Area of Study 1 Resolution Bodies &

MethodsUnit 4 Resolution & Justice

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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 278-283“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 Skills

define key legal terminology and use it appropriately;

discuss, interpret and analyse legal information;

justify the existence of a court hierarchy in Victoria;

describe the jurisdiction of specific courts within the Victorian court hierarchy; and

compare and evaluate the strengths and weaknesses of dispute resolution methods and 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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Courts

VCAT

DISPUTE RESOLUTION

BODIES

Victorian Court Hierarchy

Jurisdiction

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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

Appeals

Specialisation

Administrative convenience

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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 establishes a precedent that is to be followed in the future.

This system provides predictability and consistency in that similar cases are treated in a similar manner.

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.

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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.

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Specialisation

The court hierarchy allows courts 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.

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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.

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Problems with a court hierarchy

It would be easier if all court hearings were in the same place

Each court requires administration

Currently the courts are structured so the more-experienced judges hear the more complicated cases

The system of appeals depends on there being a higher court to appeal to

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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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Evaluation

Having one court may reduce some of these problems, but would create difficulties and delays when mixing minor cases with more complex issues

Overall, while some problems exist, the court hierarchy works well and should be retained

Original & Appellate Jurisdiction of the Victorian Court Hierarchy

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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• Issuing warrants

• None

Civil • Claims up to $100,000 •<10,000 go to arbitration

• None

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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)• One judge and a jury of 12 for not guilty plea

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

Civil • Unlimited• Before an option jury of 6, otherwise judge alone

• None, except under a specific Act

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Supreme Court (Trail Division) 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• One judge and a jury of 12 when not guilty plea

• Appeals on questions of law from the Magistrates’ Court

Civil • Unlimited • 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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Supreme Court (Appeals Division)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

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

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Structure of VCAT

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Role of VCAT

Low cost - VCAT provides a low cost avenue of dispute resolution for small civil disputes. It can do this as there is only a nominal fee and there is generally no need for legal representation.

Timely manner - It is able to resolve disputes in a timely manner (generally less than a day) which reduces the stress caused by delays in the court system.

Less formal, more accessible - VCAT is less formal and more accessible than the courts as VCAT is not bound by strict rules of evidence and procedure. This increases access for ordinary people and ensures that more people are able to have their disputes resolved.

Expert bodies - VCAT is able to provide expert bodies as it has a number of specialised lists that develop expertise in a particular area of the law. Each list is staffed by VCAT members who have expertise in the

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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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Operation of VCAT

Dispute Resolution Methods Mediation, Conciliation, Arbitration & Judicial Determination

Used by courts and VCAT

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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

Mediation is a cooperative method of resolving disputes and is widely used by courts, tribunals and other dispute resolution bodies.

In mediation, the parties negotiate with the help of one or two trained mediators, who are neutral and impartial. Parties may bring support people or representatives with them to mediation; lawyers may be permitted in some instances.

The mediator facilitates discussion and ensures both parties are being heard however, the mediator does not suggest ways to resolve dispute.

Decisions reached in mediation are not binding, however in most situations of mediation a deed of settlement is drawn up. This deed of settlement is enforceable through the courts.

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Conciliation

Conciliation is a cooperative method of dispute resolution. It is similar to mediation in that the parties to the dispute negotiate with the help of a trained conciliator.

However, in conciliation the conciliator exercises greater influence over the outcome than a mediator.

The conciliator suggests options and possible solutions and usually has specialist knowledge.

Decisions reached in conciliation are not binding, although decisions reached this way are normally followed.

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Arbitration

Arbitration is a method of resolving disputes without the formal court process.

An independent arbitrator will listen to both sides, help the parties negotiate and if necessary, make a decision that is binding on the parties.

It is more formal than conciliation and mediation but not as formal as a court hearing.

It may be compulsory arbitration, such as in the Magistrates’ Court or parties may have previously agreed to settle their dispute by arbitration. It is mainly used in commercial disputes.

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Judicial Determination

Judicial determination refers to dispute resolution processes which involve the parties to the case presenting arguments and evidence to a judicial officer, such as a judge, magistrate or member of VCAT, who then makes a legally binding decision.

Parties able to present evidence, question witnesses and make submissions.

Cases are conducted with strict rules of evidence and procedure, burden and standard of proof and legal representation is generally required.

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

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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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Evaluation of Alternative Dispute Resolution (ADR)

Much less formal than court processes, as strict rules of evidence and procedure are not followed and it is therefore less likely to be intimidating for parties. However, if parties are not of equal bargaining power one party may exert influence over the other or

one party may compromise too much which may lead to an unfair result.

Faster and cheaper than litigation - due to lower fees and generally no need for legal representation. This allows more people to have their disputes resolved in a timely manner. This increases access and reduces the burden on the courts However, if a decision cannot be reached the matter may still need to go to court which increases

costs and delays the final resolution.

Not adversarial as parties come to an agreement themselves. They are therefore more likely to abide by the decision and be satisfied with the outcome rather than having a decision imposed by a court where one party will feel like they have lost. However, as the agreement reached is not binding (except arbitration) it cannot be ensured that the

parties will honour the decision. Furthermore, one party may compromise too much because he or she is trying to cooperate as much as possible.

ADR is confidential, unlike a court, where proceedings are usually on the public record. This may be more suitable for sensitive disputes such as divorce, or for commercial disputes. Furthermore, ADR focuses on the future relationship of the parties rather than assigning blame. However, ADR may not be appropriate if there is animosity between the parties, and as it is voluntary,

it cannot be assured that both parties will attend.

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Pros & Cons of Judicial Determination

Strengths Weaknesses

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 Judicial Determination

Legally binding - The decision reached is binding and enforceable through the courts. This provides certainty to the parties about what the outcome of their case is. However, the decision may be appealed against, which will increase costs and delays. Furthermore, it is a

win-loss situation, so one party may feel dissatisfied with the decision.

Greater formality - Parties may be more comfortable with the greater formality of judicial determination (particularly for more serious cases). Strict rules of evidence and procedure ensure that both parties have an equal chance to present their case and that it is appropriate for all types of disputes (both criminal and civil). However, the greater formality of judicial determination may be intimidating for some parties and may

lead to an unjust outcome if witnesses appear nervous or say something misleading. The strict rules of evidence and procedure mean that legal representation is usually required which will increase the costs involved.

Experienced legal professionals - Judicial officers are experienced legal professionals with expertise in the law. This ensures they are able to resolve cases efficiently and effectively and that the right result is generally reached. However, judicial determination is usually expensive due to high court fees and the need for legal

representation. This reduces access for people with limited financial means and may lead to an unfair outcome if one party is poorly represented.

Suitable for all types of cases – Judicial determination is suitable for all types of disputes (both criminal and civil). Furthermore, it is suitable where there is animosity between the parties, or when the parties desire a legally enforceable decision. However, as the final decision will usually be a win to one party and a loss to the other, this can lead to

one of the parties feeling dissatisfied with the decision.

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

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Pros & Cons of the courts

Strengths Weaknesses

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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Evaluation of the courts

Can hear all types of cases – Courts can hear both criminal and civil cases as opposed to VCAT and ADR which are only suitable for small civil disputes. Courts are adversarial and suitable when there is animosity between the parties due to the adversarial nature and decisions made are binding. However, the adversarial nature may increase tension between the parties as one party wins and

the other loses.

More formal - Strict rules of evidence and procedure ensure that all parties are treated in a fair manner. Legal representation ensures both parties are represented equally and are able to argue their case to their best ability. However, the formality of the courts may be intimidating for some parties. In addition, high court

fees and the need for legal representation are expensive which reduces access for people with limited financial means. Furthermore, the outcome may depend on how good the lawyer is.

Legally binding - This may be suitable if there is animosity between the parties or when they need there to be a legally enforceable outcome to the case. However, the adversarial nature of the courts may actually increase animosity between the parties

and increase the stress involved. Furthermore, court decisions create a win-loss situation where one party will feel disappointed.

Juries – In the courts you are able to have a trial by one’s peers for indictable offences and optional for civil cases. This ensures the courts reflect community values as opposed to VCAT where decisions are made by the sitting member. However, juries increase costs and delays involved in going to court and juries may be influenced

by personal biases or the media. This may lead to an unfair result.

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Pros & Cons of VCAT

Strengths Weaknesses

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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Evaluation of VCAT

Much less formal than the courts - due to the lack of strict rules of evidence and procedure. This is much less intimidating for the parties and increases access which allows more people to have their dispute resolved. However, parties may feel influenced into accepting a decision they are not satisfied with. Tribunals are

not suitable for large civil claims or where there is animosity between the parties.

Timely resolution – VCAT is able to resolve dispute much faster than the courts. Generally disputes are resolved by VCAT in less than a day, as opposed to the courts which can often take months to resolve a dispute. This reduces the stress involved in parties not knowing the outcome and reduces the costs involved. However, VCAT decisions can be appealed to the courts, which would further increase the delays and costs

involved. If this occurs, the parties may have been better off going straight to the courts in the first place.

Low cost – VCAT provides low cost dispute resolution due to lower fees and generally no need for legal representation. This increases access to the legal system and enables more people to afford to have their disputes resolved. Additionally, if disputes can be resolved in VCAT, this reduces the burden on the courts and allows more people to have their cases heard there. However, costs may escalate if the parties have legal representation or the matter is appealed to the

courts.

Less adversarial than the courts - Parties are encouraged to come to an agreement themselves. This means they are more likely to abide by the decision and be satisfied with the outcome. If parties cannot reach a compromise, a binding decision can be made. However, parties may prefer the adversarial nature of court if there is anger and animosity towards the

other party. Courts are more suitable for criminal cases and large, complex civil claims.

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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

MacDonald. T, 2014, Revision Booklet