Civil Law part.2 Flashcards

1
Q

What are the 3 features of class actions

A

-Seven or more people claiming against the same defendant
- claim must be in respect of the same or similar circumstance
-must give rise to a common issue of law meaning the same issue are determined by the court for all claims

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What is the roles of the lead plaintiff

A

-Assuming the risk and cost of litigation on behalf of entire group
-Ensuring claim represents group members, not only pursue ow benefits
-provide instructions of their lawyers regarding conduct of claim and making decisions regarding to settlement
-own name to be filed on case

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Where can class actions occur

A

Supreme Court (trial division) and the federal court

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What are 3 examples of the types of class actions

A

-Workplace accidients
-Medical malpractice
-Financial malpractice

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

4 strengths of class actions

A

-Litigation funders to enable more class actions to occur due to an otherwise lack of funds to raise participation
-class actions result in a lower cost for defendants, not have to disbursement costs or legal costs for group members and lowers costs for defendant
-supported by experienced lawyers due to being in Supreme Court
-more efficient as court dealing with no. of claims to save time and court resources

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

4 weaknesses of class actions

A

-lead plaintiff has to assume the risk and costs of litigation for the entire group
-extremely cost costly requiring a 3rd party to fund, which without funding will not commence
-the share given to each plaintiff after the costs may be minimal especially after large portion of damages going to litigation funders
-If litigation funding doesn’t occur then the lead plaintiff may be unwilling to bear the costs

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Define CAV

A

A statutory body, this means that it was established as a result of Victorian Parliament passing the legislation:
Australian Consumer and Fair Trading Act (Vic) 2012

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What are 3 purposes of CAV

A

-Enforce compliance with consumer law
-provide accessible dispute resolution services
-Advise the Vic government on consumer legislation eg. sales of goods
-provide consumers and tenants, landlords and traders with dispute resolution processes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What are 3 area of civil disputes that are in the CAV jurisdiction

A

-Products and services
-Housing- Residential Tenancies Act 1997 (vic)
-Cars

Must be a registered business to file a complaint with CAV

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What are 4 ways in which CAV is appropriate

A

-If the dispute falls into the CAV jurisdiction
-Parties wish to avoid the costs and delays associated with the other dispute resolution methods and VCAT
-parties are willing to comply with the decided agreement at the end of conciliation
-parties have engaged in self-help methods

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What are 4 ways that CAV is not appropriate

A

-The dispute doesn’t fall into the CAV jurisdiction
-The dispute is a class action
-parties haven’t engaged in self-help methods before filing a complaint
-parties want a legally binding resolution

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What are 3 weaknesses of CAV

A

-CAV is limited to the consumer meaning that it has no power to aid another type of party
-CAV doesn’t have the power to enforce the resolutions that were agrees with during the conciliation as they are not legally binding
-not for large and complex cases as they will have difficult legal questions and several parties

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What are 3 strengths of CAV

A

-Quick and relatively efficient so it can be resolved without the stress and delays associated with going to trial
-CAV is free
-role of the conciliator is to provide the parties with the same opportunities
-CAV conciliation is conducted in private bus promoting access to parties that don’t want a public trial

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Describe 3 main divisions of VCAT with 2 examples each

A

-Residential Tenancies division: residential tenancies list
-Civil divisions:
building and property list
owners corporation list
-human rights division
guardianship list
human right list

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What are the names of the parties involved in VCAT

A

The applicant and the respondent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Who are the president and vice president of VCAT

A

The president of VCAT is a current sitting Supreme Court judge
The vice-president is a current sitting county court judge

17
Q

Outline 3 purposes of VCAT

A

-To provide low-cost dispute resolution services: parties can also self-represent
-Provide efficient dispute resolution services: not bound by the rules of evidence and can resolve cases through fast-track mediation, compulsory conference and hearing, it is less formal and takes less time
-Accessible dispute resolution services: many locations of VCAT

18
Q

What is the cost to file a dispute

A

$70.10 for claims under $3000 and no hearing fees for claims where the amount is less than $100,000 or less and it can be resolved in a day

19
Q

Describe Fast track mediation

A

-Parties are invited to attend if it is unsuccessful than a VCAT hearing will be scheduled for a different day
-Fast-track mediation has all other properties of normal mediation

20
Q

Describe compulsory conference

A

-It is a confidential meeting in order for the parties to settle the dispute before a final hearing
-They use a conciliation process meaning that VCAT member can assist and make suggestions

21
Q

Describe final hearing

A

-Used if dispute not resolved through the alternative means
-both parties will present their cases and VCAT member will make the final decision
-they can include monetary compensation
-final decisions can be enforced by courts

22
Q

What are 4 ways in which VCAT is appropriate

A

-in the jurisdiction
-parties want an inform dispute method
-parties are willing to appeal on a question of law
-parties are willing to comply with the agreement reached during mediation

23
Q

What are 4 ways in which VCAT is inappropriate

A

-not in jurisdiction
-parties want a formal method
-don’t want a legally binding resolution
-parties are not willing to comply with mediation

24
Q

Define costs in the legal system

A

Costs associated with the running of the trial, that the parties are required to pay to initiate and continue a trial

25
Q

Outline 3 examples of costs for parties

A

-Barrister fees: ranging from $3,000 to $5,000, they present the partied case to the court
-Expert witness fees: If expert witnesses are wanted then the parties will have to pay the, these could include a doctor or a psychiatrist
-Jury fees: juries are only available in courts that are higher than the magistrates court. They are a disbursement cost that the parties have to pay for themselves. Total cost is usually around $1,611.60 including the first day

26
Q

outline 3 ways that costs can be mitigated

A

-VLA can mitigate the costs fr specific groups including, migration matters, Centrelink payments and if the individual has a cognitive disability
-VCAT fees are much cheaper than courts and can provide a legally binding decision with multiple alternative dispute resolution method available
-CAV is a free service so parties can use that to seek a resolution

27
Q

What do delays refer to

A

The waiting time that parties in civil matters experience due to a variety of reasons, eg. court backlogs

28
Q

outline 3 examples for reasons for delays

A

-VCAT services in the goods and services division usually have a 9-12 week waiting period for the dispute to be resolved
-VCAT residential usually 4 weeks for unpaid rent and landlords can be expected to wait 8 weeks
-Preparing for the case: to gather the relevant evidence and prepare the arguments for the case and to complete the discovery process between the parties