Civil Law Flashcards

1
Q

Purpose of Civil Justice System

A

protect the rights of the individuals and award remedies to restore them to original position when their rights have been breached

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2
Q

Fairness

A

legal processes, systems and institutions are unbiased and independent, heard by unbiased adjudicator

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3
Q

Equality

A

all people treated equally before the eyes of the law regardless of age, gender, culture etc
-same status, rights and opportunities to bring case

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4
Q

Access

A

all people have ability to pursue their case and understand legal rights

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5
Q

Plaintiff

A

party whom commences a civil action

-aggrieved party whose rights have allegedly been infringed

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6
Q

Defendant

A

the party who is alleged to have infringed the rights or caused the wrongdoing

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7
Q

Suing/Litigating

A

the process of bringing their valid legal claim/civil action against the defendant

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8
Q

Liable

A

must demonstrate that the defendant is liable- defendants responsible for causing the infringement as a result of their acts or omissions

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9
Q

Vicarious liability

A

the legal responsibility of a third party for the wrongful acts of another
-Employer responsible for their employee if in their line of work

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10
Q

Burden of proof

A

the party that have then onus of proving the facts of the case
-rests with the plaintiff

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11
Q

Standard of proof

A

refers to the strength of evidence or level of proof that must be met to prove the case
-on the balance of probabilities

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12
Q

Representative proceedings

A

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

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13
Q

Criteria for representative proceedings

A
  • seven or more people have claims against the same person
  • claims relate to the same/similar circumstances
  • same legal issues to be decided
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14
Q

Benefits of representative proceedings

A
  • share the cost of litigation
  • more efficient manner for the courts to deal with number of claims that are similar
  • ability of plaintiff to pursue legal action where they previously wouldn’t have been able to (cost)
  • litigation funder may agree to fund class action on behalf in return of percentage of damages won
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15
Q

Factors to consider when initiating a claim

A
  • Negotiation options
  • Cost
  • Limitation of actions
  • Scope of liability
  • Negotiation options
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16
Q

Negotiation options

A
informal discussions between the parties aiming to come to an agreement about how to resolve the dispute
\+avoid costs and trial
\+happy with outcome
-one party doesn't want to discuss
-urgency in matter/harm or threat
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17
Q

Costs

A

whether the cost of initiating a claim will be outweighed by the compensation that they receive

  • fees for legal rep
  • disbursements
  • adverse cost orders
  • availability of legal aid
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18
Q

Limitation of Actions

A

restriction on bringing a case to court after the allowed time
-once the time has passed, the defendant can use this defence and the case can be dismissed
(Defamation= 1yr)

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19
Q

Scope of Liability

A

should consider who the possible defendants are and to what extent are they liable
-vicarious liability
Extent of liability: fully/partially liable

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20
Q

Enforcement issues

A

whether the remedy can and will be enforced on the defendant

  • can they and will they pay? (bankrupt?)
  • defendant in jail= hard to enforce
  • oversees and cannot contact
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21
Q

Consumer Affairs Victoria (CAV)

A
  • complaints body
  • acts as a regulator of consumer affairs and est to resolve formal complaints made by individuals about the conduct of another party
  • uses methods of conciliation
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22
Q

What does CAV do?

A
  • advises and educates about rights, responsibilities and legislation changes
  • conciliates disputes between consumers/traders/landlords and tenants
  • ensures compliance w consumer laws
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23
Q

CAV’s Jurisdiction and who they can help

A

Jurisdiction= Statutory body under Australian Consumer Law and Fair Trading Act 2002

  • between purchasers and suppliers/consumers and suppliers (less than $40,000)
  • tenants and landlords
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24
Q

Can CAV help?

A

-is the dispute within its jurisduction
-is the dispute likely to settle
-are there better ways to resolve dispute
(not appellate, only help when made attempt to sort out themselves first)

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25
Q

Strengths of CAV

A
  • free and accessible for all Victorians
  • conciliation- informal and no courtroom anxiety
  • assess case by case and doesn’t waste time on cases unlikely resolved through conciliation
  • timely
  • experienced conciliator
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26
Q

Weaknesses of CAV

A
  • limited jurisdiction
  • cannot compel parties to attend
  • no power to enforce outcomes unless sign
  • not appropriate for large/complex cases
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27
Q

Victorian Civil and Administrative Tribunal (VCAT)

A

a tribunal est in 1998 under VCAT Act 1998 (Vic) to resolve civil disputes in limited area of the law by combining smaller tribunals

  • Administrative (gov work/conduct)
  • Civil (consumer matters/sale and ownership of property)
  • Human Rights
  • Residential tenancies
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28
Q

Purposes of VCAT

A
  • Low cost ($62.70 filing)
  • Accessibility
  • Efficient
  • Independent
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29
Q

Methods VCAT use

A
  • Mediation (SMAH)
  • Compulsory conferences (conciliation method)
  • Final Hearing (judicial determination)
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30
Q

Does VCAT enforce decisions

A

-orders to pay money
-requiring ppl to do work/vacate etc
-make not do something
-cancel contracts
-dismiss claims
Appeals: only on point of law

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31
Q

Strengths of VCAT

A
  • cheaper
  • timely
  • informal
  • binding final decision
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32
Q

Weaknesses of VCAT

A
  • cannot hear large complex cases
  • limited ability to appeal
  • too informal
  • long delays
  • inconsistencies due to not being a part of court hierarchy
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33
Q

Civil Pre-trail procedures

A

When pursuing case in court mandatory processes and procedures must be undertaken before dispute is ready for trial

  • Supreme Court (General Civil Procedure) Rules 2015
  • County Court Civil Procedure Rules 2008
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34
Q

Pleadings

A

series of documents shared between parties

  • writ: document from plaintiff to defendant about claim, where trial will be etc
  • statement of claim: document filed with court by plaintiff served to defendant which sets out detail of claim and remedy sought
  • defence: document by defendant outlining response to claim
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35
Q

Purpose of Pleadings

A
  • identify main claims and ensuring both parties are aware
  • court has record
  • promote out of court settlement
  • compel parties to state facts they want to prove (no surprise)
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36
Q

Discovery of Documents

A

stage where parties can get copies of documents that are relevant to the issues in dispute

  • contracts
  • medical records
  • invoices/receipts
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37
Q

Purpose of discovery

A
  • disclose all relevant documentation
  • decrease element of surprise
  • determine strength of other sides case
  • assist in reaching out of court settlement
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38
Q

Exchange of evidence

A
  • Lay evidence: ordinary people provide evidence- witness statements
  • Expert evidence: experts are called upon to give opinion about issues of case, expertise and knowledge in the area
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39
Q

Purpose of exchange

A
  • reduce element of surprise by avoiding ‘trial by ambush’
  • determine likelihood of success by strength of evidence
  • chance to rebut evidence
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40
Q

Reasons for a court hierarchy: Administrative convenience

A

ensures courts resources and time are not wasted and promotes efficiency and just resolution of disputes

  • less serious and complex cases heard in lower courts and complex cases in higher court
  • courts resources are not wasted by dealing with minor disputes that can be resolved in lower court
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41
Q

Reasons for a court hierarchy: Appeals

A

party who is dissatisfied with a decision can have the matter reviewed in a higher court by a judge with more seniority
-point of law (applied incorrectly)
-question of fact (facts inappropriately applied)
-remedy (too harsh/not harsh enough)
no hierarchy, no system of review

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42
Q

Role of Judge

A

impartial and independent adjudicator to ensure court procedures are carried out in accordance with court rules and each party are treated fairly
-no jury, decide on facts and outcome

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43
Q

Responsibilities of Judge

A

Managing trial

  • case management
  • give directions
  • decide on admissibility of evidence
  • attend to jury matters
  • determine liability and remedy
  • make decisions about costs
44
Q

Role of Jury

A

decide on facts it believes to be true and apply laws

  • not compulsory in civil trials
  • 6 jurors
45
Q

Responsibilities of Jury

A
  • be objective
  • listen and remember evidence
  • understand evidence
  • decide on liability and damages (not in defamation cases, judge will decide remedies)
46
Q

Role of the parties

A
  • have complete party control over decisions about how the case will run as long as all rules of evidence and procedure are followed
  • plaintiff and the defendant
47
Q

Responsibilities of the Parties

A
  • meet the burden of proof (plaintiff)
  • make opening and closing statements
  • present evidence to the judge and jury
  • comply with their overarching obligations
48
Q

Role of Legal Practitioners

A

on behalf of the parties, undertake the role of preparing and conducting the case as they are experts and familiar with civil trials
-this is so that the parties can present the best possible cases and achieve a just outcome

49
Q

Responsibilities of Legal Practitioners

A
  • make opening and closing statements
  • present evidence to the judge and jury
  • comply with their overarching obligations
50
Q

Overarching obligations

A

Civil Procedure Act 2010 (Vic)

  • act honestly
  • cooperate
  • don’t mislead or deceive
  • only take steps to resolve the dispute
  • minimise delays
  • etc
51
Q

Judicial powers of case management

A

judges withhold the power to manage a case. This involves providing them with directions and recommendations about how the should proceed with their case

52
Q

Sources of judicial powers of case management

A
  • Magistrates’ Court General Civil Procedure Rules 2010
  • County Court Civi Procedure Rules
  • Supreme Court (General Civil Procedure) Rules
  • Civil Procedure Act 2010
53
Q

Purpose of judicial powers of case management

A

facilitate the just, efficient, timely and cost effective resolution of a dispute

54
Q

Case management powers of the judge

A
  • The power to order mediation

- the power to give directions

55
Q

The power to order mediation

A

Judge holds the power to make an order referring a civil proceeding to mediation at any stage if it is considered to be successful in resolving the dispute
-can occur at any stage, but must be before the judge has handed down their decision
Purpose: promote an efficient and cost effective resolution

56
Q

The power to give directions

A

The court may give directions or make orders that it considers appropriate at any stage of a civil proceeding
Purpose: minimise delays/parties know what directions they need to follow

57
Q

Examples of directions given by the judge

A

Before trial: -timelines and deadlines for steps
-alternative methods of resolving disputes
-how the proceeding will be conducted
During trial: -limiting evidence that can be tendered/amount of witnesses that can be called
-who will bear costs
-whether evidence is written or oral

58
Q

Methods to resolve disputes: Courts

A

main method used to resolve disputes

-must consider: whether the case is within their jurisdiction/ if there is a better way to resolve the dispute

59
Q

Factors to consider when using the courts

A
  • are there better ways to resolve the dispute
  • costs associated with using the courts
  • risks with having a third party decide on the outcome of a case
  • whether they can access/can afford legal representation
  • the strictness of courtroom formalities/evidence and procedure
  • size and complexity of the matter (if trial will be lengthy and if there will be delays)
60
Q

Strengths of using courts

A
  • administrative convenience
  • provides opportunity to reach out of court settlement
  • pre trial procedures gives opportunity to know strength of other sides case
  • procedures and laws equally applied
  • judge is independent and impartial
  • experts
  • jury= reflection of community values
  • outcome gives finality and certainty
61
Q

Weaknesses of using courts

A
  • delays causing unfairness
  • costs can make it expensive
  • stressful
  • jurors aren’t experts and can incorrectly apply law jeopardising outcomes
  • jurors don’t have to give reasons for decisions
  • better lawyers may be looked favourably upon therefore decision sing made on who is liable
62
Q

Mediation

A

co-operative method of dispute resolution where an independent and impartial third party helps to resolve the dispute without offering advice or suggestions to help reach an agreement

63
Q

When is mediation used

A
  • Private
  • Courts
  • VCAT
64
Q

Conciliation

A

co-operative method of dispute resolution where an independent and impartial third party helps to resolve the dispute offering advice and suggestions to help reach an agreement
if they cannot reach an agreement, the conciliator will make suggestions

65
Q

When is conciliation used

A
  • VCAT (compulsory conferences)
  • CAV
  • Private
  • courts can order mediation in special circumstances
66
Q

When is mediation/conciliation appropriate

A
  • maintain relationships
  • willing to co-operate
  • liability has already been established and remedy is in dispute
  • privacy and confidentiality
  • referred to mediation/conciliation
  • expected large legal costs
67
Q

When is mediation/conciliation inappropriate

A
  • overwhelming emotions will interfere with negotiation
  • history of broken promises
  • history of violence/threats
  • unwilling to resolve dispute
  • imbalance between parties
  • matter is urgent
68
Q

Strengths of mediation/conciliation

A
  • less formal/less intimidating
  • third party has expertise
  • save time/cheaper
  • private and confidential
  • voluntary (not forced to attend)
  • savings for CJS
69
Q

Weaknesses of mediation/conciliation

A
  • decision may not be enforceable unless signed
  • one party may be manipulative therefore causing one party to compromise too much
  • parties can refuse to attend
  • may not be resolved so litigation is required anyway
  • decisions to not form precedent- leads to inconsistencies
  • decision doesn’t form precedent
70
Q

Arbitration

A

method of dispute resolution that involves an independent arbitrator who will listen to both sides and make a binding decision on the parties

71
Q

When is arbitration used?

A
  • courts (MC/CC/SC have power (MC under $10,000)
  • VCAT- do not use arbitration but can refer if it is a better option
  • Private- arranged their own
72
Q

When is arbitration appropriate?

A
  • small claims below $10,000 in MC
  • when both parties consent
  • want benefits of binding and enforceable decision
  • parties want to present evidence/formalities of evidence and procedure/more than med and conciliation
  • confidentiality and avoid publicity
73
Q

When is arbitration inappropriate?

A
  • when parties do not consent
  • want greater control over outcome or process
  • parties want ‘day in court’/ rather not have matter heard privately
  • more formal rules of ev and procedure and would rather the court process
74
Q

Strengths of arbitration

A
  • binding decision = enforceable
  • held in private and confidential
  • parties have more control over how arbitration is conducted
  • arbitrator is an expert
  • timely resolution
  • costs less (typically)
75
Q

Weaknesses of arbitration

A
  • still formal, increase stress, time and costs
  • no control over outcome imposed
  • increase costs and time depending on nature and methods
  • not available if both parties do not agree
  • limited right to appeal
76
Q

Remedies….

A

any order made by a court designed to address a civil wrong or breach and should provide a legal solution for the plaintiff for a breach in the civil law by the defendant

77
Q

Purpose of remedies

A

restore the plaintiff, as far as possible, to the position they were in before the wrong occurred

78
Q

Types of remedies

A
  • Damages: amount of money awarded to the plaintiff to be paid by the defendant
  • Injunction: court order that requires the defendant to refrain from doing something or complete an action
79
Q

Damages

A

amount of money that the court awards to the plaintiff in an attempt to mitigate their loss

80
Q

Purpose of damages

A

compensate the plaintiff for the losses suffered so as to return them to the position they were in before the defendant caused the harm
-financial loss/physical or mental loss/loss of reputation

81
Q

Compensatory damages

A

most common form of damages that compensate the plaintiff for the loss that they have suffered

82
Q

Purpose of compensatory damages

A

restore the parts whose rights have been infringed, as far as possible, to the position they were in before the infringement by compensating them for their losses suffered
-may not always be possible for injuries

83
Q

Types of compensatory damages

A
  • Specific
  • General
  • Aggravated
84
Q

Specific damages (C)

A

easily and accurately calculated (exact values)

e.g. medical expenses/loss of wages

85
Q

General damages (C)

A

assessed by the courts based upon the magnitude of the wrong and the consequences (cannot be calculated exactly)
e.g. pain and suffering/future loss of wages

86
Q

Aggravated damages (C)

A

compensate the plaintiff if the defendants conduct injured the plaintiff’s feelings by causing humiliation and insult

87
Q

Nominal damages

A

small amounts of money awarded to the plaintiff by the court when the courts recognise that the plaintiff has a legal right to sue but has suffered no/minimal loss

88
Q

Purpose of nominal damages

A

uphold the plaintiffs right without awarding any substantial amount of damages

89
Q

Contemptuous damages

A

small amounts of money awarded when the court believes that the plaintiff has a legal right to bring the matter before the court but does not have a moral one

90
Q

Purpose of contemptuous damages

A

recognise the legal right of the plaintiff but express disapproval of the court by only awarding small amounts of money

91
Q

Exemplary damages

A

amounts awarded to the plaintiff that equate to more than their quantifiable losses
-punitive damages

92
Q

Purpose of exemplary damages

A

punish the defendant for an extreme infringement of rights and deter others from undertaking the same types of actions

93
Q

Injunctions

A

a court order directing someone to stop doing a certain act or compelling someone to do a certain act

94
Q

Purpose of injunctions

A

rectify a situation caused by a person who was found to be in the wrong

95
Q

Types of injunctions

A
  • Restrictive/prohibitive: ordering a person to refrain from undertaking an action
  • Mandatory: ordering a person to do a particular act
96
Q

Interlocutory injunctions

A

temporary injunctions awarded quickly in circumstances where there is urgency

97
Q

Final injunctions

A

injunctions can be made final at trial where they are permanent or not temporary and must be upheld

98
Q

Factors to consider if damages have achieved their purpose

A
  • what sort of loss have they suffered
  • unquantifiable losses?
  • can money restore them
  • does the defendant have the capacity to pay?
  • other remedies that would be better to compensate?
  • other reasons the plaintiff may not be restored?
99
Q

Factors to consider if injunctions have achieved their purpose

A
  • has the defendant already done something?
  • is the plaintiff stopping them from causing future harm?
  • will an injunction stop their actions in future?
  • will the defendant comply
  • even if the defendant does comply, will it restore the plaintiff
  • would another remedy be better?
100
Q

Factors to consider in the civil justice system

A
  • cost
  • time
  • accessibility
101
Q

Cost factors

A
  • legal representation
  • court and tribunal costs/disbursements
  • missing income to attend court?
  • adverse cost orders
  • limited VLA
102
Q

Time factors

A
  • complexity of cases
  • court and tribunal backlogs
  • pre trial procedures
103
Q

Accessibility factors

A
  • barriers to communication

- residents living in rural or remote locations

104
Q

Recent reform for cost factors

A

Group Cost Orders in Class Actions

  • 2020 amendment of Justice Legislative Miscellaneous Amendment Act 2019 to allow courts in class actions to make group cost order
  • solicitor calculate fee as a % of damages awarded
105
Q

Recent reform for time/delays and accessbility

A

2020
Vic gov give VCAT $5 million to upgrade online dispute resolution services
-matters can be heard online

106
Q

Recent reform for accessibility

A

2017, $34.7 million invested into legal system to support disadvantaged Victorians and increase ability to use legal system

  • $7.23m in legal aid grants to ensure better access to legal rep
  • $1.27m into translation and interpreter services
107
Q

Recommended reform for accessibility

A

Improving access by overcoming language barriers

  • Review by National Justice Interpreter Scheme in 2017= limited ability of interpreter services for language affected people
  • recommendations