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LEGAL UNIT 3 AND 4 > Civil law-2A > Flashcards

Civil law-2A Flashcards

1
Q

Define Plaintiff

A

Is The party in a civil case who makes a legal claim against another person in court. They are also known as the aggrieved party and are the ones claiming there rights have been infringed

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2
Q

Define defendant

A

IS the party in civil case who has alleged to have infringed the rights or caused the wrong doing in referral to the plaintiff. The defendant may make counterclaims against the plaintiff although hey will have to hold the burden of proof

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3
Q

Define vicarious liability

A

Is the legal responsibility of a third party for the wrongful acts of another. (e.g an employer is holds liability for what their employees do). For an employer to be found liable the plaintiff must prove that the employee works for the employer

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4
Q

Define remedy

A

Is the term used to describe any order made by a court, designed to address a civil wrong or breach. a remedy should provide a legal solution for the plaintiff for a breach of civil law by a defendant and restore the plaintiff (as mush as possible) to there original position prior to the breach of rights. can be damage or the plaintiff being ordered to do something

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5
Q

Define civil disputes

A

civil disputes arise when one party makes a legal claim against another

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6
Q

What does the civil justice system enable the plaintiff to do?

A
  • enforce their legal rights
  • determine whether the defendant is liable to that party
  • award a remedy where the defendant is found liable
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7
Q

What is the process of bringing a civil action against another party?

A

suing or litigation

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8
Q

What is the aim of civil actions

A

the aim of a civil action is to obtain a remedy for the plaintiff that will restore them to the position they were in before the breach occurred

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9
Q

Who holds the power in making civil law?

A

Law making power in civil law is made by the states. This means that the Victorian Civil justice system has its own rules for determining civil disputes and its own tribunals and dispute resolution bodies.

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10
Q

Define burden of proof

A

the burden of proof refers to the responsibility or the onus that a party has in proving their case.

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11
Q

Who holds the burden of proof in a civil case?

A

The burden of proof lies with the party bringing there case to court, the plaintiff holds the onus of bringing forward enough evidence to support their claim against the defendant. The defendant may be required to prove a claim if they’re making a counterclaim or if they are claim contributory negligence.

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12
Q

What s the standard of proof in a civil case ?

A

the standard of proof in a civil case is on the balance of probabilities. Meaning that the decision will be bases n the events which were more likely to have taken place based on the evidence brought forward. They may split the responsibility using percentage

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13
Q

Define representative proceedings (Class actions)

A

refers to one person brining forward a claim on behalf of someone else. for it to be considered a classical action it must, involve seven or more people who have claims against the same person, the claims relate to the same or similar circumstances and need to have the same issues decided

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14
Q

What is a lead plaintiff ?

A

the person wo is named as the plaintiff on behalf of the group members in a class action.

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15
Q

Define a litigation funder

A

A litigation funder is a third party that agrees to pay the costs associated with pursuing a case in return for a percentage of the settlement. litigation funders are often involve in representative proceedings

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16
Q

Advantages of representative proceedings

A
  • sharing of costs

- greater efficiency due to fewer claims, thereby saving time as well as enabling greater access to the legal system.

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17
Q

list the reasons why a party initiates a civil claim

A
  • compensation is sought for wrong suffered
  • to stop the defendant from engaged in certain condct
  • to force the defendant to act in a particular way
  • to send a message about the protection of individuals rights
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18
Q

What are the four types of dispute resolution bodies in Victoria?

A
  • complaint bodies (CAV)
  • Ombudsman (PT)
  • tribunals (VCAT)
  • the courts
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19
Q

What are the main factors a plaintiff should consider before brining action against a defendant ?

A
  • Negotiation options
  • Costs
  • Limitations of actions
  • The scope of liability
  • Enforcement issues
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20
Q

Explain negotiations as a factor to consider

A

Negotiations involve parties interacting directly with each other with the aim of resolving the dispute, this may or may not involve legal representation. It can involve an independent third party such as a mediator who can aid in facilitating the discusssion

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21
Q

Explain costsas a factor to consider

A

A plaintiff should consider the costs associated with initiating a claim, there are many different costs associated with pursuing a civil case. including fees for legal rep, disbursements, adverse cost orders, availability of LA.

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22
Q

Describe fees for legal representation

A

fees fore legal representation in civil court will depend on the complexity of the case, length of case, the court t is held as well as the expertise of the solicitor/barrister.

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23
Q

Describe disbursements

A

disbursements include fees such as court fees, mediation fees or fees to pay expert witnesses. Court fees can include the cost of filing a case, the cost of hearing, and the cost of a jury if one is used. Whoever chooses to have a jury will incur the costs. If ordered to attend mediation before trial mediation fees can be incurred. Expert witnesses will incur a fee if used

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24
Q

Describe Adverse cost orders

A

These are the costs that the court may order the losing party to pay and can include the costs the winning party has incurred. Generally the winning party will not have to pay their fees as they are usually covered by the loosing party

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25
Q

Describe the availability of legal aid

A

legal aid is mainly given to criminal law trials. Its is not available for businesses, commercial employment and employment disputes or deceased estates

26
Q

Explain limitation factors as a factor to consider

A

There are restrictions placed on when a civil action can be commenced. The limitations of Actions Act (1958) set out the time frame given for a plaintiff to commence an action if different claims. A plaintiff can make a claim beyond the time frame, although the defendant would be required to raise the defence that the plaintiff is out of time .

27
Q

What is the aim of limitation factors

A

the aim of limitation factors is to provide social cohesion by resolving issues as quickly as possible, ensuring that evidence is available and reliable. It also ensures the defendant doesn’t have to face an action one after the civil wrong has occurred.

28
Q

What reform was recently made to limitation factors in Vic ?

A

in 2015 vic changed the law with regard to victims wishing to make a claim in cases that involved physical or sexual abuse as a minor. the removal of the limitation periods allowed for victims who were previously restricted in pursuing a case;

29
Q

Explain the scope of liability as a factor to consider

A

the scope of liability readers to who may be the possible defendants and the extent to which they are liable. a civil wrong may include a party other than the person who directly infringed the rights of the plaintiff. possible defendants may include an employer an insurer or another part involved in the wrong doing.

30
Q

Define employers as a party involved in the wrong doing

A

An employer may become liable for the act once of an employee, if it can be established that the employee was acting in the course of employment when the events took place. IF there is a connection between the wrongdoers wrongful act and their employment then the principles of vicarious liability apply.

31
Q

Define Insurers as a party involved in the wrongdoing

A

Insured parties may claim on the insurer for claims made against them. Examples of claims where the insurer claims liability include, insurance for directors and officers of companies, public liability insurance is where a third party injures themselves on your property .

32
Q

Define persons involved in wrongdoing

A

A person can be an accessory to a wrongdoing if they were somehow involved in the wrong doing. If they aided or abetted to the wonder or they may have urges the wrongdoer to commit the wrongdoing

33
Q

Define the extent of liability

A

refers to whether or not the defendant is completely or partially liable for the civil wrong. The defendant may claim contributor negligence which means the plaintiff is partly to blame or the defendant may claim a third party is liable

34
Q

Explain enforcement issues as a factor to consider

A

A civil claim may be settled between the parties outside of a court or tribunal through a dispute resolution body such as (VCAT). Enforcement relates to the remedy awarded and whether or not the remedy is carried out by the defendant

35
Q

What are some options available to enforce the civil remedy ?

A
  • warrant or seizure
  • attachment of Debt
  • attachment of earnings
36
Q

Define attachment of debt

A

Is where a third party who owes the defendant money is ordered to directly pay the plaintiff rather than the defendant.

37
Q

Define warrant or seizure

A

Is where the defendants asserts are sold and the money owed to the plaintiff are paid using this money. Creditor applies through the county or Supreme Court. the sheriff is in charge of this process in vic

38
Q

Define attachment of earnings

A

is where the court orders the defendants employer to pay the plaintiff from the defendants wages. Can not be ordered if the debtor receives centerlink benefits or is self employed .

39
Q

What is the purpose of Consumer affairs Victoria?

A
  • advises the victorian government on consumer legislation
  • provides information and guidance to educate people on consumer laws
  • enforces compliance of consumer laws(can take action)
  • provides dispute resolution processes for (CONCILIATION) consumers, traders, tenants and landlords
40
Q

What is the aim of CAV?

A

CAV am to resolve matters efficiently and effectively to ensure the consumer or tenant is adequately compensated for their loss and the trader or landlord stops the inappropriate behaviour. They also aim to protect vulnerable and disadvantaged consumers.

41
Q

Define conciliation

A

Conciliation is a method of alternative dispute resolution where an independent third party helps the parties come to an agreement. A conciliator is trained in the conciliation process with specialist knowledge which puts them in a position where they are able to suggest solutions to parties although the parties still come to their own agreement

42
Q

When is CAV appropriate ?

A
  • it must be withinCAV’s jurisdiction
  • If direct approach to the other party has not resulted in a suitable outcome
  • CAV must consider the likelihood that they can settle the dispute swell as whether their other other dispute methods
43
Q

Define VCAT

A

VCAT is a dispute resolution body designed to deal with a limited area of law, it is less formal than a court. VCAT can use different methods of resolution including mediation, and compulsory conferences to assist parties in resolving dispute. If a matter doesn’t settle VCAT will make a binding decision through a hearing.

44
Q

What are the four divisions of VCAT?

A

administrative, civil, human rights and residential tenancies

45
Q

What is the purpose of VCAT?

A

VCAT was created to take pressure off the court system by hearing smaller matters that would otherwise create a backlog in the courts. Its role is to be an independent tribunal that is affordable, timely and creating greater access

46
Q

When is VCAT appropriate?

A
  • When the dispute is within the jurisdiction of VCAT, sometime this means that parties may have no other choice but to have their case heard by VCAt
  • Whether or not their are alternative more appropriate ways of resolving the dispute
  • Complexity of the case, negotiations, mediation
  • Informality of VCAT
47
Q

Where does VCAT get its power? and what does it not have the power to do?

A

VCAT get its power from satiates made by parliament. They are not a court therefor they can not set precedent

48
Q

What are the reasons for a Victorian court hierarchy in determining civil cases?

A
  • Administrative convenience

- Appeals

49
Q

Define Administrative convenience

A

a court hierarchy allows courts to be ranked according to complexity and severity. In Victoria the magistrates court deals with less serious cases and the county and Supreme Court hear more serious cases. The complex cases are heard in county and supreme as it allows cases to be hear by judges who have more expertise in these areas of law.

50
Q

Define Appeals in reference to Civil Hierarchy

A

If there are grounds for an appeal, a party who is dissatisfied with a decision is able to apply to the courts for an appeal. The court of appeal and high court have the ability t determine the special leave applications on the papers, without the need for a hearing, thus reducing time and cost.

51
Q

What are the grounds for appeal in a civil case?

A
  • on a point of law
  • a question of facts
  • remedy awarded
52
Q

What are the three main pre trial procedures in civil law?

A
  • Pleadings
  • Discovery of Documents
  • Exchange of evidence
53
Q

What are pleadings? civil law

A

pleadings are the documents setting out the claims and defences of parties filed (by courts) and exchanged between parties. The statement of claim sets out the details of the claim and remedy sought by the plaintiff. The defence is filed by the defendant and sets out the response and any claims made by the defendant

54
Q

Whats the purpose of pleadings?

A

To ensure procedural fairness by ensuring that parties understand the claims and defences of the case , to give the court a written record of the case which helps the court understand the case, assist parties in reaching an out of court settlement as each party is required to state the material facts and particulars of their claim or defence

55
Q

What is the discovery of documents ? civil

A

Parties are required to provide relevant documentation to the courts and other party at the earliest reasonable time. depending on the claims being made parties may be requires to provide documents such as medical records, invoices of receipts incurred, relevant emails or contracts

56
Q

What is the purpose of the Discovery of documents ?

A

to ensure fairness in process by ensuring relevant documents are disclosed and parties are informed. the discovery stage ensures a just outcome as parties are able to determine the strength of the other parties case and their own likelihood of success. may even result in out of court settlement

57
Q

What is the exchange of evidence

A

to prove their case the plaintiff generally relies on the use of evidence. this stage is where the evidence can not speak for itself. two types lay evidence and expert evidence

58
Q

Define Lay evidence

A

This is evidence given by a regular person and may take the form of a written outline( brief description of the evidence the witness will present) Witness statement (written evidence by witness or orally (in person at trial).

59
Q

Define expert advise

A

This is evidence provided by an independent expert usually provided as a written report. the evidence provided must be independent and related to the individuals area of expertise. Financial, property or medical information may be required to use experts. Experts scubas medical practitioners, accountants, finance experts or engineers can provide expert evidence

60
Q

What is the purpose of exchange of evidence ?

A

allows parties to determine the strength of their case and damages sought as it informs them of all relevant evidence . It also gives hem the opportunity to rebut their opponents evidence by providing their own expert evidence

61
Q

Reasons why negotiations are appropriate (civil)

A
  • It gives parties the opportunity to avoid the cost, time and the stress involved in commencing a formal civil action
  • The parties ave control over the outcome opposed to having a third party decode for there, making it likely parties will be satisfied
62
Q

Reasons why negotiations are not appropriate (civil)

A
  • when one or both of the parties do not want to resolve the dispute
  • other attempts have already failed
  • one of the parties have been harmed or threatened and their is fear or distrust between the parties
  • there is a significant power imbalance

LEGAL UNIT 3 AND 4 (9 decks)

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