The civil Justice system T4 Flashcards
(132 cards)
1
Q
Definition of Civil Law
A
An area of law that defines rights and responsibilities of individuals, groups and organisations in society and regulates private disputes.
2
Q
Definition of Civil Liability
A
The legal responsibility of a party for loss or harm caused to another party because of a breach in civil law.
3
Q
Definition of Sue
A
To take civil action against another person, claiming that they infringed some legal right.
4
Q
Definition of Remedy
A
Any order made by court (or a tribunal) designed to address the civil wrong or breach.
5
Q
What are the 4 purposes of civil law?
A
- Provide guidelines for acceptable behaviour
- Protect the rights of individuals
- Provide an avenue for people to seek compensation where a breach of civil law has occurred
- Remedy the harm that has been suffered
6
Q
Definition of provide guidelines for acceptable behaviour
A
Civil law establishes what is acceptable and what is not, so that people can live together in harmony and social cohesion can be achieved.
7
Q
Definition of protect the rights of individuals
A
Key rights are enshrined in civil law, including the right to be protected from false statements that might damage your reputation and the right to have s promise made under a contract fulfilled.
8
Q
Definition of provide an avenue for people to seek compensation where a breach of civil law has occurred
A
Individuals can seek compensation for a breach of civil law through the courts, tribunals and complaints bodies.
9
Q
Definition of remedy the harm that has been suffered
A
When a persons right has been infringed, civil law provides a way to return the harmed person, as far as possible, to the position they were before the harm occurred. This is achieved through the awarding of civil remedies.
10
Q
What are contract laws?
A
Laws that cover the validity and enforceability of contracts, made between two or more parties where there is a breach.
11
Q
What are tort laws?
A
A term that literally means “wrong”; a wrong that interferes with a person’s legally protected interest. There are 4 types of torts.
12
Q
What are the 4 types of torts?
A
- Negligence
- Trespass
- Defamation
- Nuisance
13
Q
When does negligence occur?
A
It occurs when someone’s owes a duty of care to another person and breaches that duty, causing harm or loss to the other person.
14
Q
When does trespassing occur?
A
It occurs when someone interferes with another person, their land or their goods, and that interference causes damage.
15
Q
What is defamation?
A
It relates to the public material that causes damage to another person’s reputation.
16
Q
What is nuisance?
A
This relates to an individual’s right to use and enjoy both public and private property.
17
Q
What are the two parties of a civil dispute?
A
- Plaintiff
- Defendant
18
Q
What is a plaintiff?
A
A party that makes a legal claim against another party.
19
Q
What is a defendant?
A
A party who is alleged to have breached a civilian and who is being sued by a plaintiff.
20
Q
What are the possible plaintiffs in a civil dispute?
A
- The aggrieved party (i.e the person who has suffered the loss)
- Other victims (i.e victims other than the aggrieved party)
21
Q
What is the aggrieved party?
A
The persons whose rights have been infringed and who has suffered loss.
It is possible to have more than one aggrieved person.
22
Q
What is a class action, also known as a representative proceeding?
A
A particular type pf civil proceeding, where 7 or more people have claims against the same party, and those claims are in respect of, or arise out of, the same type of circumstances.
23
Q
What are other victims of a plaintiff?
A
A person who has indirectly suffered as a result of the actions of another party.
24
Q
What are the possible defendants of a civil disputes?
A
- The wrongdoer (i.e there person or company that caused the loss to the plaintiff)
- Employers
- Persons involved in the wrongdoing
25
Who is the wrongdoer?
It is often the case that a plaintiff will sue there person or company that has directly caused them loss.
26
What is an employer and what do they do?
An employer of a wrongdoer may become a defendant because of the principle of vicarious liability.
27
What is Vicarious liability?
When someone becomes responsible for their actions of another.
28
Who is the persons involved in the wrongdoing?
A person who is involved in the wrongdoing of another may also be sued.
29
A person may be involved in wrongdoing if they..
1. Aided, abetted (assisted) or procured (i.e organised) the wrong doing;
2. Introduced or encouraged the wrongdoing;
3. Were in any way, directly, or indirectly, a party of the wrongdoing;
4. Conspired with others to cause the wrongdoing;
30
What's an accessorial liability?
Being involved in wrongdoing.
31
What does it mean by there has been a breach by the defendant?
The defendant has failed to a law or obligation imposed on them.
32
Who must prove that there has been a breach?
The plaintiff my prove that there's been a breach by the defendant.
33
Definition of causation
A connection between the actions of the defendant and the loss suffered by the plaintiff.
34
What type of link does there need to be in causation?
A causal link between the actions (or inactions) of the defendant, and the harm the plaintiff suffered.
35
What does the plaintiff have to prove in causation?
The plaintiff must prove that the defendants actions or omissions caused or resulted in the harm and suffering by the plaintiff, and that the harm would not have occurred if the defendant had not acted in the way they did.
36
Definition of loss
A type of harm or damage suffered by a person. It can involve both economic and non-economic loss.
37
What are the 5 types of losses in a civil claim?
1. Economic or financial loss- loss of wages, loss of earning capacity or loss of profits
2. Property damage- a car may have been damaged, or there may be damage to a house, clothing or other goods
3. Personal injury- the plaintiff may have suffered cuts, bruises, broken bones or loss of a limb
4. Pain and suffering- mental anguish, anxiety or depression
5. Loss of amenity- loss of enjoyment of life, loss of job satisfaction, loss of family life or loss of enjoyment of hobbies
38
Definition of limitation of actions
The restriction on bringing a civil law claim after the allowed time.
39
Why is there a limitation of actions?
So that the dispute can be resolved efficiently, and so the defendant does not have to be subjected to a claim a significant time after alleged acts (or omissions)
40
What is the time period for a Breach of Contract (excluding personal injury and defamation)
6 years
41
What is the time period for Personal Injury?
3 years
42
What is the time period for Defamation?
1 year
43
Definition for the Burden of Proof
The obligation of a party to prove a case
44
Definition of the Standard of Proof
A degree or extent to which a case must be proven in court.
45
What are some considerations when dissolving a civil dispute?
1. Is there another way to resolve the dispute without taking formal legal action
2. Is it likely that the claims will be successful? (is there a breach, causation and loss)
3. What will the likely costs of taking legal action be?
4. Is it affordable and is the value of the claim worth the expense of pursuing it
5.Does the defendant have the financial resources and assets to pay compensation if the legal action is successful?
6. What is the relationship between the disputing parties? Does the relationship need to be maintained? e.g neighbours, family members, employer/ employee
46
What are some dispute resolution methods that don't involve a court hearing?
1. Mediation
2. Conciliation
3. Arbitration
47
Definition of mediation
A method of resolving disputes that uses an independent third party (the mediator) to help the disputing parties reach a resolution.
48
A meditator is what?
A neutral and impartial third party with formal training.
49
What do meditators do?
1. Guide discussions between the parties
2. Negate power imbalances
3. Don't provide suggestions for resolutions which increases the party autonomy
4. Usually not an expert in the area of law disputes concerns
50
If the parties elect to resolve the dispute through meditation, they typically enter into a legally binding contact know as?
Terms of settlement
51
Definition of terms of settlement
A documents that sets out the terms on which they agree on which the parties agree to resolve their dispute.
It may be enforceable through courts, confidential by parties so they cannot be disclosed to the public.
52
Definition of conciliation
A method of dispute resolution that uses an independant third party (a conciliator) to help disputing parties reach a resolution.
53
What do conciliators do?
1. Guide discussions between the parties
2. Negate power imbalances
3. Provide suggestions for resolution, however the final decision is for the parties to determine
4. Usually, an expert in area of law dispute concerns, meaning they are more ideal for more legally complex disputes e.g commercial disputes
54
What are 2 similarities of mediation and conciliation?
1. Parties may elect to enter into terms of settlement- documents (not binding unless ToS are signed)
2. Any discussions during conciliation are on a 'without prejudice' basis
55
Conciliation can be used to resolve disputes in what ways?
1. Many dispute resolution bodies use a form of conciliation to resolve disputes
2. Some of the more specialised courts use a form of conciliation e.g family disputes in the Federal Circuit Court and family court organised a conciliation conference prior to trial.
56
What are 3 strengths of mediation and conciliation?
1. The decision is more likely to be trialed which leads to parties more likely to reach decision themselves.
2. Parties assisted by an impartial third party who facilitates discussion and assists parties to resolve the dispute themselves.
3. Saves time and money.
57
What are 3 weaknesses of mediation and conciliation?
1. Unless parties enter into terms of settlement the decision is not binding or enforceable.
2. Meditators and conciliators have no power to order parties to come to a decision.
3. Both parties must be willing to participate for it to be successful.
58
Definition of Arbitration
A method of dispute resolution in which an independent person (an arbitrator) is appointed to listen to both sides of a dispute and make the decision that is legally binding on the parties.
59
What are 2 situations in which an arbitrator is conducted in Victoria?
1. Where parties have previously agreed (normally in contract) that any dispute that arises between them will be resolved by arbitration
2. In the Magistrates court, which uses arbitration to resolve civil claims of less than $10,000 when an agreement cannot be reached by the parties. A Magistrate or Registrar acts as the Arbitrator.
60
What are 3 Strengths of Arbitration?
1. It can be cheaper than going to court, depended on how the arbitration is conducted.
2. The decision made by the arbitrator is legally binding which lead to parties to more likely to follow.
3. Private and confidential so attractive for parties to avoid publicity of a trial.
61
What are 3 weaknesses to Arbitration?
1. More expensive than mediation and conciliation as evidence is gathered and legal representation is common.
2. The parties have no control over the outcome imposed on them by the arbitrator.
3. Arbitration is not always available for parties in dispute
a perviously agreed by parties (usually in contract) as the method of dispute resolution or
b. civil claims of less than $10,000 in Magistrates' Court
62
Definition of complaint bodies
Organisations established by parliament to resolve formal complaints made by an individual about goods, services or a particular industry body.
63
Definition of tribunals
Dispute resolution bodies that obtain their power to resolve certain type of disputes from parliament.
e.i through statue law
64
What is the purpose of a tribunal?
Provide individuals with a low-cost, efficient and speedy method of dispute resolution. Increasing communities access to justice by providing Australians with an alternative to court, which can be more formal, costly, stressful and lengthy way of resolving disputes.
65
What is one similarity of courts and tribunals?
They both have an independent third party which will hear the dispute and make a binding decision on the parties.
66
What is a significant difference between courts and tribunals?
The cost of having a dispute resolved in a tribunal can often be much less than the cost of resolving a dispute in court.
67
What does VCAT stand for?
Victorian Civil and Administrative Tribunal
68
What are the 5 divisions and their lists of VCAT?
1. Residential Tenancies division-
-Residential tenancies list
2. Administrative division-
-Legal practice list
-Review and regulations list
3. Planning Environment division-
-Planning and environment list
4. Civil divisions-
-Civil claims list
-Building and property list
-Owners corporations list
5. Humans Rights devision-
-Guardianship list
-Humans rights list
69
What is VCAT's purpose?
To provide Australia with a low-cost, accessible, efficient and independent tribunal that delivers high-quality dispute resolution.
70
What are 6 ways which VCAT achieves its purpose?
1. Charging low fees for a personal file to their claim and having their matters heard, and by disallowing legal representation except in certain circumstances.
2. Having a variety of locations in Victoria, many in regional areas.
3. Aiming to have cases being heard within weeks of application being filed. Its median wait time being around 3-4 weeks to have an application determined whilst urgent repairs within 2 business days.
4. Having cases determined by an independent third party, known as a VCAT member, who has no affiliation with either parties of the dispute.
5. Providing a less formal setting than courts, thus ensuring it is accessible to ordinary Victorians with limited or no experience in the legal system.
6. Offering dispute resolution methods, such as mediation and compulsory conferences (with uses a conciliation process) before making a binding decision on the parties.
71
List the Australian court hierarchy in order of least powerful to most.
1. Magistrates' Court of Victoria
2. County Court of Victoria
3. Supreme Court of Victoria
i. Trial Division
ii. Court of Appeal
5. High Court of Australia
72
What is the Magistrates' Court Original and Appellate jurisdiction?
Original- claims up to 100,000
Appellate- no appellate jurisdiction
73
What is the County Court Original and Appellate jurisdiction?
Original- Unlimited
Appellate- No appellate jurisdiction, unless given under a Specific Aid of Parliament
74
What is the Supreme Court [trial division] Original and Appellate jurisdiction?
Original- Unlimited
Appellate- On a question of law from the Magistrates' Court [unless the Chief Magistrate made the order] and from VCAT [unless the president or vice president made the order]
75
What is the Supreme Court [Court of Appeals] Original and Appellate jurisdiction?
Original- No original jurisdiction
Appellate- Appeals from the County Court, Supreme Court Trial division, VCAT [when the case was decided by VCAT's President or vice-president] and the Magistrates' Court [when the case was decided by the Chief Magistrate]
76
What are the two roles played by the Victorian courts in resolving disputes?
1. Determine the liability of a party
2. Decide on the remedy (if the defendant is found liable)
77
What does it mean by determining liability?
If a plaintiff sues a defendant in court, then it is the role of the courts to determine whether the defendant is liable and, if so, to what extent.
78
What will the judge or magistrate do when determining liability?
1. Consider the evidence presented to the court during the trial or hearing.
2. Determine whether the plaintiff, on the balance of probabilities, has established that the defendant causes the loss or harm suffered by the plaintiff.
3. Determine whether the defendant is 100% liable for the plaintiff's loss or harm or if the plaintiff has sued more than one party, then determine whether all defendants are liable and, if so, for what proportion are they liable.
4. If the defendant has made a counterclaim determine whether the plaintiff is liable for that claim.
79
What is the decision of remedy?
If the plaintiff establishes that the defendant is liable, or the defendant establishes that the plaintiff is liable on a counterclaim, then it is the role of the court to decide on the remedy.
80
The judge or magistrate will do what when making the decision of the remedy?
1. Consider the evidence presented on the court during the trial or hearing.
2. Decide on a suitable remedy (damaged/injunction)
3. Access damages (if applicable) based on loss suffered by parties.
81
In civil court cases, if either parties wants a jury, what must they do?
Request a jury trial and pay the fees associated with the jury.
82
How many jurors are there on a civil jury?
6 jurors
83
What is the jury's role in a civil trial?
1. Determine liability (decider of facts)
2. Decide on the remedy (except for damages or defamation trials)
84
What are 3 strengths to courts?
1. Judges are impartial referees who make decisions bases on face and law.
2. Formal court processes and roles pf evidence help ensure procedural fairness which lead to allowing parties to present cases and rebut the other party's cases.
3. Court hierarchy for a party to appeal a case.
85
What are 3 weaknesses to a court?
1. The formalities of the court process can result in parties feeling stressed, intimidated or nervous.
2. These formal processes require legal representation to navigate with money without which parties can be disadvantaged in presenting a case.
3. The right to appeal is not automatic in many causes which leave (permission) of a higher court is required.
86
Who are consumers?
People who purchase good and services.
87
Who are vendors?
People who sell or supply goods or services.
88
What are the 2 main areas of law that protects consumers and vendors?
1. Contract law- which governs agreements for 2 two more parties
2. Consumer law- which aims to protects consumers and vendors when buying or selling goods. The main law is the Competition and Consumers Act 2010 (Cth) which provides for uniformity across Australia.
89
What are the rights that are protected by contract law and consumer law?
1. The consumers right to the good and service that have been payed for. The goods and services should meet the description and quality that the consumer expects.
2. the vendors right to money for goods or services.
3. The right of consumers and vendors to seek a remedy for any problem that may arise.
90
Definition of defects
Flaws or shortcomings in the quality, quantity, potency, purity or standard of goods and services.
91
What does consumer law state about defects?
The vendors must offer the consumer a solution when a product or service is found defective.
92
Can vendors defect consumers to the manufacturer or the importer when a good or service is found defective?
No
93
When a product has a major problem what can the consumer do?
Choose between a replacement or a refund. Vendors must also fix a minor problem with a product or service by at least giving a free repair.
94
When a service has a major problem what does the consumer have the right to?
To alter their agreement with their service provider.
95
Definition of warranties
A guarantee (or promise) provided by a business about the quality or standard of its products or services. Warranties often include actions the business will undertake, in addition to those require under consumer law, to address any faults or defects e.g offering a repair, replacement or refund.
96
Definition of refunds
To pay back (money), typically to a customer who is not satisfied with goods or services brought.
97
Consumers have the right to refund the products if..
1. Not as described
2. Not fit for purpose (both usual purpose and if you conveyed a different purpose to the vender and they didn't correct you)
3. Not of acceptable quality, judged on
-appearance and finish
-safe ad free from defects
-durable, depended on product e.g ice cream vs fridge
98
What do consumer require for a refund?
Only proof of purchase.
99
What are the limitations to refunds?
If an unreasonable around of time has passes, if you damaged the goods yourself, or you just change your mind.
100
Definition of credit
The ability of a consumer to obtain goods or services before payment, based on the trust that the payment will be made in the future.
101
What is credit consumer law?
A body of law that protects consumers when they borrow money or enter into credit contracts, including loans, credit cards, and instalment purchases.
102
In VCATs civil divisions, Civil Claims List can hear what claims?
Claims made by businesses and consumers that allege the Australia Consumer Law and Fair Trading Act 2012 (Vic) has been breached.
103
What are VCATS methods for resolving disputes?
1. Meditation
2. Compulsory Conference
(A VCAT member acts as a mediator or conciliator)
104
What happens if a VCATs methods of resolving disputes is unsuccessful or unsuitable?
The matter will proceed to a Final Hearing.
105
What happens in a Final hearing?
1.Both parties present their case and provide evidence.
2. A VCAT member will hand down the final order of:
- a monetary compensation (payment on the form of money)
-undertake or restrain from a particular act
-dismissal of the claim (VCAT has officially ended the case)
106
What does CAV stand for?
Consumer Affairs Victoria
107
What is CAV?
An organisation established by parliament to resolve formal complaints made by consumers and traders about the provisions of goods and services.
108
What is the role of CAV?
1. Provide information about consumer laws to the public
2. Conciliate disputes arising under contract laws
3. Advise the government about consumer affairs legislation
3. Conduct legal actions against businesses who breach consumer protection laws in Australia
4. Investigate complaints about unsafe products being sold in Victoria and, if needed, remove such items from sale
109
What can CAV assist?
consumers with a complaint against a business who may be breaching the Australian Consumer Law or Fair Trading Act 2012 (Vic)
110
What are CAV Methods of resolving disputes?
1. Only assist consumers in initiating claims (not vendors)
2. will only assist consumers who have made reasonable attempt to resolve the issue
3. CAV uses conciliation. There is no charge to parties. This can be done in person or over the phone.
4. Same strengths and limitations to conciliation apply
111
What is a tenant?
People who pay rent to a landlord for the right to occupy a property. They have the temporary right to live in and use the property.
112
What is a landlord?
The owner of a property, like a house or apartment, who rent (or lease) it to someone else, known as a tenant.
113
What is the legislation that regulates residential tendencies in Australia?
The Residential Tendencies Act 1997 (Vic)
114
What does the Residential Tendencies Act 1997 (Vic) set out?
Rights and responsibilities of renters and residents, rental providers, owners of rented premises, rooming houses, caravan parks and residential parks.
115
What are the rights of a tenant?
1. End the rental agreement before moving in if minimum standards are not met e.g running water
2. Request the landlord to make an urgent repair to make property meet minimum standards after moving in
3. Request reimbursement for an urgent repair (up to $2500) if their landlord does not respond quickly enough
4. Request landlord to make a non-urgent repair
5. Make certain modifications to the property without the landlords consent e.g installing picture hooks
6. Request the land lord to keep a pet on the rental property
116
What are some urgent repairs the tenants may request to be fixed?
1. A blocked or broken toilet
2. A dangerous electrical fault
3. A gas leak
4. A serious water leak, or flooding
117
What are tenant obligations?
1. Keeping property reasonably clean
2. minor maintenance tasks, such as changing light globes and keeping garden tidy
3. Allowing landlord to access property for an inspection, provided sufficient notice is given
4. Given notice to end the rental agreement, even if it has a fixed date
118
What are landlord obligations?
1. Provide the tenant with a condition report before the tenant moves in
2. Ensure the property is in good repair and fir to live in
3. Ensure the property meets rental minimum standards
4. Responding to the requests for urgent repair without delay or if their is a delay, reimburse the tenant, up to a limit of $2,500 if they pay for the urgent repairs themselves
5. Respond to the non urgent repairs within 14 days
6. Provide 60 day notice for rent increase
7. Apply to VCAT within 14 days of receiving a request from the tenant to keep pet on the property if they refuse
8. Must provide at least 7 days notice to conduct inspections on the property
9. Give notice to end the rental agreement, even if it has a fixed date
119
What should landlords must not do?
1. Increase rent more than once in any 12-month period
2. Increase the rent before the end of a fixed-term rental agreement (unless the rental agreement allows)
3. Unlawfully discriminated against a prospective tenant because of sex, age, disability, race or religion
4. Threaten to evict the tenant for using or intending to use their legal right
120
What are the avenues for tenants to resolve disputes?
1.VCATs Residential Tendencies Division containing the Residential Tenancies List, which can hear claims made by tenants and landlords that allege the Residential Tendencies Act 1997 (Vic) has been breached
2. CAV, which can assist tenants with a complain against the landlord who many be breaching the Residential Tendencies Act 1997 (Vic)
121
Can CAV assist landlords in initiating claims?
No
122
What does a remedy provide?
A legal solution to the plaintiff for a breach of the civil law by the defendant.
123
What is the general purposes of a remedy?
Restore the party that has suffered loss and damage to their original position.
124
What are other purposes of remedies?
1. Make the point that the defendants conduct is not acceptable- cases involving human rights violations, discrimination extra
2. To stop harm from happening any further e.g removing a defamatory article from an online news paper
3. To force someone to do something they refuse to do- contract laws e.g compel a party to fulfil their obligations under the contract
125
Definition of damages
An amount of money that one party is ordered to pay another party for the loss or harm suffered.
126
What are the 4 main type of damages?
1. Compensatory damages
a. specific damages
b. general damages
c. aggravated damaged
2. Nominal damages
3. Exemplary damages
4. Contemptuous damages
127
What are compensatory damages and the 3 main types?
Compensatory damages are the main type of damages sought, awarded to the plaintiff for harm, injury or other losses suffered
The 3 main types of compensatory damages are,
a. specific damages- loss that can be calculated objectively and exactly e.g loss of wages, medical expenses
b. General damages- pain or suffering with can not be calculated objectively, consideration of the plaintiffs emotional suffering and loss of enjoyment of life. The plaintiffs lawyer may take submissions on appropriate amount
c. aggravated damages- defendants conduct caused humiliation and insult to the plaintiff/ compensation for any humiliation that the defendant has done
128
What are exemplary damages?
Damages that seek to punish the defendant as their actions were so outrageous that court seeks to deter others from similar actions and show disapproval of the defendant's actions. Which cannot be awarded in defamation cases.
129
What are contemptuous damages?
A very small amount of money awarded to show that even though the plaintiffs claim succeeded in law, the courts disapproves of it in moral terms.
130
What are injunctions?
A remedy in the form of a court order requiring the defendant to do something or not do something.
131
What is the purpose of injunctions?
To prevent a person doing harm (or further harm), or to rectify a wrong.
132
What are the two types of injections and what do they do?
1. Restrictive injunction- stop someone from doing something e.g stop a building from being destroyed
2. Mandatory injunction- compel someone to do a particular act e.g to remove something from their land
