Civil law

Question 1

Civil disputes

Answer 1

A disagreement between two or more individuals whereby one party makes a claim against another usually involving a loss

Question 2

Sue

Answer 2

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 3

Litigation

Answer 3

commencing a civil action in court which normally begins by seeking legal representation and filing of a writ.

Question 4

Liable

Answer 4

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

Question 5

Remedy

Answer 5

Orders made by a court or tribunal to address a civil wrong or breach in order to return the plaintiff to their original position.

Question 6

Plaintiff

Answer 6

The party who commences the civil action and claims their right have been infringed or a wrong has occurred.

Question 7

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

Vicarious liability

Answer 8

If an employee infringes a persons 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 3rd party for the wrongful acts of another)

Question 9

Civil burden of proof

Answer 9

The burden of proof in a civil case rests upon the plaintiff. If the defendant files a counter claim they will then hold the burden of proof to prove their claim.

Question 10

Standard of proof

Answer 10

The standard of proof is based on the balance of probabilities meaning it must be more probable than not.

Question 11

Cost factors

Answer 11

In civil cases the parties will bear the cost of resolving the dispute which may limit their ability to participate in the legal system

Question 12

Cost- Legal representation

Answer 12

If a party requires legal representation in a civil claim, they may be required to pay for both a barrister and solicitor for legal advice, filing documents, pre-trial hearings and for representation in court.

Question 13

Cost- Disbursements

Answer 13

Disbursements are other expenses paid to a third party while preparing a case. For example the collection of reports, statements or camera footage.

Question 14

Cost- Adverse court orders

Answer 14

Adverse court orders is the legal requirement that one party must pay for the other party’s legal costs, usually the losing party pays for the others fees.

Question 15

Limitation of actions

Answer 15

The restriction on the time limit in which the plaintiff must commence a civil action in court, after this time has passed the plaintiff is unable to bring an action against the defendant.

Question 16

Reasons for limitations of actions

Answer 16

Encourages parties to bring their disputes to court in a timely manner.
The ability of witnesses to recall the incident accurately.
Ensures the quality of evidence remains high.
ensures the defendant does not have to defend a civil action after a significant period of time.

Question 17

Enforcement issues

Answer 17

Enforcement issues involve the plaintiff considering that if they are successful in their claim, can it be enforced on the defendant to fulfil their legal obligation.

Question 18

When enforcement issues are considered

Answer 18

The defendant has or will likely declare bankruptcy.
The defendant is a company.
The defendant is in prison or has relocated overseas permanently.
The defendant is unknown.

Question 19

Fairness

Answer 19

Fairness is the ability for participation in the legal system through impartial and open processes.

Question 20

Participation

Answer 20

All plaintiffs have the right to lodge a claim against the defendant.
Plaintiff’s can engage in several avenues to have their issues resolved.
Through pre-trial civil procedures the defendant can gain information about the case.
Both parties have the same opportunity to present their case and side.

Question 21

Impartial processes

Answer 21

the plaintiff can have an independent and impartial adjudicator preside over their dispute.
both plaintiffs are entitled to having a jury of six decide the outcome.
the judge or jury must reach a decision based on the facts and evidence presented.
the civil procedure act 2010 (Vic) must be applied to both parties.

Question 22

Open processes

Answer 22

disputes utilising the courts are open to the public.
however transparency is limited by alternate dispute resolution methods being private.

Question 23

Equality

Answer 23

Equality aims to ensure uniform treatment of all individuals in the civil justice system. However, should this cause a disparity/disadvantage, extra measure should be implemented to allow everyone to engage with the justice system.

Question 24

Equality – same treatment

Answer 24

All parties can initiate a claim if they can demonstrate an infringement of their rights and the loss.
All parties can have an independent adjudicator preside over their case.
All parties must engage in the same pre-trial procedures .
All parties can negotiate prior and during trial.
All parties can request to have a jury if they can pay.
All parties can engage in legal representation to provide them with assistance.

Question 25

Equality – different treatment

Answer 25

If a party cannot afford legal representation, a judge may need to explain certain rights and processes.
VLA and CLCS can provide extra support to individuals.
Interpreters may be required for people with limited English.

Question 26

Access

Answer 26

Access ends to ensure that everyone can engage in the civil justice system and its Proceedings on an informed basis.

Question 27

Access-Engagement

Answer 27

Range of dispute resolution methods are available to the parties.
Technological development means some disputes can be resolved online.
Class actions and group proceedings allows group members to share costs.
VCAT has a discount for those on pension cards.
Legal representation is not needed, unless parties are using courts.

Question 28

Access – informed basis

Answer 28

Specialist CLC’s can assist certain groups with vulnerabilities in society.
Complaints bodies provide free information online.
Online websites, provide information and guidance for parties about their rights.

Question 29

Mediation

Answer 29

Mediation is the least formal methods for resolving disputes. It involves the parties and an independent third-party referred to as the mediator the party sit down to discuss the issues. Consider options and attempt to reach an agreement through negotiation. Any decision reached is not legally binding unless the deed of settlement is signed by both parties.

Question 30

When Mediation is appropriate

Answer 30

It’s important to maintain an ongoing relationship.
The judge orders parties to attend mediation.
Parties want the legal fees.
Parties want to avoid delays
Parties are willing to discuss and negotiate.
Parties prefer privacy and confidentiality over their dispute.

Question 31

When mediation is not appropriate

Answer 31

One party is able to manipulate the discussion
A party refuses to compromise
A party wishes to have a public trial.

Question 32

Conciliation

Answer 32

Conciliation is a discussion between parties and an independent third-party referred to as the conciliator, who is able to make suggestions in order to resolve the dispute. Any decision reached during conciliation, is not legally binding, unless a deed of settlement is signed.

Question 33

When conciliation is appropriate

Answer 33

Parties wish to maintain a relationship
Both parties are willing to discuss
A made a complaint to CAV
Mediation has already been attempted.

Question 34

When conciliation is not appropriate

Answer 34

Parties are unwilling to discuss.
There is a history of violence between parties.
There’s a power imbalance between parties.
Parties when a binding result to their dispute.

Question 35

Arbitration

Answer 35

Arbitration is one of the most formal alternate methods of dispute resolution, and involves the parties and an independent third-party referred to as the arbitrator, who listens to both sides, and decides a legally binding decision for both parties.

Question 36

When arbitration is Appropriate

Answer 36

Parties consent or agreed to attend arbitration.
The matter is below $10,000, and was filed in the magistrates court.
Parties a legally binding decision.
Parties want their matter resolved in private.
Parties want a more formal resolution method.

Question 37

When arbitration is not appropriate

Answer 37

A party once the motherhood publicly.
A party wants to use the courts and a jury.
The parties wish to be involved in determining an outcome.
Parties cannot afford legal representation.

Question 38

Magistrates court jurisdiction

Answer 38

Original jurisdiction – disputes under $100,000
Appellate Jurisdiction- none

Question 39

County court jurisdiction

Answer 39

Original jurisdiction – unlimited
Appellate jurisdiction – none.

Question 40

Supreme Court trial division jurisdiction

Answer 40

Original jurisdiction – unlimited and all class actions
Appellate Jurisdiction- appeals from magistrates Court or VCAT on a point of law.

Question 41

Supreme court of appeals jurisdiction

Answer 41

Original jurisdiction– none
Appellate Jurisdiction – appeals from the VCAT president and appeals from the county court or Supreme Court trial division.

Question 42

High Court jurisdiction

Answer 42

Original jurisdiction – none
Appellate jurisdiction – appeals from Supreme Court of appeal.

Question 43

Administrative convenience

Answer 43

Administrative convenience refers to the ability of the courts to distribute resources, more effectively by organising disputes, according to their seriousness and complexity.

Question 44

Appeals

Answer 44

Appeals are a legal process that a dissatisfied party may pursue to have the courts decision reviewed by a higher court.

Question 45

The judge

Answer 45

The judge is an independent authority who presides over the case, ensuring procedural fairness by overseeing all personnel and evidence.

Question 46

Role of the judge

Answer 46

Undertake case management before the trial and during the trial.
Remain unbiased.
Apply rules of evidence and procedure.
Direct the jury.
Determine the liability and award remedies.

Question 47

Magistrate

Answer 47

A magistrate is an independent Authority who presides over hearings in the magistrates court for civil disputes.

Question 48

The Justice

Answer 48

The justice is a judge in a relatively superior court.

Question 49

The plaintiff

Answer 49

The plaintiff is the party that initiates a civil claim against the defendant

Question 50

The role of the plaintiff

Answer 50

Partake in party control.
Disclose information to the defendant.
Present evidence.
Participate in the trial.

Question 51

The defendant

Answer 51

The defendant is the party that is defending themselves against a claim made by the plaintiff for an alleged breach of rights.

Question 52

The role of the defendant

Answer 52

Partake in party control.
Disclose evidence.
Present defences.

Question 53

Juries

Answer 53

A jury is optional in a civil dispute and is made up of six randomly selected community members.

Question 54

The role of the jury

Answer 54

Remain the projective and impartial.
Listen to evidence.
Determine the liability of the defendant.
Listen to directions from the judge.

Question 55

Legal representatives

Answer 55

Legal representation is made up of a solicitor and barrister in civil disputes.

Question 56

The role for solicitors

Answer 56

Provide advice to clients.
Prepare legal documentation for trial.
Communicate with the other parties, legal representatives.
Research relevant law.

Question 57

The role of the barrister

Answer 57

Make legal arguments.
Question witnesses.
Present evidence.
Summarise the case to the judge and jury.
Insure illegally binding agreement is formed.

Question 58

Class action criteria

Answer 58

7+ plaintiffs.
The claim must arise from the same or similar circumstances.
The claim must be about the same issue of law.

Question 59

Roles of the lead plaintiff

Answer 59

Assume the risk/cost of litigation on behalf of the group.
Ensure the claim serves the interest of all group members.
Provide instruction to lawyers and make decisions regarding settlement or negotiations.
File the case under their name.

Question 60

Consumer Affairs Victoria (CAV) purposes

Answer 60

Enforce compliance with consumer law.
Provide information/guidance about consumer laws.
Provide consumers and tenants with dispute resolution processes (free conciliation).
Advise the government on consumer legislation.

Question 61

When CAV is appropriate

Answer 61

The dispute is within their jurisdiction.
Parties have attempted to resolve the dispute.
Bot parties are willing to attend and participate in conciliation.
Parties wish to avoid costs and delays.
Parties are willing to settle and negotiate.
Parties are willing to comply with the agreement reached in conciliation.

Question 62

When CAV is inappropriate

Answer 62

The dispute is outside CAV’s jurisdiction.
Parties have not attempted to resolve the dispute themselves.
Parties are not willing to attend conciliation.
Alternate resolution bodies/methods are more appropriate.
Courts or VCAT have already ruled on the matter.
The dispute was not initiated by the consumer/tenant.
The dispute is a class action.
Parties want a legally binding decision.

Question 63

Victorian Civil and Administrative Tribunal (VCAT) divisions

Answer 63

Civil division: civil claims and property claims.
Human rights division: human rights and guardianship claims.
Residential tenancies division: resident claims.
Administrative division: legal practice claims.
Planning/Environment division: planning and environment claims.

Question 64

VCAT purposes

Answer 64

Provide low cost dispute resolution services.
Provide efficient dispute resolution services.
Provide accessible dispute resolution services.

Question 65

When VCAT is appropriate

Answer 65

The matter is within their jurisdiction.
Parties would prefer an informal dispute resolution process.
Parties wish to have a opportunity to resolve the dispute themselves.
Parties want the option of a legally binding decision.
Parties are willing to comply with the