legal studies unit 3 AOS 2

Question 1

civil dispute

Answer 1

• A dispute generally between individuals/groups
• Whereby one party is claiming that the other has infringed on their rights, or wronged them in some way
• Where a party is seeking a reedy from the courts

Question 2

The burden of proof:

Answer 2

The burden of proof is on the party (plaintiff) that has the legal responsibility to prove their case since they initiate legal proceedings. In civil law, the plaintiff has to show through the facts, that the defendant has inflicted a civil wrong through their actions or omissions and have subsequently caused harm.

Question 3

Factors to consider:

Answer 3

• Costs
• Limitation of actions
• Enforcement issues

Question 4

costs

Answer 4

Parties in civil disputes must consider a range of legal costs in the preparation and presentation of a case. These costs include expert legal representation, empanelling a jury, court filing fees, fees for expert witnesses etc.

Question 5

costs- - Legal advice and representation

Answer 5

• costs depend on the nature and complexity of the dispute, the court and lawyers that are involved and whether the case can be settled out of court

Question 6

costs- Disbursements

Answer 6

• Court fees, hearing fees, and jury costs
• Mediation fees
• Expert witness fees

Question 7

Adverse cost orders-

Answer 7

generally the successful party will have some or all of their legal costs paid by the other side.

Question 8

Limitation of actions

Answer 8

Definition: Limitation of action refers to the time period that a plaintiff must commence or initiate their case against a defendant, under the Limitation of Actions (Amendment) Act 2002.

Question 9

Enforcement issues

Answer 9

• If a plaintiff succeeds in a civil action, an order of some type will be made against the defendant. Plaintiff’s also need to consider whether, if such an order is made, they can enforce that order in other words, can the defendant afford to pay the amount claimed by the plaintiff.
• Plaintiff consider factors such as the level of assets owned by the defendant, whether the defendant is in jail or overseas and sometimes even who the defendant actually is.
• Courts ca assist plaintiff enforces orders

Question 10

• Fairness

Answer 10

Fairness is achieved when parties (plaintiffs and defendants) are treated impartially through equitable processes. Fair hearings occur when settling civil disputes through institutions (courts, VCAT) when impartial personnel (judges, juries, mediators) fulfil their responsibilities by utilising procedures (discovery process) and methods (eg mediation) to resolve disputes in a fair and timely manner.

Question 11

components of fairness

Answer 11

• Impartial process- no bias held by a key personnel
  
  • Open process- transparency with procedures
  • Participation- Victims, prosecution and accused all can participate in determination of justice

Question 12

• Equality

Answer 12

Equality prioritises the rule of law, where equal opportunities and treatment exists for all citizens under the law, regardless of differences eg $ocio-economic circumstances. Through the assistance of expert legal representation and processes (directions hearings, representative proceedings), parties are able to protect and exercise their rights to pursue or defend a civil claim. Equality ensures parties are on an equal footing by accessing all relevant evidence that can be tested and determined in institutions (VCAT and Courts).

Question 13

Components of equality

Answer 13

Same treatment
Different treatment

Question 14

Access

Answer 14

Access to the CIVIL justice system allows the parties an opportunity to protect their rights by pursuing their case and seeking remedies (injunctions, damages). By understanding their rights, parties can access ways to pursue, defend or settle a civil claim. Access to institutions (courts and VCAT) utilize effective procedures (pleadings phase and directions hearings) and methods (mediation and judicial determination) to resolve civil legal disputes.

Question 15

Components of access

Answer 15

• Engagement
  
  • Informed basis

Question 16

Methods of dispute resolution:

big MAC

Answer 16

• Mediation
• Conciliation
• Arbitration

Question 17

Mediation= cooperative, non-judicial methods for resolving disputes

Answer 17

Using and independent mediator both parties sit down to discuss the issues they disagree on and try to reach an agreement through negotiation

• mediators are experts in conflict resolution and a third party who manages discussion
• Discussion would be ‘without prejudice’ meaning that the conversation cant be used against them should the mediation fail to settle
• If mediation is successful, parties enter a legally binding contract known as terms of settlement. This binds the negotiation from the mediation.

Question 18

When mediation is more appropriate

Answer 18

Parties genuinely want to resolve the dispute

Parties are able to understand and participate in the process

A continuing relationship needs to be maintained

Question 19

When mediation not appropriate

Answer 19

One party is vulnerable

Parties are unwilling to engage in a discussion about the issues so settlement is unlikely

Parties are highly emotional or there is strong animosity

Question 20

Conciliation- What is it?

Answer 20

a cooperative and informal method of dispute resolution that involves an independent and expert third party called a conciliator. The opposing parties meet with the conciliator, who will listen to their evidence and arguments, explore the issues, before making a non-binding decision called an agreement.

Question 21

When is conciliation more appropriate

Answer 21

Parties genuinely want to resolve the dispute

Parties understand and can particpate in the process

Question 22

When is conciliation less appropriate

Answer 22

One party is vulnerable

Parties are highly emotional

Question 23

Arbitration

Answer 23

is a method of resolving disputes without the formal court process, utilising the skills of an independent 3rd party called an arbitrator. They will preside over the discussion, listen to both sides and will make a binding decision on the parties, called an award, that is enforceable by the courts.

Question 24

Reasons for court hierarchy: Administrative convivence

Answer 24

• By classifying courts in terms of seriousness and complexity to makes for a more effective system
• Adminstative convience refers to the structured organisation of courts in a way that efficiently manages legal proceedings and ensures the smooth functioning of the judicial system

Question 25

Reasons for court hierarchy- Appeals

Answer 25

- When dissatisfied with a decision in a civil trial, they can pursue the matter with a higher court and have it reviewed

Question 26

The role of judge or magistrate

Answer 26

1. Act impartially 2. Case Management 3. Determine liability and remedy 4. Decide on costs Responsibilities of the jury:

Question 27

Responsibilities of the jury:

Answer 27

- Being objective - Listening to the evidence, the judge directions and practitioners submissions - Deciding liability - Sometimes determining damages

Question 28

Responsibilities of the jury: Strengths

Answer 28

Random selection ensures there is no connection to the parties involved and limits bias Allows the community to participate in the justice system Decision making is more likely to reflect the values of society

Question 29

Responsibilities of the jury: Weaknesses

Answer 29

Possibility of unconscious bias Complexity of civil trials makes it sometimes challenging for jurors to grasp Contribute to further delays

Question 30

Responsibilities of the parties (plaintiff and defendant)

Answer 30

- Each parties responsibilities include: - Make decisions about conduct of the case - Disclose all relevant information - Discover relevant documents and exchange evidence - Lay evidence (direct witnesses) - Expert evidence (Such as someone as a doctor giving expert evidence of someone falling because of someone’s negligence)

Question 31

Similarities between parties in a civil case

Answer 31

Both the prosecution and the parties in a civil case have ongoing disclosure obligations, which require them to disclose relevant documents, even if they are detrimental to their own case. Both criminal and civil trials provide an opportunity for the parties to present their case, including allowing them to make openings and closing addresses and examine and cross examine witnesses.

Question 32

Differences between parties in a civil case

Answer 32

- The defendant in a civil case has an ongoing discovery obligation, but thus does no apply to an accused in criminal trial - As there is normally no jury in a civil trial, the parties in a civil trial will generally not have to give opening and closing addresses to the jury or consider other jury issues.

Question 33

Strengths of parties in a civil case

Answer 33

The parties have an ongoing obligation to disclose and ‘discover’ all relevant documents to each other. Both parties have the opportunity to present their cases, including making opening and closing addresses. This also includes the opportunity to examine and cross-examine witnesses.

Question 34

weaknesses of parties in a civil case

Answer 34

Some parties may be more familiar with their disclosure obligations than others; others may have less understanding of the requirement to disclose relevant documents, even those that are not helpful to their case. The processes involved are complex and difficult to understand without the use of a lawyer, thus making it difficult for self-represented parties.

Question 35

Responsibilities of legal practitioners:

Answer 35

- A solicitor will prepare the legal documentation and a barrister will represent the party in a trial - The responsibilities of a legal practitioner include: - Comply with their duty to the court - Make opening and closing addresses - Present the case

Question 36

Strengths of legal practitioners

Answer 36

Utilitses expert knowledge of the legal system Bring more objectivity to the case Reduce delays (when compared to self represented parties)

Question 37

Weaknesses of legal practitioners

Answer 37

Not all lawyers are made equal- there's different experience and skill Lawyers can be expensive In a civil circumstance, the cost of a lawyer could be doubled through adverse costs.

Question 38

Representative proceedings:

Answer 38

Also known as class actions is a civil action commence by the lead plaintiff on behalf of a group of at least 7 people, who are similarly affected by the same or related facts and require the identical legal issue to be decided by a court.  The aim is to facilitate “the just, efficient, timely and cost-effective resolution of the real issues in dispute” for those whose rights have been infringed.

Question 39

Costs in class action:

Answer 39

- Generally, the lead plaintiff is considered to bear the costs of proceeding and any adverse cost orders - Normally this isn't an issue through as law firms will likely enter on a “no win, no fee” agreement - The use of a litigation funder has become a regular feature of a class action - Litigation funders seek a return on their investment by collecting damaged awarded. As a result, they typically fund low risk class actions. Ordinarily they pay the costs of a failed class action too.

Question 40

Ways to fund a class action:

Answer 40

1. No win no fee 2. Litigation funder 3. Group costs order

Question 41

Common types of representative proceedings (class action)

Answer 41

- shareholder class action - product liability class action - Natural disaster class action

Question 42

Assessing for appropriateness for representative proceedings

Answer 42

- Are there enough people with similar circumstances? (At least 7) - Is someone willing to fund the claim? - Is someone willing to be the lead plaintiff? - Is the claim substantial enough to warrant a proceeding?

Question 43

Strengths of representative proceedings:

Answer 43

Group members share responsibility and costs - Efficiency in dealing with claims - Allows people pursue claims they otherwise couldn't - Alternative means of funding action - litigation funders, no win no fee, group costs order

Question 44

Weaknesses of class actions:

Answer 44

- Burden to the lead plaintiff - Avoids multiple claims but is still a significant amount of time due to complexity - Concern about profiting off of the justice system and group members being taken advantage of - Litigation funders take a substantial chunk of earnings - Multiple law firms may take on the same class action with different group members - Lacks party control for group members who may not have up to date information

Question 45

Consumer Affairs Victoria:

Answer 45

- Complaints bodies are established by the government as a way to resolve grievances and disputes - Consumer Affairs Victoria (CAV) is a complaints body focused on consumer legislation and education - People utilise CAV when they feel that their rights as a consumer have been breached - CAV only accepts complaints from consumers and tenants

Question 46

CAV uses conciliation to resolve disputes:

Answer 46

- Conciliation is a process of dispute resolution in which a third party listen to both parties and make suggestions - It is different to mediation because the conciliator is usually a specialist in the field of discussion and the final decision is not legally binding

Question 47

CAV jurisdiction:

Answer 47

- CAV can assist with disputes relating to: - The supply of goods and services - Residential tenancies - Retirement villages - Owners cooperation's

Question 48

The Courts:

Answer 48

Courts are the main dispute resolution body in Victoria, however they are not necessarily the best option for resolving a dispute - When determining if courts are an appropriate method of dispute resolution, consider the following points: - Courts jurisdiction - Other/better ways of solving dispute

Question 49

Remedies:

Answer 49

Return the plaintiff to the position they were in before the harm occurred. - Two types of remedies: injunctions and damages

Question 50

Damages:

Answer 50

Damages are an award of monetary compensation awarded to the plaintiff, paid by the defendant

Question 51

Compensatory damages

Answer 51

specific, general, aggravated: - Aimed to reimburse and compensate the plaintiff for loss suffered

Question 52

Compensatory - Exemplary

Answer 52

- Damages aimed to punish defendant

Question 53

Compensatory - Nominal

Answer 53

Damages aimed to reflect that the plaintiff was legally right

Question 54

Compensatory - Contemptuous

Answer 54

Recognise the right of the plaintiff to make claims but small damages show contempt for the claim

Question 55

Injunctions

Answer 55

An injunction is a direct order compelling a party to do something or preventing a party from doing something. The purpose of injunctions is to rectify a situation caused by the person who was found to be wrong.

Question 56

There are two types of injunctions:

Answer 56

- Restrictive/prohibitive - Mandatory

Question 57

Purposes of injunctions: -

Answer 57

Restoring the plaintiff to the position they were in before the defendant infringed their rights - Preventing further harm to the plaintiff

Question 58

costs:

Answer 58

- Each party is responsible for their own cots - Since January 2017 it costs 835 to file a written order at the county court

Question 59

Delays:

Answer 59

- Can add to costs - Involvement of other parties - Deliberate delays

Question 60

cost factors

Answer 60

Cost factors: - Costs can affect the ability of the civil justice system to achieve justice. This includes: - Legal costs - Increased use of ADR’s - Legal costs include money spent on representation: - This can change depending on the type of claim and the nature of the dispute - Limited access to legal aid to support for civil cases results in less people seeing justice - Legal costs also include court fees and out of pocket expenses such as filing fees or expert witness - Increased use of alternative dispute resolution methods impact cost factors help to decrease the impact of cost factors - The easier the dispute is solved, the less money that is spent - Costs saved by avoiding taking the case to court are costs saved for the entire judicial system.

Question 61

Time factors:

Answer 61

- Time can affect the ability of the civil justice system to achieve justice. This includes: - Court and VCAT delay - Use of case management powers - Court and VCAT delays contribute to justice being slow. These delays have numerous causes: - Backlog of cases - pre-trial procedures - Evidence gathering and preparation

Question 62

Benefits of time factors:

Answer 62

- Use of management powers can have the ability to resolve disputes in a more timely manner - Giving the courts greater control can lead to greater initiative from the parties leading to some more time considerate preparations. For example: - Ordered mediation by certain date - Limiting scope of discovery to lessen the time spent - Order of no pleading