U401 disputeresolutionmethods

Area of Study 1 Resolution Bodies & Methods

Unit 4 Resolution & Justice

Introduction to Unit 4

!  Aim to explain the differences between criminal and cases and civil disputes.

!  Criminal cases and civil disputes are the main focus of Unit 4

!  Refer to Justice & Outcomes textbook pp 294-‐5 “Differences between criminal and civil disputes”

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Outcome U401

!  You should be able to describe and evaluate the effectiveness of institutions and methods for the determination of criminal cases and the resolution of civil disputes

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Key knowledge

!  Reasons for court hierarchy

!  Original and appellate jurisdictions of the Victorian Magistrate’s Court, County Court and Supreme Court (Trial Division and Court of Appeal)

!  Role of the Victorian Civil and Administrative Tribunal (VCAT)

!  Dispute resolution methods used by courts and VCAT, including mediation, conciliation, arbitration and judicial determination

!  Strengths and weaknesses of dispute resolution methods used by courts and VCAT

!  Strengths and weaknesses of the way courts and VCAT operate to resolve disputes

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Key Terms

!  Alternative dispute resolution (ADR)

!  Arbitration

!  Conciliation

!  Judicial determination

!  Jurisdiction

!  Mediation

!  Recidivist

!  VCAT

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Dispute Resolution Bodies The Courts and VCAT

Victorian Court System

!  Jurisdiction – to the power that courts have to hear cases arising from particular areas of law. It indicates the type of cases courts can adjudicate on

!  Original jurisdiction – hearing a case for the first time

!  Appellate jurisdiction – hearing a case on appeal

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Reasons for court hierarchy

!  Doctrine of precedent !  Precedent relies on higher courts making statements of law that

are binding on lower courts in the same hierarchy

!  Appeals !  A hierarchy allows parties to appeal to a higher and more

experienced court. Their case is reviewed and mistakes corrected

!  Specialisation !  If courts regularly hear the same types of disputes, the judges can

develop expertise in those areas of law

!  Administrative convenience !  allows more complex cases to be heard by more experienced judges

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Pros & Cons of Court Hierarchy

Advantages Disadvantages

Allows for doctrine of precedent Precedent can be avoid by judges (distinguishing)

Allows for appeals Argued that there are too many appeals

Administrative convenience allows more complex cases to be heard by more experienced judges

More administrative personnel needed to run the different courts

Specialisation allows courts to become experts in a particular area

There are more courts – a single court would be easier

Fewer delays because less-‐complicated cases are heard in lower courts and not mixed in with more complicated cases

Parties to cases in lower courts are not receiving the same high level of judicial expertise as parties in higher courts

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Original & Appellate Jurisdiction of the Victorian Court Hierarchy Handout

Magistrates’ Court

!  Lowest court in hierarchy

!  Hears small cases efficiently and cheaply

Original Appellate

Criminal • Summary offences • Indictable offences heard summarily • Committal hearings • Bail applications

• None

Civil • Claims from $10,000 to $100,000

• None

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Specialist Divisions of Magistrates’ Court Case File Handout

County Court

!  The County Court sits above the Magistrates’ Court and hears most indictable offences apart from the most serious, as well as the more complex or expensive civil claims

Original Appellate

Criminal • Indictable offences except the most serious (murder) • Before a jury of 12

• Appeals on questions of fact (conviction or sentence) from the Magistrates’ Court

Civil • Claims exceeding $100,000 • Before an option jury of 6, otherwise judge alone

• None, except under a specific Act

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Specialist Divisions of County Court

!  The Koori County Court !  Objective to ensure greater participation of the Aboriginal

community in the sentencing process

!  Culturally appropriate justice process

!  The Sexual Offenders List !  To ensure a more efficient trial process, and be more responsive

to the needs of all participants, including victims of sexual offenders

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Supreme Court

!  The Supreme Court is the highest state court with original jurisdiction and the lowest that is able to set precedent. It hears most serious cases.

Original Appellate

Criminal • The most serious indictable offences • Before a jury of 12

• Appeals on questions of law from the Magistrates’ Court

Civil • Complex claims exceeding $100,000 • Before an optional jury of 6, otherwise judge alone

• Appeals on questions of: • Law and fact from the Magistrates’ Court • Law from VCAT, but not from an order of the president or vice-‐president

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Specialist Divisions

!  Victorian Costs Court !  Responsible for hearing and determining the assessment,

settling, taxation and review of costs in proceedings in the Supreme Court, County Court, Magistrates’ Court and VCAT

!  Commercial Court !  Introduced various procedures to resolve matters more

efficiently, including a case management conference and an evaluation procedure.

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The Court of Appeal

!  The Court of Appeal is the division of the Supreme Court that sits with more than one justice.

!  It is the highest court for appeals below the High Court

Original Appellate

Criminal • None • On questions of law and fact from the County Court and the Supreme Court

Civil • None • On questions of law and fact from the County Court and the Supreme Court • On questions of law from VCAT, against the order of the president or vice-‐president

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Victorian Civil and Administrative Tribunal (VCAT) Structure, role, jurisdiction, orders, appeals & anti-‐discrimination list

Structure of VCAT

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VCAT’s divisions and lists

!  VCAT is divided into three divisions: Civil, Administrative and Human Rights. Within each division are sections known as ‘lists’

Civil Division Administrative Division Human Rights Division

•  Domestic Building List •  Civil Claims List •  Credit List •  Real Property List •  Legal Practice List • Residential Tenancies List •  Retail Tenancies List

•  General List •  Planning & Environment List • Land Valuation List •  Taxation List •  Occupational & Business Regulation List

•  Anti-‐Discrimination List •  Guardianship List

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Disputes dealt with by VCAT

Civil Division Administrative Division Human Rights Division

Disputes between individuals: •  consumer matters •  credit •  domestic building works •  residential tenancies •  retail tenancies

Disputes between individuals & government: •  land valuation •  licenses -‐ business, travel agents, motorcar traders •  planning •  state taxation •  traffic accident commission decisions •  freedom of information issues

Disputes involving: •  discrimination •  guardianship •  administration

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Reasons for VCAT

!  VCAT is similar to a court, only less formal, faster and cheaper

Reason Evidence

Less formal • The tribunal member takes an active role in proceedings • In some circumstances, proceedings can be conducted online or without the parties

Faster • Documentary evidence is allowed • There are no pre-‐hearing procedures and limited appeals

Cheaper • There is a one-‐off filing fee rather than many ongoing ones • Legal representation is often prohibited unless both parties agree otherwise

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Operation of VCAT

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Dispute Resolution Methods Mediation, Conciliation, Arbitration & Judicial Determination

Dispute Resolution Methods

!  Criminal Cases !  Judicial Determination

!  Civil Cases !  some times Judicial Determination but most commonly

resolved through Alternative Dispute Resolution (ADR)

!  ADR is less formal where dispute is reconciled between parties with the help of an independent third party

!  ADR includes, mediation, conciliation & arbitration

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Mediation

!  Involves two parties

!  The mediator help the parties to negotiate, but do not give suggestions for ways to resolve dispute

!  Decision not binding

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Conciliation


!  The conciliator helps the parties negotiate and makes suggestions

!  Decision not binding

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Arbitration


!  The arbitrator helps the parties negotiate and makes a resolution

!  Decision is binding

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Judicial Determination


!  The judicial officer hears the case and makes a resolution

!  Decision is binding

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Evaluation of Dispute Resolution Methods Strengths and weakness of mediation, conciliation, arbitration & judicial determination

Pros & Cons of ADR

Strengths Weaknesses

Less formal & intimidating Expect for arbitration, decision not binding

Costs less Not appropriate in cases where there is a power imbalance

Quicker One party may compromise too much and result in a unfair decision

Mediation and conciliation more satisfaction with result as normally considered a win-‐win

ADR is voluntary, therefore one party may not attend

Keeps relationship between parties in tact No appeal options

Confidential unlike a public court

Individual merits (no doctrine of precedent)

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Pros & Cons of Judicial Determination


Decision binding and enforceable by courts

Expensive

Judicial officers are experienced in legal processes

Judicial officers bound by formality and are not allowed to assist unrepresented parties

Formal nature ensures fairness as both parties are subject to the same rules of evidence and procedures

Judicial officers find for either one of the parties therefore leaving one party dissatisfied with the decision

Suitable to both criminal and civil disputes

Judicial officers limited in the orders they can make (more flexibility in decisions with ADR)

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Evaluation of the courts & VCAT Strengths & weaknesses of the courts and VCAT in resolving disputes

Pros & Cons of court


Courts can adjudicate on all disputes, minor, major, criminal or civil

Adversarial nature results in win-‐lose result

Doctrine of precedent allows for consistency, certainty and predictability

Time consuming as delays are common

Legal representation allows for equality for both parties

Legal representation is expensive as are other court costs

Strict rules of evidence and procedure ensure both parties are treated fairly

The formality of the court room may be intimidating

Decision is final and legally enforceable

Opportunity to have a jury in some cases

Allows for appeal

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Pros & Cons of VCAT


Less formal Cost increased due to an increase in parties seeking legal representation

Cheaper Dispute resolution now fragmented creating confusion of where best to settle dispute

Faster Tribunals have eroded the importance of the courts

Tribunal personnel expert/experienced in jurisdiction of list

Avenues of appeal are limited (only those relating to questions of law permitted)

Decisions are binding and legally enforceable on the parties

Relieves strain on courts and allow courts to focus on more complex cases

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References

!  Beazer, Humphreys & Filippin (2012) Justice & Outcomes 12e, Oxford University Press

!  Aldous (2008) Making & Breaking the Law, 8th edition, Macmillan Education Australia

!  Humphreys (2011) Legal Notes Units 3 & 4, 2nd edition, Nelson Cengage Learning

!  Jacaranda online, www.studyon.com.au

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