AOS2 - civil Flashcards
(34 cards)
1
Q
Civil Law
A
An area of law that defines and protects the rights and responsibilities of individuals and organisations.
2
Q
Civil dispute
A
A private disagreement between two or more individuals, in which one party makes a claim against another.
3
Q
Remedy
A
An order made by a court or tribunal that resolves a breach of civil rights. A remedy should provide a legal solution for the plaintiff in a matter, which must be paid or actioned by the defendant
3
Q
Liability
A
The legal responsibility for an act or omission.
4
Q
The purpose of Remedies
A
Restore the plaintiff to their original position before the loss occurred.
5
Q
Plaintiff
A
The party who is bringing the civil proceedings. The party claiming their rights have been breached.
6
Q
Defendant
A
The party who is alleged to have breached the rights of another and are being sued.
7
Q
Sue
A
To take civil action against another party., claiming that their rights have been breached by that party.
8
Q
Damages
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A type of remedy that involves one party being ordered to pay money to the other.
9
Q
BURDEN OF PROOF
A
- The burden of proof refers to the party who holds the responsibility of proving the facts of a case.
- In civil cases the burden of proof is on the party who is bringing the case.
The plaintiff - In some cases the defendant will have the burden of proof
If they file a counterclaim, making an allegation against the other party and therefore must prove it.
If they raise a defence, they must prove the facts of their defence.
10
Q
THE STANDARD OF PROOF
A
- The standard of proof refers to the degree (strength) to which the facts of a case must be proven.
- In civil claims the evidence must be proved on the balance of probabilities.
One party’s version of events are more probable to have occurred than not. - It is less strict than the criminal standard, some doubt may exist.
11
Q
FACTORS TO CONSIDER BEFORE INITIATING A CLAIM - Costs
A
- Costs escalate quickly in civil claims.
- A party needs to consider whether the costs are worth the potential remedy
- Costs occur through:
Fees for legal representation
A party may require a solicitor and a barrister. Usually the
Disbursements
Any expense except a legal fee.
Includes Court and tribunal fees
Includes mediation fees
Include fees for expert witnesses
Adverse Costs order
If a plaintiff is unsuccessful in court , they will have to pay their own legal costs and may be ordered to pay for parts of the defendants costs.
12
Q
FACTORS TO CONSIDER BEFORE INITIATING A CLAIM - Limitation of actions
A
- Refers to the time restrictions for a civil action to be commenced
The plaintiff needs to begin a proceeding within a certain time period. - Purposes of time limits:
To ensure civil cases are dealt with in a timely manner.
To ensure that evidence is available
To ensure a defendant is not surprised by a claim years after it commenced. - Victorian time limits are set out in the Limitation of actions Act 1958 (Vic)
Different depending on type of action - Limitations of actions can be raised as a defence if the plaintiff brings a case after the time period.
- Plaintiffs can apply for extensions if they have suffered certain types of loss
13
Q
FACTORS TO CONSIDER BEFORE INITIATING A CLAIM - ENFORCEMENT ISSUES
A
- There are two ways that a civil claim can resolve:
1) The plaintiff settles the matter - The parties come to their own agreement before an outcome is determined by the court.
2) The court or tribunal make decisions about the liability of the defendant and grants a remedy to the plaintiff. - In some cases the defendant may not or cannot pay:
The defendant may not have any assets to cover the costs of the remedy
The defendant may be in prison, therefore unable to pay
The defendant may leave Australia or be unaccountable making it difficult to pay.
The defendant may be a company which can easily hide assets.
14
Q
FAIRNESS
A
- Fairness is defined as “all people can participate in the justice system and its processes should be open and impartial”.
- Impartial process:
The institutions and personnel should be impartial and independent.
There should be no bias towards either party in a proceeding.
Cases should be decided on facts and law, not prejudice.
Apprehended bias also needs to be prevented. - Open process:
Processes should be understood, seen and scrutinised by the public - Participation
The opportunity for both parties to know the case against them.
The opportunity for both parties to represent their version of the case
The use of an interpreter
No delays
15
Q
EQUALITY
A
- Equality is defined as ‘all people engaging with the justice system and its processes should be treated in the same way. If the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow everyone to engage with the justice system without disparity or disadvantage’.
- Treated in the same way:
Formal equality is where all people are treated the same way. (Civil rights, pre trial procedures)
Substantive equality acknowledges that formal equality can cause disadvantage/disparity for certain people. - Without disparity or disadvantage:
The decision maker may need to explain certain processes and rights to the parties
It may be necessary to change court/tribunal processes to cater for the needs of parties
A party may need an interpreter
Information should be provided in alternative formats for people with language or literacy barriers.
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16
Q
Access
A
- Access is defined as ‘all people should be able to engage with the justice system and its processes on an informed basis’.
- Engagement:
Providing a range of dispute resolution methods:
Physical access:
Technological access:
Financial access:
No delays: - Informed basis:
Education:
Information:
Legal services:
Legal representation:
17
Q
MEDIATION
A
- Involves an independent third party known as the mediator who facilitates conversation between disputing parties so they voluntarily come to a mutual resolution.
- There is an emphasis on maintaining the relationship between the parties.
- Features of meditation:
Parties may be ordered to attend mediation (s 66 of the Civil Procedure Act 2010 (Vic)) or may privately hire a mediator to avoid court.
The mediator facilitates conversation. They do not provide legal advice or recommend potential outcomes.
Resolutions are non-binding but can be legally enforceable if a settlement agreement is signed.
Legal representation is usually not used in mediation.
It is generally an informal and non-adversarial environment.
There are no rules of evidence. Evidence is not even usually presented, as the emphasis is on resolution, not proving the
standard of proof. - Successful outcome when parties reach a decision.
Deeds of settlement can be signed to make decisions legally binding. - Mediation is not suitable when:
Parties are not willing to negotiate. Or do not understand and participate in the process.
18
Q
CONCILIATION
A
- Involves an independent third party known as the conciliator who facilitates conversation between disputing parties and provides specialised knowledge and assistance so they voluntarily come to a mutual resolution.
- Parties cna arrange private conciliation or may be ordered to attend conciliation by the court under s 66 of the Civil Procedure Act 2010 (Vic)
- Conciliation can be used by other legal bodies such as VCAT and CAV
- Features Of conciliation:
The conciliator can offer resolution suggestions and possible solutions (unlike mediation).
The agreements are non-binding but can be enforceable if parties sign a deed of settlement (or ask VCAT/court for it to be ordered)
Legal representation is usually not used in conciliation.
It is generally an informal and non-adversarial environment.
There are no rules of evidence - Potential outcomes include an apology or financial compensation
- Conciliation is not appropriate when:
There is a history of animosity or violence between parties.
Parties are highly emotional and/or are unwilling to compromise.
18
Q
ARBITRATION
A
- Arbitration involves an independent third party known as the arbitrator who listens to parties present evidence and makes a binding decision.
- Arbitration is available when people choose to settle their dispute through arbitration or are ordered to attend arbitration.
- Features of arbitration:
Arbitration is less formal than a trial, without the strict rules of evidence and procedure that are used in civil court trials.
Arbitration results in a binding and enforceable decision, known as an arbitral award.
Proceedings and outcomes are usually private.
Arbitration is commonly used by parties to resolve large commercial contract disputes
Arbitration is cheaper, faster and less formal than trials.
Arbitration can be conducted in a court (especially the Supreme Court) but is not the same as a trial.
Arbitration is used in the Magistrates’ Court to resolve civil claims of under $10,000.
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18
Q
THE SUPREME COURT - COURT OF APPEAL
A
- Original Jurisdiction:
No original jurisdiction - Appellate Jurisdiction:
Hears appeals from:
The county court on question of law, question of fact, and/or the remedy awarded
The Supreme court trial division on question of law, question of fact, and/or the amount of damages awarded
Appeals from the president or vice president of VCAT
19
Q
THE SUPREME COURT - TRIAL DIVISION
A
- Original Jurisdiction:
Can hear claims of unlimited amounts. In practice it usually only hears complex claims exceeding $100,000.
Parties can choose judge alone trials or a jury of 6
Examples include, representative proceedings, defamation involving complex arguments. - Appellate Jurisdiction:
Hears appeals from:
The Magistrates court on a point of law
VCAT on a point of law
The appeal is heard and decided by a single judge
20
Q
THE COUNTY COURT
A
- Original Jurisdiction:
Can hear claims of unlimited amounts. In practice it usually only hears claims exceeding $100,000.
Parties can choose judge alone trials or a jury of 6.
Examples include, personal injury claims, negligence, contract disputes. - Appellate jurisdiction:
The county court does not have a civil appellate jurisdiction.
21
Q
THE MAGISTRATES COURT
A
- Original Jurisdiction:
Can hear minor civil disputes involving claims up to $100,000
If the damages sought are under $10,000, the MC will use arbitration to resolve the dispute.
Examples include, minor workplace injuries, small claims under employment contracts, car accident claims. - Appellate Jurisdiction:
No appellate jurisdiction
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PURPOSES OF THE HIERARCHY
ADMINISTRATIVE CONVENIENCE
- Administrative convenience allows for a more efficient court system as matters are able to be allocated to the court most suitable to that level of severity or complexity of the case.
- For instance, minot disputes can be heard in the Magistrates court, whereas more complex cases can be heard in the county or supreme court.
Class actions can be only heard in the supreme court as they are complex and require specific legal expertise.
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THE ROLE OF THE JUDGE/MAGISTRATE
- Before trial/hearing
The j/m manages the case in pre-trial stages.
J/M are giver case management powers to be actively involved in ensuring that the case will be ready for trial.
The J/M gives the parties directions - for example attend mediation
Two common pre trial procedures in civil cases:
Discovery: Parties must provide all the relevant documents/evidence to each other.
Mediation: Parties may be ordered to attend mediation to attempt a resolution before going to trial.
- During the trial/hearing
The J/M manages the case during the trail/hearing if it has not been resolved. The J/M has the power to and can make rulings about:
Decide the order in which evidence will be given
Limit time for the hearing or trial
Limit the time of parties to examine witnesses
Limit the length of a parties submissions\
Limit the number of documents that may be provided as evidence
- Other roles:
Act impartially: The J/M must act impartially as they oversee the case. Any rulings must be made without bias.
Decide on costs: Costs are calculated at the end of a matter with the successful party entitled to receiving some costs from the other party. Factors are considered, such as the parties behaviour, before deciding on costs.
Determine liability: If there is no jury the J/M must decide if the plaintiff has proved their claim against the defendants and what remedy would be appropriate. The judge will provide a court judgement
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PURPOSES OF THE HIERARCHY
APPEALS
- Appeals are a process where if a party is unhappy with the outcome of their civil claim, either on the level of damages or the way the law was applied, they are able to request for an appeal to have the case heard in a higher court on the hierarchy.
- Allows processes to be checked and mistakes to be corrected.
- Most civil disputes require leave
- Cases can be appealed on:
Question of law
Question of fact
On the remedy awarded
- Example: Bauer Media Pty Ltd v Wilson [No. 2] [2018] VSCA 154
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ROLE OF THE JURY
- Be Objective:
Jurors must be unbiased and bring an open mind to the trial.
They must be impartial and not base their decision on prejudice.
Decisions must be based on facts of the case only.
- Understand directions and summing up:
Juries must listen to the directions and summary of the case given by the judge and follow the judges directions
- Listen to and remember evidence:
Jurors must focus on the evidence presented in court
They cannot undertake their own research.
Evidence is often boring or complex which can be hard for people to focus or understand.
- Decide on liability and damages:
Juries must decide whether or not the plaintiff has proved their case on the balance of probabilities.
Decisions must be unanimous (6/6) but majority (⅚) is sometimes allowed.
In some cases juries also decide on the remedy
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THE ROLE OF THE PARTIES
- Make decisions about the conduct of the case:
Parties can choose what claims to make, what defences to raise, which witness to call, and what outcome to ask for. Known as party control.
- Disclose information to the other side:
Discovery is an important step in civil proceedings - both parties have the responsibility to hand over key documents to the other side.
- Exchange evidence:
Each party must exchange other evidence they will rely on
A party may call for “Lay evidence” - evidence giver by a la person about the facts of a case, or “expert evidence” - evidence from a professional who has expert opinion of the matter.
- Participate in the trial
If the case reaches the stage of a trial they must:
Make opening and closing addresses to the court about their case
Present the case and evidence to the court
Each party must examine their witness and cross examine the witness from the other party.
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BARRIERS OR CONCERNS FOR LEGAL REPRESENTATION
- The cost of legal representation is very high, for smaller claims the damages could be less than the legal costs.
- It is difficult to obtain legal aid from VLA for civil claims
- Many forms of alternative dispute resolutions have been specifically designed to not require legal aid.
- Legal information and advice may be better provided by bodies such as CAT and Fair Work.
- Some lawyers are better than others, meaning not all legal representation is equal.
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WHAT DO LAWYERS DO IN CIVIL CASES
-Provide legal advice:
Provide legal advice or information about to a party about the matter
-Represent the party:
Outside of court: E.g write letter on behalf of a party
Prepare for trial and act in court: Review the documents, prepare the claim/defence, identify evidence
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BENEFITS TO HAVE LEGAL REPRESENTATION
- Lawyers can identify whether a party's rights have been breached and what an appropriate remedy could be.
-It is difficult for lay people to prepare a strong civil case for trial. - a ;ay person does not know the rules of evidence and procedure.
- The parties themselves may be too emotionally invested to be able to make objective decisions or present their case objectively
- One party may be at a considerable disadvantage if they don't have legal representation.
- It can take considerable time, effort and resources to self represent - especially if the party single handedly must disclose documents and exchange evidence.
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