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Legal notes > Unit 3 AOS 2 > Flashcards

Unit 3 AOS 2 Flashcards

1
Q

What is the purpose of civil law?

A

To protect the rigthts of indivduals and to restore the injured party back to their original position prior to the infringement via a remedy

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2
Q

What is the relevant legislation for civil law?

A

The Civil Procedure Act 2010 (Vic)
The Charter of Rights and Responsibilities Act 2006 (Vic)

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3
Q

What is the plaintiff?

A

The plaintiff is the person that believes their rights have been infringed and as a result has suffered damage

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4
Q

What is the defendant?

A

The defendant is the person/organisation that the plaintiff has alleged to have infringed their rigths or caused damage or wrong doing

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5
Q

Who has the bruden of proof in civil cases?

A

The plaintiff has onus of proof

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6
Q

What is the standard of proof in civil cases?

A

The standard is on the balance of probabilities

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7
Q

Juries in civil cases

A

There can only be a max of 6 jurors and the party that requests them must be able to pay for them
Cannot decide damages for defamation trials

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8
Q

What is liability?

A

An outcome where the courts find that the defendant is responsible for causing the infringement as a result of their acts or omissions

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9
Q

What is vicarious liability?

A

The legal responsibility of a third party for the wrongful acts of another because employers have a right, ability and duty to control the duties of their employees

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10
Q

What are representative proceedings?

A

A claim intitiated by the plaintiff on their own behalf and on behalf of group members where the claim arises out of similiar or related legal interests and there must be a minimum of 7 members

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11
Q

What is limitation of actions?

A

Limitation of actions is the time period or limits that applies from when the damage occurred to the plaintiff and when the legal action is initiated however courts do have discretion to extend these time periods

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12
Q

What legislation is relevant to limitation of actions?

A

The Limitation of Actions Act 1958 (Vic)

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13
Q

What are the specific time periods for limtitations of actions?

A

For breaches of contract it is 6 years, for torts it is 6 years, for personal injury torts it is 3 years and for defamation it is 1 year

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14
Q

What are the purposes of limtiations of actions?

A

The purposes of imposing time limits on certain civil matters is to ensure the availability of witnesses and documentation, prevent actions from being intitiated after a substantial period of time and to ensure the plaintiff acts within a timely manner to resolve disputes

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15
Q

What are negotiation options?

A

Negotiation options refers to the methods parties should consider that allow them to negotiate their desired outcomes rather than involving an adjudicator

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16
Q

What are the purposes of negotiation options?

A

The purposes are to allow parties to be in control of their desired outcomes, maintain an ongoin relationship with the opposing party, saves time and costs as they are normally cheaper and quicker and can take place in a more informal space

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17
Q

What are the costs of pursuing a claim?

A

Costs of purusuing a claim refers to the fact that parties in a civil dispute must bear their own costs of the action and they must consider wether these costs outweigh the remedy recieved

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18
Q

What are the puposes of costs of pursuing a claim?

A

The purposes of considering costs is to determine how much the action will cost, will the cost be recovered and will the defendant be able to pay the costs

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19
Q

What is scope of liability?

A

Scope of liability refers to determining wether the defendants actions or omissions caused the harm that led to the plaintiffs damage

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20
Q

What are the purposes of scope of liability?

A

The purposes of scope of liability are to determine wether the plaintiff is taking legal action against the correct parties that caused the loss, to determine wether the defendant is liable based upon the basis of the claim and to determine wether there are other possible defendants

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21
Q

What is scope of liability regarding employers, insurers and people involved in the wrong doing?

A

Depending on the basis of the plaintiff’s claim, they may take legal action against the defendant’s employers, their insurers and others involved in the wrong doing

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22
Q

What is an employers scope of liability?

A

Employers may become vicariously liable for the actions of their employees if the employee commits the wrong doing whilst employed and in the course of their employment when the matter occured, there must be some connection between the act and the employment

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23
Q

What is an insurers scope of liability?

A

Insurers can be sued if the insurer has agreed to provide compensation to the insured if they have suffered a form of loss

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24
Q

What is a person involved in the wrong doing’s scope of liability?

A

A person involved in the wrong doing can be sued if they aided, abetted, urged, conspired or were directly involved in the wrong doing

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25
Q

What are enforcement issues?

A

Enforcement issues are factors that the plaintiff needs to take into consideration when pursuing a civil case because the outcome or agreement that is decided may not be able to be enforced

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26
Q

What are the purposes of enforcemnet issues?

A

The purpose of considering enforcement issues are to determine wether the matter is worth pursuing and if so in what environment and which method to use, determine wether legal fees, disbursement fees will exceed the amount awarded by the courts and determine wether the court can compel the defendant to follow through with the order

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27
Q

What are the types of orders used for enforcement issues?

A

The warrant of distress, a garnishee order, an attachment of earnings and bankruptcy and liquidation

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28
Q

What is Consumer Affairs Victoria?

A

CAV is an independent, government, statutory body created to regulate, monitor and educate consumers on their rights, and obligations of businesses

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29
Q

What is the legislation regarding CAV?

A

The Australian Consumer Law and Fair Trading Act 2012 (Vic)

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30
Q

What are the purposes of CAV?

A

The purposes of CAV are to assist Victorians in being responsible consumers and educating them on their rights and obligations, to ensure that business abide by consumer laws and to provide consumers with avenues to exercise their rights

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31
Q

What is CAV’s jurisdiction?

A

CAV only has jurisdiction to hear certain types of disputes and these include disputes between consumers and businesses regarding goods and sevices provided, landlords and tenants regarding rental properties, disputes regarding sale of property with regards to real estate agents, auctions or private sales, disputes between seller and purchaser with regards to the sale of cars, disputes that involve building and renovation of property and disputes that involve tenants within retirement villages

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32
Q

What is the criteria to acces CAV?

A

The matter must fall within CAVs jurisdiction, the parties must have attempted self help, there must be a reasonable likelihood of success and neither VCAT or courts have been involved in the dispute

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33
Q

What are the compliance powers of CAV?

A

The compliance powers of CAV are educating the business/warning letters, infringement notices, public statements, enforceable undertaking, disciplinary action, civil proceedings and criminal prosecution

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34
Q

What is the Victorian Civil and Adminstrative Tribunal?

A

VCAT is a statutory, independent government body that was established in 1998 in order to hear minor civil disputes

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35
Q

What is the legislation regarding VCAT?

A

Victorian Civil and Administrative Tibunal Act 1998 (Vic)

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36
Q

Who can take their matter to VCAT?

A

Anyone can take their matter to VCAT provided their matter falls within its jurisdiction and the applicant is the person applying to have their matter heard and the respondent is the person responding to the claim

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37
Q

What are the 5 divisions of VCAT?

A

The Human Rights Division, the Planning and Environmental Division, the Civil Division, the Administrative Division and the Residential Tenancies Division

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38
Q

What does the Human Rights Division of VCAT include?

A

It involves the Guardianship list and the Human Rights list

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39
Q

What does the Planning and Environmental Division of VCAT include?

A

It involves the Planning and Environmental list

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40
Q

What does the Civil Division of VCAT involve?

A

It involves the Building and Property list, the Civil Claims list (unlimited jurisdiction on goods and services) and the Owners and Corporations list

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41
Q

What does the Administrative Division of VCAT involve?

A

It involves the Legal Practice list and the Review and Regulation list

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42
Q

What does the Residential Tenancies Division of VCAT involve?

A

It involves the Residential Tenancies list

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43
Q

What is the purpose of VCAT?

A

The purpose of VCAT is to provide indiviudals with a low-cost, accessible, efficient and independent avenue to resolve their disputes

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44
Q

How does VCAT resolve disputes?

A

VCAT resolves disputes through free mediation, compulsory conferences which identify and clarify the details and issues of the case and hearings/arbitration which is the most formal setting and involves a VCAT member

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45
Q

What are the outcomes of VCAT decisions?

A

The outcomes include requiring one party to pay money, restore goods, undertake work, vacate a property, vary or cancel a contract and dismiss a claim

46
Q

What are pre-trial procedures regarding civil cases?

A

Pre-trial proceedings are a set of hearings and processes that must take place in a civil dispute that is filed in the County or Supreme court

47
Q

What legislation is relevant to civil pre-trial procedures?

A

The Civil Procedures Act 2010 (Vic)

48
Q

What is a letter of demand?

A

A letter of demand is a letter sent from the plaintiff (usually via their solicitor) to the defendant advising them that legal proceedings will be initiated unless an agreement is reached

49
Q

What are the purposes of a letter of demand?

A

The purposes are to establish the nature of the plaintiff’s claim and remedy sought, to indicate a time limit where the defendant must respond, to inform the defendant that a writ will be issued and served if they fail to respond and to enable an early settlement without litigation

50
Q

What is a writ?

A

A writ is a formal document that is the beginning of the litigation process and is issued to the defendant and also to the Supreme court to outline the nature and facts of the case

51
Q

What is the relevant legislation surrounding writs?

A

The Supreme Court Rules 2015

52
Q

What are the purposes of writs?

A

The purposes are to inform the defendant that litigation has now been initiated, to outline the title of action, full names and addresses of the parties and the statement of claim, to provide timely execution of the writ and to explain the protocol for issuing the writ

53
Q

What is a notice of appearance?

A

A notice of appearance is a document that is lodged by the defendant within 10 - 42 days (depending on location of the defendant when the writ was recieved) of recieving the writ to indicate their intention to defend the claim

54
Q

What is the relevant legislation surrounding notices of appearance?

A

The Supreme Court Rules 2015

55
Q

What is the purpose of notices of appearance?

A

The purposes are to allow the defendant to chooes whether they will represent themselves or ignore the writ and to inform the plaintiff that the action will be defended

56
Q

What are pleadings?

A

Pleadings refer to a process whereby a large number of documents and information is exchanged between the plaintiff and defendant and they begin as soon as the notice of appearance is lodged e.g a statement of claim, defence/counterclaim, reply etc

57
Q

What are the purposes of pleadings?

A

The purposes are to outline the precise nature of the claim, to provide the defendant with a fair opportunity to deny, defend, admit or counterclaim, to provide both parties with insight into the opposing case and enables parties to know what evidence will be necessary, to avoid wasting court time with unnecessary questions that are not relevant to the dispute and to allow parties to weigh the strength of their case which can help them to reach an out of court settlement

58
Q

What is a statement of claim?

A

A statement of claim is the first document exchanged as part of the pleadings procedure

59
Q

What are the purposes of a statement of claim?

A

The purposes are to inform the defendant of the full details of the cause of action, to state the facts alleged by the plaintiff, to inform the defendant of the remedy being sought and to enable the court to assess if there is a reason to strike out the case

60
Q

What is a defence in regards to pleadings?

A

A defence is a document lodged by the defendant in response to the statement of claim

61
Q

What are the purposes of a defence?

A

The purposes are to allow the defendant to present their version of facts and to defend any of the claims made against them and to set out the extent to which the defendant considers they are liable

62
Q

What is a counterclaim?

A

A counterclaim is when the defendant responds to the plaintiff’s claim with their own claim

63
Q

What are the purposes of counterclaims?

A

The purposes are to provide the defendant with an opportunity to bring action against the plaintiff claiming that the plaintiff was either partly or completely responsible for the damage or injury

64
Q

What is discovery?

A

Discovery is a process that involves more information being exchanged to seek furthre clarification regarding the issue of the case

65
Q

What does discovery of documents involve?

A

Discovery of documents involve parties sending a Notice to Produce Information to each other which may include the requests to medical reports and expert witness reports, letters, emails, contracts, photographs, recordings and another documentary materials

66
Q

What are the purposes of discovery of documents?

A

The purposes are to allow parties to request more information, to inspect documents, to clarify issues, to ensure parties disclose all relevant documents in their possession, to promote timely access to dispute resolution and to promote out of court resolution and settlement

67
Q

What is discovery via interrogatories?

A

Discover via interrogatories is both parties right to request more information using written questions which are specifically limited to facts of the case which must be answered in writing in the form of an affidavit

68
Q

What are the purposes of discovery via interrogatories?

A

The purposes are to provide both parties with more detailed information, to encourage out of court settlement and to cross-check evidence given in court with that presented during interrogatories

69
Q

What is discovery by oral examination?

A

Discovery by oral examination involves one party orally examining the other party and it cannot be conducted without the consent of the relevant party and responses given must be recorded in a deposition

70
Q

What are the responsibilities of a judge during a civil case?

A

The responsibilities of the judge is to undertake case management, oversee jury selection and empanelment, decide admissibilityof evidence, enforce rules of evidence and procedure and to determine a remedy if requested to by the plaintiff

71
Q

What is the legislature surrounding the roles and responsiblities of the judge in a civil case?

A

The Civil Procedures Act 2010 (Vic)

72
Q

What are the responsibilities of the jury in a civil trial?

A

The responsibilities of the jury is to listen to and evaluate evidence, apply the law, decide fault and to award damages if requested to by the plaintiff and if not a defamation case

73
Q

What are the responsibilities of the parties in a civil case?

A

The responsibilities of the parties are to initiate legal and action and to nominate the relevant court to hear the matter, determine wether a jury will be used, complete pre-trial processes, identify the key issues that will be represented in court, research and control the evidence, the law and its presentation and determine the type of witnesses to be called

74
Q

What are the responsibilities of the plaintiff in a civil case?

A

The responsibilities of the plaintiff are to uphold the aim of the Civil Procedures Act 2010 (Vic), decide wether to abandon or initiate a claim, decide the appropriate court, undertake necessry pre-trial procedures, decide to engage legal representatin or self-represent, present opening and closing arguments, decide which evidence and witnesses to call, ensuring the evidence provided meets the standard of required and decide wether to appeal the decision within 28 days and the grounds for appeal

75
Q

What are the responsibilities of the defendant in a civil case?

A

The responsibilities of the defendant are to decide to agree, partly agree or disagree with the claims stated in the Letter of Demand, decide the method of trial, decide to engage in legal representatoin or self-represent, decide to issue a counter-claim, decide which evidence and witnesses to call, present opening and closing arguments, ensure evidence presented meets the standard of proof and if unsuccessful, pay costs and abide by court orders

76
Q

What are the responsibilities of legal practitioners?

A

The responsibilities of the legal practiotioners are to not decieve the court, represent their clients in court through preparing and presenting their case, protecting the rights of their clients by ensuring fair and equal treatment in the courtroom, researching facts and the relevant law and deciding the order and presentation of relevant materials and witnesses

77
Q

What is the civil jurisdiction of the Magistrates Court?

A

The civil jurisdiction is to hear any claims to the value of $100 000, provide binding and enforceable decisions and the only right to appeal is an appeal on point of law which will go to the Supreme Court Trial Division

78
Q

What is the civil jurisdiction of the County Court?

A

There is unlimited civil jurisdiction and it is divided into the Commercial and Common Law divisions, there are binding and enforceable decisions and there is no appelate jurisdiction

79
Q

What is the civil jurisdiction of the Supreme Court Trial Division?

A

There is unlimited jurisdiction, decisions made are binding and enforceable and appeals on point of law can be heard from the Magistrates Court and from VCAT

80
Q

What is the civil jurisdiction of the Supreme Court Court of Appeals?

A

There is no original jurisdiction however the CoA can hear appeals from the County Court, Supreme Court Trial Division and VCAT

81
Q

What are the reasons for a court hierarchy in the civil justice system?

A

Administrative convenience and Appeals

82
Q

What is administrative convenience?

A

Administrative convenience refers to the efficient use of limited financial and physical resources within the legal system which involves distributing cases based upon their complexity to reduce delays and costs

83
Q

What are appeals?

A

Appeals refer to the ability of parties to request that the outcome in their case be reviewed by a more senior judge as they believe an error has been made in the decision

84
Q

What are judicial case management powers?

A

These are powers that judges have in order to manage a case within civil law to ensure costs and delays are reduced and it includes the ability to order parties to attend a directions hearing and the power to order parties to attend mediation

85
Q

What is the power to order mediation?

A

The judge has the ability to make an order referring a civil proceeding to attend mediation, it can occur before, during or after the trial and refusal to attend can result in the case being adjourned

86
Q

What is the power to give directions?

A

Judges can give instructions to one or both parties that they believe will be appropriate in resolving their dispute and it imposes an obligation on a party to do something within a certain timeframe or it specifies how proceedings will be conducted

87
Q

What directions can be given before the trial?

A

Providing timelines to parties for any steps to be taken, participating in alternate dispute resolution methods, limiting the scope of evidence, allow a party to amend a pleading and relieving a party from the obligation to provide discovery or limiting the discovery process itself

88
Q

What directions can be given during the trial?

A

The order in which is evidence is to be given, who will go first in addressing the court, limiting the time taken by a trial, limiting the examination of witnesses or not allowing the cross-examination of particular witnesses, limiting the number of witnesses a party may call, limting the length and duration of parties submission to the court, limiting the number of documents a party can tender into evidence, wether evidence should be given orally or in writing and wether a particular party should bear the costs

89
Q

What is mediation?

A

Mediation is a process in which an impartial third party helps the parties involved to identify the issues in the dispute and facilitates discussion of possible solutions but they cannot provide a legally binding decision

90
Q

What is conciliation?

A

Conciliation involves an impartial third party who listens to both sides of and suggests ways in which the parties could resolve their dispute but they cannot provide a legally binding decision

91
Q

What is arbitration?

A

Arbitration involves an impartial third party listening to the evidence and arguments presented by both parties and making a legally binding decision

92
Q

What are damages?

A

Damages are the most common form of civil remedy and is a sum of miney that the court orders the defendant to pay the plaintiff in order to restore them to their original position

93
Q

What are the different types of damages?

A

Compensatory damages (specific, general and aggravated damages), exemplary/punitive damages, nominal damages and contemptuous damages

94
Q

What are specific damages?

A

Specific damages are awarded to compensate the plaintiff for items that can be easily calculated or measured in terms of money such as medical expenses and loss of income

95
Q

What are general damages?

A

General damages are awarded to compensate the plaintiff for the pain, suffering and loss of enjoyment of life as a result of the infringement; not easily calculated and are based on an assessment of the extent the injury has impacted the plaintiff’s lifestyle

96
Q

What are aggravated damages?

A

Aggravated damages are awarded in addition to other damages when the court feels that the plaintiff should be compenstaed further for the humiliation or emotional harm that the defendant has caused and to demonstrate the court’s dissaproval of the defendant’s actions

97
Q

What are exemplary/punitive damages?

A

Exemplary/punitive damages are awarded when the court wants to make an example out of the defendant so they will be required to pay large amounts of money

98
Q

What are nominal damages?

A

Nominal damages are awarded when the principle of the matter is for the plaintiff to recieve a ruling in their favour and they haven not suffered significant loss or harm and are not seeking significant compensation

99
Q

What are contemptuous damages?

A

Contemptuous damages are awarded to acknowledge that the plaintiff was legally correct but the court does not feel sympathetic for the plaintiff

100
Q

What are injunctions?

A

Injunctions are a court order that requires the defendant to do something or to refrain from doing something and they can be temporary or perpetual

101
Q

What are the types of injunctions?

A

Mandatory injunctions and prohibitory injunctions

102
Q

What are mandatory injunctions?

A

Mandatory injunctions require the defendant to perform a particular action

103
Q

What are prohibitory injunctions?

A

Prohibitory injunctions prevents the defendant from performing a particular action

104
Q

What are cost factors?

A

Cost factors are factors related to costs that limit people’s ability to achieve the principles of justice and they can include VCAT applications, mediation and conciliation fees, filing fees in the Mag court, disbursement costs and costs for a jury

105
Q

What are time factors/delays?

A

Time delays affect the ability of people to access the justice system and achieve justice and the principles of justice and they can include complex pre-trial procedures, lack of availability of resources and that hearings can take from 8 weeks to 12 months and more

106
Q

What are accessibility factors?

A

Cultural factors are factors such as cultural, geographical, socio-economic and vulnerability that can limit peoples ability to the justice system and can inculde language barriers and availability of limited funds to pursue a legal matter with

107
Q

What is the recent reform of Group Cost Orders in Class Actions?

A

Came into effect in June 2020 and it involves a law firm now being able to negotiate a percentage of the settlement/outcome awarded in the class action aswell as their fees for working the case

108
Q

What is the legislation relevant to the recent reform of Group Cost Orders in Class Actions?

A

The Justice Legislation Miscellaneous Amendment Act 2019(Vic)

109
Q

What is the recent reform of Fast Track Mediation and Hearing in VCAT?

A

Came into effect during 2019 and it is an expansion of the threshold for applicants to access fast-track mediation and hearings from $3000 - $10000 for Melbourne residents and from $3000 - $5000 for rural residents and it ensures that all fast-tracked disputes will be settled within a day

110
Q

What is the recommended reform of the National Justice Interpreter Scheme?

A

The NJIS is a fully funded scheme by the government that can overcome language barriers by providing a free, professional and qualified interpreter and it can provide guidelines to courts were legal/language assistance is needed

111
Q

What is the recommended reform of Enforcement of VCAT Orders?

A

Legal notes (5 decks)

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