U3 AOS 2A Flashcards
what are civil disputes?
a disagreement bw 2 or more individuals whereby one group party makes a claim, claiming a loss
what are the purposes of civil law?
-to enable a party to enforce their rights
-to determine whether the defendant is liable
-to award a remedy and return the plaintiff to their original position
sue?
to take civil action against another person claiming that they have infringed some legal right of the plaintiff or did something wrong that negatively affected the plaintiff
litigation?
commencing a civil action in court- normally begins by seeking legal rep. and filing of a writ
liable?
finding that one person is responsible for the other’s loss/ infringement
remedy?
orders made by a court or tribunal to address a civil wrong/ breach- designed to restore PT to OG position- damages or injunctions
plaintiff?
party who commences the civil action and claims their rights have been infringed or a wrong has occurred (aggrieved or wronged party)
defendant?
party who is alleged to have infringed PTs rights or is alleged to be responsible for the wrongdoing
who can the parties be?
-an individual or group
-a corporation or a company
-the Cth/ state or a govt agency or body
vicarious liability
if employee infringes a persons rights while acting in the course of their employment- legal responsibility of a third party for the wrongful acts of another
BOP
plaintiff
SOP
on balance of probabilities
factors to consider before commencing a civil claim
cost
enforcement issues
limitations of actions
fees for legal representation
depending on the complexity of the legal issue, a party may choose to engage in the services of a solicitor/lawyer
Solicitor-seek legal advice or draft and file documents
Barrister-representation in pre-trial procedures/ case
cost dependent on complexity of case, experience of rep., avenue in which case is heard
senior barrister can charge $600 p/h, KCs-$1000 p/h
examples of cost factors
fees for legal rep
disbursements
adverse court orders
disbursements
other expenses incurred as part pf preparing for case outside of legal rep
-court fees (filing fees, hearing fees, fees for a jury)
-expert witnesses
-mediation fees organized privately
-courier
writ in CC-$779
hearing fees in in CC-$800 per day
jury-$1606 for first day and then $303.60 per day
adverse court orders
legal requirement that one party pays for the other parties legal costs
limitations of actions
restriction on the time limit in which a plaintiff must commence a civil action in court, after which time, the plaintiff is unable to bring an action relating to the civil wrong against the def
limitation of actions legislation
Limitations of Actions act 1958 (vic)
why do LoA exist
-encourage parties to bring their disputes to court in a timely manner
-the ability for witnesses to recall the incident from memory remains accurate
-to ensure the quality of the evidence to support the party’s claim remain high
-to ensure the defendant does not have to defend a civil action after a significant amount of time
LoA exceptions
had a disability during relevant period, ‘date of discoverability’ occurs after the event- time frame begins from date where harm was discovered
defamation LoA
1 year
negligence LoA
6 years
personal injury LoA
3 years
what are enforcement issues
a factor that involves the plaintiff considering that if they are successful in their claim, can their claim be enforced on the defendant. That is, is the defendant able to fulfill their legal obligation
when could enforcement issues be a consideration
-def is likely to declare bankruptcy or is unemployed
-if def is a company, it may not have any assets to sell to pay damages
-if def is in prison/ has relocated overseas permanently
-def cannot be identified/ is unknown
how can enforcement issues be fixed
plaintiff can obtain a sheriffs warrant via courts to seize the defs goods/assets to sell/ retrieve their money
impartiality
-PT can have an indep and impartial adjudicator preside over their dispute- this could be a judge/mediator/mag/arbitrator
-should a PT wish to have a jury, they will be entitled to having a jury of 6 decide the outcome of their case and award remedies if in CC or SC
-judge and jury must reach a decision based upon applying the facts and ev presented in case rather than own opinion/bias
-Civil Procedure Act 2010 ensures that the rules of preparing and presenting a case is applied to both sides (narrowing legal issues being disputed, disclosure during discovery, case management powers of the judge which can limit the types of qs asked to witnesses to ensure an outcome is only reached based of evidence and testimony
open processes
-disputes that utilize the courts are open to the public inc court judgement, this promotes transparency over judicial decisions and accountability of legal professionals
-however, should parties choose to use mediation or conc. as their method, this may be held in private, leading to a lack of openness
-jurors are not required to provide a reason for their decision so damages or remedies may not be consistent
participation
-after considering all factors, all plaintiffs have the right to lodge a claim against the def bc of a loss or, if they believe that the manner is not worth pursuing, they can cut their losses
-plaintiffs can engage in several avenues to have their issue resolved including courts, med, conc, arb, tribunals, complaints bodies
-pre-trial procedures such as pleadings, discovery of documents and directions, def can gain info abt case against them and to prepare
-both parties have the same opp to present their case or side to the judge and jury during trial
same treatment
-all parties can initiate a claim if they can demonstrate an infringement of their rights and a loss
-all parties can ahve an indep adjudicator preside over their case
-all parties must engage in the same pre-trial procedures to ensure adequate prep. and presentation of case
-all parties can and are encouraged to negotiate prior and during trial and resolve their disputes w/o proceeding to a trial
-all parties having their matters heard in superior courts can request to have a jury in they can pay
-all parties can engage in legal rep. to provide them w legal assistance
substantive equality
-if a diff party cannot afford legal rep. and must self rep, a judge or mag may need to take steps to explain certain rights and processes e.g what it means to cross examine
-VLA and CLC provide extra support to indiv who dont have the resources to uphold their civil rights, leading to more equitable outcomes
-interpreters may be required for ppl w limited eng
engagement
-a range of dispute resolution methods are available to the parties to utilize ranging from ADRs, tribunals, CAV and courts, most of which are less complex than courts
-tech. dev have led to some disputes being resolved via online video-link or conferencing
-financial access- CAV and human rights matters heard by VCAT are free of charge
-class actions/ group proceedings allows for group members to share costs
-VCAT also has a discount for those on pension cards when charging an application fee allowing a more affordable approach to resolve civil disputes
-legal rep are often not needed unless parties are in court
-are range of dispute resolution avenues also means that courts are less likely to be clogged and experience delays
informed basis
-specialist CLCs can assist certain groups w vulnerabilities in society (AED is established to specifically assist individuals w disabilities regarding civil matters arising from unlawful termination, bullying and harassment and wages and working conditions)
-complaints bodies such as CAV provide free info online to educate consumers and uses conc to resolve disputes for free
-online websites such as VCAT, VLA, womens Legal and Vic Omb. provide info and guidance for parties on their rights and where to take dispute to be resolved- most will recommend/ require parties to engage in self-help first
-self help requires that parties have a certain level of edu. and can articulate and communicate w the other party
what is mediation
one of the least formal methods for resolving civil disputes that can occur outside and within the court system
who
willing parties and mediator
what occurs in mediation
-parties sit down and discuss issues involved
-consider options
-try to reach an agreement through negotiation and compromise
legal rep in mediation?
not usually-sense of informality
strict rules of ev and procedure in mediation?
no
where does mediation occur
-in a private office
-court
-Dispute Resolution Centre of Victoria
mediation legally binding
not unless deed of settlement is signed bby both parties
(a legally binding document that outlines the terms that the parties have agreed to which can be enforceable through courts if one party doesn’t comply)
when can mediation be used
before court, during court, alternative to court
mediation before court
if important to maintain relationship or costs may be an issue
mediation during court
-courts can order mediation once the case has been initiated (can be without consent)
-cost usually split bw parties
-associate judges can also mediate (judicial mediation)
mediation as an alternative to court
-VCAT often refers to claims to med prior to the final hearing
-parties can also access private med thru Dispute Resolution Centre of Vic
when is mediation appropriate
-relationship needs to be maintained
-parties are willing
-parties prefer privacy and confidentiality and want to resolve in a less publicised manner
-costs
-prompt resolution needs to be reached
when is mediation inappropriate
-relationship broken or imbalanced
-parties are unwilling
-parties want a public outcome to shame/deter
-if urgent court intervention is required
what does a conciliator do
listen to facts and ev and make suggestions
-have specialised knowledge in the field pertaining to legal dispute
when is conciliation inappropriate
-parties are highly emotional
-parties are unwilling to discuss issues
- history of violence or threats bw parties
-pwr imbalance
-parties want a binding result or prefer formalities associated w judicial determination
mediation fairness strengths
-parties control outcome, resolution is not reached until compromise is reached
-mediator is impartial
-mediation can promote a fair outcome as faster than trial and minimises delays
mediation fairness limits
-power imbalance may cause a forced or unfair resolution
-not legally binding- limits fairness
-parties must compromise which can limit fairness if one party is unwilling to negotiate
mediation equality strengths
-no strict rules of ev and procedure- each party can feel supported to speak freely and present perspective
-unrep parties are unlikely to be disadv as mediator guides the discussion and there are no formal rules of ev and procedure to navigate
-legal rep not usually required and usually only permitted if both parties have a lawyer
mediation equality limits
one party is more vulnerable or there is a power imbalance bw parties there may be a forced outcome that doesn’t equally benefit both parties
mediation access strengths
-less costly, legal rep often not required
-public nature of trial can prevent parties from taking legal action if dispute is sensitive- mediation is more private
-med is a more supportive non adversial manner
mediation access limits
-long running and hostile disputes- parties are unlikely to constructively communicate and reach a resolution
-parties may need to present their own case which may be intimidating and discourage ppl
conciliation fairness strengths
-parties control outcome, resolution is not reached until compromise is reached
-conciliation is impartial
-conc can promote a fair outcome as faster than trial and minimises delays
conciliation fairness limits
-power imbalance may cause a forced or unfair resolution
-not legally binding- limits fairness
-parties must compromise which can limit fairness if one party is unwilling to negotiate
-no obligation for parties to reach a resolution, so time and money may be wasted
conciliation equality strengths
-no strict rules of ev and procedure- each party can feel supported to speak freely and present perspective and conciliator suggests solutions
-unrep parties are unlikely to be disadv as conciliator guides the discussion and there are no formal rules of ev and procedure to navigate
-legal rep not usually required and usually only permitted if both parties have a lawyer
conciliation equality weaknesses
one party is more vulnerable or there is a power imbalance bw parties there may be a forced outcome that doesn’t equally benefit both parties
conciliation access strengths
-conciliator much cheaper than trial and usually less time
-public nature of trial can prevent parties from taking legal action if dispute is sensitive- mediation is more private
-med is a more supportive non adversial manner
conciliation access weaknesses
-long running and hostile disputes- parties are unlikely to constructively communicate and reach a resolution
-parties may need to present their own case which may be intimidating and discourage pplq
what is arbitration
one of the most formal ‘alternative’ methods of dispute resolution outside of courts
what does an arbitrator do
listens to both sides and makes a legally binding decision (arbitration award)
key differences bw arb an d courts
not bound by strict rules of ev
arb in private
-arranged by parties themselves
-usually involving commercial transactions (due to terms in a contract)
-takes place at Dispute Resolution Centre/ Melbourne Commercial mediation and Arbitration centre
arb in court
-when a small claim is made in Mag court for less than $10k and is obliged to use arb
-mag can also refer to arb w consent for over $10k
-CC/SC- can request arb if they consent
arb in VCAT
can refer before final hearing but they dont conduct it
when is arb appropriate
-parties consent/ is part of contract
-below than $10k in mag
-want a legally binding decision
-will benefit from a private and confidential resolution
-want to benefit from a more formal procedure
mag court OG
below $10k- arb
no jury
up to $100k
mag court appellate
none
CC OG
judge optional jury
-unlimited
CC appellate
none
SC TD
unlimited
-appeals from VCAT/ mag on a q of law
SC COA
CC/SCTD
-VCAT president/vice president on a Q of law
HC OG
none
HC appellate
SCCOA
what is administrative convenience
ability of the courts to distribute resources more effectively by organizing disputes according to how serious or complex they are
how does admin convenience reduce delays
superior courts are free to devote time and resources to long, complex cases as the court is not delayed by minor disputes
lower courts can quickly resolve a large number of relatively minor disputes
what is an appeal
a legal process that a dissatisfied party may pursue to have the courts decision reviewed by a higher court
grounds for appeal
q of law- law hasn’t been applied correctly (inadmissible ev)
q of fact-whether facts have been applied appropriately
the remedy
when can the HC hear appeals
there is a q of law of public importance
there are differing opinions on the law which requires clarification
who are the key personnel in the civil courtroom
magistrate/judge
jury
parties
what is a judge
an indep authority who presides over a trial, ensuring procedural fairness by overseeing all personnel and evidence
roles of the judge
case management
remain unbiased
apply the rules of evidence and procedure
direct the jury
determining liability and awarding remedies
what is case management
a method used by the courts to control the progress of legal cases more effectively and efficiently. it generally involves a person presiding over the case making orders and directions in the proceedings
case management legislation
civil procedures act 2010
case management before trial
to determine whether the matter can be resolved prior to the trial commencing to save parties time and money
-giving directions to parties (poses an obligation on a party or both to do something by a certain time, or, specifies how a civil proceeding will be conducted (filing a particular doc by a certain date, discovery, attending mediation)
case management during trial
-ensuring correct procedure is followed (PT presents ev first)
-limit examination of witness
-limit number of witnesses
-limit the number of documents tendered
-ask witness clarifying questions
-hands down a ruling
-ensuring self-rep parties understand rights and obligations along w court processes
judges applying rules of ev and procedure
-determining admissibility of ev
-ensuring witnesses are examined and cross-examined
-give directions as to how ev is to be presented and what documents jury is permitted to see
-providing clarity on rules of ev and procedure
fairness strengths of judge
indep judges and mag ensure trials and conducted wo bias and according to rules of ev
fairness weaknesses of judge
reliant on parties to present all ev and facts
equality strengths of judge
ensure rules of ev and procedure apply equally to all parties
equality weaknesses of judge
still subject to personal bias and may unconsciously discriminate
access strengths of judge
case management powers minimize costs
access weaknesses of judges
accessing a hearing or trial can be challenging due to costs, time
similarities in crim and civil judges
directing jury
managing trial
impartiality
differences in crim and civil judges
-in crim different judges oversee committals whereas in civil, same judge for directions and trial
-determining guilt and sanction vs liability and remedies sometimes
roles of plaintiff
party control
disclosing info to def
presenting ev
participating in the trial
party control
power to determine course of proceedings by parties:
-choosing which court to bring their claim
-choosing what ev to present
-choosing defences
disclosing info to the def
-as per Civil Procedure act 2010 (vic) parties are responsible of parties to ensure all relevant doc. are presented
-medical records, texts, emails, photos
plaintiff presenting ev
lay evidence-from an ordinary person abt what happened or what they saw
expert ev- given by ppl w a professional opinion (medicine, finance, psychology)
plaintiff participating in trial
-opening and closing address
-presenting case
-cross examination to cahllenge credibility or identify weaknesses in ev
roles of the defendant
party control
disclosing ev
present defences
defendant disclosing evidence
as per Civil Procedure Act 2010 (vic) it is their duty to ensure all relevant doc presented to court
fairness strengths of parties
have control over own case and are responsible for deciding what facts to present and how to present them (participate)
equality strengths of parties
-equal opp to present case
-both parties must abide by court processes and procedure
access strengths of parties
courts provide some general guidance to parties who are self rep
fairness weaknesses of parties
-self-rep may not understand which doc are relevant and t/f may fail to disclose all relevant ev
-self-rep may struggle to understand how to present legal arguments and ev in best light
equality weaknesses of parties
not all parties equally equipped to present their case
access weaknesses of parties
institutions such as VLA are often unable to support civil cases- may struggle to understand rights and how to present case if self rep.
how are juries used in civil law
not guaranteed
determine liability and award remedies
6
not common as parties must seek approval and be able to fund ($1626 first day and $303.60 for subsequent days)
roles of jury
remain objective
listen to ev, judges directions and submissions made by legal reps
determine liability
juries remaining objective
-indep and unbiased
-if cannot be indep, must ask to be excused during empanelment
juries listening to ev, judges directions adn submissions made by legal reps
-jury must listen to all ev and ensure ev is reached on facts
-jurors can take notes and keep track of info throughout trial through listening to directions given by judge and explanations of key concepts
juries determining liability
-has PT satisfied burden and met standard of proof
-mostly unanimous but sometimes a majority of 5 of 6
-not required reasons
-can contribute to calculating damages (not def.)
fairness strengths of the jury
-randomised cross section of the community to determine verdict, so parties should feel their case has been decided by their peers and according to a diverse range of view
-juries cannot seek additional info about the case beyond the courtroom and are instructed to disregard prior knowledge
equality strengths of the jury
bot parties have capacity to request a jury
access strengths of the jury
increases use of plain english which allows parties to better understand
fairness weaknesses of the jury
-making decisions in a complex case and when undertaken by ppl w limited training, may be an unfair verdict
-jurors not required to provide reasons
equality weaknesses of the jury
-a party may wish to have a jury but might not be able to afford it
-some ppl are ineligible or disqualified from being jurors and as a consequence, parties may not feel there is a true cross section of the community
access weaknesses of the jury
-may not be financially viable
-access to efficient dispute resolution may be delayed as extra time is required empanel and judge may need to explain to them
-hung juries/ mistrials can require a retrial and further delay achievement of justice
similarities bw crim and civil juries
-remaining impartial
-listen to instructions and directions and evidence carefully
differences bw crim and civil juries
-determining guilty vs liability (SOP)
-dont determine sanctions but may determine remedies
solicitors
legal practitioners who primarily advise clients abt legal matters, prepares legal documents for trial, communicates w other party, researches relevant laws and engages in barrister and briefs them to represent the client
barrister
self employed lawyer who regularly appears in court and is responsible for representing a party at trial through making legal arguments, questioning of witnesses, summarising the case for the judge/jury
why are legal representatives needed in a civil trial?
advise their client of their rights, provide objectivity and support
present ev and cross examine witnesses
ensure doc are properly drafted and handled
legal rep advising clients, providing objectivity and support
-lawyers can read past cases to determine likely resolution
-lawyers can be comforting to confide in
-lawyers can be impartial
lawyers presenting ev and cross examining
-requires procedural standards to abide by to ensure irrelevant questions are not asked
-Family Law Act 1975 (vic) prevents cross examination of one another in family matters when violence has previously occurred- VLA must appoint a lawyer to rep such parties
Lawyers ensure doc are properly drafted and handled
-affidavits and subpoenas may be required to receive ev relevant to the case. Those not familiar with court proceedings may struggle to ensure such documents are handled
-once a dispute has finished, ensuring that a legally binding agreement may be formed. A lawyer can ensure this agreement is binding on both parties and that the agreement is not unfair to their client
Legal assistance in civil in matters
A trial will not be adjourned to gain legal rep.
VLA:
$5000 or more
Def- more than $5000, sole home is at immediate risk and there is a strong prospect that def can defend the action
CLC:
-AED legal centres in melb assist ppl w disabilities who have employment and education related legal problems such as unfair dismissals
-Disability Discrimination Legal Service in melb assists ppl w disability discrimination matters
-Easter Community Legal Cerntres provides free legal advice to ppl in Melbs eastern suburbs in civil matters relating to family law, divorce, discrimination, neighbourhood disputes etc
strengths of legal rep
-experienced
-avoid delays
-increased chance of appeals
-may have a no win no fee arrangement
-objectivity
legal rep weaknesses
-not all lawyers have the same experience
-not everyone can afford rep
-even if rep can be afforded may still be a great expense
