Unit 3 AOS2 Part 1 - The Victorian Civil Justice System

Question 1

Standard of Proof

Answer 1

The degree to which the facts of a case must be proven is based on the balance of probabilities in a civil trial.

Question 2

Burden of Proof

Answer 2

The party whose responsibility it is to prove the facts of the case, rests with the plaintiff unless the defendant issues a counterclaim.

Question 3

Cost Considerations

Answer 3

The plaintiff should consider the court fees, legal representation and adverse court fees if they lose. Mediation can decrease the costs as they are shared.

Question 4

Limitation of Actions (Limitation of Actions Act 1958 (Vic))

Answer 4

A restriction on the time limit in which the plaintiff must commence their civil action in court, after which the plaintiff is generally unable to bring a civil action. Defamation (1 year), Negligence (6 years), Breach of Contract (6 years), Personal Injury (3 years.

Question 5

Enforcement Issues

Answer 5

A problem that the plaintiff may need to consider regarding the defendant’s ability to fulfil their legal obligation to compensate the plaintiff, they may be unemployed, bankrupt, in prison or overseas.

Question 6

Fairness

Answer 6

All people can participate in the justice system and its processes should be impartial and open.

Question 7

Equality

Answer 7

All people engaging in the justice system and its processes should be treated in the same way, unless this creates a disadvantage in which measures should be taken.

Question 8

Access

Answer 8

All people should be able to engage with the justice system and its processes on an informed basis.

Question 9

Mediation

Answer 9

A non-judicial dispute resolution method involving an independent third party, the mediator, facilitates discussion. The mediator does not suggest solutions, and the resolution is not legally binding, all courts can order mediation alongside VCAT if the case is between $500-$10,000.

Question 10

Conciliation

Answer 10

A non-judicial dispute resolution method involves a third party, the conciliator, who possesses specialist knowledge and can offer non-binding suggestions. Courts and VCAT can utilise concilitation.

Question 11

Arbitration

Answer 11

A non-judicial resolution method involves an independent third party, the arbitrator, who listens to parties present their evidence and makes a binding decision. Often used by companies in contractual disputes, legally binding. Must be used by the Magistrates for hearings below $10,000 and VCAT can order while County and Supreme can suggest but not order parties to attend.

Question 12

Reasons for the Victorian Court Hierarchy in Civil Disputes

Answer 12

Administrative convenience and appeals

Question 13

Administrative convenience

Answer 13

The systematic benefit derived from legal matters being distribute amongst the courts according to their complexity, allows resources to be spread according to the needs of a case.

Question 14

Appeals

Answer 14

The legal process that allows a dissatisfied party to pursue the court decisions reviewed by a higher court.