Area of Study 2a

Question 1

Civil Disputes

Answer 1

A disagreement between two or more individuals whereby one party makes a claim against another, usually claiming a loss.

Question 2

Purposes of Civil Law

Answer 2

> To enable a party to enforce their rights
To determine whether the defendant os liable
To award a remedy and return the plaintiff to their original position as much as possible

Question 3

Sue

Answer 3

To take civil action against another person claiming that they have infringed some legal right of the plaintiff or did something wrong that negatively affected the plaintiff.

Question 4

Litigation

Answer 4

Commencing a civil action in court - normally begins by seeking legal representation ans filing a writ.

Question 5

Liable

Answer 5

Finding that one party is responsible for the other’s loss/infringement.

Question 6

Remedy

Answer 6

Orders made by a court or tribunal to address a civil wrong or breach - designed to restore the plaintiff back to their original position as much as possible. Remedies can be in the form of injunctions or damages.

Question 7

Types of Civil Disputes
Negligence

Answer 7

Occurs when the defendant owes a duty of care to the plaintiff and breaches this duty.

Question 8

Types of Civil Disputes
Defamation

Answer 8

Occurs when the defendant communicates false statements to a third party about the plaintiff which damages the plaintiff’s reputation.

Question 9

Types of Civil Disputes
Breach of Contract

Answer 9

Occurs when the defendant fails to perform their obligations arising from the terms of a contract.

Question 10

Types of Civil Disputes
Family Law

Answer 10

Deals with matters relating to parents, children and other family members. It also relates to property disputes arising from a breakdown in marital or de-facto relationships, such as those regarding the division of assets.

Question 11

Types of Civil Disputes
Trespass to Land

Answer 11

Occurs when the defendant unlawfully interferes with the land the plaintiff possesses.

Question 12

Parties in a Civil Dispute
Plaintiff

Answer 12

The party who commences the civil action and claims their rights have been infringed or a wrong has occurred. The plaintiff is also known as the aggrieved party or the wronged party.

Question 13

Parties in a Civil Dispute
Defendant

Answer 13

The party who is alleged to have infringed the plaintiff’s rights or is alleged to be responsible for the wrongdoing.

Question 14

Parties in a Civil Dispute

Answer 14

The parties in a civil dispute can be;
> An individual being sued in their own name or a group of individuals being sued or suing together
> A corporation (aka a company) a separate legal entity from the directors can be sued. These are types of companies that have Pty Ltd or Ltd next to their names
> The Commonwealth or State or government agency or body

Question 15

Employers and Vicarious Liability

Answer 15

If an employee infringes a person’s rights whilst acting in the course of their employment, the injured person may be able to sue the employer via vicarious liability - the legal responsibility of a third party for the wrongful acts of another.

Question 16

Burden of Proof

Answer 16

Rests upon the plaintiff to prove their case as they are the party bringing the case to court and must satisfy the decision maker.

In some instances, the burden may rest on the defendant;
> The defendant may choose to file a counterclaim
> If the defendant raises a defence e.g. contributory negligence

Question 17

Standard of Proof

Answer 17

Refers to the strength of evidence required to prove the case. In civil law, the plaintiff must prove their case based on the balance of probabilities - that is that it is more likely than not that the claim is true. This is less strict than the standard of beyond reasonable doubt in criminal law.

Question 18

Avenues for Dispute Resolution

Answer 18

> Complaints bodies - these are gov. funded, statutory bodies that exist to investigate complaints from ppl about the conduct of other parties e.g. CAV
Tribunals - these operate like a court in that they can resolve a broad range of disputes e.g. VCAT. They operate w/in jurisdictions to hear matters such as tenancy and discrimination
Courts - these are either Vic or federal courts.

Question 19

Factors to Consider Before Initiating a Civil Claim

Answer 19

Although a party has suffered an infringement or loss due to a breach of their rights and would like justice carried out, there are 3 factors which should be considered prior to initiating a civil claim; costs, limitations of actions, enforcement issues.
Initiating a civil claim, when using the courts, can be time consuming, complex and expensive. Parties should consider these factors and weigh up their options prior to initiating a claim because they may not be able to recover their loss or, the claim could end up costing more than the original claim.

Question 20

Factors to Consider Before Initiating a Civil Claim

Cost

Answer 20

In a civil dispute, parties will generally bear the cost of resolving the dispute because it is about upholding the rights of the individual so the state will not fund proceedings.

> Fees for legal rep
Disbursement fees
Adverse court orders

Question 21

Costs
Legal Rep

Answer 21

Depending on the complexity of the legal issue, a party may choose to engage in the services or a solicitor, barrister or both. A Kings Counsel barrister can charge up $1000 p/h.

Question 22

Costs
Disbursements

Answer 22

Other expenses incurred that is paid for by the legal rep and invoiced later such as court fees (filing fees, hearing fees, fees for a jury), fees for expert witnesses, mediation fees.
A writ in the CC = $779
Hearing fees in CC = $800 per day
Jury = $1606 for the first day then $303.60 for subsequent days.

Question 23

Costs
Adverse Court Orders

Answer 23

The legal requirement that one party pays for all is some of the winning party’s legal costs.

Question 24

Factors to Consider Before Initiating a Civil Claim

Limitations of Actions

Answer 24

A restriction in the time limit is which a plaintiff must commence a civil action in court, after which time the plaintiff must apply to the court for an extension and it is to the judges discretion whether the case may proceed.

Limitations of Actions Act 1958 (Vic) outlines time frames;
- defamation 1 year
- negligence 6 years
- personal injury 3 years

Encourages parties to bring their disputes in a timely manner.
Witness to recall the incident remains accurate and quality of evidence remains high.
Defendant does not have to defend a civil action after a significant amount of time.

Question 25

Factors to Consider Before Initiating a Civil Claim Enforcement Issues

Answer 25

A factor that involves the plaintiff considering that if they are successful in their claim, can their claim be enforced on the defendant? Can they fulfil their legal obligation? - Defendant has/will likely declare bankruptcy or is unemployed - Defendant is a company, may not have assets to sell to pay damages - Defendant in prison or has relocated overseas permanently, met be difficult to enforce payment - Defendant cannot be identified or is unknown

Question 26

Principle of Fairness

Answer 26

The ability for people to participate in the open and impartial processes of the justice system.

Question 27

Fairness Impartiality

Answer 27

> The plaintiff can have an independent and impartial adjudicator preside over their dispute - this could be in the form of a judge, mediator, magistrate or arbitrator. > The judge and/or jury must reach a decision based on the facts and evidence presented rather than their own opinion or bias

Question 28

Fairness Open Processes

Answer 28

> Disputes that utilise the courts are open to the public including the court's judgement, this promotes transparency over judicial decisions and accountability of legal professionals > However, should parties choose to use mediation or conciliation as their method to resolve disputes, this may be held in private, leading to a lack of open processes

Question 29

Fairness Participation

Answer 29

> After considering all factors, all plaintiffs have the right to lodge a claim against a defendant because of a loss or, if they believe that the matter is not worth pursuing, they can 'cut their losses' > Some of the avenues for resolving disputes do not require legal representation, promoting the plaintiff's ability to participate in the legal system more easily

Question 30

Principle of Equality

Answer 30

Formal equality involves treating everyone in the same way, or if this creates disparity or disadvantage, substantive equality is applied where people are treated differently to ensure the same outcomes.

Question 31

Formal Equality

Answer 31

> All parties can initiate a claim if they can demonstrate an infringement of their rights and a loss > All parties can and are encouraged to negotiate prior to and during trial to resolve their disputes without proceeding further into trial

Question 32

Substantive Equality

Answer 32

> If a party cannot afford legal rep, a judge or magistrate may need to take steps to explain certain rights and processes > However, a judge must remain impartial and cannot intercede on behalf of a self-represented accused even if they believe that disparity or disadvantage exists for the party

Question 33

Principle of Access

Answer 33

The ability for everyone to engage with the justice system on an informed basis

Question 34

Access Engagement

Answer 34

> Unlike criminal matters, a range of dispute resolution methods are available to the parties, most of which are less complex and are more easily available, promoting physical engagement > Technological development has led to the ability to attend dispute resolution via online video-link or conferencing, promoting technological engagement

Question 35

Access Informed Basis

Answer 35

> Specialist CLCs can assist certain groups with vulnerabilities in society, e.g. Association for Employees with Disabilities (AED) in order to specifically assist by providing tailored information regarding disputes arising from unlawful termination, bullying and harassment and wages and working conditions > However, self-help and alternative methods of dispute resolution require that parties have a certain level of education and can articulate and communicate with the other party which may not always be possible to occur

Question 36

Mediation

Answer 36

One of the least formal dispute resolution methods that can occur outside and within the court system.

Question 37

What does Mediation Involve?

Answer 37

> Parties willing to cooperate with each other to reach a solution > Mediator (impartial 3rd party) who facilitates discussion > Discussing the issues and considering options to try to reach an agreement and compromise > Legal representation can be used but is generally not required > No strict rules of evidence and procedure > Can be conducted in a private office, court or at the Dispute Resolution Centre of Victoria > Any decision reached is not legally binding unless a deed of settlement is signed by both parties

Question 38

Terms/Deed of Settlement

Answer 38

A legally binding document that outlines the terms that the parties have agreed to after mediation which can be enforceable through courts if one party does not comply.

Question 39

When is Mediation Used?

Answer 39

Before Court; > Often if it is important to maintain an ongoing r/ship or cost may be an issue e.g. disagreement b/w neighbours, landlords and tenants, family members During Court; > The Magi, CC and SC can order parties to attend mediation once a case has been initiated in court as part of pre-trial procedures > Ordered without consent of the parties > Cost for mediation usually split b/w parties > Associate judges can also mediate - judicial mediation Mediation as an Alternative to Court; > VCAT often refers claims to mediation prior to the final hearing > Private mediation through Dispute Settlement Centre of Victoria

Question 40

Appropriateness of Mediation

Answer 40

> A r/ship needs to be maintained b/w 2 parties e.g. family law > Parties are willing to discuss issues > Parties prefer privacy and confidentiality < A relationship has already been soured, and mediation would create a power imbalance b/w parties < Parties are not willing to discuss issues and negotiate an outcome < A party desires a guaranteed legally binding outcome resolved in a formal manner and desire the outcome publicised to shame/deter behaviour

Question 41

Conciliation

Answer 41

Shares all the same elements as mediation except that; > The conciliator will listen to facts and evidence presented by both sides and make suggestions regarding resolving the dispute > The conciliator will generally be an individual with specialist knowledge in that field pertaining to the legal dispute e.g. family law

Question 42

When is Conciliation Used?

Answer 42

Can be ordered by courts as with mediation, however mediation is much more common in the courts and conciliation tends to be the main method used in tribunals and complaints bodies

Question 43

Appropriateness of Conciliation

Answer 43

> Parties are willing to negotiate reasonably and calmly > Parties prefer privacy and confidentiality > Parties desire a more informal process and want control over deciding the outcome < Parties are highly emotional < A power imbalance exists between parties < Parties desire a legally binding result to their dispute or prefer a more formal process

Question 44

Mediation Fairness

Answer 44

+ Allows for parties to control the outcome of their dispute through compromise ensuring an outcome is achieved without bias and parties can participate + The mediator is an impartial third party - Openness is limited as mediation occurs in private and the decision is not published - A power imbalance between parties may cause a forced and unfair resolution to be reached

Question 45

Mediation Equality

Answer 45

+ Formal rules of evidence and procedure do not apply allowing each party to present their perspective + Unrepresented parties are unlikely to face disparity or disadvantage due to the informal nature of mediation - If one party is more vulnerable or a power imbalance exists between parties, a forced outcome may be reached that does not equally benefit both parties

Question 46

Mediation Access

Answer 46

+ Increases financial engagement due to the lower costs as compared to court + Mediation can occur privately, increasing the physical engagement of parties - Given legal representation is not often used, parties may have a lower informed basis regarding how to pursue mediation - Engagement may be limited by hostile parties that are unwilling to negotiate

Question 47

Conciliation Fairness

Answer 47

+ Ability to control outcome, decreasing ability for bias + Conciliation suffers less backlogs than courts, increasing the ability of parties to participate with fresh evidence - The decision reached in conciliation is not legally binding, exposing the outcome to one party not complying, decreasing impartiality - Again, the decision does not have to be made public limiting openness

Question 48

Conciliation Equality

Answer 48

+ In many cases, a conciliator will only permit legal representation if both parties have a lawyer, limiting the potential for a power imbalance or disadvantage

Question 49

Conciliation Access

Answer 49

+ More available to engage as less backlogs - Lack of legal representation decreases parties being on an informed basis

Question 50

Arbitration

Answer 50

One of the most formal methods of dispute resolution outside of courts. Involves an independent third party known as an arbitrator who listens to evidence from both sides and makes a legally binding decision known as an arbitral award. Is conducted in private, can be less formal and more cost effective than attending court. Is commonly used by parties involved in large commercial disputes/transactions that are seeking to resolve contractual disputes outside of court. Some commercial contracts specifically state that arbitration will be used to resolve any arising disputes. Not bound by rules of evidence and not required to conduct proceedings in a formal manner.

Question 51

When is Arbitration Used?

Answer 51

In private; > Arranged by parties themselves > Usually involving commercial transactions - due to terms in contract > Takes place at Dispute Resolution Centre/Melbourne Commercial Mediation and Arbitration Centre In court; > When a small claim of less than $10,000 is filed in the Magistrates Court it is obliged to be referred to arbitration > Magistrates can also refer matters to arbitration with the consent of parties of amounts above $10,000 > In CC and SC judges can request that parties attend arbitration if they consent In tribunals; > VCAT can refer parties to arbitration before the final hearing however does not conduct the arbitration process itself

Question 52

Appropriateness of Arbitration

Answer 52

> When parties consent or agree to attend arbitration or it is included as part of their contractual agreement > When the matter is below $10,000 and was filed in the Magistrates Court > When parties what to benefit from a legally binding decision < When parties desire the decision to be made public to bring awareness of the case < When parties desire a more informal, cost-effective dispute resolution < When parties desire more control over the outcome of the case

Question 53

Strengths and Weaknesses of Arbitration

Answer 53

+ The decision is legally binding and fully enforceable in court allowing further participation of parties if required + The arbitrator is generally an expert on the subject matter which can increase the informed basis of parties + Equality is upheld by both parties not having to follow strict rules of evidence - it is on the parties to control how arbitration is conducted - Parties have no control over the outcome, which is imposed on them by the arbitrator, decreasing participation - Arbitration decreases openness as it can occur in private meaning the decision does not need to be publicised - Financial engagement can be limited as arbitration is a more costly method of dispute resolution and often requires legal rep.

Question 54

Reasons for Court Hierarchy Administrative Convenience

Answer 54

Refers to the ability of courts to distribute resources more effectively by organising disputes according to how serious or complex they are. This is because; > The superior courts, such as the SCs, are free to devote time and resources to long and complex disputes as the court is not delayed in resolving minor disputes > The lower courts, such as the MC, can quickly resolve a large number of relatively minor disputes, minimising delays for parties to such disputes.

Question 55

Strengths and Weaknesses of Administrative Convenience

Answer 55

+ Minimises delays by having superior courts focus on more complex disputes - Less opportunity to receive the expertise of a supreme court justice

Question 56

Reasons for Court Hierarchy Appeals

Answer 56

Are a legal process that a dissatisfied party may pursue to have the court's decision reviewed by a higher court. Is not automatically entitled to an appeal - must be granted leave to appeal and have the legal grounds to do so. > Question of Law > Question of Fact > Question of Remedy

Question 57

Grounds for Appeal Question of Law

Answer 57

Arguing that the law has not been correctly applied e.g. accepting inadmissible evidence or wrong legal test to the case (error of law).

Question 58

Grounds for Appeal Question of Fact

Answer 58

Whether the facts of the case have been applied appropriately to reach a decision (error of facts).

Question 59

Ground for Appeal Remedy Awarded

Answer 59

Cannot be appealed from the MC on the remedy awarded.

Question 60

Permission to Appeal to the HC

Answer 60

HC can hear appeals from the SC(CoA) however dissatisfied parties do not have an automatic right to appeal to the HC. The HC and CoA will only grant permission to appeal if; > The question of law is of public importance > There are differing opinions on the law, and it requires clarification

Question 61

Strengths and Weaknesses of Appeals

Answer 61

+ Allows participation as parties dissatisfied with an outcome are able to seek a correction - Increases delays within the civil justice system

Question 62

Roles of the Judge Case Management BEFORE Trial

Answer 62

> Ensuring the case is ready for trial by making orders and directions > Determine whether the matter can be resolved prior to trial commencing to save parties time and costs > Give directions to parties as they have an obligation to have a party or both parties to do something by a certain time or specify how a civil proceeding will be conducted > Filing documents by a certain date, discovery process ensuring parties get copies of each others documents that are relevant to the issues in the disputes

Question 63

Roles of the Judge Case Management DURING Trial

Answer 63

> Ensuring court procedure is followed > Limit examination-in-chief and cross-examination of witnesses > Limit the number of witnesses > Limit the number of documents parties may tender to evidence

Question 64

Roles of the Judge Determining Liability and Awarding Remedies

Answer 64

> Judge must remain impartial and listen to all evidence > Based on the evidence and if there is no jury present the judge determines liability given that the plaintiff has met the burden and standard of proof > Additionally, the judge will need to determine a remedy for the wronged party

Question 65

Strengths and Weaknesses of the Role of Judges

Answer 65

+ Independent judges and magistrates ensure trials are conducted w/out bias and according to the rules of evidence thus contributing to fairness as decisions are impartial, based on evidence and law alone + Judges and mag. ensure rules of evidence and procedure are applied equally to all parties during a dispute + Judges and mag. case management powers such as setting time limits for submitting evidence and ordering mediation minimise the cost of a civil dispute, enhancing financial engagement of access - Judges and mag. rely on the parties to present all evidence and thus parties w/out legal rep may have decreased impartiality as it may result in not all relevant evidence being presented or not being presented in the best light, limiting fairness - Judges and mag. are human and may be subject to personal bias and may discriminate against parties based on personal characteristics, thus limiting equality - Due to limited financial engagement, some parties may be prevented from accessing the expertise of a judicial determination at court

Question 66

Counterclaim

Answer 66

Defendant files a separate claim in response to the plaintiff's claim and usually heard at the same time

Question 67

Role of the Plaintiff Party Control

Answer 67

The power to determine the course of proceedings by; > Choosing which court to bring their claim > Choosing what evidence to present > The choice of witnesses to use > What defences they will raise These decisions, whilst made by the plaintiff, must comply with the rules of evidence and procedure

Question 68

Role of the Plaintiff Disclosing Information to the Defendant

Answer 68

> Responsibility of the parties to ensure all relevant documents are presented to the courts as per the Civil Procedures Act 2010 (Vic) > If the plaintiff claims to have suffered physical injury, this can be proven through medical records, text, emails and photographs of the injury > The party's role to discover documents continues throughout the trial

Question 69

Role of the Defendant Party Control

Answer 69

Like the plaintiff, the defendant also has party control over how they wish to present their side of the case such as; > Raise relevant evidence > Call their own witnesses > No obligation to present evidence or defences if they believe the plaintiff has not sufficiently proven their case on the balance of probabilities

Question 70

Role of the Defendant Disclosing Evidence

Answer 70

Like the plaintiff, the defendant also has the duty to ensure all relevant documents are presented to the court as per the Civil Procedure Act 2010 (Vic).

Question 71

Role of the Defendant Present Defences

Answer 71

The defendant can present defences to the judge throughout the trial as well as the jury if one is selected.

Question 72

Strengths and Weaknesses of the Role of the Parties

Answer 72

+ Parties in a civil dispute have control of their own case including what facts to present, thus increasing the participation of parties during civil court procedures + Both parties are given an equal opportunity to present their case to the court, promoting formal equality + Courts provide some general guidance to self-represented parties to allow better engagement on an informed basis - Unrepresented parties may struggle to present their case in the best light resulting in an unjust outcome - Equality is hindered by the expense of the civil justice system as those of lower socio-economic status may be unable to pursue a civil dispute - VLA is often unable to support those of lower socio-economic status in civil proceedings and thus the informed basis of parties is limited

Question 73

Juries in Civil Law

Answer 73

A jury is not a guaranteed right in civil disputes and the 6 jurors must be paid for by the parties ($1626 for the first day and then $303.6 for subsequent days) A jury is responsible for determining liability and remedy based on the evidence presented (except defamation). A party must seek approval to have a jury.

Question 74

Role of the Jury Remain Objective

Answer 74

> Should be independent and unbiased or be excused during the empanelment process > Listen to all evidence throughout the trial to ensure the verdict reached is based on relevant evidence and facts

Question 75

Role of the Jury Determine Liabilty

Answer 75

> Determine whether the defendant is responsible for the plaintiff's loss/harm > Reach a unanimous or majority (5 out of 6 jurors) verdict > Calculate the damages other than in a defamation case

Question 76

Strengths and Weaknesses of the Role of the Jury

Answer 76

+ A random cross-section of the community distributes the decision making and increases impartiality + Both parties have the capacity to request a jury regardless of personal characteristics + The use of juries increases the use of plain English rather than legal jargon and thus parties too can be on a more informed basis - Openness is limited by a jury not having to provide a rationale for their verdict - Personal characteristics of low socio-economic status may prevent a party from access to a jury - Efficient and timely access to be informed of a decision may be hindered by a hung jury

Question 77

Solicitor

Answer 77

Legal practitioner who primarily advises clients about legal matters, prepares legal documents for trial, communicates with the other party's legal rep, researches the relevant laws and engages on the services of a barrister and briefs them to represent a client.

Question 78

Barristers

Answer 78

A self-employed lawyer who regularly appears in court and us responsible for representing a party at trial through making legal arguments, questioning of witnesses, summarising the case for the judge and/or jury. May present out of court through another dispute resolution method.

Question 79

Need for Legal Rep Advise Clients of Their Rights

Answer 79

> Allow for a party to better understand their rights and obligations to make an informed decision > Read through part cases to inform their client the likelihood of how their matter may be resolved in terms of outcome and remedy > Legal rep is to remain objective as opposed to a party who may be emotionally invested in the case

Question 80

Need for Legal Rep Present Evidence and Examine/Cross-Examine Witnesses

Answer 80

> Abide by procedural standards including not asking irrelevant questions which a barrister who is trained in such procedures is likely to do so in a way that best supports their clients > Family Law Act 1975 (Vic) prevents the cross-examination of one another in family members and thus a barrister provides the impartiality to complete such processes

Question 81

Need for Legal Rep Ensure Documents are Properly Drafted and Handled

Answer 81

> Affidavits and subpoenas may be required to receive evidence relevant to the case. Those who are not familiar with court proceedings may struggle to ensure such documents are handled. > Once a dispute has finished, ensuring that a legally binding agreement may be formed. Legal rep can ensure that the outcome is binding on both parties and that it is not unfair to their client

Question 82

Affidavit

Answer 82

A written record of a person's evidence that includes facts relevant to the case.

Question 83

Subpoena

Answer 83

A document issued by a government body, such as a court, that orders a person to provide information that can be used as evidence in a case.

Question 84

Legal Assistance in Civil Matters

Answer 84

In civil law, the right to adjourn a trial to source legal rep is not afforded to the parties. A judge, however, has the duty to assist self-represented litigants. VLA > It is more difficult to gain assistance in civil disputes > VLA may grant legal assistance to a plaintiff if their claim is above $5000 and to a defendant if; + the claim is more than $5000 + the defendant's sole home is at immediate risk in the action + strong prospect that the defendant can defend the claim CLCs > Specialist CLCs exist, such as AED, to assist people with disabilities who have employment related problems such as unfair dismissal

Question 85

Strengths and Weaknesses of Legal Representation

Answer 85

+ Legal reps are experts who are able to help the parties navigate the complexities of the civil justice system + Legal reps are removed from the case and are able to provide a degree of objectivity that would not exist for a self-represented party due to their investment regarding the outcome + Legal rep can help avoid delays as a trial will be slowed so the judge can assist a self-represented party - Not all legal rep have the same level of expertise or skill set which may impact the quality of the legal service - Not everyone can afford legal rep - Some may be able to afford legal rep but at the detriment to them and their family, particularly if they lose and are ordered to pay the other party's legal costs