The Victorian civil justice system

Question 1

burden of proof

Answer 1

• In a civil dispute, this is the plaintiff. When a plaintiff sues a defendant, it is the plaintiff who has to show that the defendant was in the wrong. This follows the principle that the party who brings the case has to satisfy the court (or tribunal) that their claim is supported by the facts they can prove.

Question 2

standard of proof

Answer 2

• The standard of proof refers to the strength of evidence needed to prove the case.
• In a civil dispute, the plaintiff must prove the case (or the defendant must prove the counterclaim or a certain defence) on the balance of probabilities.

Question 3

representative proceedings

Answer 3

- If a group of people all have claims against the same party, they may be able to join together to commence a civil action known as a class action (representative proceeding). 
A class action is the main type of representative proceeding, which is brought in the name of one person on behalf of someone else. e.g. Ruby Princess

Question 4

resolving a civil dispute (factors)

Answer 4

1. Negotiation
2. Costs
3. Limitation of actions
4. The scope of liability
5. Enforcement issues

Question 5

negotiation

Answer 5

• this is when the parties may be able to agree on what the issues are and possibly lead to a resolution.
• Can be just be between the parties, or assisted (with lawyers or ADR professionals) e.g. mediation.
• Might avoid court (but often continues whilst a court case is ongoing)
• Usually means less cost than court
• Allows control and input into outcome

Question 6

costs

Answer 6

• Being involved in a civil dispute can result in significant costs. These include:
  
  • Fees for legal representation
  • Court costs
  • Disbursements
• Adverse costs orders

Question 7

limitation of actions

Answer 7

• A limitation of actions refers to the time period in which a claim must be brought to court.
• Memories fade, evidence is poorer after long time
  Disputes should be resolved quickly.

Question 8

scope of liability

Answer 8

Before initiating a claim, the plaintiff needs to determine

1. Who are the possible defendants? (who is liable?) 2. To what extent are they liable?

Question 9

enforcement issues

Answer 9

• Even if you are successful in obtaining a remedy, is the defendant able to comply?
  
  • If they can pay, but don’t, you have to go back to court AGAIN to get an additional order such as a warrant of seizure, attachment of debts or attachment of earnings.

Question 10

mediation

Answer 10

What it is:
- Mediation is a cooperative method of resolving disputes that is widely used by courts, tribunals and other dispute resolution bodies.
Features:
- It is a tightly structured, joint problem-solving process in which the parties in conflict sit down and discuss the issues involved, develop options, consider alternatives and try to reach an agreement through negotiation.
- They do this with the help of a mediator.
- Informal
- Preserves the existing relationship