Civil Law Flashcards
Burden of proof
The obligation/responsibility of a party to prove a case.
The burden of proof lies with the party who is initiating the case (the plaintiff).
Standard of proof
The degree or extent to which a case must be prove in court.
In a civil trial the standard of proof required is the ‘balance of probabilities’ meaning what is more likely to have taken place and which party is in the wrong based on the evidence provided.
Representative proceedings
Refers to one person bringing forward a claim on behalf of someone else. Also know as a 'class action' where 7 or more individuals who have suffered the same or similar loss or damage are bringing forward a claim against the same person. There will be a 'lead plaintiff' who is representing all of the others involved.
Advantages of representative proceedings
- Sharing of costs
- Greater efficiency due to fewer claims thereby saving time.
- Greater access to the legal system because an individual who may not be able to pursue a case due to costs and other complexities now can as the cost is reduced as it is shared.
Litigating funder
A litigating funder is a third party that agrees to pay the costs associated with pursing a case in return for a % of the settlement of damages.
Negotiation options
Negotiation options involves parties interacting directly with each other with the aim of resolving the dispute without having to go to court, this may or may not involve legal representation.
The negotiation process may involve an impartial, independent third party known as a mediator.
Costs
A plaintiff should consider various costs when initiating a claim. There are many different cost associated with pursuing a civil dispute, such as…
*Fees for legal representatives:
Fees will vary depending on the complexity, size and length of the case, the court that the case will be heard in as well as the expertise of the solicitor and/or barrister involved.
*Disbursements:
Disbursements include fees such as court fees, mediation fees or fees paid to expert witnesses/jury members.
Limitation of actions
There are restrictions placed on when a civil action can commence.
The ‘Limitation of actions act 1958 (vic)’ sets out the time frame given for a plaintiff to commence an action.
The limitation of actions aims to promote social cohesion by resolving issues as quickly as possible, ensuring that evidence is available/reliable and that the defendant doesn’t have to face an action long after the civil wrong has occurred.
In 2015 Victoria changed the law to victims wishing to make a civil claim that involved physical or sexual abuse as a minor.
The scope of liability
Who are the possible defendants and to what extent are they liable?
A civil wrong may include a party other than the person who directly infringed the plaintiff.
Possible defendants may include an employer, an insurer or another party that was also involved in the wrongdoing.
Enforcement issues
What happens when the defendant doesn’t/can’t pay the remedy?
Defendant is bankrupt, doesn’t have any money, leaves the country or may be in jail.
Some options available to the plaintiff are ‘warrant of seizure’ and sale where the ‘defendant’s assets are sold’,
Attachment of debts is where a third party that owed the defendant money is ordered to pay the plaintiff rather than the defendant.
Attachment of earnings is where the court orders the defendants employer to pay the plaintiff from the defendants’ wage.
Consumer Affairs Victoria (CAV)
CAV:
- Advise the Victorian government on consumer legislation.
- Provides information and guidelines to educate people on consumer laws.
- Provides a dispute resolution process for consumers and tenants when their rights have been infringed.
Aims to resolve matters efficiently and effectively to ensure the consumer or tenant is adequately compensated for their loss and the trader/landlord stops the inappropriate behaviour.
Mainly uses Conciliation, where an independent third party helps both parties come to an agreement.
A conciliator usually has specialist knowledge and is therefore in a position to suggest solutions to the parties.
Once an agreement is made a term of settlement which outlines the agreement made may be signed by parties and may be enforced through the court if either party does not comply.
Appropriateness of CAV
Disputes must be within the jurisdiction (power).
Must consider the likelihood that they can settle the dispute as well as whether there are alternative ways to resolve the dispute outside CAV.
CAV will not conciliate disputes where VCAT or the courts are currently involved.
