Civil

Question 1

liable

Answer 1

an outcome whereby the courts finds that the defendant is responsible for causing the infringement as a result of their acts or omission

Question 2

Representative proceedings:

Answer 2

Also known as ‘class actions’, these are claims initiated by the plaintiff on their own behalf (known as the lead plaintiff) and, on behalf of ‘group members’ where the claim arises out of similar or related legal interests.
A minimum of 7 members are required to form a class action.

Question 3

Strengths of rep proc

Answer 3

• Class action save costs and allow individuals ability to pursue an outcome over a complex legal matter without being hindered by high costs. This is because costs are often shared among a large group of people making them more accessible/affordable.
• Individuals involved gain a share of the damages awarded, this varies depending on the gravity of injuries suffered
• Court resources are used efficiently by determining a large number of claims in a timely and efficient manner, reducing delays and improving access
• Class actions can remove power imbalance, allowing individuals to hold large powerful organisations to account
• Legal practitioners have professional responsibilities guided by the Civil Procedures Act 2010 (Vic) and court rules to uphold ethical duties to the courts, protecting against any conflict of interest

Question 4

weaknesses of rep proc

Answer 4

• Group members are bound by the judgement, unless they opt out, and they are unable to initiate a private claim in future
• There has been controversy over the equitable distribution of amounts awarded among a large number of claimants e.g. payouts to over 5000 claimants from Black Saturday bushfires
• Excessive legal costs of litigation may consume the entire amount awarded by the court and therefore leave the claimants with no payout/remedy
• Due to the complex nature of class actions including high volume of evidence to be considered, these types of disputes can take months if not years to settle (e.g. the Black Saturday bushfires class-action took nine years to settle)
• Litigation funders are likely to only accept matters with a high likelihood of success
• Percentage or commission charged by litigation funders equals between 25% to 40% of any compensation awarded

Question 5

factors to consider when initiating

Answer 5

negotiation options, costs, limitation of actions, scope of liability, enforcement issues

Question 6

CAV

Answer 6

an independent, government, statutory body created to regulate, monitor and educate consumers on their rights and, obligations of businesses.

Question 7

who can CAV assist

Answer 7

provided
§ Disputes between landlords and tenants regarding rental properties
§ Disputes regarding sale of property with regards to real estate agents, auctions, private sales
§ Disputes regarding between seller and purchaser with regards to the sale of a motor vehicle
§ Disputes that involve building and renovation of property
§ Disputes that involve tenants within retirement villages

Question 8

criteria to accessing CAV

Answer 8

§ Does the matter fall within CAV’s jurisdiction?
§ Have the parties attempted self-help but have been unsuccessful?
§ Is there is reasonable likelihood of success?
§ Neither VCAT or courts have been involved in the dispute

Question 9

VCAT

Answer 9

Definition:VCAT is a statutory, independent government body that was established in 1998 in order to hear minor civil disputes.

Legislation: VCAT derives is jurisdiction and powers from the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

Purpose: The purpose of VCAT is to provide individuals with a relatively cheap, timely, informal and efficient manner to resolve their civil disputes.

Question 10

MC original and appellate

Answer 10

up to$100,000 no appellate

Question 11

CC original and appellate

Answer 11

unlimited jurisdiction and no appellate

Question 12

SC (TD) original and appellate

Answer 12

unlimited

point of law from MC

Question 13

SC (COA)

Answer 13

no original

appeals from single judge SC or CC

Question 14

HC

Answer 14

constitutional and federal manners

appeals from single justice of HC, SC

Question 15

Reasons for court hierarchy

Answer 15

appeals, administrative convenience

Question 16

role of judge

Answer 16

Undertake case management, Overseeing jury selection and empaneling process, Deciding admissibility of evidence, Enforcing rules of evidence and procedure, Determining a remedy

Question 17

role of jury

Answer 17

Listen and evaluate evidence, Applying the law, Deciding fault + awarding damages

Question 18

role of parties

Answer 18

§ Initiating legal action and nominating the relevant court to hear the matter
§ Determining whether a jury will be used
§ Pre-trial processes
§ Identifying key issues to be presented in court
§ Researching and controlling the evidence, the law and its presentation
§ Determining the type and witnesses to be called

Question 19

role of legal practitioners

Answer 19

§ Represent their clients in court through preparing + presenting their case
§ Protecting the rights of their clients by ensuring fair + equal treatment in the courtroom
§ Researching facts and the relevant law
§ Deciding the order and presentation of relevant materials and witnesses

Question 20

civil pre trial procedures

Answer 20

letter of demand, writ, notice of appearance, pleadings, discovery

Question 21

letter of demand

Answer 21

A letter of demand is a letter sent from the plaintiff (usually via their solicitor) to the defendant advising them that legal proceedings will be initiated unless an agreement is reached. The purpose of this document is:
§ Establish the nature of the plaintiff’s claims & remedy sought
§ Indicates a time limit (usually 14 days) where the defendant must respond
§ Informs the defendant that a writ will be issued and served if failure to respond
§ Enables an early settlement without litigation (court)

Question 22

Writ:

Answer 22

Definition: A writ is a formal document that is issued to the defendant and also to the Supreme court to outline the nature and facts of the case. A writ is the beginning of the litigation process.
A writ is issued when the letter of demand does not resolve the matter.

Legislation: The Supreme Court Rules 2015 – writs are part of the requirements of pre-trial procedures for only the Supreme Court.

Purpose:
§ Informs the defendant that litigation has now been initiated
§ The title of the action, full names + addresses of the parties and statement of claim
§ Provides timely execution of the writ (within 12 months) – going to court
§ Explains the protocol for issuing the writ – the document can be served personally or via fax or telephone

Question 23

Notice of appearance:

Answer 23

Definition: This is a document that is lodged by the defendant within 10 days of receiving the writ to indicate their intention to defend the claim.

Legislation: The Supreme Court Rules 2015

Purpose:
§ Allows the defendant to choose whether they will represent themselves by filing a Notice of Appearance or ignore the writ (this may result in a default judgement being made against the defendant)
Informs the plaintiff that the action will be defended.

Question 24

pleadings

Answer 24

This refers to a process whereby a large number of documents and information is exchanged between the plaintiff and defendant. Pleadings begins as soon as the Notice of Appearance is lodged by the defendant. Pleadings will consist of the following being exchanged:
§ Statement of claim
§ Defence/and or counterclaim
§ Reply

Question 25

Discovery:

Answer 25

Definition:Discovery is a process that involves more information being exchanged to seek further clarification regarding the issues of the case. Discovery can occur via:

Discovery of documents:
This is involves parties sending a Notice to Produce Information to each other which may include the requests to:
§ Medical reports + expert witness reports
§ Letters, emails, contracts
§ Photographs, recordings and other documentary materials
Generally a party cannot refuse to produce documentary evidence if requested to do so by the other party. Failure to provide documents means that documents cannot be produced as evidence in court.

Purposes:
§ Allow parties to request more information + inspection of documents → clarification of the issues
§ Ensure parties disclose all relevant documents in their possession
§ Promote timely access to dispute resolution as the court has power to prevent unnecessary discovery + limit the number of documents
§ Promotes out of court resolution/settlement as parties gain greater understanding of their chances of success in court

Question 26

types of discoveries

Answer 26

Discovery via interrogatories: Both parties have the right to request more information from the other side to ask further questions to gain a better understanding of the facts. Interrogatories = written questions which specifically limited to matters of facts. They must be answered in writing in the form of an affidavit.

Discovery by oral examination: The Supreme Court rules provide that a party may orally examine the other party. Discovery by oral examination cannot be conducted without the consent of the relevant party (consent must be written). Responses given during discovery by oral examination are recorded in a deposition (written record). These answers may be used as evidence in trial. The same purposes are upheld here as for interrogatories.