U3 AOS2 The Australian Civil Justice System (1)

Question 1

Fairness

Answer 1

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.

Question 2

Equality

Answer 2

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.

Question 3

Access

Answer 3

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.

Question 4

On the balance of probabilities

Answer 4

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.

Question 5

Civil law

Answer 5

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.

Question 6

Civil liability

Answer 6

The legal responsibility of a party for harm or loss caused to another party because of a breach of civil law.

Question 7

Representative proceeding or class action

Answer 7

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.

Question 8

Describe three benefits of representative proceedings or class action lawsuits

Answer 8

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;

Question 9

List three examples of possible representative proceedings or class action lawsuits?

Answer 9

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);

Question 10

Negotiation

Answer 10

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.

Question 11

When are negotiation options appropriate?

Answer 11

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;

Question 12

When are negotiation options inappropriate?

Answer 12

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;

Question 13

List the factors to consider when initiating a civil claim

Answer 13

Negotiation options, costs, limitation of actions, enforcement issues, and the scope of liability.

Question 14

Legal representation

Answer 14

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.

Question 15

Costs

Answer 15

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.

Question 16

Remedy

Answer 16

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.

Question 17

Damages

Answer 17

An amount of money that the court or tribunals order one party to pay another party as compensation.

Question 18

Why do costs need to be considered when initiating a civil claim?

Answer 18

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.

Question 19

Provide three examples of costs

Answer 19

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;

Question 20

Long-stop limitation period

Answer 20

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.

Question 21

Discoverable date

Answer 21

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.

Question 22

Limitation of action period

Answer 22

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).

Question 23

Provide three reasons for the limitations of actions

Answer 23

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;

Question 24

What are the exceptions to the limitation of actions?

Answer 24

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;

Question 25

Enforcement issues

Answer 25

The ability to enforce the outcome of legal proceedings refers to the capacity of a defendant to fulfil their legal obligation to compensate the plaintiff if a court should hold the defendant responsible for the plaintiff’s suffering.

Question 26

Lead plaintiff

Answer 26

The plaintiff that initiates proceedings on behalf of the entire group. The resolution of this plaintiff’s claim is seen as determining the defendant’s liability for other members of the group taking action. Assume the court finds one plaintiff is legally entitled to compensation, this would have the effect of deciding that all other members of the group facing the same situation are also entitled to compensation.

Question 27

Burden of proof

Answer 27

The obligation, responsibility, or onus of a party to prove the facts of a case that usually rests with the party who initiates the action (i.e., the plaintiff in a civil dispute).

Question 28

Standard of proof

Answer 28

The strength of evidence or level of confidence required to support a case (i.e., the standard of proof in civil cases is ‘on the balance of probabilities’).

Question 29

The scope of liability

Answer 29

Refers to the causation and remoteness of damage. It requires that the defendant that was the cause of damage and that the loss or damage was not too remote. A defendant will not be liable for damage that was too remote (i.e., outside the scope of liability) even if the defendant did cause the damage. The rest of the remoteness is whether the damage suffered was reasonably foreseeable by the defendant.

Question 30

The extent of liability

Answer 30

A factor considered in whether possible defendants are wholly (i.e., 100%) or partly (i.e., anything less than 100%) responsible for the harm caused to the plaintiff. The extent of their responsibility will determine the damages and other remedies to be awarded to the plaintiff.

Question 31

On the balance of probabilities

Answer 31

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.

Question 32

List other factors to consider when initiating a civil claim

Answer 32

Likelihood of success, stress and inconvenience, defendants’ assets, and publicity.

Question 33

Adverse cost orders

Answer 33

When a party does not comply with the judges directions in the conduct of civil matter the court may direct a party to pay part or all of the other party’s costs.

Question 34

Contributory negligence

Answer 34

When a defendant claims that the plaintiff contributed to the harm caused by the defendant and if proven reduce the damages the defendant has to pay. For example, the plaintiff argues that they suffered personal injury due to being pushed by the defendant. However, the plaintiff was intoxicated. The injury would not have been as severe if they were conscious.

Question 35

What is Consumer Affairs Victoria’s (CAV) primary method of dispute resolution?

Answer 35

Conciliation