Legal AOS 2 Flashcards
(32 cards)
Define burden of proof and who does it lie with
Refers to which party is responsible for proving the facts
Lies with the plaintiff
The plaintiff has the burden of proof as they initiated the case, making them responsible for presenting their case to the courts, and gathering enough evidence to create liability on the defendant to the standard of proof.
Define standard of proof and what it is
Refers to how much proof is required to win the case
On the balance of probabilities” is the standard of proof in civil cases, making it easier for parties to prove and disprove their liability. This means the courts will side with who they believe is less liable or “more right”.
Factors of costs to consider before initiating a civil claim
Fees for legal representation : Before starting a civil case, plaintiffs should evaluate the costs of legal representation, including fees and additional expenses. They need to consider the likelihood of success and potential recovery to determine if pursuing the case is financially viable. Exploring legal aid options can also help manage costs.
Disbursements : Out of court costs should be considered before initiating a case to see if the costs are too high in comparison to the possible damages. These include court fees, fees for experts, and fees of mediation ordered by a judge.
Adverse cost orders : Having to pay the defendant’s legal costs if the case is lost. This risk can significantly affect the financial outcome of litigation. Understanding this potential liability is crucial for assessing the overall risks and making informed decisions about whether to proceed with a claim.
Pursuing claim may not be worth
Factors of limitation of actions before initiating a civil claim
Limitation of actions refers to the legal time frames within which a plaintiff must file a lawsuit. These limits vary by claim type and jurisdiction. Failing to initiate a claim within the specified period may result in losing the right to pursue the case.
Ensures the defendant does not have to face liability after a certain amount of time, making the case dismissible
Factors of Enforcement issues before initiating a civil claim
When a party fails to comply with a court order or settlement. This includes difficulties in collecting awarded damages or ensuring compliance with specific court orders set.
This includes :
If the defendant has enough money to pay the damages
If the defendant is in jail, making them harder to reach and pay for damages
If the defendant is overseas and hard to contact or does not want to be contacted
The plaintiff must consider if the defendant is able to pay
The purpose and appropriateness of mediation to resolve disputes
Purpose: An independent third party (mediator) helps the parties communicate and negotiate a resolution. The mediator does not make decisions but assists in communication between the parties, aiming to find a resolution.
Suitable:
-Generally low costs from no legal representation
-Suitable when a relationship needs to continue, the parties want privacy, the court has referred them, the parties want to solve the matter quickly and in a more cost effective way
Unsuitable:
-Unsuitable when there’s overwhelming emotions, history of violence, parties are unwilling, there’s a power imbalance
-If one party wants the matter to transparent and open for publicity
The purpose and appropriateness of Conciliation to resolve disputes
Purpose: Involves a conciliator who takes a more active role in suggesting solutions. The conciliator helps the parties by offering advice on how to resolve the dispute. Conciliator’s suggestions are not binding, however their expertise can guide parties toward an agreement from an unbiased third party.
Suitable:
-Generally low costs from no legal representation
-Suitable when a relationship needs to continue, the parties want privacy, the court has referred them, the parties want to solve the matter quickly and in a more cost effective way
Unsuitable:
-Unsuitable when there’s overwhelming emotions, history of violence, parties are unwilling, there’s a power imbalance
-If one party wants the matter to transparent and open for publicity
The purpose and appropriateness of Arbitration to resolve disputes
Purpose: A more formal process where a third party, an arbitrator, hears evidence from both parties and makes a binding decision to resolve the dispute.
Suitable:
-whether the parties have agreed to arbitrate the dispute
- the claim is less than $10000 and has
been issued in the Magistrates’ Court.
-whether the parties want the benefit of a binding and enforceable decision
-whether both or one of the parties want the dispute to be resolved privately
Unsuitable:
-One of the parties want the claim to be transparent and public
Strengths and weaknesses of Mediation and Conciliation
Strengths:
-Less formal than courts and final hearings meaning it is less intimidating and less stressful for parties
-Much cheaper and more efficient than taking the matter to court
-The matter is more private and confidential
weaknesses:
-The decision is not automatically binding unless a deed of settlement is signed
-There may be a power imbalance and one side is manipulative and stronger
-No ability to appeal the agreement
Strengths and weaknesses of Arbitration
Strengths:
-The decision is binding and is fully enforceable through the courts meaning certainty in the outcome.
-The arbitration is normally held in private and will be confidential, beneficial for parties avoiding publicity
-The parties have control over how the
arbitration is conducted
weaknesses:
-The parties have no control over the outcome leading to the
-Arbitrations can be formal if the parties have agreed on a formal method of arbitration, adding to the stress, time and costs.
Administrative convenience for a Civil Court Hierarchy
Role: refers to cases being sorted by their importance and value to the justice system, going to different courts based on severity and value of cases reducing the burden on courts and improve efficiency.
Reason:
More complex cases, which take more time and are heard in higher courts. For example class actions which are normally large complex cases can only be heard in the supreme court. In doing so, cases are heard efficiently and effectively.
Appeals for a Civil Court Hierarchy
Appeals : Having a higher, more experienced judge, review a case heard in a lower court if a party believes their case was not heard properly in the name of justice. Appeals can only be heard however if there is grounds to appeal or ‘leave’, and the higher court approves to hear the case.
Appeals can be heard from :
A point of law
Remedy awarded
A question of fact / Liability
Reason:
If a court hierarchy didn’t exist, there wouldn’t be a higher court to review decisions when a party believes an error has been made
The role of the judge in a civil dispute
Responsibilities:
Act impartial : Act without feelings
Case management : Give directions to parties and control the progress of legal cases more effectively and efficiently.
Case management involves
Discovery : Make parties share evidence and documents with each other
Mediation : Order parties to attend a mediation sessions
Limit witnesses
Set due dates for procedures and documents
In doing so, it aims to ensure just, efficient, timely and cost effective resolution of the issues in the dispute.
-Decide on admissibility of evidence
-Attend to the jury (if there is one)
-Determine liability and remedy
-Decide on costs
The role of the the plaintiff in a civil dispute
Responsibilities:
-File a claim
Make decisions about the conduct of the case
Known as party control
Parties make decisions about how their own case will run
Discover relevant documents
Comply with overarching obligations
Obligations designed to improve the standard of conduct
The role of the jury in a civil dispute
Responsibilities:
6 members
To be objective : Make judgements based on the evidence available, and not personal views or values that can hinder fairness and create bias to a party.
Listen and remember evidence : Used to determine liability
Understand directions and summing up : Listen to the judges directions
Decide liability : The jurors will deliberate together and determine liability
Decide damages : The jurors may be called by the judge to assist in determining damages
The role of the the defendant in a civil dispute
Responsibilities:
-Whether to take liability
-File a counterclaim
Make decisions about the conduct of the case
Known as party control
Parties make decisions about how their own case will run
Discover relevant documents
Comply with overarching obligations
Obligations designed to improve the standard of conduct
Reason for legal practitioners in a civil dispute - 5
Responsibilities:
-Legal practitioners understand complex legal procedures and ensure proper case handling.
-They help present evidence and arguments effectively in court.
-They advise clients on their rights and obligations under the law.
-They ensure compliance with legal timelines and court rules.
-They help negotiate settlements or resolve disputes outside court, saving time and costs.
The purpose and appropriateness of class actions
A legal proceeding where a group of people who have a claim based on similar or related facts bring that claim to court in the name of one person
Must be at least 7 people
All claims give rise to common question of law or fact
Opt out model = Any decision will bind those who do not opt out of a class action
Limits : Costs
Costs generally limit class actions because they are expensive to set up as class actions are heard in the Supreme Court, and there are seven plaintiffs at minimum.
Adverse cost orders also deter class actions because there is no legal requirement for group members to pay the costs of the class action, making the lead plaintiff responsible for all the costs of going to court, as well as possible fees to pay for the defendants legal costs.
However, a litigation funder can remove this burden as they will fund the class action out of interest for the result, or a portion of the damages. A litigation funder is beneficial because they will cover the costs of the case even if it fails in court.
Strengths and weaknesses of class actions
Strengths:
-less costly
-saves times for the courts
Allows those who may not be able to initiate a claim to do so
weaknesses:
-Some people may not know that they have to opt out
-Remedy is spilt
-IF financed by a litigation funder, they take a percentage
The purpose and appropriateness of CAV
Consumer Affairs Victoria (CAV) is a complaints body that helps protect consumer rights and enforces consumer laws in Victoria with no legally binding outcomes.
Jurisdiction: Handles disputes related to consumer rights, tenancy, and businesses only in Victoria, and not other states.
Appropriateness:
Cost: Free service, making it accessible for consumers and tenants.
Jurisdiction: Limited to certain civil disputes; cannot handle criminal matters or large-scale complex cases.
Enforcement: Is not legally binding unless a deed of settlement is signed.
Efficiency: Quicker than court processes, but may be slower for complex cases.
CAV cannot be used if VCAT was previously used.
CAV does not have any compelling powers, only for cooperating parties
Not suitable for parties who want a formal experience
Not suitable for parties with a power dynamic
The purpose and appropriateness of VCAT
VCAT is a A tribunal meaning that it’s a dispute resolution body that deals with limited areas of the law.
VCAT’s purpose is to provide Victorians with a low cost, accessible, efficient and independent tribunal delivering high quality dispute resolution process
VCAT has compelling powers over the parties
VCAT is legally binding
Appropriateness:
Must be in VCAT’s jurisdiction in its 5 divisions
VCAT should be used when parties cannot cooperate or come to a resolution
VCAT should not be used if costs outweigh the possible damages
VCAT should not be used if parties want a formal experience
VCAT should be used for a faster resolution, the fast track program.
VCAT should be used for less stressful situations for parties
Strengths and weaknesses of CAV
Strengths:
-CAV’s service is free meaning all Victorians have access to this service
-CAV uses conciliation which is informal meaning it can reduce stress for parties
-CAV ensures procedural fairness so both parties can resolve the dispute fairly
weaknesses:
-CAV has limited jurisdiction for certain matters, being unable to assist other matters
-CAV has no power to compel parties to attend conciliation
-CAV is not legally binding unless a deed of settlement is signed
Strengths and weaknesses of VCAT
Strengths:
-VCAT is cheaper than courts as VCAT’s costs is not as expensive as the pre-trial fees
-VCAT can resolve disputes in a fast manner
-VCAT’s decision is binding as well as enforceable
-VCAT is less formal than courts where parties feel more welcoming
weaknesses:
-VCAT can expensive if legal representation is used
-VCAT has had suffered delays meaning cases may still take some time
-Decisions can only appeals to the supreme courts making it complicated
-VCAT may be too informal
The purpose and appropriateness of Courts
Purpose: A dispute resolution body with wide jurisdiction.
Appropriateness:
Courts should be used as a last resort if other dispute resolution methods won’t work
When parties want a formal resolution
The courts have compelling powers for uncooperative parties
Legal representation is promoted
A larger jurisdiction than all other dispute resolution methods
Costs must be considered if going to court is worth the damages
If a class action wants to be used
If remedies are not urgent, as the courts take time and subject to many delays
If parties want a jury to be used
