Unit 3: AOS - Rights and Justice Flashcards
fairness - civil justice system
fair processes and a fair hearing.
- both parties should know the case against them
- dispute resolution processes should mean there are no ad/disadvantages
- ppl treated impartially w/out fear or favour
- parties should be able to understand court processes and legal terms
equality - civil justice system
- all ppl should be treated equally before the law w/ equal opportunity to present their case.
- no one should be treated differently bc of a certain characteristic or attribute
- responses should be free from bias or prejudice
access - civil justice system
- ppl should be able to understand their legal rights
- ppl should be able to pursue their claims
burden of proof
onus lies on the plaintiff to bring forward enough evidence to support their claim against the defendant
standard of proof
‘balance of probabilities’
- what is more likely to have taken place
- which party is probably in the wrong based on the evidence brought forward
representative proceedings
refer to one person initiating a claim on behalf of 7 or more people.
- shareholder class action
- product liability
- natural disaster class actions
factors to consider when initiation a civil claim
negotiation options costs limitations of actions scope of liability enforcement issues
benefits of representative proceedings
- shared cost
- greater efficiency
NEGOTIATION OPTIONS
- involves the parties interacting directly with each other with the aim of resolving the dispute.
- can be done with/without legal representation.
- may involve an impartial 3rd party (mediator).
- may involve dispute resolution bodies
role of a mediator in negotiation
assist parties in reaching their own agreement.
COSTS
- fees for legal rep
- disbursements
- adverse costs orders
- the availability of legal aid
fees for legal rep
vary depending on
- size, complexity and length of case
- court the case will be heard in
- level of expertise of the solicitor/barrister
- act as barrier for some people from pursuing claim
disbursements
- court fees; cost of filing case, cost of hearing/trial, cost of jury - mediation fees; may cost between $2,000-$20,000 a day - expert witness fees; i.e. medical experts
adverse costs orders
court may order losing case to pay fees of the winning case
availability of legal aid
little funding left for civil matters. not available to businesses, commercial and employment disputes or wills and deceased estates
LIMITATIONS OF ACTIONS
- framework set out by Limitation of Actions Act 1958 (Vic)
- plaintiff can make claim beyond allowed time but defendant required to raise defence that plaintiff is out of time
- aims to promote social cohesion;
resolving issues quickly & ensuring evidence is ready and reliable & defendant doesn’t have to face action long after wrong been committed - Vic 2015, law changed regarding sexual offences; limitations removed for victims
SCOPE OF LIABILITY
A civil wrong may include a party other than the person who directly infringed the plaintiff
- employers; vicarious liability
- insurers
- persons involved in wrongdoing
extent of liability - if the defendant is completely or partially liable for civil wrong. defendant may claim contributory negligence
ENFORCEMENT ISSUES
- warrant of seizure and sale
- attachment of debts
- attachment of earnings
purposes of CAV
*aims to resolve matters effectively and efficiently to ensure consumer or tenant is adequately compensated for their loss AND the trader or landlord stops inappropriate behaviour.
- advises Vic government on Consumer Legislation
- provides info & guidance to educate ppl on Consumer Laws
- enforces compliance of Consumer Laws
- provides dispute resolution processes for consumers and traders, landlords and tenants
appropriateness of CAV
- within the jurisdiction
- likelihood of dispute being settled
- alternative ways of resolving dispute
purposes of VCAT
- provide Victorians with a low cost, accessible, efficient and independent tribunal
- aims to be accessible, fair and impartial
- LOW COST;
filing a claim, no hearing fees for some claims, no pre-trial procedures, parties can represent themselves - ACCESSIBILITY;
put in place telephone and video conference options, less formal than courts - EFFICIENCY;
aims to reduce waiting times and increase technological efficiency - INDEPENDENCE;
members are independent, act unbias. VCAT supported by CSV which is independent of parliament and government
appropriateness of VCAT
- exclusive jurisdiction
- better ways to resolve dispute
- cost
- possibility of negotiation or mediation
- complexity of case
- informality of VCAT compared to courts
- VCAT doesn’t have ability to create precedent
purposes of pleadings
- ensure procedural fairness
- give court written record
- assists parties in reaching out of court settlement (each party must state material facts and particulars of their claim/defence)
purposes of discovery of documents
- disclose/reveal all relevant documents ensuring fairness
- reduce element of surprise
- determine strength of opposing case
- ensure all parties & the court have relevant materials and documents
- assist in reaching out-of-court settlement
