vcelegal.weebly.comvcelegal.weebly.com/.../1/4/8/5/14852474/j_o...2_.docx · web view•the word...

Student book questions8.1 Costs factorsPages 266–273

8.1 Check your learning

Define and explain

1 Describe three types of costs that a party may have to pay in a civil dispute.

If a party requires legal representation in court, this is one type of cost they will need to incur. This is the cost involved in paying for a lawyer to represent the person in a case.

Another type of cost is court costs, such as the costs of filing documents, hearing fees and jury fees if the party requests one.

Another type of cost is the costs of the other party. An adverse costs order may be made if a party is not successful in a dispute, which will require the unsuccessful party to pay another party’s costs.

2 How can the increased use of mediation improve the ability for parties to achieve justice in a civil dispute?

The use of mediation increases a party’s ability to achieve justice as it promotes the principles of justice: fairness, equality and access.

Through mediation, both parties have an equal opportunity to have their say without being overwhelmed by the court system. They also get an insight into the other party’s case through the negotiations that may occur during mediation.

Equality is achieved through the mediator acting as a third party and monitoring the process. Both parties have an opportunity to make offers and relay information to the other side, and accommodation can be made for more vulnerable parties in a mediation who may not understand legal jargon or processes.

Mediation increases a person’s access to justice as parties can avoid expensive court proceedings, which are also often very stressful and formal.

Synthesise and apply

3 Read the legal case Loftus v Australia and New Zealand Banking Group Ltd [No 2].

a What was the nature of this dispute?

The dispute was an appeal against a decision that allowed the bank to take possession of the defendant’s mortgaged property.

b Why did the appellant seek leave to appeal?

© Oxford University Press 2018 1Justice & Outcomes VCE Legal Studies for Units 3 & 4 Teacher obook assess ISBN 9780190310394Permission has been granted for this page to be photocopied within the purchasing institution only.Version 2.0

The appellant sought leave to appeal as he felt the trial judge failed to explain certain court processes to him and, as a self-represented litigant, the court was required to do this.

c The parties already consented between themselves that the appeal should be allowed. Why did the Court of Appeal feel the need to consider the appeal anyway?

The Court of Appeal wanted to be certain that a new trial was necessary as it is a costly and time-consuming process.

d Explain some of the matters that were not explained to the applicant at trial. For each, describe why they would have impacted on the ability to achieve a fair trial.

• Consequence of not calling a particular witness to give evidence at trial: Each party uses witnesses to provide evidence and prove their cases. If a witness could provide evidence to support the appellant’s case and they weren’t called, this could severely damage the appellant’s chances of success at trial and result in an unfair outcome.

• Not explaining to him his right to object to certain evidence: Rules of evidence are in place so that evidence that is inadmissible is not brought into the courtroom. By failing to explain to the appellant the types of evidence he could object to, the court could be hearing evidence that is inadmissible, and this increases the chances of an unfair trial.

• Restricting his cross-examination of a certain witness: Cross-examination is used to discredit the evidence provided by the other party’s witness and by restricting cross-examination, the court is restricting the appellant’s ability to refute the evidence and claims of the respondent.

e Explain how this legal case shows each of the principles of justice were upheld in the Court of Appeal allowing the appeal.

The Court of Appeal stated that the court had a duty to explain the processes so that the self-represented litigant understood their rights. In doing this, fairness was achieved as both parties will have the same opportunities in the courtroom to prove themselves and refute the other party.

Equality was achieved as, by helping the self-represented litigant, the court was bringing both parties to equal footing in the courtroom.

Access was achieved as the decision of the lower court was reviewed by the Court of Appeal, thus enabling the parties to access higher courts to reconsider decisions.

4 Draw a maze (you can do this on paper or using a digital drawing tool). In the maze, show some of the hurdles or issues that a party in a civil case will confront in relation to costs. Try and put them in the order that you think the party is likely to confront them. Think of as many costs as you can.

Student answers may vary.

5 You live in an area in which your local council has just approved a $5 million multi-storey housing development. You and your parents want to object to the building of the dwelling. Go to the VCAT website. A link is provided on your obook assess.

a Which list would this be heard in?


Administrative list – planning and environment

b What is the application fee payable?

As at 1 July 2017, standard: $1104.90; health care card: $156.40

c You have been told the hearing will run for 5 days. What will be the total hearing fee?

Answers correct as at 1 July 2017. Refer to VCAT website for updated pricing from 1 July 2018 onwards:

Standard hearing fee

Day 1: $348.40 + Days 2–4: $348.40 + Day 5: $696.80 = $2090.40

Hearing fee for health care card holder

Days 1–5: $156.40 = $782.00

d Do you think this scenario demonstrates that VCAT is inaccessible to ordinary Victorians trying to resolve disputes? Discuss with your classmates.

Student answers will vary, but may include one or more of the following points:

• The application fee is a substantial expense that an ordinary Victorian would generally struggle to justify.

• The cost of the hearing-day fees is significant and, coupled with the application fee, makes VCAT inaccessible for ordinary Victorians.

• The fact that the hearing will run for 5 days increases inaccessibility, as ordinary Victorian’s would generally not be able to spare 5 days (from work or other responsibilities) to attend.

• The reduced fees for health care card holders target increasing accessibility.

Analyse and evaluate

6 ‘The parties should be forced to go to mediation as soon as a statement of claim is issued in court. This will save the parties and the court money’. Discuss the extent to which you agree with this statement.

Student answers will vary, but some common responses are provided in the table below as an example.

Agree Disagree

• Successful mediation will save the parties legal costs and associated courts fees.

• Being made to attend mediation can result in parties realising that the informal atmosphere is more suited to them, allowing them to openly discuss the

• Mediation can be considered prior to statement of claim being issued, which, if mediation is successful, would save legal costs.

• Mediation requires the willing participation of the parties to come together to reach a


dispute and reach a resolution.• Mediation can also save further costs for

a party paying the winnings side’s costs.• Having the dispute resolved through

mediation will save the courts money, as they can allocate their resources to other claims (as more hearings/trials require more funding).

• Even if a resolution cannot be made, some disputes may be clarified, and this will save costs and time when the case goes to court.

resolution. If forced to undertake mediation, resentment can prevent this cooperation from occurring.

• Mediation can still be costly to the parties.• Mediation may not be successful, and this

can add to the elapsed time required to resolve the dispute. Furthermore, it may increase the costs, as the parties now have to bear the mediation costs, on top of the pre-existing costs, associated with taking the claim to court.

• Not all disputes are suitable to be referred to mediation (for example, when there is an imbalance of power, when there are issues regarding violence, etc.)

7 Evaluate the ability of the civil justice system to address the issue of the costs involved in resolving disputes.

Student answers will vary, but should include one or more of the following points:

• The 2014 Productivity Commission review determined that the average cost for a plaintiff to pursue a matter in the Supreme Court was $60,000.

• The high costs of legal representation has increases the number of self-represented parties, but this can negatively impact the justice they receive, as they are unfamiliar and unskilled in the processes and procedures.

• A judge has the responsibility to assist self-represented parties (this is one way the civil justice system is providing support and addressing the issue of costs) .

• Availability of legal aid can assist in addressing costs.

• VCAT provides a low-cost alternative to the courts to resolve civil disputes.

• VCAT costs are increasing and can sometimes result in higher costs than pursuing the claim through the courts (the implementation of hearing day fees and increased fees for applications under certain lists).

• VCAT has reduced fees for health care card holders to assist in managing the costs of resolving a civil dispute.

• A range of dispute resolution methods are available to provide more cost-effective avenues for dispute resolution to suit the needs to the parties.

8.2 Time factorsPages 274–279



Define and explain

1 Provide two reasons why there are sometimes delays in having a case heard by a judge or magistrate.


• Delays are caused by a backlog of court cases. This means it can take months to get a trial date as the court has no available times.

• Pre-trial procedures can delay cases being heard as they can be long and complex, particularly when there is a need for discovery. Discovery, in particular, can take a long time if there is a significant volume of documents.

• The time it takes to gather and prepare evidence can cause delays, depending on the complexity of the case. Parties may need to delay the trial date to ensure that all their evidence has been filed and witnesses are available.

2 Explain what case management means and describe two ways in which judges can manage a civil dispute.


• Case management is when the court plays a role in case preparation (i.e. managing the steps from initiation up to and including trial) by ordering parties to complete certain tasks that will save time and increase efficiency in the trial process.

• One way judges can manage a civil dispute is through their power to order a party to attend mediation. This can be for part of, or the entire, civil proceeding, and can be conducted by a court officer or arranged privately. A judge is able to do this at any time during the proceedings, including during trial, so that the matter can potentially be resolved in a timelier manner.

• Another way in which judges can manage a civil dispute is through their power to restrict the time for the final hearing. This can include placing limits on the number of witnesses that a party may call and limiting the examination of witnesses, including restricting the time allowed to cross-examine particular witnesses. Additionally, the judge can place limits on the duration of the parties’ submissions to the court to ensure a just and efficient resolution to the civil dispute occurs.

3 How can court delays impact on a party pursuing a civil case?

Student answers will vary but may include the following.

Court delays can impact on the ability of the parties to achieve justice. The length of time can dissuade parties from pursuing a claim and therefore limit their ability to access justice. Delays can also affect a person’s personal life, particularly if they are bringing the claim to recover damages. The length of time it takes for a case to go to trial can have a serious impact, depending on the parties and their circumstances, particularly if they are unfamiliar with court processes and need to spend all their time preparing for the case. Delays can also affect the ability of witnesses to recall information, which can lead to an unfair trial.



4 Use the current annual report for VCAT (a link is provided on your obook assess) in order to update Source 2 (which shows the timeliness of finalised cases in 2015–16). Has there been an increase or decrease in the waiting times? Provide a summary of your analysis.

Student answers will vary depending on year.

5 Read the article ‘Four-storey Moonee Ponds development plans head back to council ahead of VCAT hearing’.

a What is the issue in dispute in this case?

Residents are objecting to plans to build a 4-storey apartment building in Moonee Ponds. The council failed to make a decision within 60 days, so the residents took the matter to VCAT.

b What sort of delay was expected for VCAT to hear the matter?

It can take 6–8 months to get a hearing at VCAT.

c How might this delay impact on the objectors, the developers, and possible purchasers of the dwellings?

Student answers will vary, but may include the following.

The developers are likely to lose time and money waiting for a decision. They cannot begin building until a decision is made, and this delay in building will also affect future purchasers who wish to move in.

The objectors will face uncertainty while they wait, and local businesses may be affected as they try to plan for an increase in residents.

6 Read the extract from the Supreme Court’s Commercial Court Practice Note. Provide two examples given in the Practice Note that may reduce the delays associated with a dispute being resolved.

Student answers may vary but may include:

• Shorter time periods will be ordered for interlocutory steps.

• At trials, time limits may be imposed for the examination and cross-examination of witnesses and oral submissions.


7 Do you think that delays impact more on certain groups or individuals in society, or do they affect all parties equally? Give reasons for your answer.


• All parties are impacted by delays which can cause additional stress, wasted time and inconvenience to all involved.


• Some parties may feel the impact of delays more severely. For example, an injured party will be more affected as, in the interim, they may have significant expenses for medical treatments and have increased stress levels waiting for their dispute to be resolved and a remedy ordered

• Parties considered more vulnerable are more heavily affected due to the inconvenience caused by the delays (as compared to larger businesses). This is further exacerbated by the fact they generally are not familiar with the process of litigation.

• Parties of a lower socio-economic status can be unequally affected by delays, as these can result in additional costs, or being out-of-pocket longer, for the expenses they are seeking compensation for.

• Parties may feel pressured to settle for less than satisfactory terms or withdraw their claims/defences because of delays.

8 Has VCAT become less accessible to parties in dispute because of its increase in costs and delays in planning matters? Discuss.


• Yes, the increase in costs regarding application fees (for challenges to developments under $1 million), as well as the introduction of hearing day fees, has reduced accessibility.

• VCAT fees are still considered to be a low-cost alternative to the courts for civil dispute resolution.

• VCAT costs are increasing and can sometimes result in higher costs than pursuing the claim through the courts.

• Yes, disputes regarding planning matters can take around 6 months to resolve, which may deter an individual from pursuing their case. It may also result in an individual withdrawing their claim or settling early (with less satisfaction), due to the time it takes VCAT to reach on outcome.

• Delays in resolving planning matters have decreased accessibility for businesses and developers.

• VCAT has reduced fees for health care card holders to assist in managing the costs of resolving a civil dispute (capped at $156.40), thus increasing accessibility.

• There may still be hearing and application fees payable for planning disputes.

• A range of dispute resolution methods are available, however, these may not be suitable in planning matters due to the large power imbalance between the parties.

• Only VCAT can hear matters relating to the granting of planning permits. This restricts access when the individual with the claim cannot afford to pay the fees (under the user-pays system).

• VCAT has broadened the fee relief provisions for people under financial hardship which increases accessibility.


8.3 Accessibility factorsPages 280–285


Define and explain

1 Explain what is meant by ‘barriers to communication’. Identify three types of people who may have communication issues when dealing with the civil justice system.

Barriers to communication are factors that prevent a person from understanding or receiving information. Information can include ideas, thoughts and instructions. In a legal sense, a barrier to communication can mean a person does not understand their rights, their options to resolve disputes or their options in pursuing a matter.

Three types of people who may have communication issues are Aboriginal and Torres Strait Islander people, migrants and individuals who speak a language other than English as their first language.

2 Describe two ways in which the civil justice system tries to overcome communication barriers.

• One way in which the civil justice system attempts to overcome communication barriers is through the provision of Legal Aid information sheets being available in 22 languages. This increases accessibility and reduces barriers to communication by providing straight-forward information sheets so individuals who do not speak English are able to understand their legal rights and options.

• A second way the civil justice system attempts to overcome communication barriers is through the provision of an interpreting service. Interpreters can be used in court to assist parties in understanding the court process by translating communications in real time. However, the availability of interpreter services can vary greatly between courts, and the Victorian Access to Justice Review has recommended that there should be adequate provision of interpreters in all courts, as well as VCAT, to further reduce communication barriers within the civil justice system.

3 Provide two issues that may be faced by a potential plaintiff who lives in rural Victoria.

Plaintiffs living in rural Victoria may find there is a lack of legal representation. Most lawyers work in the metropolitan area, so it can be hard to find a lawyer to assist who is not too busy, has expertise and is not conflicted out of representing the party.

Another issue that rural plaintiffs can face is accessibility to the courts. While the courts do travel to rural and regional locations and hear trails there, this is not as frequent a permanent court setup.

4 Explain what a representative proceeding is. Describe three ways in which it helps improve access to justice.


A representative proceeding, or class action, is when a lead plaintiff will run a case against a company on behalf of a group of persons who have a similar claim. A person who joins a class action does not need to attend trial, give instructions or evidence or be ordered to pay legal costs.

Student answers as to three ways it helps improve access to justice will vary but may include:

• A class action improves access to justice as it provides individuals who have a claim against a big company to pursue that claim in court without having to pay costs or be a self-represented litigant.

• It assists individuals who cannot afford to pursue a claim who may have otherwise not initiated their own claim.

• Litigation funders are often involved and will bear the costs, thus allowing greater access to those parties who may not otherwise be able to afford to commence the claim.


5 Imagine you are a newly arrived immigrant in Australia, and you have a dispute with your landlord about a significant increase in your rent.

a How would you find out whether you have a claim? Where would you go first to determine whether you do have a claim?


• The person could contact Victoria Legal Aid (VLA) and use their interpreter phone services to receive legal information in their native language

• The person could find Legal factsheets in their native language on the VLA website.

b Find out whether the following dispute resolution bodies or institutions can assist you in your first language:

i Victoria Legal Aid

ii Consumer Affairs Victoria

iii Victorian Civil and Administrative Tribunal

iv Victoria Law Foundation.

Victoria Legal Aid provides phone services in a number of languages, interpreters available for appointments and factsheets in other languages.

Consumer Affairs Victoria provides information online in other languages.

VCAT provides interpreters at hearings, uses the Translating and Interpreting Service to take calls in other languages, and has information online in other languages.

Victoria Law Foundation: could not find information.


c Describe three difficulties that you think you might have in understanding and pursuing your claim, and explain how these difficulties can impact on the ability to achieve justice.

Student answers will vary, but may include the following:

As a newly arrived immigrant, I may not be aware of legal aid services (like information sheets, interpreter phone services) which would limit my ability to find out information about my rights and the processes available to me to pursue a claim. This would affect my access to justice, as I may not realise I have a legitimate claim, or alternatively abandon my claim, because I am uncertain about what I need to do to pursue my claim.

I may struggle to find legal representation that can help me in my own language, which will restrict my ability to instruct my lawyer. Without legal representation that can assist in my language, I may be forced to represent myself. Without an interpreter in the courtroom, I will not be equal before the law as I may struggle to understand the process and actively contribute in the proceedings.

I may struggle to know about and ask for dispute resolution. I would require an interpreter in the mediation; otherwise, I will not have an equal chance to have my say and understand what the other party is saying to me about resolving the dispute.

6 Read the article ‘Litigation inquiry could set the standard’.

a What is the VLRC examining?

The VLRC is examining the use of litigation funders and the regulation currently in place for litigation funders.

b What happened in the Huon Corporation class action?

In the Huon Corporation class action, $5 million was awarded to the applicants and was supposed to be shared among the 300 sacked workers to cover their entitlements. However, almost all of the money went to legal fees, with the litigation funder taking $1.85 million of the amount awarded.

c The VLRC was due to report in March 2018. Describe two recommendations made by the VLRC about class actions and litigation funders.

VLRC report was not released at the time of writing.

d Conduct some research. Have any of the recommendations been adopted by parliament?

The VLRC report is due 30th March 2018 and was not released at the time of writing.


7 ‘If people live in remote areas, they can’t expect service providers to come to them. They’ve got to go to the service providers’. Discuss this statement as a class.

Student responses will vary but some common responses are provided in the table below:

Agree Disagree


• It is not be cost-efficient for the government to build courts in all remote areas, so some travel is required to access the courts.

• The provision of legal services in rural areas is limited when there are fewer legal personnel available to work in these areas.

• The costs and time of having to travel to service providers can result in individuals abandoning or not initiating a legitimate claim.

• Individuals may not pursue a claim when their rights are infringed upon if they are unable to access legal services without travelling significant distances.

• Due to the lack of services provided in remote areas, compared with their metropolitan counterparts, individuals may receive an unfair outcome, as they do not have the same access to information to put their best case forward.

• This lack of access increases inequality, as there is not the same access to the courts, VCAT and skilled legal services due to the disparity in travel times.


8.4 Recent reformsPages 286–289


Define and explain

1 Explain how a TAR can overcome cost, time and accessibility issues in the civil justice system.

TAR is predictive coding used in the document discovery process. This system will save time as it will eliminate the need for a person to review documents; therefore, lengthy delays will be avoided.

Eliminating the need for a person to complete the tasks will reduce legal costs associated with having individual lawyers reviewing the discovery (though equally, there will be a cost involved in setting up the ‘computer system’ to undertake the TAR, and there will be analysts and people involved in ensuring the TAR is effective).

TAR also helps to ensure that parties with huge volumes of documents are able to have those documents reviewed electronically, rather than being deterred from commencing or defending a claim simply because of the cost and time involved in manually discovering documents.

2 How does technology improve accessibility to the courts?

Student answers will vary but may include the following.

Technology improves accessibility as it removes the arduous nature of hard copy documentation. Being able to submit documents electronically and communicate with the courts over email means that rural or regional individuals are better positioned to access the court system. Allowing the use of technology in pre-trial processes will speed up the time taken to get to trial as well, and this will reduce court delays.


3 Access the Victoria Legal Aid online tool launched in February 2017. A link is provided on your obook assess. Use the tool to provide as much information as you can for the following scenarios.

a You’ve been in an accident at work and you want to know where you can get help.

Law Institute of Victoria and Insurance Law Service may provide pro bono advice.

b You are a landlord who wants your tenant out. The tenant is doing no harm, you just don’t like him.

Assistance may be available from Consumer Affairs Victoria or VCAT. The Law Handbook provides information on how to end a tenancy agreement. The landlord may give a valid


Notice to Vacate. As there is no legal reason why the landlord wants the tenant to vacate, the landlord may give the tenant a 120-day notice to vacate without specifying a reason.

c You want to know about how to make your will.

Assistance may be available pro bono from the Probate Office of the Supreme Court, Law Institute of Victoria or the Salvation Army. The Law Handbook provides a sample model will.

4 In your view, does the online tool overcome some of the accessibility issues faced by some people?


• Yes, as it allows an individual to determine their eligibility for assistance before deciding whether to pursue a claim or not.

• Yes, as it provides information for individuals to understand their options and where they can seek further assistance.

• The online tool relieves call backlogs, as it allows individuals to determine if VLA can assist their enquiry before seeking further, more detailed advice.

• It currently only operates for 4 types of disputes: wills and estates, migration, personal injury, and housing and tenancy.

• It may increase accessibility when additional claim types are made available.

• It is very quick and easy to use, making it more likely for individuals to adopt.


5 Evaluate the effectiveness of two recent reforms in achieving the principles of justice.

Student answers will vary, but sample responses are provided in the table below:

Reform 1: Changes to the High Court appeal process

Reform 2: Approval of the use of TAR in the Supreme Court

• Increases efficiency and cost-effectiveness of seeking leave to appeal by first determining whether an oral hearing is required or otherwise heard ‘on the papers’, which increases access

• Increases fairness by ensuring a party does not put time and money into an appeal that doesn’t have the grounds to be granted leave.

• Provides for fairness by allowing both sides to put forward their argument f through written submissions and documents.

• Not all parties will have access to the technology, limiting the principles of equality and access

• Saves the costs and time associated with reviewing discovery documents to determine their relevance (access).

• Still requires money and time develop and ‘train’ the technology to discover the relevant documents in a particular claim (access).

• Doesn’t address the costs and time required for TAR to review the documents to determine if they are


• Reduces delays for appeals requiring an oral hearing, as cases are streamlined.

• Reduces delays for parties waiting to hear the outcome or if their appeal has sufficient grounds to be heard (access).

• Increases access to the appeal processes, as parties may be more likely to appeal if they are well-informed about their prospects.

• Very few civil matters have a right to appeal; therefore, leave to appeal is still generally needed (access).

• A party must act within a specified timeframe to lodge an appeal (access).

• Parties are restricted in their choice to have their grounds for appeal assessed in an oral hearing (fairness, equality).

• Doesn’t resolve the appeal backlog of other courts, as this only occurs in the High Court, which deals with a small proportion of appeals (access).

relevant.

• Provides an accurate way of discovering documents, as it is as accurate, if not more accurate, than when done manually (access).

• Allows for lawyers to better use their time and expertise, making the process more efficient.

• Can reduce large corporations taking advantage over self-represented litigants due to streamlining the process for reviewing and analysing large volumes of documents (fairness, equality).


8.5 Recommended reformsPages 290–293

8.5 Check your learningDefine and explain

1 Describe one recommended reform which is aimed to assist one or more cost factors, and one or more accessibility factors.

Student answers will vary, but responses may include the following (all factors need to be described).

Cost factors:

• Increased use of alternative dispute resolution to resolve disputes out of the courtroom.

• Greater legal aid funding ensures that the demand of free legal service providers is being met and individuals are not being turned away.

• Online system for the resolution of small civil claims to provide a cost-effective way to resolve claims out of court.

• Assistance to self-represented parties by providing court and tribunal forms in plain English and preparing guidelines for staff on how to assist self-represented litigants.

Accessibility factors:

• Expansion of information from VLA to include a web-chat service and expanded phone line so that they can increase the number of people they assist with legal information.

• Greater coordination between legal service providers so that information and materials can be shared to ensure a greater source of knowledge of options for litigants.

• Publication of plain language guides and information that summarise legislations in common areas of law so that disadvantaged individuals can access information.

• Improving access to interpreters, particularly for Aboriginal and Torres Strait Islander peoples, and to increase availability of interpreters in all courts and VCAT.

2 Identify the two inquiries that have taken place recently by the Productivity Commission and the Victorian Government in relation to access to justice, and provide at least three recommendations by each body to improve the civil justice system.

The Victorian Government conducted the Victorian Access to Justice Review and the Productivity Commission conducted the Access to Justice Arrangements inquiry in 2014.

Student answers will vary but may include:


• Victorian Access to Justice Review: VCAT to expand its Short Mediation and Hearing program in regional areas, Victorian Government to establish panel to oversee the introduction of online dispute resolution system for small civil claims, support people be better used to assist self-represented litigants, forms and information to be reviewed to be more accessible, education and training to staff to help self-represented litigants, enforcement of VCAT orders be made simpler, monetary order of VCAT to be considered order of an appropriate court, non-monetary orders to be enforceable without proceeding to Supreme Court, VLA expand its website and include live chat service, VLA to expand telephone services, VLA to provide information in wide range of languages, coordination to occur between legal aid bodies and other service providers, integrated delivery model to be used, Victorian courts and tribunals make their websites and legal information more accessible, and ensuring adequate availability of interpreters in all courts and VCAT.

• Access to Justice Arrangements: all court and tribunal forms to be drafted in plain language, guidelines to be prepared for court staff to assist self-represented litigants, case management practices be improved and used more often, courts to ensure information technology used to manage discovery more efficiently, coordination to occur between legal aid bodies and other service providers, all government agencies publish plain language guides that summarise legislation, and National Indigenous Interpreter Service to be developed.


3 Choose two of the above recommended reforms that you are most interested in, and conduct some further research on them. Create a visual or multimedia presentation which shows the following:

a Who made the recommendation.

Student answers will vary.

b What issues in the civil justice system it is aiming to overcome.


c Whether further or additional reforms are required to address these issues.


d The status of its implementation.


e Whether you think it is likely to be introduced in the next 12 months.



4 Discuss the extent to which improved access to interpreters will assist parties in a civil dispute.


Improved access to interpreters might result in greater access to the civil justice system by increasing the ability of all individuals to gain an understanding of the legal processes taking place. This allows individuals to be fully versed in their legal rights and the options available to them in pursuing their claim, which promotes greater fairness.

Furthermore, through the use of interpreters, a party can present their case in the best possible light, which increases equality and fairness within the system.

However, interpreters do not provide any legal assistance regarding the civil dispute. Their role is to translate what is being said into a language the individual can understand. This means the party still needs to seek adequate legal representation to undertake the pre-trial procedures and present the case in court. If parties are unable to afford such legal representation, then the interpreter cannot provide additional support.

Additionally, access is only improved for those who are aware of the interpreter service. It is therefore important to help individuals understand where they can seek assistance (for example, through information sheets in a range of languages).

Other factors, such as the costs and time associated with pursuing a civil claim, can negatively impact the ability of a party to pursue a civil dispute, regardless of the availability of an interpreter service. These factors may prevent a party from being able to pursue their claim through court and, consequently, may seek to resolve the issue through another form of dispute resolution (such as mediation) where the interpreter service may not be available.

5 In your view, are there too many organisations which offer information and resources about civil law, such that it makes it confusing for people seeking access and information? Give reasons for your answer, and consider any recommendations you would make for reform in this area.


• VLAs online tool makes it easier for people to get information regarding their dispute.

• However, the online tool is currently only available for certain types of disputes. For other disputes, it can be confusing to seek assistance.

• There needs to be a central point that directs individuals to the best body/organisation to seek further information.

• Individuals with language barriers may struggle to navigate the range of organisations and determine which is the most appropriate to deal with.

• If there was only one central organisation, this could increase delays in receiving assistance with their civil issue. Instead, having a range of bodies allows for more timely access.

Extended task

6 You have now completed your study of the Victorian civil justice system. One of the key skills you are expected to demonstrate is your ability to evaluate the ability of the civil justice system to achieve the principles of justice.

a On an A3 piece of paper in an online document, write down the headings ‘fairness’, ‘equality’ and ‘access’.


See below.

b Under each heading, write down all of the aspects or features of the civil justice system that help achieve those principles (e.g. ‘use of mediation’ under access). Some aspects or features may fall under more than one principle.

Student answers will vary, but some common responses are provided in the table below:

Fairness Equality Access

• appeal processes

• use of case management powers

• VCAT’s three-tier system

• representative proceedings

• use of mediation

• assistance to self-represented parties

c Draw a line under these aspects or features. Now write down all of the aspects or features of the civil justice system that may hinder those principles (e.g. ‘CAV’s powers are limited’ under fairness). Again, some aspects or features may fall under more than one principle.

Student answers will vary, but some common responses are provided in the table below:


• delays

• VCAT costs

• self-represented parties (due to legal costs)

• barriers to communication

• court and VCAT delays

• lack of access to services in rural/remote areas

d For at least one of those aspects or features that hinder those principles, identify and write down at least one recent, or recommended reform.


• approval of the use of TAR in the Supreme Court

• introduction of VCAT’s three-tier fee system

• VLA online tool• publication of plain

language guides and information

• improvements and increase in case management

• use of technology

e Share your findings with your class. Add things to your own notes that you find useful from your class discussion. Discuss any differences in opinion.



Student book questionsChapter 8 ReviewPages 294–295

Revision questions1 Describe how communication barriers can impact on the ability of a person to be equal

before the law.

[3 marks]

Communication barriers mean people may struggle to tell their side of the story, and this can make them unequal before the law or deny them an equal opportunity to present their case.

2 Provide two issues that face service providers in rural and remote areas.

[4 marks]

Service providers may struggle to keep up with demand as there may be fewer people available to provide legal services.

There also may not be dispute resolution bodies such as courts in close proximity, which means a service provider can be limited in the assistance they can provide to their client.

3 How does the increased use of mediation help to overcome costs, time and accessibility issues?

[6 marks]

Increased use of mediation reduces costs as the earlier a dispute is resolved, the more money is saved as parties avoid the significant costs associated with pre-trial and trial procedures.

Mediation saves time as there is no need for a lengthy trial with pre-trial procedures. There is no need to wait for a hearing date and therefore the matter can be resolved more efficiently.

Mediation allows parties to resolve their dispute without the need of a court. This means that people who face communication barriers or who are in rural and remote areas may resolve their disputes without having to find a court or deal with communication barriers within the court system.

4 Explain one feature or aspect of the civil justice system that causes delays, and one feature or aspect that overcomes delays.

[6 marks]

Court backlogs and complex pre-trial procedures such as evidence gathering and preparation can cause delays in the civil justice system. It can take time for parties to prepare their case, particularly when a procedure such as discovery can take months on its own. Furthermore, if a court has a backlog of cases, it can take time to secure a court date, even if the parties are ready.


The courts have powers in case management that can be used to overcome delays. These powers can be used to streamline processes that typically take a long time. This can include narrowing the issues in dispute, undertaking only steps that are relevant, and setting timelines for the parties to adhere to.

5 Identify and describe one recent and one recommended reform that could assist in reducing delays. In your answer, comment on the extent to which each reform could help improve the civil justice system.

[8 marks]

Student answers will vary but may include the following responses.

Recent reforms:

• The introduction of the Judicial Commission of Victoria means that people can make complaints about the conduct of a judicial officer or VCAT member, including complaints about excessive delays in handing down judgments. This reform ensures that there is greater transparency and focus on time within the court system.

• Changes to the High Court appeal processes mean that applications for leave to appeal can be heard ‘on the papers’ and do not always require an oral hearing. This is a more efficient and cost-effective way as it saves time and money on preparing and requiring oral hearings. It allows both parties to be equal under the law without having to rely on advocacy skills.

Recommended reforms:

• It has been recommended that case management practices be improved and used more often. This would include replacing formal pleadings with less formal alternatives, requiring strict observance of time limits and limiting discovery. This would reduce delays and costs by allowing the parties to focus on the issues in dispute rather than the procedural steps.

• It has been recommended that enforcement of VCAT orders be made simpler by not requiring certification of a court before they can be enforced. This would allow parties greater ability to enforce orders that are not complied with.

6 Explain how the use of representative proceedings (a class action) can improve access to the civil justice system. In your answer, discuss one disadvantage to representative proceedings.

[8 marks]

Representative proceedings increase the ability of persons to access the civil justice system if they cannot afford to initiate their own claim. By joining a representative proceeding, the person has access to the court system without having to personally attend the trial, pay costs, give instructions to lawyers or give evidence.

The person who joins the class action will have access to the damages ordered in the case. However, the amount that is occasionally given to the plaintiffs may be reduced due to excessive legal costs and the use of litigation funders. Litigation funders are a third party that pays some or all of the costs for a share of the proceeds. In some cases, the costs of litigation funding and legal fees can absorb most or all of the final payment handed down. This reduces the value of having access to justice.


7 Evaluate the ability of the courts to ensure access to everyone to resolve their civil disputes. In your answer, refer to one civil pre-trial procedure, and one judicial power of case management.

[10 marks]


Practice assessment task questions1 Define the following terms:

a Representative proceeding

Representative proceedings (also known as class actions) are proceedings commenced by a lead plaintiff on behalf of seven or more persons who have a claim arising out of the same, similar or related circumstances.

b Damages.

Damages refer to an amount of money to be paid by the defendant to the plaintiff, generally to compensate the plaintiff for loss suffered and, where possible, return the plaintiff to the position they were in prior to the defendant’s harmful actions. The ‘loss’ incurred by the plaintiff may be financial, physical or mental.

[2 marks]

2 Could this matter be heard by VCAT? Why or why not?

[3 marks]

This matter cannot be heard by VCAT because VCAT cannot hear representative proceedings (or class actions).

Likewise VCAT only has the power to hear certain types of civil disputes like those involving retail and residential tenancies, purchases of goods and services, discrimination, guardianship, domestic building works and registration of professionals. VCAT does not have the jurisdiction to hear this kind of negligence dispute.

3 Describe one costs factor and one accessibility factor that Marjan is likely to be confronted with in this case.

[4 marks]

Given this case has most likely been commenced in the County or Supreme Court, one costs factor facing Marjan in this case will be the cost of engaging legal representation. Legal representation can be very expensive in a civil case and it can be difficult for individuals, such as Marjan, to access legal aid because the majority of legal aid funding is spent on criminal and family law cases. If Marjan cannot afford legal representation she may be forced to self-represent, which would place her at a significant disadvantage as she will not have the knowledge and skills to engage in and understand the pre-trial process and prepare and present her case in the best possible manner.

Given Marjan lives in the small rural town of Bonnie Doon her ability to access legal and dispute resolution services may be more difficult than if she lived in Melbourne. The


provision of legal aid and assistance services may be inadequate in her local area and affect her ability to defend the case. Living in Bonnie Doon might also affect Marjan’s ability to access the courts because although the courts do sit and hear trials in rural and regional locations, this may occur less frequently compared to the permanent metropolitan courts.

[Note: Students may also explain other costs factors that would confront Marjan in this case including the costs associated with engaging expert witnesses and mediators, filing and hearing fees and using a jury. There is also the possibility that Marjan may have to pay some of the plaintiff’s costs if their claim is successful.]

4 Identify and describe two ways that Marjan may be able to obtain legal assistance.

[4 marks]

Marjan may be able to obtain some basic legal assistance from the Victoria Legal Aid (VLA) online tool. For example the site may provide Marjan with information about her legal rights and advice regarding where she can go for help with her issue. Unfortunately, however, the VLA does not provide legal aid for business and commercial disputes.

Marjan could also contact the Law Institute of Victoria to find a private lawyer through their Legal Referral Service. All the law firms included in this service provide a free 30-minute interview. However, after the free interview Marjan will have to pay for any private legal representation she engages, which can be very expensive.

[Note: Given Marjan lives in a regional area she may be able to seek legal assistance from a community legal centre (CLC) as some CLCs offer legal advice and services to individuals who live or work in a particular area. Although not all regional areas have CLCs and some centres only provide assistance to people with specific needs or members of a disadvantaged group like victims of family violence and indigenous Australians.]

5 Provide one recent reform and one recommended reform to the civil justice system that could assist Marjan and the plaintiffs in achieving justice.

[4 marks]

Improved use of technology is one recent reform to the civil justice system that could assist Marjan and the plaintiffs in achieving justice by providing greater access to the courts. For example, by improved electronic filing and storage of documents and information can make litigation more efficient by reducing costs and time and can particularly benefit parties in rural and remote areas who cannot reach the courts to file documents manually.

A recommended reform to improve the ability of the civil justice system to achieve justice in this and other civil cases would be increasing legal aid funding. For example, the Victorian state and Commonwealth governments could increase funding to legal aid services like Victoria Legal Aid (VLA) and community legal centres so these bodies could provide greater assistance and legal representation for people involved in civil disputes. This could improve access to the courts for both prospective plaintiffs and defendants and also assist in the achievement of fairness. Marjam might be particularly disadvantaged if she cannot afford legal representation, especially being the defendant in a representative proceeding where the plaintiff’s may have a litigation funder and she is not able to qualify for assistance from VLA because she is a business.

[Note: Students may provide other relevant recent reforms and recommended reforms including:


• Introducing the use of predicted coding or Technology Assisted Review (TAR) to assist in the management of the discovery process in the Supreme Court. [Recent reform]

• providing greater assistance and more simplified information to self-represented litigants. [Recommended reform]

• Increasing the use of and improving case management practices. [Recommended reform]

6 Explain two ways in which the courts could overcome the costs factor and accessibility factor that Marjan may be confronted with. In your view, will these ways completely overcome the issues faced by Marjan? Give reasons.

[8 marks]

One way the courts could overcome the costs factor and accessibility factor facing Marjan wuuld be to provide greater assistance and more simplified information to self-represented litigants. For example, assuming Marjan cannot afford a lawyer, she would greatly benefit from the courts providing and making better use of specially trained support staff for self-represented litigants.

More efficient use of support staff could help reduce costs and increase access to the civil justice system by ensuring self-represented litigants understand their legal rights and the information, documents and processes involved in their case.

Unfortunately however, while having more support people for self-represented litigants can assist people like Marjam in understanding their basic legal rights and procedures it does not provide the self-represented litigant with sufficient skills to prepare and present their own case or replace the need for skilled legal representation.

Similarly, the provision and improved use of support services would need to occur in all courts, especially in regional areas, not just in the permanent metropolitan courts.

Another way the courts could overcome the costs factor and accessibility factor faced by Marjan would be by increasing the use of and improving case management practices. This could include making pleadings less formal, limiting discovery to documents that are directly relevant and enforcing strict time limits on the exchange of information and documents between the parties.

Such improvements could help speed up the civil pre-trial process by allowing the parties to focus on the issues in the dispute rather on procedural steps. Also, given that discovery is also one of the major litigation expenses, limiting the scope of discovery to directly relevant documents could reduce costs for the parties. This would be especially beneficial to self-represented litigants.

However, while improving case management practices can assist in a faster and more cost effective dispute resolution, it will only work if the parties cooperate with each other. For example, parties will need to agree to less formal pleadings and only seek relevant information during discovery rather than using the process as a means of delaying the case (perhaps in the hope that the plaintiff might run out of money and abandon the claim).

[Note: Students may explore two of a variety of ways in which the courts may be able to overcome the costs factor and accessibility factor that Marjan may be confronted with.


For example, another way the courts could overcome accessibility factors facing Marjan would be to have greater coordination between legal aid services (like VLA and community legal services) and the courts. This could include improving the existing the sharing of information and training materials between the legal aid services and the courts and ensuring their websites and community education tools do not unnecessarily duplicate the same material.

Ensuring the court websites and legal information materials are written in plain English and can by understood by ordinary people, like Marjan, can also assist in improving access to the civil justice system.

However, while improving coordination of information and materials between legal aid services and the courts may increase access to the civil justice system it will not replace the need to address the problem of high legal costs for those involved in a civil action.

Total: 25 marks


Unit 3 Assessment tasksPages 296–297

Unit 3 Area of Study 1 Practice assessment task1 Identify who has the burden of proof in this case, and the extent to which the case

needs to be proven.

[2 marks]

For 2 marks, students would be expected to identify that the burden of proof is on the prosecution in this case. This involves the prosecution having to establish its case according to the standard of proof, which is beyond reasonable doubt.

2 Belinda is a witness for the prosecution in this case. Describe one way in which Belinda may be able to give evidence in this case.

[3 marks]

Belinda could be designated as a vulnerable witness due to this being a case about domestic violence. For two marks, students could explain one of the following (a range of answers is possible here):

• To give evidence in a closed court with the accused person, Ronald, behind a screen.

• To give evidence from a remote location via closed circuit television.

3 Discuss two responsibilities Ronald will have when representing himself at trial.

[5 marks]

Students need to provide sufficient detail to be awarded 5 marks. As a ‘discuss’ question, other factors relating to Ronald’s responsibilities also need to be addressed. Some of the responsibilities that Ronald would have are as follows:

• To research the law. However, as an unrepresented person, Ronald would find this very difficult, especially given the complex nature of common law judgments.

• To deliver an opening address to the court. This would be difficult for Ronald given his troubled background and lack of awareness of the complex nature of the trial process used in the criminal justice system.

• To assist the judge in jury matters. This would be difficult for Ronald as someone who is not expert in jury empanelment.

• To deliver a closing address to the court.

• To make submissions as to sentencing in the event that he is found guilty.

4 Discuss the appropriateness of plea negotiations in this case.

[5 marks]


A sample answer for this question appears below.

Plea negotiations are discussions between the prosecutor and the accused about the charges laid for summary or indictable offences. They can result in an agreement being reached about the charges that the accused will plead guilty to. This plea can come at an early stage, such as after the committal.

Plea negotiations are appropriate because they save the cost of a full trial or hearing, which reduces pressure on the legal system. This assists the timely resolution of other cases. Also, victims, witnesses and their families, and the accused’s family are saved the inconvenience and distress of the trial process. Given the requirement of oral evidence, the trial process can make victims and witnesses re-live the crime and they can be subjected to intense cross-examination. An early successful plea negotiation reduces this stress on the parties.

Plea negotiations also have advantages for the accused who may receive a reduced sentence because of an early plea of guilty before the trial. The principle of fairness can be achieved if the accused is pleading guilty to charges that reflect the serious nature of the offence. In this way, the negotiations can help to ensure that the agreement reflects the impact of the offence. The negotiations are also appropriate if they ensure that there is certainty in the outcome for all parties, with a guilty plea being secured and a sanction imposed. Going to trial can risk the possibility of an acquittal, which can reduce confidence in the legal system.

However, plea negotiations are less appropriate if the community and victims feel the accused has been ‘let off’ or believe that a lenient sentence does not reflect the crime committed. A self-represented accused such as Ronald may also feel pressured into accepting a deal even if the evidence is not strong. This can reduce the level of access to the criminal justice system, where an unrepresented person may not have the skills to negotiate an appropriate outcome. In contrast, a represented party has more effective access to such an important process.

The appropriateness of plea negotiations is further reduced because the nature and content of the negotiations does not need to be disclosed and can be held privately. This lack of transparency may make some people question the agreement or the reason why the prosecution decided to reduce the severity of the charges. This can reduce confidence in the legal system and leave victims feeling marginalised and ignored.

Overall, plea negotiations are appropriate to the extent that they can produce timely outcomes and reduce pressure on the legal system. They must not, however, damage confidence in the capacity of the legal system to deliver justice.

5 Explain the relationship between the judge and the jury at trial.

[5 marks]

For 5 marks, students need to explain a number of key points in detail. Some of these are as follows:

• At the beginning of the trial, the judge will explain the case so that any juror who needs to be excused at that stage will be able to respond accordingly.

• The judge instructs the jury on the law to be applied in the case.


• The jury decides the facts of the case and applies the law as it has been explained by the judge.

• During the trial, the judge may address the jury about any relevant matters, including admissions that have been made.

• The judge can give directions to the jury; for example, pointing out that the decision on the part of the accused not to testify at the trial cannot be interpreted as an admission of guilt.

• A judge may dismiss a juror if it is believed that they are not impartial.

6 Describe one time factor that may affect the ability of the criminal justice system to achieve fairness in this case, and one way in which the criminal justice system may be able to overcome that factor.

[6 marks]

For 6 marks, a range of factors could be presented here, such as the need to collect evidence, the need to wait until the extent of the victim’s injuries is fully ascertained and the use of juries for indictable offence trials where the accused person has pleaded not guilty. Some key points appear below. They examine committal hearings from the point of view of timeliness in the criminal justice system. This would also be the focus of the recommended reform; that is, the abolition of committal hearings.

• Committal hearings have the central purpose of determining whether there is enough evidence to support a conviction at trial if the case proceeds to a superior court. Therefore, committals serve the purpose of ensuring that weak cases do not proceed to trial. When the superior courts do not have to hear such cases, resources are saved and the effectiveness of the legal system is enhanced. This is a strong argument to retain committal hearings in spite of calls for their abolition.

• Committal hearings have the advantage of encouraging an accused to plead guilty prior to the trial, which saves the time and expense of a contested hearing. The committal may also expedite the trial by increasing the number of agreed facts and issues at an early stage.

• Committal hearings can contribute to delays in the process due to the potential cross-examination of witnesses and the making of detailed submissions by counsel for the parties. This can affect the achievement of fairness where the accused person is later found not guilty, having been held on remand while awaiting trial.

• The rules of evidence and procedure used at committal hearings can also cause delays, especially if there is dispute over the admissibility of evidence.

• The use of legal representation at the committal hearing may help to streamline the process and may reduce delays. In contrast, where the accused is unrepresented, the process may be delayed due to the need to explain to that person the rules of evidence and procedure.

• Regarding the recommended reform of the abolition of committal proceeding, in 2012 it was reported that the Victorian Government was considering abolishing committal proceedings, saying they were causing backlogs because of an unnecessary examination of cases. Some people believe that committal proceedings remain a


problem and add to delays in the criminal justice system. Committal hearings were abolished in New Zealand in 2011 and there remains some support for their abolition, but it is not currently a government priority.

7 Describe one sanction that may be imposed on Ronald, and one of its purposes in this case.

[6 marks]

For 6 marks, there are two components that need to be addressed in this question.

The description of the sanction is straightforward and could be written as below. There are three sanctions that could be used for this response: imprisonment, community corrections orders and fines. The sanction of imprisonment has been chosen for this response.

Imprisonment is a sanction that involves the removal of the offender from society for a stated period of time and placing them in prison.

The description of the purpose of imprisonment could be drawn from one of the purposes listed below:

• Rehabilitation: a strategy designed to reform an offender in order to prevent them from committing offences in the future. This involves programs that are focused on the cause of the offending, such as substance abuse and gambling addiction.

• Punishment: a strategy designed to penalise (i.e. punish) the offender and show society and the victim that criminal behaviour will not be tolerated. Where the sanction overtly punishes the offender, this brings confidence to the public that the legal system is operating to reflect the values of society.

• Deterrence: a process by which the court can discourage the offender (specific deterrence) and others in the community (general deterrence) from committing similar offences. When crime is discouraged, it takes pressure off the criminal justice system and encourages the harmonious operation of society.

• Denunciation: a process by which a court can demonstrate the community’s disapproval of the offender’s actions. This is often linked to a harsh sanction being imposed (a lengthy prison sentence or a heavy fine) to express the public’s distaste for the conduct of the offender.

• Protection: a strategy designed to safeguard the community from an offender in order to prevent them from committing further offence (e.g. by imprisoning them). In this way, while the offender is imprisoned, the community is safe. This purpose of criminal punishment is particularly relevant to serious offenders who are at risk of re-offending.

8 Provide four factors that may be considered in sentencing Ronald, and comment on how they may impact on the sentence imposed if Ronald is found guilty.

[8 marks]

To be awarded the full 8 marks for this question, students would need to address the aggravating and mitigating factors that are relevant to sentencing. An outline of responses is indicated below. From a substantial list, there are four factors that have been included.


Aggravating factors involve circumstances considered in sentencing that can increase the seriousness of the offence or the offender’s culpability, resulting in a more severe sentence. Examples include the offence being committed with a weapon or in the company of children.

In contrast, mitigating factors are circumstances considered in sentencing that reduce the seriousness of the offence or the offender’s culpability and lead to a less severe sentence. An example of a mitigating factor is where the offender showed remorse by an early plea of guilty. Another example is where the offender has no prior convictions and has led an otherwise blameless life.

9 Discuss the ability of the criminal justice system to ensure a fair trial in this case. In your answer, describe one recent reform that will aim to ensure a fair trial.

[10 marks]

For 10 marks, students would need to break the question down into the following parts:

• Discuss the ability of the criminal justice system: this relates to the capacity of the criminal justice system to achieve fairness. A range of factors need to be addressed, including costs, delays and cultural differences. The key elements relevant to this are outlined below.

• Cost factors: cost of legal representation; availability of legal aid; assistance to self-represented parties

• Time factors: delays in preparation for hearing or trial; court delays; the use of plea negotiations (as in Ronald’s case), sentence indications and the expedition of appeals

• Cultural differences: problems that occur during questioning and giving evidence due to lack of understanding of the legal system or lack of English, as well as over-representation of Aboriginal and Torres Strait Islander peoples

• to ensure a fair trial in this case: the focus here is on the principle of fairness. Some of the key aspects of this part of the question relevant to Ronald’s case are as follows:

• The view of whether an outcome is fair can depend on a person’s values (social, cultural and economic) and their perspective. For example, a decision to grant bail in a case might appear inappropriate to the police but in the mind of the court, the prosecution did not present sufficient evidence of potential risk to have the accused held on remand.

• The word fairness means having fair processes and a fair hearing for all parties. This means that the parties in a legal case should always have an opportunity to know the key facts of the case and have the opportunity to present their evidence in such a way that it can be heard and understood by the court. This includes any pre-hearing/pre-trial processes (such as committals) as well as hearing/trial processes.

• In the criminal justice system, people such as Ronald should be able to:

• have their case heard in an impartial and objective manner, where the outcome is based only on admissible evidence and the relevant legal principles


• understand court processes, which include rules of evidence and procedure. In a criminal trial, procedural fairness is vital to maintain confidence in the legal system.

• have the opportunity to present evidence in their defence and be aware of all material that the prosecution intends to present prior to the hearing or trial

• have the opportunity to rebut (seek to disprove) any evidence that has been presented by their opponent

• be able to lodge an appeal to a superior court where this is considered appropriate.

• describe one recent reform that will aim to ensure a fair trial: a range of recent reforms could be described that are relevant to Ronald’s case, especially as he is an unrepresented person. Students only need to ’describe’ the recent reform. Some of these are as follows:

• Increase in funding for legal assistance: the Victorian Access to Justice Review Report recommended that additional state funding be provided for legal assistance, with priority for duty lawyer services, family violence-related services and Aboriginal legal services. It also recommended that the proportion of Commonwealth funding for legal assistance be increased, and that a transparent funding model with the Commonwealth Government be entered into which takes into account population growth and service demand.

• Improving the availability of pro bono services: The Victorian Access to Justice Review Report recommends that the Victorian Government, Justice Connect and the legal profession work together to improve pro bono services, which includes developing an online tool or website portal on which community legal centres or other organisations that require pro bono assistance can advertise their need and be matched with lawyers who can assist.

• Alternative funding options – The Australian Bar Association (ABA) and other organisations are considering and investigating sources of funding other than government funding. This is to ease the pressure on the growing need for legal services. The ABA is considering alternatives such as legal assistance funds that build up money from special levies, such as a ‘speeding fines levy’.

• Case management by Supreme Court: In a 2017 discussion paper on reforms to criminal procedure, the Victorian Government sought public submissions on flexible early case management. It proposed reforms for some indictable offence cases to allow the Supreme Court to manage those cases from the time a person is charged through to trial. The proposal would reduce delays, for example, by eliminating the need to revisit issues in different courts and resolving issues early in proceedings.

Unit 3 Area of Study 2 Assessment task

Practice assessment task questions

Your teacher has said that the format is up to you, but that your paper needs to address the following:


1 Who the likely parties are in the case.

[2 marks]

For 2 marks, students would need to outline that the likely parties would be:

• the plaintiff, being the former student who is alleging that the school was negligent in not supporting her learning to maximise her chances of good grades to attain a place in her chosen tertiary course

• the defendant would be the school as a legal entity.

2 Who has to prove the facts, and why.

[2 marks]

For 2 marks, students would need to explain that:

• the plaintiff carries the burden of proof and would need to prove the key elements of the tort of negligence, including that a duty of care was owed by the plaintiff and it was breached

• this follows the idea that if someone is making a claim against another, then they should have the responsibility of proving that claim, and not the other way around. It adds to the fairness of a civil trial in particular: not assuming someone is liable simply because someone is making a claim against them.

3 Whether a jury will be involved, and your reason for your answer.

[3 marks]

For 3 marks, students would need to explain the following:

• Given that the plaintiff is suing for the amount of $1.5 million, the case would proceed to the County or Supreme Courts in the event that pre-trial stages do not lead to an early settlement. These courts can use juries in civil cases.

• For a jury to be used, one or both parties would need to request the jury for it to be used.

4 Two factors that may be relevant as to whether the plaintiff does initiate a claim, and why.

[5 marks]

For 5 marks, there are a range of factors that may be relevant as to whether the plaintiff does initiate a claim, some of which include:

• The costs of undertaking the action: If this case were to be heard in the Supreme Court, the cost of legal action would be high, including filing fees and the use of legal representation.

• The chances of success in the action would be important, and in particular whether the school can pay: The plaintiff would need to be sure that the school would be able to


satisfy any damages amount. Given that the defendant in this case is a school, this should not be an issue.

• The scope of liability, and in particular whether the defendant wholly caused the harm: In this case the school may claim that the former student contributed to, or was responsible for, the harm caused.

5 What options, if any, are available to the school now to prevent the plaintiff from issuing a claim, and your reasons.

[5 marks]

For 5 marks, there are numerous options available to the school to prevent the plaintiff from issuing a claim, some of which include:

• The school could respond to the letter of demand sent by the solicitor representing the plaintiff to settle the matter in its entirety. This could involve offering a lesser sum that is accepted by the plaintiff as full settlement.

• The school could offer to attend a negotiation with the plaintiff to try and resolve this matter out of court. The school could perhaps suggest a facilitated negotiation, such as a mediation, where both parties come together to resolve the dispute without incurring the time and expense of going to court.

6 The likely dispute resolution body used to resolve the dispute, and your reason for your answer.

[4 marks]

For 4 marks, students would explain that the courts with the jurisdiction to hear and determine this case would be the County Court or the Supreme Court, given that the amount of damages being sought is $1.5 million. It is also possible to issue this sort of claim in VCAT (this has occurred before).

As to which court would hear this matter, the plaintiff will choose which court to issue in.

7 Three of the responsibilities on the school if the plaintiff does issue the claim, including responsibilities in relation to documents and evidence.

[6 marks]

For 6 marks, there are numerous responsibilities on the school if the plaintiff does issue the claim, some of which include:

• To provide the plaintiff with relevant documents that are necessary to resolve the issues in dispute. The plaintiff will be given documents, such as any files kept by the school about her education, as part of the discovery process.

• The school may be required to rely on lay evidence in relation to the former student’s education, possibly evidence given by former teachers of the student.

• The school may rely on expert evidence such as an expert in education or an expert that gives evidence about whether the student’s final score was affected and so on.

8 The possible costs that may be incurred by the school.


[4 marks]

For 4 marks, there are a number of costs that would need to be met, some of which include:

• the costs of legal representation (solicitors and barristers), including the issuing of documents such as the defence and engaging in discovery

• the payment of fees for mediation prior to the trial

• filing fees for any documents lodged with the court

• attendance by legal representatives at pre-trial stages, such as directions hearings

• attendance by legal representatives at the actual trial

• engaging expert witnesses to prepare and present evidence

• the fees for the use of a jury if the school requests one

• in the event that the plaintiff is successful in the case, the school may be required to pay a component of the plaintiff's legal costs.

9 Whether the matter is likely to go to trial and, if not, what may avoid the need for trial.

[5 marks]

For 5 marks, there is a range of matters that would be relevant to whether the case would proceed to trial. Some of those include:

• the strength of the school's response to the statement of claim, and whether this encourages the plaintiff to either withdraw her action or accept an early offer of a reduced settlement

• the willingness of the parties to come to an agreement at mediation

• the willingness of the parties to accept a compromise outcome before trial

• the desire on the part of the school to avoid the publicity of a trial, so the school enters into an early settlement that is made confidential.

10 Whether there are any recent improvements to the civil justice system that the school needs to be aware of that can help it in the claim.

[6 marks]

For 6 marks, there are some significant recent improvements that the school would need to be aware of in this claim. Two recent reforms are:

• the use of Technology Assisted Review (TAR) in the Supreme Court for management of the discovery process

• the increased use of technology in the courts, such that the school may be able to use online tools to file its claims and see the progress of the case.

11 How the school should measure whether justice has been achieved in this particular case, addressing each of the principles of justice.


[8 marks]

For 8 marks, the points below are some of those that could have been included when considering, from the school's perspective, whether the principles of justice have been met:

• Fairness: whether the school had the financial capacity to engage expert legal representation and engage expert witnesses; and whether the judge who conducted the pre-trial and trial processes conducted the proceedings to ensure that each party had a fair opportunity to present their case. If there are excessive delays in the hearing and resolution of the dispute, this can have an impact on the fairness of the case, especially if the court finds in favour of the school but does not award costs against the plaintiff; that is, where the parties pay their own legal costs.

• Equality: whether the school was able to engage legal representation that was the equal of that produced by the plaintiff; and whether the judge at pre-trial and trial stages enforced rules of evidence and procedure to ensure that only admissible material was considered when the outcome was determined.

• Access: whether the school can afford to defend the case, the information available by the court about pre-trial and trial steps, the ability of the parties to appeal the case, and the removal of wigs in court.


vcelegal.weebly.comvcelegal.weebly.com/.../1/4/8/5/14852474/j_o...2_.docx · web view•the word...

Documents