Civil Law Flashcards
(40 cards)
Define sue
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
Define litigate
commencing a civil action in court- normally begins by seeking legal representation and filing f a writ
Define liable
finding that one party is responsible for the other’s loss/ infringement
Define remedy
orders made by a court or tribunal to address a civil wrong or breach- designated to restore the plaintiff back to their original position. Remedies can be in the form of injunctions or damages
What are common law disputes
Negligence, defamation, breach of contract, family law and trespass to law
Define the plaintiff
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
Define the defendant
the party who is alleged to have infringed the plaintiff’s rights or is alleged to be responsible for the wrongdoing
What are the parties in a civil dispute
plaintiff and defendant
Define the burden of proof
rests on the plaintiff, follows the principle that the party that brings the case must satisfy the decision maker.
- may sometimes rest on the defendant: if they choose to counter claim or if the defendant raises a defence (eg. contributory negligence)
Define the standard of proof
the strength of the evidence needed to prove the case, in civil law the plaintiff must prove their case on the balance of probabilities. meaning that it is more likely that the claim is true than not, less strict standard when compared to criminal law
Define cost factors including examples
Parties will generally break the cost for resolving disputes.
-Legal representation: may choose to hire a solicitor and/or barrister. Solicitor will be needed to seek legal advice or to draft and file documents. A barrister may be needed to represent there client in pre-trial hearings or present the case in court.Senior barrister= $600p/h with KC billing $1000 p/h
-Disbursements: costs outside of legal rep= filing fee, hearing fee, fees for jury. A writ in the County court = $779, hearing= $800, jury= $1606 for the first day then $303.60 for other days.
- Adverse court orders: other party pays for other parties legal fees. Loosing party pays for successful party
Define limitation of actions including examples
a restriction on the time limit in which a plaintiff must commence a civil action in court, after which time, the plaintiff is unable to bring an action relating to the civil wrong against the defendant
-LEGI: Limitations of Actions Act 1958 (vic) outlining the time frame
-Why the time frame exists: encourages to bring to court in a timely manner, ability for witness recall of incident from memory more accurately, quality of the evidence claims remain high, defendant does not have to defend a civil action after a significant amount of time
-Extensions from the judge are possible on groups of date of discovery
-EXAMPLES: Defermation=1 yr, personal injury=3yrs, negligence=6yrs
Define enforcement issues including examples
a factor that involves the plaintiff considering that if they are successful in their claim, can their claim be enforced on the defendant. Defendant able to fulfill their legal obligation
-Enforcement issues can include: declare bankrupt or unemployed, defendant is a company that doesn’t have the assets to pay the damages, in prison or overseas, defendant cannot be identifies or is unknown
-Plaintiff may have to issue enforcement proceedings= sherifs warrant to seize good and assets to retrieve their money
Define impartiality in civil disputes with 2 examples
-The plaintiff can have an independent and impartial adjudicator preside over their dispute: this could be in the form of a judge, mediator or arbitrator
-Civil Procedures Act 2010 (Vic) to ensure that rules of preparing and presenting a case is applied to both sides: disclosure during discovery or case management
Define participation in civil disputes with 2 examples
-Through a series of pre-trial civil procedures such as pleadings, discovery of documents and directions, the defendant can gain information about the case against them and prepare
-both parties have the same opportunities to present their case or side to the judge and jury during trial
Define open process in civil disputes with 2 examples
-should parties choose to mediate or conciliation as their method to resolve disputes, this may be held in private, leading to a lack of open process
-disputes that utilise the courts are open to the public including the court’s judgment, this promotes transparency over judicial decisions and, accountability of legal professionals
Define same treatment in civil disputes with 2 examples
-All parties can initiate a claim if they can demonstrate an infringement of their rights and losses
-All parties can engage in legal rep to provide them with legal assistance
Define different treatment in civil disputes with 2 examples
-if a party cannot afford legal rep and must self-represent, a judge or magistrate may need to take steps to explain certain rights+ processes
-Interpreters may be required for people with limited English to assist with translations
Define engagement in civil disputes with 2 examples
-Class actions/ group proceedings allow for group members to share the costs when taking legal action against a large corporation
-a range of dispute resolution avenues also means that courts are less likely to be clogged and experience delays
Define informed basis in civil disputes with 2 examples
-Complaint bodies such as consumer affairs Victoria provide free legal information online to educate consumers on their rights but uses conciliation to resolve disputes free
-self-help requires that the parties have a certain level of education and can articulate and communicate with the other prt which may not also occur
What are the features of mediation
willing parties that are involved in a conversation to resolve a civil dispute
-consider options
-try to reach an agreement through negotiation and compromise
-legal rep not generally involved
-not legally binding unless both parties sign a deed of settlement
-3rd party can’t make suggestions
What are the features of conciliation
-conciliator will listen to facts and evidence presented by both sides+ make suggestions regarding options to resolve
-conciliator will generally be an individual with specialist knowledge in that field pertaining to the legal dispute eg. consumer or family law
Where is conciliation used- 3 examples
-resolution may be enforced if terms of settlement entered into
-resolution os made by parties voluntarily
-used primary by CAV and VCAT
Where is mediation used- 3 examples
disagreements between neighbours, landlords/ tenants, and among family members
