Unit 3 AOS 2

Question 1

burden of proof in a civil case

Answer 1

• the responsibility of a party to prove the facts of the case
• lies with the person bringing the claim to court- the plaintiff.

Question 2

standard of proof in a civil case

Answer 2

• the strength of evidence required to prove liability
• the balance of probabilities in a civil claim.
• plaintiff must prove that they are most likely in the right, and the defendant is most likely in the wrong.

Question 3

factors to consider before initiating a civil claim

Answer 3

• costs
• limitation of actions
• enforcement issues

Question 4

costs involved in initiating a civil claim

Answer 4

FEES FOR LEGAL REPRESENTATION
depends on:
- complexity of the case & time it will take
- the court where the matter will be held
- the size of the case (witnesses, evidence, documents)
- expertise of legal practitioners
DISBURSEMENTS
- out of pocket expenses such as court fees (hearing & filing fees) & mediation fees ($2000-$20000), fees for expert witnesses & costs with using technology
ADVERSE COST ORDERS
- the successful party should receive an order that their costs are paid by the losing party
- the fear of having an adverse costs order can deter parties from initiating a claim

Question 5

things a plaintiff should consider before initiating civil claim (costs)

Answer 5

• how much it will cost to have the dispute resolved & whether they have the money to pay those costs
• whether the potential damages outweigh the costs involved
• whether they can afford to pay the defendants costs if an adverse costs order is made

Question 6

limitation of actions

Answer 6

the restriction placed on the time within which a civil action can be commenced.
- defamation claim = 1 year
- claim for breach of contract = 6 years
limitations are imposed so that:
- the defendant doesn’t have to face an action after a significant amount of time
- evidence is not lost & people remember what happened
- disputes can be resolved quickly to promote social cohesion

Question 7

enforcement issues

Answer 7

• the plaintiff must consider whether a defendant is willing and able to pay the settlement or remedy
• even if the defendant is able to pay, the plaintiff may have to issue enforcement proceedings to force defendant to comply with the remedy

plaintiff may need to consider:
- the defendant may not have assets or money
- the defendant may be in jail
- if the defendant is a company, they may not have assets

Question 8

mediation

Answer 8

method of dispute resolution that uses an independent third party to help disputing parties reach a resolution
- the parties discuss the issues, consider options and reach an agreement through negotiation
- the mediator does not interfere, just aids discussion between the parties in reaching their own resolution
- the mediator doesn’t make any decisions, and the agreement reached is not binding on the parties
- parties can enter a terms of settlement
benefits:
- less formal than a courtroom, therefore less stressful & intimidating
- much faster, saves resources & is therefore cheaper
- allows the parties to come to a settlement on their own, with the assistance of a mediator to help them reach a resolution

Question 9

conciliation

Answer 9

• method of dispute resolution, which uses an independent third party to assist the parties in reaching a resolution through negotiation & compromise
• the conciliator listens to the facts, makes suggestions about possible resolutions and assists the parties in reaching an agreement
• conciliator has more influence over the outcome than mediator, as they have specialist knowledge and make suggestions during the process
• parties can agree to enter a terms of settlement after reaching their decision
• primarily used by CAV and VCAT

Question 10

appropriateness of mediation & conciliation

Answer 10

whether mediation or conciliation is appropriate will depend on the nature of the dispute and the parties
things to consider:
- whether the relationship between the parties will continue- mediation may preserve relationship
- whether the parties are willing to reach a decision through compromise and stick to the agreement
- whether there is history of violent or threatening behaviour between the parties
- whether the parties want the matter sorted privately, or they want a public record of the matter
- whether there is a gross imbalance of power

Question 11

arbitration

Answer 11

method of dispute resolution where an independent third party (arbitrator) is appointed to listen to both sides of the dispute and make a decision that is legally binding on the parties
- often conducted in private, and is less formal and more cost effective than court proceedings
available when:
- the parties have agreed to settle their dispute by arbitration
- the court orders the parties to arbitration
- the claim has been filed in the mag court and the plaintiff is seeking $10000 or less, in which case the court will use arbitration

Question 12

appropriateness of arbitration

Answer 12

whether it is appropriate will depend on the nature of the dispute & the parties
things to consider:
- whether the parties have agreed to arbitration, and the claim is less than $10000 and has been issued in the magistrates court
- whether the parties want a binding & enforceable decision made by a third party, or they would prefer to reach an agreement on their own
- whether the parties want the dispute resolved privately and confidentially, or whether they want a public record of what occurred

Question 13

reasons for court hierarchy

Answer 13

• appeals
• administrative convenience

Question 14

administrative convenience

Answer 14

• court hierarchy means that cases can be distributed according to their seriousness & complexity. less serious & complex cases are heard in lower courts, while more complex are heard in higher courts.
• by being part of the court hierarchy, the county and supreme courts can easily manage the allocation of time & resources for longer more complex cases

Question 15

appeals

Answer 15

• someone who is dissatisfied with a decision in a civil trial can take the matter to a higher court if there are grounds for appeal
• without court hierarchy, there would be no higher court to review a decision which has made an error

Question 16

grounds for appeal

Answer 16

• a point (question) of law- where the law has not been correctly applied
• a question of fact- whether the facts of the case had been applied appropriately to reach the decision
• the remedy awarded- the way in which a court enforced a right, or the order that was made

Question 17

principle of justice- fairness

Answer 17

means that all people can participate in the justice system & its processes should be impartial & open
factors:
- impartial processes
- no apprehended bias
- open processes (open to the public)
- participation:
> opportunity to know the case put against them & present their case
> use of an interpreter
> no delays

Question 18

principle of justice- equality

Answer 18

means that all people engaging with the justice system should be treated in the same way. if the same treatment causes disadvantage, adequate measures should be put in place to allow everyone to engage without disparity or disadvantage
- formal equality (same treatment)
- substantive equality (diff treatment)

Question 19

principle of justice- access

Answer 19

people should be able to engage with the justice system on an informed basis
- engagement:
> range of resolution methods
> physical access
> no delays
> financial access
- informed basis:
> education
> information
> legal services
> representation

Question 20

impact of time on the civil justice system

Answer 20

• if a dispute takes a long time to be heard, it can become unfair to the parties
• delays can cause stress, wasted time, inconvenience & add to costs
  –> can cause people not to pursue a claim, limiting participation
• factors that impact how long it takes for a case to be heard:
  > backlogs- delay in obtaining a hearing date
  > pre-trial procedures- can be complex and lengthy (discovery, pleadings), addressed by case management
  > evidence gathering & preparation- the time it takes parties to get a case ready for hearing

Question 21

measures to reduce delays

Answer 21

• managed with the use of case management powers, which give courts greater control over cases. eg:
  > court can order that parties attend mediation
  > restrict the time for final hearings
  > limit number of witnesses
• delays can also be managed by VCAT programs, and through online methods such as online hearings.

Question 22

impact of costs on the civil justice system

Answer 22

the high costs involved with civil disputes can discourage parties from pursuing their claim
costs include:
- legal representation
- court costs & disbursements, such as engaging expert witnesses and mediators, hearing & filing fees, using a jury
- adverse costs order
> costs are the reason for the increase in self-represented parties, which reduces fairness (participation) and access (engagement, informed basis)

Question 23

measures to address costs

Answer 23

• using dispute resolution methods such as mediation, VCAT or CAV rather than courts
• resolving during pre trial procedures
• use of case management powers to narrow down the issues in dispute and ensure timely & cost effective resolution
• some organisations may provide pro bono assistance

Question 24

roles of the judge or magistrate in the civil justice system

Answer 24

• act impartially
  > oversee the case & decide on liability without bias, ensures the rule of law is upheld
• case management
  > before trial: ensure the case is ready for trial and aim to ensure timely and cost effective resolution. give directions to the parties such as to complete pre trial procedures such as mediation
  > during trial or hearing: have the power change the order in which evidence is given, limit the time for the trial and limit the number of witnesses, as well as giving directions to the jury
• determine liability & remedy
  > decide whether the plaintiff has established that the defendant is liable in cases with no jury. decider of facts
• decide on costs
  > decide which party should bear the costs

Question 25

role of the jury in the civil justice system

Answer 25

> may be required if either party requests one during the pleadings stage, or the court requests one.
extra costs involved
6 jurors
roles:
- be objective- unbiased & bring an open mind, decide on the facts
- listen to & remember evidence- concentrate & not undertake their own investigations
- understand directions & summing up- listen to the directions given by the judge
- decide on liability & in some cases, damages- whether the plaintiff has established liability and whether defendant has established any defence

Question 26

role of the parties in the civil justice system

Answer 26

• make decisions about the conduct of the case
  > party control: power of parties to decide how they run their case
• disclose info to the other party
  > must hand over relevant documents they are going to use in their case
• exchange evidence
  > lay evidence: given by a layperson about the facts in dispute
  > expert evidence: given by an expert about an area within their expertise
• participate in the trial
  > make opening & closing addresses, present their case to the judge and/or jury, cross examine the other parties witnesses- challenge credibility

Question 27

the need for legal practitioners in a civil dispute

Answer 27

legal practitioners usually prepare & conduct a case on behalf of the parties
why are they needed:
- it is difficult for a party to present their case on their own
- if one party is better represented than the other, this could lead to an unfair advantage & outcome
- a party may be too emotionally invested in a case to represent themselves

Question 28

strengths and weaknesses of legal practitioners in civil disputes

Answer 28

strengths:
- experts, help parties navigate the justice system (fairness- participation)
- they have the objectivity to make decisions in the case where the parties judgement may be impaired (access, fairness)
- help avoid delays that may arise with self represented parties (access- engagement)
weaknesses:
- some legal practitioners are more experienced than others, giving some parties an advantage (fairness- participation)
- not everyone can afford representation, leaving some parties to represent themselves (access- engagement, fairness- participation)
- the costs of lawyers can be a great expense to a party, especially if they lose and have to pay the other parties costs (access- engagement)

Question 29

class actions

Answer 29

• type of proceeding where a group of people, who all have claims against the same party, join together in a proceeding
  can only commence if:
• 7 or more people have claims against the same person, if the claims relate to the same or similar circumstances, and if the same issues need to be decided

Question 30

members of a class action

Answer 30

lead plaintiff: named the plaintiff & represents the group members
group member: member part of the class action
litigation funder: third party who pays some of the costs associated with a claim in return for a share of the money recovered
plaintiff law firm: fund smaller claims & obtain an order to charge a fee calculated as a percentage of any award or settlement

Question 31

factors to consider when deciding appropriateness of class actions

Answer 31

• whether there are 7 or more people who have a claim against the defendant
• whether a plaintiff law firm or litigation funder is prepared to fund the claim
• nature and size of the claim
• whether there is someone willing & able to be the lead plaintiff

Question 32

benefits of class actions

Answer 32

• group members are not responsible for the payment of any costs –> increases access to justice
• more efficient way of dealing with a number of claims, saves time & resources
• reduce costs for defendants, as they respond to multiple claims in the one proceeding
• litigation funders & plaintiff law firms increase access to justice, especially if no one is prepared to be lead plaintiff

Question 33

VCAT- aim and function

Answer 33

• aims to provide victorians with a low cost, accessible, efficient and independent tribunal delivering high quality dispute resolution processes
• uses mediation, compulsory conferences, and if the matter is not resolved in either of these, a final hearing
  > consists of presidents, vice presidents, deputy presidents, senior members & ordinary members

Question 34

jurisdiction of VCAT

Answer 34

residential tenancies division- disputes between tenants & landlords
administrative- professional conduct inquiries & review of gov decisions
civil- consumer matters, building works, retail tenancies
human rights- guardianship, equal opportunity, racial & religious vilification, disability matters
planning & environment- reviews of decisions made by councils or other authorities. eg. permits & taxes

Question 35

factors to consider when deciding appropriateness of VCAT

Answer 35

• whether the dispute is within VCAT’s jurisdiction
• whether parties can resolve it themselves through mediation
• the nature of the fees & whether the applicant is able to pay
• whether one of the parties would prefer the formality of a court room
• whether the matter is of a size or complexity not appropriate for VCAT

Question 36

aim and function of consumer affairs victoria (CAV)

Answer 36

• regulates consumer law. its purpose is to help ensure that victorians are informed about consumer laws and that businesses are complying with those laws
• offers dispute resolution processes over the phone, and in some cases uses conciliation
  > only accepts complaint from consumers & tenants, not businesses and landlords

Question 37

roles of CAV

Answer 37

• advises the vic government on consumer legislation
• provides info & guidance to educate people about consumer laws, including what their rights & responsibilities are, & whether there have been any changes to those laws
• enforces compliance with consumer laws
• in limited circumstances provides consumers & traders, and landlords & tenants, with a dispute resolution process

Question 38

purposes of CAV in resolving disputes

Answer 38

• to help people come to an agreement about how to resolve their disputes efficiently without any cost. allows people with small disputes about goods and services or tenancy to obtain a dispute resolution service that is not too costly or time consuming
• to try help the parties reach a resolution that is consistent with the law- over the phone or through conciliation

Question 39

CAV’s jurisdiction

Answer 39

two main types of disputes:
- disputes between purchasers & suppliers, or consumers & suppliers, about the supply of goods or services
- disputes between a tenant & landlord

Question 40

factors considered when deciding appropriateness of CAV

Answer 40

• whether the dispute is within CAV’s jurisdiction or power
• whether the consumer or tenant tried to resolve the matter themselves
• whether the complaint justifies or needs CAV’s involvement
• whether the issue is likely to be resolved

Question 41

factors considered when deciding whether there are better ways to resolve the dispute than CAV

Answer 41

• whether they will be able to reach a resolution themselves through negotiation
• whether the matter is too big or complex
• whether the dispute is best resolved by a court making a binding decision on the parties rather than them reaching their own resolution

Question 42

the use of the courts in resolving civil disputes

Answer 42

resolve disputes in a formal setting, making a legally binding decision on the parties

Question 43

factors to consider when determining whether a court is an appropriate dispute resolution body

Answer 43

• whether the dispute is within the courts jurisdiction
  > county & supreme = unlimited
  > magistrates court = upto $100 000
  > some matters are exclusive to VCAT, such as disputes involving domestic building, retail tenancies, residential tenancies & planning
• whether there are other or better ways to resolve the dispute
  parties should consider the following when deciding whether there is better methods
  > resolving the dispute themselves through negotiation or mediation, cheaper alternatives such as CAV or VCAT, whether they have access to legal representation, the formality of a courtroom, the size and complexity of the matter, etc.

Question 44

strengths & weaknesses of using the courts to resolve civil disputes

Answer 44

strengths:
- pre trial procedures allow an efficient & timely resolution, as the parties have the chance to know the case being put against them (fairness, participation, access- engagement)
- pre trial procedures such as mediation can allow the case to be resolved before going to trial in a timely manner (access- engagement)
- the court makes a binding decision, meaning it is certain and enforceable ( fairness- impartial processes)
- weaknesses:
- there is often delays due to the process of pre trial procedures, trial and delivering the decision (limit access)
- costs may restrict some peoples access, meaning people may receive different treatment due to the cost of engaging adequate representation
- court processes are difficult to understand (fairness- participation)
- the formality can be stressful
- there is no compromise or win-win situation

Question 45

civil remedies

Answer 45

• damages and injunctions
• an order made by a court which addresses a civil wrong, provides a legal solution for the plaintiff for los or injury caused by the defendant

Question 46

damages

Answer 46

an amount of money awarded to the plaintiff by the courts to compensate for loss or injury caused by the defendant

Question 47

injunction

Answer 47

a court order directing a person to undertake a specific action, or stop a specific action. they prevent further harm to the plaintiff

Question 48

compensatory damages

Answer 48

• restore the plaintiff as far as possible to the position they were in before the infringement of rights occurred
• special damages- amount to be paid by one party to another for losses that are easily quantifiable.
• general damages- amount to be paid by one party to another for losses that are not easily quantifiable.
• aggravated damages- amount to be paid by the defendant when a plaintiff has suffered extreme humiliation, embarrassment or insult

Question 49

exemplary damages

Answer 49

• very large amount awarded to show strong disapproval of the defendants conduct–> punitive
• punish and deter the defendant where conduct is malicious, violent, cruel or in disregard of the plaintiffs rights

Question 50

nominal damages

Answer 50

• a small amount of damages awarded to confirm that rights have been infringed even though losses were not substantial- upholds rights without awarding substantial damages

Question 51

contemptuous damages

Answer 51

very small amount of damages awarded to show that even though the plaintiffs claim succeeded legally, the court disapproves in moral terms- shows contempt while admitting the plaintiffs right to make a claim.

Question 52

interlocutory injunction

Answer 52

temporary injunction that is awarded quickly & in urgent circumstances where an injunction is needed ASAP

Question 53

final injunctions

Answer 53

final order on the matter, where the interlocutory injunction can become permanent

Question 54

types of injunctions

Answer 54

restrictive: prevents someone from doing something that is harming the plaintiff to prevent further harm being caused–> prohibitive
mandatory: requires someone to do something, or take steps to prevent harm. purpose is to prevent further harm being suffered. eg signing a document

Question 55

factors to consider when deciding whether injunctions achieve their purpose

Answer 55

• whether the defendant is willing to comply/ do what is ordered
• whether harm has already been suffered
• whether a restrictive/mandatory injunction alone is sufficient
• whether other orders may be required

Question 56

factors to consider when deciding whether damages achieve their purposes

Answer 56

compensatory- type of loss suffered, whether future loss was suffered, whether the damages are actually paid
exemplary- the amount awarded, ability of defendant to pay, whether the damages are known
nominal- whether loss was suffered, amount awarded, costs incurred.