SAC 3

Question 1

aspects for fairness

Answer 1

time it takes for a case to go to court
legal representation for both parties
understanding the process and providing adequate assistance
laws and rules being properly applies
people treated impartially without fear or favour

Question 2

aspects for equality

Answer 2

judge and jury to decide in criminal cases
availability of legal representation
laws apply equally to all

Question 3

aspects for access

Answer 3

legal advice and assistance
the ability to understand legal rights and processes
availability of courts
range of means available when dealing with criminal cases like plea negotiations

Question 4

burden of proof (civil)

Answer 4

refers to the onus of responsibility that one party has to prove the facts of the case. burden of proof lies with the plaintiff, they have to prove that the defendant is in the wrong. the defendant has the burden of proof when they make a counterclaim or if they raise a defence

Question 5

standard of proof (civil)

Answer 5

refers to the strength of evidence needed to prove a case. plaintiff must prove the case on the balance of probabilities. means that the party must prove that they are most probably or most likely in the right and the other party is most probably in the wrong

Question 6

representative proceedings

Answer 6

if a group of people all have claims against the same party they may join together to commence a civil action know as a class action which is brought in the name of one person on behalf of someone else. there must be
- 7+ people with claims against the same person
- claims must relate to same or similar circumstances
- the same issues need to be decided
the claim is commenced by the lead plaintiff and the other people are the group members

Question 7

types of representative proceedings

Answer 7

• shareholder class actions - shareholders of a company make a claim about being misrepresented about the state of the companies affair
• product liability class actions - consumers who have purchased goods or services all suffer the same loss or damage
• natural disaster class actions - group members suffer because of a natural disaster

Question 8

benefits of representative proceedings

Answer 8

group members can share the cost
more efficient way of dealing with a number of claims saving time and resources
people can pursue civil cases they may not be able to alone
could get a litigation funder

Question 9

factors to consider when initiating a civil claim. list

Answer 9

• negotiation options
• costs
• limitations of actions
• scope of liability
• enforcement issues

Question 10

negotiation options (civil)

Answer 10

a plaintiff will consider if the dispute can be resolved out of court, the plaintiff may be able to negotiate a resolution of the dispute directly with the defendant.
negotiation normally involves the parties interacting directly with each other to try and resolve the dispute. can be through mediation

Question 11

when negotiation isn’t an option (civil)

Answer 11

one or both parties does not want to resolve the dispute
there have already been attempts to resolve the disputes
there is violence, distrust or fear among the parties
no issues or disputes to be negotiated

Question 12

benefits of negotiating (civil)

Answer 12

saves costs, time and stress involved in commencing a formal civil action
parties have control over the outcome
parties may be more prepared to accept the outcome

Question 13

costs (when initiating a civil claim)

Answer 13

fees for legal representation, court costs and disbursements and adverse costs. cost of legal representation (solicitor or barrister) depends on the complexity and size of the case and the court where it will be heard, the expertise of the rep. disbursements such as court fees e.g filing, hearing or trial fees and jury costs; mediation fees and expert witness fees. if the plaintiff is not successful in their claim then they will have to pay al court fees and maybe the defendants

Question 14

limitations of actions

Answer 14

refers to the time limit on which a plaintiff has to bring their case to the court. it is the restriction placed on the time in which a civil action can be commenced. there is a limitation so that

• the defendant does not have to face an action after a long time
• evidence is not lost and people can remember what happened
• disputes can be resolved as quickly as possible

Question 15

scope of liabilty

Answer 15

• who are the possible defendants
• to what extent the defendant may be liable
  parties who are liable may be an employer, an insurer or a person who was involved by accessorial liability, any one who is alleged to have infringed the persons rights. employers may be liable through vicarious liability, insurers can are liable if the insured person suffers some kind of loss, a defendant may also use insurance to pay for the plaintiffs loss. any person involved in the wrongdoing are people who aided and abetted, induced or urged or conspired to cause wrongdoing.

Question 16

extent of liability (civil)

Answer 16

the plaintiff must consider how liable the defendant is. a defendant may argue that they are only liable for a portion of the loss or damage, that the plaintiff is also somewhat liable or that someone else is liable

Question 17

enforcement issues (civil)

Answer 17

a plaintiff will obtain a remedy or settlement in 2 ways:
- by settling with the defendant before the court or tribunal hands down a decision
- by obtaining a remedy from a dispute resolution body
the plaintiff needs to consider if the defendant is able or willing to pay or if they can be forced to pay as the defendant may:
- be bankrupt or just unable to pay
- if they’re in jail
- the defendant is a company with no assets
- they are overseas
- it is not known who they are
an example of an enforcement mechanism is obtaining a warrant to seize the defendants goods and sell them

Question 18

Consumer Affairs Victoria (CAV)

Answer 18

CAV is a victorian complaints body, it regulates Victorias consumer affairs. it advises the government on consumer legislation, provides information and guidance to educate people about consumer laws and enforces compliance with consumer laws

Question 19

purpose of Consumer affairs Victoria

Answer 19

to help people settle their disputes efficiently and effectively, to ensure inappropriate conduct is stopped and to help people who have been wronged seek compensation constructively without any cost. People can use CAV to exercise their consumer rights when they may have been infringed.

Question 20

Appropriateness of Consumer Affairs Victoria

Answer 20

1. whether the dispute is within their jurisdiction
2. whether the dispute is likely to settle
3. whether there are other or better ways to resolve the dispute
   in addition CAV will not conciliate disputes that the courts or VCAT have already decided on or is pending. and if the person has already tried to resolve it themselves and it is serious enough for CAV involvement

Question 21

Consumer Affairs Victoria Jurisdiction

Answer 21

obtains its power through statues and can assist with:
- supply of goods and services
- residential tenancies
- retirement villages
- owners corporations
if a party has a civil dispute that does not fall into these categories then CAV can not assist

Question 22

Consumer Affairs Victoria: whether a dispute is likely to settle

Answer 22

factors taken into consideration on whether it may settle:

• no delay in complaining to CAV
• database shows no refusal to conciliation by defendant
• dispute is not overly subjective
• trader hasn’t already made reasonable offer

Question 23

Consumer Affairs Victoria: strengths

Answer 23

• conciliation is free and informal
• ensures procedural fairness
• solves dispute individually reducing waste of resources
• conciliates disputes in a timely manner
• assures parties reach a resolution themselves

Question 24

Consumer Affairs Victoria: weaknesses

Answer 24

• role is limited consumer and landlord disputes
• no power to compel parties to undergo conciliation
• not all cases accepted
• informal = not taking it seriously
• not appropriate for large and complex cases

Question 25

VCAT

Answer 25

is a tribunal, a dispute resolution body which deals with a limited area of law and build up expertise in that area, it is less formal than the courts and is intended to be cheaper and more efficient

Question 26

VCAT purpose

Answer 26

to provide victorians with low cost, accessible, efficient and independent dispute resolution services. it provides parties with an alternative to court to resolve certain types of civil disputes through its various lists

Question 27

appropriateness of VCAT

Answer 27

must consider - whether dispute is within its jurisdiction - whether there are other or better ways to resolve the dispute

Question 28

VCAT jurisdiction

Answer 28

- purchases or sales of goods and services - owners corporations - discrimination, sexual harassment, victimisation or vilification - domestic building works - retail tenancies cannot hear - representative proceedings - disputes between employer and employees - disputes between neighbours

Question 29

strengths of VCAT

Answer 29

- cheaper than courts - speedy resolution of disputes - informal atmosphere - flexibility ensures fairness and equality - specialised jurisdiction - parties are encouraged to reach a resolution - streamlined binding process

Question 30

weaknesses of VCAT

Answer 30

- costs are increasing - large and complex civil claims cannot be heard - limited right to appeal - members are not judicial officers - may be too informal - suffered long delays - not bound by precedent

Question 31

types of civil pre trial procedures

Answer 31

- pleadings - discovery of documents - exchange of evidence

Question 32

pleadings

Answer 32

are a series of documents filed and exchanged between parties, they set out and clarify the claims and the defences of the parties to help and define the issues that are in the dispute, the two main documents exchanged are statement of claim by plaintiff and defence by the defendant

Question 33

purpose of pleadings

Answer 33

- to achieve procedural fairness by ensuring the other side knows the claims and defences - compel each party to state the material facts this avoids surprises - give the court a written record which allows courts understanding - set limits to the dispute and assist in reaching out of court settlement

Question 34

discovery of documents

Answer 34

enables parties to get copies of documents that are relevant to the issues in the dispute. documents which are relevant to the claims and defences are listed in a formal document and the other side can inspect it

Question 35

purpose of discovery of documents

Answer 35

- anything the plaintiff claims can be proven e.g contract, injuries, medical expenses, abuse or humiliation at work all critical documents must be disclosed at the earliest reasonable time - disclose or reveal all relevant documents - reduce elements of surprise at trial - determine strength of other sides case

Question 36

exchange of evidence

Answer 36

to prove their case parties will generally need to rely on evidence particularly when the documents can't speak for themselves. there are two types of evidence, lay and expert evidence. lay evidence: ordinary people give evidence about factual circumstances and will depend on what they saw, might give evidence as: - a witness outline - by filing a witness statement - orally expert evidence evidence from people who are experts in their field and submit evidence through written report or independent expert who can only give opinion within their area

Question 37

purpose of exchange of evidence

Answer 37

- reduce element of surprise at trial - allow determination of strength - provide opportunity to rebut the other sides expert evidence - allow defendant to understand amount of damages

Question 38

summary of purposes of pre trial procedures

Answer 38

- avoid taking opponents by surprise | - assist in reaching an out of court settlement

Question 39

reasons for Victorian court hierarchy civil

Answer 39

- administrative convenience | - appeals

Question 40

court hierarchy: convenience

Answer 40

cases can be distributed according to their seriousness and complexity. minor civil cases can be heard in magistrates cheaper and more efficiently, if smaller claims where heard in the higher courts there would be longer waiting times

Question 41

court hierarchy: appeals

Answer 41

if a party is dissatisfied with an outcome the court hierarchy allows them to take the matter to a higher court if: - its on a point of law - a question of fact - the remedy awarded - a question of fact