6 key concepts in the victorian civil justice system Flashcards
parties in a civil dispute
plaintiff: the party who makes a legal claim against another person
defendant: a party who is alleged to have breached a civil law and is being sued by a plaintiff
parties cont.
- plaintiff sues the defendant to obtain a remedy that compensates them for the infringement of their rights
- children under 18 CANNOT directly sue a defendant – only thru a litigation guardian
- vicarious liability: the legal responsibility of a third party for the wrongful acts of another (e.g. an employer’s liability for what their employees do)
dispute resolution bodies
- complaints bodies: complaints from people about the conduct of other parties (e.g. Consumer Affairs Victoria)
- ombudsmen: informal mediation (e.g. Public Transport Ombudsman)
- tribunals: broad range of disputes, less formal, quicker, less expensive (e.g. Victorian Civil & Administrative Tribunal)
- courts
types of civil dispute
- defamation: saying or publishing material which causes damage to another person’s reputation
- trespass to land: someone goes onto another person’s land without permission
- wills and inheritance: disputes over a will
- breach of contract: someone has failed to do something they promised in a legally binding agreement
- nuisance: people who have lost enjoyment or use of property (either public or private)
- negligence: someone owes a duty of care to another and breaches that duty, causing harm or loss to them
balance of probabilities
the standard of proof in civil disputes – requires the plaintiff to establish that it is more probable than not that their claim is true
key principles in the civil justice system
burden of proof: the obligation of a party to prove a case – usually rests with the party who initiates the action
- plaintiff
- counterclaim: defendant had the burden of proof
standard of proof: the degree or extent to which a case must be proved in court
- balance of probabilities
factors to consider before initiating a civil claim
- costs
- limitation of actions
- enforcement issues
costs
- legal representation fees
- disbursements
- adverse costs orders
- court fees
- mediation fees
- expert witness fees
fees for legal representation
costs depend on:
- complexity of the case
- court it will be heard in
- size of the case
- expertise of the legal practitioner (seniority = more expensive)
disbursements (out-of-pocket expenses)
- court fees - such as filing fees and hearing fees
- mediation fees - the court often requires an attempt at mediation before the trial
- expert witness fees - to give an opinion in court
adverse costs orders
if the plaintiff’s claim is unsuccessful, then they have to pay their legal costs but also some of the defendant’s costs
so they should consider:
- how much it will cost to have the dispute resolved
- whether they have the money to pay for it
- whether they are eligible for legal aid
limitation of actions
restriction placed on the time within which a civil action can be commenced – Limitation of Actions Act 1958 (Vic)
reasons:
- defendant DOES NOT have to face action after a significant time
- evidence is NOT lost and people can still remember the facts
- disputes can be resolved ASAP
limitation periods
- defamation: 1 year (3 years if accepted by the judge)
- personal injury (general): 3 years (12 years for illness/complex death)
- contract law: 6 years
enforcement issues
plaintiff needs to consider:
- whether the defendant is bankrupt
- whether the defendant can pay
- whether the defendant is in jail
- if the defendant is a company and what assets this company has
- location of the defendant and whether they can be contacted
- whether the plaintiff knows who the defendant is
