Victorian civil justice system AOS2A Flashcards
what is the purpose of civil law?
protect rights of individuals and to restore the injured party back to its original position prior to infringement through a remedy
what are the two types of remedies
damages- money
injunctions- which prevents the actions of the defendent
what are the 4 features of a civil case
- dispute between individuals and organisations
- breach of a right
- claim initiated by the plaintiff
- remedy
what are the two main legislations for civil law
civil procedures act 2010 (vic)
the charter of rights and responsibilities act 2006 (vic)
examples of fairness in civil law
- availability of jury to spread decisions
- consistant procedures of legal system
examples of equality in civil law
- all individuals treated in the same manner
- consistant strict rules applied to both parties
examples of access in civil law
- utilise legal system in an effective manner
- able to understand rights and entitlements
plaintiff
individuals that believe their rights have been infringed and as a result has suffered damage
defendent
individuals that the plaintiff has alleged to have infringed their rights
what is the burden of proof
the plaintiff has the onus or responsibility to prove their case in court and ensures that it meets the standard
what is the standard of proof
the level or extent which the plaintiff must prove their case. ‘ balance of probabilities’ meaning it has more likely to have happened with evidence given
what is litigation
the process of taking a civil case to court
what does liable mean
an outcome whereby the courts find the defendent is responsible for causing the infringement from their actions
what is vicarious liability and an example
the legal responsibility of a third party for the wrongful acts of another
eg: employer and employee
what are representative proceedings
and an eg
known as ‘class actions’ that are initiated by the plaintiff on their own behalf (leader) on behalf of other members. a minimum of seven member
eg: largest class action= victoria black saturday bushfires where 119 ppl died. suing ausnet for a faulty powerline that caused the fire
3 x strengths of rep proceedings
1- class actions save costs and allow individuals the ability to pursue an outcome over a complex legal matter
2- individuals involved gain a share of damages rewarded
3- class actions remove power imbalance
3 x weaknesses of rep proceedings
1- group members are bound by judgement unless they opt out
2- there has been controversy over the equitable distribution of the amounts awarded
3- due to the complex nature of class actions such as large volume evidence then these may take months to settle
what are the five factors to consider when initiating a civil
- negotiation options
- costs
- limitations of actions
- scope of liability
- enforcement issues
what are negotiation options
negotiate options refers to the methods in which parties should consider to allow them to negotiate their desired outcomes
what is the purpose of negotiations and when do they occur
purpose:
- mainatain an ongoing relationship with the opposing party
- saves time and costs as normally cheaper
when:
- considered prior to the courts being formally engaged
x2 strengths and weaknesses of negotiation options
strengths:
- parties can have higher input in the outcome
- cheaper and most effective options
weaknesses:
- may not lead to desired outcome and time is wasted
- no legal requirements to comply with
what is cost of pursuing a claim
in a civil dispute parties must bear costs pf the action
what is the purpose of cost pursuing the claim and when do they occur
purpose:
- how much will it cost?
- will the cost be recorvered?
- will the defendent be able to pay the costs?
when:
should be considered prior to courts
what is the purpose of cost pursuing the claim and when do they occur
purpose:
- how much will it cost?
- will the cost be recorvered?
- will the defendent be able to pay the costs?
when:
should be considered prior to courts
2x strengths and weaknesses of cost of pursuing a claim
strengths:
- parties dont have to bear costs as can use litgation funding
- individuals are not hindered with affording legal representation
weaknesses:
- disbursement costs will need to be considered
- complex matters can take many months
what is limitations of actions and examples of some
time period or limit that applies from when damage has occurred to the plaintiff and legal action is initiated
eg: defamation= one year
breaches of contract= 6 years
tort= 6 years
personal injury= 3 years
what is the purpose of limitation of actions
- ensure availability of witnesses and documentation
- ensure plaintiff acts within timely manner
what is the legislation for limitation of actions
limitation of actions act 1958 vic
2x strengths and weaknesses of limitation of actions
strengths:
- have time limits when evidence is given so that there is fresh recollection
- having time limits allows for a degree of finality which can decrease stress and anxiety
weaknesses:
- may put defendant at disadvantage if said later within a year
- evidence can be changed
what is the scope of liability and an example
refers to determining whether the defendants actions or ommissions caused the harm that led to the plaintiff damage
eg:
donoghue vs stevenson- demonstrated that the defendant was reckless in meeting duty of care
what is the scope of liabilitys purpose
and who can plaintiffs take legal action against
purpose:
-determine whether plaintiff is taking legal action against the correct parties
- to determine whether the defendant is liable upon the claim
employers and insurers
strengths and weakness of scope of liability
strengths:
- assess the extent in which a defendant is liable and considers if the plaintiff has contributed to own damage
- allows plaintiff to focus on parties that are responsible for their damage
weaknesses:
- holds eomployers responsible for actions of employees even if had limited input on the actions they made
what are enforcement issues
plaintiff needs to take into consideration when pursuing a civil case because the outcome decided may not be enforced
- the plaintiff may win the case but the decision of the court may prevent the defendant to comply with it
what is the purpose of enforcement issues
to determine whether matter is worth pursuing and if so what methods to use
determine whether legal fees will eceed amounts awarded
strengths and weaknesses if enforcement issues
strengths:
- can determine if defendant will comply therefore plaintiff can alter decision
weaknesses:
- plainitiff can be limited in seeking a remedy if defendant does not have recources to pay
what is consumer affairs victorias
cav is an independant government, statutory body created to regulate monitor and educate consumers on rights and obligations
purposes of cav
- regulating
- educating
- conciliating
- enforcing
- reviewing
main purpose: assist victoria in being responsible cumsumers and educating on rights and responsibilities
who can cav assist?
- consumers and businesses regarding good and services
- landlord and tenants
- sale of property and agents
- seller and purchaser
- building and renovation
- disputes between tenants and villages
crtieria to accessing cav
1- does matter fall within jurisdiction
2- have the parties attempted self help
3- is there likelihood of success
4- no courts have been involved in the dispute
3x strengths and weaknesses of cav
strenths:
- dispute resolution is achieved in a timely manner
- concilitation is free regardless of income
- process is informal
weaknesses:
- cav to perform it must come with jursidiction
- cav has limited rescources
- cav has no power
appropriate vs inapropriate cav
appropriate:
- dispute is within jurisdiction
- issue relates to infringement of consumers rights
inpropriateness:
- car accidents
- dispute between employer and employee
what is vcat? and its legislation
victorian civil and administrative tribunal
definition: statutory,independant govt body that was established in 1998 to hear minor civil disputes
legislation= victorian civil and administrative tribunal act 1998 (vic)
what is the purpose of vcat?
provide individuals with:
- low cost eg no hearing fees
- accessibility eg various locations across victoria
- efficient eg no lengthy court procedures
- independant eg vcat members will remain unbiased
what are the five divisions of vcat and what do they do?
1- planning and environmental
2- human rights division= guardian ship, human rights
3- residential tenancies division= can be vcat or cav
4- administrative division= legal practice, review legislations
5- civil division= building and property, civil claims, unlimited jurisdictions
vcat resolving disputes
mediation
mediation= applicant and respondent meet with a trained mediator to see if they can resolve a dispute without a hearing
- attend of free will
- impartial and independant mediator
- being open and discussing outcomes
- NOT LEGALLY BINDING
vcat resolving disputes
compulsory conferences
used for more complex matters
- identify dispute
- promote a settlement
- question facts of law
vcat resolving disputes
hearings
most formal method
- both parties present
- both parties will take oath
- recieve oppurtunity to both give evidence
- LEGALLY BINDING DECISION
outcomes of vcat
orders may be enforced or taken to court to lodge appeal on question of law
x3 of vcat being appropriate
1- parties have explored all other dispute mechanisms
2- required in a timely manner
3- parties require a binding decision made by a legal expert
x3 of vcat being inappropriate
1- not attempting to resolve dispute
2- dispute in a complex area
3- parties would like a jury to determine a matter
what are pretrial procedures
the legislation
what are their purposes
definition: set of hearings and processes that must take place in a civil dispute in a county or supreme court
legislation= civil procedures act 2010 (vic)
purposes:
underpin pre trial procedures, just, efficient, timely resolution
pre trial procedure
1) letter of demand and purpose
def: a letter sent from the plaintiff to defendent advising them the legal proceedings will be initiated unless agreement is reached
purposes:
- establish the nature of plaintiffs claim
- indicates a time limit
- enables an early settlement
pre trial procedure
2) writ and purpose
def: formal document issued to the defendent and to supreme to outline nature and facts of case
purpose:
- informs defendent litigation has been initiated
- provides timely execution of writ
- title of action, names and addresses
pre trial procedure
3) notice of appearance and purpose
def: document lodged by the defendant within 10 days of recieving writ
purpose:
- informs plaintiff that action will be defended
- chooses to act or ignore
pre trial procedure
4) pleadings and purpose
def: refers to the process where large number of documents and info is exchanged between plaintiff and defendant
- statement of claim
- defence
- reply
purpose:
- outline precise nature of claim
- avoid wasting court time
statement of claim
informs defendant of full details
states facts alleged to the defendant
defence
a document lodged by defendant
counterclaim
defendant may respond with ca counterclaim that is asking something for return
pre trial procedure
5) discovery and its purpose
def: process that involves more information being exchanged to seek further clarification regarding issues of case
eg: medical reports or letters,emails
purposes:
- allow parties to request more info
- promote timely access
- promote an out of court resolution
what is discovery via interrogates and purposes of it
both parties have right to request for more info to ask further questions
interrogates= written questions
purposes:
- provide parties with more detailed info
- to encourage out of court settlement
5 x key responsiblities of the judge
1) undertake case management- involves handling of the case, ordering parties to attend mediation and setting time frames
2) overseeing jury selection - regulating process in which juries are chosen
3) deciding admissibility of evidence - determining whether evidence is valuable or not as it may cause prejudice to the jury
4) enforcing rules and evidence or procedures - ensures each party acts to rules so that they have an equal opportunity to present their case
5) determining a remedy - plaintiff can choose either judge or jury to determine remdy (except defamation)
3 x responsibility of the jury
1) listen and evaluate evidence - jury must attend trial everyday and consider if evidence supports plaintiffs burden of proof
2) applying the law - with guidance of the judge, the jury needs to apply the elements of law to determine whether the plaintiff has met their burden and standard of proof required
3) deciding/awarding damages - if the plaintiff elects the jury to award remedies the jury can determine damages
responsiblities of plaintiff and defendant
3x for each
plaintiff:
- decide whether to abandon claim or initiate claim against the defendant
- decide to engage in legal representation
- undertake necessary pre trial procedures
defendant:
- decide to agree or deny claims stated in letter or demand
- decide whether to issue counterclaim in response to plaintiffs claims
- if unsucessful pay costs and abide by court orders regarding appropriate remedies
4x responsiblities of legal practitioners
- represent clients in court through preparing and presenting their case
- protecting the rights of their client by ensuring fair and equal treatment in the court room
- researching facts and the relevant law
- deciding order and presentation of relevant materials and witnesses
how much can victorian magistrates court hear and what methods of disputes do they use
can hear claims to the value of 100,000
mediation,conciliation,arbitration and judicial determination
what are the outcomes and appeals of the magistrates court
outcomes:
- decisons made are binding and enforceable
- remedies can include a range of orders
appeals:
- can only appeal on POINT OF LAW which will go to supreme court trial division
what is the county court and what is their outcomes and appeals
county court has unlimited jurisdiction- no financial limits
a jury of 6 can be used
county can hear matters such as:
- personal injuries
- defamation
- commercial contracts
outcomes:
- decision made by judge is binding and enforceable
appeals:
county cannot hear appeals from mag court
NO APELLATE JURISDICTION
supreme court trial division the outcomes and appeals
trial division can hear cases with unlimited amounts
outcome:
decision is binding and enforceable in courts
appeals:
- on point of law from mag court
- some vcat matters on point of law
supreme court- court of appeals
hears civil appeals from county or trial division
no original jurisdiction
what are the two reasons for a court hierachy
- adminstrative conveniance
- appeals
what is administrative conveniance
refers to the efficient use of limited financial and physical recources within the legal system . aim is to reduce delays
eg:
- claims less than 100,000 are directed to magistrates court and heard in a relatively quick manner
what is appeals
refers to the ability pf parties to request that the outcome of their case to be reviewed by a more senior judge if they believe an error has been made in the decision
