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year 12 legal studies > civil law booklet 2 > Flashcards

civil law booklet 2 Flashcards

1
Q

lesson nine (36)

what is a class action?

A
  • legal cases filed by a single representative on behalf of seven or more ppl
  • the claims of the parties being rep in ca will be based around the same / sim / rel circum - these claims will gen raise subst comm factual & leg qs
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2
Q

lesson nine (36)

what are class actions also known as?

A
  • representative proceedings
  • group proceedings
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3
Q

lesson nine (36)

what is the criteria for a class action?

A
  • 7 or + ppl claiming against the same def (s)
  • claim must arise from the same / sim / rel circum
  • claim must give rise to a comm issue of law / fact = meaning same issues are det my the courts for all claims = j must only refer to the 1 type of leg disp
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4
Q

lesson nine (36)

whilst the lead plaintiff of a class action has the same obligation as any other pplaintiff in an individual litigation, what are some additional obligations specific to class actions? (role of lead plaintiff)

A
  • assuming the risk & $ of litigation on behalf of the entire group
  • ens claim serves inter of group mem & x pursued solely for pers ben
  • prov instruct to their lawyers reg conduct of the claim & making dec reg sett / neg
  • filing the case under their own name
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5
Q

lesson nine (36)

what is the lead plaintiff solely responsible for if the class action fails?

A
  • the $ of the proceedings & any adv $ orders
  • group mem = x oblig to contrib to proce $ unless or until succ outcome is known
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6
Q

lesson nine (36)

how is the cost handled if the class action is successful?

A
  • class mem = share the $ of bringing the proceedings
  • $ = shared among
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7
Q

lesson nine (36)

what courts hear class actions?

A
  • the SC TD of vic
  • fed court of aust
  • dep on nature of the claim
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8
Q

lesson nine (36)

what are the strenghts of class actions?

A
  • liti funders –> incr c.a. brought in circum where indivi liti = lack $ –> incr part
  • c.a. man by exp & imp j –> case cond = eff & imp
  • juries = avail in SC –> allow case = det by imp / x-sect of soc
  • c.a. = more eff way of dealing w/ no. of claim –> sav time & court res
  • c.a. dec $ for def
  • c.a. usu supp by exp lawyers –> ens case = pres in best poss light for all group mem
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9
Q

lesson nine (36)

how do class actions decrease the costs for defendants?

A
  • def can respond to multiple claims, all w. sim in 1 proceeding rather than having to go through sep proceedings
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10
Q

lesson nine (36)

what are the weaknesses of class actions?

A
  • lead plain = req assu risk & $ of lit on behalf –> unfair
  • juries = x avai if c.a. = fed court aust –> cas = x det by imp x-sect of comm
  • x lit fund obtained –> lead pl may x be willing to bear $ assoc
  • dep on sett reached, share given to each after costs = min esp if large % –> lit funders
  • c.a. extr $ req 3rd party to fund –> w/o x comm
  • c.a. long time - heard & compl –> sev yrs due to amount of evid req t/f delaying reme & just to plaintiffs
  • some group mem may not get adequ / up to date info about procee –> lim abil to part in civ just sys
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11
Q

lesson ten (37)

what is CAV?

A
  • Consumer Affairs Victoria is a stat body = it was est as a result of vic parli massing legistlation
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12
Q

lesson ten (37)

what was the legislation passed to form CAV and allow it to be an oversee body & administer laws into society?

A
  • Australian Consumer and Fair Trading Act (vic) 2012
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12
Q

lesson ten (37)

what are the purposes of CAV?

A
  • enf compliance w/ consum law
  • prov info & guid to edu ppl about consum laws / rights & resp of bus & consum
  • in lim circ = prov consum / traders / ll w/ disp resolu process
  • advi vic govt on consum leg
  • prov access disp resol serv
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13
Q

lesson ten (37)

what are the most common civil matters that CAV can assist with?

A
  1. a complaint against a bus by a consum who believes that aust consum law & fiar trading act 2012 (vic) has been breached
  2. a complaint against a ll by ten who believes the Residential Tenancies Act 1997 (vic) has been breached
  3. a complaint made by the consum about buying & selling of new & used cars.
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14
Q

lesson ten (37)

in what circumstances is CAV appropriate?

A
  • disp falls w/n CAV jurisdiction
  • parties attempted to resol disp themselves (email / phone call / face to face)
  • bp willing to attend & part in concil (relat part = posi)
  • parties wish to avoid $ & delays assoc w/ reso disp through courts / VCAT (student / young parent)
  • part willing to settle t/f incr the likelihood of a succ resol (bus that x want neg public)
  • bp = will to comply w/ the agreement reahed during concil
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15
Q

lesson ten (37)

in what circumstances is CAV inappropriate?

A
  • disp = x fall under CAV’s juris
  • part = x attem to resol disp themselves
  • one / bp x will to att & part in concil (lack of communication)
  • there is a better meth of resolthe disp, incl via an alt organ that is better suited to dealing w/ matter
  • court / VCAT already ruled on the matt / case curr waiting to be heard
  • disp = initi by a ll / bus
  • disp = c.a
  • one or more part want leg bind dec
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16
Q

lesson ten (37)

what are the strengths of CAV?

A
  • quick & rel eff meth for part to res w/o delays & stress assoc w/ trial whilst also allowing imp process through concil
  • CAV = free –> if party = x aff bring claim thr courts / VCAT = still able to part in just sys –> f
  • uses concil = takes advt of an exp concil & able to prov parties w/ sugg –> fairer & more eff outc
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17
Q

lesson ten (37)

what are the weaknesses of CAV?

A
  • CAV = x pwr to compel parties to undergo concil –> willing party to dispute = x able to use CAV’s disp reso serv if other party = x willing
  • CAV = x pwr to enf any decs reached by parties in concil / unless bind agree @ concil –> 1 party ign outcome –> parties x better off
  • CAV = x app for large & cpx disagr = incl diff leg qs / sev diff parties = which only resol by court or trib that has greater exp in law
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18
Q

lesson eleven (38)

what is VCAT?

A
  • vic civ & admin tribunal
  • an indep trib which hears & det a no. of civ law matters.
  • using inf processes & the dec of the trib are leg bind & enf thr the courts
19
Q

lesson eleven (38)

who are the parties in VCAT?

A
  • applicant
  • respondent
20
Q

lesson eleven (38)

who is the applicant?

A
  • the person who is applying to have their disp resolved - gen aggrieved party
21
Q

lesson eleven (38)

who is the respondent?

A
  • the person who is responding to a claim made against them
22
Q

lesson eleven (38)

what are the five divisions of VCAT?

A
  • residental tenan div
  • admin div
  • Planning & environ div
  • civ div
  • hum rights div
23
Q

lesson eleven

what disputes fall outside of VCAT’s jurisdiction?

A
  • c.a.
  • cases where parties are resid from diff states
  • cases inv the exercise of fed juris
  • cases where cth of aust is party
  • cases inv aust constit
  • disp b/w neigh
  • dis b/w employer & employee
24
Q

lesson eleven (38)

what are the purposes of VCAT?

A
  • prov low-$ disp res serv
  • prov eff disp res serv
  • prov access disp res serv
25
Q

lesson eleven (38)

what are the methods of resolving disputes within VCAT?

A
  • fast-track med & hearing
  • med
  • comp conferences
    –> if unsuit / unsucc
  • final hearing
  • app a VCAT dec
26
Q

lesson eleven (38)

when is VCAT appropriate?

A
  • matt falls w/n their juris
  • parties preg inf disp reso proc
  • parties want to try & reso disp thlvs / have agency over outcome
  • parties like option to neg but if unsucc w/ to have a leg bind dec enf in a hearing
  • bp = willing to comply w/ agreement reached dur med
  • parties = willing to app only on q of law
  • parties want low-$ & time eff reso of disp
27
Q

lesson twelve (39)

what is judicial determination?

A
  • when dec has been reached by a judge / mag will make a leg binding dec after parties pres their cases at a trial or hearing
28
Q

lesson twelve (39)

what are the purposes of courts?

A
  • prov access to an exp & indep leg expert
  • prov access to a trial by jury
  • prov a method to res c.a
  • prov parties w/ leg binding & enf outcome
  • prov an avenue for an appeal
  • prov a leg setting for prec to be est
29
Q

lesson twelve (39

when are courts appropriate?

A
  • if claim falls w/n the juris of the courts & x be heard at any other avenue e.g. c.a
  • matt is leg cpx issue that may req the exp of a highly experienced adjudicator
  • parties consid $, time & delays assoc w/ court proceedings & bp have the funds to sat these fcts
  • parties would pref forma associated w/ strict rules of evid & proc found w/n court trial
  • parties have att to res disp thr other means (med / neg) & att = futile in res the disp
30
Q

lesson twelve (39)

when are courts not appropriate?

A
  • parties want to neg & res disp thsvls w/ abil to infl outcome
  • 1 or bp may x want to deal w/ compli pre-trial proc, the req for filing a claim in court & rules of evid & proc
  • parties pref less $ & time consum disp reso method
  • parties wish to self-rep / x eng in leg rep
  • parties wish to maintain an ongoing rel w/ each other since the adv nat of courts
31
Q

lesson thirteen (40)

what are the costs of CAV?

A
  • free - should CAV take on the matt (x auto) = use of concil = free
32
Q

lesson fourteen (41)

what are remedies?

A

a court order that aims to enforce a right be preventing / correct a civ breach by ret the plaintiff to their o.g pos

33
Q

lesson fourteen (41)

what are the two types of remedies?

A
  • damages
  • injunctions
34
Q

lesson fourteen (41)

what are damages?

A
  • type of remedy in which monetary compensation is awarded to the plaintiff in a civ disp to compensate their loss caused by a civ breach
35
Q

lesson fourteen (41)

what are the categories of damages?

A
  • compensatory
  • exemplary
  • nominal
  • contemptuous
36
Q

lesson fourteen (41)

what are the purposes of damages & injunctions?

A
  • return the plaintiff to their o.g position
  • uphold the plaintiff’s rights
  • det others from comm civ breaches
37
Q

lesson fourteen (41)

what are the three types of compensatory damages?

A
  • specific
  • general
  • aggravated
38
Q

lesson fourteen (41)

what are specific damages?

A
  • dam that can be given in a prec monetary value & which are easily quant (e.g. dam for med expenses)
39
Q

lesson fourteen (41)

what are general damages?

A
  • damages which will be assessed by the court according to the magnitude of the wrong done & the long term consqu of the wrong
  • gen est = x easily quant (e.g. dam for pain & suff)
40
Q

lesson fourteen (41)

what are aggravated damages?

A
  • add compen dam which can be awarded to the plaintiff if the court bel that the def conduct res in the humiliation & insult of the plaintiff
41
Q

lesson fourteen (41)

what are nominal damages?

A
  • dam awarded to plaintiff of only a small monet amount b/c the aim = x compen plaintiss but make a pt that plaintiff is leg in the right & show plaintiffs civ rights = infring
42
Q

lesson fourteen (41)

what are contempuous damages?

A
  • dam awarded to plaint of only a small sum of $ b/c desp leg right to dam court bel plain = x have moral right to dam
  • x des paid dam
43
Q

lesson fourteen (41)

what are exemplary damages?

A
  • dam rth large sum $, awarded to the pl w/ aim of making an ex of def & punishing them for engaging in reck / mal / cruel beh which showed a scornful disreg of the pl
44
Q

lesson fourteen (41)

what is an injunction?

A
  • a court order that compels a party to do smth or prev a party from doing smth
45
Q

lesson fourteen (41)

what are the types of injuctions?

A
  • restrictive
  • mandatory
  • interlocutory
  • final

year 12 legal studies (5 decks)

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