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legal studies > sac 2A > Flashcards

sac 2A Flashcards

1
Q

what is civil law

A

an area of law that defines the rights and responsibilities of individuals, groups and organisations in society and regulates private disputes

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2
Q

what are representative proceedings

A

a legal proceeding in which a group of people who have a claim based on similar or related facts bring that claim in the name of one person. class action is most popular and is when it is brought in the name of one person

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3
Q

what is the standard of proof

A

the degree or extent to which a case must be proved in court. the plaintiff must prove the case (or the defendant must prove the counter claim) on the ‘balance of probabilities’

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4
Q

what is the burden of proof

A

the obligation of a party to prove a case. the burden of proof usually rests with the party who initiates the action (plaintiff)

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5
Q

why does a party initiate a civil claim

A
  • compensation in sought for the wrong they’ve suffered
  • to stop the defendant from engaging in certain conduct
  • to force the defendant to act in a certain way
  • to send a message about the protection of one’s rights
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6
Q

what is negotiation

A

informal discussions between two or more parties in dispute, aiming to come to an agreement about how to resolve the dispute

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7
Q

advantages of representative proceedings

A
  • group members can share the cost
  • efficient way for courts to deal with a number of claims
  • people can pursue legal action that they may not have been able to afford otherwise
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8
Q

1.negotiation options

A
  • parties interacting directly with each other to try and resolve a dispute, with or without legal representation
  • arranging with each other to get an independent third party (eg mediator) to help them resolve the dispute
  • arranging a negotiation or other dispute resolution service such as dispute settlement centre of Victoria or FMC mediation and counselling Victoria
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9
Q

what is a mediator

A

an indépendant third party who does not interfere or persuade but helps the parties in a mediation as they try reach a settlement of the matter

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10
Q

when is negotiation not an option

A
  • one of the bodies doesn’t want to resolve dispute
  • negotiation attempts have failed in the past
  • on elf the parties have been warned or threaten by the other
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11
Q

benefits of negotiating

A
  • saves cost and time by not commencing a formal civil action
  • parties have control over the outcome
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12
Q
  1. types of costs to consider
A
  • fees for legal advice/representation
  • disbursements
  • adverse costs
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13
Q

fees for legal aid/representation

A

these depend on the nature and complexity of the case, the court it is heard in and the lawyer. this may be barrier to those people when pursuing a civil dispute

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14
Q

disbursements

A

out of pocket fees incurred as part of a legal case. eg. court fees, mediation fees, expert witness fees

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15
Q

Adverse costs

A

generally the successful party will have some or all of their legal costs paid by the losing party

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16
Q

The availability of legal aid

A

before initiating an action, the plaintiff needs to consider a range of cost related factors including whether they can access legal aid as VLA is prioritised to criminal disputes

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17
Q
  1. Limitation of actions
A

the time limit within which a civil action must be started. if the plaintiff makes a claim beyond the time frame, the defendant can raise the defence that the plaintiff is too late

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18
Q

benefits of limitation of actions

A
  • promote social cohesion by resolving disputes quickly

- people can move on and evidence isn’t lost or forgotten

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19
Q

Time of cases (limitation of actions)

A

Defamation - 1 year after incident
negligence - 3 years after incident
unpaid rent, breached contract, non personal injury - 6 years
physical/sexual abuse as child - no limit

20
Q
  1. scope of liability
A

a civil wrong can include a party other than the person who directly infringed the plaintiff. this could be :

  • employer
  • insurer
  • others involved in wrongdoing
21
Q

Employer (scope of liability)

A

the employer can become liable if it can be established that the employee was acting in the course of employment when the events took place. this is the principle of vicarious liability

22
Q

whats vicarious liability

A

when somebody becomes responsible for the actions of another person

23
Q

persons involved in wrongdoing

A

this is known as accessorial liability. if a person, aided, abetted, organised, induced or conspired with others to somehow be involved in the wrongdoing. they are liable

24
Q

the extent of liability

A

the defendant can argue that they are not completely liable for the plaintiffs loss. the defendant can claim contributory negligence, meaning the plaintiff partly contributed to their loss

25
Q
  1. enforcement issues
A

if a plaintiff succeeds in a civil action and an order is made against the defendant. the plaintiff must consider whether the defendant is able to pay the remedy. reasons why they are unable to could be jail, overseas, bankrupt.

26
Q

what can the plaintiff do to bet the remedy

A
  • warrant of seizure and sale : defendants assets are sold and money owed to the plaintiff is paid
  • attachment of earnings: court orders defendants employers to pay plaintiff from defendants wages
27
Q

Consumer affairs Victoria

A

CAV is a government body that provides information and advice to consumers, traders, tenants and landlords. has broad jurisdiction in relation to consumer, trader and tenancy disputes

28
Q

purpose of CAV

A
  • provides information and guidance to educate people on consumer laws
  • recommends changes to victorian government and reviews consumer legislation
  • conciliates disputes
29
Q

methods used by CAV

A

conciliation - an indépendant third party helps the parties come to an agreement. this has to be voluntary by parties. the conciliation will be conducted by a CAV officer and generally over the phone. CAV can’t make a binding determination in a dispute

30
Q

Appropriateness of CAV

A
  • the dispute is within their jurisdiction
  • there has been an attempt to solve dispute
  • it isn’t pending in VCAT or court
31
Q

strengths of CAV

A
  • conciliation is free
  • informal processes (equality, access)
  • fairness in procedures as both sides have the opportunity
  • parties reach a resolution themselves
32
Q

weakness of CAV

A
  • limited role/ power as cannot compel
  • no power to enforce decision
  • doesn’t accept all cases
33
Q

What is VCAT

A

dispute resolution body designed to deal within a limited area of law, it is less formal than a court. it is divided into 4 divisions; administrative, civil, human rights and residential tenancies. each division specialises in a particular area of law so it heard specific types of cases

34
Q

purpose of VCAT

A

provide a low cost, accessible, efficient and independent tribunal delivering high quality dispute resolution. this is achieved by using a range of dispute resolution processes such as mediation and compulsory conferences

35
Q

appropriateness of VCAT

A

vcat has exclusive jurisdiction to hear some types of cases eg tenant and landlord cases.

  • nature of the fees
  • if both parties are wanting VCAT input
36
Q

disputes VCAT can’t hear

A
  • representative proceddings
  • tenant and tenant cases
  • disputes between drivers in car accidents
37
Q

strengths of VCAT

A
  • less costly than going to court
  • less intimidating
  • faster
  • less formal manner
38
Q

weakness of VCAT

A
  • only suitable for civil disputes
  • inconsistent as they aren’t bound by precedents
  • limited right to appeal to decisions made by VCAT
  • cost of VCAT hearings have increased over years
39
Q

strengths of mediation

A
  • less expensive
  • generally faster than going to trial
  • win win solution
  • informal atmosphere
40
Q

weakness of mediation

A
  • binding decision
  • may not produce a solution
  • imbalance of power
  • informal atmosphere may favour more confident party
41
Q

strengths of conciliation

A
  • parties have their say
  • conciliator is an expert at what they do
  • inexpensive and informal
42
Q

weakness of conciliation

A
  • may prolong the case
  • relies on goodwill of parties
  • decisions may not be binding
43
Q

purpose of pre trial proceedings: Pleadings

A

documents setting out claim and defences of parties are filed and exchanged. this ensures procedural fairness by ensuring parties understand the claims and defences of case, gives court a written record which helps with understanding. each party is required to state the facts of their claim )plaintiff) / defence (defendant)

44
Q

pre trial proceedings: discovery of Documents

A

parties are required to provide relevant documentation to the courts and the other party at the earliest reasonable time. this could include medical records, invoices etc. purpose= ensures relevant documents are disclosed and parties are informed. just outcome as parties can determine strength of the party’s case and their likelihood of success

45
Q

pre trial: exchange of evidence

A

allows parties to determine strength of the case and damages ought as it informs them of all relevant evidence. gives them opportunity to rebut opponents evidence. 2 types: expert and lay evidence. lay evidence= given by ‘regular’ person, could be witness outline witness statement or orally. expert evidence= independent expert usually presented as a written report eg financial medical or property evidence

46
Q

court hierarchy: appeals

A

a party who is dissatisfied with a decision is able to apply to the courts for an appeal. Court of appeal and high court can determine special leave application on papers without a hearing, reducing time and cost. grounds= point of law, questions of facts or remedy awarded

47
Q

court hierarchy: administrative convenience

A

courts are ranked according to complexity and severity. magistrates is less serious (up to $100 000 with no appellate jurisdiction so it cut hear cases on appeal) these are efficient as theres more courts, and county/supreme are more serious, longer cases heard by a judge who have expertise.

legal studies (8 decks)

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