Civil Law Flashcards
Purpose of Civil Justice System
protect the rights of the individuals and award remedies to restore them to original position when their rights have been breached
Fairness
legal processes, systems and institutions are unbiased and independent, heard by unbiased adjudicator
Equality
all people treated equally before the eyes of the law regardless of age, gender, culture etc
-same status, rights and opportunities to bring case
Access
all people have ability to pursue their case and understand legal rights
Plaintiff
party whom commences a civil action
-aggrieved party whose rights have allegedly been infringed
Defendant
the party who is alleged to have infringed the rights or caused the wrongdoing
Suing/Litigating
the process of bringing their valid legal claim/civil action against the defendant
Liable
must demonstrate that the defendant is liable- defendants responsible for causing the infringement as a result of their acts or omissions
Vicarious liability
the legal responsibility of a third party for the wrongful acts of another
-Employer responsible for their employee if in their line of work
Burden of proof
the party that have then onus of proving the facts of the case
-rests with the plaintiff
Standard of proof
refers to the strength of evidence or level of proof that must be met to prove the case
-on 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 the claim to court in the name of one person
Criteria for representative proceedings
- seven or more people have claims against the same person
- claims relate to the same/similar circumstances
- same legal issues to be decided
Benefits of representative proceedings
- 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
Factors to consider when initiating a claim
- Negotiation options
- Cost
- Limitation of actions
- Scope of liability
- Negotiation options
Negotiation options
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
Costs
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
Limitation of Actions
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)
Scope of Liability
should consider who the possible defendants are and to what extent are they liable
-vicarious liability
Extent of liability: fully/partially liable
Enforcement issues
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
Consumer Affairs Victoria (CAV)
- 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
What does CAV do?
- advises and educates about rights, responsibilities and legislation changes
- conciliates disputes between consumers/traders/landlords and tenants
- ensures compliance w consumer laws
CAV’s Jurisdiction and who they can help
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
Can CAV help?
-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)
Strengths of CAV
- 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
Weaknesses of CAV
- limited jurisdiction
- cannot compel parties to attend
- no power to enforce outcomes unless sign
- not appropriate for large/complex cases
Victorian Civil and Administrative Tribunal (VCAT)
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
Purposes of VCAT
- Low cost ($62.70 filing)
- Accessibility
- Efficient
- Independent
Methods VCAT use
- Mediation (SMAH)
- Compulsory conferences (conciliation method)
- Final Hearing (judicial determination)
Does VCAT enforce decisions
-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
Strengths of VCAT
- cheaper
- timely
- informal
- binding final decision
Weaknesses of VCAT
- cannot hear large complex cases
- limited ability to appeal
- too informal
- long delays
- inconsistencies due to not being a part of court hierarchy
Civil Pre-trail procedures
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
Pleadings
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
Purpose of Pleadings
- 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)
Discovery of Documents
stage where parties can get copies of documents that are relevant to the issues in dispute
- contracts
- medical records
- invoices/receipts
Purpose of discovery
- disclose all relevant documentation
- decrease element of surprise
- determine strength of other sides case
- assist in reaching out of court settlement
Exchange of evidence
- 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
Purpose of exchange
- reduce element of surprise by avoiding ‘trial by ambush’
- determine likelihood of success by strength of evidence
- chance to rebut evidence
Reasons for a court hierarchy: Administrative convenience
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
Reasons for a court hierarchy: Appeals
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
Role of Judge
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