Year 11 - Legal Studies - Home



The civil law in action: activities for Unit 2

Jenny Cas

Education consultant

The following classroom activities cover part of the key knowledge and key skills outlined in Area of Study 2 of VCE Legal Studies Unit 2. The activities allow students to apply and extend their knowledge of the role of the court hierarchy in civil disputes, the civil jurisdiction of courts in the Victorian court hierarchy, methods of civil dispute resolution, and difficulties faced by parties when attempting to resolve civil disputes.

Activity 1: Why do we have a court hierarchy?

Using the words from the list below, fill in the gaps to complete the following paragraph, which explains why we have a court hierarchy in Victoria.

|civil |precedents |complexity |

|specialise |followed |jurisdiction |

|appeal |money |common law |

The Victorian court hierarchy consists of various levels of courts with some courts having more power than others. The Magistrates’ Court sits at the bottom of the hierarchy followed by the County Court, then the Supreme Court. If a person doesn’t agree with a decision, they can _______________ to a higher court. Decisions made by higher courts have to be _______________ by courts below them. The courts higher in the hierarchy can establish _______________ that become binding on courts that are lower in the same hierarchy. This means that when a similar situation arises in the future, earlier decisions about the same matters can be used to determine the outcome. The record of precedents is known as _______________.

Victoria’s courts deal with both criminal and ______________ matters. Having a court hierarchy allows civil cases to be determined by an appropriate court, according to the _______________of the case and the amount of _______________ involved. Some courts _______________ in certain types of issues or areas of law, such as inquests and drug, family violence and family law matters, while the general courts handle different types of cases ranging in seriousness and complexity, depending on each court’s power or _______________ to hear and determine cases.

The Supreme Court sits at the top of Victoria’s court hierarchy and consists of two divisions: the Trial Division and the Court of Appeal.

Activity 2: Which court?

Use your textbook to help you determine which court would have civil jurisdiction to hear each of the following matters.

|Scenario |Which court? |

|Breach of a contract involving the sum of $80 000 | |

|A WorkCover compensation matter | |

|An appeal from a County Court civil case | |

|A complex breach of contract case involving $20 million | |

|A Native Title dispute | |

|A claim for personal injury caused by negligence when the | |

|amount claimed is $500 000 | |

|A building dispute involving $1.5 million | |

|A case involving interpretation of the Constitution | |

|An order for the protection of a young person aged 14 | |

|A divorce application | |

|A dispute involving a dividing fence between two properties | |

|An appeal from the Magistrates’ Court on a point of law | |

Activity 3: Difficulties faced by those trying to resolve civil disputes

There are a number of barriers and difficulties faced by people when trying to resolve civil disputes. Complete the following crossword, which highlights some of these difficulties:

Across

3. __________ can be a barrier if a person who is a party to a dispute cannot speak English.

5. __________ may not remember key evidence when events happened a long time ago.

7. __________ only works if all parties are willing to participate.

8. Some people are not aware of their __________ to pursue a civil action.

9. People can face financial __________ if they choose to pursue their claim.

10. The __________ __________ of legal proceedings can cause people to abandon their claims.

Down

1. Pre-trial procedures can cause long __________.

2. People may not be aware of the range of __________ available to resolve disputes and therefore may not seek assistance.

4. Collecting __________ can be a difficult process.

6. __________ a court order can be a difficult process if the other party chooses not to cooperate.

Activity 4: The impact of the Victorian Civil Procedure Act 2010

a. In the crossword above you identified some of the difficulties faced by people when trying to resolve civil disputes. State and federal governments have introduced new laws designed to address some of these problems. The laws aim to encourage methods of dispute resolution that don’t involve court proceedings because they are usually costly, stressful and slow.

Federally, the Civil Disputes Resolution Act 2011 (Cwlth) requires people to take ‘genuine steps’ to resolve a dispute before commencing proceedings in the Federal Court or the Federal Circuit Court (previously known as the Federal Magistrates Court). The Act also promotes a move away from an adversarial approach to litigation and encourages early dispute resolution. (The Federal Circuit Court was established in 2013 to handle the increasing workload of the Federal Court and the Family Court by hearing less complex cases. It now hears over 70 per cent of the applications filed in the federal courts. The word ‘circuit’ reflects the court’s role in regional areas and its broad Commonwealth jurisdiction in both family law and general federal law.)

At the Victorian level, the Civil Procedure Act 2010 (Vic.) aims to improve the civil justice system by encouraging early settlement of disputes, facilitating better communication and exchange of information, and improving the standards of conduct of lawyers, parties and others involved in litigation. Key reforms include introducing an overarching purpose for the courts, overarching obligations for participants in civil proceedings, and strengthening court powers in relation to managing cases.

Read the following extract from the Second Reading speech for the Civil Procedure Bill (now the Civil Procedure Act), which outlines the key principles of the legislation.

Using a pen, highlight the main problems the Attorney-General Rob Hulls identified as existing within the civil justice system in 2010.

In your own words, summarise these problems.

The Civil Procedure Bill 2010 will reform, modernise and unify the procedure for the conduct of civil litigation. Courts play an important role in adjudicating civil disputes … and that role should, of course, continue. But as a public resource, courts must be used responsibly. Parties should not abuse their right of access to the courts by unnecessarily tying up court resources, thereby preventing others from accessing justice. A well-resourced litigant should not be able to use their power to play tactical games and draw out litigation until the other party is forced into an unfair settlement or withdraws. This Bill will curtail such behaviour and arm the courts with the power to prevent such conduct.

Parties should be encouraged to resolve their disputes by agreement, and where they require court intervention, the Bill will ensure they adhere to appropriate standards of conduct. The result will be a more accessible civil justice system for those parties who need adjudication by the courts.

Very few of the cases that are lodged with the courts proceed to a final hearing. Most cases settle or are withdrawn prior to trial. However, the process to achieve resolution of civil matters that are started in the courts, including the cases that are settled before trial, is often unduly long and costly.

The current cost of litigation has reached a point where access to the civil courts is beyond the reach of most Victorians. Access to justice in the civil courts is not meaningful unless there are processes in place to facilitate the quick, just and inexpensive resolution of those disputes.

Source: Hansard, Second Reading speech for the Civil Procedure Bill, Legislative Assembly, Attorney-General Rob Hulls, 24 June 2010

b. Some of the key features of the Victorian Civil Procedure Act 2010 are listed below:

• The Act aims to change the culture of litigation so that parties make all attempts to resolve their dispute prior to commencing court proceedings.

• One of the purposes of the Act is to ‘facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’.

• In Part 2.3 of the Act, 10 ‘overarching obligations’ are imposed on parties. This part of the Act also says that there is a ‘paramount duty’ that applies to those involved in court proceedings. This is a ‘paramount duty to the court to further the administration of justice in relation to any civil proceeding in which that person is involved’.

• Before commencing court proceedings, the parties to a matter or their representatives are required to sign a certificate stating that they have read and understood each of the overarching obligations and the paramount duty to the court.

• The court has power to make orders against parties who contravene the overarching obligations.

i. Read each of the overarching obligations listed in the Act on the following web page:

ii. Copy and then complete the following table with a partner.

|Overarching obligation |How this aims to improve the civil justice system |

|1 | |

|2 | |

|3 | |

|4 | |

|5 | |

|6 | |

|7 | |

|8 | |

|9 | |

|10 | |

iii. How effective do you think the Civil Procedure Act will be in addressing the problems noted by Attorney-General Hulls?

iv. What limitations might exist to reforming and improving the civil justice system?

Activity 5: Key features of methods of dispute resolution

With a partner, copy and then complete the following table by outlining the key features of each of the methods of dispute resolution listed. You may need to refer to your textbook to help you.

|Dispute resolution method |Key features |

|Mediation | |

|Conciliation | |

|Arbitration | |

|Negotiation | |

|Collaborative law | |

|Judicial determination | |

Activity 6: Strengths and weaknesses of each method of dispute resolution

Your teacher will divide the class into six small groups, and allocate your group one method of dispute resolution. In your group, complete the following activities.

a. Discuss and explain the circumstances in which your chosen method of dispute resolution would be most appropriate to use.

b. Evaluate the effectiveness of your allocated method of dispute resolution.

c. Give a brief presentation to the class outlining the circumstances in which your method of dispute resolution would be best used, the strengths and weaknesses of your chosen method, and an evaluation of its effectiveness.

Activity 7: Bodies that can assist with dispute resolution

Neighbourhood Justice Centre (NJC)

a. Explore the Neighbourhood Justice Centre’s website:

i. Who is eligible to use the services provided by the Neighbourhood Justice Centre?

ii. What services does the centre provide in relation to civil law?

iii. What do you think are the benefits of using these services?

iv. Can you identify any barriers (disadvantages) to using these services? Explain your answer.

Dispute Settlement Centre of Victoria (DSCV)

b. Read the ‘About Us’, ‘Services’ and ‘FAQs’ sections of the DSCV website:

i. What services does DSCV offer?

ii. How much does it cost to use these services?

iii. What do you think are the benefits of using these services?

iv. Can you identify any barriers (disadvantages) to using these services? Explain your answer.

Victorian Civil and Administrative Tribunal (VCAT)

c. Read the following web page:

i. What types of civil disputes can the Civil Claims List of VCAT hear?

ii. Read the following web pages:

•

•

Define the term ‘alternative dispute resolution’ (ADR) and identify the main types of ADR.

iii. Refer to the following web page:

How is ADR used at VCAT?

iv. Read the following guide to mediation at VCAT:

What do you think are the strengths of the mediation process at VCAT?

v. What do you think are some of the weaknesses of the mediation process at VCAT?

Institute of Arbitrators and Mediators

d. Read the following web page:

i. What is arbitration?

ii. When is it most likely to be used?

iii. What are the benefits of arbitration?

iv. Can you identify any disadvantages of using arbitration to resolve disputes? Explain your answer.

Mediation is a form of dispute resolution that involves a third party assisting the parties to negotiate a settlement.

Activity 8: Which method of dispute resolution?

a. Divide into small groups. For each of the following scenarios:

• explain which method of resolving the dispute would be most appropriate. Give reasons for your answer

• explain one strength and one weakness of your chosen method.

Scenario 1

Ed has contracted mesothelioma, a disease caused by exposure to asbestos dust. He is suing the manufacturers of the asbestos in the Supreme Court of Victoria, but only has months left to live.

Scenario 2

Dharma’s neighbour has three dogs that bark frequently all day and night, often waking her at

5 am in the morning. She is becoming stressed and tired, but wants to maintain a good working relationship with her neighbour.

Scenario 3

Daniel’s friend Serena owes him $12 000. He lent the money to her on the understanding it would be repaid within a month. He has tried contacting Serena numerous times to suggest a mediation session to resolve this matter, but she has not returned his calls and has moved house to avoid him. It is now a year later and he is tired of waiting.

Scenario 4

A major dispute has arisen in relation to a commercial building contract entered into by Box Constructions and Higher Ground. Both parties are losing thousands of dollars. The contract has a compulsory arbitration clause in it.

b. Continue working in your group. Select one of the scenarios above and write a script for a short role-play that demonstrates your chosen method of resolving the dispute.

Activity 9: Extended response

Complete an extended response to the following statement:

‘Alternative methods of dispute resolution, such as arbitration, conciliation, mediation and negotiation are not as effective as judicial determination in resolving disputes.’ Do you agree? Justify your answer.

Write your response in complete paragraphs. Include a description and evaluation of each method of dispute resolution, and provide an overall response to the statement above.

Teacher notes

Suggested answers to selected questions

Activity 1: Why do we have a court hierarchy?

The Victorian court hierarchy consists of various levels of courts with some courts having more power than others. The Magistrates’ Court sits at the bottom of the hierarchy followed by the County Court, then the Supreme Court. If a person doesn’t agree with a decision, they can appeal to a higher court. Decisions made by higher courts have to be followed by courts below them. The courts higher in the hierarchy can establish precedents that become binding on courts that are lower in the same hierarchy. This means that when a similar situation arises in the future, earlier decisions about the same matters can be used to determine the outcome. The record of precedents is known as common law.

Victoria’s courts deal with both criminal and civil matters. Having a court hierarchy allows civil cases to be determined by an appropriate court, according to the complexity of the case and the amount of money involved. Some courts specialise in certain types of issues or areas of law, such as inquests and drug, family violence and family law matters, while the general courts handle different types of cases ranging in seriousness and complexity, depending on each court’s power or jurisdiction to hear and determine cases.

Activity 2: Which court?

|Scenario |Which court? |

|Breach of a contract involving the sum of $80 000 |Magistrates’ Court |

|A WorkCover compensation matter |County Court |

|An appeal from a County Court civil case |Supreme Court – Court of Appeal |

|A complex breach of contract case involving $20 million |Supreme Court |

|A Native Title dispute |Federal Court |

|A claim for personal injury caused by negligence when the |County Court or Supreme Court, but the parties would probably |

|amount claimed is $500 000 |choose the County Court as it will cost less |

|A building dispute involving $1.5 million |County Court or Supreme Court but the parties would probably |

| |choose the County Court as it will cost less |

|A case involving interpretation of the Constitution |High Court |

|An order for the protection of a young person aged 14 |Children’s Court |

|A divorce application |Family Court |

|A dispute about a dividing fence between two properties |Magistrates’ Court |

|An appeal from the Magistrates’ Court on a point of law |Supreme Court |

Activity 3: Difficulties faced by those trying to resolve civil disputes

Across

3. language

5. witnesses

7. mediation

8. rights

9. difficulties

10. high cost

Down

1. delays

2. avenues

4. evidence

6 enforcing

Activity 8a: Which method of dispute resolution?

Scenario 1

Ed has contracted mesothelioma, a disease caused by exposure to asbestos dust. He is suing the manufacturers of the asbestos in the Supreme Court of Victoria, but only has months left to live.

Mediation would be the most appropriate form of dispute resolution. It would probably take place in the form of pre-trial conference in an effort to reach a speedy resolution so that Ed can enjoy the remaining months of his life. In this situation, the strength of mediation would be the ability to reach a quick settlement and avoidance of a stressful court case for an ill plaintiff. The main weakness of mediation is that it only works if all parties are willing to participate.

Scenario 2

Dharma’s neighbour has three dogs that bark frequently all day and night, often waking her at 5 am in the morning. She is becoming stressed and tired, but wants to maintain a good working relationship with her neighbour.

Negotiation would be the best method to try first, in order to maintain good relations with the neighbour. This would involve Dharma approaching the neighbour in a calm manner and explaining the impact that the dogs’ barking is having on her, and trying to decide on an agreed course of action. This is a non-confrontational and informal way of resolving the dispute. On the negative side, there is no guarantee that the neighbour will act on Dharma’s complaint. If attempts at negotiation are unsuccessful, mediation through the Dispute Settlement Centre of Victoria would probably be the next step. This is a free service but will not be effective if the neighbour is not willing to participate in the process.

Scenario 3

Daniel’s friend Serena owes him $12 000. He lent the money to her on the understanding it would be repaid within a month. He has tried contacting Serena numerous times to suggest a mediation session to resolve this matter, but she has not returned his calls and has moved house to avoid him. It is now a year later and he is tired of waiting.

If Daniel has made numerous attempts to contact Serena to resolve the matter, but has been unsuccessful, he may need to lodge legal proceedings in the Magistrates’ Court to recover the debt. As part of the process, there will be a compulsory pre-trial conference, which would operate somewhat like a mediation session. This process may be enough for Serena to agree to repay the money borrowed. The disadvantage of this option is that it costs money to start legal proceedings, and it could still be a long process to recover the money from Serena if she does not cooperate with the court process.

Scenario 4

A major dispute has arisen in relation to a commercial building contract entered into by Box Constructions and Higher Ground. Both parties are losing thousands of dollars. The contract has a compulsory arbitration clause in it.

This matter would be referred to arbitration, which is where an independent third party determines the dispute for the parties. The process may be conducted similar to a court action, with witnesses being called and each party having an opportunity to put its case, but it is cheaper and quicker because the parties are not reliant on court timelines and processes. The result of arbitration is referred to as an ‘award’, which is binding on the parties and enforceable, just like a court judgement. The major disadvantage of this process is the cost, as parties usually use lawyers to prepare and present their case.

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