U3 AOS 2 Flashcards
The Victorian Civil Justice System
balance of probabilities
standard of proof for civil. plaintiff must establish that their claim is more probable.
burden of proof
the obligation to prove a case. In civil cases, the plaintiff has it UNLESS the defendant is countersuing or raising a defence. In criminal cases, the prosecution has it unless the accused raises a defence
civil dispute
disagreement between two or more parties in which one makes a claim against the other
civil justice system
a set of processes, bodis and institutions used to solve civil disputes
civil law
an area of law that defines rights and responsibilities of individual/groups/organisations in society and regulate private disputes
class action
when 7 or more people have a claim against the same person in similar facts, also known as a representative or group proceeding.
damages
money one pays to another party to remedy loss or harm. most common civil remedy
defendant
in civil, party who alleged to have breached civil law, being sued by plaintiff in court
discovery of documents
pre trial procedure where parties get each others documents.
liability
legal responsibility for acts or omissions
limitation of actions
time restriction on bringing a civil claim. Many are described in the Limitation of Actions Act 1958 (Vic).
limitation of actions for loss or harm due to defamation
1 year
limitation of actions for loss or harm due to breach of contract
6 years
limitation of actions for loss or harm due to physical or sexual child abuse.
no time restriction, Victoria was the first state to change it to this in 2015
mediation
drm in which uses 3rd party mediator to help reach a resolution. mediator cannot decide the outcome. Unlike conciliation, the mediator cannot recommend solutions.
plaintiff
the party that initiates the legal claim against another party in court
pleadings
civil cases, pre trial procedure. document exchanged, plaintiff and defendant state claims and defences.
remedy
order by court or tribunal to address civil wrong or breach. should provide a legal solution to the plaintiff.
standard of proof
to which extent must the case be proved in court. For civil law, it is on the balance of probabilities, while for criminal law, it is beyond reasonable doubt
statement of claim
document by plaintiff to notify the defendant of the claim, cause and the remedy they want
sue
to take civil action, claiming they did a legal wrong or infringed a legal wright
tribunal
a dispute resolution body, meant to be cheaper, more informal and faster way to resolve civil disputes than the court
vicarious liability.
legal responsibility of third party, eg employer is liable for the conduct of their employees.
lead plaintiff
the person named as plaintiff in class action, represents group members. aka representative plaintiff.
group member
a member of a group of people who are part of a class action
adverse costs order
court order for a party pay the other party’s legal costs
statute
law made by parliament that has received royal assent. DOWN WITH THE MONARCHY
reasons for limitation of actions
defendant does not have to face action after too long, evidence is not lost, people can remember, resolve quickly promote social cohesion to ensure the dispute does not linger and fester within the community
access
one of the principles of justice, means that all people should be able to engage with the justice system on an informed basis
appeal
an application to have a higher court review a ruling (decision)
case management
method used by courts/tribunals to control the progress of cases more efficiently and effectively. Usually involves the person presiding over the case making orders and directions, eg the judge saying the parties need to go to mediation
conciliation
a DRM where the third party helps the two parties come to a resolution, conciliator makes suggestions for solutions.
arbitration
A DRM where the arbitrator listens to both sides and makes a legally binding decision (arbital award)
equality
POJ, people should be treated the same way, but if this would cause disadvantage, need to implement adequate measures, eg intepreter
fairness
one of the POJ, all people can participate in justice system, processes are impartial and open
apprehended bias
a fair minded lay observer might reasonably believe that the person deciding the case may not bring an impartial mind to the case
evidence
information, documents and other material used to prove the facts in a legal case
cross-examinaion
the questioning of a witness called by the other side
Participation in a civil case
of a party, that is
Involves fairness.
- know the case against them eg pretrial procedures
- opportunity to present their version of the case, including cross-examination
- use of an interpreter (not free in civil)
-no delays, or witnesses forget what happened and plaintiff is too old to enjoy the remedy.
the opportunity of a party to present their version of the case
- including cross examination
- bring their own witnesses
- make submissions
- produce documents
disparity
two or more things or people are not equal
self-represented party
person before court or tribunal who has no lawyer or other legal professional
oath
when a person swears the truth on a religious or spiritual belief. no religion/spiritual belief, then it isan affirmation
Consumer Affairs Victoria (CAV)
consumer affairs regulator in vic. Has advisory, info, compliance and enforcement roles
Victorian Civil and Administrative Tribunal (VCAT)
range of civil issues, such as human rights, Civil claims, residential tenancies.
alternate dispute resolution methods
ways of resolving civil disputes without the use of a court or tribunal, also known as just dispute resolution methods
mediator
independent third party that does not interfere or persuade
terms of settlement
document that sets out the conditions of the agreement for the parties to resolve the dispute
when is mediation/conciliation appropriate
- the relationship between the parties will continue
- willing to compromise
- one or both want to resolve privately
when is mediation/conciliation inappropriate
- urgent matter
- one or both want to resolve publicly
- gross imbalance of power
- history of agressive behaviour
pros of mediation/conciliation
independent third party, less formal, safe environment, can save time and money, private
cons of mediation/conciliation
may not be enforceable, intimidation, refuse to attend, waste of time and money, no open justice
pros of arbitration
binding and fully enforceable, private, control over process, arbitrator usually an expert
cons of arbitration
no control on outcome, not available all the time, can be costly, can be formal
Roles of the Judge/Magistrate
Manage the case BEFORE and DURING the trial
Act impartially
Determine liability (if no jury)
Determine Costs
Roles of the Jury
Be objective
Listen and remember to evidence
Understand directions and summing up
decide on liability and sometimes damages
Jury in a civil case
6 jurors, sometimes 8 for long/complex trials (only 6 deliberate)
Not compulsory for any case, never in magistrates
The party that wants it pays for it
counterclaim
separate claim made by the defendant in response to the plaintiff’s claim
party control
a term used to describe the power the parties have to how the case will run
lay evidence
Evidence given by a lay (ordinary) person about the facts
expert evidence
evidence given by an expert about an area within their expertise.
examination-in-chief
questioning your own witnesses in order to prove your own case
litigation funder
a third party who pays for some or all the costs and expenses associated with initiating a claim in return for a share of the amount recovered. Litigation funders are often involved in class actions
Consumer Affair Victoria (CAV)
A dispute resolution body that regulates consumer law and settles disputes via conciliation. It is free and accessible, but does not have a lot of enforceable power and cannot deal with larger cases
Victorian Civil and Administrative Tribunal (VCAT) Jurisdiction
disputes regarding Residential tenancies, civil claims, human rights, planning & environment, administrative division
methods used by VCAT
mediation, compulsory conferences, final hearing before a member
Fast track hearing and mediation (FMAH
small claim about goods and services in the civil list of VCAT do mediation and hearing quickly on the same day to solve dispute efficiently
compulsory conferences
a confidential meeting between the parties involved in a dispute
(in the presence of an independent third party) to discuss ways to resolve their differences and explore possible resolutions
strengths of VCAT
cheaper
- less formal
- faster
- more flexible
- specialised
- final hearing is binding
weaknesses of VCAT
frequent legal representation - money
- delays from COVID
- may be too informal
- cant make precedents
- only appealed point of law
- still need to enforced by courts
VCAT and appeals
ONLY on a point of LAW
usually goes to Trial division
if the member was the president or Vice-president, it goes to Court of Appeal
Magistrates court jurisdiction
$100,000 or below. a plaintiff can lower the claim to get to the magistrates court
Magistrates court arbitration
for claims $10,00 and below.
aggravated damages
when the defendant has to pay for their conduct causing humiliation, embarassment or insult
compensatory damages
amount of money awarded to plaintiff for harm, injury, other losses. Includes:
- general damages
- special damages
- contemptuous damages
- aggravated damages
contemptuous damages
very small sum awarded that the plaintiff succeeded legally, court/tribunal morally disapproves of it
damages
money paid in order to remedy for loss or harm. in courts OR tribunals
exemplary damages
very large amount of money to show strong disapproval of the defendant’s conduct
general damages
damages for something that is not easily quantifiable, eg pain and suffering
injunction
remedy that is an order to do or not to do something
loss of amenity
loss of a persons ability to enjoy something they used to have (eg, a workplace injury and a guy has no legs now)
mandatory injuction
an injunction that says you have to do something, or take active steps to prevent harm (or further harm) to the plaintiff
nominal damages
small amount of money in damages to confirm that rights were infringed, but losses were minimal
remedy
order made by court or tribunal to address a civil wrong or breach. should be a legal solution
restrictive injunction
order that says don’t do something so it doesn’t harm or further harm the plaintiff.
special damages
amount of money paid that is for easily quantifiable things, eg medical expenses, repairs, loss of wages.
