Legal Studies U3 AOS2 (Civil Law)

Question 1

Define Burden of Proof in a Civil Trial

Answer 1

Within civil trials the Burden of Proof is what is placed upon the plantiff to prove the claims made.

Question 2

Define Standard of Proof in a Civil Trial

Answer 2

The standard of proof in a civil trial is the level of proof needed to be reached beyond the balance of probabilities. (more likely that not that defendant is responsible for harm)

Question 3

What is a representative proceeding?

Answer 3

A representative proceeding (or also known as a class action) is where at least several plaintiffs join together to launch a civil action, where the same breach has occurred to each of them.

Question 4

What is Pleadings & its purpose?

Answer 4

Pleadings - Pre-trial procedure whereby the plaintiff explains claims w/ defendant and clarify the issue of dispute, remedy being sought.

*Purposes; keep both parties informed about the case, provide opportunity for negotiation

Question 5

What is Discovery & its purpose?

Answer 5

Discovery - Pre-trial procedure whereby the plaintiff and defendant exchange copies of their evidence.

*Purposes; to ensure they actually have a case, help parties prepare their case/defence & allows/encourages discussion/negotiation b/w parties.

Question 6

What is Early Neutral Evaluation and its purpose?

Answer 6

One of the four pre trial procedures

Helps parties decide if they have a case & if so, encourage negotiation

Question 7

What is Directions Hearings?

Answer 7

One of the four pre trial procedures
(Essentially judicial case management)
*Conference with judge as to conduct & running of the case.
- E.g expert witnesses, limits on evidence, order mediation.
- - It encourages out of court settlement, streamline procedures and resource allocation

Question 8

What are the 3 reasons for court hierarchy in the Victorian civil justice systems?

Answer 8

Administrative Convenience

Specialisation

Appeals

Question 9

What are the five factors in order taken into consideration before initiating a claim?

Answer 9

1) Negotiation Options
2) Costs
3) Limitation of Actions
4) Scope of Liability
5) Enforcement Issues

Question 10

What is Negotiation Options?

Answer 10

Letter of demand; tells the defendant that there is going to be a case against them, what the claims are, desired resolutions and intention.

• Mediation > is mediation an appropriate avenue?
• Early Neutral Evaluation > provides evidence and informed on whether or not they have a case

Question 11

What is Costs?

Answer 11

Legal fees; representations (if requested)

Filing fees / hearing fees; documents, days of hearing

Question 12

What is LoA?

Answer 12

Time you have to initiate a claim from breach or injury

6 years for contract & tort, 3 years for personal injury

Question 13

What is Scope of Liability?

Answer 13

• Is the defence actually liable (to what extent) for the wrong/harm?
• Was there a duty of care (breach)
• Causation; was it the breach that caused the harm
• Common sense

Question 14

What are Enforcement Issues

Answer 14

Is the defendant able to play? AND if not…

Payment plan, seize assets…

Question 15

Name one recent reform in civil law, its purpose and how it effects the Principles of Justice

Answer 15

Reduction in peremptory challenges - the amount of challenges a party can have on the jury panel deducted from 3 to 2

• *Fairness - helps reduce potential bias, greater representation of the community
• *Equality - addresses issue of juries being more reflective of one party over the other
• *Allows people the opportunity to engage in the system

Question 16

Name one recommended reform in civil law, its purpose and how it effects the Principles of Justice

Answer 16

VCAT Online dispute resolution - a platform where parties can initiate disputes, upload evidence and attend meditation all online rather than having to physically attend VCAT

• *Fairness - removal of hearing processes means case may be solved purely on merits; evidence, etc….
• *Equality - addresses potential barriers to access
• *Access - people disadvantaged by where they live, e.g rural. online means avoiding travel, much more cost effective than other methods.

Question 17

What is CAV?

Answer 17

Consumer Affairs of Victoria**
Educates consumers about their rights (consumer protection) and businesses on their responsibilities.
THEY ONLY HELP consumers and tenants not businesses or landlord.
> Initiates breaches on the consumers behalf…
FOUR ELIGIBILITIES -
*Reasonable chance of resolution
*Whether the plaintiff has tried to resolve themselves first
*Claim is w/in jurisdiction
*IF court/VCAT has not already ruled on the matter

Question 18

What are CAV’s strength and weaknesses?

Answer 18

+ Specialised knowledge & resources for the type of claim
+ “Levels the playing field” > addresses the potential power imbalance of the r/ship
- Potentially unfair on landlord/business as they have no similar body

Question 19

What is VCAT?

Answer 19

Victorian Civil and Administrative Tribunal.
A tribunal focused on entirely civil matters. Has the power to adjudicate civil disputes and make binding decisions.
More streamlined processes, has alternate resolution options; mediation, online processes

*Parties represent themselves in cases under $10,000 and hearing do not follow strict rules of evidence and procedures

Question 20

What are VCATS strengths and weaknesses?

Answer 20

+ Low cost, due to no representation less days required, lower filing fees
+ Less formal > less intimidating (access)
+ May achieve justice for smaller cases not appropriate for court
- Self representation may disadvantage those w/ less understanding / less articulate and argue ineffectively

Question 21

What is the aim of Judicial Powers of Case Management?

Answer 21

Earlier resolution ( avoid going to trial )

Saves time (everyone )
Saves money ( parties )
Saves resources ( courts )

Question 22

What are the Judicial Powers of Case Management?

Answer 22

• Order Mediation
• Encourages parties to resolve their dispute outside of court
• Court ordered mediation is binding & must be attended by parties or else forfeit their case / lack of engagement will be unfavourable @ trial
• Give directions (direction hearings)
• Limit/expand amount & type of evidence
• Clarifies legal issues
• Controls questioning of witnesses e.g who, what, when, where and why

Question 23

Why would the Judge order mediation / give directions?

Answer 23

Mediation - viewed the case as having a reasonable chance of resolution & depending on the r/ship between parties, stage of case and type of case

Give directions - removes/limits unnecessary processes, saving time and money

Question 24

Define damages

Answer 24

A monetary sum paid directly to plaintiff

Question 25

Define the two main (compensatory) damages?

Answer 25

Specific damages - calculable sum of money able to be paid directly back to plaintiff, e.g can look at receipts & get values

General damages - compensation to equal value of harm that cannot be restored. e.g unable to restore health so pay $

Question 26

Define the two sub damages?

Answer 26

Aggravated damages - for particularly serious claims

Nominal - arbitrary (usually very low) sums of money awarded when plaintiff more interested in indication / moral

Question 27

What factors make mediation or conciliation inappropriate?

Answer 27

That it’s not legally binding
May not always produce a result.
Power of imbalance may occur (mediation)

Question 28

What factors make arbitration inappropiate?

Answer 28

Win/lose scenario
Decision is final
More expensive than mediation or conciliation.

Question 29

When may it be more appropriate to choose CAV over VCAT?

Answer 29

CAV is going to be the best choice when you’ve got a consumer or tenant issue, particularly as the power imbalance is addressed by CAV initiating the claim on your behalf.

Question 30

When may you choose VCAT?

Answer 30

• For civil dispute claims under $10,000 as it helps provide justice for those smaller cases. (as it’s faster and cuts expenses significantly)
• Procedures, a lot less formal than court
• cheaper and quicker because VCAT is solely dedicated to civil cases and separated into lists to make cases more streamlined

Question 31

When may you choose court?

Answer 31

• Bigger payout
• Moral victory
• When parties aren’t willing to negotiate through different dispute resolutions
• If you want a jury