Key Knowledge #1: The role of the court hierarchy in civil disputes
Key Knowledge
1. The role of the court hierarchy in civil disputes
2. The civil jurisdiction of courts in the Victorian court hierarchy
3. Methods of civil dispute resolution, including mediation, conciliation, arbitration and judicial determination
4. Purpose and operation of civil pre-trial procedures
5. An overview of the adversarial nature of a civil trial
6. Civil remedies and their purpose
7. Difficulties faced by parties when attempting to resolve civil disputes.
1. The role of the court hierarchy in civil disputes
2. The civil jurisdiction of courts in the Victorian court hierarchy
3. Methods of civil dispute resolution, including mediation, conciliation, arbitration and judicial determination
4. Purpose and operation of civil pre-trial procedures
5. An overview of the adversarial nature of a civil trial
6. Civil remedies and their purpose
7. Difficulties faced by parties when attempting to resolve civil disputes.
Civil law in action
Learning Intention:
Students should understand the concept of a court hierarchy. They should also be able to understand the Civil jurisdiction of each court.
Tasks:
1. Define the word: Jurisdiction?
2. Draw the Civil jurisdiction of the Victorian Court Hierarchy
3. Explain the reasons for a court hierarchy?
4. Complete ‘Apply your understanding’ on P288/289.
5. Complete ‘Apply your understanding’ on P296/297.
Success Criteria:
1. Be able to recall the Victorian Court Hierarchy
2. Be able to list and explain the four reasons for a court hierarchy
3. Understand the jurisdiction of the Magistrates, County, Supreme Courts
Students should understand the concept of a court hierarchy. They should also be able to understand the Civil jurisdiction of each court.
Tasks:
1. Define the word: Jurisdiction?
2. Draw the Civil jurisdiction of the Victorian Court Hierarchy
3. Explain the reasons for a court hierarchy?
4. Complete ‘Apply your understanding’ on P288/289.
5. Complete ‘Apply your understanding’ on P296/297.
Success Criteria:
1. Be able to recall the Victorian Court Hierarchy
2. Be able to list and explain the four reasons for a court hierarchy
3. Understand the jurisdiction of the Magistrates, County, Supreme Courts
Reasons for a court hierarchy
Victorian courts, like those in the other states, are arranged in a court hierarchy. That is, they are graded in order of importance and severity of cases heard, with the High Court being the highest court dealing with the most complex issues. The Magistrates’ Court is at the bottom of the hierarchy and deals with less-serious issues. Because of the types of cases the Magistrates’ Court deals with, its procedures are less formal and less complex, and it can hear more cases in a given time. It has been suggested that a one-court system could be less complicated. There would be no confusion about which court a matter should be taken to, and the court costs would be the same whatever type of action was being heard. However, this system could be an administrative nightmare and could lead to very long delays. If a small matter was in the list of cases to be heard after a long and complicated matter, the parties could be waiting around for many days for their case to be heard. The main hierarchy of courts is shown at right.
Doctrine of precedent
The doctrine of precedent means that decisions made in higher courts are binding on lower courts in the same hierarchy. The ratio decidendi (reason for the decision) in the higher court, part of the judgment given, establishes a precedent that is to be followed in the future. This system provides consistency in that similar cases are treated in a similar manner. It also provides predictability. Solicitors are able to inform their clients of what the law is and what decision is likely to be made in a particular case. This system would not be possible without a hierarchy of courts because there would be no higher courts to make precedents for lower courts to follow.
Appeals
Someone who is dissatisfied with a decision can, if there are grounds for appeal, take the matter to a higher court. This provides fairness and should allow any mistakes to be corrected. If there were no higher courts in the court hierarchy, a system of appeals could not operate.
Administrative convenience
The system of a court hierarchy allows for the distribution of cases according to their seriousness. The more serious and complex cases are heard in the higher courts. These cases take longer to hear and require judges who are expert in complicated points of law. Minor cases can be heard quickly and less expensively in the lower courts. In this way delays are reduced in the lower courts, and the higher courts can more easily manage the allocation of time for the longer, more complicated cases. Legal personnel are allocated to courts according to their level of expertise so that complex issues can be dealt with by more-experienced personnel. It could, however, be argued that every matter, small or large, is very important and serious to the parties involved and that the parties should therefore be entitled to the same expertise.
Specialisation
Within the system of a hierarchy of courts, the courts have been able to develop their own areas of expertise. The lower courts are familiar with the smaller cases that need to be dealt with quickly and efficiently. The higher courts develop expertise in hearing complex cases involving major crimes or large sums of money. Other specialist courts such as the Children’s Court and the Family Court have been developed to deal with specialised areas of law.
Doctrine of precedent
The doctrine of precedent means that decisions made in higher courts are binding on lower courts in the same hierarchy. The ratio decidendi (reason for the decision) in the higher court, part of the judgment given, establishes a precedent that is to be followed in the future. This system provides consistency in that similar cases are treated in a similar manner. It also provides predictability. Solicitors are able to inform their clients of what the law is and what decision is likely to be made in a particular case. This system would not be possible without a hierarchy of courts because there would be no higher courts to make precedents for lower courts to follow.
Appeals
Someone who is dissatisfied with a decision can, if there are grounds for appeal, take the matter to a higher court. This provides fairness and should allow any mistakes to be corrected. If there were no higher courts in the court hierarchy, a system of appeals could not operate.
Administrative convenience
The system of a court hierarchy allows for the distribution of cases according to their seriousness. The more serious and complex cases are heard in the higher courts. These cases take longer to hear and require judges who are expert in complicated points of law. Minor cases can be heard quickly and less expensively in the lower courts. In this way delays are reduced in the lower courts, and the higher courts can more easily manage the allocation of time for the longer, more complicated cases. Legal personnel are allocated to courts according to their level of expertise so that complex issues can be dealt with by more-experienced personnel. It could, however, be argued that every matter, small or large, is very important and serious to the parties involved and that the parties should therefore be entitled to the same expertise.
Specialisation
Within the system of a hierarchy of courts, the courts have been able to develop their own areas of expertise. The lower courts are familiar with the smaller cases that need to be dealt with quickly and efficiently. The higher courts develop expertise in hearing complex cases involving major crimes or large sums of money. Other specialist courts such as the Children’s Court and the Family Court have been developed to deal with specialised areas of law.
Week Ending: 4th August
Key Knowledge #2: The civil jurisdiction of courts in the Victorian court hierarchy
Key Knowledge #3: Methods of civil dispute resolution, including mediation, conciliation, arbitration and judicial determination
Mediation
Mediation is a confidential process for resolving and settling civil disputes between parties. An independent and neutral mediator conducts the mediation in a setting where parties can participate in the decision-making process and help come up with a resolution to the dispute.
Mediation avoids lengthy and expensive litigation through the trial of civil matters in the courts. The Supreme Court of Victoria supports and encourages mediation.
In the Court, judicial mediations are conducted by associate judges (and judicial registrars) at their discretion, upon referral by Supreme Court judges or legal practitioners.
How does mediation work?A mediator brings parties together in a private and confidential setting. They inform the mediator of their objectives, and the mediator helps them reach a mutually satisfactory outcome. An order resulting from a mediation is tailored to the circumstances of the dispute.
A mediator cannot impose a decision on parties. Rather, as skilled negotiators, they help parties explore issues, negotiate, and reach agreement.
The Supreme Court may, at any stage of a proceeding, order parties to undergo mediation. Similarly, parties may ask the Court, at any stage of a proceeding, to refer them to a mediator. Refer to rule 50.07, chapter I, of the Supreme Court Rules for more information.
Mediation avoids lengthy and expensive litigation through the trial of civil matters in the courts. The Supreme Court of Victoria supports and encourages mediation.
In the Court, judicial mediations are conducted by associate judges (and judicial registrars) at their discretion, upon referral by Supreme Court judges or legal practitioners.
How does mediation work?A mediator brings parties together in a private and confidential setting. They inform the mediator of their objectives, and the mediator helps them reach a mutually satisfactory outcome. An order resulting from a mediation is tailored to the circumstances of the dispute.
A mediator cannot impose a decision on parties. Rather, as skilled negotiators, they help parties explore issues, negotiate, and reach agreement.
The Supreme Court may, at any stage of a proceeding, order parties to undergo mediation. Similarly, parties may ask the Court, at any stage of a proceeding, to refer them to a mediator. Refer to rule 50.07, chapter I, of the Supreme Court Rules for more information.
Conciliation
Conciliation is a process of dispute resolution involving the assistance of a third party, with the aim of enabling the parties to reach a decision between themselves. The third party does not make the decision, but listens to the facts, makes suggestions and assists the parties to come to their own decision. The conciliator assists by exploring solutions to the dispute and suggesting possible options.
Conciliation differs from mediation in that the conciliator exercises a greater influence over the outcome than is done in mediation. The conciliator, who is usually someone with specialist knowledge, suggests options and possible solutions and is more directive than a mediator.
The decision made by the parties is not binding, but is more likely to be followed because it has been made in front of a third party.
Use of conciliation in resolving disputes
Conciliation is used in a number of situations where a third party is needed to assist the parties to reach a resolution. A magistrate or a registrar may refer a civil proceeding or part of a civil proceeding for a pre-hearing conference, which resolve the dispute using conciliation. These conferences provide an opportunity for the parties to discuss the settlement of claims and determine the issue in dispute prior to the court hearing stage. The conferences save costs and valuable court hearing time because matters can be settled without going to court. If a settlement cannot be reached, the registrar can refer the matter back to court. It is likely that some of the issues will have been clarified before the court hearing
The Magistrates’ Court can use conciliation or mediation in judicial resolution conferences held in civil matters, for all matters over $10 000. The Victorian Civil and Administrative Tribunal can order the parties to a dispute to take part in a compulsory conference to identify and clarify the nature of the issues in dispute in the proceedings, and to promote a settlement prior to a matter being heard in the tribunal. This conference is conducted using a conciliation process. If the parties are unable to reach an agreement at the conference, the matter can be resolved in the tribunal. Compulsory conferences are commonly used in the Civil Claims List (for disputes over $10 000), and the Land Valuation List of VCAT.
Strengths of conciliation
The focus on cooperation means that parties may have less animosity towards each other after reaching a compromise. When parties come to their own agreement, they are more likely to uphold their part in it.
Weaknesses of conciliation
Conciliation is not a legally binding method, and as such it relies on the parties to actually follow through with their part in the agreement. Although, this can be mitigated if the parties follow conciliation by signing a legally-binding agreement.
Conciliation differs from mediation in that the conciliator exercises a greater influence over the outcome than is done in mediation. The conciliator, who is usually someone with specialist knowledge, suggests options and possible solutions and is more directive than a mediator.
The decision made by the parties is not binding, but is more likely to be followed because it has been made in front of a third party.
Use of conciliation in resolving disputes
Conciliation is used in a number of situations where a third party is needed to assist the parties to reach a resolution. A magistrate or a registrar may refer a civil proceeding or part of a civil proceeding for a pre-hearing conference, which resolve the dispute using conciliation. These conferences provide an opportunity for the parties to discuss the settlement of claims and determine the issue in dispute prior to the court hearing stage. The conferences save costs and valuable court hearing time because matters can be settled without going to court. If a settlement cannot be reached, the registrar can refer the matter back to court. It is likely that some of the issues will have been clarified before the court hearing
The Magistrates’ Court can use conciliation or mediation in judicial resolution conferences held in civil matters, for all matters over $10 000. The Victorian Civil and Administrative Tribunal can order the parties to a dispute to take part in a compulsory conference to identify and clarify the nature of the issues in dispute in the proceedings, and to promote a settlement prior to a matter being heard in the tribunal. This conference is conducted using a conciliation process. If the parties are unable to reach an agreement at the conference, the matter can be resolved in the tribunal. Compulsory conferences are commonly used in the Civil Claims List (for disputes over $10 000), and the Land Valuation List of VCAT.
Strengths of conciliation
The focus on cooperation means that parties may have less animosity towards each other after reaching a compromise. When parties come to their own agreement, they are more likely to uphold their part in it.
Weaknesses of conciliation
Conciliation is not a legally binding method, and as such it relies on the parties to actually follow through with their part in the agreement. Although, this can be mitigated if the parties follow conciliation by signing a legally-binding agreement.
Arbitration
Arbitration is a method in which the parties refer the dispute to a third person to make a decision. The third person is known as the arbitrator. The arbitrator resolves the dispute by listening to the views of both parties and making a decision in favour of one of the parties. Alternative dispute-settlement bodies often use both conciliation and arbitration. Often VCAT will attempt to resolve disputes through the processes of conciliation, However, if this method is not successful, the dispute is arbitrated. The arbitrator has the power to make an order that is binding on the parties. There are limited rights of appeal against the decision. The roles of conciliator and arbitrator may be performed by the same person.
Judicial Determination
Judicial determination
Judicial determination is the legal process of resolving disputes by a magistrate or judge and is a formal means of dispute resolution used by courts. All criminal disputes are resolved by judicial decision. Parties to a civil case, however, may choose from a range of dispute resolution methods and, for them, court action is considered to be the last resort. Magistrates and judges have the power and responsibility to settle an issue or dispute in a judicial manner, by listening to the evidence, determining the facts and applying the appropriate law, so that a decision may be handed down in favour of one of the disputing parties. Features of judicial determination Impartiality An essential feature of a decision reached by judicial determination is that the judge or magistrate is an impartial adjudicator. They hear the evidence and arguments presented by both parties. Furthermore, the principle of the separation of power means that judges and magistrates are independent of the government. Judges and magistrates are not subject to political pressures when making a decision.
Rules of evidence
The role of the judge or magistrate is to hear and determine cases based on the evidence presented. The evidence provided by both parties is vital in every dispute. The role of the magistrate or judge when reaching a decision is to hear all the evidence submitted by the parties. Where necessary, the magistrate or judge may also need to determine if evidence is admissible.
Strict rules of procedure
The court hearing has strict rules of procedure and evidence. It is the role of the magistrate or judge to ensure that a case is conducted according to these rules.
Decide questions of fact and law
It is the role of the magistrate or judge (and jury) to decide questions of fact and questions of law. The distinction between a question of fact and a question of law can be illustrated in the following example. A woman arrives home to find her husband in a loving embrace with another woman. A heated verbal argument follows. During the argument the husband raises his fists. The wife reaches into her pocket, produces a handgun and shoots her husband. She is charged with murder and at her trial pleads a defence of self-defence. The behaviour of the deceased during the verbal argument and the action of the wife are questions of fact. The law provides that self-defence or defensive homicide can be accepted as a defence in certain circumstances. It is a question of law as to whether or not the wife’s behaviour is sufficient to amount to self-defence or defensive homicide. In many instances the magistrate or judge is responsible for determining both the facts and the applicable legal principles. In cases heard by a judge and jury, it is the role of the judge to determine questions of law and that of the jury to decide questions of fact.
Reach a binding decision
The magistrate or judge will be required to reach a decision in favour of one of the parties to the dispute. In a civil case, the magistrate or judge must decide, on the balance of probabilities, whether the plaintiff’s version of the facts is more probable than the defendant’s version. In a criminal dispute, the magistrate or a jury (in a County or Supreme Court) must decide beyond a reasonable doubt that the accused committed the alleged offence.
Judicial determination is the legal process of resolving disputes by a magistrate or judge and is a formal means of dispute resolution used by courts. All criminal disputes are resolved by judicial decision. Parties to a civil case, however, may choose from a range of dispute resolution methods and, for them, court action is considered to be the last resort. Magistrates and judges have the power and responsibility to settle an issue or dispute in a judicial manner, by listening to the evidence, determining the facts and applying the appropriate law, so that a decision may be handed down in favour of one of the disputing parties. Features of judicial determination Impartiality An essential feature of a decision reached by judicial determination is that the judge or magistrate is an impartial adjudicator. They hear the evidence and arguments presented by both parties. Furthermore, the principle of the separation of power means that judges and magistrates are independent of the government. Judges and magistrates are not subject to political pressures when making a decision.
Rules of evidence
The role of the judge or magistrate is to hear and determine cases based on the evidence presented. The evidence provided by both parties is vital in every dispute. The role of the magistrate or judge when reaching a decision is to hear all the evidence submitted by the parties. Where necessary, the magistrate or judge may also need to determine if evidence is admissible.
Strict rules of procedure
The court hearing has strict rules of procedure and evidence. It is the role of the magistrate or judge to ensure that a case is conducted according to these rules.
Decide questions of fact and law
It is the role of the magistrate or judge (and jury) to decide questions of fact and questions of law. The distinction between a question of fact and a question of law can be illustrated in the following example. A woman arrives home to find her husband in a loving embrace with another woman. A heated verbal argument follows. During the argument the husband raises his fists. The wife reaches into her pocket, produces a handgun and shoots her husband. She is charged with murder and at her trial pleads a defence of self-defence. The behaviour of the deceased during the verbal argument and the action of the wife are questions of fact. The law provides that self-defence or defensive homicide can be accepted as a defence in certain circumstances. It is a question of law as to whether or not the wife’s behaviour is sufficient to amount to self-defence or defensive homicide. In many instances the magistrate or judge is responsible for determining both the facts and the applicable legal principles. In cases heard by a judge and jury, it is the role of the judge to determine questions of law and that of the jury to decide questions of fact.
Reach a binding decision
The magistrate or judge will be required to reach a decision in favour of one of the parties to the dispute. In a civil case, the magistrate or judge must decide, on the balance of probabilities, whether the plaintiff’s version of the facts is more probable than the defendant’s version. In a criminal dispute, the magistrate or a jury (in a County or Supreme Court) must decide beyond a reasonable doubt that the accused committed the alleged offence.
Week Ending: 11th August
A civil court action: Pre-hearing procedures
The purpose of Supreme Court pre-trial procedures
Before going to court, the parties must go through various pre-trial procedures. Some are mandatory, others are optional. There are various purposes of pre-trial procedures. The main ones are as follows:
• they inform both parties of information relating to the case — the plaintiff will find out information relating to the defence, and the defendant will find out information relating to the claim
• the parties determine whether it is worthwhile proceeding with their case
• the parties find out the strengths and weaknesses of each other’s case
• they might lead to an out-of-court settlement negotiated between the parties, meaning the cost, stress and inconvenience of going to court is avoided
• they provide the court with information about the case before it begins, leading to a quicker trial
• they might result in some issues being conceded by the parties, therefore only those issues in dispute are heard at trial.
Before going to court, the parties must go through various pre-trial procedures. Some are mandatory, others are optional. There are various purposes of pre-trial procedures. The main ones are as follows:
• they inform both parties of information relating to the case — the plaintiff will find out information relating to the defence, and the defendant will find out information relating to the claim
• the parties determine whether it is worthwhile proceeding with their case
• the parties find out the strengths and weaknesses of each other’s case
• they might lead to an out-of-court settlement negotiated between the parties, meaning the cost, stress and inconvenience of going to court is avoided
• they provide the court with information about the case before it begins, leading to a quicker trial
• they might result in some issues being conceded by the parties, therefore only those issues in dispute are heard at trial.
Key Knowledge #5: An overview of the adversarial nature of a civil trial
Adversary system of trial
Tasks:
1. What is the 'adversary system' of trial also known as?
2. What are the five features of the adversary system of trial?
3. Explain the role of the parties
4. Explain the role of the judge
5. Burden and standard of proof
6. Rules of evidence and procedure
7. Need for legal representation
8. Copy the strengths and weaknesses table for the adversary system of trial
7. 'The adversary system of trial is an effective system of trial.' Evaluate this statement. 10 marks
1. What is the 'adversary system' of trial also known as?
2. What are the five features of the adversary system of trial?
3. Explain the role of the parties
4. Explain the role of the judge
5. Burden and standard of proof
6. Rules of evidence and procedure
7. Need for legal representation
8. Copy the strengths and weaknesses table for the adversary system of trial
7. 'The adversary system of trial is an effective system of trial.' Evaluate this statement. 10 marks
Role of the parties
In court, each party is responsible for presenting their case to the court. They will present evidence to either substantiate or refute the claim that forms the basis
Role of the judge
The role of the judge is to ensure that parties are dealt with fairly and consistently and inline with the strict rules of evidence and procedure outlined in the legislation of the courts.
Burden of proof
The burden of proving the facts in a civil case is on the plaintiff who brings the case to court.
Standard of proof
The standard of proof in a civil case is on the balance of probabilities.
Legal Representation
Legal representation is encouraged
In civil matters the name of the plaintiff is stated first. For example, in the case Day v Peach, Day is the plaintiff.
When citing or talking about a case, lawyers do not use the word 'versus', rather, they use the word 'and'.
In court, each party is responsible for presenting their case to the court. They will present evidence to either substantiate or refute the claim that forms the basis
Role of the judge
The role of the judge is to ensure that parties are dealt with fairly and consistently and inline with the strict rules of evidence and procedure outlined in the legislation of the courts.
Burden of proof
The burden of proving the facts in a civil case is on the plaintiff who brings the case to court.
Standard of proof
The standard of proof in a civil case is on the balance of probabilities.
Legal Representation
Legal representation is encouraged
In civil matters the name of the plaintiff is stated first. For example, in the case Day v Peach, Day is the plaintiff.
When citing or talking about a case, lawyers do not use the word 'versus', rather, they use the word 'and'.
Key Knowledge #6: Civil remedies and their purpose
Remedies in civil actions
Below is a comprehensive video based on Civil Remedies. It outlines the two types of remedies that are commonly used.
Key Knowledge #7: Difficulties faced by parties when attempting to resolve civil disputes.
Difficulties in gaining access to the law
1. Ignorance of the law and of legal assistance
2. Language barriers
3. Access to professional representation
Methods to help overcome barriers to the legal system
- Legal aid
- Law aid
- Other legal services
2. Language barriers
3. Access to professional representation
Methods to help overcome barriers to the legal system
- Legal aid
- Law aid
- Other legal services
Difficulty #1: Cost
Many Australians cannot afford a lawyer for anything beyond the simplest legal issues
It is impossible to plan for when many legal issues might arise. People don’t budget for legal fees for issues like marriage breakdown, unfair dismissal, eviction, discrimination, getting ripped off or debt problems. When legal issues arise, often the starting point is to look at paying for a lawyer. Unfortunately, most Australians would find it difficult to pay for a lawyer for anything but the most basic legal issues. Lawyers normally charge for their work on an hourly basis. So if a legal issue is more complex and takes longer to resolve, the lawyer’s fees will be higher. The rate per hour for a lawyer varies depending on factors like experience of the lawyer, whether they are in the city, the suburbs or the country, and the type of legal matter. As a guide, hourly rates can vary from around $200 an hour to more than $600 an hour.2 Accordingly, anything but the simplest legal matter is likely to cost thousands of dollars in legal fees and sometimes tens of thousands, and most lawyers will ask for a significant up front payment towards the likely costs.
Court costs
Many legal issues don’t involve court hearings and often, even where court proceedings are started, cases are settled before the final hearing and the court’s decision. So it can be difficult to estimate the cost of resolving some legal issues. However, it is clear that for any issue involving court, legal costs quickly extend beyond the reach of most Australians. For example, the Australian Government’s Attorney General’s Department estimated,3 based on previous studies, that the average cost for an individual undertaking a Federal Court case in 2007/08 would be around $74,000 - 84,000 with disbursements costing an additional $25,000. The Department estimated that the average legal costs including disbursements of bringing a Family Court case would be around $6,500 and the cost of bringing a case in the Administrative Appeal Tribunal would be around $7,300.
It is impossible to plan for when many legal issues might arise. People don’t budget for legal fees for issues like marriage breakdown, unfair dismissal, eviction, discrimination, getting ripped off or debt problems. When legal issues arise, often the starting point is to look at paying for a lawyer. Unfortunately, most Australians would find it difficult to pay for a lawyer for anything but the most basic legal issues. Lawyers normally charge for their work on an hourly basis. So if a legal issue is more complex and takes longer to resolve, the lawyer’s fees will be higher. The rate per hour for a lawyer varies depending on factors like experience of the lawyer, whether they are in the city, the suburbs or the country, and the type of legal matter. As a guide, hourly rates can vary from around $200 an hour to more than $600 an hour.2 Accordingly, anything but the simplest legal matter is likely to cost thousands of dollars in legal fees and sometimes tens of thousands, and most lawyers will ask for a significant up front payment towards the likely costs.
Court costs
Many legal issues don’t involve court hearings and often, even where court proceedings are started, cases are settled before the final hearing and the court’s decision. So it can be difficult to estimate the cost of resolving some legal issues. However, it is clear that for any issue involving court, legal costs quickly extend beyond the reach of most Australians. For example, the Australian Government’s Attorney General’s Department estimated,3 based on previous studies, that the average cost for an individual undertaking a Federal Court case in 2007/08 would be around $74,000 - 84,000 with disbursements costing an additional $25,000. The Department estimated that the average legal costs including disbursements of bringing a Family Court case would be around $6,500 and the cost of bringing a case in the Administrative Appeal Tribunal would be around $7,300.
Difficulty #2: Cultural and language diversity
Cultural and linguistic diversity is associated with low prior knowledge of the justice system and communication difficulties. Ineffective identification of a legal need was considered a major factor in the LAW Survey (Coumarelos et al., 2012) to explain underreporting of legal needs by respondents with a non-English first language. The survey also found that some members of the community are less likely to respond to an identified legal need, primarily due to higher barriers faced in accessing the justice system. High social exclusion, disadvantage and cultural difference in Indigenous Australians reduce access to the legal system and legal services (Parliament of Australia, 2004). In Victoria, Indigenous Australians presented twice as likely to experience multiple legal needs than non-Indigenous Australians (Coumarelos et al., 2012).
Difficulty #3: Aboriginal and Torres Strait Islander persons
Aboriginal and Torres Strait Islander persons
Despite comprising approximately three per cent of the Australian population, prisoners who identified as Aboriginal or Torres Strait Islander comprised 27% of the total prisoner population in Australia in 2013.2 Aboriginal and Torres Strait Islander prisoners may be unable to secure a fair and unbiased hearing due to cultural differences and a lack of familiarity with the British-based legal system. In some Aboriginal cultures, direct questioning is seen as discourteous. This, in turn, may lead police and the courts to view an accused with suspicion. Furthermore, in some Aboriginal cultures it is disrespectful to make direct eye contact, whereas in the Australian legal system a lack of eye contact may be seen as a sign of guilt.
Despite comprising approximately three per cent of the Australian population, prisoners who identified as Aboriginal or Torres Strait Islander comprised 27% of the total prisoner population in Australia in 2013.2 Aboriginal and Torres Strait Islander prisoners may be unable to secure a fair and unbiased hearing due to cultural differences and a lack of familiarity with the British-based legal system. In some Aboriginal cultures, direct questioning is seen as discourteous. This, in turn, may lead police and the courts to view an accused with suspicion. Furthermore, in some Aboriginal cultures it is disrespectful to make direct eye contact, whereas in the Australian legal system a lack of eye contact may be seen as a sign of guilt.
Difficulty #4: Living in rural locations
Geographic disadvantage
Remote, rural and regional areas The ABS defines ‘urban’ as a population centre of 1,000 or more people.
However, a measure based solely on the size of a population centre is not necessarily an accurate reflection of disadvantage in terms of access to justice.
The Accessibility/Remoteness Index of Australia (ARIA) project was sponsored by the Commonwealth Department of Health and Aged Care as an attempt to develop a standard classification and index of remoteness for the whole of the country. The ARIA classification has been widely accepted by a variety of users since its release in 1999. The ABS will be including ARIA related scores as part of the 2001 Census data releases.
ARIA calculates remoteness as accessibility to service centres based on road distances. Remoteness values for localities are derived from the road distance to service centres in four categories (a weighting factor is applied for islands). To create an associated classification, ARIA values are grouped into five categories:
1. Highly Accessible—relatively unrestricted accessibility to a wide range of goods and services and opportunities for social interaction.
2. Accessible—some restrictions to accessibility.
3. Moderately Accessible—significantly restricted accessibility.
4. Remote—very restricted accessibility.
5. Very Remote—very little accessibility of goods, services and opportunities for social interaction.
The question of remoteness and accessibility, like many other disadvantages, should be viewed in relative terms. For example, while residents of regional cities such as Wollongong and Newcastle have significantly greater access to services than those in small towns such as Cobar or Moruya, they are still relatively disadvantaged when compared to the range of services available in central Sydney. Š
In 1996 the State-wide percentage of low-income families was 20%. However, the proportion of low-income families in Sydney was only 16.6%. In non-metropolitan areas, the 71 Commonwealth Department of Health and Aged Care, Measuring remoteness: accessibility/remoteness index of Australia (ARIA), revised edition, Canberra, 2001, pp. 1,3. Social and economic disadvantage 37 proportion of low-income families was 26.5%.72 Newcastle (24.1%) and Wollongong (22.5%) also fell above the State-wide average. š
Access to justice issues
People living outside the Sydney metropolitan area face a range of physical access problems. This includes both lack of access to institutions such as courts and tribunals and lack of access to appropriate intermediaries and early intervention services. More remote areas are also more ‘technology poor’, and have less access to internet services and other on-line assistance. As noted above, many also suffer from other disadvantages that compound their geographic isolation.
Remote, rural and regional areas The ABS defines ‘urban’ as a population centre of 1,000 or more people.
However, a measure based solely on the size of a population centre is not necessarily an accurate reflection of disadvantage in terms of access to justice.
The Accessibility/Remoteness Index of Australia (ARIA) project was sponsored by the Commonwealth Department of Health and Aged Care as an attempt to develop a standard classification and index of remoteness for the whole of the country. The ARIA classification has been widely accepted by a variety of users since its release in 1999. The ABS will be including ARIA related scores as part of the 2001 Census data releases.
ARIA calculates remoteness as accessibility to service centres based on road distances. Remoteness values for localities are derived from the road distance to service centres in four categories (a weighting factor is applied for islands). To create an associated classification, ARIA values are grouped into five categories:
1. Highly Accessible—relatively unrestricted accessibility to a wide range of goods and services and opportunities for social interaction.
2. Accessible—some restrictions to accessibility.
3. Moderately Accessible—significantly restricted accessibility.
4. Remote—very restricted accessibility.
5. Very Remote—very little accessibility of goods, services and opportunities for social interaction.
The question of remoteness and accessibility, like many other disadvantages, should be viewed in relative terms. For example, while residents of regional cities such as Wollongong and Newcastle have significantly greater access to services than those in small towns such as Cobar or Moruya, they are still relatively disadvantaged when compared to the range of services available in central Sydney. Š
In 1996 the State-wide percentage of low-income families was 20%. However, the proportion of low-income families in Sydney was only 16.6%. In non-metropolitan areas, the 71 Commonwealth Department of Health and Aged Care, Measuring remoteness: accessibility/remoteness index of Australia (ARIA), revised edition, Canberra, 2001, pp. 1,3. Social and economic disadvantage 37 proportion of low-income families was 26.5%.72 Newcastle (24.1%) and Wollongong (22.5%) also fell above the State-wide average. š
- Indigenous Australians make up increasingly large proportions of the population as the location becomes more remote. They represent 1.2% of the population in highly accessible areas, but 32.8% of the population in very remote areas.š
- People living in very accessible areas had the highest rate of educational participation. As accessibility reduces, people are increasingly likely to have left school early, with 10% more early school leavers.
- In 1996, 214,444 children in non-metropolitan areas of NSW (54% of children in these areas) lived in families that received an income support payment.
- Non-metropolitan areas of NSW have considerably higher levels of unemployment than occurs in Sydney. This is evident for both males and females in every age group except those 65 and over. Youth unemployment is also significantly worse in non-metropolitan areas. Particularly high rates of unemployment occur along the north-east coast of NSW.
Access to justice issues
People living outside the Sydney metropolitan area face a range of physical access problems. This includes both lack of access to institutions such as courts and tribunals and lack of access to appropriate intermediaries and early intervention services. More remote areas are also more ‘technology poor’, and have less access to internet services and other on-line assistance. As noted above, many also suffer from other disadvantages that compound their geographic isolation.
Some supports
There is a system to help those who can’t afford a lawyer
Like the health system, with its mix of public and private hospitals, community health centres and Indigenous health services, the legal system involves public and private services working together to provide assistance.
People who can’t afford to pay for a lawyer can seek help from:
• Legal aid commissions;
• Community legal centres;
• Indigenous legal services; or
• Private lawyers acting pro bono.
Legal aid commissions
Legal aid commissions are state and territory statutory agencies. There are eight legal aid commissions in Australia. The commissions typically have a central head office and regional offices. Legal aid commissions provide free legal information, advice, duty lawyer and legal representation services. Due to funding shortages, eligibility for legal representation is limited predominantly to people with very low incomes and low assets who need help with serious criminal law matters, or child protection and family matters involving a child’s welfare or living arrangements. In some cases, a person may be required to contribute to the legal costs depending on their income and assets. If a person is eligible for legal representation, they may either be helped by a lawyer employed by the legal aid commission, or receive funds to pay for a private lawyer who does legal aid work. Legal aid commissions also deliver community legal education and undertake some law reform work.
Community legal centres
Community legal centres are independent, non-profit, non government organisations with a focus on early advice, problem solving and working with other agencies to address connected legal, financial, social and health problems. Community legal centres focus on helping people who don’t qualify for legal aid and mainly help people with civil and family law issues. Due to funding shortages, community legal centres focus on assisting disadvantaged Australians. Over 80 per cent of the people helped by community legal centres receive under $26,000 a year in income. As well as helping on individual issues, community legal centres provide community legal education to inform Australians about the law and prevent legal problems, and undertake law reform work to fix problems with the law. Thousands of lawyers and law students volunteer in community legal centres, and centres also receive substantial pro bono support from law firms.
Indigenous legal services
Aboriginal and Torres Strait Islander Legal Services (ATSILS) are independent, non-profit, non government bodies that provide culturally sensitive services to Aboriginal and Torres Strait Islander people. There are eight ATSILS around Australia with around 80 office locations. ATSILS mainly focus on criminal and family law issues. Due to funding shortages, they are forced to limit eligibility for help to those on low incomes. www.communitylawaustralia.org.au 7 15 National Legal Aid, Submission to Inquiry into Access to Justice, 2009, 15 16 Attorney-General’s Department, Strategic Framework for Access to Justice in the Federal Civil Justice System, 2009, 52 There is also a network of around 30 Indigenous family violence prevention legal services (FVPLS) around Australia which focus specifically on helping people who are victims of family violence or sexual assault. FVPLS provide legal assistance, court support and counselling. As well as helping on individual issues, ATSILS and FVPLS deliver community legal education and law reform work to fix problems with the law.
Private legal profession
The private legal profession helps people who can’t afford to pay for a lawyer in several ways. Some law firms do “legal aid work” where they are paid, at below market rates, by legal aid commissions to help people who are eligible for assistance. Law firms can sometimes help people who can’t pay up front, by agreeing to “no win no charge” or other deferred fee arrangements, mainly in personal injury claims or family law disputes over property. Private lawyers also make an important contribution through “pro bono work” - work for free for people who can’t otherwise get legal help. Many lawyers and law students also volunteer in community legal centres.
Like the health system, with its mix of public and private hospitals, community health centres and Indigenous health services, the legal system involves public and private services working together to provide assistance.
People who can’t afford to pay for a lawyer can seek help from:
• Legal aid commissions;
• Community legal centres;
• Indigenous legal services; or
• Private lawyers acting pro bono.
Legal aid commissions
Legal aid commissions are state and territory statutory agencies. There are eight legal aid commissions in Australia. The commissions typically have a central head office and regional offices. Legal aid commissions provide free legal information, advice, duty lawyer and legal representation services. Due to funding shortages, eligibility for legal representation is limited predominantly to people with very low incomes and low assets who need help with serious criminal law matters, or child protection and family matters involving a child’s welfare or living arrangements. In some cases, a person may be required to contribute to the legal costs depending on their income and assets. If a person is eligible for legal representation, they may either be helped by a lawyer employed by the legal aid commission, or receive funds to pay for a private lawyer who does legal aid work. Legal aid commissions also deliver community legal education and undertake some law reform work.
Community legal centres
Community legal centres are independent, non-profit, non government organisations with a focus on early advice, problem solving and working with other agencies to address connected legal, financial, social and health problems. Community legal centres focus on helping people who don’t qualify for legal aid and mainly help people with civil and family law issues. Due to funding shortages, community legal centres focus on assisting disadvantaged Australians. Over 80 per cent of the people helped by community legal centres receive under $26,000 a year in income. As well as helping on individual issues, community legal centres provide community legal education to inform Australians about the law and prevent legal problems, and undertake law reform work to fix problems with the law. Thousands of lawyers and law students volunteer in community legal centres, and centres also receive substantial pro bono support from law firms.
Indigenous legal services
Aboriginal and Torres Strait Islander Legal Services (ATSILS) are independent, non-profit, non government bodies that provide culturally sensitive services to Aboriginal and Torres Strait Islander people. There are eight ATSILS around Australia with around 80 office locations. ATSILS mainly focus on criminal and family law issues. Due to funding shortages, they are forced to limit eligibility for help to those on low incomes. www.communitylawaustralia.org.au 7 15 National Legal Aid, Submission to Inquiry into Access to Justice, 2009, 15 16 Attorney-General’s Department, Strategic Framework for Access to Justice in the Federal Civil Justice System, 2009, 52 There is also a network of around 30 Indigenous family violence prevention legal services (FVPLS) around Australia which focus specifically on helping people who are victims of family violence or sexual assault. FVPLS provide legal assistance, court support and counselling. As well as helping on individual issues, ATSILS and FVPLS deliver community legal education and law reform work to fix problems with the law.
Private legal profession
The private legal profession helps people who can’t afford to pay for a lawyer in several ways. Some law firms do “legal aid work” where they are paid, at below market rates, by legal aid commissions to help people who are eligible for assistance. Law firms can sometimes help people who can’t pay up front, by agreeing to “no win no charge” or other deferred fee arrangements, mainly in personal injury claims or family law disputes over property. Private lawyers also make an important contribution through “pro bono work” - work for free for people who can’t otherwise get legal help. Many lawyers and law students also volunteer in community legal centres.
Tasks: Page 304-307
1. Make notes on the various reasons people find it difficult to access the law
2. Complete the 'Apply your understanding'. Page 306
3. Find out (via the internet) what the supports are to address such issues.
1. Make notes on the various reasons people find it difficult to access the law
2. Complete the 'Apply your understanding'. Page 306
3. Find out (via the internet) what the supports are to address such issues.
Scenarios for Civil Disputes
The following are different civil scenarios. The following questions are relevant for each scenario:
1. What are all the things the injured party can do?
2. What would be the best process for them to follow and what does it involve?
3. Why is the chosen path a good choice?
Toxic Spill
A toxic spill case, where a farmer has his land contaminated by a neighbouring petrol station. When the gas station was having its underground tanks filled up, the pipe came loose and spilled gallons of petrol into a nearby stream on the farmer’s land that is used for drinking water and for watering his fields. The water in the stream is now contaminated. The petrol station claims it was a freak accident and does not feel responsible, while the farmer seeks redress for the damage and inconvenience he has suffered.
Fence Adrift
Two neighbouring farmers have until now had their valuable lands separated by a wooden fence. A violent storm recently destroyed the fence and the farmers want to mark the boundary between their properties with a row of trees. However, they cannot agree on where the property line should be. Each farmer has hired separate property surveyors, but due to a recent and unrelated fire, there are some missing documents in the local Records Office, making it impossible to determine exactly where the dividing line should be. Both farmers are very aware of how valuable every inch of the land is. Also both farmers are preparing to plant this season’s crops before the weather turns and need to know where the boundary is before they can go ahead with planting. Due to the economic downturn, each farmer is budget- conscious and does not want to spend a lot of money to resolve this dispute.
Bad Deli
A local company that makes cold-cuts and sandwich meats recently experienced bacterial contamination of one of its specialty products. Most customers who purchased and consumed the meat experienced no problems, but the elderly customers who at the meat contracted a serious disease and were hospitalized. The company has not had problems like this in the past, and has an otherwise good reputation. It wants to settle the issue with the elderly customers but does not want to be taken advantage of. The elderly customers do not want the issue to drag on because they do not have the time, money and energy to deal with a long process, but they “want justice”. Which process is best in this scenario and why? What does your process involve, how does it work and how will it be appropriate and a good choice in the circumstances?
1. What are all the things the injured party can do?
2. What would be the best process for them to follow and what does it involve?
3. Why is the chosen path a good choice?
Toxic Spill
A toxic spill case, where a farmer has his land contaminated by a neighbouring petrol station. When the gas station was having its underground tanks filled up, the pipe came loose and spilled gallons of petrol into a nearby stream on the farmer’s land that is used for drinking water and for watering his fields. The water in the stream is now contaminated. The petrol station claims it was a freak accident and does not feel responsible, while the farmer seeks redress for the damage and inconvenience he has suffered.
Fence Adrift
Two neighbouring farmers have until now had their valuable lands separated by a wooden fence. A violent storm recently destroyed the fence and the farmers want to mark the boundary between their properties with a row of trees. However, they cannot agree on where the property line should be. Each farmer has hired separate property surveyors, but due to a recent and unrelated fire, there are some missing documents in the local Records Office, making it impossible to determine exactly where the dividing line should be. Both farmers are very aware of how valuable every inch of the land is. Also both farmers are preparing to plant this season’s crops before the weather turns and need to know where the boundary is before they can go ahead with planting. Due to the economic downturn, each farmer is budget- conscious and does not want to spend a lot of money to resolve this dispute.
Bad Deli
A local company that makes cold-cuts and sandwich meats recently experienced bacterial contamination of one of its specialty products. Most customers who purchased and consumed the meat experienced no problems, but the elderly customers who at the meat contracted a serious disease and were hospitalized. The company has not had problems like this in the past, and has an otherwise good reputation. It wants to settle the issue with the elderly customers but does not want to be taken advantage of. The elderly customers do not want the issue to drag on because they do not have the time, money and energy to deal with a long process, but they “want justice”. Which process is best in this scenario and why? What does your process involve, how does it work and how will it be appropriate and a good choice in the circumstances?