LS UNIT 3 AOS 2 (CIVIL LAW); PART 1

Question 1

Define civil law and identify two purposes of it.

Answer 1

The civil justice system is a set of methods, institutions and processes that are used to resolve civil disputes. The purpose of the civil justice system is to determine whether the alleged defendant is liable and to remedy a person where the defendant is found liable. Another purpose is to enforce legal rights and to take action over legal wrongs.

Question 2

What is a civil dispute?

Answer 2

A civil dispute is a dispute between two parties (individuals or groups), in which one makes a legal claim against the other.

Question 3

What is a remedy and the purpose of it?

Answer 3

A remedy is an order made by courts, which is designed to address a civil wrongdoing/breach. The purpose is that it provides legal solution to plaintiff for the defendants breach of civil law and restore plaintiff (as much as possible) to their original positions before their rights were infringed.

Question 4

Who is the plaintiff?

Answer 4

The plaintiff is the party who commences legal action against the defendant, and who’s rights have been infringed. The plaintiff has the burden of proof, meaning they have the responsibility of establishing the facts of the case on the balance of probabilities.

Question 5

Who is the defendant?

Answer 5

The defendant is the party who is alleged to have infringed the rights of the plaintiff, and thus being sued.

Question 6

What does it mean to ‘sue’?

Answer 6

To take legal action against someone, claiming that they have infringed some legal right of the plaintiff (or did something wrong that negatively affected the plaintiff).

Question 7

Define vicarious liability.

Answer 7

The legal responsibility of a third party for the wrongful acts of another.

Question 8

What is liability?

Answer 8

Legal responsibility for ones acts or omissions.

Question 9

What is the burden of proof?

Answer 9

The burden of proof is the obligation of a party to prove a case. It usually rests with the party who initiates the civil action (the plaintiff in a civil dispute).

Question 10

What is a counterclaim?

Answer 10

This is a seperate claim made by the defendant in response to the plaintiffs claim. (Heard in the same court).

Question 11

What is a representative proceeding?

Answer 11

Representative proceedings are a type of civil action initiated by the plaintiff on behalf of 7 or more people in the supreme court, that involve the same or similar legal matters, or come from the same or similar legal circumstances.

Question 12

Advantages of representative proceedings and how they uphold the P.O.J

Answer 12

• Representative proceedings gives individuals who would not have otherwise been able to pursue a claim, a chance to restore their rights, as all individuals involved, may agree to chip in on the matter, thus upholding the principle of ACCESS.
• In some cases, large corporate law firms may take on a representative proceeding for minimal or no money at all, saving individuals involved, from costs, and stress, which promotes FAIRNESS.
• Representative proceedings are streamlined, ensuring that individuals with the same or similar facts are not taking up the courts, which promotes the principle of ACCESS.

Question 13

Disadvantages of representative proceedings and how they limit the P.O.J

Answer 13

• Individuals involved in the proceeding have lack of control over the case, as well as lack of individuality, thus they may feel unimportant, which can undermine the principle of FAIRNESS.

Question 14

Criteria for representative proceeding.

Answer 14

• 7 or more people have claims against the same person.
• Arising from the same or similar facts.
• Identical legal issue to be resolved.

Question 15

Identify the factors that need to be considered when initiating a civil claim.

Answer 15

• Negotiation options.
• Costs.
• Limitations of actions.
• Scope of liability.
• Enforcement options.

Question 16

What is negotiation?

Answer 16

Negotiation is an informal discussion between parties in attempt to resolve a civil dispute.

Question 17

When may negotiation not be an option?

Answer 17

• When one or both parties are not interested in resolving the matter through negotiation.
• When one party has been harmed by the other party, and so is not interested in resolving the dispute through negotiation, due to fear or distrust towards the other party.

Question 18

Benefits of negotiation

Answer 18

Negotiation can reduce the time, stress, costs associated with initiating a civil action in court. Additionally, the parties have control over the outcome of the case, as opposed to it being decided by a third party, such as the courts.

Question 19

Costs (legal rep & disbursements)

Answer 19

A party involved in the civil dispute may incur several costs associated with the civil dispute, such as fees of legal representation and disbursements. Therefore, the plaintiff will need to consider whether the amount required of initiating the civil dispute exceeds the amount they’re seeking. Additionally, legal representation can also be too prohibitive for people who are wishing to initiate a civil action, for example, a senior counsel charges from $8000-$10,000 a day, which can undermine the principle of ACCESS, as makes the civil justice system less accessible and equitable.

Question 20

What are disbursements?

Answer 20

Disbursements are the out-of-pocket fees (other than legal fees) incurred in a legal case. These include fees such as witnesses fees, court fees, and other third party costs, such as photocopying costs. Court fees can include such as jury fees & mediator fees.

Question 21

What are adverse cost orders?

Answer 21

This is a principle that follows ‘the looser pays’. So if a plaintiff initiates a civil claim in court and is unsuccessful, not only do they have to pay for their own costs, but also some of the defendants costs. Thus, the plaintiff will need to consider whether they have the money to pay for the costs, and the costs to have the dispute resolved.

Question 22

Explain the limitations of actions as a factor to consider when initiating a civil claim.

Answer 22

This is the restriction placed on the time within which a civil action must be commenced. The defendant may raise limitations of actions as a defence if they believe that the plaintiff has not commenced legal proceedings within the relevant time limit.

Question 23

Can limitations of actions be extended in some cases?

Answer 23

Yes, they can be extended if plaintiff suffered disability, defamation, or personal injury.

Question 24

Justify the existence of limitations of actions (why is it relevant)

Answer 24

• The defendant does not have to face an action after a significant time (unfair).
• Evidence is not lost, as people may not remember what happened if a civil action is commenced after a substantial delay.

Question 25

Explain the scope of liability as a factor to consider when initiating a civil claim

Answer 25

Before initiating a civil claim, the plaintiff will need to consider possible defendants and their scope of liability.

The plaintiff may consider the person who directly infringed their rights, or someone such as an employer who infringed the plaintiffs rights through vicarious liability, when acting in an authorised way.

The plaintiff will also need to consider the extent to which the defendant is liable. For example, the defendant may argue that they are responsible for only a small portion of the harm caused, thus may launch a counterclaim to argue plaintiffs liability, raising a defence of contributory negligence.

Question 26

Explain enforcement issues as a factor to consider when initiating a civil claim

Answer 26

The main purpose in a majority of civil claims, is to obtain compensation from the defendant that will restore the plaintiff to the position they were in prior to the infringement occurring.

Therefore the defendant will need to consider whether the defendant is able to pay, and if so, will pay.

E.g., the civil matter may arise from a criminal action, where the defendant was imprisoned, and thus its hard to enforce.

E.g., The defendant may be bankrupt, where they do not have enough money to pay or have enough assets to sell.