliance actions. CAV responds quickly to inspect and, if necessary, recall products that pose a risk to consumers. Table 6.1 CAV performance against targets for each output measure Source: gov.au/annual-report _LegalMaze_Y12_text_ch06_2pp.indd 11

20 12 THE LEGAL MAZE UNITS 3 & 4 Table 6.2 Compliance, registrations and licensing activities undertaken Source: gov.au/annual-report BINDING RESOLUTION: a legal decision that must be followed Compliance Inspections Investigations Market monitoring activity Businesses engaged through the Better Business Initiative Parties to criminal proceedings, appeals and rehearings Parties to civil proceedings Parties signed to enforceable undertakings Registrations and licensing Annual returns, updates or cancellations processed for incorporated associations, fundraisers and co-operatives Total registration and licensing transactions The statistics from the Annual Report show that CAV has assisted businesses in complying with consumer laws by acting quickly against those causing harm and protecting consumers earlier and more effectively. The report highlights its achievements in responding quickly to inspect, recall or remove products that pose a risk to consumers and children. Among the products investigated by CAV in and removed from sale were: hoverboards button batteries unsafe children s toys miniature bikes. LIMITATIONS OF CAV Consumer Affairs Victoria aims to resolve disputes effectively. However, there are sometimes obstacles in this process: Not every dispute falls under the jurisdiction of CAV. Many consumer complaints actually involve the laws and processes of other states or countries. The dispute brought forward to CAV must not have been already determined by VCAT or the courts. There must be a reasonable probability that the dispute will be settled for CAV to proceed with a matter. CAV officers investigate and discuss the issues with parties to help establish options for resolving disputes. However, the agency cannot force parties to participate in conciliation, or make a binding resolution for a party to abide by. If a dispute cannot be heard through CAV, or CAV cannot give assistance, then the appropriate advice is given, such as taking the matter to VCAT (see p. xx) _LegalMaze_Y12_text_ch06_2pp.indd 12

21 6 : RESOLVING A CIVIL DISPUTE 13 TWO MORE AGENCIES PAY THE PRICE FOR UNDERQUOTING CASE STUDY Two more Melbourne real estate agents have been caught underquoting, as Consumer Affairs Victoria s crackdown on the practice continues. Hocking Stuart (Yarraville) and O Brien Real Estate (Croydon) have each offered Consumer Affairs Victoria (CAV) enforceable undertakings following investigations by CAV s underquoting taskforce, Taskforce Vesta. Hocking Stuart (Yarraville) and O Brien Real Estate (Croydon) admitted to: Engaging in false and misleading conduct by underquoting property prices to prospective buyers Listing a price range in online advertisements or in correspondence which was less than the estimated selling price on the sales authority. Hocking Stuart (Yarraville) also admitted to misleading potential buyers by using a blind price on realestate.com.au that caused properties to be advertised in a lower price bracket than the agency s estimated selling price. In offering the enforceable undertakings, both agencies have agreed to: Pay $ to the Victorian Consumer Law Fund Implement a compliance program which includes the appointment of a compliance officer, regular and practical staff training, and the development of a complaints handling system Prominently displaying a notice in their reception acknowledging the contraventions. In August 2016, the Andrews Labor Government announced tough new laws targeting underquoting in the real estate industry, set to come into effect this year. For more information on Taskforce Vesta and enforceable undertakings, visit: consumer.vic.gov.au. Quotes attributable to Acting Minister for Consumer Affairs Lisa Neville Underquoting is not a smart sales tactic it s illegal. These undertakings serve as a serious warning to agents doing the wrong thing. Victorian home buyers deserve a fair go. There s nothing clever about deceiving people who are making one of the biggest purchases of their life. Our new laws will help ensure Victorian house hunters don t waste time and money on properties they can t afford. QUESTIONS 1. What is the consumer issue in the above article? 2. For what reason has these two businesses been brought to CAV s attention? 3. What was the outcome of CAV s decision? Source: Department of Justice and Regulation, 21 January _LegalMaze_Y12_text_ch06_2pp.indd 13

22 14 THE LEGAL MAZE UNITS 3 & 4 APPLY YOUR UNDERSTANDING Use the CAV website to assist in completing the following tasks: 1. Explain what CAV is and its purpose. Use an example to support your answer. 2. a) What is the process that the following people could pursue under Consumer Affairs Victoria? b) Which Act would be relevant to each of the following cases? CASE A Nathan purchases a new mobile phone for his birthday. He realised it was faulty and went to the store to ask for a refund. The store refused to replace it saying that it was not their policy to refund money. CASE B An electrician installed power points and rewired Schyler s old home. When checking the invoice, Schyler realises the Australian Business Number (ABN) number of the contractor s details does not exist under the ABN Registration database. Upon further investigation, she realises the contractor was not an authorised electrician. CASE C Nadav received a phone call about purchasing a membership card that offers a two-for-one meal deal at the restaurants in the Food and Accommodation Guide. Nadav agreed to meet with a salesperson. He was told that every restaurant in his local area was in the guide. The membership would be paid in monthly instalments. When Nadav went to use the membership card at a local restaurant, the owner said he had never seen this card before and it was not accepted. Nadav tried to cancel his membership, but he was told that he should have read the contract before signing it. CASE D Kathleen purchased a used car from a car dealer. She realised that the car had been in a major accident upon having the car serviced. The mechanic servicing her car noticed that the chassis had been welded back together after a major accident and was not roadworthy. CASE E Spencer purchased a used car from a dealership and realised that his clutch was faulty. He took it back to the dealership to have it repaired. However, the dealer said it was part of the wear and tear of the vehicle and was not prepared to fix it. CASE F Stav purchased the bridal gown of her dreams after a long search. She placed a 50 percent deposit on her order, and then waited for five months for her gown to be custom-made. When it arrived, she picked it up and took it home to try it on, only to discover that the skirt was damaged. When Stav went back to the store to ask for a refund, she was told that it was against store policy to issue refunds but she could select another gown. 4. Find the Acts from the CAV website that regulate: > unfair trading > non-for-profit organisations > purchasing a motor vehicle > partnership disputes. 5. What legislation regulates consumer affairs in Australia? 6. Is CAV an appropriate body to regulate consumer affairs? Explain you answer. 7. Discuss why CAV is appropriate in resolving disputes. CONSUMER AFFAIRS VICTORIA _LegalMaze_Y12_text_ch06_2pp.indd 14

23 6 : RESOLVING A CIVIL DISPUTE 15 VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL The Victorian Civil and Administrative Tribunal (VCAT) is a tribunal whose aim is to resolve disputes. This tribunal has a broad range of powers, and its decisions are legally binding. VCAT assesses the cases that come before it and decides which are suited to ADR before assigning them to a case manager. Different members of the tribunal will have different approaches as to how to resolve the dispute. ROLE VCAT was established in 1998 and is structured into four divisions, which handle large groups of cases and disputes. The four divisions are: Civil: disputes between individuals Human Rights: discrimination disputes Residential Tenancies: disputes between tenants in rental properties Administrative: disputes between individuals and the government. Within each division, different sets of members (referred to as lists ) deal with specific types of similar cases. VCAT Type of disputes heard Lists CIVIL DIVISION domestic building works retail tenancies consumer matters civil claims building and property owners corporations HUMAN RIGHTS DIVISION guardianship equal opportunity racial and religious vilification health and privacy information guardianship human rights RESIDENTIAL TENANCIES DIVISION residential tenants and landlords rooming house owners and residents caravan park owners and residents site tenants and site owners residential tenancies ADMINISTRATIVE DIVISION professional conduct inquiries reviews of decisions made by government and other authorities legal practice planning and environment review and regulation The processes adopted by VCAT vary from list to list, as different types of disputes require different approaches. Generally, the tribunal uses negotiation, mediation, conciliation and arbitration (see Chapter 7) to resolve disputes. VCAT The Victorian Civil and Administrative Tribunal (VCAT) is a tribunal empowered to deliver binding resolutions in civil disputes. It has four divisions Civil, Human Rights, Residential Tenancies and Administrative that each hears different types of cases. Table 6.3 The VCAT divisions and lists VCAT is headed by a President (who is a current Supreme Court judge). Vice Presidents (who are current County Court judges) assist the President. Members are the _LegalMaze_Y12_text_ch06_2pp.indd 15

24 16 THE LEGAL MAZE UNITS 3 & 4 VCAT handles more than cases a year across Victoria, with extremely high rates of achieving accepted outcomes for all parties. It is generally seen as an effective and appropriate option for resolving many civil disputes. Table 6.4 Amount of cases heard in VCAT in Source: VCAT Annual Report decision makers of individual cases and are allocated to the different lists. Section 40 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) states that VCAT has an original jurisdiction and a review jurisdiction. VCAT decisions are final and binding on the parties to the proceeding, apart from the right to appeal to the Supreme Court of Victoria. When a case is heard, VCAT applies the relevant law for example, the Residential Tenancies Act 1997 (Vic) applies in cases about renting a home. Cases can only be heard by VCAT when a law gives them the authority to hear cases. APPROPRIATENESS FOR DISPUTE RESOLUTION VCAT is Victoria s busiest tribunal, hearing more than cases a year in over 45 venues across the state. It operates as an independently established tribunal that aims at delivering high quality civil dispute resolution, without the need to go through the court system. Parties cannot be obliged to unwillingly refer their dispute to mediation, and an obstruction should not be imposed on their right to access the court. VCAT was established to reduce the number of separate Victorian tribunals and the high costs of administration involved. As an independent body, it has a less-formal approach than normal courts and does not follow the same strict procedures. Permission is needed to have legal representation in most cases, and often there is no need for a lawyer or professional representative. This is also cheaper for those considering resolving a civil dispute through VCAT. VCAT also offers a faster and more efficient way of resolving a dispute. It helps people reach agreement by talking through the issues at a mediation or compulsory conference. If the parties cannot agree, then a decision is made to pursue with the case at a hearing. Hearings in court may take more than two years whereas VCAT tribunals are dealt in within one or two or weeks, resulting in a faster and less expensive hearing. The effectiveness of VCAT is evident in Tables 6.4 and 6.5, which show results from the VCAT Annual Report. These table show the amount and types of cases heard, and the performance in achieving an outcome for parties in dispute. OVERVIEW Cases lodged Cases finalised Cases pending Clearance rate 102% 99% 102% This annual report also shows that VCAT received 271 complaints about services in , and there were 78 appeals against VCAT decisions lodged with the Supreme Court of Victoria. Since VCAT decisions can be appealed only on questions of law, this means that appeals can proceed only when there is a legal or judge error. This assists in limiting the amount of appeals and gives parties more confidence in resolving disputes _LegalMaze_Y12_text_ch06_2pp.indd 16

25 6 : RESOLVING A CIVIL DISPUTE 17 CIVIL DIVISION LIMITATIONS OF VCAT % CHANGE MEDIAN While VCAT is a popular and effective route for settling disputes outside of courts, not every case is a perfect fit for the tribunal. VCAT is more appropriate for small claims or disputes. Larger cases are usually heard through the court process. VCAT is divided into its various lists, which can confuse parties about where to have their dispute heard. Appeals through VCAT are limited to questions of law, unlike courts. This means that claimants have no avenue for appeal if they think their case has been assessed unfairly. Not all cases can be referred to VCAT, due to the complexity or amount being claimed. Regarding personal injury claims, it does not hear any other than assessments under the Transport Accident Act 1986 (Vic) and the Victims of Crimes Assistance Act 1996 (Vic). Personal injury actions, major transport accident claims, workplace injuries and injuries resulting from medical negligence are dealt with and generally heard in the County Court of Victoria. Another significant issue is that the cost of having a dispute heard about goods and services, building and owners corporations at VCAT have increased in the last few years. For example, according to the 2016 Civil Division, a claim for up to $3000 has an application fee of $ However, a claim for $ or more could have an application fee of $ , as well as additional hearing costs per day. TIMELINESS (WEEKS) TH PERCENTILE TARGET Building and % Property Civil Claims % Owners Corporations % RESIDENTIAL TENANCIES DIVISION Residential Tenancies % ADMINISTRATIVE DIVISION Legal % Practice Planning and % Environment Review and Regulation % HUMAN RIGHTS DIVISION Guardianship % Human % Rights Annual TOTAL % 11* 24* 26** Excluding Guardianship and Residential Tenancies cases: * achieved median and 80th percentile ** VCAT overall goal Table 6.5 Complaints received by VCAT in Source: VCAT Annual Report VCAT cannot handle all types of civil disputes, and while it is generally cheaper than taking a dispute to court, costs for making a claim have been increasing _LegalMaze_Y12_text_ch06_2pp.indd 17

26 18 THE LEGAL MAZE UNITS 3 & 4 Source: The Age, 24 October 2016 APPLY YOUR UNDERSTANDING 1. Explain what VCAT is. Somers community fears being priced out of VCAT in case against Mornington council Aimee Amiga Residents of the quiet coastal village of Somers claim the little person is being priced out of Victoria s planning tribunal, after fees to face a hearing in a case against the local council skyrocketed at the last minute. More than 300 members of the community of 1400 actively oppose the Mornington Peninsula Shire Council s plan to pave a pathway through the village on the grounds that it would destroy vegetation, compromise habitat for wildlife including koalas and detract from the character of the village. 2. What is the purpose of VCAT? Use two examples to support your answer. 3. What is the Somers community (see p. xx) concerned about? 4. What VCAT division and list would the Somers case be heard in? Yet, a week before the start of the VCAT hearing on Monday, the applicants were notified that the process would cost more than double the fee they had originally been quoted. Rather than $4098 for four days at VCAT, it would now cost the community $9407. We had no idea the costs were going to be as great as what they are, said community organiser Pam Bannister. Perhaps if we d known what the fees would be from the get go, we might have thought twice about submitting an application. 5. Discuss whether deciding to use VCAT to resolve a dispute in the Somers case is appropriate. Explain why _LegalMaze_Y12_text_ch06_2pp.indd 18

27 6 : RESOLVING A CIVIL DISPUTE 19 APPLY YOUR UNDERSTANDING ONLINE RESEARCH TASK Go to the VCAT website and complete the tables below: 1. Civil Claims List TYPES OF DISPUTES Examples of disputes Limits of claims Types of orders 2. Anti-discrimination List TYPES OF DISPUTES Examples of disputes Limits of claims Types of orders 3. Residential Tenancies List TYPES OF DISPUTES Examples of disputes Limits of claims Types of orders VCAT 4. Go to About VCAT a. What is VCAT and what is its role in dispute resolution? 5. Visit Our Structure a. Who is the President of VCAT? What is their qualification? How many vice presidents are there and what are their qualifications? b. How many divisions are there and what are they called? c. Within these Divisions, there are lists: What are the lists that the first three divisions operate under? 6. Go to Case Types, click on the links for the following and explain the types of cases they resolve: a. Renting a home b. Equal opportunity c. Goods and Services. 7. Go to Forms Guides and Resources. Download the Fees document. a. In the Civil Division, how much would it cost to have a three-day hearing for a claim between $ and $ cost? What if you also apply for costs to be paid by the other party? b. In the Residential Tenancies Division, how much would a one-day hearing for a $ hearing cost? What if you also apply for costs to be paid by the other party? _LegalMaze_Y12_text_ch06_2pp.indd 19

28 20 THE LEGAL MAZE UNITS 3 & 4 Pre-trial civil procedures aim to enhance an effective operation of the legal system. The process is meant to ensure a fair and unbiased hearing, access and a timely resolution. The stages of the pre-trial process are sending a letter of demand, issuing pleadings, discovery of documents and a direction hearing with a judge or judicial officer. Figure 6.2 The pretrial process for a civil case THE CIVIL PRE-TRIAL PROCESS The Civil Dispute Resolution Act 2011 (Vic) provides an opportunity for people to take steps to resolve civil disputes before civil proceedings are initiated. Section 6 of the Act requires applicants to file a genuine steps statement with their application in order to give a summary of the steps that have been taken to resolve the dispute, or to give an explanation as to why no steps could be taken. Court is considered as the next stage of resolving the dispute, once the civil pre-trial process has not provided resolution. However, courts are the most expensive and formal method of resolving disputes and should be the last resort. PURPOSE The purpose of a civil pre-trial procedure is to inform both parties about the legal action through an exchange of documents. The plaintiff informs the defendant about the legal action and claim being brought against them; the defendant informs the plaintiff about their defence in response to the claim. This process allows both parties to discover whether there are enough grounds to proceed with a case. Parties may resolve some issues by agreeing or conceding, eliminating those issues from the dispute heard in trial. This also gives both parties the opportunity to decide whether the case could be settled out of court. If the case does proceed to court, the information obtained through the pre-trial procedures helps to clarify matters of the case to the parties and court. This will also assist in saving costs during trial procedures, as the long and expensive process of preparing legal documents would have occurred during the pre-trial stage. STAGES OF THE PRE-TRIAL PROCESS LETTER OF DEMAND PLEADINGS THE PRE-TRIAL PROCESS Writ Notice of appearance Statement of claim and defence Counterclaim DISCOVERY Interrogatories Production of documents DIRECTION HEARING _LegalMaze_Y12_text_ch06_2pp.indd 20

29 6 : RESOLVING A CIVIL DISPUTE 21 Letter of demand Sent by the plaintiff, the letter of demand informs the defendant of the nature of the claim and the remedy sought. This usually demands that the defendant complies with the plaintiff s request, which may impose a response from the defendant within a time frame. It also states that the plaintiff will issue legal proceedings if the defendant does not comply with the letter. If the defendant does not comply with the letter of demand requests, the plaintiff can select to abandon the claim or proceed with civil action. Dear Ms Eleanor Sprang, Re. Debt due to Mr Gregor Browne In a previous letter sent to you on 10 December 2017, we sought the payment of $8000 that is owing to our client. We advise that we have instructions from our client to commence legal action against you to recover the amount of $8000. Before we commence court action as instructed we advise that our client will accept your payment of the amount of debt being $8000 by 4.00pm on 30 March If our client is obliged to go to court and the court determines in favour of our client, you should be aware that you may be held liable to pay amounts in addition to the amount of the debt. We ask that you respond to this letter as soon as possible and before 4.00pm on 30 March Yours faithfully, CL Cawling and Associates, Solicitors Pleadings Pleadings are a series of documents exchanged between parties that assist in reaching an out-of-court settlement where appropriate. The purpose of this stage is for the parties to state the main claims and defences of their case and compels both party to state the material facts and details. The court records the written information. There are five main documents that may be issued in the pleadings stage. Writ A writ is a legal document prepared by the plaintiff s solicitor and lodged at the Supreme Court with a copy for the defendant. It informs the defendant where the trial will take place, whether it involves a judge alone or a judge and jury, and which court it will be heard in. A writ usually has a general statement of the nature and cause of the claim, or a statement of claim that gives more detail about the relief or remedy being sought. A general claim must be filed within 30 days of the defendant filing the notice of appearance. The plaintiff (or their legal representative) files copies of the writ with the Court s registry and serve an original copy of the writ on the defendant. The plaintiff has one year from the day of the writ being filed to serve it on the defendant. An extra year s extension can be requested if the defendant cannot be located. PLEADINGS: the pre-hearing stage in the preparation of a civil case in which the issues are clarified WRIT: the initial document sent to commence a civil claim _LegalMaze_Y12_text_ch06_2pp.indd 21

30 22 THE LEGAL MAZE UNITS 3 & 4 A SAMPLE WRIT RULE 5.02(1) IN THE COUNTY COURT OF VICTORIA AT BETWEEN Mr Gregor Browne and Ms Eleanor Sprang Date of document: 16 April 2018 Filed on behalf of: Mr Gregor Browne Prepared by: CL Cawling TO THE DEFENDANT Form 5A WRIT Solicitors Code: DX: Tel. No.: Fax. No: Ref: CI- - Plaintiff Defendant TAKE NOTICE that this proceeding has been brought against you by the plaintiff for the claim set out in this writ. IF YOU INTEND TO DEFEND the proceeding, or if you have a claim against the plaintiff which you wish to have taken into account at the trial, YOU MUST GIVE NOTICE of your intention by filing an appearance within the proper time for appearance stated below. YOU OR YOUR SOLICITOR may file the appearance. An appearance is filed by- (a) filing a Notice of Appearance in the Registrar s office in the County Court Registry, 250 William Street, Melbourne, or, where the writ has been filed in the office of a Registrar out of Melbourne, in the office of that Registrar; and (b) on the day you file the Notice, serving a copy, sealed by the Court, at the plaintiff s address for service, which is set out at the end of this writ. IF YOU FAIL to file an appearance within the proper time, the plaintiff may OBTAIN JUDGMENT AGAINST YOU on the claim without further notice. *THE PROPER TIME TO FILE AN APPEARANCE is as follows- (a) where you are served with the writ in Victoria, within 10 days after service; (b) where you are served with the writ out of Victoria and in another part of Australia, within 21 days after service; (c) where you are served with the writ in Papua New Guinea, within 28 days after service; (d) where you are served with the writ in New Zealand under Part 2 of the Trans-Tasman Proceedings Act 2010 of the Commonwealth, within 30 working days (within the meaning of that Act) after service or, if a shorter or longer period has been fixed by the Court under section 13(1)(b) of that Act, the period so fixed; (e) in any other case, within 42 days after service. IF the plaintiff claims a debt only and you pay that debt, namely, $8000 and $2200 for legal costs to the plaintiff or his solicitor within the proper time for appearance, this proceeding will come to an end. Notwithstanding the payment you may have the costs taxed by the Court. FILED 20 April 2018 Ignacio Narbondo Registrar THIS WRIT is to be served within one year from the date it is filed or within such further period as the Court orders _LegalMaze_Y12_text_ch06_2pp.indd 22

31 6 : RESOLVING A CIVIL DISPUTE 23 Notice of Appearance A Notice of Appearance is the first document filed by the defendant if they wish to defend the claim brought against them. This purpose of this step is to inform the court and the plaintiff that the defendant will defend the claim. There is a time limit in which a notice of appearance is served; in Victoria, the defendant has 10 days from the date being served to file and serve the notice. If the defendant does not respond by the time limit, the plaintiff has the right to obtain a binding judgment against the defendant. A SAMPLE NOTICE OF APPEARANCE Rule 8.05(2) IN THE SUPREME COURT OF VICTORIA AT MELBOURNE No. [X] of [X] (No & of to be the same as that contained on the Writ document) Choose either [COMMON LAW DIVISION OR COMMERCIAL& EQUITY] DIVISION (To be the same as on the Writ document) BETWEEN [FULL NAME(S) OF PLAINTIFF(S) IF MORE THAN 2, INSERT NAME OF 1ST PLAINTIFF AND OTHERS ACCORDING TO THE SCHEDULE (same as per Writ document] Plaintiff/s and [FULL NAME(S) OF DEFENDANT(S) IF MORE THAN 2, INSERT NAME OF 1ST DEFENDANT AND OTHERS ACCORDING TO THE SCHEDULE (same as per Writ] Defendant/s Date of document: COMPLETE Filed on behalf of: The Defendant Prepared by: COMPLETE [Name] Address: COMPLETE NOTICE OF APPEARANCE Tel: COMPLETE Fax: COMPLETE To the Prothonotary and to COMPLETE [The Plaintiff/s]; File an appearance for COMPLETE [Full Name] the above named Defendant Dated the...day of complete The address of the defendant is: COMPLETE The address of the defendant for service is: COMPLETE TO: The Prothonotary, Supreme Court of Victoria, 436 Lonsdale Street, Melbourne...SIGN... [Name of Defendant] AND TO: The Plaintiff and COMPLETE [his/her/its solicitors], [Name of firm], [address] NOTICE OF APPEARANCE: a written notification by the defendant informing the plaintiff that they will be appearing in court _LegalMaze_Y12_text_ch06_2pp.indd 23

32 24 THE LEGAL MAZE UNITS 3 & 4 COUNTERCLAIM: a cross action (response) in which a defendant who is being sued counter-sues the plaintiff for a separate infringement of their rights Statements of claim and defence A statement of claim is a document that the plaintiff prepares and which is sent to the defendant. The plaintiff includes specific details of the claim sought, and facts the plaintiff is presenting. The defendant can prepare a statement of defence to either admit or deny the allegations, in response to the statement of claim received by the plaintiff. A SAMPLE STATEMENT OF DEFENCE IN THE SUPREME COURT OF VICTORIA AT MELBOURNE DIVISION BETWEEN and Date of Document: Filed on behalf of: Prepared by: Notice of Defence Solicitors Code: DX: Tel: Ref: No. S CI Plaintiff Defendant Counterclaim Finally, the defendant may issue a counterclaim, or a document making a claim against the plaintiff, which may involve suing them for damages or injury. This would be heard at the same time as the initial claim. Sometimes pleadings create more confusion than what their purpose of clarifying and disclosing was set out to do. Statements of claim, defence and counterclaim may be long and complicated, and the process of preparing and exchanging these is expensive. It has been argued that this process should be replaced with a less-formal process that identifies the genuine issues and uses other steps, such as an exchange of witness statements. This may eliminate the time involved, the formality and costs involved in the pre-trial stage of pleadings. Discovery This step involves discovering and raising questions of fact in dispute. Parties are obliged to provide all documents to the other party that are relevant to the case. It requires parties to disclose all relevant information to the other party and reduces the element of surprise _LegalMaze_Y12_text_ch06_2pp.indd 24

33 6 : RESOLVING A CIVIL DISPUTE 25 It also determines the likelihood of success in the matter as each party has access to the strengths and weaknesses of the other sides case. Parties can obtain more information on matters that remain unclear through the steps below: Interrogatories: these are written questions that both parties can serve each other regarding the issues of fact that need clarifying. Both parties must respond in writing within 60 days. The evidence that is collected during interrogatories can be used to check evidence at trial. Production of documents: this step allows both parties to request any documents from the other party which they intend to use as evidence, to obtain copies. Discovery is another stage of the pre-trial process that is often debated. It has been suggested that the discovery process is too formal and time-consuming, as some matters brought forward are not appropriate to the case. This process could be more flexible if only particular topics were permitted during the discovery stage, as opposed to all documents. Similarly, interrogatories can be time-consuming and costly to produce, so the court is asked for permission before issuing questions. Often the evidence gained from the answers to interrogatories are not worth the time and delay involved. If this evidence was available in another way to obtain these answers, interrogatories could possibly be abolished. Directions hearings This step is held before a judge (or associate judge). The directions hearing allows them to identify the main issues and give the parties direction on how to proceed with the action. The judge considers the most appropriate option that is quick, effective, economical and provides a suitable outcome for the parties and court. The court may refer a matter to mediation or arbitration or allocate a date for trial. ADVANTAGES OF CIVIL PRE-TRIAL PROCEDURES The exchange of information could lead to a mutually agreed result for both sides and an out-of-court settlement. Both parties can find out details of the case brought against either of them through the process of pleadings and the discovery. Pre-trial civil procedures such as directions hearings assist in reducing the time spent in resolving the dispute due to issues being clarified before trial. DISADVANTAGES OF CIVIL PRE-TRIAL PROCEDURES An extensive number of documents in the discovery process can cause delays. Parties can obtain more documents due to updated search engines which would require more time prior to trial, to sift through all the information. Delays can happen as a result of the long and complex procedure stages that parties may not understand or the amount of times that adjournment may occur. There have been delays in pre-trial procedures as a result of the many long and drawn-out steps in clarifying the issues. DIRECTIONS HEARING: a hearing conducted by a judge to establish the timelines for completing the pre-trial stages Table 6.6 Advantages and disadvantages of civil pre-trial procedures _LegalMaze_Y12_text_ch06_2pp.indd 25

34 26 THE LEGAL MAZE UNITS 3 & 4 Source: 27 September 2016 Federal Court action by car giant Jeep against two former Australian bosses has hit the brakes Joshua Dowling APPLY YOUR UNDERSTANDING SETTLING OUT OF COURT COURT action taken by Jeep against two of its former Aussie bosses for allegedly misusing $30 million in company funds has been dropped. The Federal Court action taken by US car giant Jeep against two of its former Australian bosses for allegedly misusing $30 million in company funds has been dropped just days before the first hearing, avoiding a public slanging match. Last year Fiat Chrysler Automobiles the parent company of Jeep launched Federal Court action against Clyde Campbell, who ran the company from October 2010 to May 2013, and his successor Veronica Johns, who was in charge until December Both executives oversaw record sales for the brand during their tenure, but documents filed in the Federal Court in May 2015 claimed the bosses spent company funds on lavish corporate events and uncommercial sponsorship deals, including handing out free loan cars to brand ambassadors such as model Jesinta Campbell, cricket legend Shane Warne, and soccer star Harry Kewell. In his defence, lawyers for Mr Campbell said the corporate spending was approved by the highest levels of management. However, the court action has now ended suddenly, with a brief statement being issued by Jeep: The parties to the FCA Australia v Clyde Campbell legal proceeding have agreed to a settlement without admission of liability of any party. The terms of the settlement are both confidential and mutually acceptable. The spokeswoman for Jeep, Lucy McLellan, told News Corp Australia that she cannot comment beyond the statement agreed to by all parties. It is not known what the terms of the settlement include, but News Corp Australia understands there will be no action taken against either of the former bosses, or Mr Campbell s wife, Simone, who was also named in the statement of claim filed by Jeep in the Federal Court. In the months leading up to the first hearing due in late September, Jeep had watered down or removed the majority of allegations against its former bosses and associates. The whole case has now been dropped. Read the article Federal Court action by car giant Jeep and answer the following questions. 1. Briefly outline the facts of the case. 2. Why might this have been heard in a Federal Court? _LegalMaze_Y12_text_ch06_2pp.indd 26

35 6 : RESOLVING A CIVIL DISPUTE What is the statement of claim and when would this have occurred during the pre-trial procedures? 4. What is meant by settled without admission of liability? 5. Why might the parties have chosen to mutually agree to removing most of the allegations from the initial claim? 6. Explain why an out-of-court settlement was the best option in this case. Refer to the purpose of pretrial procedures. THE VICTORIAN COURT HIERARCHY Courts were established in Australia for the purpose of settling civil disputes and resolving criminal cases. Both state and federal courts are organised in a hierarchy with a variety of different functions and jurisdictions. Victoria s hierarchy consists of the Magistrate s Court, the County Court, the Supreme Court and the trial division of the Supreme Court. There are additional bodies that can be considered part of this hierarchy, such as VCAT, the Coroner s Court and the Children s Court. However, these bodies are either not courts (VCAT, for example, is a tribunal) or are not involved in settling civil disputes. JURISDICTIONS OF VICTORIAN CIVIL COURTS The court hierarchy for hearing civil cases is the same as that for hearing criminal cases (see Chapter 2). However, the details of how the courts operate, and their jurisdictions, have subtle but extremely important differences. Jurisdiction over a case can change depending on outcomes and appeals. An original jurisdiction refers to a matter that is heard in a court in the first instance, where the court has the power to hear a case for the first time. An appellate jurisdiction is when a case comes before the court as an appeal from the original case. This occurs when a party in the case is not happy with the outcome and decide to appeal to a higher court. The High Court of Australia is the highest court; it hears complex matters that relate to the whole of Australia on a point of law, as well disputes involving states. The Supreme Court is the highest court in the Victorian hierarchy and deals with the most serious matters. The original civil jurisdiction of the Supreme Court has an unlimited jurisdiction and can hear claims of any claim of any amount for general damages cases and claims of $ and above for civil justice matters (disputes between individuals or organisations). The Appellate Civil Jurisdiction hears appeals on point of law from the Magistrates Court. The County Court is the middle court in the Victorian hierarchy. It hears civil matters of claims being made for up to $ and personal injury claims of an unlimited amount. The Magistrates Court is at the base of the state hierarchy. It hears less serious issues in a more informal manner, and as a result hears more cases. It hears civil matters where up to $ is claimed, for personal or property claims. Each court has its own jurisdiction and hears different types of cases. The Supreme Court hears the most serious cases, whereas the Magistrate s Court hears mainly the minor cases _LegalMaze_Y12_text_ch06_2pp.indd 27

36 28 THE LEGAL MAZE UNITS 3 & 4 Figure 6.3 The Victorian Court hierarchy HIGH COURT OF AUSTRALIA Table 6.7 Court jurisdictions in civil disputes The main benefits of a court hierarchy are administrative convenience, the capacity to lodge appeals, specialisation in specific areas of law and the ability of higher courts to create precedent for lower courts. SUPREME COURT OF AUSTRALIA TRIAL DIVISION COURT OF APPEAL COUNTY COURT OF VICTORIA MAGISTRATES COURT OF VICTORIA VCAT CORONERS COURT OF VICTORIA FEDERAL COURT OF AUSTRALIA FEDERAL CIRCUIT COURT OF AUSTRALIA CHILDREN S COURT OF VICTORIA FAMILY COURT OF AUSTRALIA COURT ORIGINAL JURISDICTION APPELLATE JURISDICTION Supreme Court of Victoria (court of appeal) None Appeals from the Supreme or County Court Supreme Court of Victoria (trial division) Damages claims for unlimited amounts Damages claims up to Appeals from the Magistrate s Court (which must be based on a point of law) $ and above in civil justice matters Issues of injunctions County Court of Victoria Damages claims for None unlimited amounts for personal injury claims Damages claims up to $ for civil claims Magistrate s Court of Victoria Damages claims up to $ for civil claims None REASONS FOR A COURT HIERARCHY Our court hierarchy exists for several reasons, but primarily allows for different courts to focus on cases in order of seriousness and impact. The hierarchy allows for consistency, expertise and fairness through the ability for people to exercise their rights, as well as providing the flexibility of having a case heard in another court through appeal. The main benefits of a court hierarchy are: administrative convenience appeals specialisation precedent _LegalMaze_Y12_text_ch06_2pp.indd 28

37 6 : RESOLVING A CIVIL DISPUTE 29 Administrative convenience Every court within the hierarchy develops its own expertise and familiarity with the cases that come before it, based on the seriousness and complexity. The cases heard in higher courts take longer and rely on judges that have more experience in certain points of law. Cases heard in the lower courts are much faster and less expensive. These lower courts take the pressure off the higher courts, allowing them more time to focus on the areas they are more experienced in. Legal personnel are distributed to courts based on their level of experience, allowing courts to run with routine, consistency and less time wasted. Appeals Appeals would not be possible if we did not have a court hierarchy, as those who might have grounds to contest the court s decision would not be able to have their case heard again. By giving the losing party the opportunity to have their case heard by another independent judge, the court system and the trial judge ensures that the correct decision is made. If a judge does make an error of law, appeal hearings allow for the existing decision to be corrected. This provides accountability for the individual appellant and confidence in the rights of citizens, as the court of appeal has overturned case rulings in many occasions. Without a court hierarchy, cases could possibly be heard in specialist appeal courts, but this would potentially cause further inconsistencies and problems. Specialisation Courts are able to specialise in their particular area of law because of the way in which the work is divided in their jurisdiction. Each court and personnel follow specific guidelines and procedures focused on the cases heard. In the Magistrate s Court, for example, the smaller cases are dealt with quickly and efficiently due to the familiarity of their nature. Other specialist courts, such as the Family Court, have developed specialised personnel to deal with particular areas of law dealing with family matters that are brought before the Court. Precedent A court hierarchy allows higher courts to make decisions that are binding on lower courts of the same hierarchy. The ratio decidendi (reason for deciding) establishes the precedent. This precedent is then followed by lower courts for future reference. This provides consistency in similar cases as the ruling is based on previous rulings. This also assists in deciding whether to pursue a civil case as the outcome can be predicting from similar precedent. The practice of precedent also generates flexibility due to the ability to distinguish a precedent from a higher court, making it possible to make a new decision in a lower court that is more suitable to the individual case. If there was no court hierarchy, higher courts would not be able to make precedent for lower courts to follow. Drawbacks of a court hierarchy While the system of a court hierarchy works well, there are some drawbacks. These include: There is sometimes confusion regarding which court a case is heard in. Every court has its own administration personnel (which could be reduced if there was only one court). APPELLANT: the person who challenges the findings of a hearing by appealing the case RATIO DECIDENDI: the reason for the decision of an outcome of a judgment in a case _LegalMaze_Y12_text_ch06_2pp.indd 29

38 30 THE LEGAL MAZE UNITS 3 & 4 APPLY YOUR UNDERSTANDING RESEARCH TASK The level of judicial expertise that parties receive in a lower case is not the same high standard as that of a higher court. Appeals add to the cost of hearing a case to the legal system and the parties involved. Overall, the benefits of the court hierarchy are seen as outweighing the drawbacks. Visit the Victorian Magistrates Court website and find the information on the various specialist courts that exist as part of this Court. List all the specialist courts under the Magistrate s Court. What do specialist courts do? Using information from each specialist court, explain what the purpose of these courts in resolving a civil dispute are and what they specialise in. VICTORIAN MAGISTRATES COURT gov.au/publication/guidespecialist-courts-andcourt-support-services CHAPTER SUMMARY Do your notes cover all the following dot-points? What is a civil dispute? A civil dispute can occur between individuals, government entities, non-government or private organisations. Many disputes can be settled without taking legal action, through a variety of methods and ADR processes. There are several factors that parties should consider before taking legal action: > > Negotiation: parties can try to work together to resolve the dispute without a third party adjudicating. > > Costs: individuals taking legal action could encounter legal fees and court costs. The party who wins a civil case in court is entitled to recover some of their legal costs. > > Limitation of actions: the application for proceedings must be made within the set timeframe. > > Scope of liability: the plaintiff must have enough evidence that the party in question was liable and what the scope of that liability was. > > Enforcement issues: even when an outcome in a dispute has been reached, the defendant may not be able to pay the amount decided by the judge or adjudicator. An alternative to settling a civil dispute in court is to take it to a less-formal body, such as an adjudicator or a tribunal. Consumer Affairs Victoria Consumer Affairs Victoria (CAV) is a unit of the Department of Justice and Regulation that monitors and regulates consumer affairs. > > The purpose of CAV is to help Victorians make informed decisions regarding business and consumer matters, and to protect their consumer rights. > > CAV also advises the government on legislative changes to improve consumer protection and remake regulations. > > CAV can act as a third party, advocate or adjudicator in appropriate civil disputes involving consumers. However, its rulings are not legally binding _LegalMaze_Y12_text_ch06_2pp.indd 30

39 6 : RESOLVING A CIVIL DISPUTE 31 VCAT The Victorian Civil and Administrative Tribunal (VCAT) is a tribunal that aims to resolve civil disputes. VCAT has a broad range of powers and its rulings are legally binding. > > VCAT was established in 1998 and has four divisions: a. Administrative: disputes between individuals and the government b. Civil: disputes between individuals c. Human Rights: discrimination disputes d. Residential Tenancies: disputes between tenants and landlords. > > Each VCAT division contains specialist Lists, which are adjudicated by managers who have specific knowledge and expertise. > > VCAT proceedings are less-formal than those of normal courts, and the costs involved are lower (although these have been increasing). > > VCAT rulings can only be appealed on the basis of a legal or judge error. The civil pre-trial process If a dispute is taken to a civil trial, the parties must follow a set pre-trial procedure by exchanging specific documents. The purpose of the pre-trial procedure is to make sure both parties are fully informed about the legal action. It also provides an additional opportunity to settle the dispute before going to court. There are four stages and sets of documents in the civil pre-trial process. 1. The plaintiff sends a Letter of Demand to inform the defendant of the nature of the claim and the remedy sought. 2. Pleadings are documents exchanged between the parties in which they state the main claims and defences of their case. Writ: a document sent by the plaintiff to notify the defendant of the nature of the claim, the hearing details (date, time, place of hearing). Notice of appearance: the first document filed by the defendant to inform the court and the plaintiff that they will be defending the claim. Statement of claim: the plaintiff states the specific details of the claim sought and the facts being presenting. Statement of defence: the defendant can prepare a defence claim to either admit or deny the allegations in response to the statement of claim. Counterclaim: the defendant can also take a separate action against the plaintiff, suing them for damages or injury. 3. The Discovery stage raises questions of fact in the dispute that the parties are obliged to provide to the judge. Interrogatories: specific written questions that the other party must answer. Discovery and production of documents: request from either party to provide access to any documents that will be used in the case. 4. The judge holds a Direction Hearing, views the main issues of case and gives direction to the parties of how the case will be handled next. The Victorian court hierarchy Victorian courts exist in a hierarchy; higher courts hear more complex cases with potential legal ramifications, while lower courts hear more straightforward cases. The Magistrates Court is the lowest court for hearing civil disputes, and deals with claims worth up to $ _LegalMaze_Y12_text_ch06_2pp.indd 31

40 32 THE LEGAL MAZE UNITS 3 & 4 CHECK YOUR UNDERSTANDING 1. Define the term plaintiff. The County Court is the next highest court, and can deal with damage claims for any amount. The Supreme Court is the highest Victorian court; it does not hear many civil claims, but acts as the court of appeal for cases heard in the Magistrates or County Courts. There are a number of reasons for maintaining a court hierarchy: 1. Administrative convenience: each court develops its own expertise with the cases that come before them based on the seriousness and complexity. 2. Appeals: by giving the losing party the opportunity to have their case heard by another independent judge, the system ensures that the correct decision is made. 3. Specialisation: courts specialise in their area of law because of the way in which the work is divided in their jurisdiction. 4. Precedent: a court hierarchy allows higher courts to make decisions that are binding on lower courts of the same hierarchy. 2. Explain how appropriate VCAT is in hearing a case that: has a claim over $100,000. is a class action (see the discussion on representative proceedings in Chapter 5). 3. Compare the main difference between CAV and VCAT. Use the following headings: a. aim or purpose b. parties to a dispute c. use of an adjudicator or third party d. initiating civil action e. outcomes (are they binding or non-binding?) f. impact on the individual. 4. Demonstrate, using examples, how the principles of justice apply to Victorian civil claims heard in VCAT and CAV. 5. Evaluate two reasons for pre-trial procedures. 6. Explain what a Letter of Demand is and explain what its purpose is. 7. Explain the process and purpose of a writ. 8. What is the purpose of the discovery stage? 9. Explain what is involved in the Directions Hearing. 10. What is a court hierarchy, and what is its purpose? 11. What is the place of the Magistrate s Court in the Victorian Court hierarchy? 12. Define the following terms: original jurisdiction appellate jurisdiction _LegalMaze_Y12_text_ch06_2pp.indd 32

41 6 : RESOLVING A CIVIL DISPUTE 33 To help you with your answers to this exam practice, refer back to the Exam Practice Essentials information on page XX. EXTENDED RESPONSE QUESTIONS Read through the following hypothetical scenario and answer the questions that follow: Paul and Lucinda were living together for four years before breaking up. Paul moved into Lucinda s rental apartment. Lucinda paid the rent, Paul paid for the food and utility bills. All other bills and expenses were shared. Two years ago, they purchased a flat-screen television that cost $1500 and a surroundsound system for an additional $1000, both of which had the warranty registered and been paid for by Paul. Three years earlier they bought a bulldog, which grew very attached to both of them. Before the breakup, Paul had borrowed Lucinda s brand-new Mazda 3 (valued at $29 000) to go to the supermarket, and he accidently sideswiped it. He was meant to have sorted the repairs for it, but needed to save for the repair as he wasn t covered under the insurance of Lucinda s car as a driver. Lucinda asked Paul to move out. They agreed to divide everything apart from the TV, the surroundsound system and the dog. There was also the cost of repairs of the damage caused to Lucinda s vehicle (estimated to cost $14 000). Lucinda was not prepared to part with the dog, and wanted the money to repair her car. Paul believed he was entitled to take the TV and surround-sound system, as well as the dog, as he paid for the utility and food expenses for the last four years, which added up to the value of $4000. Paul is lodging a claim for these belongings. 1. Analyse which process would be the most appropriate for this case: VCAT or litigation? (5 marks) 2. Discuss whether CAV could assist in achieving a fair outcome. Include in your response a discussion of the purpose and role of CAV. (6 marks) 3. Pre-trial procedures are designed to speed up the resolution of civil disputes. Comment on this statement using the above case and refer to one civil pre-trial procedure. (5 marks) 4. Explain how the use of civil pre-trial procedures can assist as well as limit in the achievement of timely resolutions of disputes, using this case as an example. (6 marks) 5. Discuss the purpose of civil pre-trial procedures. (8 marks) 6. Assess the ability of pre-trial proceedings to achieve equality and fairness. (8 marks) EXAM PRACTICE _LegalMaze_Y12_text_ch06_2pp.indd 33

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43 RRP: $74.95 ISBN: PUBLISHED: November 2017 JIM OULIARIS BIANCA CRAWFORD VCE LEGAL STUDIES UNITS 1 & 2 9E

44 UNITS 1 & 2 TABLE OF CONTENTS JIM OULIARIS BIANCA CRAWFORD UNIT 1: GUILT AND LIABILITY 1. Individuals and the law 2. What makes an effective law? 3. Parliament, courts and the law 4. Key concepts of criminal law 5. Courts and criminal law 6. Criminal law in action 7. Key concepts of civil law 8. Civil law in action UNIT 2: SANCTIONS, REMEDIES AND RIGHTS 9. Law enforcement 10. Courts and sentencing approaches 11. The sentencing process 12. Resolving civil disputes 13. Rights in Australia 14. International rights VCE LEGAL STUDIES UNITS 1 & 2 9E UNITS 3 & 4 TABLE OF CONTENTS UNIT 3: RIGHTS AND JUSTICE 1. Justice and criminal law 2. Determining a criminal case 3. Outcomes in criminal law 4. Reforms to criminal law 5. Justice and civil law 6. Resolving a civil dispute 7. Outcomes in civil law 8. Reforms to civil law UNIT 4: THE PEOPLE AND THE LAW 9. Our Constitution 10. Constitutional checks on Parliament 11. High Court interpretation 12. Making the law in Australia 13. The relationship between parliaments and the courts 14. Reforming our law 15. Law reform bodies TITLE ISBN RRP The Legal Maze VCE Units 1 & 2 9e $74.95 The Legal Maze VCE Units 3 & $74.95 The Legal Maze VCE Units 1 & 2 9e Digital only $52.95 The Legal Maze VCE Units 3 & 4 Digital only $52.95 The Legal Maze VCE Units 1 & 2 9e Teacher Resource $ The Legal Maze VCE Units 3 & 4 Teacher Resource $ To request an inspection copy, please contact Customer Support on or customersupport@macmillaneducation.com.au Prices are subject to change without notice. At Macmillan Science and Education ( Macmillan ) we recognise the importance of your privacy and understand your concerns about the security of the personal information you provide to us. We comply with the Australian Privacy Principles (APPs) as contained in the Privacy Act 1988 (Cth). The APPs detail how personal information may be collected, used, disclosed, stored and destroyed, and how an individual may gain access to or make complaints about the personal information held about them. HEAD OFFICE Locked Bag 1, Prahran VIC 3181 ABN: (1)/17 /secondary The Legal Maze 9e flyer 2017_REV_.indd 2 12/07/2017 1:40 PM