U3 AOS2 The Australian Civil Justice System (1) Flashcards
Fairness
Treatment or behaviour without favouritism or discrimination-free from bias or injustice with impartial processes in place so all parties receive a fair hearing. Parties in a legal case should also have an opportunity to know the facts of the case and have the opportunity to present their side of events.
Equality
The state of all people being treated equally before the law, especially in status, rights, or opportunities. In addition, both parties should have an equal opportunity to present their case without advantage or disadvantage.
Access
Access means making legal procedures available to everyone (e.g., institutions that provide legal advice, information, or assistance). It is ensuring that everyone has access to the law in light of any and all disadvantaged they may face (e.g., financial). In addition, individuals in society including accused persons, victims of crime and witnesses giving evidence in a trial understanding legal rights and an ability to peruse their case.
On the balance of probabilities
The standard of proof in civil disputes rests on the plaintiff in a civil dispute to prove that the defendant was more probable or likely than not to have committed the version of facts accused of.
Civil law
An area of law that defines the rights and responsibilities of individuals, groups and organisations in society and regulates private disputes. Concerned with resolving disputes between two parties to rectify wrongs and not to punish the offender but to compel the wrongdoer to make good on what they have done.
Civil liability
The legal responsibility of a party for harm or loss caused to another party because of a breach of civil law.
Representative proceeding or class action
A single civil action or proceeding in which seven or more people claiming a loss have claims against the same party that arise out of the same or related facts or circumstances. The lead plaintiff represents the group in the proceeding and the group members are the people who are part of the action and will either chose to opt in or out of the proceeding.
Describe three benefits of representative proceedings or class action lawsuits
Enable costs to be shared amongst the plaintiffs, providing them with greater access to the legal system, which is especially useful if the claims are for a large amount;
Instead of hearing several similar disputes individually, the courts can save time and money by hearing these disputes together;
A litigation funder may be prepared to pay the legal costs associated with a representative proceeding, enabling greater access to the legal system for individuals who may otherwise not be able to afford to pursue their claim;
List three examples of possible representative proceedings or class action lawsuits?
If there is a chemical spill and a group of workers suffer from poisoning (e.g., workplace accidents);
If one doctor operates without a licence on multiple patients (e.g., medical malpractice);
Assume a bank charges thousands of customers a small fee for financial advice that the bank did not provide (e.g., financial malpractice);
Negotiation
When the parties to a civil dispute (with or without their legal representation present) discuss ways to resolve the dispute by agreement or have their legal representatives negotiate. A party can also make an offer at any stage in the pre-trial procedures and the trial as long as an agreement occurs before a final court decision is made. Community institutions (e.g., VCAT or the Dispute Resolution Centre of Victoria) can assist with negotiation, or parties can directly negotiate with each other.
When are negotiation options appropriate?
When both parties consent to the option;
Parties want to negotiate before they consider court action;
Parties want reduced costs, time delays and stress;
Parties would like some control over the outcome;
When are negotiation options inappropriate?
One party won’t consent to the negotiation option;
There is a history of violence or animosity between parties or an imbalance of bargaining power (e.g., parents vs international company);
Parties have already tried and failed to negotiate;
List the factors to consider when initiating a civil claim
Negotiation options, costs, limitation of actions, enforcement issues, and the scope of liability.
Legal representation
Legal representation is employed to advise them on whether they are entitled to a legal remedy for their injury or loss, prepare legal documentation to commence proceedings; and represent them in court if the matter proceeds to trial.
Costs
The amount of money that has to be paid to resolve a legal dispute. Broadly, the more complex a legal dispute and the longer it takes to resolve, the greater the cost to the parties.
Remedy
Any order made by a court that is designed to address a civil wrong or a breach. A remedy should provide a legal solution for the plaintiff for a breach of the civil law by the defendant and restore the plaintiff to the position they were in before they were wronged, or their rights were breached.
Damages
An amount of money that the court or tribunals order one party to pay another party as compensation.
Why do costs need to be considered when initiating a civil claim?
Many people are ineligible for the limited legal aid resources available for civil matters. Costs can dissuade people from seeking justice through the courts. An extensive pre-trial procedure will significantly add to the costs too.
Provide three examples of costs
Employing legal advice and representative. In general, the best legal advice and representation are the most expensive;
Disbursement costs, such as filing documentation that commences proceedings, mediation fees, expert witness fees and adverse cost orders;
If unsuccessful, the court may order them to pay some/all of the defendant’s costs adding to the financial burden of taking legal action;
Long-stop limitation period
The period of 12 years from the date of the act or omission causing death or injury in which a claim has to be brought to the defendant’s court that caused the death or injury.
Discoverable date
A date the plaintiff knew or ought to have known that the death or personal injury occurred and that the defendant caused it. The injury must also be sufficiently serious to justify the bringing of an action.
Limitation of action period
The time frame within which different types of civil actions must be commenced or initiated is stated in the Limitations of Actions Act 1958 (Vic).
Provide three reasons for the limitations of actions
One reason a limitation of actions is imposed on the plaintiff is so the defendant does not fear an action being commenced against them for a significant or indefinite amount of time;
Imposing a limitation of action is so the evidence is not lost as people may not remember what happened if a civil action is taken after a substantial delay;
As civil cases should be brought to court in a timely manner, this ensures disputes can be resolved in a timely manner;
What are the exceptions to the limitation of actions?
Applications for extensions can be made if the plaintiff has suffered a disability, personal injury, or defamation;
The Limitation of Actions Amendment (Child Abuse) Act 2015 (Vic) states that time limitation laws do not apply to injuries for sexual, physical, or psychological abuse that arise from the sexual, physical, or psychological abuse of a minor as the trauma of child abuse can prevent victims from seeking redress for the suffering they have caused, and so the law needs to account for this;
