VCE Legal Studies: Evaluating the role of the court as a law-maker 4/25/2017 Legal Studies U4.AOS1 Evaluating the operation of the courts and VCAT

VCE Legal Studies: Evaluating the role of the court as a law-maker 4/25/2017 Learning Intentions At the end of this topic, we will be able to explain: 4.1.6 Strengths and weaknesses of the way courts and VCAT operate to resolve disputes. 4.1.7 Define key legal terminology and use it appropriately 4.1.8 Discuss, interpret and analyse legal information and data 4.1.11 Compare and evaluate the way courts and VCAT operate to resolve disputes. SD 26

Reasons for court hierarchy Original and appellate jurisdictions Dispute Resolution Reasons for court hierarchy Original and appellate jurisdictions Role of VCAT Dispute resolution methods Evaluating dispute resolution methods Evaluating operation of the courts and VCAT

What should you expect regarding evaluating the operation of the courts and vcat?

Potential Evaluation Questions You could be asked to: Evaluate courts ‘Courts are always able to resolve disputes in a way that benefits the parties.’ Discuss (8 Marks) Evaluate VCAT Sophie is having problems with a property that she owns. Sophie has been advised to make an application to VCAT – Residential Tenancies List – in order to resolve these problems. Outline the jurisdiction of the VCAT residential tenancies list. Explain two advantages of tribunals in resolving disputes (6 Marks) – VCAA 2009 Evaluate VCAT and the courts against each other E.g. Explain two possible advantages of having a civil dispute resolved by the Victorian Civil and Administrative Tribunal (VCAT) rather than a court (4 Marks) – VCAA 2012

Not to be confused with evaluating methods of dispute resolution You could be asked to: Evaluate a method of dispute resolution Critically evaluate the effectiveness of using mediation as a means of resolving civil disputes (6 Marks) Evaluate methods of dispute resolution against each other Discuss two advantages and two disadvantages of having a dispute resolved outside the traditional trial system of judicial determination (6 Marks) Compare methods of dispute resolution against each other Compare and contrast mediation and conciliation as alternative methods of dispute resolution – this focuses on the procedural differences rather than just strengths and weaknesses (e.g. what is the role of the third party? Degree of formality?)

Intro to Unit 4

Avenues of Dispute Resolution Civil Dispute Tribunals like VCAT Judicial Determination Hearings Non-judicial methods of dispute resolution Mediation Conciliation Arbitration Courts County and Supreme Court Trials Magistrate’s Court Hearing Avenues of Dispute Resolution

Avenues of Dispute Resolution Criminal Dispute Court Judicial Determination Magistrate’s Court Hearing County and Supreme Court Avenues of Dispute Resolution

Strengths of courts in resolving disputes Courts provide a binding resolution of disputes. This provides certainty in the outcome and allowing the winning party to enforce the decision if it is not complied with. Courts can adjudicate on a range of civil and criminal disputes. Whereas VCAT can only resolve civil matters. The courts have developed specialised lists or courts to allow for greater administrative convenience and specialisation for certain cases. For example, the Drug Court in the Magistrates’ Court, the Koori Court Division in the Magistrates’ Court and County Court, and the Commercial Court in the Supreme Court.

Strengths of courts in resolving disputes Courts allow for legal representation to prepare and present the case. The use of legal representation ensures that both parties are treated equally and each party has the opportunity to present their side of the facts in an objective, reasoned argument. Courts follow strict rules of evidence and procedure. This ensures that all parties are treated in a fair manner and that the rules of evidence maintain consistency in how our courts determine the truth.

Weaknesses of courts in resolving disputes Courts are very expensive. Courts are very expensive due to the high court costs and the need for legal representation for the preparation and presentation of a case. This may prevent or discourage some parties from pursuing a valid civil claim through the courts. This is particularly a concern for those parties whose dispute cannot be settled through other dispute resolution methods or is outside the jurisdiction of VCAT. Court cases are time-consuming. Preparation and exchange of civil pre-trial documents, scheduling of pre-trial conferences and the trial itself can take up a lot of time. In addition, a high court workload and the availability of one’s barrister can cause delays.

Weaknesses of courts in resolving disputes Individuals may not be able to afford legal representation. Individuals who are unable to afford their own legal representative and are ineligible for legal aid are at a huge disadvantage in the court system. The better prepared and more experienced barrister may win rather than the party with right on their side. Not always the most appropriate method. First, as courts are adversarial in nature, with one party winning and the other losing, this method could increase tension between the parties. Second, strict rules of evidence and procedure are followed; this formality could be intimidating for parties.

Strengths of VCAT in resolving disputes VCAT is normally cheaper than courts This is due to low application fees and parties being able to represent themselves. As no costs are awarded the parties are assured of no additional financial burden other than what the tribunal considers to be an appropriate resolution of the dispute. VCAT is faster / a more timely resolution As the hearings are generally less formal there are fewer pre- hearing requirements in preparing a dispute to go before VCAT. VCAT hearings are conducted in a less formal manner. VCAT does not use the strict rules of evidence and procedure used by courts. The parties are given the opportunity to put their case in their own words. This process is less intimidating than the formal procedure of questions and answers used in the courts.

Strengths of VCAT in resolving disputes Specialised lists with expertise Each list operates in its own specialised jurisdiction, resulting in the tribunal personnel developing expertise in resolving disputes in that area. VCAT’s decision is binding on the parties. Parties are encouraged to reach an agreement themselves. VCAT can use mediation or conciliation to encourage the parties to reach an agreement. If the parties cannot reach an agreement, the matter will go to a hearing and a binding decision will be handed down.

Weaknesses of VCAT in resolving disputes VCAT is only able to resolve civil disputes It is not able to resolve criminal disputes, therefore it is limited in its ability to hear all matters. Escalating cost of VCAT hearings. The cost of VCAT hearings has escalated in recent years due to an increase in the number of people using legal representation. Although in some lists (e.g. Civil Claims List) legal representation is generally not permitted, in other disputes VCAT will allow parties to be legally represented if they both agree or where certain circumstances exist (e.g. Residential Tenancies List for eviction cases).

Weaknesses of VCAT in resolving disputes Limited right of appeal. An appeal can only be made on a point of law and to the Supreme Court (Trial Div. or CoA). While this has the advantage of restricting further costs, parties to a dispute decided in VCAT have limited rights to have a decision reviewed. VCAT members are normally non-judicial officers This means they may be casual, sessional members without as much experience in hearing matters as judges and justices.

Which avenue should I pursue – court or VCAT? There are a number of questions that an individual should consider in deciding which dispute resolution body to use. E.g. How formal is the process? How much will it cost? Who makes the decision? Is there a right of appeal? In deciding which method to use, an individual should consider the strengths and weaknesses of courts, VCAT and dispute resolution methods in relation to each of these questions. See: MABL p245 (table summarising strengths and weaknesses of courts and VCAT)