VCAA Legal Studies The Victorian civil justice system

The burden of proof is the responsibility of the party to prove the facts of the case. In this case the burden of proof is on the clients as they are the plaintiffs who want to sue Louise. The standard of proof is the strength of evidence required to prove the facts of the case. Because the clients want to sue Louise, as it is a civil action and therefore the standard of proof is on the balance of probabilities which means that both parties must provide sufficient evidence to prove that their version of the facts is more probable than not.

It may be somewhat appropriate for Louise's clients to initiate a class action against Louise. 22 clients were affected by the matter, which fulfills the criteria of seven or more people affected by the same matter to initiate proceedings against the same party, a class action encompasses. Additionally, they are all equally effected by the matter which would ensure that they are compensated through the damages as all plaintiffs are awarded the same amount of damages. However, one client must be willing to be the lead plaintiff and represent the other clients, including bearing the burden of costs and engaging in legal practitioners and participating in court processes, which may make a class action inappropriate if there is no willing plaintiff.

THIS IS AN INTRO OF A HIGH-SCORING RESPONSE:

This statement is true to a moderate extent. Whilst factors such as costs may inhibit the principles of equality and access, pre-trial procedures are aimed to promote the principle of fairness, and reforms to the system may assist in achieving the principles of justice. Furthermore, alternative methods of dispute resolution offer means other than the courts which may improve these principles.

The costs that must be considered when initiating a civil claim are highly significant, and as such, may be viewed as inhibiting the principle of access. Whilst the courts offer a means by which parties may resolve disputes, plaintiffs are often dissuaded from pursuing their rights by the exorbitant costs of legal representation, filing fees and hearing fees, as well as potential jury or expert witness fees. This inhibits these parties’ ability to access justice, and is exacerbated by the potential for an adverse costs order if their claim is unsuccessful.

Alternative dispute resolution methods within the civil justice system uphold the principles of fairness, equality and access to a moderately high extent.

Firstly the principle of fairness is upheld by the increased party control offered by mediation and conciliation due to the ability of the parties to achieve their own outcome. As mediation and conciliation both see parties reach a mutually beneficial outcome through negotiation, it is likely to be agreed upon and therefore accepted by both parties. As such the outcome is likely to be fair for both and not disadvantage one party as it is beneficial for both parties and is thus likely to be followed without having to utilize a deed of settlement or other extensive processes to make the outcome binding.

Fairness is also upheld as during arbitration and court trials, an independent third party makes the decision free from bias or prejudice and therefore allows for a fair outcome for both parties that they are bound to follow by an arbitral award or the judges remedy awarded.

• Error: The burden of proof lay with Adrian. Correction: The burden of proof lay with Maria, the plaintiff, as she was the one who brought the action against Adrian.

• Error: Adrian was found guilty. Correction: As this is a civil dispute, there was no finding of guilt, but there could be a finding of liability.

• Error: The judge did not have the power to order the case to go to mediation. Correction: As this was heard in the Supreme Court, the judge would have case management powers, which includes the power to order parties to attend mediation before trial.

THE FOLLOWING IS AN EXCERPT ONLY:

In civil trials particularly, the proceedings are high in complexity and are difficult for jurors to understand, particularly in understanding the evidence presented such as in a defamation claim which are substantially complex. This limits the ability of access to be achieved in civil jury trials. However it is also important to consider that by allowing community members to experience juror duty in both civil and criminal matters, it is allowing them to participate in legal proceedings, enhancing their ability to understand and access the criminal and civil justice systems and upholding access to jury trials.

One reason for using representative proceedings is to save the court time. Representative proceedings refers to when a group of 7 or more people have suffered loss as a result of the actions of the same defendant entity, deriving from similar or related circumstances and concerning the same point of law. The lead plaintiff assumes most of the responsibility for preparing the representative proceeding on the behalf of other group members. By hearing the claims of multiple groups at once instead of hearing them individually, time may be saved by the court as common arguments which would have been put forward by many parties can be resolved in a single case. While it may lengthen the duration of the representative proceeding itself, it would ultimately reduce the amount of time the court spends resolving related disputes.

I agree with this statement to a moderate extent. VCAT is an independent body that aims to provide access to a just, timely, cost-effective dispute resolution service, VCAT may "always" be appropriate if either parties are seeking a legally binding outcome. VCAT offer a final hearing which involves both the plaintiff and the defendant to have equal opportunities to present their case including evidence to a VCAT member. This final hearing comes to the resolution through legally binding decision that the VCAT member will decide after giving both parties equal opportunities to present their case. This means that if a member prefers a legally binding outcome as it ensures that the remedy proposed will be fulfilled. VCAT may "always" be an appropriate body moreover because the final hearing is less costly and formal.

THE FOLLOWING IS AN EXTRACT FROM A FULL HIGH-SCORING RESPONSE:

Similarly, sanctions, like fines & imprisonment can act to punish offenders; fines by imposing a monetary penalty on the individual & imprisonment by fully revoking their liberty. These sanctions can both act as specific & general deterrents if they are severe enough, by conditioning the offender to alter their ways & sending a strong message to the community that criminal behaviour is not tolerated & will be met with consequences.

That being said, criminal sanctions are not without their limitations. Imprisonment, for instance, can subject people to negative influences of hardened criminals, undermining the changes that the offender will be rehabilitated from future offending. Victoria’s high recidivism rate (44%) suggests imprisonment is rather ineffective at rehabilitating people. Similarly, if a fine or CCO is perceived as too lenient (e.g. if the fine is easily payable or the CCO is too short), then offenders may not be properly punished, & may also not be deterred from re-offending.

One factor that would have to be considered is enforcement issues. Dani and Sunny should consider if the defendant – the builder – will actually pay the damages they may be seeking to cover the defects the builder has not rectified. The builder has continued to ignore the report and insist there are no defects, so it sounds as though he may be unwilling to compensate Dani and Sunny as he believes he has done nothing wrong. Dani and Sunny should consider whether it is worth initiating a claim if it will be very difficult to enforce the builder to compensate them. A second factor to consider is costs. Dani and Sunny would have presumably spent money on their new house and although their financial situation is not mentioned, they should consider whether they can afford to pursue legal action against the builder through to its conclusion as they may not have the means, considering there are many costs involved with dispute resolution such as legal representation.

THE FOLLOWING IS AN EXTRACT FROM A FULL HIGH-SCORING RESPONSE:

However, VCAT is likely to be the more appropriate body to use. VCAT has the ability to offer a binding resolution to the dispute through their final hearing process, which would benefit Dani and Sunny as they wish for the builder to comply with their requests. CAV generally uses a conciliation process in which party cooperation is necessary, and hence this may not be appropriate because the builder is insistent that there are no defects. Since conciliation has already been attempted and failed, it is unlikely to be effective again.

Furthermore, VCAT offers a more formal setting through compulsory conferences and the final hearing, which would be more appropriate than the use of CAV’s less formal over the phone process for this case, as the lack of cooperation from the builder suggests that he does not take informal discussions seriously.

The judge’s responsibilities in a civil trial can include things such as directing the jury to ensure that they are best able to understand legal terminology and proceedings. This could include explaining the meaning of the ‘balance of probabilities’. The judge will also ensure conformation/adherence to rules of evidence and procedure, such as declaring hearsay evidence inadmissible.

The right to silence offers an accused person the ability to refuse to answer questions and give information during police questioning and prosecution as well as to choose not to provide a defense at trial without their silence or un-cooperation being interpreted as a sign of guilt. In exercising their right to silence, Emma’s presumption of innocence was upheld as it means that the jury in her County Court trial (on instructions from the judge) would not have been able to assume guilt based off her silence.

Community legal centres are general or specialised bodies that aid both victims and accused persons with legal issues. For Agu and Kim, their access to justice is upheld through the legal advice that CLCs provide. It was mentioned that the victims wished to file a civil claim and an insurance claim. CLCs can aid with filling out forms or preparing letters for legal reasons like contacting an insurer moreover CLCs can give advice on how to assist a civil claim going forward.

The judge will impose the sanction of imprisonment on Emma most likely. Because Emma has committed a category two offence, she is subject to up to 25 years of imprisonment for the cultivating of a commercial quantity of drugs. A term of imprisonment involves removing Emma from the community and placing her in prison for a specified period of time.

One factor the judge is likely to consider is the impact her crimes had on Agu and Kim. If Agu and Kim provided victim impact statements in court this would act as an aggravating factor on the judge’s sentence for Emma. Because of the extensive loss that has occurred to their lives and loss of income the judge may be more influenced to employ a harsher term of imprisonment on Emma because she took advantage of Kim and Agu’s property.

Enforcement issues refers to the ability of the defendant if found liable to comply with the court orders such as paying damages. One enforcement issue that should be considered is whether Emma has the ability to pay for the damages that Agu and Kim wish to seek. If Emma cannot afford to pay the damages, Agu and Kim should decide whether it is worth initiating a civil claim as there is a chance they will receive nothing in return and the trial will become a waste of time and costs for them.

Damages are able to achieve their purposes in this case to a moderate extent. One way in which compensatory specific damages may achieve their purpose of restoring Agu and Kim to their original position is by compensating for quantifiable financial loss. For example the awarding of compensatory specific damages in a value which matches the financial losses of demolishing and rebuilding their property will be highly effective at restoring Agu and Kim to their previous economic position.

The role of VLA and Victorian CLCs is to provide free legal information and advice. VLA provides free legal information and advice and can assist those facing charges for not paying their toll fines over the phone, on their website or in person and assist individuals by providing information on the procedures and steps required.

CLCs also provide free legal information over the phone, in one of their centres or through their published works, such as the Fitzroy Legal handbook, which can inform those facing charges in the Magistrates’ Court on the steps and procedures of court.

One reason why the toll road debt recovery system may not achieve fairness is because it may introduce delays in the wider courts system. By hearing lots of minor claims with individuals charged with not paying road tolls in the Magistrates' Court, this prevents the Magistrates' Court from hearing more pressing criminal claims. It takes up a great deal of time, which limits fairness by preventing accused persons from having access to the right to trial without unreasonable delay. This is a right enshrined in the Charter of Human Rights and Responsibilities Act. This limitation is particularly salient given there is a proposed change to alter road tolls to become a civil matter, enabling individuals to resolve their matter directly with Citylink or Eastlink rather than through the courts, which may allow for fairer outcomes and free up court resources and time.

One reason why the toll road debt system may be limited in achieving equality is because the current system disproportionately affects those living in the outer suburbs. Because individuals living in the outer suburbs are more likely to need to use the tollways on a daily basis to travel long distances to get to work, they are disproportionately punished by the current toll road debt system. By recording criminal convictions and potentially sentencing offenders to jail time for failing to pay these road debts, their disadvantage can be perpetuated. As expressed by the VLRC and CLCs, a change to this system could prevent the unequal outcomes for people that is a challenge with the current regime by penalising individuals who are already disadvantaged by their physical location, allowing for equality. This is because these groups are more likely to be financially unable to pay their debts, rather than simply choosing not to.

Damages are more appropriate in the recovery of road toll debt than fines are, and certainly more appropriate than imprisonment.

Firstly, as the debt collector is a privately owned company, it is more appropriate that they utilise the civil system- as other privately owned companies must, and therefore receive damages, rather than the penalty of a fine being imposed. Damages still allow the debt to be recovered, and thus ensures tolls are being paid.

However, in the civil system, if the defendant cannot afford damages, it is difficult for the debt collector to enforce them, and thus may limit the ability of the road toll company to recover the debt. Additionally, if the defendant is overseas or unreachable, the damages also may not be paid. Therefore, this may limit the appropriateness of damages, and mean another option- such as a fine, where a long-term payment plan could be installed, and the payment is more enforceable, may be more appropriate.

Imprisonment may be effective at deterring others from not paying, and deterring the offender from avoiding tolls again, thus minimising the need for the company to avoid debt, it is not as appropriate as damages. This is because imprisonment is the 'sanction of last resort', and used to punish the offender for serious crimes. Given this is against a privately owned company, and there is no damage to property or person, it is not an extremely serious crime, therefore meaning imprisonment is less appropriate than damages.

Thus overall, damages are the most appropriate method of road toll debt recovery given this should be a civil issue, because it involves a privately owned company, although there are some limitations to damages enforceability.

The current toll road debt recovery system has a negative impact on the already overburdened criminal system, thus reducing access.

Currently, the criminal justice system is overburdened, causing delays in hearings and trials. Cases may be delayed by anywhere from a few weeks, to many months. These delays impact negatively on the accused, given they must retain legal representation for an extended period of time, and there is a long period of limbo for both the accused and the victim where they are unaware of the outcome of the case. This severely reduces access to a timely trial, and may mean an accused cannot afford legal representation. Moreover, delays decrease the reliability of evidence, and first hand witness accounts, which can subsequently reduce access to a fair trial. The current road toll debt recovery system substantially contributes to this issue given the fines matters are heard in courts, even though they ‘do not involve risks to public safety’, and instead just ‘[fill] up the courts’. Therefore, the current system reduces access by increasing delays.

However, there are a number of other issues also contributing to delays and the overburdening of courts, such as lengthy committal proceedings which many experts believe to be unnecessary, meaning that toll road debt recovery is not the only factor that contributes to time in the courts.

The reforms by some CLC's and VLA's recommended only using the criminal justice system for the specific purpose of ‘punishing … and deterring the most serious offenders’, which would significantly reduce the burden of cases on the criminal justice system. Subsequently, this would increase access by reducing the delays in cases being heard, allowing more access to a timely trial and allowing for greater access to being able to afford legal representation.

Thus, the reform proposed would increase access by reducing the burden on the courts system.

One purpose of plea negotiations in Grant’s criminal case would be to procure a guilty verdict without the need for a full trial in the court. A full trial would require costs, time and many resources as well potentially the victim of the aggravated assault, Andy and Maya, to give evidence, which could retraumatize them. Hence by being able to procure a guilty verdict through plea negotiations it would prevent the need to make them come to court and reduce stress for both the victims and the court resources.

Both the prosecution and the plaintiff, Andy have ongoing disclosure obligations. This means that they must disclose to Grant the relevant documents and evidence that they intend to rely on and use against Grant during their trial or hearing. Another similarity is that they both have the role to participate in the trial or hearing. This includes cross-examining and examining witnesses and opening and closing addresses to the jury panel (if one is present in Andy’s civil hearing).

On the other hand, the standard of probabilities with Andy and the prosecution differs since the prosecution must prove Grant’s guilt ‘beyond reasonable doubt’, which is a more higher and difficult standard to achieve.

A representative proceeding is when seven or more individuals with similar or related claims against a singular defendant initiate a single case against them under a lead or nominal plaintiff rather than having the court hear each claim separately. This is not appropriate for the shop owner as Terri, the defendant, has only engaged in one civil wrong impacting his shop only. This means that no other parties could participate in a class action due to the absence of similar or related claims. Hence he must bring an individual case.

Judicial case management could assist in resolving the shop owner’s case by reducing the time taken by, and streamlining, the trial. This is because the judge can give directions such as ‘requiring documents [to be filed] in time for a directions hearing’ that ensures that steps in a proceeding such as pretrial procedures are undertaken promptly. The judge can also order Terri and the shop owner to attend mediation before or during the trial to try to reach an out of court settlement, saving the time associated with a full trial.

One purpose of pleadings, another civil pre-trial procedure, is to set limits to the dispute. In requiring Terri and the shop owner to set out their claims in writing, pleadings solidifies the scope of the matter. As no claim or issue that is not indicated in the pleadings process can be brought up without consent in court, it ensures that what is presented remains relevant and allows for a fair resolution of the case. For example, the shop owner cannot claim damages to other parts of his shop that aren’t set out in pleadings. Through the serving of a claim to Terri and the potential filing of a defence, pleadings thus sets limits to the dispute.

A fine will likely be the most appropriate sanction in the case against Terri given it will adequately act as a specific and general deterrent and appropriately punish her.

Fines are a monetary amount which the offender is ordered to pay to the state if found guilty of a criminal offence. They are expressed in penalty units which cost ＄192.31 per unit and stack up to 3000 penalty units (~500 000 dollars). As this is a first time offence, harsh sanctions such as imprisonment are likely too excessive in punishing Terri. However, a significant fine may be appropriate given it will grant the community a sense of retribution for Terri’s offending. Furthermore, a significant fine will act as an effective deterrent for Terri given she will be incentivised to not commit further crimes in the future and may also act as a general deterrent for others to assuage community concerns given others would likely stay away from similar crimes to avoid the significant fine. Thus, a fine will be an appropriate sanction for Terri.

The following is an example of the beginning of a high-scoring response:

One method that could be used to resolve the civil dispute between the shopkeeper and Terri is mediation. A benefit of mediation is that both parties have agency in the outcome. Unlike arbitration, where an arbitration award is imposed upon the parties, the round table discussions in mediation could contribute to a term of settlement (deed) that reflects both the interests of Terri and the shop owner. This could involve the shop owner making allowances or concessions, whereby they may forgive Terri partially for the loss of income/damage to the property. Another strength of mediation is that a mediator can facilitate communication/discussions in a private and confidential environment behind closed doors. This could be particularly advantageous for Terri as she may not want the publicity of a civil trial after a potential criminal trial, meaning she may be more willing to cooperate and negotiate with the shop owner.

Tom was charged with an indictable offence.

This is evident because he ‘pleaded guilty at the committal hearing’, and committal proceedings (such as the committal hearing) are only available and used in indictable offences. They are not used in summary offences.

The standard of proof in a criminal case would require the prosecution to prove Tom guilty of intentionally causing serious injury beyond reasonable doubt (if the matter went to trial). Yet, to prove Tom liable of the civil breach to Guy, he needs to be proven liable on the balance of probabilities.

These standards differ because the standard in a civil case is lower. In a criminal case, jurors must not have any reasonable doubts that Tom may be innocent, whilst a judge or jury must decide who’s story is more believable, Tom or Guy.

THE FOLLOWING IS AN EXCERPT ONLY:

Furthermore, both Guy and Tom have responsibility of presenting their case to the judge (and potentially jury). They both can cross-examine witnesses, and sum up the facts of their case to the court. This ensure they both have the same opportunity to present their case, and can test the other party’s evidence through cross-examination, which is fair as it enables a just and equitable trial for both parties.

However, since Guy is financially disadvantaged and is unable to afford legal representation, he may be at a disadvantage to Tom who may have a proficient lawyer and be able to present his case in the best possible light. This means that Tom and Guy may not be on an equal footing before the law, and may not be able to both present their cases as best they can.

Finally, Tom and Guy are able to have full control over their cases (party control). They are able to decide what documents to disclose, what witnesses to call up, what evidence to present, and what legal representation they want (if any). This ensures both Tom and Guy have full agency over their cases, and are not dictated by anyone else.

However, this means they may receive minimal assistance from the Court, which could be a disadvantage for Guy who is unrepresented and may be unable to understand the evidence and rules and procedures. This means he may miss vital evidence, may be under undue stress due to lack of understanding, and may cause further delays in the trial.

THE FOLLOWING IS AN EXCERPT ONLY:

One factor that Guy should consider before initiating civil action against Tom is the cost of civil litigation. As Guy is ‘unable to afford legal representation’ it is likely that he is financially disadvantaged. This means he should consider whether he can finance all other costs associated with action, including hearing/filing fees, expert witness fees (e.g. he may need a doctor to act as a witness to verify the severity of his injuries) as well as the possibility of an adverse costs order given that he is unsuccessful. Guy should decide whether obtaining a remedy will outweigh all of these costs, as well as his potential stress and anxiety as a result of trying to finance action.

There are two main remedies in a civil trial, damages and injunctions. The main purpose of damages is to provide Guy with monetary compensation (paid for by Tom), to restore him back to his original position before the civil wrong occurred. The main purpose of an injunction is to either compel Tom to act (mandatory injunction) or prohibit Tom from acting (restrictive injunction) to rectify the civil wrong he has committed.

Damages would be more appropriate than an injunction in Guy’s case, as Guy has suffered quantifiable losses that can only be restored through a monetary compensation. Specific damages would be award to compensate for Guy’s quantifiable losses, such as the cost of his medical treatment and ＄150,000 in loss of earnings. In this way, damages would achieve their purpose and fully restore Guy back to his original financial position. On the other hand, an injunction prohibiting Tom from further causing harm to Guy would only prevent Guy from suffering future loss, and would not compensate him for the harm already caused. They could not restore his medical bills.