AoS2 Unit 3

Question 1

civil dispute

Answer 1

a dispute between two or more individuals (or groups) in which one of the individuals makes a legal claim against the other

Question 2

remedy

Answer 2

any order made by a court designed to address a civil wrong or breach

Question 3

civil law

Answer 3

an area of law that defines the rights and responsibilities of individuals, groups and organisations in society and regulates private disputes

Question 4

parties to a civil dispute

Answer 4

Plaintiff
Defendant

Question 5

Plaintiff

Answer 5

the party who makes a legal claim against another person in court

Question 6

defendant

Answer 6

a party who is alleged to have breached a civil law who is being sued by a plaintiff

Question 7

damages

Answer 7

an amount of money that the court orders one party to pay another party.

Question 8

vicarious liability

Answer 8

the legal responsibility of a third party for the wrongful acts of another (e.g. an employer’s liability for what their employees do)

Question 9

types of civil disputes

Answer 9

family law
breach of contract
defamation
nuisance
trespass to land
negligence
wills and inheritance

Question 10

dispute resolution bodies

Answer 10

complaints bodies, such as Consumer Affairs Victoria
tribunals such as the Victorian Civil and Administrative Tribunal
Courts

Question 11

the Burden of Proof

Answer 11

the obligation of a party to prove a case. the Burden of proof rests with the party who initiates the action

Question 12

counterclaim

Answer 12

a separate claim made by the defendant in response to the plaintiff’s claim

Question 13

standard of proof

Answer 13

the balance of probabilities

Question 14

representative proceedings

Answer 14

a legal proceeding in which a group of people who have a claim based on similar or related facts bring that claim to court in the name of one person

Question 15

types of representative proceedings

Answer 15

• Shareholder class actions, where shareholders of a company may make a claim about being misrepresented about the state of the company’s affairs
• Product liability class actions, where consumers who have purchased a good or service have all suffered the same loss or damage
• Natural disaster class actions, where the group members have suffered loss or damage as a result of a natural disaster

Question 16

benefits of representative proceedings

Answer 16

• the group members can share the cost
• more efficient way of the court dealing with a number of claims
• allowing people to pursue actions they may not be able to afford in an individual case

Question 17

relevant factors when initiating a civil claim

Answer 17

• negotiation options
• costs
• limitation of actions
• the scope of liability
• enforcement issues

Question 18

negotiation options

Answer 18

whether the dispute can be resolved out of court or tribunal. trying to negotiate a resolution of the dispute directly with the defendant without initiating a claim.

Question 19

the benefits of negotiating

Answer 19

• the costs, time and the stress. involved in commencing a formal civil action may be avoided
• the parties have control over the outcome, as opposed to it being decided for them by a third party
• the parties may be more prepared at accept an outcome that they have helped come to

Question 20

costs

Answer 20

a party involved in a civil dispute may incur costs in resolving a civil dispute.the costs include fees for legal representation, disbursements, and possible costs to be paid to the other party if the plaintiff is unsuccessful.

Question 21

disbursements

Answer 21

• court fees
• mediation fees
• expert witness fees

Question 22

fees for legal representation

Answer 22

engaging a solicitor and a barrister is costly, and often in court cases a party will engage both. the client is paying for a high level of experience and training, and the party may be paying the lawyer on an hourly basis.

Question 23

adverse costs orders

Answer 23

if the plaintiff is unsuccessful, they will have to pay for their own legal costs, and may be ordered to pay for some of the defendants costs

Question 24

limitation of actions

Answer 24

limitation of actions refers to the restriction on bringing a civil claim after the allowed time

Question 24

limitation of actions

Answer 24

limitation of actions refers to the restriction on bringing a civil claim after the allowed time

Question 25

the purpose of imposing limitations on the plaintiff

Answer 25

• the defendant does not have to face an action after a significant amount of time
• evidence is not lost and people can still remember what happened
• disputes can be resolved as quickly as possible, to promote social cohesion

Question 26

the scope of liability

Answer 26

before initiating a claim, a plaintiff needs to determine:
- who are the possible defendants
- to what extent the defendant may be liable

Question 27

possible defendants

Answer 27

there may be a party other than the person who directly infringed the plaintiffs rights who the plaintiff may sue, and may be liable to compensate the plaintiff:
- an employer
- an insurer
- a person who was involved in the wrong doing

Question 28

the extent of the defendant’s liability

Answer 28

the defendant may argue that if they are found liable, then they are only liable for a part or a portion of the plaintiff’s loss or damage

Question 29

enforcement issues