Civil Law

Question 1

Define sue

Answer 1

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

Question 2

Define litigate

Answer 2

commencing a civil action in court- normally begins by seeking legal representation and filing f a writ

Question 3

Define liable

Answer 3

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

Question 4

Define remedy

Answer 4

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

Question 5

What are common law disputes

Answer 5

Negligence, defamation, breach of contract, family law and trespass to law

Question 6

Define the plaintiff

Answer 6

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

Question 7

Define the defendant

Answer 7

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

Question 8

What are the parties in a civil dispute

Answer 8

plaintiff and defendant

Question 9

Define the burden of proof

Answer 9

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)

Question 10

Define the standard of proof

Answer 10

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

Question 11

Define cost factors including examples

Answer 11

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

Question 12

Define limitation of actions including examples

Answer 12

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

Question 13

Define enforcement issues including examples

Answer 13

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

Question 14

Define impartiality in civil disputes with 2 examples

Answer 14

-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

Question 15

Define participation in civil disputes with 2 examples

Answer 15

-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

Question 16

Define open process in civil disputes with 2 examples

Answer 16

-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

Question 17

Define same treatment in civil disputes with 2 examples

Answer 17

-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

Question 18

Define different treatment in civil disputes with 2 examples

Answer 18

-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

Question 19

Define engagement in civil disputes with 2 examples

Answer 19

-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

Question 20

Define informed basis in civil disputes with 2 examples

Answer 20

-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

Question 21

What are the features of mediation

Answer 21

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

Question 22

What are the features of conciliation

Answer 22

-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

Question 23

Where is conciliation used- 3 examples

Answer 23

-resolution may be enforced if terms of settlement entered into
-resolution os made by parties voluntarily
-used primary by CAV and VCAT

Question 24

Where is mediation used- 3 examples

Answer 24

disagreements between neighbours, landlords/ tenants, and among family members

Question 25

3 times when mediation is appropriate

Answer 25

-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

Question 26

3 times when conciliation is appropriate

Answer 26

-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

Question 27

3 times when mediation is inappropriate

Answer 27

-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

Question 28

3 times when conciliation is inappropriate

Answer 28

-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

Question 29

What are the features of arbitration

Answer 29

-independent 3rd party is an arbitration
-legally binding- known as arbitration award
-more cost effective then attending court

Question 30

Outline where arbitration can be used

Answer 30

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

Question 31

Outline 3 ways in which arbitration may be appropriate

Answer 31

• 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

Question 32

Outline 3 ways in which arbitration may be inappropriate

Answer 32

-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

Question 33

What are 3 weaknesses of arbitration

Answer 33

-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

Question 34

What are 3 strengths of arbitration

Answer 34

-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

Question 35

Definition and explanation of administrative convenience and examples

Answer 35

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

Question 36

1 strength of administrative connivence

Answer 36

magistrate has a large number of judges compared to the higher courts judges numbers

Question 37

1 weakness of administrative connivence

Answer 37

higher courts having less judges meaning that less cases are heard

Question 38

Definition and explantation of appeals and examples

Answer 38

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

Question 39

1 strength of appeals

Answer 39

allow for corrections in remedies if the judge ered

Question 40

1 weakness of appeals

Answer 40

appeals create more fees for the parties to pay