VCAT and CAV comparison PDF

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LEGAL STUDIES UNIT 3

Focus on Consumer Affairs Victoria and VCAT GABRIELLE WILSON | TOORAK COLLEGE REBECCA WRIGHT | COBURG HIGH SCHOOL

Area of Study 2 in VCE Legal Studies Unit 3 focuses on the Victorian civil justice system. The following tasks examine the purposes and appropriateness of Consumer Affairs Victoria and the Victorian Civil and Administrative Tribunal in resolving disputes, and the methods used to resolve civil disputes. The tasks include links to relevant websites and online articles. Access to the Internet is required to complete some of the tasks. The Victorian civil justice system contributes to the social wellbeing of the community by contributing to social stability and the maintenance of the rule of law. It aims to help people solve their problems before they become disputes, but if they do, to resolve them as efficiently as possible and without unnecessary delays. It also aims to ensure that people are treated fairly and have equal access to justice, regardless of their personal or financial circumstances or background. A primary aim of the civil justice system is to restore people to the position they were in originally prior to the occurrence of the breach of civil law. The civil justice system in Victoria consists of a number of institutions including courts, complaints bodies and tribunals. The courts include the Magistrates’ Court, County Court and Supreme Court. One of Victoria’s major complaints bodies is Consumer Affairs Victoria, which aims to ensure that consumer protection laws are properly enforced. Victoria’s largest tribunal is the Victorian Civil and Administrative Tribunal (VCAT), which deals with a wide range of everyday legal issues and provides a quicker and easier way of resolving disputes compared with the court system.

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TASKS Use the following web pages on the Consumer Affairs Victoria and VCAT websites to complete the questions and tasks on pages 3–9.

Consumer Affairs Victoria https://www.consumer.vic.gov.au https://www.consumer.vic.gov.au/about-us/who-we-are-and-what-we-do/our-role-scope-andpolicies https://www.consumer.vic.gov.au/about-us/regulatory-approach-and-compliance-policy https://www.consumer.vic.gov.au/about-us/regulatory-approach-and-compliance-policy/ourcompliance-policy https://www.consumer.vic.gov.au/about-us

The Victorian Civil and Administrative Tribunal https://www.vcat.vic.gov.au https://www.vcat.vic.gov.au/about-vcat https://www.vcat.vic.gov.au/about-us/our-structure https://www.vcat.vic.gov.au/about-us/koori-inclusion-at-vcat https://www.vcat.vic.gov.au/case-types

Victoria’s largest tribunal is the Victorian Civil and Administrative Tribunal, which deals with a wide range of everyday legal issues.

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Task 1: Comparing Consumer Affairs Victoria and VCAT Using your textbook and the references on page 2, complete the following table. F e a t u r e

Co n s u me rAffa i r sVi c t o r i a

Ro l e( wh a t d o e si t d o ? ) : Wh e nwa si t c r e a t e d ? Wh a t s e r v i c e sd o e si t p r o v i d e ? Wh od o e si t p r o v i d e s e r v i c e sf o r ? Do e si t h a v el i n k swi t ht h e c o u r t so ro t h e ra g e n c i e s ?

- Reviews and advises the state government on consumer legislation and industry codes - Advises and educates consumers, tenants, business and landlords - Conciliates disputes between consumers and traders, and tenants and landlords

VCAT - Established by the Victorian Civil and Administrative Tribunal Act 1988 - Apply the relevant law when hearing a case. Only hear cases when a law gives them authority - Answer queries about whether VCAT can assist with your cas/dispute - Info about VCAT processes

- Enforces and ensures compliance with consumer laws

- Guidance about appropriate forms, fees and sources of further info - Assistance with application forms - Referral to appropriate contacts for other agencies relevant to enquiry - Is supported by Court Services Victoria, which provides administrative support and facilities to Victorian courts and VCAT

Pu r p o s e( wh yd o e si t d o wh a t i t d o e s ? ) Wh ywa si t c r e a t e d ? Do e si t h a v eami s s i o n s t a t e me n t ?

Purpose is to help Victorians be responsible and informed businesses and consumers. To prevent harm to consumers and businesses. To ensure the law is clear, keeps pace with changing markets and does not impose unnecessary red-tape. Goals:

- Purpose is to help people resolve disputes under the Victorian Civil and Administrative Act 1998 - And make it as fast and affordable as they can - Provides various alternatives to resolve a dispute (mediation, hearing)

- Businesses are compliant with consumer laws - Victorians exercise their consumer rights - A fair and safe rental market for Victorians - A modern and effective consumer law framework - A sustainable and innovative regulator T y p e sofd i s p ut e si td e a l s wi t h( p o we rt oh e a r c a s e s )

- CAV is able to pursue action in the Commonwealth jurisdiction under

- Hears and decides civil and administrative legal cases in the State of Victoria,

F r o mwh e r ed o e si t g e t i t s

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p o we rt os e t t l ed i s p u t e s ? Wh a t t y p e so f d i s p u t e sc a n i t h e l pt or e s o l v e ? Wh a t t y p e so f d i s p u t e sf a l l o u t s i d ei t sj u r i s d i c t i o n ?

the Australian Consumer Law Act. - Advise and assist on topics including renting and accommodation, estate agents, building, shopping and trading

- DOES NOT provide legal information

- Civil and criminal cases are rarely handled, especially if it is ongoing

- Owners corporations: Fees and management disputes, breaches of the Act, changes to subdivision plans, supply of service and some neighbourhood disputes

- They do not act on one-off, isolated events of low detriment - Matters that are more effectively dealt with by another agency - Matters of individual redress that are better dealt with between parties through a private right of action/under industry dispute resolution option: requires a binding decision/cost involved in taking action/high public profile is required of matter/a more severe penalty is required Structure and organisation Does it have specific lists or areas of specialisation? How does this affect access to the institution?

Australia

Peak refers to cases which CAV undertake the least. Mainly helps resolves dispute by providing education, advice etc. This affects access to this institution as individuals would have to resort to a tribunal or court to resolve their matter if the other party is failing to comply.

- Planning, goods and services, guardianship, renting

- Renting a home: disputes between tenants and landlords - Goods and services: about purchase or supply of products/services - Guardianship and Powers of Attorney: VCAT can appoint a guardian/ administrator Guardian makes personal lifestyle decisions for a person with a disability. Administrator makes financial and property decisions for a person with disability. The president and vice presidents (13 judges) are responsible for management and administration of certain disputes under the Act. Has 5 divisions: - Each are led by a deputy president - Chief executive office oversees the administration executive and registry functions that enable the divisions to do their work 1. Administrative division Deals with professional conduct inquiries and applications from people seeking review of decisions made by government and out authorities. Lists: - Legal practice - Review and Regulation 2. Civil division Hears and determines a range of civil disputes relating to: Consumer matters

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Domestic building works Owners corporation matter Sale and ownership of property Use or flow of water between properties. Lists: - Civil claims - Building and property - Owners corporations 3. Human rights division Deals with matters such as: Guardianship and administration Power of attorney Medical treatment and advance care directives Equal opportunity Racial and religious vilification Health and privacy information The Disability Act 2006 (Vic) Decisions made by the Mental Health Tribunal Lists: - Guardianship - Human rights 4. Planning and Environment division Deals with reviews of decisions made by councils and other authorities. Lists: - Planning and Environment 5. Residential Tenancies Division Deals with matters involving: Residential tenants and landlords Rooming house owners and residents The Director of Housing and public housing tenants

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Caravan park owners and residents Site tenants and site owners Lists: - Residential Tenancies Appropriateness of using this institution What factors should be taken into consideration when selecting to use this institution?

- Is there a likely breach of legislation they administer or a failure to comply with legal obligations? - Is the enquiry better handled by another jurisdiction or regulator? - Has the consumer attempted to appropriately resolve the matter themselves?

Whether matter is more appropriate to be heard in court. Whether the individual has attempted to resolve the matter before taking this matter to VCAT. If individual is able to resolve the dispute on their own.

- Does the consumer detriment justify our involvement? - Is the consumer vulnerable or disadvantaged? - Are there other better ways to deal with the issue? - Has the issue already been dealt with by us or VCAT? - Is the issue reasonably likely to be resolved? How does it uphold the principles of justice? (Include any barriers to achieving justice) • fairness • access • equality

Fairness: Allows parties to have discussions without resorting to court or a tribunal to avoid any prejudice being present Conciliation: non-binding agreement. Occurs based on specific legislative provisions and case complexity.

Equality: Both parties are treated the same despite their personal characteristics or attributes and their position in court. (Koori Court) Fairness: Independent tribunals, thus, impartial processes, both parties are treated fairly. (Koori Court) Efficient, relieves stress associated with lengthy hearings.

Informal discussions even can be over the phone-timely resolution. Parties participate out of their own free will Access: Provide a range of support services: Thus, promotes fairness as it relieves any stress or fear either party may have if having to go to court as they may be too intimidated to produce evidence and could achieve resolution being reached in a timely manner rather than taking the matter to court/tribunal. As they are able to have control over the outcome in which they both agree to, increasing the likelihood of both parties to comply with it.

- Interpreters - Hearing loops - Video and telephone links - Security - Koori Court

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Equality:

- Is at a low cost and is easily accessible

Informal discussions ensure that there is no prejudice present. Ensuring that both parties are treated equally before the law. All individual’s consumer rights are protected despite their personal characteristics or attributes or financial circumstances. As CAV provides a costeffective dispute resolution. Access: Director has the power to educate and inform people on fair trading issues (public notification of the commencement of court proceedings or the outcomes of proceedings) Are able to provide dispute assistance through various ways, such as face-to-face channels and the telephone. Allows a wider range of individuals to access this institution, in whichever way is best for them. They provide dispute assistance by informing them of their consumer rights and information under the legislation they administer, including the most vulnerable and disadvantaged. Thus, allowing a wider range of individuals to have a better understanding and therefore, access to the civil justice system despite their socioeconomic status.

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Task 2: Civil dispute resolution methods a. The following methods are used to resolve civil disputes:  negotiation  mediation  conciliation  arbitration  litigation. Using your textbook and/or the references below, explain these methods.

References Legal Aid: https://www.legalaid.vic.gov.au/find-legal-answers/courts-and-legalsystem/dispute-resolution NSW Government: http://www.courts.justice.nsw.gov.au/Pages/cats/courtguide/alternate_dispute_resolution/t ypes_adr/types_adr.aspx LegalVision: https://legalvision.com.au/5-ways-resolve-dispute-contractor/ Justice Education Society: http://www.adminlawbc.ca/sites/default/files/docs/disputeresolution-options.pdf b. Using your textbook, compare the strengths and weaknesses of the following methods of dispute resolution by completing the table below. Dispute resolution method Negotiation

Strengths -

Most efficient way to settle a dispute with the least impact on your business

-

Cost-effective, save time and emotional stress

-

Can be arranged quickly

Weaknesses

Involves people in dispute communicating directly, either by speaking or in writing, to try to reach an agreement.

Mediation

When an impartial person (a mediator) helps people to negotiate with each other to resolve their dispute. Can be used when individuals have a clear conflict with

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-

Decision is nonbinding may not be followed

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each other.

Conciliation

-

Take place in private, details aren’t made public

-

Informal setting and atmosphere results in more productive communication between parties

-

Helps separate people from the problem, relationships are usually preserved after settlement is reached

-

Mediator is impartial

-

Facilitates dispute between parties, does not reach a decision

-

Parties have control over outcome

-

Conciliator is impartial and has some professional expertise in the subject matter in dispute and can adivse parties of their rights and obligations

-

Decision is nonbinding, may not be followed

-

Less expensive and formal than court proceedings

-

Less control over resolution of a dispute

A process in which the people in dispute try to reach an agreement with the assistance and advice of an impartial person (a conciliator)

Arbitration

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A formal process in which people in the dispute present their case to an independent third person (the arbitrator) and are bound by that person’s decision.

Litigation

-

Requires consent from both parties

-

Arbitrator is independent

-

Binding decision, parties must follow it

-

Parties can choose how to carry out the process

-

L a wy e ri sa b l et oa d v i s e y o uo nt h es t r e n g t h so f y o uc a s ea n dh o wt o p r e s e n t y o up o s i t i o na n d e v i d e n c e

A way if resolving disputes formally using the courts and solicitors.

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-

Time consuming

-

Other party may have a lawyer and you may not

-

Expensive

-

No guarantee that you will be successful

-

Little control over outcome/decision

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c. When deciding how to resolve a civil dispute you need to first know the options that are available. Other factors, such as those listed in the following table, also need to be considered when deciding on the most appropriate method to resolve a dispute. Complete the following table by describing how each factor applies to different methods of civil dispute resolution. Add to the table any other relevant factors. Factor

How the factor applies to particular dispute resolution methods

Cost

Co n s u me r Aff a i r sVi c t o r i ap r o v i d e si n f o r ma t i o na n da d v i c et o b u s i n e s s e s , c o n s u me r s , l a n d l o r d sa n dt e n a n t sa t n oc o s t . T h u s p r o mo t e sa c c e s s .

V CA Th e a r sa n dd e t e r mi n e san u mb e ro f c i v i l l a wma t t e r sa t al o wc o s t , t h i si n c l u d e st h ep r o v i s i o no f l e g a l r e p r e s e n t a t i o nt oa l l o w i n d i v i d u a l st oa v o i dh i g hc o s t swi t hp a y i n gf o r l e g a l r e p r e s e n t a t i o n i nc o u r t .

T h r e e t i e r p a y me n t : L o we rc o s t f o rc o n c e s s i o nh o l d e r sa n da h i g h e r c o s t f o rc o r p o r a t i o n swh owi s ht os t a r t ac a s ewi t hVCA T .

Time available

Matters heard in VCAT are usually heard in a timely manner (typically a day).

Consumer Affairs Victoria also aims to resolve certain disputes in a timely manner.

If certain cases require a lengthy hearing, they are considered as more appropriate for the courts.

Likelihood of reaching an agreement

This factor is considered before either VCAT or Consumer Affairs Victoria decide to resolve a certain dispute between parties, to ensure that their resources aren’t being wasted.

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Need to maintain privacy

Hearings which take place via these dispute resolution methods are disclosed from the public to avoid any excess stress on either party, or to ensure that neither party feels too intimidated to present their case. Also allows parties to have some trust in the civil justice system.

Fairness

Due to the independence of legal practitioners and mediators/conciliators this ensures for a just outcome as they remain impartial and aim to encourage both parties to come to an agreement by suggesting various options to resolving their dispute. Where both parties have control over the processes and the outcome of the case, thus ensuring a fair hearing.

Need for a binding outcome

Before a civil dispute is taken into consideration to be resolved, these methods must determine whether the...