AoS2 Unit 3 Flashcards
civil dispute
a dispute between two or more individuals (or groups) in which one of the individuals makes a legal claim against the other
remedy
any order made by a court designed to address a civil wrong or breach
civil law
an area of law that defines the rights and responsibilities of individuals, groups and organisations in society and regulates private disputes
parties to a civil dispute
Plaintiff
Defendant
Plaintiff
the party who makes a legal claim against another person in court
defendant
a party who is alleged to have breached a civil law who is being sued by a plaintiff
damages
an amount of money that the court orders one party to pay another party.
vicarious liability
the legal responsibility of a third party for the wrongful acts of another (e.g. an employer’s liability for what their employees do)
types of civil disputes
family law
breach of contract
defamation
nuisance
trespass to land
negligence
wills and inheritance
dispute resolution bodies
complaints bodies, such as Consumer Affairs Victoria
tribunals such as the Victorian Civil and Administrative Tribunal
Courts
the Burden of Proof
the obligation of a party to prove a case. the Burden of proof rests with the party who initiates the action
counterclaim
a separate claim made by the defendant in response to the plaintiff’s claim
standard of proof
the balance of probabilities
representative proceedings
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
types of representative proceedings
- 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
benefits of representative proceedings
- 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
relevant factors when initiating a civil claim
- negotiation options
- costs
- limitation of actions
- the scope of liability
- enforcement issues
negotiation options
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.
the benefits of negotiating
- 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
costs
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.
disbursements
- court fees
- mediation fees
- expert witness fees
fees for legal representation
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.
adverse costs orders
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
limitation of actions
limitation of actions refers to the restriction on bringing a civil claim after the allowed time
limitation of actions
limitation of actions refers to the restriction on bringing a civil claim after the allowed time
the purpose of imposing limitations on the plaintiff
- 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
the scope of liability
before initiating a claim, a plaintiff needs to determine:
- who are the possible defendants
- to what extent the defendant may be liable
possible defendants
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
the extent of the defendant’s liability
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
enforcement issues
