Frequently asked questions about Civil Claim disputes (July 2013)

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1 Frequently asked questions about Civil Claim disputes (July 2013) How do I start an application at VCAT? A party wishing to commence an application about a Civil Claim dispute must file an Application to Civil Claims List form with the tribunal and pay the relevant fee. A party can apply to VCAT about the purchase of goods, the supply of services in trade or commerce and some claims about land. Parties may also apply against a person who breaches the Fair Trading Act (FTA) 1999 or Australian Consumer Law and Fair Trading Act (ACLFTA) It does not matter if the party is a consumer, trader, company, business, individual or if the goods and services were for private or business use. The following list details examples of purchases that may lead to claims in VCAT s Civil Claims List: debts household or business goods that are unsatisfactory or do not match the description services that are unsatisfactory or do not match the description office goods and services furniture removal or storage services dry cleaning wedding receptions, videos, photographs, dressmaking claiming by or against professionals. An application under the Motor Car Traders Act 1986 (MCTA) can also be made for the contract to be cancelled if the motor car was purchased for less than $40,000 from a motor car trader and after the sale it is found that: the odometer reading on the car (mileage) was false the sale agreement was incomplete or the car was substantially different from the description in the notice attached to the car. A claim about a building dispute under the Domestic Building Contracts Act 1995 can also be made. Are there time limits for applying? You must bring claims under the FTA or the ACLFTA within six years of the dispute. Claims under the Motor Car Traders Act 1986 must be made within three months of 1 (Updated July 2013)

2 the sale or if you complain to the seller within that time, within one month of making the complaint. Service of documents Service of the application on the respondents is arranged by VCAT. Applicants are requested to provide to the tribunal, the original application form with the appropriate filing fee and a further copy of the application form for each respondent. Applicants should retain a copy of the application for their records. As the tribunal relies on the address you supply for service of the application, it is very important that you supply the correct address. What is a directions hearing? At the hearing, the tribunal will hear the parties and their witnesses, consider documentary and other evidence, and in due course make its decision. In some cases, it will be necessary for the tribunal to make directions before the hearing, to ensure that the hearing runs smoothly. For example, a case may require: new parties to be joined the exchange of additional information the disclosure of relevant documents the inspection of items by expert witnesses. The Tribunal can make directions on its own initiative. Parties can also seek directions. For information on how to do so, please refer to Practice Note VCAT 5 on the VCAT website. For information on the need to comply with directions and to cooperate in getting a case to hearing, please refer to Practice Note VCAT 3 on the VCAT website. What are points of claim and points of defence? In some cases, it will be necessary for the parties to file points of claim or points of defence. Points of claim set out the applicant s version of relevant events in a chronological order, in separate, numbered paragraphs. By setting out the claim in a logical order, in numbered paragraphs, the applicant identifies the building blocks of their case. The applicant identifies the things they must prove in order to succeed. This allows the respondent to file points of defence that reply to each individual paragraph, saying whether the respondent agrees with ( admits ) or disagrees with ( denies ) each paragraph. The use of numbered paragraphs allows the respondent s points of defence to address those building blocks individually. 2 (Updated July 2013)

3 This way the parties and the Tribunal can identify and focus on the issues in dispute. When will points of claim and points of defence be ordered? Points of claim will rarely be needed in simple cases, such as a case in which one applicant claims compensation from one respondent in relation to faulty goods or services supplied from that respondent. They are more likely to be needed where the applicant brings several claims, where there is more than one respondent, or where the compensation claimed is complicated. How do points of claim and points of defence identify the issues? The points of claim tell the tribunal and the respondent what is important to the applicant. Say the Applicant bought six products from the respondent, but only two were faulty, the points of claim would focus on the two faulty products. The respondent s points of defence tells the tribunal and the applicant what is disputed. In the above example, the respondent might admit that one of the products was faulty. The tribunal and the applicant would then know that the condition of only one of the products was in dispute. The parties time and resources would not be wasted on issues that were not in dispute. What are points of counterclaim? In some cases, the respondent has a claim against the applicant. Say the applicant bought six products from the respondent, only two were faulty, and the applicant refuses to pay for any of the products, the respondent might bring a counterclaim to seek payment for some of the product. Points of counterclaim set out the respondent s version of relevant events in a chronological order, in separate, numbered paragraphs. By setting out the counterclaim in a logical order, in numbered paragraphs, the respondent identifies the building blocks of their counterclaim. The applicant identifies the things they must prove in order to succeed. What are points of claim against joined parties? Sometimes when new people are added to the case they are joined so that a claim can be brought against them. Say the applicant bought six products from the respondent (a retailer) and two were faulty; the respondent claimed compensation from the wholesaler who sold the goods to the retailer; the wholesaler claimed compensation from the manufacturer and so on. The respondent s points of claim against the wholesaler would identify the relevant issues between those parties. Perhaps the contract between the retailer and the 3 (Updated July 2013)

4 wholesaler contained special clauses about the return of goods. The wholesaler s points of defence would tell the tribunal and the respondent what is disputed. Perhaps the contract contained a time limit on claims, or perhaps the retailer had acknowledged when taking delivery that the goods were in perfect condition. What is discovery? Discovery is the process by which a party discloses to their opponent, before the hearing, the documents that are important to the case. It is very important process, designed to make the hearing fair. All court and tribunal proceedings concerning civil disputes have some version of discovery. In small claims disputes, and in simple cases, it will often be sufficient if the parties simply bring to the hearing all of their important documents and evidence. In larger and more complex disputes, it may be necessary to show the documents well before the hearing. In some cases, it may be sufficient if the parties disclose only the documents that they intend to rely on. However, because that would keep from scrutiny documents which the party did not intend to rely on, but which were important, parties are sometimes required to disclose all relevant documents. What is a document? This is not a trick question! In times gone by, documents were papers such as contracts, invoices and letters. However, in the modern era documents includes information which is stored digitally or electronically, such as s, SMS message, and social media pages. It is not a question of how information is recorded. The important question is whether the information is relevant to the dispute. What is a list of documents? A list of documents is the means by which parties give discovery. An example of a list that discloses all relevant documents is set out below. VCAT heading & case number List of Documents The Applicant / Respondent / Joined Party [delete as applicable] files this List of Documents as ordered by the Tribunal. Part 1 of Schedule 1 lists all documents in the party s possession, custody or power, relating to the questions in this proceeding. Part 2 of Schedule 1 lists those documents which the party objects to produce for inspection on the ground of privilege, and the basis upon which privilege is claimed. 4 (Updated July 2013)

5 Schedule 2 lists documents relating to the questions in this proceeding which the party has had, but no longer has, in its possession, custody or power, and as to each such document when it was last in the party s possession, custody or power and the party s belief as to what has become of it. Schedule 1 Part 1 Insert description of items individually for example 1. Invoice dated * / * / Receipt for payment dated * / * / from ** to ** dated * / * / 2012 etc Part 2 Insert description of items individually for example Legal advice received from ** dated * / * / 2012 Without prejudice offer dated * / * / 2012 Schedule 2 Insert description of items individually for example 1. My letter to the Respondent sent * / * / My reply to the other party s quote sent * / * / 2012 Dated * 201* Signed Name Position (example: manager, director etc) What is an injunction? This section deals with interim injunctions that may be imposed while the parties are awaiting their final hearing. An injunction can restrain the other party from doing something, or require the other party to do something, pending the hearing. Section 123 of the Victorian Civil & Administrative Tribunal Act 1998 empowers the tribunal to grant injunctions. Some examples, for illustration: While the parties are awaiting their hearing on the issue of who owns the Van Gogh painting, the respondent is restrained from selling it to his brother for $ Pending the hearing on the issue of the respondent s entitlement to drill for oil in his suburban backyard, the respondent is restrained from accepting delivery on site of the 2,000 lengths of industrial steel pipe. 5 (Updated July 2013)

6 How can I seek an injunction? In cases of great urgency, to prevent irreparable harm an injunction can be granted without notice to the respondent. Such an injunction would usually only be granted for a few days, after which both sides would be heard on the issue. In the usual case, though, the application is made on notice to the respondent, and the applicant files an affidavit setting out the relevant evidence. What are some of the issues when applying for an injunction? The applicant must show that it has a good arguable case. This is sometimes referred to as showing there is a serious question to be tried. The applicant must show that damages will not be an adequate remedy. For example, if the applicant s unique, restored vintage car is taken away, an award of damages may be inadequate because the worth of the car is hard to measure or it is shown that the respondent could never pay damages which were awarded against it. On the other hand, if the car was a common, widely available model with no special features, an award of damages may be adequate. The applicant must show that the balance of convenience lies with granting the injunction. That is, that there is a lower risk of injustice in granting the injunction. Returning to the example of the vintage car, unless the market for vintage cars fluctuates wildly, the applicant might say If I m wrong, and the respondent is entitled to keep and sell the car, there is no difference between him selling it this week or six months from now. The applicant must give an undertaking as to damages. Because the interim injunction is temporary and because the tribunal will not hear all of the evidence in the case until the final hearing, there is a chance that the respondent will win the case at the final hearing. In those circumstances, the respondent might have suffered some loss while the injunction was in place. Returning to the example of the vintage car, the respondent might say, when you obtained the injunction the car was worth $75, and I had a buyer. Now the economy has gone pear shaped and it is only worth $25, The undertaking as to damages is an enforceable promise by the applicant to compensate the respondent if ordered to do so. It is not an open-ended liability: first, the respondent would have to convince the tribunal to order the applicant to pay compensation, and secondly the tribunal would have to assess the amount of compensation. How do I apply for an adjournment? If you are seeking an adjournment, you will need to put your request in writing to the tribunal. Consent of other parties to adjourn the proceeding will usually be required. 6 (Updated July 2013)

7 The tribunal may, however, refuse an adjournment even if all parties consent. Parties must work on the basis that the hearing is proceeding unless or until they are notified that the tribunal has granted an adjournment. For further information on the tribunal s adjournment policy, please refer to Practice Note VCAT 1 Common Procedures on the VCAT website. How do I withdraw my case? If an applicant seeks to withdraw their proceeding, that party should advise the tribunal in writing as soon as possible. A party may choose to use the Application for Leave to Withdraw form provided on the Tribunal website for this purpose. For further information on withdrawing applications, please refer to Practice Note VCAT 1 Common Procedures on the VCAT website. After I lodge my application, how long will it take to be heard? You can generally anticipate that your matter will be listed for hearing within 6 months of the tribunal being satisfied that the matter is ready to be heard. This information is current as at July There are a number of factors that may impact on this timeframe. The matter may also be listed for preliminary hearings before the final hearing. 7 (Updated July 2013)