Unit 3 Outcome 2 Flashcards
Plaintiff
party who brings the case
Defendant
party who defends the allegations
Burden of Proof - Civil
Rests with the plaintiff
Standard of Proof - Civil
on the balance of probabilities
Representative Proceedings
When a group of people who have a claim based on a similar set of facts bring that claim to court in the name of one person (called a lead plaintiff)
Representative Proceedings - Criteria
- 7 or more people claiming loss
- Arising out of the same or related facts
- Identical legal issue to be decided
Representative Proceedings - Role of Lead Plaintiff (x2)
Launches the civil proceedings on behalf of the entire group
Resolution of the lead plaintiffs case determines the defendants liability for other members of the group taking action
Representative Proceedings - Benefits (x3)
- Group members can share the cost of the proceeding
- Saves time and resources within the legal system
- Sometimes third party litigation funders can pay the upfront costs (in return for a percentage of damages awarded)
Factors to Consider when initiating a civil claim
CLENS
- Cost
- Limitations of Actions
- Enforcement Issues
- Negotiation Options
- Scope of Liability
Negotiation Options
The consideration as to whether will the plaintiff and the defendant will be able to cooperate and resolve the dispute themselves rather than through the courts
Factors to Consider when initiating a civil claim - Costs (+ sources of costs x3)
The amount of money that has to be paid to resolve a legal dispute
The more complex the case -> greater the costs
Sources of Costs:
- Employing Legal Representation
- Disbursements - (fees)
- Adverse Cost Orders - (party/party costs)
Factors to Consider when initiating a civil claim - Limitation of Actions (+ purpose & examples)
Legal timeframe in which a plaintiff needs to bring their civil action.
Purpose - to ensure that cases are brought to court in a timely manner. prevents the defendant from having cases pending for an unlimited period of time
Examples:
- Defamation - 1 year
- Contract - 6 years
- Recover unpaid rent - 6 years
Factors to Consider when initiating a civil claim - Enforcement Issues (+ examples x3)
The ability to enforce the outcome of a legal proceeding
Examples:
- if the defendant is bankrupt or unemployed
- if the defendant is a company, may not have the assets to pay damages
- if the defendant is in prison or overseas, it will be difficult to enforce the payment
Factors to Consider when initiating a civil claim - Scope of Liability
Refers to how many people are liable for harm caused to the plaintiff and how responsible that party/parties are.
Required to ensure the plaintiff takes action against all the entities that are liable for their injuries
Factors to Consider when initiating a civil claim - Scope of Liability (Extent of Liability & impact on damages)
Considers whether possible defendants are wholly responsible, or only partially responsible.
Will determine the amount of damages each party will pay
Factors to Consider when initiating a civil claim - Scope of Liability (Contributory Negligence)
When the plaintiff partly contributed to their loss
Factors to Consider when initiating a civil claim - Scope of Liability - common parties
- Insurance
- Vicarious liability
CAV (+ enforcement powers)
Civil Affair Victoria - complaint body that encourages dispute resolution through conciliation. Free service
Enforcement: CAV lacks enforcement powers, therefore any agreement reached in CAV can only be enforced through the courts
CAV - Jurisdiction (x2)
- A complaint by a consumer against a business
- A complaint by a tenant against a landlord
for disputes under $40,000
CAV - Appropriate When (x3)
- Dispute is within the jurisdiction
- Parties have tried to negotiate themselves
- both parties are willing to attend
CAV - Not Appropriate When (x4)
- Court system has already ruled on the matter
- There is a better way to resolve the dispute
- Parties have not tried to negotiate a resolution
- All parties are not willing
CAV - Purpose (x2)
- provide information about consumer laws to the public
- conciliate disputes arising under consumer laws
CAV - POJ Strengths (x2 Access, x2 Fairness, x1 Equality)
Access - Free - accessible method of dispute resolution
Access - Informal - doesn’t require legal representation/easy to understand
Fairness - Mutually acceptable solution - parties come to the conclusion themselves
Fairness - Timely - fast resolution time
Equality - Conciliator - promotes equality as it ensures that both parties have the ability to present their argument equally
CAV - POJ Weaknesses (1x Access, 2x Fairness, 1x Equality)
Access - Limited Jurisdiction - many disputes cannot be resolved at CAV
Fairness - Cannot force parties to attend
Fairness - Cannot force agreement - risk that agreements reached in cav will not be followed
Equality - Not available to all parties - cav has limited jurisdiction & cannot compel attendance, meaning that access to cav is not equally spread
VCAT (+ makeup)
Victorian Civil Administrative Tribunal, with limited power to hear types of Civil and Administrative Disputes. It is made up of the President (a supreme court justice), vice-presidents (county court judges) and members.
VCAT - Purposes (x3)
- Low Cost
- Efficient
- Accessible
VCAT - Jurisdiction (x3 + things that cant be heard)
Claims under Residential Tenancies Act 1997 - Landlords & Tenants
Claims under the Equal Opportunity Act 2010 - Claims of unlawful discrimination
Claims under the Australian Consumer Law & Fair Trading Act 2010 - Claims by businesses and consumers
[Not Limited to]
Cant be heard:
- Employee/Employer Disputes
VCAT - Binding & Outcomes
Decisions are binding
Outcomes may include orders for:
- Party to pay another party
- Party to perform an action
VCAT - Appropriate When (x4)
- The case falls inside their jurisdiction
- Parties are unable to resolve a dispute any other way
- Parties are happy to appeal only on questions of law
- Parties prefer an informal dispute resolution process
VCAT - Not Appropriate When (x6)
- The case is outside their jurisdiction
- Parties are willing to negotiate
- Courts have already ruled on the matter
- Parties want greater ability to appeal
- Parties prefer legal representation to conduct their case
- The claim is complex, or with a large financial dispute - better resolved with barristers and decided in court
VCAT - POJ Strengths (3 access, 3 fairness, 1 equality)
Access - Low Cost
Access - Less Formal
Access - Supportive - VCAT provides information and support to parties when submitting and preparing for their hearing
Fairness - Binding
Fairness - Supportive Methods - VCAT encourages parties to resolve matters through mediation (gives parties more control - which is fair)
Fairness - Timely - most cases resolved quickly
Equality - Flexibility - role of the vcat member is flexible enough that they can ensure unrepresented parties have an equal opportunity to present their case
VCAT - POJ Weaknesses (3 access, 4 fairness, 1 equality)
Access - Limited Jurisdiction - can only resolve matters inside its jurisdiction
Access - Increasing Cost - cost for vcat are increasing
Access - Delays - some lists have long delays
Fairness - No Juries - cannot use juries
Fairness - No legal representation - often requires self-representation, which can create issues for those who are uneducated, causing them to poorly present their case
Fairness - appeals - limited right to appeal
Fairness - enforcement - parties have to go court to enforce most vcat decisions
Equality - not available for all disputes - vcat has limited jurisdictions and cannot resolve large and complex disputes
Appealing to the High Court - Criteria (x2)
- There is a question of law of public importance
- There are differing opinions on the law and it requires clarification
Administrative Convivence
Benefit derived from the organisation of cases according to how serious or complex the matters are
e.g. superior courts have more capacity to devote time and resources to long complex disputes without being clogged up by resolving minor disputes
Court Hierarchy - POJ Strengths (1x access, 3x fairness, 2x equality)
Access - administrative convenience - parties have access to the correct court for their matter
Fairness - appeals are available to everyone
Fairness - consistent aim - although each court has difference processes, all provide public, independent process for resolving civil disputes
Fairness - minimising delay - administrative convenience minimises delays in courts from cases that don’t belong
Equality - right to appeal - both plaintiffs and defendants have a right to appeal
Equality - similar cases resolved in a like matter - each case heard in the appropriate court will be resolved in a similar way
Court Hierarchy - POJ Weaknesses (1x access, 1x fairness, 1x equality)
Access - Cost of Appeals - limited in that the party wishing to seek an appeal must bear the cost of the fees
Fairness - Cost of Appeals - the party seeking the appeal must bear the cost, if they are unable, incorrect decisions may go uncorrected (which is unfair)
Equality - Cost of Appeals - an appeal may not be available to all parties if they cannot afford the cost
Overarching Obligations (+ act & examples x4)
Parties in civil disputes must follow a set of overarching obligations.
Civil Procedure Act 2010
Examples:
- The duty to act honestly
- The duty to cooperate in the conduct of the proceedings
- The duty to use reasonable endeavours to resolve the dispute
- The duty to disclose the existence of critical documents at the earliest reasonable time
Judicial powers of case management
- Power to order dispute resolution
- Power to give directions
Judicial power of case management - power to order dispute resolution (+ act, definition & purpose)
Section 66(1) of the Civil Procedure Act 2010
‘A court may make an order referring a civil proceeding or part of a civil proceeding to appropriate dispute resolution’
The purpose of this power is to assist parties in coming to a fast and cost-effective resolution
Judicial power of case management - power to order dispute resolution - POJ Strengths (2x access, 2x fairness, 1x equality)
Access - available to all parties - almost all parties have access to mediation at the pre-trial stage
Access - minimises cost - if the mediation is successful, costs are decreased
Fairness - saves parties time and money - if mediation is successful, parties saves time and money
Fairness - avoids trial - often results in disputes being resolved quickly, which shortens the time the plaintiff has to wait for a resolution
Equality - available to all parties
Judicial power of case management - power to order dispute resolution - POJ Weaknesses (1x fairness)
Fairness - Not suitable for all disputes
Judicial power of case management - power to give directions (+ act, definition & purpose)
Section 47 - Civil Procedure Act 2010
‘Court may give any direction or make any order it considers appropriate’
Purpose: to give judges the ability to maintain control of the proceedings
Judicial power of case management - power to give directions (examples x4)
- identify issues in dispute - Instructions to identify the issues in dispute (pretrial conferences)
- timetables - set timetables to ensure that the pre-trial procedures move fast
- order - order of witnesses
- presentation - directing which evidence should be given orally, and which evidence should be presented in a written form
Judicial power of case management - power to give directions (failure to comply x4)
- Dismissing - the plaintiffs claim
- Dismissing - the defendants defence
- Direct - one party to pay all/part of the other parties costs
- Reject - any evidence the plaintiff/defendant wishes to present to the court
Judicial power of case management - power to give directions - POJ Strengths (1x access, 2x fairness, 1x equality)
- Access - saves court time and resources
- Fairness - timely - parties may have their issue resolved quickly
- Fairness - parties are aware of the case against them - judges have the power to order the disclosure of all documents - allows them to prepare an informed defence.
- Equality - applies to all cases - judges have broad powers in all cases
Methods used to resolve civil disputes
Mediation, Conciliation, Arbitration
Mediation (+ binding)
Cooperative, non-judicial dispute resolution process.
Involves a third-party (mediator) - who encourages two parties to communicate (doesn’t provide solutions), which ensures the parties voluntarily come to a resolution.
Resolution not binding unless a deed of settlement is signed
Mediation - Not Appropriate When (x4)
- Parties are highly emotional, as negotiation becomes more difficult
- Parties are unwilling to discuss issues
- History of violence or threats
- There is a power imbalance
Mediation - Appropriate When (x4)
- Continuing relationship needs top be maintained
- Parties are willing to discuss issues
- There is admission of responsibility
- Parties prefer privacy and confidentiality
Mediation - use in resolve disputes
Courts - part of the judges powers
VCAT - used before formal hearings
Mediation - POJ Strengths (3x access, 1x fairness, 2x equality)
Access - Low Cost - lower cost than a trial
Access - Informal - conducted in a supportive, non-adversarial manner
Access - Private - mediation process is not held in the public record
Fairness - Party Control - gives the parties the ability to control the outcome, which is fair
Equality - no party is disadvantaged - mediator ensures that all parties are included
Equality - legal representation is equal - mediator will only allow legal representation if both parties have a lawyer
Mediation - POJ Weaknesses (1x fairness, 1x equality)
Fairness - some disputes may not be able to find a resolution through mediation
Equality - language barriers - parties without English skills will struggle to engage in mediation
Conciliation
Cooperative, non-judicial dispute resolution process
Involves a third party (conciliator) - has specialist knowledge, encourages the two parties to communicate, can offer suggestions and solutions, which allows the parties to come to a conclusion themselves
Resolution not binding unless a deed of settlement is signed
Conciliation - use in resolving disputes
Courts - commonly used in the family court, otherwise, sometimes used as part of the judges power to order dispute resolution
VCAT - used in pre-hearing compulsory conferences
CAV - preferred method of dispute resolution
Conciliation - Appropriate When (x4)
- There is a continuing relationship
- Parties are willing to discuss issues
- There is admission of responsibility
- Parties prefer privacy and confidentiality
Conciliation - Not Appropriate When (x4)
- Parties are highly emotional
- Parties are unwilling to discuss issues
- There is a history of violence or threats
- There is a power imbalance
Conciliation - POJ Strengths (3x access, 1x fairness, 2x equality)
Access - Low Cost - lower cost than a trial
Access - Informal - conducted in a supportive, non-adversarial manner
Access - Private - mediation process is not held in the public record
Fairness - Party Control - gives the parties the ability to control the outcome, which is fair
Equality - no party is disadvantaged - conciliator ensures that all parties are included
Equality - legal representation is equal - mediator will only allow legal representation if both parties have a lawyer
Conciliation - POJ Weaknesses (1x fairness, 1x equality)
Fairness - failure - some disputes may not be able to find a resolution through mediation
Equality - language barriers - parties without English skills will struggle to engage in mediation
Arbitration
Non-judicial dispute resolution process.
Involves a third party (Arbitrator) who listens to parties present evidence, and makes a binding decision
Arbitration - how the hearings are conducted
Less formal than a trial, without rules of evidence
Arbitration - use in resolving disputes
Contracts - commonly used as aa way to resolve disputes in the contract
Court - sometimes used as part of the judges ‘power to order dispute resolution’’
Court - used by the magistrates court for claims of less than $10,000 dollars
Purposes of Remedies
to return the plaintiff to the position they were in prior to the injury being caused by the defendant
Purposes of Damages
Monetary compensation
Purposes of Damages (+ 4 types)
Monetary compensation
Compensatory Damages - reimburse for injury or harm suffered as a result of negligent actions and to restore the plaintiff, as far as possible, to the position the plaintiff was in prior to the breach of rights
- Specific - compensating a specific amount
- General - compensating things that do not have a precise value
- Aggravated - compensation for humiliation and insult
Exemplary Damages - used to punish the defendant - large monetary value
Nominal Damages - small amount to show the defendant was legally right - $1
Contemptuous Damages - awarded in recognition of a right, but where the plaintiff didn’t really deserve to be paid damages. Court considers the case should not have been brought to court
Compensatory Damages (types, purpose, ability to achieve purpose)
Types:
- Specific - have a precise value and are easily quantifiable
- General - compensation for things that do not have a precise value and are not easily quantifiable
- Aggravated - compensation for humiliation and insult
Purpose: Reimburse for injury or harm suffered as a result of negligent actions and to restore the plaintiff, as far as possible, to the position the plaintiff was in prior to the breach of rights
Ability to achieve purpose:
- Specific -> yes, can compensate for particular harms that can be precisely calculated
- General -> yes to a degree -> can compensate for potential loss of income
no -> impossible to precisely calculate an amount of money that will compensate for physical/physiological pain
no -> no amount of money can reverse it either
Injunctions
Court orders compelling a party to do/not-do something
Purpose of Injunctions
- Preventing harm to the plaintiff
- Restoring the plaintiff to their original position
Types of Injunctions (type, length)
Mandatory - force the parties to do something
Restrictive - prevent the parties from doing something
Interlocutory - temporary (usually until the end of the case)
Perpetual - permanent
Pre-Trial Procedures
Procedures that occur prior to the commencement of a trial, to setup the case for a just and fair outcome
Pre-Trial Procedures - purposes (x3)
- For parties to notify their intention to sue/defend the case
- ensuring that all parties are aware of the case/evidence against them
- Encourage an early response to the dispute
Pleadings
Series of documents lodged in court that outlines each parties claim
Writ
Informs the court and the defendant that they are being sued
Statement of Claim
document that the plaintiff files in court, which outlines the nature of their claim, the material facts, and the remedy sought
Statement of Defence
document that the defence files in court, which outlines how the accused plans to defend the claim made by the plaintiff
Discovery
Parties establish the facts of the case and the evidence that will be used to prove those facts.
Parties seek evidence from opposing parties
Types of Evidence
Lay Evidence - evidence that is provided by ordinary people
Expert Evidence - evidence that is provided by people with expertise in the field of dispute
Impact of Cost on the Civil Justice System (x6 Access, x1 fairness, x1 equality)
Access - Cost of proceedings - limit launching a claim
Access - Costs may prevent a defendant fighting a claim
Access - Cost of VCAT - the high costs on some VCAT lists may discourage individuals from pursuing particular types of claims
Access - Higher costs for businesses - the higher costs for businesses at VCAT may discourage some small businesses from initiating proceedings
Access - Cost of using a jury - access to a jury may be discouraged due to the cost
Access - Cost of appeals - high costs of filing an appeal (and the cost of lawyers) may discourage parties from filing an appeal.
Fairness - Unequal Legal representation
Equality - Costs - if some injured parties cannot start proceedings (but others can) due to costs associated, its not equal
Time Delays are undesirable because x3
- Stressful on all parties
- Memories fade over time, which can reduce the accuracy of evidence presented orally
- Injured party may have their suffering compounded as a result of the delay
Impact of Time on the Civil Justice System (x2 Access, x2 fairness, x2 equality)
Access - Delays may deter injured parties from initiating a claim - the delays in the justice system may discourage injured parties from initiating legal action in the first place
Access - Pre-trial procedures - longer pretrial procedures go for -> more money spent on legal representation
Fairness - Delays exacerbate the stress of a trial - delays compound the injury to the party which is unfair
Fairness - Unreliable evidence - if delays cause evidence to be lost, it may lead to incorrect and unjust outcomes, which is fair
Equality - Inconsistent dispute resolution times - some injured persons see their disputes resolved very quickly, whereas others face significant delays, this is unequal
Equality - Judicial powers of case management - judges in the courts may use their powers of case management differently, creating a risk for unequal treatments in the court
Accessibility Issues in the Civil Justice System (x4)
- Complex organization of courts - have to decide what court to seek a remedy (can be hard for migrants, limited education, unable to afford representation)
- Complex procedures used - (can be hard for migrants, limited education, unable to afford representation)
- Locations - difficult for those in Regional Victoria
- VCAT’s self representation - can allow accessibility, however can be hard for migrants, limited education, unable to afford representation
Impact of Accessibility on the Civil Justice System (x2 Access, x1 fairness, x1 equality)
Access - Lack of Understanding - some individuals may be participants in civil justice cases as a plaintiff, but not understand the legal processes they are participating in, undermining access to justice. -> leads to be unwilling to bring a case
Access - Self representation - fear of self representation may prevent some from starting proceedings in VCAT
Fairness - Disadvantaged parties - self-represented parties in VCAT and the courts may not be able to present their case in its best light (due to lack of English, education etc) and thus the outcome may not be fair
Equality - Certain groups may be discouraged from approaching the civil justice system - barriers may prevent injured individuals with a right to a remedy from pursuing a case due to their personal characteristics, thus undermining equality
