Civil Law Flashcards
Define sue
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
Define litigate
commencing a civil action in court- normally begins by seeking legal representation and filing f a writ
Define liable
finding that one party is responsible for the other’s loss/ infringement
Define remedy
orders made by a court or tribunal to address a civil wrong or breach- designated to restore the plaintiff back to their original position. Remedies can be in the form of injunctions or damages
What are common law disputes
Negligence, defamation, breach of contract, family law and trespass to law
Define the plaintiff
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
Define the defendant
the party who is alleged to have infringed the plaintiff’s rights or is alleged to be responsible for the wrongdoing
What are the parties in a civil dispute
plaintiff and defendant
Define the burden of proof
rests on the plaintiff, follows the principle that the party that brings the case must satisfy the decision maker.
- may sometimes rest on the defendant: if they choose to counter claim or if the defendant raises a defence (eg. contributory negligence)
Define the standard of proof
the strength of the evidence needed to prove the case, in civil law the plaintiff must prove their case on the balance of probabilities. meaning that it is more likely that the claim is true than not, less strict standard when compared to criminal law
Define cost factors including examples
Parties will generally break the cost for resolving disputes.
-Legal representation: may choose to hire a solicitor and/or barrister. Solicitor will be needed to seek legal advice or to draft and file documents. A barrister may be needed to represent there client in pre-trial hearings or present the case in court.Senior barrister= $600p/h with KC billing $1000 p/h
-Disbursements: costs outside of legal rep= filing fee, hearing fee, fees for jury. A writ in the County court = $779, hearing= $800, jury= $1606 for the first day then $303.60 for other days.
- Adverse court orders: other party pays for other parties legal fees. Loosing party pays for successful party
Define limitation of actions including examples
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
-LEGI: Limitations of Actions Act 1958 (vic) outlining the time frame
-Why the time frame exists: encourages to bring to court in a timely manner, ability for witness recall of incident from memory more accurately, quality of the evidence claims remain high, defendant does not have to defend a civil action after a significant amount of time
-Extensions from the judge are possible on groups of date of discovery
-EXAMPLES: Defermation=1 yr, personal injury=3yrs, negligence=6yrs
Define enforcement issues including examples
a factor that involves the plaintiff considering that if they are successful in their claim, can their claim be enforced on the defendant. Defendant able to fulfill their legal obligation
-Enforcement issues can include: declare bankrupt or unemployed, defendant is a company that doesn’t have the assets to pay the damages, in prison or overseas, defendant cannot be identifies or is unknown
-Plaintiff may have to issue enforcement proceedings= sherifs warrant to seize good and assets to retrieve their money
Define impartiality in civil disputes with 2 examples
-The plaintiff can have an independent and impartial adjudicator preside over their dispute: this could be in the form of a judge, mediator or arbitrator
-Civil Procedures Act 2010 (Vic) to ensure that rules of preparing and presenting a case is applied to both sides: disclosure during discovery or case management
Define participation in civil disputes with 2 examples
-Through a series of pre-trial civil procedures such as pleadings, discovery of documents and directions, the defendant can gain information about the case against them and prepare
-both parties have the same opportunities to present their case or side to the judge and jury during trial
Define open process in civil disputes with 2 examples
-should parties choose to mediate or conciliation as their method to resolve disputes, this may be held in private, leading to a lack of open process
-disputes that utilise the courts are open to the public including the court’s judgment, this promotes transparency over judicial decisions and, accountability of legal professionals
Define same treatment in civil disputes with 2 examples
-All parties can initiate a claim if they can demonstrate an infringement of their rights and losses
-All parties can engage in legal rep to provide them with legal assistance
Define different treatment in civil disputes with 2 examples
-if a party cannot afford legal rep and must self-represent, a judge or magistrate may need to take steps to explain certain rights+ processes
-Interpreters may be required for people with limited English to assist with translations
Define engagement in civil disputes with 2 examples
-Class actions/ group proceedings allow for group members to share the costs when taking legal action against a large corporation
-a range of dispute resolution avenues also means that courts are less likely to be clogged and experience delays
Define informed basis in civil disputes with 2 examples
-Complaint bodies such as consumer affairs Victoria provide free legal information online to educate consumers on their rights but uses conciliation to resolve disputes free
-self-help requires that the parties have a certain level of education and can articulate and communicate with the other prt which may not also occur
What are the features of mediation
willing parties that are involved in a conversation to resolve a civil dispute
-consider options
-try to reach an agreement through negotiation and compromise
-legal rep not generally involved
-not legally binding unless both parties sign a deed of settlement
-3rd party can’t make suggestions
What are the features of conciliation
-conciliator will listen to facts and evidence presented by both sides+ make suggestions regarding options to resolve
-conciliator will generally be an individual with specialist knowledge in that field pertaining to the legal dispute eg. consumer or family law
Where is conciliation used- 3 examples
-resolution may be enforced if terms of settlement entered into
-resolution os made by parties voluntarily
-used primary by CAV and VCAT
Where is mediation used- 3 examples
disagreements between neighbours, landlords/ tenants, and among family members
3 times when mediation is appropriate
-when a relationship needs to be maintained between the two parties
-both parties want lower legal fees as the court process can often be more expensive than mediation
-parties are willing to discuss
3 times when conciliation is appropriate
-parties aren’t emotional
-parties wanting a relatively low cost and fast option of dispute resolution
-parties are willing to discuss
-parties don’t want a binding result and want a more formal alt dispute resolution method
3 times when mediation is inappropriate
-no relationship needs to be upheld
-want a public trial to make a point or a stand
-parties aren’t willing to discuss
-major power imbalance eg. teacher and student
3 times when conciliation is inappropriate
-parties are highly emotional
-parties aren’t willing to discuss
-history of violence or threats between the parties
-power imbalance is present
-parties want a binding result
What are the features of arbitration
-independent 3rd party is an arbitration
-legally binding- known as arbitration award
-more cost effective then attending court
Outline where arbitration can be used
in private- can be arranged by parties themselves, usually involving commercial transactions
in court- when a small claim is filed in magi court below $10,000, above $10,000 the parties have to consent to arbitration
Arbitration in tribunals-VCAT can refer parties to arbitration before the final hearing however does not conduct. the arbitration process itself
Outline 3 ways in which arbitration may be appropriate
- matter below $10,000 in the magi court
-parties wanting legally binding resolution
-when parties consent or agree to attend arbitration or it is included was part off there contractual agreement
Outline 3 ways in which arbitration may be inappropriate
-parties don’t consent/ agree to attend arbitration or it isn’t included in a contractual agreement
-above $10,000 in the magi court an parties don’t consent
-parties don’t want a legally binding decision
-parties want a public trial
What are 3 weaknesses of arbitration
-formal which may add stress, costs and time to the resolution
-parties have no control of the outcome
-not available if the claim is above $10,00 and parties have not consented to the arbitration
What are 3 strengths of arbitration
-binding decision that the courts can enforce
-arbitrator has specialist knowledge of the topic and is impartial
-normally held privately for parties that want a solution without publicity
Definition and explanation of administrative convenience and examples
Refers to the ability of the courts to distribute resources more effectively by organising disputes according to how series or complex they are.
-sup court judges are free to devote time and resources to long, complex disputes as the court is not delayed by resolving minor issues
-lower courts have large number of of judges to gp through lots of cases
1 strength of administrative connivence
magistrate has a large number of judges compared to the higher courts judges numbers
1 weakness of administrative connivence
higher courts having less judges meaning that less cases are heard
Definition and explantation of appeals and examples
a legal process that a dissatisfied party may pursue to have the court’s decision reviewed by. higher court
-question of law and question of fact
1 strength of appeals
allow for corrections in remedies if the judge ered
1 weakness of appeals
appeals create more fees for the parties to pay
