Ch 6 Notes

Question 1

Purpose of Civ JS

Answer 1

1. Enable person to enforce rights over wrongs
2. Determine liability
3. Remedy if liable

Question 2

Stages of Civ Dispute

Answer 2

1. Attempts to resolve
2. Decision to initiate claim
3. Resolve dispute
4. Resolve and remedy
5. Enforcement procedures

Question 3

Pre-trial Procedures

Answer 3

1. Pleadings (explaining claims)
2. Discovery of Documents (sharing doc of evidences)
3. Exchange of evidence (lay/expert?)
4. Directions Hearing (judge intro process)
5. Mediation (judge can order)

Question 4

Documents in Pleadings

Answer 4

1. Statement of Claim
2. Defences

Question 5

Parties of Civ Disp

Answer 5

Courts: Plaintiff + Defendant
VCAT: Applicant + Respondent

Employer - vicarious liability
Children can sue thru a “litigation guardian” and are sued based on maturity

Question 6

Reasons to Claim

Answer 6

1. Compensate for loss
2. Demonstrate that breach is wrong and must be held accountable

Question 7

Factors Contributing to Costs of Claims

Answer 7

1. Fees for legal rep
2. Disbursements
3. Adverse Costs Order

Question 8

Fees for Legal Rep: Depends on…

Answer 8

1. Nature/Size/Complexity
2. Which DR body
3. Expertise of Rep

Question 9

Disbursements: Depends on…

Answer 9

1. Complexity and length of case
2. Which DR body
   e.g. court fees, expert witness fees, printing etc.

Question 10

Adverse Costs Order “general rule”

Answer 10

the successful party should get an order from the court that their costs are paid by the losing party (all or some)

Question 11

Costs: Before claim, should consider…

Answer 11

1. Costs to resolve
2. Have money to pay
3. Damages > costs
4. Legal Aid available
5. If ACO… can pay?
6. Risks if can’t afford ACO

Question 12

Reasons for Limitation of Actions

Answer 12

1. Def not face action after signif time
2. Evidence not lost - still remember
3. Resolve faster - no longer -> cohesion

Vic removed LoA for phys/sexual abuse

Question 13

Enforcement Issues: Before claim, consider…

Answer 13

1. Def has money/assets to pay
2. Def is willing/able to pay
3. Def in jail/overseas/uncontactable
4. Def is company - assets?
5. Access to other money

Question 14

If enforcement issues arise…

Answer 14

“Enforcement Proceedings” - used to force def to comply (e.g. warrant to seize property)

Question 15

Factors to Consider before Claiming

Answer 15

1. Costs
2. Limitation of Actions
3. Enforcement Issues