AOS2a

Question 1

sue
Lesson 1

Answer 1

to take civil action against another person claiming they have infringed some legal right of the plaintiff

Question 2

litigate
Lesson 1

Answer 2

Commencing a civil action in court

Question 3

liable
Lesson 1

Answer 3

Finding one party is responsible for another’s loss/infringement

Question 4

Remedy
Lesson 1

Answer 4

Orders made by a court/tribunal to address a civil wrong/breach in order to restore the plaintiff back to their original position, in the form of injunctions or damages

Question 5

Counterclaim
Lesso 1

Answer 5

defendant asserts plaintiff was actually at fault for their (the defendants) loss. This reverses the burden of proof.

Question 6

Common civil disputes
Lesson 1

Answer 6

Negligence - Sueing for a breach of duty of care
Defamation - Sueing for false statements which have damaged the plaintiff’s reputation
Breach of contract

Question 7

Civil Parties
Lesson 1

Answer 7

Plaintiff - party that commences civil action and claims their rights have been infringed (the aggrieved/wronged party)
Defendant - party alleged to have infringed the plaintiffs’ rights

Question 8

Burden of Proof (Civil)
Lesson 1

Answer 8

Rests upon the plaintiff, unless defendant files a counterclaim or raises a defense (e.g. contributory negligence)

Question 9

Standard of proof (civil)
Lesson 1

Answer 9

The strength of evidence required to prove the case. In civil, it is on the balance of probabilities - it is more likely than not the defendant has committed a wrong

Question 10

Cost factors
(Lesson 2)

Answer 10

Fees for legal representation - solicitor and barristers fees

Disbursements - other expenses in preparing case e.g. filing fees, admin fees

Adverse court orders - legal requirement one party pays another’s legal costs

Question 11

Limitation of actions
(Lesson 2)

Answer 11

A restriction on the time limit in which a plaintiff must commence a civil action under the Limitations of Actions Act 1958 (Vic)

Encourages parties to file disputes timely, ability for witnesses to recall incident, ensure good quality of evidence

Question 12

Enforcement issues
(Lesson 2)

Answer 12

A factor that involves whether their claim can hold the liable party to account.

Bankruptcy/unemployed/company lacking assets (can’t pay)
Defendant is overseas, in prison, or unknown (can’t reach)

Question 13

Elements of fairness (civil)
(Lesson 3)

Answer 13

Impartially - independent and impartial adjudicator can preside over case
- judge and jury must reach a verdict based on evidence and facts

Open - court disputes are open to the public including judgements
- however juries are not required to present their reasons for their decision

Participation - pretrial procedures means the defence gain gain information about their case
- all plaintiffs have the right to lodge a complaint against a defendant because of a loss

Question 14

Elements of equality (civil)
(Lesson 3)

Answer 14

Formal equality - all parties can request and pay for a jury
- all parties can initiate a claim if they can demonstrate their rights have been infringed

Substantive equality - interpreters are required for individuals with limited English
- organisations such as VLAs and CLCs can provide extra support to individuals with limited funds

Question 15

Elements of access (civil)
(Lesson 3)

Answer 15

Engagement - range of dispute resolution services e.g. tribunals, dr, cav
- class actions allow individuals to engage for lower costs

Informed basis - specialist CLCs can assist certain groups with vulnerabilities
- hwvr self help requires a certain level of understanding

Question 16

Mediation
(Lesson 4)

Answer 16

Least formal and expensive dispute resolution outside and in the court system. Mediator, impartial 3rd party, facilitate discussion and compromise. Not legally binding (unless deeds of settlement)

When/where

Question 17

Mediation appropriateness
(Lesson 4)

Answer 17

Appropriate for maintaining relations, when privacy is wanted, when lower fees are needed or when a prompt resolution is needed

Inappropriate when there are poor relations/power imbalance

Question 18

Conciliation
(Lesson 4)

Question 19

Conciliation appropriateness
(Lesson 4)

Question 20

Arbitration
(Lesson 4)

Answer 20

Who

When/where

Question 21

Appropriateness of arbitration
(Lesson 4)

Question 22

Strengths and weaknesses of Arbitration
(Lesson 4)

Question 23

Strengths and weaknesses of mediation
(Lesson 3)

Question 24

Strengths and weaknesses of Conciliation
(Lesson 3)

Question 25

Administrative convenience (Lesson 5)

Answer 25

Ability of the courts to distribute resources efficiently and effectively by organising disputes based on complexity

Question 26

Strengths/weaknesses of administrative convenience (Lesson 5)

Answer 26

Strengths - decrease administrative burden so more cases can be heard more effectively and less resources expended Weakness - cannot account for large influx of cases in Australia, large case backlog

Question 27

Appeals (Lesson 5)

Answer 27

When a dissatisfied party applies to have their case reviewed in a higher court on a question of fact or law

Question 28

Strengths/weaknesses of appeals (Lesson 5)

Answer 28

Strengths - holds the decisions of judges and juries accountable by opening them to review, ensuring impartiality and fairer outcomes Weaknesses - expends more court resources and causes delays, pushing back other cases

Question 29

Court hierarchy jurisdiction (Lesson 5)

Answer 29

Magistrates - original over claims of less than $100000 (<$10000 go to arbitration), no appellate County - unlimited original, no appellate Supreme Trial - unlimited original, appeals from VCAT/magis on a point of law (except chief mag of president VCAT) Appeals - no original, hears appeals from chief magi and presidents, and any other appeals High court - no original, appeals from supreme Court of appeal

Question 30

Judge civil role (Lesson 6)

Answer 30

Case management: control legal cases efficiently through judges directions, under the civil procedures act 2010. Includes giving directions to parties, ordering mediation, and ensuring discovery is handled appropriately Determine liability and award remedies, only in the absence of a jury Remain unbiased and not favour either party

Question 31

S/W judges role civil (Lesson 6)

Answer 31

Strengths: - impartial overseer, ensure bias removed, upholds fairness - ensure rules of evidence and procedure apply equally to all parties - case management powers (e.g. ordering mediation, time limits) minimise costs and enhance accessibility Weaknesses: - rely on parties to present all evidence, thus in self represented trials fairness limited - judges are subject to personal bias limiting equality - access limited via high costs and time

Question 32

Judges: similarities and differences civil and criminal (Lesson 6)

Answer 32

Similarities: - judges must be impartial to parties - direct jury Differences: Criminal - provides a sentence - oversees committal hearing Civil - case management: - attend mediation, direct on civil procedures - determine liability and award remedies

Question 33

Parties role civil (Lesson 6)

Answer 33

Plaintiff: - party control (decides which court, what evidence, witnesses and arguments) - disclose information to the defendant under the civil procedures act 2020 - present evidence (lay and experts) Defendant: - party control (evidence, witnesses, can present defence) - disclosing evidence - present defence to judge/jury

Question 34

Juries used in civil cases (Lesson 7)

Answer 34

Made of 6 jurors, parties must seek permission for a jury in civil and fully fund them as they determine liability and award remedies

Question 35

Role of juries in civil (Lesson 7)

Answer 35

Remain objective, biased jurors must be eliminated in empanelment Listen to evidence, judges’ directions and submissions made by legal rep Determine liability on the balance of probabilities with unanimous verdict.

Question 36

Strengths and weaknesses of the jury (Lesson 7)

Answer 36

S: juries cannot conduct independent research outside of the case (Impartiality) Both parties are equally entitled to request a jury (formal equality) Presence of juries can cause plainer explanations and language to be used (access) W: jurors do not have to provide a rationale for their verdict (impartiality + open) Some members of the public are disqualified from empanelment, meaning a true cross section of society can never be provided (equality) Delays may be increased by the use of juries (access)

Question 37

Need for Legal representation in civil

Answer 37

Needed to advise clients of their rights, provide objectivity and support. Individuals are allowed to gain better understanding of their rights and make more informed decisions. Present evidence and cross examine witnesses. Ensure documents are properly drafted and handled

Question 38

Solicitors (Lesson 7)

Answer 38

Practitioners who provide advice and research for a case outside of court.

Question 39

Barristers (Lesson 7)

Answer 39

Self employed lawyer who represents a party in trial

Question 40

Provision of legal aid civil (Lesson 7)

Answer 40

VLA may provide assistance for claims more than $5000, if the defendants sole home is at immediate risk, or if there is a strong prospect for defence. CLCs target specific groups for assistance.

Question 41

Strengths and Weaknesses of legal representation (Lesson 7)