Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Legal Studies > Civil Law > Flashcards

Civil Law Flashcards

1
Q

Sue definition

A

To take civil action against another person claiming that they have infringed some legal right of the plaintiff or did something wrong that negatively affected the plaintiff

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Litigation definition

A

Commencing a civil action in court - normally begins by seeking legal representation and filing for a writ

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Liable definition

A

Finding that one party is responsible for the other’s loss/infringement

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Remedy definition

A

Orders made by a court or tribunal to address a civil wrong or breach - designed to restore the plaintiff back to their original position. Remedies can be in the form of injunctions or damages

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Negligence

A

Occurs when the defendant owes a duty of care to the plaintiff and breaches this duty

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Defamation

A

Occurs when the defendant communicates false statements to a third party about the plaintiff, which damages the plaintiff’s reputation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Breach of contract

A

Occurs when the defendant fails to perform their obligations arising from the terms of a contract

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Family law

A

Deals with matters relating to parents, children and other family members. It also relates to property disputes arising from breakdown in marital or de-facto relationships such as those regarding the division of assets

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Trespass to land

A

Occurs when the defendant unlawfully interferes with the land the plaintiff possesses

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Plaintiff definition

A

The party who commences the civil action and claims their rights have been infringed or a wrong has occurred. The plaintiff is also known as the aggrieved party or the wronged party

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Defendant definition

A

The party who is alleged to have infringed the plaintiff’s rights or is alleged to be responsible for the wrongdoing

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Vicarious liability

A

If an employee infringes a person’s rights whilst acting in the course of their employment, the injured person may be able to sue the employer via 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 did

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Burden of proof

A

Rests upon the plaintiff. This follows the principle that the party who brings the case must satisfy the decision maker that their claim is supported by facts

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Standard of proof

A

Strength of evidence required to prove the case. Plaintiff must prove their case based on the balance of probabilities

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Cost factors - legal rep.

A

The cost of legal representation will depend on the complexity of the case, the experience of the legal representative, the avenue in which the matter is being heard e.g. court/tribunal.

Senior barrister can charge $600 p/h with KCs billing $1000 p/h

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Cost factors - disbursements

A

Other expenses incurred as part of preparing for the case outside of legal rep. These inc. filing fees, hearings fees, fees for a jury.

A writ in the County Court = $779
Hearing fees in County Court = $800
Jury = $1606 for first day then $303.60 for subsequent days.

Also includes fees for expert witnesses, mediation fees organised privately.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Cost factors - Adverse court orders

A

The legal requirement that one party pays for the other party’s legal costs. If the plaintiff is unsuccessful in their claim, the court may order that they pay some or all of the defendants legal costs.

General rule = successful party should have their legal costs paid by the losing party.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Limitations of actions definition

A

A restriction on the time limit in which a plaintiff must commence a civil action in court, after which time, the plaintiff is unable to bring an action relating to the civil wrong against the defendant.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Limitations of actions legislation

A

Limitations of Actions Act 1958 (Vic)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Why do limitations of actions exist

A
  • Encourages parties to bring their disputes to court in a timely manner
  • The ability for witnesses to recall the incident from memory remains accurate
  • To ensure the quality of evidence to support the party’s claims remain high
  • To ensure the defendant does not have to defend a civil action after a significant amount of time
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Exceptions to the limitations of actions

A
  • If they have a disability during the relevant period
  • date of ‘discoverability’ occurs after the event e.g. asbestos or radiation
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Defamation limitation of actions

A

one year

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Negligence limitation of actions

A

six years

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Breach of contract limitation of actions

A

six years

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Personal injuries limitation of actions

A

three years

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Action to recover land limitation of actions

A

fifteen years

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Action to claim the personal estate of a deceased person limitation of actions

A

fifteen years

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Enforcement issues definition

A

A factor that involves the plaintiff considering that if they are successful in their claim, can their claim be enforced on the defendant. That is, the defendant is able to fulfil their obligation.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Enforcement issues

A
  • Defendant is likely/has declared bankruptcy or is an unemployed individual
  • Defendant is a company and may not have assets to sell to pay for damages
  • Defendant is in prison or has relocated overseas permanently
  • Defendant cannot be identified
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Ways to enforce damages

A

Plaintiff may have to issue enforcement proceedings in the form of a sherif’s warrant via the courts to seize the defendant’s goods/assets to sell them to retrieve their money.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Fairness - Impartiality

A
  • The Civil Procedures Act 2010 (Vic) ensures that rules of preparing and presenting a case is applied to both sides. This regulates the narrowing of legal issues being disputes, disclosure during discovery etc.
  • Independent and impartial adjudicator preside over dispute. This could be in the form of a judge, mediator, magistrate or arbitrator.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

Fairness - open

A
  • Disputes that utilise a court are open to the public including the court’s judgement.
  • H/W jurors when reaching a decision are also not required to provide a reason for their decision t/f decisions may not be consistent as a result of processes being open.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

Fairness - participation

A
  • After considering all factors, all plaintiffs have the right to lodge a claim against a defendant because of a loss.
  • Both parties have the same opportunities to to present their case to the judge and jury during trial.
34
Q

Equality - formal

A
  • All parties can engage in legal representation to provide them with legal assistance.
  • All parties can initiate a claim if they can demonstrate an infringement of their rights.
35
Q

Equality - substantive

A
  • Interpreters may be required for people with limited english to assist with translations.
  • Organisations such as VLA and CLCs provide extra support to individuals who do not have the resources to uphold their civil rights, leading to more equitable outcomes.
36
Q

Access - Engagement

A
  • Financial access as CAV and human rights (discrimination) matters heard by VCAT are free of charge.
  • Range of dispute resolution methods are available to the parties to utilise ranging from ADRs, tribunals, CAV and courts, most of which are less complex than courts.
37
Q

Access - Informed basis

A
  • Complaints bodies such as Consumer Affairs Victoria provide free information online to educate consumers on their rights and also uses conciliation to resolve disputes free of charge.
  • H/W self-help requires that parties have a certain level of education and can articulate and communicate with the other party which may not always occur.
38
Q

What is mediation

A
  • One of the least formal methods of dispute resolution
  • Involves parties willing to cooperate in order to reach a resolution
  • Through the assistance of an impartial third party who facilitates the discussions.
  • Involves parties trying to reach an agreement through negotiation + compromise.
  • Any decision reached is not legally binding unless a deed of settlement is signed by both parties.
39
Q

Mediation used before court

A

Used before court if it is important to the parties to maintain an ongoing relationship and cost may be an issue.
E.g. neighbours, landlords + tenants, family members.

40
Q

Mediation during court

A

The Mag, County + Supreme Court can order parties to attend mediation once the case has been initiated in the court as part of pre-trial procedures.
- Cost split b/w the parties.
- Associate judges can also mediate - referred to as judicial mediation.

41
Q

Mediation as an alternative to court

A
  • VCAT often refers claims to mediation prior to the final hearing.
  • Parties can also access private mediation through the Dispute Settlement Centre of Victoria.
42
Q

What is conciliation

A
  • Conciliator will listen to the facts and evidence presented by both sides + make suggestions regarding ways + options to resolve the dispute.
  • The conciliator will generally be an individual with specialist knowledge in that field pertaining to the legal dispute e.g. consumer law, family law, workplace relations.
43
Q

What is arbitration

A

Involves an independent third party who will listen to both sides and make a legally binding decisions on both parties - known as arbitration award.

Conducted in private, can be less formal + more cost effective than attending courts.

Not bound by rules of evidence + not required to conduct proceedings in a formal manner.

44
Q

Arbitration used in private

A
  • Can be arranged by parties themselves
  • Usually involving commercial transactions - due to terms in contract.
  • Takes place at Dispute Resolution Centre/Melbourne Commercial Mediation and Arbitration Centre
45
Q

Arbitration used in court

A
  • When a small claim is filed in the Magistrates court for below $10,000 matter is obliged to go to arbitration
  • Magistrates can also refer matters to arbitration with consent of parties for amounts above $10,000
  • In County and Supreme Courts can request that parties attend arbitration if they consent
46
Q

Arbitration in tribunals

A
  • VCAT can refer parties to arbitration before the final hearing however does not conduct the arbitration process itself.
47
Q

Reasons for a court hierarchy - Administrative Convenience defintion

A

Refers to the ability of the courts to distribute resources more effectively by organising disputes according to how serious or complex they are.

48
Q

Reasons for a court hierarchy - Administrative Convenience why

A
  • This is because superior courts, such as the Supreme Courts, are free to devote time and resources to long, complex disputes as the court is not delayed by resolving minor disputes.
  • The lower courts, such as the Magistrates Court, can quickly resolve a large number of relatively minor disputes, minimising delays for parties to such disputes.
49
Q

Reasons for a court hierarchy - Appeals definition

A

A legal process that a dissatisfied party may pursue to have the court’s decision reviewed by a higher court.

50
Q

Question of Law

A

Arguing that the law has not been correctly applied e.g. accepting inadmissible evidence or wrong legal test to the case. (error of law).

51
Q

Questions of Fact

A

Whether the facts of the case had been applied appropriately to reach a decision (error of facts) e.g. in a defamation case a decision was made that did not take into consideration all published articles about the plaintiff/the jury believed the defendant was vicariously liable, but the co-defendant was a contractor rather than an employee.

52
Q

Grounds for an appeal

A
  • Questions of Law
  • Questions of Fact
  • The remedy awarded
53
Q

Magistrates Court jurisdiction

A

Original
- Claims of up to $100,000
Appellate
- No appellate jurisdiction

54
Q

County Court jurisdiction

A

Original
- Unlimited in all civil claims
Appellate
- No appeals unless given power under a specific act of parliament

55
Q

Class action criteria 1

A

Seven or more people are claiming against the same defendant(s)

55
Q

Class action criteria 2

A

The claim must be in respect of, or arise from, the same, similar, or related circumstances.

55
Q

Class action criteria 3

A

The claim must give rise to a common issue of law or fact, meaning the same issues are determined by the court for all claims.

56
Q

The role of the lead plaintiff

A
  • assuming the risk + cost of litigation on behalf of the entire group
  • Ensuring the claim serves the interest of the group members and not pursued solely for personal benefit
  • Providing instructions to their lawyers regarding the conduct of the claim + making decisions regarding settlement or negotiations
  • Filing the case under their own name
57
Q

Where can class actions occur

A

The Supreme Court Trial Division and the Federal Court of Australia

58
Q

Examples of class actions

A
  • Workplace accidents
  • Medical malpractice
  • Financial malpractice
  • Preventable natural disasters
  • Faulty or dangerous goods or services
59
Q

Strengths of class action

A
  • The use of litigation funders can enable more class actions to be brought in circumstances where individual litigants may lack the funds allowing for increased participation
  • Class actions are managed by experienced + impartial judges, ensuring the case is conducted efficiently and impartially.
  • Class actions are a more efficient way of dealing with a number of claim, saving time and court resources
60
Q

Weaknesses of class actions

A
  • The lead plaintiff is required to assume the risk + cost of litigation on behalf of the entire group which can be unfair.
  • If litigation funding isn’t obtained, the lead plaintiff may not be willing to bear the costs associated with bringing the class action
  • Some groups may not get adequate or up to date information about the proceedings, limiting their ability to participate in the civil justice system
61
Q

CAV - legislation and what it is

A

Consumer Affairs Victoria is a statutory body, this means it was established as a result of Victorian parliament passing legislation.
- Australian Consumer and Fair trading Acting (Vic) 2012

62
Q

Purposes of CAV

A
  • enforce compliance with consumer law
  • Provide information + guidance to educate ppl about consumer laws about the rights and responsibilities of businesses and consumers
  • In limited circumstances, provide consumers, traders and landlords with a dispute resolution process
  • Advise the Victorian govt. on consumer legislation (e.g. sales of goods and services)
  • Providing accessible dispute resolution services
63
Q

What issues can CAV assist with?

A
  • Products and services: A complaint against a business by a consumer who believes the Australian Consumer Law and Fair Trading Act 2012 (Vic) has been breached. Often about supply of goods and services
  • Housing: A complaint against a landlord by a tenant who believes the Residential Tenancies Act 1997 (Vic) has been breached.
  • Cars: A complaint made by the consumer about the buying and selling of new and used cars.
64
Q

Steps for an individual to seek help from CAV

A
  1. Learn about your rights
  2. Talk to the ppl involved
  3. Write to the ppl involved
  4. Take the matter further
  5. Seek assistance from CAV with the problem or complaint
65
Q

When is CAV appropriate

A
  • The dispute falls within CAV’s jurisdiction
  • Parties have attempted to resolve the dispute by themselves
  • Both parties are willing to attend and participate in reconciliation
  • Parties wish to avoid costs and delays associated with resolving disputes through courts or VCAT
  • Parties are willing to settle therefore increasing the likelihood of a successful resolution
  • Both parties are willing to comply with the agreement reached during the conciliation
66
Q

When is CAV inappropriate

A
  • The dispute does not fall under CAV’s jurisdiction
  • Parties have not attempted to resolve the dispute by themselves
  • One or both parties are not willing to attend and participate in conciliation
  • There is a better method of resolving the dispute, including via an alternate organisation that is better suited to dealing with the matter
  • The court or VCAT has already ruled on the matter, or the case is currently waiting to be heard
  • The dispute is initiated by a business or landlord
  • The dispute is a class action
  • One or more parties want a legally binding decision
67
Q

Strengths of CAV

A
  • Free for all members of the Vic public
  • Conciliation process can be conducted over the phone, enable individuals in rural areas to engage in the process
  • CAV uses the informal process of conciliation which is less intimidating, formal and complex in comparison to trials allowing individuals to be better informed of the process
68
Q

Weaknesses of CAV

A
  • Has no power to compel parties to go to conciliation.
  • Not appropriate for large and complex cases.
  • Assistance limited to only consumer disputes.
69
Q

VCAT - legislation and what it is

A

VCAT is a statutory dispute resolution body - given its powers through the passing of the Victorian Civil and Administrative Tribunal Act 1988 (Vic)

70
Q

President of VCAT

A

Is a current sitting Supreme Court judge

71
Q

Vice President of VCAT

A

Are County Court judges

72
Q

The applicant

A

The person who is applying to have their dispute resolved - generally the aggrieved party

73
Q

The respondent

A

The person who is responding to a claim made against them

74
Q

VCAT divisions and lists

A

Residential Tenancies division
- Residential tenancies act
Administrative division
- Legal practice list
- Review and regulation list
Planning and Environmental division
- Planning and environment list
Civil division
- Civil claims list
- Building and Property list
- Owners corporations list
Human Rights division
- Guardianship list
- Human rights list

75
Q

Purposes of VCAT

A
  • Filing fees to have a simple matter heard in VCAT are relatively low ($70.10) for claims below $3000 in the civil list.
  • There are no hearing fees for civil claims where the amount is $100,000 or less or for a rental that can be resolved in a day.
  • Hearings are shorter at VCAT since they are not bound by rules of evidence and formal procedure such as courts.
76
Q

Appropriateness of VCAT

A
  • If the matter falls within their jurisdiction.
  • If parties would prefer an informal dispute resolution process.
  • If parties want to try and resolve the dispute themselves or have some agency over the outcome.
77
Q

Inappropriateness of VCAT

A
  • If matter falls outside of the jurisdiction
  • If parties want a formal dispute resolution
  • If one of the parties won’t comply to an agreement outlined in mediation
78
Q
A

Legal Studies (5 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions