civil law booklet 2 Flashcards
lesson nine (36)
what is a class action?
- legal cases filed by a single representative on behalf of seven or more ppl
- the claims of the parties being rep in ca will be based around the same / sim / rel circum - these claims will gen raise subst comm factual & leg qs
lesson nine (36)
what are class actions also known as?
- representative proceedings
- group proceedings
lesson nine (36)
what is the criteria for a class action?
- 7 or + ppl claiming against the same def (s)
- claim must arise from the same / sim / rel circum
- claim must give rise to a comm issue of law / fact = meaning same issues are det my the courts for all claims = j must only refer to the 1 type of leg disp
lesson nine (36)
whilst the lead plaintiff of a class action has the same obligation as any other pplaintiff in an individual litigation, what are some additional obligations specific to class actions? (role of lead plaintiff)
- assuming the risk & $ of litigation on behalf of the entire group
- ens claim serves inter of group mem & x pursued solely for pers ben
- prov instruct to their lawyers reg conduct of the claim & making dec reg sett / neg
- filing the case under their own name
lesson nine (36)
what is the lead plaintiff solely responsible for if the class action fails?
- the $ of the proceedings & any adv $ orders
- group mem = x oblig to contrib to proce $ unless or until succ outcome is known
lesson nine (36)
how is the cost handled if the class action is successful?
- class mem = share the $ of bringing the proceedings
- $ = shared among
lesson nine (36)
what courts hear class actions?
- the SC TD of vic
- fed court of aust
- dep on nature of the claim
lesson nine (36)
what are the strenghts of class actions?
- liti funders –> incr c.a. brought in circum where indivi liti = lack $ –> incr part
- c.a. man by exp & imp j –> case cond = eff & imp
- juries = avail in SC –> allow case = det by imp / x-sect of soc
- c.a. = more eff way of dealing w/ no. of claim –> sav time & court res
- c.a. dec $ for def
- c.a. usu supp by exp lawyers –> ens case = pres in best poss light for all group mem
lesson nine (36)
how do class actions decrease the costs for defendants?
- def can respond to multiple claims, all w. sim in 1 proceeding rather than having to go through sep proceedings
lesson nine (36)
what are the weaknesses of class actions?
- lead plain = req assu risk & $ of lit on behalf –> unfair
- juries = x avai if c.a. = fed court aust –> cas = x det by imp x-sect of comm
- x lit fund obtained –> lead pl may x be willing to bear $ assoc
- dep on sett reached, share given to each after costs = min esp if large % –> lit funders
- c.a. extr $ req 3rd party to fund –> w/o x comm
- c.a. long time - heard & compl –> sev yrs due to amount of evid req t/f delaying reme & just to plaintiffs
- some group mem may not get adequ / up to date info about procee –> lim abil to part in civ just sys
lesson ten (37)
what is CAV?
- Consumer Affairs Victoria is a stat body = it was est as a result of vic parli massing legistlation
lesson ten (37)
what was the legislation passed to form CAV and allow it to be an oversee body & administer laws into society?
- Australian Consumer and Fair Trading Act (vic) 2012
lesson ten (37)
what are the purposes of CAV?
- enf compliance w/ consum law
- prov info & guid to edu ppl about consum laws / rights & resp of bus & consum
- in lim circ = prov consum / traders / ll w/ disp resolu process
- advi vic govt on consum leg
- prov access disp resol serv
lesson ten (37)
what are the most common civil matters that CAV can assist with?
- a complaint against a bus by a consum who believes that aust consum law & fiar trading act 2012 (vic) has been breached
- a complaint against a ll by ten who believes the Residential Tenancies Act 1997 (vic) has been breached
- a complaint made by the consum about buying & selling of new & used cars.
lesson ten (37)
in what circumstances is CAV appropriate?
- disp falls w/n CAV jurisdiction
- parties attempted to resol disp themselves (email / phone call / face to face)
- bp willing to attend & part in concil (relat part = posi)
- parties wish to avoid $ & delays assoc w/ reso disp through courts / VCAT (student / young parent)
- part willing to settle t/f incr the likelihood of a succ resol (bus that x want neg public)
- bp = will to comply w/ the agreement reahed during concil
lesson ten (37)
in what circumstances is CAV inappropriate?
- disp = x fall under CAV’s juris
- part = x attem to resol disp themselves
- one / bp x will to att & part in concil (lack of communication)
- there is a better meth of resolthe disp, incl via an alt organ that is better suited to dealing w/ matter
- court / VCAT already ruled on the matt / case curr waiting to be heard
- disp = initi by a ll / bus
- disp = c.a
- one or more part want leg bind dec
lesson ten (37)
what are the strengths of CAV?
- quick & rel eff meth for part to res w/o delays & stress assoc w/ trial whilst also allowing imp process through concil
- CAV = free –> if party = x aff bring claim thr courts / VCAT = still able to part in just sys –> f
- uses concil = takes advt of an exp concil & able to prov parties w/ sugg –> fairer & more eff outc
lesson ten (37)
what are the weaknesses of CAV?
- CAV = x pwr to compel parties to undergo concil –> willing party to dispute = x able to use CAV’s disp reso serv if other party = x willing
- CAV = x pwr to enf any decs reached by parties in concil / unless bind agree @ concil –> 1 party ign outcome –> parties x better off
- CAV = x app for large & cpx disagr = incl diff leg qs / sev diff parties = which only resol by court or trib that has greater exp in law
lesson eleven (38)
what is VCAT?
- vic civ & admin tribunal
- an indep trib which hears & det a no. of civ law matters.
- using inf processes & the dec of the trib are leg bind & enf thr the courts
lesson eleven (38)
who are the parties in VCAT?
- applicant
- respondent
lesson eleven (38)
who is the applicant?
- the person who is applying to have their disp resolved - gen aggrieved party
lesson eleven (38)
who is the respondent?
- the person who is responding to a claim made against them
lesson eleven (38)
what are the five divisions of VCAT?
- residental tenan div
- admin div
- Planning & environ div
- civ div
- hum rights div
lesson eleven
what disputes fall outside of VCAT’s jurisdiction?
- c.a.
- cases where parties are resid from diff states
- cases inv the exercise of fed juris
- cases where cth of aust is party
- cases inv aust constit
- disp b/w neigh
- dis b/w employer & employee
lesson eleven (38)
what are the purposes of VCAT?
- prov low-$ disp res serv
- prov eff disp res serv
- prov access disp res serv
lesson eleven (38)
what are the methods of resolving disputes within VCAT?
- fast-track med & hearing
- med
- comp conferences
–> if unsuit / unsucc - final hearing
- app a VCAT dec
lesson eleven (38)
when is VCAT appropriate?
- matt falls w/n their juris
- parties preg inf disp reso proc
- parties want to try & reso disp thlvs / have agency over outcome
- parties like option to neg but if unsucc w/ to have a leg bind dec enf in a hearing
- bp = willing to comply w/ agreement reached dur med
- parties = willing to app only on q of law
- parties want low-$ & time eff reso of disp
lesson twelve (39)
what is judicial determination?
- when dec has been reached by a judge / mag will make a leg binding dec after parties pres their cases at a trial or hearing
lesson twelve (39)
what are the purposes of courts?
- prov access to an exp & indep leg expert
- prov access to a trial by jury
- prov a method to res c.a
- prov parties w/ leg binding & enf outcome
- prov an avenue for an appeal
- prov a leg setting for prec to be est
lesson twelve (39
when are courts appropriate?
- if claim falls w/n the juris of the courts & x be heard at any other avenue e.g. c.a
- matt is leg cpx issue that may req the exp of a highly experienced adjudicator
- parties consid $, time & delays assoc w/ court proceedings & bp have the funds to sat these fcts
- parties would pref forma associated w/ strict rules of evid & proc found w/n court trial
- parties have att to res disp thr other means (med / neg) & att = futile in res the disp
lesson twelve (39)
when are courts not appropriate?
- parties want to neg & res disp thsvls w/ abil to infl outcome
- 1 or bp may x want to deal w/ compli pre-trial proc, the req for filing a claim in court & rules of evid & proc
- parties pref less $ & time consum disp reso method
- parties wish to self-rep / x eng in leg rep
- parties wish to maintain an ongoing rel w/ each other since the adv nat of courts
lesson thirteen (40)
what are the costs of CAV?
- free - should CAV take on the matt (x auto) = use of concil = free
lesson fourteen (41)
what are remedies?
a court order that aims to enforce a right be preventing / correct a civ breach by ret the plaintiff to their o.g pos
lesson fourteen (41)
what are the two types of remedies?
- damages
- injunctions
lesson fourteen (41)
what are damages?
- type of remedy in which monetary compensation is awarded to the plaintiff in a civ disp to compensate their loss caused by a civ breach
lesson fourteen (41)
what are the categories of damages?
- compensatory
- exemplary
- nominal
- contemptuous
lesson fourteen (41)
what are the purposes of damages & injunctions?
- return the plaintiff to their o.g position
- uphold the plaintiff’s rights
- det others from comm civ breaches
lesson fourteen (41)
what are the three types of compensatory damages?
- specific
- general
- aggravated
lesson fourteen (41)
what are specific damages?
- dam that can be given in a prec monetary value & which are easily quant (e.g. dam for med expenses)
lesson fourteen (41)
what are general damages?
- damages which will be assessed by the court according to the magnitude of the wrong done & the long term consqu of the wrong
- gen est = x easily quant (e.g. dam for pain & suff)
lesson fourteen (41)
what are aggravated damages?
- add compen dam which can be awarded to the plaintiff if the court bel that the def conduct res in the humiliation & insult of the plaintiff
lesson fourteen (41)
what are nominal damages?
- dam awarded to plaintiff of only a small monet amount b/c the aim = x compen plaintiss but make a pt that plaintiff is leg in the right & show plaintiffs civ rights = infring
lesson fourteen (41)
what are contempuous damages?
- dam awarded to plaint of only a small sum of $ b/c desp leg right to dam court bel plain = x have moral right to dam
- x des paid dam
lesson fourteen (41)
what are exemplary damages?
- dam rth large sum $, awarded to the pl w/ aim of making an ex of def & punishing them for engaging in reck / mal / cruel beh which showed a scornful disreg of the pl
lesson fourteen (41)
what is an injunction?
- a court order that compels a party to do smth or prev a party from doing smth
lesson fourteen (41)
what are the types of injuctions?
- restrictive
- mandatory
- interlocutory
- final
