Unit 4 AOS2c - Chapter 9: Civil Procedure Flashcards
Key legal terminology flashcards.
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What does civil law govern?
Civil law governs disputes between two or more individuals, groups, companies or government bodies.
Who initiatives a civil action?
A person whose rights have been infringed brings a civil action against the person who has infringed their rights.
What are the persons who are involved in a dispute known as?
The persons who are involved in a dispute are known as the ‘parties’ to a dispute.
What is the aim of a civil action?
The aim of a civil action is to restore the party whose rights have been infringed back to the position they were in before the act or omission occurred.
Who is the plaintiff?
The party whose rights have been infringed and who brings a civil action is called the plaintiff.
What is commencing civil proceedings also known as?
Suing.
Who is the defendant?
The party who is alleged to have infringed the rights – the alleged wrongdoer – is called the defendant.
Can there be multiple parties?
Yes, sometimes there can be multiple parties. For example, if two people both own a property that has been damaged, they can both be plaintiffs. Similarly, if two people have damaged the property, they can both be defendants in the one proceeding.
The burden and standard of proof in civil law.
When a plaintiff decides to sue the defendant, it is the plaintiff who has to prove that the defendant was in the wrong (the burden of proof). The court must decide which version of the facts is most probably correct; that is, the standard of proof is on the balance of probabilities.
What are the different types of civil disputes?
. Negligence . Trespass . Defamation . Nuisance . Family Law . Wills and inheritance . Breach of contract
Explain the following type of civil dispute: Negligence
This relates to doing something or not doing something that a reasonable person would do or not do in the circumstances, which causes harm or loss to another person; for example, a negligence claim may relate to something that has gone wrong during a medical procedure.
Explain the following type of civil dispute: Trespass
This might involve damage to land, damage to a person (assault) or damage to goods; for example, if a person poured hot coffee over another person it could cause damage to the person and the injured person could sue for assault.
Explain the following type of civil dispute: Defamation
This relates to written or verbal statements that lower a person’s good reputation in the eyes of the community; for example, a claim involving someone who has published a false statement (such as in a newspaper article) about another person which is harmful to that person’s reputation.
Explain the following type of civil dispute: Nuissance
Nuisance claims are made by people that have lost the enjoyment or use of their property, such as when their neighbours have constantly played loud music.
Explain the following type of civil dispute: Family Law
Family law deals with disputes between family members and which are a of a family nature, such as custody of children.
Explain the following type of civil dispute: Wills and Inheritance
Wills and inheritance involve disputes between individuals about the decisions made by a will-maker, or whether or not a will is valid.
Explain the following type of civil dispute: Breach of Contract
Breach of contract is a type of civil action where someone has failed to do something, or has done something contrary to what they have agreed to do.
What can the parties to a civil action include?
A party to a civil action can be one of the following:
• an individual suing or being sued in their own name, or a group of individuals
• a corporation, otherwise known as a company – in Australia, a corporation is a separate legal entity to the directors or individuals who run the company and can sue and be sued
• a government body, for example the Victorian Government, a local council or a statutory authority such as the Victoria Police.
Children in civil proceedings.
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Don’t need to know
Employers in civil proceedings.
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Group proceedings.
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Group proceedings.
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Group proceedings.
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Explain the difference between the desired consequences in civil disputes and criminal cases.
In a civil dispute the plaintiff normally seeks a remedy, such as damages. In a criminal case, the prosecutor normally seeks to punish the offender on behalf of the state.
Explain the overlap between criminal and civil law.
In some instances, one action can give rise to both a criminal and civil action.
Eg. if a person has been sexually assaulted, the police are likely to charge the accused with relevant sexual offences. The person who was assaulted may then also decide to sue the wrongdoer for trespass to person.
The two cases – the criminal action and the civil action – will be heard separately and may be heard in different courts. The outcome of one
does not affect the outcome of the other, but a guilty verdict in the criminal action may provide a stronger basis for the plaintiff to succeed in the civil action.
Why is it possible for an accused to be found not guilty in a criminal case, but found liable in a civil case relating to the same wrong?
This could be because the standard of proof in a criminal case is much higher than that in a civil case. The jury (or magistrate if it was a summary offence or an indictable offence heard summarily) may not have found beyond reasonable doubt that the accused was guilty.
However, in the civil case, the judge or the jury of six people may believe that the plaintiff’s version of facts is more believable than the defendant’s version, and may therefore find the defendant liable. That is, the judge or the jury may form the view that, on the balance of probabilities, the plaintiff has been wronged.
What is the main reason that a party may decide to sue someone?
Usually the main reason is that the party wishes to be compensated for the wrong they have suffered, often by way of receiving a remedy in the form of damages.
What are other reasons why a party may decide to sue someone?
• a desire to stop the defendant from doing something; for example, a person wishing to stop another person from trespassing on his or her land
• to compel another party to do something, such as perform their obligations under a contract
• to send a message to the defendant, or to society as a whole, about the protection of individuals’ rights.
What is commencing civil proceedings known as?
Commencing a civil proceeding is also known as ‘issuing proceedings’, ‘bringing a civil action’ or ‘suing’.
Why is taking a case to court a risk?
Someone who does so might not win the case, and the legal fees will often be expensive. It will be time-consuming, can be stressful and might lead to bad publicity.
What might someone deciding whether to commence a civil proceeding usually consider?
Someone deciding whether to commence a civil proceeding will usually consider:
. The likelihood of success
. The time and inconvenience involved in taking the claim through the courts
. The costs involved
. Whether there is enough evidence to establish the claim )including whether there are witnesses or key documents which help prove the claim)
. The continuing relationship between the two parties and the effect a court case may have on this
. Whether the party against whom the claim is made would be able to pay the compensation claimed
. The effects of publicity
If a civil disputes arise, what should the wronged party first do?
Thee wronged party should first contact the other party personally to try to resolve the matter. In some circumstances, however, such as those where the identity of the defendant is not known, this may not be appropriate.
What is the other option that the wronged party can pursue when a dispute arises?
The other option is that the wronged party contacts a solicitor.
What is a solicitor?
A solicitor is also known as a legal practitioner or lawyers provides legal advice to clients and assists in commencing and pursuing a civil proceeding if the client decides to proceed.
A legal practitioner will advise the party of their legal rights and their chances of winning the case. If a matter has to be taken to court, normally it is necessary to engage a barrister to appear, although in Victoria it is possible for a solicitor to please a case in the courts.
What is a barrister?
A barrister can briefed by a solicitor, that is, provided with information about a case (the “instructions”) and asked to act on behalf of the solicitor’s client.
The barrister will often give further advice to the solicitor and will appear in court to represent the client.
What happens before a proceeding is issued and the formal pre-trial procedures commence?
The plaintiff or his legal practitioner may send a letter of demand to the defendant.
Explain the letter of demand.
The letter of demand informs the defendant of the nature of the claim, and outlines the remedy sought. The letter often demands that the defendant comply with the wishes of the plaintiff within a certain time limit.
The letter often states that the plaintiff will issue legal proceedings if the defendant fails to comply. An example of a letter of demand follows.
What happens if the defendant fails to comply with the demand?
If the defendant fails to comply with the demand, the plaintiff has the option of abandoning his or her claim, or proceeding with the civil action. The person may decide to use one of the dispute resolution bodies and methods to resolve the dispute.
A civil dispute can be resolved through…
alternative dispute resolution (ADR), also referred to as appropriate dispute resolution, without having to take the case to a court or tribunal. Some of these methods are also used by courts and tribunals or by individuals and groups.
What do alternative dispute resolution methods include?
. Negotiation . Mediation . Conciliation . Arbitration . Collaborative Law
What is negotiation?
Negotiation is when parties discuss the issues between themselves and try it reach a resolution. There is no third part involved. Often this is a useful method for disputes between neighbours, or between family members, to avoid the matter escalating further.
What is mediation?
Mediation is when a third party, known as a mediator, is present to help parties try to resolve the dispute between them. The mediator assisted parties to reach a resolution in their negotiations. Eg. Making sure each party is able to have their say.
However, the mediator remains unbiased and will not offer advice about how to resolve the dispute or offer solutions to the parties.
What is conciliation?
Conciliation is when a third party, known as a conciliator, is present to help parties reach a decision. Often the conciliator will give advice about how to resolve the dispute where ruined and offer solutions to the parties.
Although decisions made during negotiation, mediation and conciliation are not binding often the parties enter into an agreement, called “terms of settlement” after a resolution has been reached, which sets out the terms on which the parties have settled the matter.
What is arbitration?
Arbitration is when a third party, known as an Arbitrator, preside over informal discussions between the parties, giving each party the opportunity to have their say. The Arbitrator will then make a binding decision.
Arbitration is used by the courts, tribunals and other services such as the financial ombudsman.
What is collaborative law?
Collaborative law is another way of resolving civil disputes without taking a matter to court. The parties and their lawyers work together to resolve the dispute with the use of problem-solving techniques. Collaborative law has more recently been used in family law disputes, to avoid the stress and anxiety of going to court.
What are courts and tribunals?
Courts and tribunals are a formal method of dispute resolution. These bodies make decisions that are binding on the parties to the dispute.
Sometimes the court or tribunal will refer the parties to mediation before hearing the case.
What is the Victorian Civil and Administrative Tribunal (VCAT)? COME BACK
The VCAT offers a low-cost, timely and informal way of resolving certain civil disputes. It is separated into four divisions (….)
If a resolution is not available or not possible through any of the tribunals or alternative dispute resolution methods, what may be necessary?
If a resolution is not available or not possible through any of the above methods, it may be necessary to use the court system to reach an outcome.
The three main Victorian courts that have jurisdiction to resolve civil disputes are the Magistrates’ Court, County Court and Supreme Court.
Summarise the civil jurisdiction of the Victorian courts.
Magistrates’ Court:
. Civil claims up to $100,000
. Claims of less than $10,000 are referred to arbitration (which is conducted within the Magistrates’ court)
County Court:
. Unlimited
Supreme Court:
. Unlimited
What are civil pre-trial procedures?
If a plaintiff issues a civil proceeding in the Supreme Court, the parties must go through various pre-trial procedures.
The pre-trial proceedings in a civil case refers to the exchange of legal documents between the plaintiff and the defendant.
The exchange of these documents can assist in achieving an out of court settlement.
Where are the Supreme Court civil pre-trial processes and procedures specified?
Supreme Court civil pre-trial processes and procedures are specified in the Supreme Court (General Civil Procedure) Rules 1996 (Vic.), often known as the ‘Supreme Court Rules’.
What do the Supreme Court rules set down?
The Supreme Court Rules set down details about when certain documents should be filed, or when certain steps should be undertaken (such as when a directions hearing is to take place).
However, the judge has the power to make any order or give any direction in relation to pre-trial procedures. That is, the court can often use its power to give extra time to a party to undertake certain steps, or change the order in which pre-trial procedures take place.
What happens to about 65% of civil cases that are issued in courts?
About 65 per cent of civil cases that are issued in courts are settled before going to trial, or during the trial. Most often they are settled at the mediation stage.
What are the purposes of civil pre-trial procedures?
. To inform both parties of information relating to the case - the plaintiff will find out information relating to the defence, and the defendant will find out information relating to the claim.
. For the parties to determine whether it is worthwhile proceeding (with or defending the case).
. For the aperies to find out the strengths and weaknesses of each others cases.
. They might lead to an out-of-court settlement (negotiated between the parties - meaning the cost, stress and inconvenience of going to court I avoided).
. They provide the court with information about the case before it begins (leading to a quicker trial).
. They might result in some issues being conceded or agreed on by the parties (therefore only those issues in disputes are heard at trial = timely resolution).
What are the main pre-trial procedures you should be familiar with?
. Pleadings
. Directions hearing
. Discovery
. and Mediation
(I think you only need to know first three)
Explain the following civil pre-trial procedure: pleadings
Pleadings are a series of documents exchanged between the parties. They set out and clarify the claims and the defences of the parties and helpless to define the issues that are being disputed.
The pleadings inform the defendant of the pending legal action and point out the nature of the claim and remember being sort. The defender then has the opportunity to deny or admit to the claims. The pleadings allow both the plaintiff and defendant to develop their cases.
What are the documents included in the pleadings stage of civil pre-trial procedures?
. Writ of originating notion with a statement of claim
. Defence (and a counterclaim if filed)
. Reply to a defence (and a counterclaim if there is one)
. Further and better particulars
What are the purposes of pleadings?
. To require the parties to state the main claims and defences of their case.
. To compel each party to state the material facts and particulars on which they are relying.
. To give the court a written record of the case
. To set the limits to the dispute
. To assign in reaching an out-of-court settlement where appropriate
Explain the following purposes of pleadings:
. To require the parties to state the main claims and defences of their case.
. To compel each party to state the material facts and particulars on which they are relying.
To require the parties to state the main claims and defences of their case - This allows basic procedural fairness and natural justice by ensuring the other side knows what the claim or the defence is about.
To compel each party to state the material facts and particulars on which they are relying - this forms the basis of their claims and defences. This avoids taking an opponent by surprise with facts that a party is relying on to support their claim or defence.
Explain the following purposes of pleadings:
. To give the court a written record of the case
. To set the limits to the dispute
To give the court a written record of the case - which allows the court to understand the issues so it can manage the trial and pre-trial procedures.
To set the limits to the dispute - which enables other procedures such as discovery to be confined to the issues in dispute.
What is a writ (pleadings)?
A writ is the most com one method of commencing a proceedings in the Supreme Court. It compels the defendant to appear in court on a specified date and time. It is a document which:
. Explains to the defendant that an action is being taken against him or her
. Informs the defence of where the trial will take place and the mode of trail will take place and the mode of trail (which court and whether it will be heard by a judge alone or judge and jury)
. Usually has a statement of claim attracted.
Solicitors prepare writs. Once they are entered into court the writ is registered (receives a number).
What happens if the statement of claim is not attached to a writ?
If a statement of claim is not attached to a weir, the writ must contain a general statement giving sufficient details of:
. The nature of the claim,
. The cause of the claim and
. The relief or remedy sought.
If a writ only contains a general statement, then a statement of claim must be filed and served within 30 days of the defendant filing and serving a notice of appearance.
What happens before a writ is served on the defendant?
Before a writ is served on the defendant, the plaintiff or their legal representative files several copies of the writ with the court’s registry, along with the filing fee set by the court.
The plaintiff must then serve an original copy of the writ and statement of claim on the defendant. The plaintiff has one year from the day of the writ being filed to serve it on the defendant.
What is an alternative to a writ?
An alternative to the writ is an originating motion. This is a similar form of document, but can only be used when there is little dispute over the facts, or where there is no defendant.
What is a statement of claim (pleadings)?
In most situations, the statement of claim is attached to the writ or originating motion. The statement of claim explains the nature of the claim, the cause of the claim and the remedy or relief sought.
The statement of claim is different to the writ.
Explain the difference between a writ and a statement of claim.
The writ provides basic details about the court, the parties and what needs to happen next, whereas the statement of claim informs the defendant about what the claim is about. It will also normally provide facts about the claim, such as the date of when the alleged wrong occurred and the remedy being sought.
