unit 3 aos 2 sac 2b

Question 1

what is the role of the judge and the magistrates in a civil case

Answer 1

• act Impartially
  -case management ( before trial or hearing)
  -pre-trial procedures
• determine liability (if there is not jury) and the remedy
• decide on costs - which party should bear the costs.

Question 2

what are the purposes of remedies?

Answer 2

to restore the plaintiff into the position they would have been in if the breach had not occured.

Question 3

what are types of remedies

Answer 3

damages
injunctions

Question 4

what are the types of damages

Answer 4

-general damages
-specific
-nominal
-exemplary

Question 5

Definitions for specific and general damages

Answer 5

Specific damages- These are awarded to compensate the injuried party (usually the plaintiff) for items that can be calculated objectively and exactly. e.g compensation for hospital bills would be paid for however much the bills cost the plaintiff

General damages- Tese are awarded to compensate the plaintiff for pain and/or suffering. NOT EASY to calculate cause it takes into account past/present and future, e.g pain and suffering, loss of enjoyment of life, truma, loss of wages e.g MH-370 familys

Question 6

What are nominal and exemplary damages

Answer 6

Nominal damages- Are awarded by a court if the court belives that the defendant has infringed on the rights of the plaintiff, but did not suffer any loses, therefore courts award very small amount as compensation more concerned with providing a legal point e.g articles where it did not ruin somebody reputation but still ‘bad’

Exemplary damages- Where a large sum of money is awarded to the plaintiff with the aim of punishing the defendant and making an example of them for engaging in such grossly, reckless, malicious or cruel behavior, it is a punishment

Question 7

What do injunctions attempt to do

Answer 7

Try to return an injured party to a position they were in before the harm occurred, by ordering the defendant to stop the behavior that is causing harm (restrictive or to compel them to act (mandatory)

Question 8

What are restrictive injunctions

Answer 8

Stopping somebody from doing something e.g a person could apply for a restrictive to stop a Neighbour from adding an extension

Question 9

What are mandatory injunction

Answer 9

When a person wishes to compel someone to do a particular act, compel somebody to move a fence

Question 10

What are damages

Answer 10

Is an amount of money to be paid by the defendant ti the plaintiff in satisfaction of a claim made by the plaintiff (damages are only money)

Question 11

Strengths and weaknesses of a class action

Answer 11

Strengths
- Group members are not responsible for the payment of any cost, therefore increases access to civil justice system
- Much more efficent for the courts to deal with one large case then multiple smaller cases about the exact same issue therefore saving the courts time and resources
- Use of litigation funders and plaintiff law firms improve access

Weaknesses
-Class actions impose a large cost burden on a lead plaintiff if class action fails and there is no litigation funder or a ‘no win no fee’ agreement with law firm
- Even thought it avoids multiple claims the size of the class action is normally such that it takes up a large amount of the courts time and resources
- Litigation funders take a large amount of the overall remedy therefore not giving the full remedy to group members

Question 12

All types of class actions

Answer 12

• Shareholder class action
• Product liability class action (all purchased a good or service that was defective)
• Class action where employees group together
• Natural disaster class action (where group members have suffered a loss or damage because of a natural disaster )

Question 13

Similarities and differences between civil and criminal jury

Answer 13

Similarities
- Both jurys are ex[ected to be impartial when making there decision, they will decide based on facts and evidence not on pre- convinced ideas or prejudices
-Both juries have the role of ensuring they comply with their obligations which include ensure they do not undertake in any outside research or read anything about the case

Differences
- Jury in Crim trial determine guilt where as jury in civil trial determine liability
- The standard of proof is different, in a criminal trial the verdict must be made beyond reasonable doubt but in a civil trial the jury are trying to determine who is more at fault on the balance of probability’s
- A jury in a criminal trial will never deliver a sanction while in a civil trial the jury will be able to determine the remedy to the successful plaintiff

Question 14

What are class action lawsuits

Answer 14

Class action lawsuits are a type of proceeding where a group of people who all have claims against the same party join together in a proceeding to sue the wrong doers, for a class action lawsuit to happen there must be

• 7 or more people have claim agianst the same person
• The claims relate to the same similar or related circumstances
• The same issue needs to be decided (such as whether the defendant owed a duty of care to those plaintiffs)

Question 15

What are litigation funders

Answer 15

Litigation funders are a third party who pays for some or all the costs and expenses associated with initiating a claim in return for a amount of the remedy awarded, this is usually 20-30 percent of the remedy.

Question 16

What are lead members and group members in relation to class action lawsuits

Answer 16

The lead plaintiff is an individual who represents the group members as a whole and is actively involved in court documents and proceedings. Generally if the class action fails than the lead plaintiff is alone responsible for any proceeding including adverse cost orders, because of the possible cost it can deter people from being a lead plaintiff in the case (this may not always apply if there is a litigation funder or a ‘no win no fee’ policy with the law firm

Group members are people not actively involved in proceeding and/or in court documents, group members may not be know by lead plaintiff and may be unaware they are in the class action to begin with. Group members do NOT need to provide evidence or appear in court primary it is there decision to ‘opt in’ or ‘opt out’

Question 17

What is opting in and opting out of a class acting

Answer 17

This is primarly the job of the group members group members have to decide if they want to ‘opt in’/ join the class action or ‘opt out’ not be apart of the class action.

Question 18

What is consumer affair Victoria (CAV)

Answer 18

CAV is a business unit of the Victorian department of justice monitors and regulates consumer affairs , its purpose is to help Victorians make informal and responsible decisions regarding business and consumer matters

When consumers are in a dispute with a business CAV provided guidelines and assistance they only provide advice and information and cannot give a avenue of resolution or solution (Massive disadvantage)

Question 19

What is CAV’s jurisdiction

Answer 19

1. Dispute between tenant and landlord
2. Dispute between a consumer and a business

Question 20

What is VCAT

Answer 20

VCAT is one of Australia’s biggest tribunals that help sort out disputes, it was established under the Victorian civil and administrative tribunal act of 89.

VCAT always orders that the parties go to mediation before they sit at VCAT. VCAT is also very cheap a claim will only be around $70.

Question 21

What are the purposes of VCAT

Answer 21

• VCAT’s role is to provide a low cost accessible efficient and independent tribunal
• Informal processing
• Impartial and timely proceedings.

Question 22

What areas does CAV deal in?

Answer 22

-housing
-consumers and business
-licensing and registration
-clubs and fundraising

Question 23

what is the role of CAV

Answer 23

-reviews consumer legislation and industry codes and recommends change to the Victorian gov
- provides advice and education rights and responsibilities to consumers, tenants, landlords and businesses
- registers and issues licenses to businesses and occupations ( such as estate agents, motor vehicle traders, secondhand dealers and pawn brokers)
- concilliates disputes such as disputes between consumers and traders, and disputes between landlords and tenants.
-enforces compliances with consumer law
- also provides advice and information through it’s websites, telephone helpline and via social media.

Question 24

what are some factors that dictate the appropriateness of if CAV should be used.

Answer 24

• Whether dispute is in CAV’s jurisdiction, it is not appropriate if it not within CAV’s jurisdiction
• Whether the consumer is vulnerable or disadvantaged
• If the case is too complex for CAV
• If the issue is urgent

Question 25

when will CAV concilliate complaints?

Answer 25

• when it is within their jurisdiction
• there has already been an attempt to resolve the dispute
• the dispute has not been determined by, or is not pending in VCAT or the courts
• there is a reasonable likelihood of a settlement.

Question 26

what disputes can VCAT not hear?

Answer 26

• class actions
  -disputes between employers and employees
  -disputes between neighbours (unless its also a dispute about an owners corporation)
• disputes between drivers in car accidents
• disputes involving federal or state law where VCAT has not been given any power to hear the matter.

Question 28

how much does it cost to file a complaint with VCAT ?

Answer 28

if you hold a healthcare card and the claim is for under $15,000 It is free, if it is above 15,000 is it $174.90

standard fees up to $3,000 is $70 to file a claim and then keeps rising the more money you are seeking

corporate starts at 100 for claims up to $3000 and keeps rising.