Legal studies unit 2 Flashcards
1
Q
what does a civil dispute include
A
-individuals/ groups
-one party claims another has infringed their rights
-party is seeking remedy from courts
2
Q
what is the procedure of a civil dispute
A
-claim issued in court
-pre trial procedures
-hearing or trial
-remedy awarded
-enforcement procedures
3
Q
civil cases involve
A
- plaintiff v defendant
-burden placed on plaintiff
-claims proven on balance of probabilities
-optional jury of 6
4
Q
burden of proof
A
on the balance of probabilities
5
Q
how can the buden of proof be switched
A
-counter claim by defendant
6
Q
exceptions to the burden of proof
A
-counter arguing damadges
-contributory negligence
7
Q
what are dispute resolution bodies
A
ways of resolving disagreements without going to court
8
Q
types of dispute resoultion bodies and what they are
A
-complaints bodies= investigate complaints, offer dispute resolution services
-trubunals= operate like a court but dont have same powers. tend to be much more acessable
-courts= victorian and federal courts can enforce legal consiquences on a much larger scale
9
Q
types of civil disputes
A
-negligence
-tresspass
-defemation
-nuisance laws
-wills and inheritance laws
-contract law
-family law
-employment law
-equal opportunity and discrimination laws
-class action
10
Q
factors to consider before initiating a civil claim
A
-costs
-limitaton of actions
-enforcement issues
11
Q
Why do people persue civil law
A
-compensate for wrong they have suffered
-stop defendant from doing something
-sending a message to defendant about their conduct
12
Q
can negotiations help achieve an outcome for civil diputes
A
-can help without initiating formal legal claim
-involves dicsussions between parties
13
Q
negotiations are succesfull in
A
-costs, time and stress involved in solving disputes
-parties retain control over outcome
-parties are more likely to accept outcome as it is reached themselves
14
Q
costs as a factor to consider
A
-legal advice and representation
-disbursements: court fees=filling fees, hearing fees, jury fees.
-meditation fees= if court orders party to attend mediation
-expert witnesses fees= parties requiring an expert to provide opinin
-adverse cost orders=sussesfull parties will have some or all legal costs paid by other side
15
Q
what might VLA provide in a civil dispute
A
-free legal advice and representation
-prioritises individuals that are defendants in criminal disputes
-does not assist those involved in corporations, employment and wills
16
Q
limitations is actions (as a impact of civil justice)
A
time limit within which a civil action must be started
-if not initiated within time the defence can be that the plaintiff is too late
17
Q
where is the limitation of actions displayed
A
limitations of act 1958 (vic)
18
Q
types of limits of actions for certain laws (defemation, tort law, unpaid rent)
A
defemation= 1 yr
tort law= 3yr
unpaid rent= 6yr
19
Q
enforcement issues (as a factor impacting civil justice)
A
-if plaintiff succeeds in a civil action, an order of some type will be made against the defentanct
-defendants need to see if they can pay the amount required by plaintiff
-in doing this plaintiffs consider factors such as the level of assets offered by the defendant, wheather the defendant is in jail or overseas and sometimes even who the defendant actully is
-courts can assist plaintiff enforce order- court sherfiffs can seize assets to pay unpaid debts purtuant to court orders
20
Q
main features of fairness in the justice system
A
-impartial proces: no bias held by key personell
-open process: transperancy with procedures (be held accountable)
-participation: victims, prosecution and accused all participate
21
Q
how is equality upheld in civil court
A
-same treatment
-diffrent treatment
22
Q
Acess can uphold justice in civil law through
A
-engagement= all can engage
-informed bias
23
Q
what does evaluate mean as a task word
A
-strengths
-weakenesses
-conclusion
24
Q
why are there dispute resolution methods
A
-possible to obtain an outcome in a civil dispute without involving a court or tribunal
-can come to an agreement and settle a dispute without going to court
25
meditation definition
-cooperative , non judicial method for resolving disputes
-uses a independant mediatior= both parties sit down to discuss the issues they disagree on and try to reach a agreement through negotiation
26
who are mediators
experts in conflict resolution and a third party who manages discussion
-done without prejudice
-are not originally legally binding (process)
27
how to make mediation legally binding
-if it is succesfull can use terms of setlemnet
-legally binding contract that binds negotiation from mediation
28
when is mediation available
-parties can organise it themselves
-courts can order meditation to occur prior to a trial or hearing
-tribunals commonly refer to mediation
29
when mediation is appropriate
-parties genuniely want to resolve the dispute
-parties are able to understand and participate in process
-continuing relationship needs to be maintained
-parties prefer privacy
-parties concerned with saving money and time
30
when mediation is inappropriate
-party is vunreable (history of violence, threats of mental illness (e.g family violence))
- parties willing to engage in discussion
-parties are highly emotional and strong animosity
-previosly failed mediation
-power imbalance
31
conciliaton
-process of dispute resolution in which a third party listens to both parties and makes suggestions
-conciliatior is a specialist in the field
-has a without prejudice bias
32
when conciliation is availible
-dispute resoultion bodies may refer parties to conciliation (human rights commisioner, consumer affairs)
-VCAT can send parties to a compulsory conference where conciliation plays a role
-specialised courts more likely to use this
33
when is conciliation appropriate
-parties want to resolve a dispute
-parties understand and can participate in process
-continuing relationship needs to be maintained
-parties require suggestions and solutions of an expert
34
when is conciliate innappropriate
-one party is vunerable
-parties unwilling to discuss issues
-highly emotional
-significant animosity
35
arbitration
more formal process but still less formal than attending court
36
who is involved in arbitration
independant third party manages discussion and seeks a agreement
-makes binding decision (arbital award= use of mediation is legally binding)
37
when is arbitration availible
-expensive, usually reserved for commerical and internationl matters
-parties previosuly agreed that all matters would be resolved by arbitration
-magistrates court uses arbitration for civil claims for less than 10, 000
38
victoriam court heirachy
-arranged and ranked in order of cases that can be delt with
-serious and complex cases will be delt with less serious and complex in a speedy manner
39
civil juristictions
-magistrates cout= claims up to 100,000
-country court=unlimited in all civil claims
-supreme court- unlimited in all civil claims
-supreme court- no original juristiction
40
administrative conenience
-classifying courts in terms of seriousness and complexity it makes for a more effective system
-structured organisation of courts in a way that effecienty manages legal proceedings and ensures smooth functioning of judicial system
-if a case is herd at a higher court it would take longer to hear as the courts would have to sort processes and resources
41
appeals
when dissatisfied with a decision in a civil trial, they can pursue the matter with a higher court and have it renewed
42
grounds for appeal include
-point of law
-question of fact
-remedy awarded
-most civil disputes require leave to appeal- proof there is prospect of sucess (prospect of success)
43
reasons for having specialisation
ensuring fairness, consistency and clarity in legal parties ensures wrongdoing by courts is fixed
44
strengths and weaknesses
45
of the court heirachy
strengths:
-effective use of resources
-facillitate the process of appeals
weakenesses:
-diffrent court sytem is confusing, possible overlapping juristictions
-no automatic right to appeal
46
key personell involved in a civil dispute
-judge
-jury
-parties
-legal practitioners
47
three key personell involved
-magistrates
-parties
-legal practitioners
48
role of judge or magistrate
-act impartially
-case management (beofre proceedings)
-case management (during proceedings)
-determine liability and remedy
-decide on costs
49
act impartially role of the judge
-not being favoritised/ discriminated against by the magistrate/ judge
-independant politically
50
act impartially role of magistrate
-not being favoritised/ discriminated against by the magistrate/ judge
-independant politically
51
case management (before proceedings)
-ensure case is prepared before trial commences
-ensures timely, cost effective and fair resoultion
-able to give directions
52
common pre-trial proceddures
-discovery and exchange of documents: parties swap documents relevant to the dispute, the judge/ magistrate can limit or establish ascope of discovery
53
judge and magistrates job of determining liability and remedy
- judge and magistrate must determine if plaintiff has met the standard of proof (balance of probabilities)
-judge determines if a remedy should be awarded
-court judgement (reason for the decision) must be decided in a timely and accessable fashion
54
magistrate and judges role of deciding on costs
-in conclusion judge/ magistrate will determine which party should bear the costs of the proceedings
-a successfull party will seek compensation for their costs
55
similarities to criminal law
-judge/ magistrate is expected to act impartially
-asses self represented parties
-criminal and civil judges
tell the jury what to do
56
diffrences to criminal law
-sanctions differ to remedy
-in civil trials they can offer for people to acess mediation, conciliation etc.
57
key personal involved in supreme/ country court
-judge
-jury
-parties
-legal practitioners
58
key personell involved in a hearing at the magistrates court
-magistrate
-parties
-legal practitioners
59
role of the judge or magistrate
-act impartially
-case management (before proceedings)
-case management (during proceedings)
-determine liability and remedy
-decide on costs
60
responsibilities of the jury
-six individual jurors randomly selected from the electoral roll, decide question of fact and reason a decision
61
responsibilities of a jury involve
-being objective
-listening to evidence, judges, directions and practitioners submissions
-decide liability
-sometimes determinign damadges
62
strengths of a jury
-random selection ensures no connection to parties involved and limit bias
-allows community to participate in justice system
-collective decion making reduces the likelihood of bias
-decision most likely reflects values of the community
63
weaknesses of a jury
-possibly unconsious bias
-complexity of case makes it hard for jurors to grasp
-contribute to further delays
-many people are ineligable for jury service and is not a full representation of the community
64
responsibilities of parties
-can either be the plaintiff/ defendant
-plaintiff holds burden of proof
-if defendant files counterclaim, defendant must now prove this on the standard of proof
65
each parties role involves
-make decisions about conduct of the case
-disclose all relevant information
-discover relevant documents and exchange evidence (including lay evidence and expert evidence)
-participate in trial
66
civil law similarities to criminal law
-both prosecution and parties have ongoing disclosure obligations
-parties in both trials must not mislead the court and must co operate with eachother
67
civil law diffrences to criminal law
-ongoing disovery obligation ( civil law)
-can have civil jury but is expensive and not normal, jurys are mostly used in criminal trials
-party control is not as strong in criminal law compared to civil law
68
strengths of parties
-obligation of parties to disclose all relevant information
-both parties have oppurtunity to present their case
-party control empowers parties
69
weaknesses of parties
-not all parties are familiar with their disclosure obligations
-processes are complicated for self represented parties
-party control can contribute to stress and delays
70
what is a legal practitioner
qualified individual with legal training who can give advice and appear in court
solicitor= preprare legal documentation
barrister= represent party at a trial
71
responsibilities of legal practitioners include
-comply with their duty to the court
-make opening and closing addresses
-present case to judge/ jury
72
why is it hard to obtain legal aid in civil cases
-VLA prioritieses criminal law and accused individuals
73
strengths of legal representatives
-utilises expert knowlege of the legal system
-bring more objectivity to case
-reduce delays (when compared to self represnted parties)
74
weakenesses of legal practitioners
-not all lawyers are made equal, some are more experienced and skilled
-laywers can be expensive
-in civil circumstances, cost of lawyers can be doubled through adverse costs
75
how many people in a class action
7 people
76
requirements to be a class action
-7 people
-claims are similar in circumstance
-same issues need to be decided
-one person is names as the lead plaintiff
77
class actions are benificial how
-group memebers can share the cost of the action- gives more people acess to the system
-saves time and resources within legal system
-sometimes third party litigation funders can pay the upfront costs (in return for a percentage of any damadges awarded)
78
class actions are always herd by
-the supreme court of victoria
-only herd by federal court/ supreme court
79
costs in class actions
-lead plantiff is considered to bear costs of proceedings and any adverse cost orders
-law firms commonly use the "no win, no fee"
-can use a litigation funder- seek a return on their investment by collecting damadges awarded
-group costs order can occur: allows class actions, plaintiff law firm get persmission from the courts to change an order of the damadges/ settlement
80
types of representative proceedings
-shareholder class action
-product liability class action
-natural disaster class action
81
assesing appropriateness for a class actions
-enough perople with similar circumstance
-is someone willing to fund the claim
-is the claim substantial enough to warrant a proceeding
-do all group members have similar suffering is there anyone who should go alone
82
strengths of a class action
-group memebrs share responsibilities and costs
-efficeincy in dealing with claims
-allow people to pursue claims they wouldnt normally
-alternative means of funding action
-litigation funders, no win no fee, group cost orders
-reduces the costs for a defentant
83
weakenesses of class actiosn
-burden to the lead plaintiff
84
things to take into account when lookin at dispute resolution bodies that arent courts
-is it better resolved by the parties themsleves
-does it need the bidning powers of court
-will parties take conciliation seriously
-does it need the formality of court
-is it too complex for CAV
-is resolution urgent
85
what is consumer affairs victoria (CAV)
-complaints bodies established by the government as a way to resolve geivences and disputes
-people utilise cav when they feel that their rights as a consumer have been breached
-CAV provides oppurtunities for citizens to settle consumer disputes efficiently and constructively without any costs
-CAV only accept complaints from consumers and tenants
86
CAV and dispute resolutions
-CAV uses conciliation to resolve disputes, not leaglly binding. specialist 3rd party
-if parties come to a agrement, can sign a terms of settlemt
87
Appropriateness of CAV
-is it within CAV's juristiction
-is the dispute likely to be resolved
-are there better, alternative ways to resolve the dispute
-has the issue been delt with by the courts or VCAT
-has the consumer tried to resolve the dispute
-is the consumer vulnerable or disadvantaged
88
likelihood of settlement
-abscense of delay in bringing the matter to CAV
-CAV's database show that the other party has no record of resfusing concilliation
-lack of innapropriate behaviour
-dispute is not overly subkective of personal
-trader has not already made a reasonable offer which was rejected
89
strengths of CAV
strengths:
-CAV is free
-conciliation is informal
-CAV is timely and avoids the length of a trial
90
weaknesses of CAV
-juristiction is limited
-CAV cannot force people into conciliation
-not all cases accepted by CAV
91
Courts as dispute resolution bodies
-courts are the main dispute resolution body in victoria, however they are not necassarily the best option for resolving a dispute
-when determining if courts are an approprate method of dispute resolution, consider the following:
-courts/ juristiction
-other/ better ways of solving the dispute
92
weaknesses of courts
-high cost
-time consuming
-public exposure
-formality
-no ability to compromise, judges make decision
93
strengths of the courts
-experts in areas
-binding decisions
-procedural fairness
-pre-trail procedures
-formality
-avenues for appeal
94
What are remedies
recognition of the plaintiffs suffering, awarded in a penalty to the defendant sometimes in monatary values or other ways
95
who imposes remedies
-VCAT
-Courts
96
What are the main types of remedies awarded
-Damages
-Injunctions (mandatory and restrictive)
97
What is the Aim of damages
-restore the plaintiff to the position they were in before the harm occurred
98
what are the 4 categories of Compensatory Damages
Contemptous
-in where the Plaintiff is technically correct but morally incorrect, usually an unessecary claim
Specific
-used to display a specific amount used by the sum of loss (Medical bills, loss of income)
General:
-educated guess on monatary value of plaintiffs suffering, not exact
Aggravated:
used to componsated for feelings of plaintiff (e.g embarassment)
99
What does compensatory damadges mean
to componsate for the loss or harm suffered by plaintiff
100
What is an Injunction
a direct order compelling a party to do something or preventing a party from doing something
101
Purpose of injunctions
rectify a situation caused by the person who was found to be wrong
restore plaintiff to the position they were in before defendant infringed their rights
prevents further harm to the plaintiff
102
Types of injunctions
-Restrictive/prohibative
-Mandatory
103
What diffrent time categories can injuctions be
Interlocutary
-(temporary) prevents a party from doing something before a final hearing
Final
-(perminant) issued at end of a legal case
104
Example of an Injunction
plaintiff seeks a resticitve injunction for the defendant to take back a defamatory claim made by defendant
105
106
Cost factors as a factor effecting the civil system
-each party is responsible for their own costs
-since Jan 2017 it costs $835 to file a written order at the county court
107
What delays impact cost factors
-Involvment of other parties
-deliberation
-experts needed
-evidence gathered
-alternative dispute resoulution methods used
108
What are the main costs of civil justice system
-legal costs
-increased use of ADR's
109
Examples of cost factors
-money spent on representation
-estimated that @ supreme court the plaintiff can spend over 60 000
-use of doctors/ expert witnesses
-limited acess to VLA
-court fees
-filling fees
110
ways cost factors can be reduced
-acess to ADRS improve the delays and ability to resolve disputes at least cost
-costs saved by avoiding taking case to court are costs saved by the whole syustem
111
Why can courts be needed to resolve a dispute
-ADR's may not be appropriate and the case may need the formality of court
112
Cost factors and POJ
Fairness:
-ADRS rely on imparital and skilled 3rd parties to monitor processes
-if people cant afford legal costs they may be forced to settle withdraw or self represent
Equality:
-third party ADR's act impartially and without bias
-self represented individuals are not on an equal playing field against an opposing legal practitioner
-Bias can still exist with ADR third parties
Acess:
-The costs saved by ADR make justice more accessable to those who otherwise couldnt afford it
-Parties are free to hire ADRs
-people are dettered from making a claim because of legal costs which make the system inacessable
113
What are time factors
Factors within the civil justice system that effect justice due to the length of time
114
How can time affect the ability of the civil justice sytem to achieve justice
-court/ Vcat delays
-use of case management powers
115
Court and VCAT delays contribute to justice being slow these delays have nemerous cuases
-bakclog of cases
-pre trial procedures
-evidence gathering and preperation
116
Why are people mostly dettered from seeking justice in terms of time factors
-people are dettered from pursuing a legal claim because a resolution could take too long
117
How to fix time factors
-use of case management powers can have the ability to resolve disputes in a more timely manner
-giving the courts greater control can lead to greater initiative from the parties leading to more time considerate preperations
118
Example of giving courts greater power to resolve time factors
-ordered mefiation by a certain date
-limiting scope of discovery to lessen the time spent
-order of no pleadings
-restricting the number of witnesses
-a pro active judge can reduce delays by using their case management powers
119
Time and the principles of justice
Fairness:
is achieved:
-case management powers can limit delays which would impact procedural fairness
is not achieved:
-delays impact the reliability of evidence and delays deny a just outcome as it adds to the stress of a procedure
equality
can achieve:
-courts can create flexibility without favoring a certain party or discriminating
-orders and directions can apply equally to both parties
cannot achieve:
-delays unfairly impat vulnerable parties (e.g someone with a low socioeceonomic status)
Acesss
can achieve:
case management makes the courts more accessable ad it relaxes some formalities and procedure
cannot achieve:
-delays make people reluctant to persue a claim
120
diffrences between a judge and magistrate in civil law
Judge:
-larger dispuses
-county or supreme
-the decision maker is the judge or jury
Magistrate:
-smaller disputes
-magistrates court
-no option for a jury
-magistrate is final decider
121
what amount of money is deemed for a magistrate
100,000
122
case management
prior to a trial there is an assessment of what will be a good and equal outcome
123
discovery
-copies of each other's documents
-defendant is able to know the plaintiffs arguments
124
third party litigation
-a third party pays for a case
-however their legal costs are covered but they ask for money back
125
case management
-limiting number of cross referencing and witnesses
-limiting time
-number of amount of evidence documents given
126
role of magistrate/ judge in sentancing
determine:
-liability
-remedy
127
weaknesses of judges/ magistrates
while they can assist with self represented parties, they cannot overly because this may show bias
128
strengths of judges/ magistrates
act as an "umpire" and manage the court room
129
exemplary damdges
used to stop the individual from reoffending, stops them from:
-doing this again
-punishing to detter from malicious behaviour
130
strengths of damdges
-can restore a party back to their original state via specific damages
-can effectively detter a wrongdoer
131
weaknesses of damadges
-they cant adequately restore plaintiff to original state, cannot be restored with money (e.g rebel wilson, defeamation, money cannot maintain a reputation)
-if defendant does not have the funds to pay for the plaintiff, the plaintiff must pose an order on them, increasing stress
132
example of a mandatory injunction
-school failed to stop a child being bullied, must publicly announce this and apologise
-store racially profiled a customer and had to apologise publicly
133
weaknesses of injunctions
-sometimes injunctions fail to restore the plaintiff and cannot be properly enforced
134
