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Legal Studies > Unit 3: AOS - Rights and Justice > Flashcards

Unit 3: AOS - Rights and Justice Flashcards

1
Q

fairness - civil justice system

A

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
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2
Q

equality - civil justice system

A
  • 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
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3
Q

access - civil justice system

A
  • ppl should be able to understand their legal rights

- ppl should be able to pursue their claims

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4
Q

burden of proof

A

onus lies on the plaintiff to bring forward enough evidence to support their claim against the defendant

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5
Q

standard of proof

A

‘balance of probabilities’

  • what is more likely to have taken place
  • which party is probably in the wrong based on the evidence brought forward
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6
Q

representative proceedings

A

refer to one person initiating a claim on behalf of 7 or more people.

  • shareholder class action
  • product liability
  • natural disaster class actions
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7
Q

factors to consider when initiation a civil claim

A 
negotiation options
costs
limitations of actions
scope of liability
enforcement issues
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8
Q

benefits of representative proceedings

A
  • shared cost

- greater efficiency

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9
Q

NEGOTIATION OPTIONS

A
  • 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
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10
Q

role of a mediator in negotiation

A

assist parties in reaching their own agreement.

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11
Q

COSTS

A
  • fees for legal rep
  • disbursements
  • adverse costs orders
  • the availability of legal aid
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12
Q

fees for legal rep

A

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
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13
Q

disbursements

A 
- 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
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14
Q

adverse costs orders

A

court may order losing case to pay fees of the winning case

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15
Q

availability of legal aid

A

little funding left for civil matters. not available to businesses, commercial and employment disputes or wills and deceased estates

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16
Q

LIMITATIONS OF ACTIONS

A
  • 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
17
Q

SCOPE OF LIABILITY

A

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

18
Q

ENFORCEMENT ISSUES

A
  • warrant of seizure and sale
  • attachment of debts
  • attachment of earnings
19
Q

purposes of CAV

A

*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
20
Q

appropriateness of CAV

A
  • within the jurisdiction
  • likelihood of dispute being settled
  • alternative ways of resolving dispute
21
Q

purposes of VCAT

A
  • 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
22
Q

appropriateness of VCAT

A
  • 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
23
Q

purposes of pleadings

A
  • 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)
24
Q

purposes of discovery of documents

A
  • 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
25
Q

purposes of exchange of evidence

A
  • reduces element of surprise
  • determine strength of opposing case
  • determine likelihood of success
  • opportunity to rebut other side’s case
  • defendant can understand amount of damages plaintiff is seeking
26
Q

reasons for a court hierarchy

A
  • administrative convenience

- appeals

27
Q

administrative convenience

A
  • allows courts to be ranked according to complexity and severity
  • Magistrate’s court has power to hear civil cases up to $100,000 but has no appellate jurisdiction
  • County and Supreme Courts hear longer, more complex cases
  • court hierarchy allows for these cases to be heard by judges with more expertise
28
Q

appeals

A
  • reduces time and cost as Court of Appeal and High Court have ability to determine special leave application on the papers w/out need for hearing
  • hierarchy ensures a system where a decision can be reviewed by a more superior court

GROUNDS FOR APPEAL;

  • a point of law
  • a question of fact
  • remedy rewarded

Legal Studies (3 decks)

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