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legal year 12 > civil law booklet one > Flashcards

civil law booklet one Flashcards

1
Q

civil disputes

A

a disagreement between two or more individuals whereby one group or party makes a claim against usually, claiming a loss

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2
Q

purpose of civil law

A

allow party to enable their rights
determine whether a party is liable
award a remedy and return plaintiff to their pre tort position

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3
Q

plaintiff

A

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

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4
Q

defendant

A

the party who is ALLEGED to have infringed the plaintiffs rights or is alleged to be responsible for the wrongdoing

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5
Q

vicarious liability

A

if an employee infringes a persons rights whilst acting in a course of their employment, the injured person may be able to sue the employer via vicarious liability

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6
Q

burden of proof

A

the plaintiff has burden of proof- the onus that their claim is supported by facts

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7
Q

standard of proof

A

level or strength of evidence required to prove the facts of the case
ON THE BALANCE OF PROBABILITIES= more probable or more likely than not that their claim is true

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8
Q

complaints body

A

govt funded, statutory bodies that exist to investigate complaints from people about the conduct of other parties

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9
Q

what are three types of cost

A

legal representation
disbursements
adverse court orders

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10
Q

legal rep

A

solicitor: preparing the case= seek legal advice, draft and file legal documents
barrister: need to represent client in pre trial hearings or present their case at court
cost of legal rep depends on the complexity of the case and what court/tribunal its being heard at

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11
Q

disbursements

A

preparing the case outside of legal rep=
-court fees= filing fees, hearing fees, jury (optional)
-writ in County Court=$779
-hearing fee in CC=$1606 first day then $303.60 for after
-fees for expert witness, mediation fees etc

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12
Q

adverse court orders

A

one party pays for the other party’s legal costs, if plaintiff is unsuccessful then they have to pay for some or all of the defendants legal cost

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13
Q

define of limitation of actions

A

a restriction on the time limit in which a
plaintiff must a 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
legislation= Limitations of Actions Act 1958 (Vic)

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14
Q

why does limitation of actions exist

A

-encourage parties to have matters heard in a timely matter
-ability for witnesses to recall info
-quality of evidence to support party’s claim is strong
-ensure that defendant does not have to defend a civil action after a significant period of time

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15
Q

civil actions that have a limitation

A

defamation= one year
personal injury= three years
negligence= six years
breach of contract= six years
action to recover land= 15 years
action to claim personal estate of a deceased person= 15 years

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16
Q

define enforcement issues

A

a factor that involves the plaintiff considering that if they are successful in their claim, can their claim be enforced on the defendant

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17
Q

enforcement issues can be considered by

A

-defendant has/likely to declare bankruptcy or is an unemployed individual
-defendant is a company, may not have assets to sell
-defendant is in prison
-defendant has relocated overseas permanently
-defendant is unknown or cannot be identified

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18
Q

impartiality in civil disputes

A

-both parties have an independent and impartial adjudicator preside over their dispute
-if parties want a jury, jury is not biased and decides liability based on facts and evidence not prejudice

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19
Q

open processes in civil disputes

A

-disputes that utilize the courts are open to the public which promotes transparency and ensures that legal personnel are held answerable and accountable for their actions

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20
Q

participation in civil disputes

A

-parties have the right to launch a civil dispute if they believe there has been an infringement on their rights
-parties can utilize many other dispute resolution such as mediation, conciliation etc…
-series of pre trials such as pleadings, discovery of documents and directions, the defendant is able to gain information on the claim and can prepare an adequate case against

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21
Q

formal equality in civil disputes

A

-all parties can initiate a civil claim in they believe there has been an infringement of their rights
-all parties have an impartial adjudicator who oversees the case to ensure both parties have the chance to represent their cases
-all parties must engage in pre trial procedures to ensure adequate preparation and presentation of their case
-all parties are allowed to request for a jury
-all parties can have legal representation

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22
Q

substantive equality in civil disputes

A

-if parties can’t afford legal representation, then they may be able to self represent and the judge or magistrate can explain the processes and certain rights
-VLA and CLC are able to provide support to parties who cannot afford representation (with eligibility)
-interpreters can be utilized for non english speakers
-there are other methods of dispute resolution for those who may not have financial costs for judicial determination, such as mediation which is slightly cheaper

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23
Q

engagement in civil disputes –>
engagement refers to more things such as costs and accessibility

A

-range of dispute resolution methods available to parties
-tech development that allows disputes to be heard remotely
-financial access= VLA or CLC and CAV for human rights matter herd by VCAT are free
-class actions allows costs to be slightly lower for each individual party
-VCAT has discounts for those on pension cards

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24
Q

informed basis in civil disputes

A

-specialist CLC’s can assist those deemed vulnerable in society= eg AED= Association for Employees with Disabilities is established to assist individuals with disabilities regarding matters such as bullying and harassment in the workplace
-online websites such as VCAT, VLA provide FREE legal advice

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25
Q

mediation

A

involves an impartial third party who helps facilitate communication between parties in order for them to cooperate to reach a resolution
-legal rep is not usually needed however can be used
-one of the more informal methods of resolving disputes
-no strict rules of evidence and procedure
-ant decision is not legally binding unless a deed of settlement is signed by both parties

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26
Q

terms of settlement/deeds of settlement

A

a legally binding document that outlines the term that the parties have agreed to after mediation which can be enforceable through courts if parties don’t comply

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27
Q

when can mediation be used

A

before court= before engaging in courts
during court= magistate, county or supreme can order parties to attend as a pre trial procedure
mediation as an alternative to court= VCAT

28
Q

mediation appropriate

A

-both parties are willing to discuss and negotiate and compromise
-parties don’t have financial means or don’t want to spend all their money
-a relationship needs to be maintained by parties
-parties prefer privacy and do not want the mater publicised or receive exposure
-a resolution needs to be reached quickly

29
Q

mediation is inappropriate

A

-relationship doesn’t need to be salvaged
-parties have the financial means to get legal rep and go through courts
-parties are willing to wait for courts
-parties aren’t willing to discuss ideas and cooperate together
-there is one dominant party
-parties want exposure or publicity on their case

30
Q

conciliation

A

involves impartial third party who facilitates communication between the parties to help them reach a resolution and is also able to make suggestions regarding ways and options to resolve disputes
-conciliator will generally be an individual with specialist knowledge in that field regarding that legal dispute

31
Q

when is conciliation used

A

-can be ordered to attend it
-tend to be the main methods used in tribunals and complaints bodies

32
Q

conciliation appropriate

A

-parties are willing to work together and reach a resolution
-parties don’t want to pay costs associated with judicial determination
-parties don’t want a legally binding document
-parties want to maintain a relationship
-parties want to partake in coming up with a resolution

33
Q

inappropriateness of conciliation

A

-parties are highly emotional
-parties aren’t willing to discuss with each other
-there is a history between two parties that means the relationship does not need to be maintained
-there is a power imbalance between parties=one party is more dominant
-parties want a binding result to ensure the resolution is upheld

34
Q

arbitration

A

one of the more formal alternate resolution methods
private
no rules of procedure and evidence
-involves an impartial third party arbitrator who listens to evidence and facts presented by both parties and possible representatives and make a legally binding decision

35
Q

when is arbitration used

A

private= arranged by parties themselves/ commercial transactions where it is stated in their contracts
in court= small claim is filed in the Magistrate Court for under 10k then parties are obligated to attend arbitration/ matters over 10k in mag court can also go to arbitration with consent of parties
tribunals= VCAT can refer parties to arbitration before the final hearing however doesn’t conduct it themselves
-county and supreme court as well if parties consent

36
Q

appropriatness of arbitration

A

-parties consent or agree to attend
-parties want to benefit to a legally binding decision
-parties want matter to be heard privately
-parties want a more formal procedure and want an impartial third party to view evidence and facts presented

37
Q

administrative convenience

A

-refers to the ability of the courts to distribute resources more effectively by organising disputes according to how serious or complex they are
–> for example, Supreme Court can devote free time to resources to long and complex disputes as the court is not delayed by resolving minor disputes

38
Q

strength of administrative convenience

A

-allows more complex cases to be resolved in a more efficient manner whilst also allowing for expertise

39
Q

weakness of administrative convenience

A

-there is a lack of judges in Victoria for the supreme court (29) and this could lead to delays

40
Q

appeals

A

-allows for a dissatisfied party to have their case reviewed by a higher court

41
Q

how to get an appeal

A

grounds/leave/permission for appeals:
-questions of law=law hasn’t been applied correctly
-questions of fact=whether facts of the case has been applied appropriately to reach a decision
-the remedy awarded

42
Q

strength of an appeal

A

-allows for the party to get case reviewed if they are unhappy= increases participation
-all parties can appeal= formal equality

43
Q

weaknesses of appeal

A

-to appeal, must have a plausible reason–>may be refused= decrease fairness
-may lead to delays

44
Q

judge

A

an independent authority who presides over a trial, ensuring procedural fairness by overseeing all personnel and evidence

45
Q

magistrate

A

an independent authority who presides over hearings in the Mag court for less serious summary offences, committal proceedings and some civil disputes

46
Q

justice

A

a judge in a relatively superior court in the hierarchy such as Supreme Court of Vic

47
Q

role of judge= case management before trial

A

purpose of this stage is to ensure that the case is ready for trial or to determine whether the matter can be resolved prior to trial, involves
-giving directions to party=pose an obligation on a party, or both, to do something by a certain time or specify how something will be conducted; this involves
-filing a particular document by a certain date
-discovery process so ensuring parties get copies of each others documents that are relevant to the issues
-attending mediation= judge may order parties to attend mediation by a certain date to try and resolve the dispute

48
Q

judge= case management during trial

A

-ensuring correct procedure is followed
-limit the examination of witnesses or not allowing cross-examination of certain witnesses or time limits on examination in chief
-limit the number of witnesses a party may call
-limit the number of documents that a party may tender into evidence
-ask witnesses some questions to clarify evidence
-hand down a ruling
-ensuring parties who are self represented, are able to understand their rights and obligations along with court processes

49
Q

other general roles of judges

A

-act impartial
-apply rules of evidence and procedure
-direct the jury
-determining liability and awarding remedies

50
Q

strength of judge

A

-impartial= ensure trials are conducted without bias or prejudice
-ensure rules of evidence and procedure apply and therefore allowing parties to present their case
-case management enhance the accessibility of courts

51
Q

weaknesses of judges

A

-rely on evidence of parties to make a judgement and if parties are self represented, this can prevent all relevant facts from being presented which can lead to an unfair trial
-impartiality isn’t guaranteed because still human and therefore may form subconscious bias or have prejudice due to personal beliefs
-accessing judges can be difficult all together because of high costs and time consuming

52
Q

judge in criminal vs judge in civil

A

criminal:
-hands down sanction only (where a jury is applicable)
-pre trial procedures= committal proceedings and it is NOT the same judge for the indictable trial
-judges play a less active role because it is role of prosecution to prove facts of the case
similarities:
-both give directions to jury
-both are impartial
-oversee case and ensure rules of evidence and procedure are followed
-deciding amiss-ability of evidence
judge in civil:
-can order parties to ADR
-determine liability and remedy
-case management and same judge will case manage
-also take the opportunity to assist and guide those who are unrepresented

53
Q

role of parties

A

party control:
determine what and how they will present their case at court

54
Q

role of plaintiff

A

party control involves=
-choosing which court to bring their claim
-what evidence to present
-choice of witnesses to use
-what defences they will raise
-disclosing information to the defendant
-presenting evidence
-lay evidence= evidence given by ordinary person
-opening addresses to judge
-cross examination

55
Q

role of defendant

A

-raise evidence
-call their own witnesses
-disclose evidence
-present defences

56
Q

what is the legislation that makes parties to disclose evidence

A

Civil Procedures Act 2010

57
Q

strengths of parties

A

-parties have control over their case and what evidence over what they present which increases participation
-given same opportunity ton present their case
-must abide by court rules of evidence and procedure
-courts provide some general assistance to those who are self represented so that they can ensure they understand court processes

58
Q

weaknesses of parties

A

-self represented may be at a disadvantage as they may not understand documents, legal terms and court processes
-some parties may not be able to afford legal rep
-vla are typically unable to provide legal rep for civil disputes

59
Q

similarities and differences for parties

A

similarities:
-have to disclose information
-present evidence
-can provide defences
-access to an impartial adjudicator
-access to impartial jury
-exercise party
control
parties in criminal:
-can enter into a plea
-judges may adjourn the case if parties aren’t represented
-prosecution must disclose information to the defendant
parties in civil:
-lots of pre trial procedures that parties may have to attend
-have the opportunity to have their case heard in a number of different ways
-can be self represented and if so can get
assistance and guidance from the judge
-expectation that parties attend an ADR to save time and resources

60
Q

how jury are used

A

-parties aren’t entitled to a jury in a civil case
-if party wants a jury, they must pay for it themselves not the state
-judge can order for case to be heard judge alone
-don’t have to give reason on why they reached verdict
if there is a jury, it is 6 jury members

61
Q

main role of a jury

A

-remain objective and impartial= remain independent and unbiased throughout the proceeding and if there is connection for it to be known and then they are dismissed
-must listen to evidence presented by both sides and reach verdict based of facts and evidence
-jurors can take notes and keep track of info throughput trial
-ask judge to explain legal terms
-main role is to determine the liability of the defendant and can also contribute to handing down an appropriate remedy

62
Q

why legal rep is needed

A

-civil system is very complex and difficult to navigate due to its processes
-parties want to rely on expertise and experience of a legal rep to present and prepare their best case to ensure best remedy or defence
-a party may be too emotionally invested in the case and hinder their ability how to present their case
-a party may need assistance to identify and collect relevant evidence

63
Q

solicitors

A

a specifically trained individual who helps prepare the case for individuals, normally the first person a party sees for legal advice
-provide clients about the likelihood of success on their legal matter or identifying clients factors to consider before initiating a claim
-prepare legal documentation, speak to witnesses, locate evidence, help write a writ, research relevant law
-communicate with barrister and also give them instructions in court in how to present case

64
Q

barrister

A

responsible for presenting the case in court
-making legal arguments and presenting evidence
-question witnesses
-summarise case for the judge and jury
-once case is over, ensure a legally binding document is formed and that it is binding on both parties

65
Q

legal assistance in civil

A

-persons case is not adjourned in civil because they are self represented however a judge has the duty to give them assistance and guidance

66
Q

vla

A

may be more difficult for parties of low socio economic to get legal rep
-may grant legal assistance to plaintiffs in civil cases where the amount of the claim is 5000 or more
-defendant may receive rep if the claim is more than 5000, the defendants sole home is at immediate risk in the action and there is a strong prospect that the defendant can defend the claim

67
Q

clc

A

-aed legal centres in melb can assist people with disabilities who have employment and education related legal problems

legal year 12 (6 decks)

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