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VCE Legal Studies > U3: AOS2 (Civil Law) > Flashcards

U3: AOS2 (Civil Law) Flashcards

1
Q

In Civil Law, explain:

1) Burden of Proof
2) Standard of Proof
3) Representative Proceedings

A

1) Falls on the Plaintiff.
2) Balance of Probabilities.
3) Known as a Class Action - several individuals launch one case together against a defendant.

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2
Q

What are the 5 factors to consider when initiating a civil claim?

A

1) Negotiation Options
2) Costs
3) Limitation of Actions
4) Scope of Liability
5) Enforcement Issues

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3
Q

What are Negotiation Options considerations?

A
  • Before judicial determination, first consider out-of-court settlements (mediation, conciliation, arbitration)
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4
Q

What are Cost considerations?

A
  • How much will it cost?
  • Will you recover the cost?
  • Will the defendant be able to pay the costs?
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5
Q

What are Limitation of Actions considerations?

A

The period of time after which the offence has been committed that the case can be brought to court. If the time frame to bring the matter to court has elapsed then the defendant can not be charged.

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6
Q

What are Scope of Liability considerations?

A

Must ensure that the plaintiff themselves did not contribute to the offence, and that the defendant was the dominant party in carrying out the offence. Otherwise the plaintiff may be implicate themselves and be susceptible to counter-claims.

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7
Q

What are Enforcement Issues considerations?n

A
  • Is the agreement for reparations legally enforceable? (eg. non-legally binding agreements are not)
  • Can the defendant even pay for reparations?
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8
Q

1) What is a Writ?

2) What is its purpose?

A

1) A written document prepared by the plaintiff’s solicitor which legally commands the defendant to attend court/engage in legal proceedings.

2)

  • Informs defendant of case against them
  • Enables defendant to formulate their own defence
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9
Q

What is mediation?

A

Process whereby an impartial third party facilitates discussion between parties of possible solutions to a dispute, but does not offer suggestions or decisions.

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10
Q

Why is mediation appropriate?

A
  • Cheap
  • Quick
  • Can retain relationship between parties
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11
Q

Why is mediation inappropriate?

A
  • Is not binding
  • May not produce solution
  • Imbalance of power may arise
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12
Q

What is conciliation?

A

Process whereby an impartial third party facilitates discussion between parties and suggests possible solutions to a dispute.

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13
Q

Why is conciliation appropriate?

A
  • Cheap
  • Quick
  • Conciliator is an expert in area
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14
Q

Why is conciliation inappropriate?

A
  • Is not binding

- May not produce solution

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15
Q

What is arbitration?

A

Process whereby an impartial third party hears a dispute between two parties and enforces a legally-binding solution.

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16
Q

Why is arbitration appropriate?

A
  • Cheaper/quicker than court
  • Always produces a solution
  • Arbitrator is an expert in area
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17
Q

Why is arbitration inappropriate?

A
  • Win-lose scenario
  • Appeals are limited (decision is final)
  • More expensive than mediation/conciliation
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18
Q

What is Consumers Affairs Victoria (CAV)?

A

Government body that provides information/advice to business traders and consumers about their rights and responsibilities.

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19
Q

What are the purposes of CAV?

A
  • Provide information for business traders/consumers on rights/responsibilities
  • Provide advice to business traders/consumers
  • Register business licenses
  • Conciliates disputes between traders and consumers
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20
Q

Why is CAV appropriate?

A
  • Ensures individuals are educated on their rights
  • Stops illegal business activities
  • Enables individuals to defend their rights
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21
Q

Why is CAV not appropriate?

A
  • Applies only to businesses/traders

- Can only conciliate if it is within jurisdiction and likely to have a settlement

22
Q

What is Victorian Civil and Administrative Tribunal (VCAT)?

A

Government body which hears and facilitates disputes, offering out-of-court alternative dispute resolutions.

23
Q

What are the purposes of VCAT?

A
  • Provide parties with alternative dispute resolutions
  • Ensure parties reach a solution to dispute
  • Offer a cheaper/quicker method of resolving disputes
24
Q

Why is VCAT appropriate?

A
  • Cheap
  • Quick
  • Informal (non-adversarial)
25
Q

Why is VCAT not appropriate?

A
  • Only suitable for civil disputes
  • Gradually increasing in cost
  • Mediation/conciliation may not reach solution
  • Arbitration may produce a win-lose scenario
26
Q

What are the purposes of a Court Hierarchy?

A
  • Administrative Convenience
  • Appeals
  • Specialisation
27
Q

How does the Court Hierarchy provide Administrative Convenience?

A

Allows for allocation of cases according to complexity/content. Reduces delays and cost.

28
Q

How does the Court Hierarchy provide Appeals?

A

System allows for higher courts to review decisions made by lower courts. Allows for consistency and fairness.

29
Q

How does the Court Hierarchy provide Specialisation?

A

Division of courts allows for allocation of experts into particular fields. Allows for expertise and efficiency.

30
Q

What are the responsibilities of the Judge?

A
  • Enforce court rules/procedures
  • Explain points of law for jury
  • Decide admissibility of evidence
  • Determine remedy
31
Q

What are the responsibilities of the Jury?

A
  • Listen to and evaluate evidence
  • Decide fault
  • Award damages
  • Remain unbiased throughout
32
Q

What are the responsibilities of the Parties?

A
  • Initiate actions
  • Initiate pre-trial procedures
  • Provide a case
  • Provide evidence
33
Q

What are the responsibilities of the Legal Practitioners?

A
  • Represent parties in court
  • Protect rights of party
  • Research facts/relevant law
  • Present evidence/witnesses
34
Q

What is the purpose of a remedy?

A
  • To restore parties to their original positions before the wrong was carried out, achieved through compensating the wronged party.
  • Stop further harm from being carried out.
35
Q

What are Damages?

A

A civil remedy whereby the court orders the defendant to pay a sum of money to restore the plaintiff to their original position, therefore providing compensation for the injury/damaged suffered.

36
Q

What are 2 types of Damages?

A
  • Compensatory damages (general payment)

- Specific damages (specific items such as hospital bills)

37
Q

What are Injunctions?

A

A court order that requires the defendant to do something or to refrain from doing something.

38
Q

What are 2 examples of Injunctions

A
  • Requiring the fulfillment of a contract/job

- Restraining order

39
Q

What is Case Management?

A

A system of rules introduced to reduce costs and delays in the court system. Aims to resolve disputes fairly and equally, while also allowing greater access to courts.

40
Q

What are Directions Hearings?

A

Supreme Court can take an active role in the conduct of the proceedings, such as enforcing time frames and fixing dates for trial/further hearings.

41
Q

What is the power to order mediation?

A

Judges/magistrates can refer cases to mediation to promote out-of-court settlements, and reduce blockage of civil cases in courts.

42
Q

How do cost factors affect the achievement of justice?

A
  • People can be discouraged from pursuing rights
  • Poorer representation will affect ability to receive fair outcome
  • Forced to settle/withdraw or self-represent
43
Q

How do time factors affect the achievement of justice?

A
  • People can be discouraged from pursuing rights
  • Can cause stress, wasted time, and inconvenience
  • Delays add costs onto case
44
Q

How do accessibility factors affect the achievement of justice?

A
  • Prevent person from understanding rights
  • Struggle to communicate in court/defend one’s self
  • Unable to reach services/information
45
Q

What are some Cost factors?

A
  • Legal representation costs

- VCAT costs

46
Q

What are some Time factors?

A
  • Court blockages
  • Pre-trial procedures
  • Appeal processes
47
Q

What are some Accessibility factors?

A
  • Communication barriers

- Lack of services in rural areas

48
Q

1) What are 3 recent reforms?

2) How do they achieve justice?

A

1) Use of Technology Assisted Review in Supreme Court (tech for discovery process)
2) Quicker, more cost-effective

1) Introduction of Judicial Commission of Victoria (ability to complain about judicial officers such as the judge for things like excessive delays)
2) Can lead to saved time, fairness through scrutiny of officers

1) Legal Aid Online Tool (determine if they are legible for Legal Aid + information)
2) Access to info about their rights, how to defend themselves

49
Q

What are 3 recommended reforms?

A

1) Greater Legal Aid funding (Cost)
2) Increase in Case Management (Time)
3) Improving access to interpreters (Access)

50
Q

1) What is ‘pleadings’?

2) What is its purpose?

A

1) Pre-trial procedure whereby the plaintiff and defendant clarify the issue of dispute, remedy being sought, parties claims/defences.

2)
- Ensure parties are aware of case against them
- Encourage out-of-court settlement

51
Q

1) What is ‘discovery’?

2) What is its purpose?

A

1) Pre-trial procedure whereby the plaintiff and defendant exchange copies of their evidence.

2)

  • Ensure neither party is unprepared for court
  • Determine if case can be fought successfully

VCE Legal Studies (8 decks)

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