Civil law foundations

Question 1

Precedent

Answer 1

The doctrine which maintains the thread of common law which establishes a basis by which judges make decisions. It is the ratio decidendi that establishes precedent, and not the obiter dictum.

Question 2

ombudsman

Answer 2

A legal representative that investigates complaints in organisations between members

Question 3

Balance of Probabilities

Answer 3

The standard of proof for civil law which states that for a plaintiff to be successful, they must prove that their evidence is more likely than the other party.

Question 4

Burden of Proof

Answer 4

The plaintiff has the burden or onus of proof to prove that the defendant is liable

Question 5

Plaintiff

Answer 5

The party who brings a suit to court for a civil wrong

Question 6

Defendant

Answer 6

The party who is accused of breaching a civil law or is said to have engaged in unfair conduct.

Question 7

Tribunal

Answer 7

A sub-set of courts that deal with specific issues

They are:

1. Not usually conducted by lawyers
2. Relaxed and informal
3. Rules of evidence is relaxed
4. Have a temporary place in the legal structure
5. Precedent does not apply except or appeals.

Question 8

Alternative Dispute resolution

Answer 8

the use of methods such as mediation or arbitration to resolve disputes rather than resorting to litigation

Question 9

Class action

Answer 9

A lawsuit filled by one member on behalf of a larger group.

Question 10

counter claim

Answer 10

A situation where the defendant commences their own proceedings against the plaintiff within the original preceding rather than commencing a separate legal action.

Question 11

damages

Answer 11

the loss suffered by the plaintiff: either property, emotional, or monetary, that must be paid back with compensation if the defendant is liable.

Question 12

Injunction

Answer 12

A court order issued to legally prevent someone from pursuing a course of action or decision.

Question 13

What is the objective of the Civil dispute resolution Act 2011?

Answer 13

Section 4 says that the objective of the act is to ensure that litigants have taken genuine steps to resolving a dispute before commencing civl proceedings

Question 14

What “taking genuine steps to resolve a dispute” look like?

Answer 14

• Identifying the dispute
• Responding appropriately
• Understand and Quantify the dispute
• Identifying course of action

Question 15

What does Section 6 of the Civil Proceedings Act 2011 state?

Answer 15

Section 6 of the Civil Disputes Act 2011 provides the basis for the ADR processes that the C.P.A initiates.

Objectives:

a) allow participation in ADR to achieve satisfactory dispute resolution
- Voluntary participation encourages self empowerment
- Praties are in control of their justice becasue they are apart of the solution which is more salubrious for relationships

b) improve access to justice for litigants by reducing the cost and delay
- Fast incorporation of due process which is fair and equitable
- Saves time, money and emotional stress.

c) provide legislative framework for ADR to make it more efficient
- Not limited by court rules which maintains parties integrity
- Allows for minimal confusion which upholds the rule of law

d) Safeguard ADR process to protect privacy
- Maintains confidentiality, which can imporve confidence in the justice system.
- Limit public scrutiny.

n.b. Know one justice and social advantage for each objective.

Question 16

Explain rights that are protected by Civil Law, and the link to these obligations imposed by Laws

Answer 16

The responsibility to protect individuals and their rights.
——> Case was Coco vs The Queen 1994 HCA described that the interpretation of statutory law should not interfere with fundamental rights.

• Access to justice
• Protection of personal liberty.
• Freedom of association
• Privacy
• –> Rule of Law

Allow individuals to be compensated for their loss. The innocent should be protected.
—> Civil Liabilities Act, 2003

Ensure that accountability with promises.
—> Competition and Consumer Act 2010 (QLD)

Question 17

Explain the sources of Civil law

Answer 17

Civil law is a derivative of the Common Law. It is based on the adversary system and the codification of laws in legislation. Common law is judge-made law and is based on precedent. When making a precedent, judges interpret statute law to make their obiter dicta, which contributes to the binding ratio decidendi.

Question 18

Explain the Doctrine of Precedent

Answer 18

A formalised and enforced system whereby judges are forced to follow

Question 19

Explain Civil Jurisdiction and the hierarchy of the courts

Answer 19

High Court
Appellate Jurisdiction
- Appeals from Federal, family, or state supreme court
Original Jurisdiction
- Interpreting the constitution (Executive power)
- Disputes between all lower courts and

                               Supreme Court  - Civil Claims> 750,000

                               District Court  - 150000 < civil claims < 750000

                                Magistrates Court  - civil claims < 150000

Question 20

Compare civil and criminal actions, including pre-trial procedures and court processes.

Objective/remedy
Nature
Name of action
Source of law
Initiated by
Parties involved
Standard of proof
Aim
Onus of proof
Role of the judge

Answer 20

Civil

Objective/remedy- Compensatory damages
Nature- Citizen v Citizen
Name of action- Suit
Source of law- Common Law
Initiated by- The plaintiff
Parties involved- Plaintiff vs Defendant
Standard of proof- Balance of probabilities
Aim- protect the individual
The onus of proof - Plaintiff
Role of Judge- decide the questions of fact and law

Criminal

Objective/remedy- punish the offender
Nature- The crown vs The defendant
Name of action- Trial
Source of law- Statute law
Initiated by- The Crown on behalf of society
Parties involved- Prosecution against the accused
Standard of proof- Beyond a reasonable doubt
Aim- To protect the public
The onus of proof- Prosecution unless drink driving or insanity plea.
Role of the judge- Judge decides question of law and jury decides questions of fact

Question 21

Describe different methods of resolving civil disputes

Refer to ADR processes for definitions and benefits of the processes

Answer 21

1. Mediation
2. Conciliation
3. Facilitation
   - A neutral party who assists the process of gaining justice more effectively.
4. Facilitated negotiation
   - A neutral party who facilitates negotiations between parties
5. Case appraisal
6. Conciliation
7. Neutral evaluation
   - A neutral party evaluates the best course of action
8. Arbitration
9. Expert determination
10. A court or judicial intervention
11. Avoidance
12. Lumping the grievance
13. Naming blaming and claiming

Question 22

Explain and compare different forms of ADR

Answer 22

1. Mediation
   - A mediator is an impartial third party assisting the process of resolving a dispute. The decision is not binding if the parties don’t agree on it.
   - Flexible approach to outcomes
   - If parties don’t agree, the mediation process is useless
2. Arbitration
   - An acting judge called an arbitrator hears all the evidence and arguments and creates a binding decision called an award. It is flexible and efficient and can be used to resolve property, financial and spousal maintenance
   - Efficient
   - Parties bear the cost of the arbitrator, and there are limited appeal rights
3. Expert Determination
   - An expert in the field of dispute offers advice on how to best resolve the case. The parties agree under the expert determination clause that they will agree to the solution. Often arises out of commercial contracts
   - specific
   - The expert cannot go outside the boundaries of the jurisdiction specified in the contract.
4. Collaborative Law
   - Parties and their legal advisers reach a decision without resorting to litigation
   - Informal and time-saving
   - the expense of getting legal representatives
5. Conciliation
   - a conciliator aids the reconciliation process by instigating conversation and guiding people with their rights and responsibilities
   power imbalance

Question 23

Explain what a tribunal is and its consequences

Answer 23

A tribunal is an informal and independent sub-court that is designed to deal with specific matters. It is often informal, where the rule of evidence, court etiquette, the need for legal representation, and the doctrine of precedent is relaxed.

• Quick, inexpensive, efficient, empowering, uphold the rule of law and due process
• Lack of funding, Expertise and independence

QCAT-Queensland civil and administrative tribunal
Deals with Tenancy, building, administrative decisions, consumer, debt below 25,000 and trees.

Question 24

Explain what the ombudsman is responsible for and the benefits of having a legal representative for private issues/

Answer 24

An ombudsman investigates about the actions and decisions of state and local government and agencies to:

• give people a timely, effective and independent way to have administrative activities of agencies investigated
• to improve the quality of decision-making and regulatory practice in government agencies
• oversight of the Public Interest Disclosure Act 2010.
  Examples
• Telecommunications
• Banking industry

Benefits
Independence assures accountability
Instigate restorative justice and reconciliation of relationships

Question 25

What is the relationship between courts and ADR?

Answer 25

Courts will sometimes enforce that people engage in ADR processes before they resort to litigation and the court. Resorting to ADR maintains the fluidity of the justice system. Statutes like the Civil Dispute Resolutions Act 2011 ensure that people take genuine steps to resolve disputes.