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Legal 3/4 > The Victorian Civil Justice System SAC 2A > Flashcards

The Victorian Civil Justice System SAC 2A Flashcards

1
Q

fairness

A

consistent processes and proceudres of the legal system applies to both sides.
impartial and independence nature of an judicator
timely resolution of disputes

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2
Q

equality

A

all individual respective of gender, culture, disability are treated alike
judical proceedings are governed by a set of strict rules and proc

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3
Q

access

A

being able to utilize the legal system in an effective manner
self funded meaning state X fund, X court resources or juries X provided

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4
Q

purposes of civil law

A

to protect the rights of individuals and to resotre the injured party to orig positon

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5
Q

remedy

A

award given by the court that can be enforced in order to restore the plaintiff to their originial position

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6
Q

civil law legisilation

A

the civil procedure act 2010 vic
the charter of rights and responsibilities act 2006 vic

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7
Q

plantiff

A

indiv/s that believe that their rights have been infringed and as a result suffered damage

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8
Q

defendant

A

indiv/d that plantiff has alleged to have infinged rights

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9
Q

standard of proof civil

A

on balance of probbailities

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10
Q

liable

A

courts find def responsible for causing the infringment b/c act or omisison

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11
Q

vicarious liability

A

legal responsibility of a third party for the wrongful acts of an other

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12
Q

rep proceedings

A

class actions
intiatied by a lead plantiff arise out of similar or related legal intrests
must be 7 or more plantiff

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13
Q

strengths rep proceedings

A

save cost and allow indiv to pursue legal matter w/o hinder of high cost bc shared by large group
gain share of damages varying on gravity of injury suffered
efficency of ocurts resources
remove power inbal by keeping large org accountable

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14
Q

weaknesses rep proceedings

A

group members are bound by judgment unless opt out hence unable to initiate future private claim
controversy re equitable distribution off damages
excessive legal costs may consume awarded amount
lengthy b/c complex

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15
Q

negotiation options

A

methods in which parties should ocnsider that allow them to negotiate their desired outcomes rather than involving an ajduciator.
purpose:
- parties to be in control of their descion
-maintain an ongoing relationship
- saves time and costs
- can be informal and private = which can decrease anxiety of coord

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16
Q

negotiation options strengths

A

parties have great input into the outcome of their dispute
parties can have on going relationship as x adversarial
cheapest and most efficent option saving time and money

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17
Q

negotiation options weaknesses

A

may x lead to desired outcome, time is wasted and courts may need to be used anyway
b/c there is no strict rules and procedures one party may dominate
no legal req to comply

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18
Q

costs of pursuing the claim

A

parties must bear their own costs of the action must carefully consider costs

purposes
how much will it cost? in legal fees, court fees, payment for expert witnesses, disbarment fees
will the cost be recovered? parties must assess whether the cost of the damages recovered will be greater or less then cost pursuing claim
will the defendant be bale to pay the costs?

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19
Q

costs of pursuing the claim STRENGTHS

A

parties must bear cost of the action so t/f choose the methods
non win no fee which menas not hindered by not being able to afford the legla rep
class actions = share the costs of legal fees

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20
Q

costs of pursuing the claim WEAKNESS

A

the costs of the legal costs may be a barrier to accessing the cicvil justice system
if def x have means to pay then may be at a bigger finanacial loss
complex civil matters drawn out and take months

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21
Q

limitation of actions

A

time period or limit from when damage occurred to the plantiff and the legal action is initiated
the limitations of actions act 1958 vic
purposes
ensure the avability of witnesses and documentation
prevent actions from being initiated after a substantial period of time
ensure plantiff acts within timely manner

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22
Q

limitation of actions STRENGTHS

A

having time limits on the plantiff can intiate their legal claim means that any evidence witnesses that will be required to in trial
time limits = large degree of finality
flexibiility in LAA when courts can make an extension

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23
Q

limitation of actions WEAKNESSES

A

b/c time delays may put pressure onto the courts to have enough room to hear cases in timely manner
barrier to intiate civil claim

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24
Q

scope of liability

A

determining whether the defendant’s actions or omissions lef to plantiffs loss which is basis for claim
purpose
-to det whether p is taking legal action against correct parties
-to det whether def is liabille based on the basis of claim
-to det whether there are other possible defendants

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25
Q

scope of liability STRENGTHS

A

allow p to focus on indiv, parties that are responsible for dmage/injury
assesses the extent of liability/ cuasing injury/loss
allow p to potentially recover further damages as alllows claim against employeer/ insurers

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26
Q

scope of liability WEAKNESSES

A

vicarious liability hold employers liabile for the action of their employees when they have limited input or control over employees actions

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27
Q

enforcement issues

A

factors that are plantiffs needs to consider when pursuing a civil case b/c the order or outcome decided may not be enforced
plantiff may win but court des x enforced b/c def x have means or resources to comply
purposes:
- to determine whether the matter is worth pursuing and if so in what enviro and which methods t use
- determine whether legal fees, dusburment fees will exceed amount awarded
- whether the court can compel def to follow thorugh w order

NO STRENGTHS

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28
Q

enforcement issues WEAKNESSES

A

plantiffs may be limited in seeking a remedy if def x have means to pay
plantiffs canbe limited in seeking a remedy if def in international jurtisdiction

29
Q

consumer afffairs vic (CAV)

A

indep gov stautory body created to regulate monitor and educate consumers about their rights and buisnesses obligations.
purpose:
assit vic in being responsible consumers and edu them on their rights and obligations. enusres that buis abide by cosume rlawd and provide avenues for consumers to exerice their rights

30
Q

who can cav assit
jurisdiction

A

disputes b/w
- consumers and buis re goods and sevices
-landlords and tenants re rentla prop
- re slae of propertyw regards to real estate agents, actions, private sale
- re seller and purchaser of a motor vehicle
- involiving builidng and renovation of prop
- involve tenants within retir villages

31
Q

cav criteria

A

within cav jurisd
parties have attempted self help but unsucc
reasonable likelihood of success
vcat or ocurts x been involved

32
Q

cav methods

A

self help and concil = x legaly binding
cav may intiate civil action on behalf of consumers agaisnt buiss where there is breach of consumer laws

33
Q

cav strengths

A

procedural fairness, both parties present evidand arg to indep & impartial third party in concil
free and accedssible to all vic
cav will take party to court where necc

34
Q

cav weakness

A

must be within jrisd so limited cases
concil = voulntary so cav x force party to attent
if agreement x reached or party x comply then may drop or proceed to another dispute res, increasing time and more cost

35
Q

cav weakness

A

must be within jrisd so limited cases
concil = voulntary so cav x force party to attent
if agreement x reached or party x comply then may drop or proceed to another dispute res, increasing time and more cost

36
Q

cav appropriate when

A

in jurisdiction
relates to infrig of consumer rights
aim is to hold vic buis accountable
self help was unsucc
patries prepared to meet anach concl
issue isnot before courts or vcat
likely succ resl

37
Q

cav inappropriate when

A

if req by buis/landlord
refuse to attend or comprimise
likely to break agreement
dispute involves employer and employee
neighbour disputes
car accid
rep proceed

38
Q

vcat

A

stautory indep gov body hearing minor disputes
provides relatively cheap timely and informal, efficent resloution for civil disputes
applicant (p) applying and respondent (D) responds
NOT bound by precedent and appels =limited only point of law

39
Q

vcat divisions

A

civil div
adminstratuve div
planning and enviro div
human rights
residential tenacies

40
Q

vcat purposes

A
  • low cost approc $60 cost of filing minor matters, x hearing fee for some, costs further decreaseb/c parties can rep themselves
  • accessible many locations across vic, telephone and video conf avaliable
  • effiecent x lengthy court procedures = reduce wait times avg wait time for civ div = 10 weeks and 2 weeks for res ten, can be eresolved same day when in vcat
    -independent vcat members = independent and unbaised adud
41
Q

how does vcat resolve disoutes

A
  1. mediation where parties meet w trained mediator to det if resolve disp w/o hearing, both parties voluntarily attend, imparital thrid party facilitates, parties = open and willing
  2. compulsory confrences more complex matters but can be any dispute, vcat may direct parties to attend, idnetify and clairfy issues, promote settlemtn, identify ? of law and fcat, alllow directions to be given
  3. hearings most formal vcat method beofre vcat memebr who considers evid, facts and submissions then makes alegal bind descion
    parties do oath/ affir when giivng evid
42
Q

vcat outcomes

A

pay money, resotre goods, undertake work, vacate property, cancel or vary contract, dismiss claim
order may be enforced in courts

43
Q

vcat appeals

A

goes to sup crt coa if vcat member was county or sup judge
goes to sup crt td in all other cases

ONLY ON POINT OF LAW

44
Q

vcat appropriate when

A

parties explored all other disp resl mechanisms and unable to reach des
parties req legal bind des made my expert on law reg in specific area
dispute in vcat div
resolution req in timely manner
parties seek affordable flexiible and on going r/ship
seeking opp to resolve in private

45
Q

vcat x appr when

A

x attempted to resolve
disp x in vcat div
complex area w high level of detialed evid and high damages
party isunable to eff comm so may –> unequal pres of issue
party want jury

46
Q

pre trial procedures legixlation

A

civil proceudre act 2010 (vic)

47
Q

pre trial procedures purpose

A

just, efficient, timely and cost effective resolution of disputes

48
Q

letter of demand

A

a letter sent from the plantiff to the defendant adivising them that legal proceedings will be initiated unless an agreement is reached.
purpose:
-establish the nature of plantiffs claims and remedy sought
-indicates a time limit usually 14 days where defendant must respond
-informs the def that a writ will be issued and served if failure to respond
-enables an early settlement wihtout litigation

49
Q

writ

A

a formal doc that is issued to the def and also to the sup crt to outline the nature and facts of the case, beginning of litigation process
IF letter of demand does not resolve matter

The Supreme Court Rules 2015- req for pte trial proceudres for only sup crt

50
Q

purpose of a writ

A

-informs the defendant that litigation has now been initiated
-the title of the action, full names + addressess of the parties and statement of claim
-provides timely execution for the qrit (within 12 months) going to court
expalins the protocol for issuing the writ - the doc can be served personally or via fax or telephone

51
Q

notice of appearance

A

doc lodged by def within 10 days or receiving the writ to indicate their intention to defend the claim
The Supreme Court Rules 2015

52
Q

notice of appearance purpose

A

allows the def to choose whether they will represent themselves by filing a notice of apperance or ignore the writ
informs the plantiff that the action will be defended

53
Q

pleadings

A

process whereby a large number of doc and info is exchanged b/w p and def
as soon as notice of apperance is lodged by def
incl:
- statenent of claim
-defence or counterclaim
-reply

54
Q

purpose of pleadings

A
  • outlines the precise nature of claim - defines the issues in disput and remedy sought
  • provided the def w a fair opp to deny, defend, admit or counterclaim
  • avoids waisiting unnecessary quesitons that are not in dispute reduces cost of claim
    -allows parties to weigh the strength of their case and helps the parites to reach a out of court settlement
55
Q

pleadings documents
counterclaim

A

counterclaim= in some situations, the def may respond w a counterclaim
-purpose:
provides the defendant wiht an opportunity to bring action against the pl claiming that the pl was either parly ro completely responsible for the damage or injuty

56
Q

discovery

A

processes involving more info being exchnged to seek further clarification regarding the issues of the case

57
Q

discovery of documents

A

involves parties sending a notice to produce info to eachother which may include the requests to medical reports and expert witness reports, letters,emails and contracts, photograph
generally a party cannot refuse to produce doc evidence if requested to do so by other party. failure to provide doc means x evid

58
Q

discovery purposes

A

allow parties to request more info an dinspection of doc, clarification of issues
ensure parties disclose all relevannt doc in their poseession
promote timely access to disp res as the ocurt has power to prevent unnecc discovery and limit the number of doc
promotes out of court resolution, settkemetn as parties gain greater understanding of their chances of success in court

59
Q

discovery via interrogatories

A

both parties have the right ot request more information from the other side to aks further quesiots to gain a better understanding of the facts. must be anserwed in writing form of an affidavit

60
Q

purposes of discovery via interrogatories

A

to provide with nore detials info
to encourage out of court sett as parties gain greater und of incons of the evid in the case
to cross check evid givenin court with the present during integg, this can weaken an infiv cases

61
Q

discovery by oral exmination

A

sup crt provide that a prty may orally examine the other party
cannot be conducted w/o consent of relevant party
responses given by disc of oral examin recorded in deposition.
can be evid in rtrial

62
Q

pleadings documents
statement of claim

A

statement of claim= the first doc exchanged as part of the pleadings purposes
- purpose:
informs the def of the full detials of the acuse of action
states the facts alleged by the plantiff
enables the court to aseess if there is a reason to strike out the case

63
Q

pleadings documents
defense

A

defense= a doc lodged by the def in response to the statement of claim
- purpose:
allows def to present their version of the facts and defend nay of the claims made against them, they may admit to some allegations and or deny others
sets out the extent ot which the defendant considers they are liable, where a defendant files ab apperance, a defence should generally be served within 30 dyas

64
Q

role and responsibility of judge

A

impartial and independent adjudicator, remain neutral act imaprtially and treat each party equally
-undertake case management: handling of the case during pre trial procedures and odering parties to attend mediation, imposing time frames for evidience submission
-overseeing jury selection and empaneling
-deciding on admissibility of evid
-enforcing rules of evid and procedure
- determining a remedy

65
Q

role and responsibility of jury

A

-listen and evaluate eivd, jury attend trial everyday and consider whether evidence preseneted suports or allows pl to meet their bop
- applying the law, th ejury apply elements of the law to det if pl met their bop and sop
-deciding fualt and awarding damages, if pl electjury to award remedies, can det damages UNLESS DEF

66
Q

role and responsibility of parties

A

preparing and preseneting their case in court, making descions suhc as iniitatiing legal action, nominating court to hear, det use of jury
p role and res eg
- det if initate or abandon legal clim
- det app court based on rem
- undertake necc processes in pretrial pro

d role and res eg
-agree, aprtly agree or deny claims
-decide method of trial
-engage legal rep

67
Q

role and responsibility of legal practitioners

A

comply w obligations under civ proc act
- present their clinets in crt through preparing and presenthing their case
-protect rights of their clients by ensuring fair and equal treatment in courtroom
-research facts and relevant law
-decide order and presentation of relevant materials and witnesses

68
Q

2 reasons for court hierarchy civil

A

administrative conv
appeals

69
Q

administrative conveiinece

A

the courts priotitse/categorize and distribute the courts based on the complexity of the case
this allows for minor cases to be heard in mag case with greater proportion of resources eg. 51 magistrates court locations

distribution of limited and finite court resources

Legal 3/4 (7 decks)

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