6.4 Flashcards
What are the relevant factors when initiating a civil claim?
- negotiations
- costs
- limitation of actions
- the scope of liability
- enforcement issues
What are negotiations?
Informal discussions between 2 or more parties in a dispute, aiming to come to an agreement about how the resolution should be solved
What are the 2 negotiation options?
- Arrangement between themselves with or without legal representation or a third party eg. mediator
- arrangement or dispute resolution service through a body such as “Dispute settlement centre of Victoria”
When will negotiation may not be an option?
- both or one of the parties does not want to resolve the dispute/ is not interested in negotiation
- there have already been previous attempts
- a party has been harmed/threatened
- there are no issues to negotiate
- unlikely it will be successful
- the court must resolve the matter
- there is a significant power imbalance
What are the benefits of negotiations?
- cost, time and stress of commencing a formal civil action may be avoided
- parties will be more prepared to accept outcome, as they reached the outcome themselves
- parties have control over the outcome
What are the costs involved in initiating a civil claim?
A party involved in a civil dispute may incur costs in resolving a civil dispute
- fees for legal representation
- disbursements
- possible costs to be paid to the other if the plaintiff is unsuccessful
What are the fees for legal representation?
The client pays for a high level of expertise and training.
Fees depend on:
- complexity of the case/ time it will take
- the court in which the matter will be held in
- the size of the case
- the expertise of the legal practitioner
What are disbursements?
Out-of-pocket expenses or fees, incurred as a part of a legal case
eg. fees to be paid to expert witnesses, court fees, other
What is an adverse cost order?
A court order that makes a party (plaintiff) pay the other party’s cost (defendant)
What is the limitation of actions?
The restriction on bringing a civil claim after allowed time.
The plaintiff must commence the proceedings within a number of months/years
What are the reasons of the limitation of actions?
- the defendant does not have to face an action after a significant amount of time
- evidence will not be lost
- disputes can be resolved as quick as possible
What is the scope of liability?
Who the possible defendants may be and to what extent the defendant may be liable
Who are the other possible defendants?
- an employer (under the principle of vicarious liability) - becomes liable for actions of employees
- an insurer - defenndant will claim insurance if the plaintiff is successful
- persons involved - if they aided, urged or conspired
What is accessorial liability?
A way in which a person can be found to be responsible or liable for loss or harm suffered to another because they were directly/indirectly involved
What is the extent of the defendant’s liability?
The defendant may argue that they are only liable of a part or portion of the loss or damage
eg. in the case of negligence, may claim contributory negligence
