Unit 4: AOS1- Dispute Resolution Methods
The Courts and VCAT
Reasons for a court hierarchy
1. Administrative efficiency
Key Knowledge 1:
The reasons for a court hierarchy
-
Division of power and duties under the hierarchy provides a rational system of dealing with disputes
and legal issues.
Magistrates’ court can hear up to 50 cases per day.
County court can heart between 4-5 cases per day.
2. Specialisation
Provides an efficient way of dealing with matters involving legal issues. This is done by dividing duties
and responsibilities held by judges/officers allowing for development of expertise.
3. Appeals
Allows for a system of appeals, so aggrieved persons can appeal against a decision to a higher
authority.
4. Doctrine of precedent
Hierarchy allows for the system of precedent. Courts lower in the hierarchy must follow legal
principles that have been established in higher courts.
Magistrates Court
Role




Lowest court in the hierarchy.
Hears minor civil and criminal cases.
Presided over by a single magistrate.
No jury present.
Original criminal jurisdiction
Summary offences: Eg. Traffic offences and shoplifting.
Indictable offences heard summarily: Eg. Theft and assault.
Committal hearings: Issuing warrants and bail applications.
Original civil jurisdiction


Matters up to $100,000 for either personal/property.
Matters less than $10,000 referred to compulsory arbitration.
Appellate criminal jurisdiction

None (lowest court).
Appellate civil jurisdiction

None (lowest court).
**Drug court division**



Set up in 2002 to deal with offenders who plead guilty to drug related crimes within the jurisdiction of
the Magistrates Court.
Emphasis is on breaking the drug/alcohol habit that caused the offence (rehab).
Operates at Dandenong Magistrates Court.
**Koori court**




Est. in 2002 to provide culturally relevant justice to the Aboriginal Community.
Does this by operating with a Koori elder to advise court.
Proceedings are less formal, aimed at ensuring understanding of accused.
Can hear cases that fall within jurisdiction of the Mag’ Court (except sexual offences/domestic
violence).
County Court
Role




Middle court in the Victorian court hierarchy.
Hears a range of civil and criminal matters/some criminal appeals.
Presided by a judge.
A jury may be present.
Original criminal jurisdiction
Indictable offences: Eg. Drug trafficking, sexual offences, serious assault (not murder), manslaughter and
homicide related offences, treason or corporate related offences.
 Heard by a single judge, and a jury of 12 (if pleading not guilty).
Original civil jurisdiction
ppeal)


All civil claims of unlimited $ amount.
Heard by a single judge and optional jury of 6
Appellate criminal jurisdiction

Appeals from Mag’ court against conviction/sentence and WorkCover related matters.
Role of VCAT
Objective is to provide cost effective, accessible and informal, timely and quality resolution of a range of
civil cases to Victorian public.
1. Cost effective
-
Low cost method, $37 to $300 (no charge for human rights division).
Cost effective compared to courts.
Doesn’t require legal representation.
2. Accessible and informal
-
Absence of strict rules of evidence and procedure.
43 venues, ∴ accessible.
Also has video/phone conference if needed.
3. Timely resolution
Key Knowledge 3:
The role of VCAT
-
Time between application and hearing is around 2-11 weeks.
Most cases resolved within a day.
4. Quality and expertise
-


Each VCAT list operates within its own specialised jurisdiction ∴ resulting in the tribunal personnel
developing expertise.
**Appeals against VCAT only on a point of law**
If president/vice-president were on tribunal panel, appeal will go to Court of Appeal.
Appeals on decisions made by other members will go to Trial Division.
Key Knowledge 5:
Strengths and weaknesses of dispute
resolution methods used by courts
and VCAT
Key Knowledge 4:
Dispute resolution methods used by courts and VCAT, including mediation, conciliation,
arbitration and judicial determination
Dispute resolution methods
Alternative dispute resolution: Processes other than judicial determination in which an
impartial 3rd party assists disputing parties to come to a mutually agreed resolution.
Mediation


Parties are encouraged to resolve disputes between themselves, assisted by a 3rd party (mediator).
Mediator facilitates discussion between the parties so they can come to a mutually accepted
agreement.
Ensures parties have the equal chance to be heard.
Mediator doesn’t offer advice or suggestions.
Can be compulsory/voluntary.
Agreement isn’t legally binding.




Conciliation

Independent 3rd party (conciliator) facilitates discussion between the parties so they can come to a
mutually accepted agreement.
Conciliator can offer advice or suggestions.
Can be compulsory/voluntary.
Agreement isn’t legally binding.



Arbitration




Independent 3rd party (arbitrator) listens to each party and makes a legally binding decision.
Arbitrator may make suggestions to the parties regarding ways to resolve disputes.
If not, arbitrator will settle dispute.
More formal method as proceedings are governed by rules and procedures.
Judicial determination

Parties present cases before in independent judicial officer (judge, magistrate or VCAT member) who
makes a legally binding decision.
Uses strict rules of evidence procedure.
VCAT hearings are still less formal, and don’t follow the same strict rules of evidence and procedure
that are used in civil court trials.


Evaluation of mediation, conciliation and arbitration
Strengths of ADR






Weaknesses of ADR
Informal and less intimidating compared to courts,
absence of strict rules of e+p.
Parties more like to feel satisfied as the decision
came from them (except arbitration).

Helps to preserve the relationship, good for those
with ongoing relationship eg. Work.
Confidential, not open to public like courts.
Costs less than going to court as no legal rep ∴
cheaper.
More timely as parties avoid time delays with courts.



1 party may dominate if they’re more
confident, or one might influence the other.
One may compromise too much to resolve it
∴ agreeing to a decision they’re not 100%
happy with.
ADR is often voluntary; one party may not
show up or withdraw at any time.
No avenue for appeal unless on POL.
Evaluation of the courts in resolving disputes
Strengths
Weaknesses
Timeliness

Timeliness
Civil claims less than $10,000 sent to arb, pretrial mediation used in County and SC.
Appeal/decision


All decisions legally binding. ↑ avenues for
appeal.
Key Knowledge 6:
Strengths and weaknesses of the way courts and VCAT operate to resolve disputes
Strict rules of e+p necessitate legal rep, ↑
cost and maybe ↓ access.
Cost
Costly for legal rep/court fees.
Adversarial nature
As parties compete with each other, they
present the best case/evidence ∴ truth likely
to emerge.
Formality



High cost may deter frivolous claims.
Adversarial nature

Outcome imposed of them ∴ less happy.
Appeals = time and money.
Legal rep
Cases presented in best manner, benefits less
confident parties (equal footing).
Cost

Time consuming, can be delays due to
waiting lists/case prep/cross examination
of witnesses.
Appeal/decision
Legal rep



Results in win/lose ∴ could cause further
animosity and resentment towards legal
system.
Formality

Strict rules of e+p ensure both parties have
equal opportunities.
May be intimidating, also confusing ∴
necessitating costly legal rep.
Evaluation of VCAT in resolving disputes
Strengths



Weaknesses
Timeliness
Timeliness
Resolved quickly. Mediation 1-3 hours and 1-3 
months from application.
When a party appeals, it goes to SC where
there are extensive pre-trials.
Appeal/decision
Appeal/decision
If M/C are unsuccessful then will go to A/J

(legally binding). Appeals are limited ∴ ↓ cost
and ensure finality.
Only appeal on POL. Can’t appeal if unhappy.
Appeals are made to SC ∴ ↑ cost and time
(deterring access).
Legal rep
Legal rep
Discouraged, likely to be resolved between
themselves ∴ ↓ cost.

Cost

Application fees $30-$600, legal rep is
discouraged ∴ ↓ cost.
Cost

Adversarial nature

M/C less adversarial, parties discuss and
compromise aims to win.
Less intimidating, parties may feel more
confident to present case.
Has ↑ due to ↑ parties using legal rep. Costs
↑ in 2013 ∴ discouraging some.
Adversarial nature

Formality

Can be used if both agree, their use may deter
access.
M/C less adversarial, parties discuss and
compromise rather than aim to win.
Formality

No strict rules of e+p may allow a more
confident/knowledgeable party to dominate.
Extra stuff
Definitions
Original jurisdiction: Is the power a court has to hear cases at first instance or for the first
time.
Appellate jurisdiction: The power or authority that a court has to hear appeals brought to
it from courts lower in the hierarchy.
Criminal disputes: Disputes between the state on behalf of society.
Civil disputes: Disputes between two parties that occur as a result of the rights of one
party being infringed by the other party.
Indictable offences: A serious offence that is able to be heard before a judge and jury in
the county/supreme court.
Summary offence: A minor, less serious offence that is heard in the Magistrates Court and
decided on by the presiding Magistrate.