AOS 2A Flashcards
the burden of proof
the responsibility or onus that a party has in proving the case
the plaintiff hold the onus of bringing forward enough evidence to support their claim
standard of proof
the strength of evidence in civil cases the balance of probabilities
representative proceedings
one person brining forward a claim of behalf of someone else
- shareholder class action
- product liability
- natural disaster class action
lead plaintiff
a person who is part of the group bringing action who will represent the group during proceedings
shareholder class action
where a company’s state of affairs have been misrepresented
fairness
fair process and a fair hearing or trial, giving both parties an adequate opportunity to be heard
- both parties should know the case against them and given fair opportunity to present their case
- should be given the right to participate in the trial ie being entitled to cross examine witnesses and make submissions to the judge about legal or factual matters
- dispute resolution process should operate so neither party is disadvantaged/people are treated impartially without fear/favour
- understand court processes too be able to participate in their hearing/trial
the Charter of Human Rights and Responsibilities act 2006 (Vic)
a victorian legislation that aims to protect human rights
equality
how the orates are treated in the proceedings. the civil justice system should be free from bias or prejudice, meaning parties should not be discriminated against because of a certain attribute or characteristic.
- the impartiality of a judge and jury when resolving civil disputes
- the extent in which the civil justice system is available to everyone
- the disadvantage that particular groups in society may suffer because of features in the civil justice system (such as aboriginal and TSI peoples, vulnerable groups or groups with disabilities)
- the extent to which the availability and skill of legal representation affects people being treated equally before the law
- the ability of people to be equally represented and able to present their case
- the extent to which variations were made tot he pre-trial and trial procedures to assist someone who was at a disadvantage
- the extent to which a judge or magistrate overseeing the case assists a self represented party or a vulnerable party so they are on a level playing field
access
people should be able to understand their legal rights and should be able to pursue their claims (whether they are the plan stiff or the defendant)
people should be able to use the procedures, methods and institutions that resolve a civil dispute, including courts, tribunals, bodies and institutions that provide legal advice, education, information, assistance and representation.
- the availability of a range of methods and bodies that can be used to resolve civil disputes, such as complain bodies, tribunals and courts.
- the costs and delays associated with having a dispute resolved
- the complex nature of procedures in having a dispute resolved
- the availability of legal advice and assistance to parties
- the extent to which members of the community understand legal rights
- the formalities associated with a hearing or trial
product liability class actions
where consumers who have purchased a good or service have all experienced the same loss or damage
natural disaster class actions
where the group members have all suffered loss or damage as a result of a natural disaster
benefits of representative proceedings
- the group members can share the cost
- is a more efficient way of the court dealing with a number of claims, saving court time and the time pf court personnel
- people can pursue civil actions they might not be able to afford in an individual case, giving them access to the courts to resolve their disputes
- certain circumstances a litigation funder may be prepared to fund the class action in return for a percentage of the settlement ir damages awarded
litigation funder
a third party who pays for some or all of the costs an expenses associated with initiating a claim in return for a share of the amount recovered. litigation funders are often involved in representative proceedings
plaintiff
the party who makes the legal claim against another in court
defendant
a party who is alleged to have breached a civil law and who is being sued by the plaintiff
sue
to take civil action against another person claiming they have infringed some civil right of the plaintiff
civil dispute
a disagreement between two or more individuals (or groups) in which one of the individuals makes a claim against the other
parties can include individuals, corporations, and government bodies.
remedy
an order made by court designed to address the civil wrong or breach. a remedy should provide a legal solution for the plaintiff for a breach of the civil law by the defendant and (as much as possible) restore the plaintiff to their original position prior tot he breach if their rights.
employers
if an employee infringes a persons rights while acting in the course of their employment, the injured person may be able to sue the employer due to the concept of vicarious liability
vicarious liability
the legal responsibility of a third party for the wrongful acts of another
children
a child under the age of 18 can sue another person or group through a litigation guardian (usually a parent or guardian)
children can also be sued, their liability depends on the Childs level of maturity and the behaviour expected at that age
factors considered before initiating a civil claim
- negotiation option
- costs
- limitation of actions
- the scope of liability
- enforcement issues
negotiation options
involve parties interacting directly with the aim of resolving the dispute directly with the defendant
- may involve an impartial third party known as a mediator
- arranging a negotiation or other dispute resolution service through a body such as the Dispute Settlement Centre of Victoria or FMC Mediation and Counselling Victoria
mediator
an independant third party who dies not interfere or persuade but helps the parties in a mediation as they try to reach a settlement of the matter
the Dispute Settlement Centre of Victoria
offers some free services that help resolve vernal disputes
FMC Mediation and Counselling Victoria
offers dispute resolution services for family conflicts and other disputes
costs associated with civil cases
- fees for legal representation
- disbursements -
- the costs of filing a case and the cost of the hearing or trial
fees for legal representation
that vary depending on complexity, size and length of the case, the court in which the case will be heard, the expertise of the solicitor/barrister
- disbursements
costs such as court fee, mediation fees (can incur a cost between $2 000=$20 000) or fee paid to expert witnesses
court fees
involve the cost of filing a case
the cost of the hearing or trial
the cost of the jury if one is used (the party who choses tp have a jury will incur that cost.)
limitation of actions
there are restrictions placed on when a civil action can be commenced referred to s the limitations period. the Limitations Act 1958 (Vic) sets out the time frame for a plaintiff to commence civil action. the plaintiff may raise the claim and it is the defendants responsibility to raise the defence
the scope of liability
who are the possible defendants and to what extent are they liable/ a civil wrong may include a party other that the person who directly infringed the plaintiff. possible defendants may include an employer, and insurer or another arty that was also involved in the wrong doing.
vicarious liability
employers may be liable for the actions of an employee if it can be established that an employee was acting of the course of their employment when the events took place of there is a connection with the wrongdoer’s wrongful action and their employment than this principle will apply
contributory negligence
the defendant may argue that the plaintiff is in part to blame for the harm done hence reducing the defendants liability.
enforcement issues
issue that arise from the defendant not being able to pay a sum of money to the plaintiff or refusing too. this may be in circumstances of; bankruptcy, inability to pay, imprisonment, overseas or uncontactable
consumer affairs Victoria (CAV)
offer free dispute resolution services to people who make a complaint
purpose of CAV
the Victoria’s consumer affairs regulator provides consumers and orders, landlords and traders, with a dispute resolution process and intend to assist people in settling a dispute efficiently and constructively
the main method CAV
conciliation
a conciliator does not make decisions on behalf of the parties however the listen to each side and provides suggestions exploring possible solutions allowing the parties to come to their own decision
if they come to a decision that may sign terms of settlement which reflects their agreement
appropriateness of CAV
- dispute within jurisdiction
- the dispute is likely to settle
- alternative better ways to resolve the dispute
in CAV jurisdiction
limited to assisting in the settlement disputes that are delegated through victorian statutes assist with disputes - the supply of goods and services - residential tendencies - retirement villages - owner's corporations cannot conciliate -discrimination disputes - employment disputes - family law matters
likelihood to settle
will help settle a dispute is there is a reasonable
- there has been no delay in the person complaining to CAV
- the Car database does not have record of previous refusal to participate in conciliation for previous disputes
- the person complaining has not contributed in the dispute with inappropriate behaviour
dispute is not overly subjective
- the trader has not already made a reasonable offer
alternative methods of resolution CAV
parties must consider if there are better ways to solve the dispute
- whether they have tried to resolve the dispute themselves
- dispute is best resolved via court or tribunal to make biding orders on parties
- likelihood the parties take the conciliation process seriously
- parties may prefer formality of a court or tribunal
- too big or complex
- resolution is urgent
CAV strengths
- free
- informal
- procedure fairness
- case by case
- timely manner
- reach a resolution themselves
CAV weaknesses
- role is limited
- no power to compel parties
- no power to enforce decisions
- not all cases are accepted
- parties may fail to take it seriously
- appropriateness
victorian civil and administrative tribunal
dispute resolution bodies that deal with limited areas of law intended to be cheaper and more efficient way of resolving resolutions
VCAT hears and determines a range of civil and administrative cases in Victoria
5 cat division
- administrative
- civil
- human rights
- planning and environment
- residential tenancies
administrative
professional conduct inquiries and applications review decisions made by government and other authorities
civil
civil disputes relating to consumer matters, domestic building works, owners corporation matters property disputes
human rights
relating to guardianship and administration, equal opportunity racial and religious vilification
planning and environment
deals with reviews of decisions made by councils or other authorities
residential tenancies
tenancy disputed between residential tenants and land lords
purposes of VCAT
- low cost
- accessible
- efficient
- independant
methods of VCAT
- mediation
- compulsory conferences
- a final hearing
