The document discusses various factors that can affect the ability of Australia's civil justice system to achieve the principles of justice, including costs, time, and accessibility. It analyzes how factors like legal costs, VCAT costs, court delays, and lack of rural services can both limit and enhance the system's effectiveness. It also examines recent reforms aimed at improving timeliness, such as stricter appeals processes and increased use of case management powers. Overall, the document provides a detailed overview of challenges facing the civil justice system and debates around how to best achieve fairness, equality, and access.

1. Unit 3 Rights & Justice
Area of Study 2 PART B
Reforming The Victorian
Civil
Justice System

2. Key Knowledge
Reforms
● factors that affect the ability of the civil justice system to achieve the principles
of justice, including in relation to costs, time and accessibility
● recent and recommended reforms to enhance the ability of the civil justice
system to achieve the principles of justice.

3. Key Skills
• define and use legal terminology
• discuss, interpret and analyse legal principles and information
• analyse factors to consider when initiating a civil claim
• explain the purposes of pre-trial procedures, using examples
• explain the reasons for the Victorian court hierarchy in determining civil cases
• discuss and justify the appropriateness of institutions and methods used to resolve a civil dispute
• discuss the responsibilities of key personnel in a civil trial
• discuss the ability of remedies to achieve their purposes
• discuss recent reforms and recommended reforms to the civil justice system
• evaluate the ability of the civil justice system to achieve the principles of justice
• synthesise and apply legal principles and information to actual and/or hypothetical scenarios.

4. Reforming the
victorian civil
justice system

5. Factors that can affect the effectiveness of the
civil justice system
Cost factors Time factors
Accessibility
factors

6. Cost Factors
Affecting the ability of the civil justice system to
achieve the principles of justice

7. Cost factors that affect achieving justice
● There are three main factors that affect the ability of the civil
justice system in achieving the principles of justice
LEGAL COSTS - VCAT COSTS - ACCESSIBILITY
● Some of these can reduce/limit the ability to achieve justice,
whilst others can increase the achievement of justice

8. Legal Costs - Limit Ability to achieve justice
● The high cost of resolving a civil dispute limit the civil justice
systems ability to achieve the principles of justice
● Costs are incurred by
Initiating a
claim
Legal
Representation
Court costs
and
disbursements

9. Legal Costs & Fairness
If people do not have
access to money to
pay for legal costs,
they may be forced to
settle or withdraw
claim, or
self-represent, which
can lead to unfair
outcomes
Even with assistance
from the court,
self-represented
litigants may still
struggle to understand
legal issues or
procedures
Self-represented
litigants do not have
the same objectivity
as a party who is
represented by an
experienced legal
practitioner and may
not be able to make
the right decisions in
the case because
they are too
emotionally invested

10. Legal Costs & Equality
Self-represented parties or parties
with less skilled legal representation
can often have unequal footing in
court, particularly given the skills
necessary to argue the case in front
of a judge (and jury if there is one).
A lack of legal representation can
impact on more vulnerable people

11. Legal Costs & Access
Costs can prohibit a person’s
access to the legal system,
particularly courts, as they often are
deterred from making or defending
a claim, or will have to settle the
claim to avoid trial.

12. VCAT Costs - Limit & Enhance Ability to Achieve Justice
● VCAT costs can be a limiting factor and also an increasing factor
in the civil justice system’s ability to achieve the principles of
justice
LIMIT
Although VCAT provides
lower fees, these fees are on
the increase with the
introduction of some hearing
fees and the three tier fee
structure
2012/2013 $38.80
2016/2017 $458.60
$20,000 claim
ENHANCE
VCAT and other tribunals
were introduced to provide a
low-cost, formal and quick
alternative to courts in
resolving disputes
Lower fees and less need for
legal representation allow
tribunals to be lower in cost
http://clause1.com.au/vcats-new-fee-structure/

13. VCAT Costs & Fairness
Many people who cannot afford to
pay VCAT fees may be at risk of
having to abandon their claim
which can be an unfair outcome if
their rights have been infringed
VCAT costs remain low for
most claims, and health care
card holders pay even lower
fees. VCAT tries to ensure a
fair system where those who
have greater ability to pay are
charged more (three tier fee
structure)

14. VCAT Costs & Equality
The three-tier system
tries to create equal
outcomes by charging
higher fees to large
businesses and lower
fees to concession
holders
The fees can result in
inequality if the lower
fees remain
unaffordable for
parties to a civil
dispute

15. VCAT Costs & Access
The low cost of applying to
VCAT and for most hearing
fees ensures greater access
by people to VCAT than the
courts. The three-tier system
also ensures greater access
to those who are more likely
to suffer from high costs
People have criticised VCAT’s
user-pay system, claiming it
restricts access to justice.
This applies particularly to
claims where VCAT has
jurisdiction (planning permits)
and the person with a claim
cannot pay the fees

16. Increased use of dispute resolution methods - Enhances Ability to achieve
Justice
● The increased use of alternative dispute resolution methods such
as mediation and conciliation assist in reducing costs involved in
resolving civil disputes
● By encouraging early settlement
Saves on costs to
parties of final
hearings or court
trials
Saves costs to
courts/tribunals
and therefore
reducing further
funding

17. Increased use of dispute resolution methods & Fairness
Dispute resolution
methods that use a
skilled third party
who can monitor
processes can ensure
equal opportunity for
the parties to present
their case and have a
say
Informality allows
parties unfamiliar
with the courtroom to
actively engage with
the processes and
have an opportunity
to speak
The parties take
ownership of the
processes and the
outcome, thus
avoiding an
unwanted outcome
being imposed on
them

18. Increased use of dispute resolution methods & Equality
The third party
operates as an
impartial and
unbiased referee who
does not advocate
for either side
Methods such as
mediation avoid a
third party who may
have biases, such as
a judge or jury
member, making a
decision on behalf of
the parties
Whether there is
equality in an actual
mediation or other
alternative dispute
resolution method will,
however, depend on the
skill of the parties and
the legal
representatives, and
any factor that makes
them unequal (e.g.
mental illness or
disability)

19. Increased use of dispute resolution methods & ACCESS
The cost savings can
enable a party to
access a wider range
of methods to resolve
their dispute
Parties can hire
private mediators or
conciliators, avoiding
the costs of issuing a
claim
However, alternative
dispute resolution
methods should be
used at the
appropriate time.
Organising a
mediation too early
or too late can incur
significant wasted
costs.

20. Time Factors
Affecting the ability of the civil justice system to
achieve the principles of justice

21. Time factors that affect achieving justice
● Timely dispute resolution enables for a fairer process
● Delays in resolution can increasingly become unfair to one or
both parties.
TIME FACTORS THAT SLOW PROCESS:
COURT DELAYS VCAT WAITING TIMES*
TIME FACTORS THAT IMPROVE PROCESS
APPEALS PROCESS USE OF CASE MANAGEMENT POWERS
*Some lists have short wait times and therefore can improve timely resolution

22. Court delays - Slow Process
● The quick resolution of the a civil claim is
very much dependent on the complexity of
the case, number of parties involved and the
level of the court in the court hierarchy
● Court delays are a result of
COURT BACKLOGS
The delay in having a
case heard at trial due to
other delay in other cases
PRE-TRIAL PROCEDURES
Complex and lengthy,
particularly discovery
EVIDENCE GATHERING &
PREPARATION
It is a lengthy process
obtaining all
requirements to be ready
for trial

23. Court Delays & Fairness
The passage of time can
impact on the reliability of
evidence, jeopardising a fair
outcome
Delays deny the parties fair
and due process

24. Court Delays & Equality
Delays can have a
particularly serious
impact on some
parties, e.g. an
injured person
Delays can also
impact on more
vulnerable parties,
who are generally not
familiar with litigation
can be stressed by the
inconvenience of
court processes
(unlike large
businesses)
A lack of legal
representation can
impact on more
vulnerable people

25. Court Delays & Access
Delays may force parties to
settle or withdraw their claim,
frustrated by the loss of time
or unable to continue without
settlement. This can reduce
genuine access to the civil
justice system
The reality of possible delays
may also deter parties from
pursuing their claim in the
first place

26. VCAT waiting times - Can Slow Process
● Despite VCAT aiming to provide a
more timely resolution, and
although they are still much quicker
than the courts, there are still some
significant delays in some lists
Planning developments for example can take up to six months
Residential tenancies however is only 2 weeks

27. VCAT waiting times & FAIRNESS
The short waiting time for some
disputes can result in a fairer
outcome with parties being able to
recall the facts in dispute and not
have to wait a significant amount of
time for resolution
The long wait time for
some lists can produce
unfair results,
particularly for large
developers and
businesses that risk
losing costs and time
whilst waiting

28. VCAT waiting times & EQUALITY
Short wait times
can reduce any risk
that the person
needing a quick
resolution has to
wait, e.g. a tenant or
landlord who needs
a speedy
determination
Long wait times,
however, can
impact on more
vulnerable people
who are stressed
or
inconvenienced
as a result of
delays

29. VCAT waiting times & ACCESS
Short wait times improve
access. People are not
deterred from issuing claims
because of the long time it will
take to have the matter heard,
and disputes do not amplify
within the community
Long wait times however, can
reduce access as some people
may be deterred from pursuing
the case or may withdraw or settle
because of the time taken to
resolve the dispute.

30. Appeal process - Improve Process
● Reforms in the handling of appeals in the Court of Appeal and
High Court have aimed to reduce delays in the civil justice system
In 2014 the Supreme Court Act 1986 (Vic)
was amended so that leave was
required for almost all appeals
Leave for appeal can only be granted
where the appeal has a real prospect
of success
As well as leave requirements, time
limits have been imposed
Civil appeals to the High Court require
leave. Special leave applications are usually
heard and determined in a oral hearing
post submission of documents
In 2016, the High Court announced that a
panel of justices would determine whether
an oral hearing would be necessary
This aims to reduce time between filing of
documentation and the oral hearing

31. Appeal process & Fairness
Requiring an appeal to have
real prospects of success
means that parties are not put
to trouble, time and expense
over weak appeals
The appeal will be determined
on merits by experienced
judges
Both parties remain entitled
to present their arguments to
the courts in written
submissions and documents
ensuring they have an
opportunity to be considered
Designed to allow appeals to
be heard more quickly and
with greater cost savings to
the parties

32. Appeal process & Equality
A reduction in delays can reduce the
impact on the parties, particularly
those who are significantly
disadvantaged because of delays

33. Appeal process & ACCESS
The parties have greater access to
appeal processes without concerning
themselves with oral hearings or long
delays.
Parties may feel more inclined to
appeal if they know they have good
prospects and know the appeal will be
heard quickly

34. Use of case management powers - Improve Process
● A magistrate or judges powers of case
management can greatly improve delays in
the civil justice system
● Greater control over cases ensures disputes
are resolved in a more timely and
cost-effective manner
● By directing parties, judges and magistrates
can manage time by encouraging out of
court settlements, limit length of pre-trial
procedures or placing time limits on
hearings

35. Use of case management powers & Fairness
Courts and tribunals can adapt
processes to the needs of the parties.
This can ensure that parties are focused
on resolving the issues in dispute, and the
court can focus on what is required to
resolve the dispute

36. Use of case management powers & Equality
Courts and tribunals can
ensure there is flexibility
without any favour or
discrimination
Orders or directions can
apply equally to both
parties

37. Use of case management powers & Access
Greater access to the
courts and tribunals as
there can be flexibility in
formalities, in what rules
the judge orders in
relation to procedure, in
the way that documents
are filed and the time
required to undertake
tasks
The Supreme Court’s
approach to case
management can also
help parties access the
system without being
burdened by the time
and costs involved in
undertaking pre-trial
procedures

38. Accessibility Factors
Affecting the ability of the civil justice system to
achieve the principles of justice

39. Accessibility factors that affect achieving justice
● Having access to the civil justice system is a crucial aspect of
achieving justice
● Limited access often results in civil claims being abandoned,
withdrawn or settled for an unfair outcome
● There are three main factors that affect accessibility
Barriers to
communication
Lack of services
in rural &
remote areas
Use of
representative
proceedings
Restrict accessibility Enhance accessibility

40. Barriers to communication - Limits Access
Barriers to communication includes anything
that prevents a person from receiving and
understanding information
In legal, this refers to:
● Rights
● Methods and bodies in dispute resolution
● Processes involved in dispute resolution
The most common barrier to communication is
language and cultural based

41. Barriers to communication & Fairness
People who are unable to communicate well
in English may not understand their legal
rights or dispute resolution methods or
bodies that can help them resolve a
dispute.
This reduces their ability to access
procedures and engage in a trial or
hearing, therefore reducing their ability to
present their case in the best possible light

42. Barriers to communication & Equality
People who experience
communication barriers may
struggle to tell their side of the
story.
This can make them unequal
before the law or deny them an
equal opportunity to present
their case.

43. Barriers to communication & Access
A person with limited understanding of their legal
rights or the mechanisms used to resolve disputes
may
● abandon their claim or defence
● not know they have a claim or defence in the
first place or
● compromise or withdraw their claim or defence
just because they feel uncertain about what needs
to happen to pursue their case

44. Lack of services in rural & remote areas - Limits Access
People living in rural or remote areas often have limited
access to the civil justice system
Dispute resolution bodies (e.g. courts and tribunals) as well
as services (e.g. lawyers) are not as readily available
outside of metro cities
The courts and VCAT have tried to overcome this by
ensuring they sit in various locations by using a ‘circuit
court system’ where a calendar determines when the court
will sit at a particular location

45. Lack of services in rural and remote areas & Fairness
The decline or lack of legal services in some
rural and remote areas of Victoria impacts
on people’s ability to seek legal advice and
assistance and access resources and
information about their case.
It can inhibit a person’s ability to use legal
processes to ensure they put their case
forward properly

46. Lack of services in rural and remote areas & Equality
Rural and remote Victorian’s may not be equal before the law if
they have unequal access to legal services and resources, as well
as unequal access to courts and tribunals

47. Lack of services in rural and remote areas & Access
An inability to access legal
services, courts and tribunals
can impact on the ability of a
person to pursue their legal
rights and seek compensation
for any wrong that they have
suffered
Read case study link off image
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48. Use of representative proceedings - Enhances Access
Representative proceedings allow people greater access to
the civil justice system
● Individually, a person may not take on a large business,
though will be more likely to in a class action
● People involved in a representative proceeding are not
personally subjected to costs
● People are not subjected to personally attend trial or give
evidence
However due to having a litigation funder (a third party that
does all the above) means that a portion of payouts is
deducted

49. Use of representative proceedings & Fairness
People with claims are
able to join a class and
not be subjected to
personally having to
pay costs (particularly
if a litigation funder is
involved) nor be
subjected to adverse
costs orders
The way in which class
actions are conducted
removes a party from
court processes and
having to give
instructions, which can
be difficult for
someone without
experience in legal
processes
The fairness of the
outcome depends on
the sentence reached
and the payment to be
made by any litigation
funder or legal
practitioners

50. Use of representative proceedings & Equality
Class actions are often conducted by
experienced legal practitioners and
law firms who can present the case in
the best possible light and as equally
as the defendant’s law firm

51. Use of representative proceedings & Access
People who cannot afford
to initiate their own claim
are able to access justice
by joining a representative
proceeding
However, the costs of
litigation funding and
legal fees can restrict the
size of final payment,
which reduces the value of
having access to justice
through class action

52. Recent Reforms
To enhance the ability of the civil system system to
achieve the principles of justice

53. Recent Reforms - Cost Factors
Introduction of three-tier fee system in
VCAT
From July 1st 2016, VCAT has three tiers of
fees: corporate, standard and concession.
The concession fees are available to
people who hold Commonwealth health
care cards and are capped at $150
regardless of the type of fee or the nature
of the dispute. The fees are intended to
ensure that VCAT remains accessible to
the most vulnerable in society and the
fees are higher for businesses with an
annual turnover of $200,000 or more
Approval of use of Technology Assisted
Review (TAR) in the Supreme Court
In a first for Victorian courts, the
Supreme Court of Victoria, in the
decision of McConnell Dowell
Constructions (AUST) Pty Ltd v Santam
Ltd & Ors (No 1), approved the use of
predictive coding or TAR to assist in the
discovery process. The technology is
expected to be just as accurate as a
person managing discovery and will be
more efficient, cost-effective and timely
manner than a lawyer doing the same
task

54. Recent Reforms - time factors
Introduction of the Judicial Commission
of Victoria (JCV)
In 2016, the Victorian Parliament passed
the Judicial Commission of Victoria Act
2016 (Vic) which establishes the JCV. A
person can make a complaint to the JCV
about the conduct or capacity of a
judicial officer (which includes judges) or
a member of VCAT. The types of
complaints can be made include
excessive delays in handing down
judgements.
Change to High Court appeal processes
In 2016, the High Court of Australia
changed the way it hears special leave
applications for appeals. Rather than
allowing every special leave application to
have a oral hearing, the High Court first
determines, through a Panel of Justices,
whether an oral hearing is necessary. If an
oral hearing is not necessary than the
application is heard ‘on the papers’

55. Recent Reforms - Accessibility Factors
VLA online tool
In February 2017, Code for Australia and
Victoria Legal Aid released a prototype
online tool which people with legal
problems can use to determine whether
they are eligible for legal aid, advise
people where they can go for help and
which can answer simple questions for
people.
Removal of wigs
In May 2016, the Supreme Court of Victoria
announced that judges will stop wearing
wigs in all civil matters. Former Chief
Justice Warren noted that wigs
represented the past and did not assist in
the administration of justice. Many
believe that the removal of wigs allows the
courtroom to feel more accessible to
modern-day Australians who may find the
formality of the wigs intimidating

56. Recommended Reforms
To enhance the ability of the civil system system to
achieve the principles of justice

57. Recommended Reforms - Cost FActors
Increased use of alternative dispute
resolution methods
The Victorian Access to Justice Review
recommended expanding and increasing
the use of mediation and other out of
court dispute resolution methods. As well
as VCAT expanding its Short Mediation
and Hearing program into regional areas
Greater legal aid funding
There is still a need to address
longer-term funding issues for legal
service providers such as Legal Aid and
community legal centres. Inquiries have
recommended there be a transparent
and formal funding model, that funding
be increased and that the funding take
into account the demands of legal aid

58. Recommended Reforms - Time Factors
Improvements and increase in case
management
The Productivity Commission has
proposed that case management
practices be improved and used more.
This includes replacing formal pleadings
with less-formal alternatives, requiring
strict observance of time limits, and
limiting traditional discovery.
Making enforcement of VCAT orders
easier
The Victorian Access to Justice Review
recommended that the enforcement of
VCAT orders be made simpler. Meaning
that the VCAT order will no longer require
certification from a court. The Victorian
Government has agreed to this
recommendation, therefore this change in
law is expected to be introduced

59. Recommended Reforms - Accessibility Factors
Expansion of information from Victoria
Legal Aid
The Victorian Access to Justice Review
recommended that Victoria Legal Aid
expand its website to include a web-chat
service and information in a wide range of
languages and in accessible formats
Publication of plain language guides and
information
The Productivity Commission in 2014
recommended that all government
agencies in Australia publish plain
language guides that summarise
legislation in areas of law regularly
encountered. The Victorian Government
has also recommended that courts and
tribunals increase accessibility of their
websites by ensuring information is
provided in languages other than English

60. REFORMS
Select two recent and two recommended reforms (either from slides
or text book) for each factor (cost, time and accessibility)
For each reform respond to the following:
● Detail what the reform entails
● What problem is the reform trying to overcome?
● What principles of justice is the reform achieving?
● How well is the reform achieving the principles of justice? (look at
strengths and weaknesses of reform in overcoming the problem
against principles of justice)

61. End of Part B