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legal 3/4 > Victorian civil justice system AOS2A > Flashcards

Victorian civil justice system AOS2A Flashcards

1
Q

what is the purpose of civil law?

A

protect rights of individuals and to restore the injured party back to its original position prior to infringement through a remedy

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2
Q

what are the two types of remedies

A

damages- money
injunctions- which prevents the actions of the defendent

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3
Q

what are the 4 features of a civil case

A
  • dispute between individuals and organisations
  • breach of a right
  • claim initiated by the plaintiff
  • remedy
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4
Q

what are the two main legislations for civil law

A

civil procedures act 2010 (vic)
the charter of rights and responsibilities act 2006 (vic)

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5
Q

examples of fairness in civil law

A
  • availability of jury to spread decisions
  • consistant procedures of legal system
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6
Q

examples of equality in civil law

A
  • all individuals treated in the same manner
  • consistant strict rules applied to both parties
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7
Q

examples of access in civil law

A
  • utilise legal system in an effective manner
  • able to understand rights and entitlements
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8
Q

plaintiff

A

individuals that believe their rights have been infringed and as a result has suffered damage

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9
Q

defendent

A

individuals that the plaintiff has alleged to have infringed their rights

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10
Q

what is the burden of proof

A

the plaintiff has the onus or responsibility to prove their case in court and ensures that it meets the standard

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11
Q

what is the standard of proof

A

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

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12
Q

what is litigation

A

the process of taking a civil case to court

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13
Q

what does liable mean

A

an outcome whereby the courts find the defendent is responsible for causing the infringement from their actions

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14
Q

what is vicarious liability and an example

A

the legal responsibility of a third party for the wrongful acts of another

eg: employer and employee

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15
Q

what are representative proceedings

and an eg

A

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

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16
Q

3 x strengths of rep proceedings

A

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

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17
Q

3 x weaknesses of rep proceedings

A

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

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18
Q

what are the five factors to consider when initiating a civil

A
  • negotiation options
  • costs
  • limitations of actions
  • scope of liability
  • enforcement issues
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19
Q

what are negotiation options

A

negotiate options refers to the methods in which parties should consider to allow them to negotiate their desired outcomes

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20
Q

what is the purpose of negotiations and when do they occur

A

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

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21
Q

x2 strengths and weaknesses of negotiation options

A

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

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22
Q

what is cost of pursuing a claim

A

in a civil dispute parties must bear costs pf the action

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23
Q

what is the purpose of cost pursuing the claim and when do they occur

A

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

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23
Q

what is the purpose of cost pursuing the claim and when do they occur

A

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

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24
Q

2x strengths and weaknesses of cost of pursuing a claim

A

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

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25
Q

what is limitations of actions and examples of some

A

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

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26
Q

what is the purpose of limitation of actions

A
  • ensure availability of witnesses and documentation
  • ensure plaintiff acts within timely manner
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27
Q

what is the legislation for limitation of actions

A

limitation of actions act 1958 vic

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28
Q

2x strengths and weaknesses of limitation of actions

A

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

29
Q

what is the scope of liability and an example

A

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

30
Q

what is the scope of liabilitys purpose

and who can plaintiffs take legal action against

A

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

31
Q

strengths and weakness of scope of liability

A

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

32
Q

what are enforcement issues

A

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
33
Q

what is the purpose of enforcement issues

A

to determine whether matter is worth pursuing and if so what methods to use

determine whether legal fees will eceed amounts awarded

34
Q

strengths and weaknesses if enforcement issues

A

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

35
Q

what is consumer affairs victorias

A

cav is an independant government, statutory body created to regulate monitor and educate consumers on rights and obligations

36
Q

purposes of cav

A
  • regulating
  • educating
  • conciliating
  • enforcing
  • reviewing

main purpose: assist victoria in being responsible cumsumers and educating on rights and responsibilities

37
Q

who can cav assist?

A
  • 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
38
Q

crtieria to accessing cav

A

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

39
Q

3x strengths and weaknesses of cav

A

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

40
Q

appropriate vs inapropriate cav

A

appropriate:
- dispute is within jurisdiction
- issue relates to infringement of consumers rights

inpropriateness:
- car accidents
- dispute between employer and employee

41
Q

what is vcat? and its legislation

A

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)

42
Q

what is the purpose of vcat?

A

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

43
Q

what are the five divisions of vcat and what do they do?

A

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

44
Q

vcat resolving disputes

mediation

A

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
45
Q

vcat resolving disputes

compulsory conferences

A

used for more complex matters

  • identify dispute
  • promote a settlement
  • question facts of law
46
Q

vcat resolving disputes

hearings

A

most formal method

  • both parties present
  • both parties will take oath
  • recieve oppurtunity to both give evidence
  • LEGALLY BINDING DECISION
47
Q

outcomes of vcat

A

orders may be enforced or taken to court to lodge appeal on question of law

48
Q

x3 of vcat being appropriate

A

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

49
Q

x3 of vcat being inappropriate

A

1- not attempting to resolve dispute

2- dispute in a complex area

3- parties would like a jury to determine a matter

50
Q

what are pretrial procedures
the legislation
what are their purposes

A

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

51
Q

pre trial procedure

1) letter of demand and purpose

A

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

52
Q

pre trial procedure

2) writ and purpose

A

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

53
Q

pre trial procedure

3) notice of appearance and purpose

A

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

54
Q

pre trial procedure

4) pleadings and purpose

A

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
55
Q

statement of claim

A

informs defendant of full details
states facts alleged to the defendant

56
Q

defence

A

a document lodged by defendant

57
Q

counterclaim

A

defendant may respond with ca counterclaim that is asking something for return

58
Q

pre trial procedure

5) discovery and its purpose

A

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

59
Q

what is discovery via interrogates and purposes of it

A

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

60
Q

5 x key responsiblities of the judge

A

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)

61
Q

3 x responsibility of the jury

A

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

62
Q

responsiblities of plaintiff and defendant

3x for each

A

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

63
Q

4x responsiblities of legal practitioners

A
  • 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
64
Q

how much can victorian magistrates court hear and what methods of disputes do they use

A

can hear claims to the value of 100,000

mediation,conciliation,arbitration and judicial determination

65
Q

what are the outcomes and appeals of the magistrates court

A

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

66
Q

what is the county court and what is their outcomes and appeals

A

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

67
Q

supreme court trial division the outcomes and appeals

A

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

68
Q

supreme court- court of appeals

A

hears civil appeals from county or trial division

no original jurisdiction

69
Q

what are the two reasons for a court hierachy

A
  • adminstrative conveniance
  • appeals
70
Q

what is administrative conveniance

A

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

71
Q

what is appeals

A

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

legal 3/4 (7 decks)

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