UNIT 3 AOS 2 Flashcards
Parties in civil disputes:
Plaintiff and defendant
Plaintiff:
party who alleges their rights have been infringed who commences the civil action
Defendant
party alleged to have infringed the rights of the plaintiff
Standard of proof
on the balance of probabilities
Adjudicator:
Judge/jury for liability or remedy
Outcomes of civil cases:
Remedy (damages/injunction)
Key principles in the Victorian Civil Justice System:
Burden of proof, standard of proof
Burden of proof in civil cases:
Responsibility on one side to establish the facts of the case. (lies with plaintiff)
Standard of proof:
Strength of evidence needed to establish the case.
Factors to consider before initiating a civil claim:
Costs, limitation of actions, enforcement issues
Cost factors to consider:
Legal representation (nature + complexity of case, expertise of lawyer, etc.)
Disbursements (court fees, mediation fees, etc.)
Limitation of actions:
Time limit within a civil action must be started.
Tort laws:
Nuisance, defamation, negligence, trespass
Enforcement issues:
If plaintiff succeeds in a civil action, an order or some type will be made against the defendant. (Plaintiffs need to consider whether if such an order is made, they can enforce the order)
Principles of justice:
Fairness, equality, access
Fairness:
Both parties should have the advantage to present their case (should not disadvantage other party)
Factors of fairness in civil justice system:
Extent of delays, if parties have legal representation, understanding of the case
Equality:
All parties treated equally before the law with an equal opportunity to present their case (free from bias)
Factors of equality in civil justice system:
Impartiality of judge/jury, ability to use the system, if system causes disadvantage
Access:
People understand their legal rights and can pursue their claims in the legal system (able to use courts/tribunals, institutions to get aid)
Factors of access in the civil justice system:
Availability of means to solve dispute, availability of legal assistance
Alternative dispute resolutions:
Mediation, conciliation, arbitration
Mediation
Impartial third party which facilitates discussion between parties and CANNOT make suggestions.
Features of mediation:
Parties reach their own solution, not binding
Conciliation:
Cooperative method used to solve disputes, proposes possible solutions
Factors of conciliation:
Parties reach their own decision, come to terms of settlement
Mediation and conciliation are appropriate IF:
Parties prepared to compromise, seek privacy, flexibility
Mediation and conciliation are NOT appropriate if:
Parties not willing to work cooperatively, imbalance of power
Strengths of mediation and conciliation:
Less formal, cheaper, flexible with outcome
Weaknesses of mediation and conciliation:
Parties may compromise too much, may not be resolved, waste of resources
Arbitration:
Involves a third person, listens to evidence of both sides to the dispute and makes a binding decision
Appropriate to use arbitration IF:
Parties agree, seeking binding and enforceable awards, want confidentiality
NOT appropriate to use arbitration if:
Parties wish to retain control, want publicity, want even more formal rules
Strengths of arbitration:
Binding, enforceable,, arbitrator has expertise
Weaknesses of arbitration:
No control over outcome, slow and expensive, limited rights of appeal
The reasons for the Victorian court hierarchy
Appeals, administrative convenience
Parties unhappy with a civil court decision can appeal to a higher court based on:
Point of law – party claims that law/legal principle has been incorrectly applied
Question of fact – version of facts accepted by the court is claimed to be incorrect
Remedy awarded – party is dissatisfied with an aspect of the remedy
Administrative convenience:
Cases are allocated to courts based on the size and complexity.
Administrative convenience achieves FAIRNESS as:
Having appeals allows pursuing the case further if treated without impartiality
Administrative convenience achieves EQUALITY as:
If things feel not equal, you can pursue this further
Administrative convenience achieves ACCESS as:
Administrative convenience ensures greater timeliness
Administrative convenience does NOT achieve EQUALITY as:
Not everyone has access to experienced judges
Administrative convenience does NOT achieve ACCESS as:
Appeals make it more financially difficult to pursue
Responsibilities of a judge/magistrate
Act impartial, case management, determine liability or remedy, decide on costs
Similarities of judges in criminal and civil cases:
Expected to act impartially and without bias
Has the role of assisting a self-represented party if one of the parties is not represented (to an extent)
Has the role of instructing a jury and giving directions to the jury
Differences of judges in criminal and civil cases:
Differences
A judge will decide on liability in civil trials if there is no jury, however a judge in higher courts will not decide guilt in a criminal trial – this is left to the jury
A judge may have to determine a remedy in a civil trial, however a judge in a criminal case will decide the sanction if the accused is guilty
A judge/magistrate can order parties to undertake procedures such as mediation in civil trials, but this does not extend to criminal cases
What is discovery:
Pre-trial procedure
Strengths of judges and magistrates:
impartial, expertise in certain aspects, significant case management power
Weaknesses of judge/magistrate:
Delays if not actively involved, cannot interfere excessively, lack of general diversity
Responsibilities of the jury:
Be objective, listen and remember evidence, understand direction, decide on liability (verdict)
Similarities of jury in civil and criminal cases:
Expected to be impartial, listen to evidence, comply with obligations
Differences of jury in civil and criminal cases:
Jury decides on LIABILITY in civil cases, standard of proof which jury determines guilt
Strengths of the jury:
Randomly chosen, allows community to participate in civil justice system, collective decision-making
Weaknesses of the jury:
Unconscious biases can be formed, civil trials are complex, result in further delays
Responsibilities of parties:
Make decisions about conduct of case, disclose information to other party (discovery), willing to participate in trial
Similarities of the parties in civil and criminal trials:
Ongoing disclosure obligations, both parties have the opportunity to present case, must cooperate
Differences of the parties in civil and criminal trials:
Ongoing discovery obligation, party control does not extend to many parts of criminal trial
Need for legal practitioners:
Parties may not know how to present their evidence most effectively or how to cross-examine a witness, may be too emotionally invested
Strengths of legal practitioners:
Expertise, objectivity in decision-making, help avoid delays
Weaknesses of legal practitioners:
Not all at same level of experience, not able to afford legal representation
Class actions:
(AKA Representative proceeding) 7 or more people have claims against the same party
Who commences class actions?
Lead plaintiff, group members do not actively participate in comparison to lead plaintiff
Costs of class actions:
If class action fails, lead plaintiff is responsible for costs and any potential adverse costs over
Strengths of class actions:
Group members are not responsible for costs, more efficient to deal with claims (not multiple), reduce the costs of defendants
Weaknesses of class actions:
Large cost burden on lead plaintiff, takes up resources and time, class action lawyers can take advantage
Consumer Affairs Victoria:
Provides guidance and education people about consumer law, rights and responsibilities
Purpose of Consumer Affairs Victoria:
Help people come to an agreement about how to resolve their disputes efficiently without any cost to them
Jurisdiction of Consumer Affairs Victoria: (whos case do they handle?)
Disputes between purchasers + suppliers or consumers + suppliers about the supply/possible supply of goods + services
Strengths of Consumer Affairs Victoria:
Conciliation service is free, informal, ensures procedural fairness
Weaknesses of Consumer Affairs Victoria:
Assistance is limited, no power to compel parties to undergo conciliation, no power to enforce decisions
Victorian Civil and Administrative Tribunal (VCAT)
Help people come to an agreement about how to resolve their disputes efficiently without any cost
Purposes of VCAT:
Low costs, accessible, efficient, independent
Strengths of VCAT:
Cheaper than court, informal atmosphere, flexibility ensures fairness + equality
Weaknesses of VCAT
Too informal does not allow truth to come out, not a court, decisions can only be appealed on point of law
Appropriateness of the courts:
Whether dispute is in the courts’ jurisdiction
Whether there are other ways to resolve dispute
Strengths of the courts:
Pre-trial procedures allow parties to reach settlements, ensure more efficient and timely solution, fairness
Weaknesses of courts:
Delays experienced due to pre-trial procedures, costs in having disputes limit access to justice, do not allow compromise
Types of damages:
Compensatory, exemplary, nominal, contempuous
Aim of compensatory damages:
Aims to restore party whose rights have been infringed to position they were in before the wrong occurred
Compensatory damages:
compensate for current and future losses (general, specific, aggravated)
Exemplary (punitive damages)
Court intends to punish the defendant for extreme infringement of rights
Nominal damages
Small amount of money may be awarded by way of damages
Contemptuous damages
Court/tribunal may feel that the plaintiff has a legal right to damages, (but no moral right)
Injunctions:
restrictive, mandatory
Restrictive injunctions (prohibitory injunction)
Form of remedy that requires a person to refrain from doing something
Mandatory injunctions
Requires a person to do a particular act
