3.2.10 The impact of costs and time on civil justice

What are the factors that affect the ability of the civil justice system to achieve the principles of justice that you must know and could be asked a question on in the end-of-year examination?

• Costs, time, cultural differences
• Fairness, equality, access
• Language barriers, communication issues, costs
• Costs, time

Which of the following is a costs factor?

• The lack of legal aid funding for many involved in civil proceedings.
• All options are correct.
• The risk of having an adverse costs order made against a party.
• The significant costs that are associated with pre-trial procedures, such as discovery.

How can costs factors affect the principle of access?

• People who are self-represented may not have the same objectivity as a party who is represented and may make poor decisions when representing themselves.
• Costs factors affect fairness and equality, not access.
• A self-represented party can often be on an unequal footing with a party who has skilled representation.
• They can prohibit a person’s access to the legal system because people are often deterred from making or defending a claim.

How can the use of mediation in a civil case achieve equality?

• The third party operates as an impartial referee who can monitor the mediation and allow both parties to have their say.
• Parties can hire private mediators and avoid the costs of issuing a claim.
• It does not achieve equality, it achieves access.
• The parties take ownership of the processes and the outcome.

Which of the following is not a disbursement that a party is likely to incur in a civil case?

• The costs of a jury requested by the other party.
• Filing fees.
• Hearing fees.
• The costs of a private mediator.

Which of the following is not a time factor?

• The use of case management powers
• The availability of legal aid
• VCAT delays in some lists
• Backlogs in courts

How can court delays affect the principle of equality?

• Delays can have an impact on more vulnerable parties, such as someone with little to no money.
• Delays can affect the reliability of evidence.
• Delays do not affect equality, they only affect fairness and access.
• Delays may force parties to settle or withdraw their claim.

How can the use of case management powers reduce delays in court?

• The judge can limit the extent to which the parties need to discover documents.
• The judge can order the parties to attend mediation.
• The judge may require parties to exchange evidence early on in the proceedings
• All options are correct.

‘Identify two time factors that affect the principle of fairness.’What are you expected to do in response to this question?

• Describe in some detail two time factors.
• Give a brief summary of two time factors.
• State two time factors.
• Give a detailed account of two time factors.

True or false: A party could be waiting up to six months to have their case heard in VCAT’s planning and environment list.

• True – the wait can be up to 26 weeks.
• False – the wait is around three weeks and no more than 12 weeks.