Civil Flashcards
(26 cards)
liable
an outcome whereby the courts finds that the defendant is responsible for causing the infringement as a result of their acts or omission
Representative proceedings:
Also known as ‘class actions’, these are claims initiated by the plaintiff on their own behalf (known as the lead plaintiff) and, on behalf of ‘group members’ where the claim arises out of similar or related legal interests.
A minimum of 7 members are required to form a class action.
Strengths of rep proc
- Class action save costs and allow individuals ability to pursue an outcome over a complex legal matter without being hindered by high costs. This is because costs are often shared among a large group of people making them more accessible/affordable.
- Individuals involved gain a share of the damages awarded, this varies depending on the gravity of injuries suffered
- Court resources are used efficiently by determining a large number of claims in a timely and efficient manner, reducing delays and improving access
- Class actions can remove power imbalance, allowing individuals to hold large powerful organisations to account
- Legal practitioners have professional responsibilities guided by the Civil Procedures Act 2010 (Vic) and court rules to uphold ethical duties to the courts, protecting against any conflict of interest
weaknesses of rep proc
- Group members are bound by the judgement, unless they opt out, and they are unable to initiate a private claim in future
- There has been controversy over the equitable distribution of amounts awarded among a large number of claimants e.g. payouts to over 5000 claimants from Black Saturday bushfires
- Excessive legal costs of litigation may consume the entire amount awarded by the court and therefore leave the claimants with no payout/remedy
- Due to the complex nature of class actions including high volume of evidence to be considered, these types of disputes can take months if not years to settle (e.g. the Black Saturday bushfires class-action took nine years to settle)
- Litigation funders are likely to only accept matters with a high likelihood of success
- Percentage or commission charged by litigation funders equals between 25% to 40% of any compensation awarded
factors to consider when initiating
negotiation options, costs, limitation of actions, scope of liability, enforcement issues
CAV
an independent, government, statutory body created to regulate, monitor and educate consumers on their rights and, obligations of businesses.
who can CAV assist
provided
§ Disputes between landlords and tenants regarding rental properties
§ Disputes regarding sale of property with regards to real estate agents, auctions, private sales
§ Disputes regarding between seller and purchaser with regards to the sale of a motor vehicle
§ Disputes that involve building and renovation of property
§ Disputes that involve tenants within retirement villages
criteria to accessing CAV
§ Does the matter fall within CAV’s jurisdiction?
§ Have the parties attempted self-help but have been unsuccessful?
§ Is there is reasonable likelihood of success?
§ Neither VCAT or courts have been involved in the dispute
VCAT
Definition:VCAT is a statutory, independent government body that was established in 1998 in order to hear minor civil disputes.
Legislation: VCAT derives is jurisdiction and powers from the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
Purpose: The purpose of VCAT is to provide individuals with a relatively cheap, timely, informal and efficient manner to resolve their civil disputes.
MC original and appellate
up to$100,000 no appellate
CC original and appellate
unlimited jurisdiction and no appellate
SC (TD) original and appellate
unlimited
point of law from MC
SC (COA)
no original
appeals from single judge SC or CC
HC
constitutional and federal manners
appeals from single justice of HC, SC
Reasons for court hierarchy
appeals, administrative convenience
role of judge
Undertake case management, Overseeing jury selection and empaneling process, Deciding admissibility of evidence, Enforcing rules of evidence and procedure, Determining a remedy
role of jury
Listen and evaluate evidence, Applying the law, Deciding fault + awarding damages
role of parties
§ Initiating legal action and nominating the relevant court to hear the matter
§ Determining whether a jury will be used
§ Pre-trial processes
§ Identifying key issues to be presented in court
§ Researching and controlling the evidence, the law and its presentation
§ Determining the type and witnesses to be called
role of legal practitioners
§ Represent their clients in court through preparing + presenting their case
§ Protecting the rights of their clients by ensuring fair + equal treatment in the courtroom
§ Researching facts and the relevant law
§ Deciding the order and presentation of relevant materials and witnesses
civil pre trial procedures
letter of demand, writ, notice of appearance, pleadings, discovery
letter of demand
A letter of demand is a letter sent from the plaintiff (usually via their solicitor) to the defendant advising them that legal proceedings will be initiated unless an agreement is reached. The purpose of this document is:
§ Establish the nature of the plaintiff’s claims & remedy sought
§ Indicates a time limit (usually 14 days) where the defendant must respond
§ Informs the defendant that a writ will be issued and served if failure to respond
§ Enables an early settlement without litigation (court)
Writ:
Definition: A writ is a formal document that is issued to the defendant and also to the Supreme court to outline the nature and facts of the case. A writ is the beginning of the litigation process.
A writ is issued when the letter of demand does not resolve the matter.
Legislation: The Supreme Court Rules 2015 – writs are part of the requirements of pre-trial procedures for only the Supreme Court.
Purpose:
§ Informs the defendant that litigation has now been initiated
§ The title of the action, full names + addresses of the parties and statement of claim
§ Provides timely execution of the writ (within 12 months) – going to court
§ Explains the protocol for issuing the writ – the document can be served personally or via fax or telephone
Notice of appearance:
Definition: This is a document that is lodged by the defendant within 10 days of receiving the writ to indicate their intention to defend the claim.
Legislation: The Supreme Court Rules 2015
Purpose:
§ Allows the defendant to choose whether they will represent themselves by filing a Notice of Appearance or ignore the writ (this may result in a default judgement being made against the defendant)
Informs the plaintiff that the action will be defended.
pleadings
This refers to a process whereby a large number of documents and information is exchanged between the plaintiff and defendant. Pleadings begins as soon as the Notice of Appearance is lodged by the defendant. Pleadings will consist of the following being exchanged:
§ Statement of claim
§ Defence/and or counterclaim
§ Reply