Flashcards in U3: AOS2 (Civil Law) Deck (51)
In Civil Law, explain:
1) Burden of Proof
2) Standard of Proof
3) Representative Proceedings
1) Falls on the Plaintiff.
2) Balance of Probabilities.
3) Known as a Class Action - several individuals launch one case together against a defendant.
What are the 5 factors to consider when initiating a civil claim?
1) Negotiation Options
3) Limitation of Actions
4) Scope of Liability
5) Enforcement Issues
What are Negotiation Options considerations?
- Before judicial determination, first consider out-of-court settlements (mediation, conciliation, arbitration)
What are Cost considerations?
- How much will it cost?
- Will you recover the cost?
- Will the defendant be able to pay the costs?
What are Limitation of Actions considerations?
The period of time after which the offence has been committed that the case can be brought to court. If the time frame to bring the matter to court has elapsed then the defendant can not be charged.
What are Scope of Liability considerations?
Must ensure that the plaintiff themselves did not contribute to the offence, and that the defendant was the dominant party in carrying out the offence. Otherwise the plaintiff may be implicate themselves and be susceptible to counter-claims.
What are Enforcement Issues considerations?n
- Is the agreement for reparations legally enforceable? (eg. non-legally binding agreements are not)
- Can the defendant even pay for reparations?
1) What is a Writ?
2) What is its purpose?
1) A written document prepared by the plaintiff's solicitor which legally commands the defendant to attend court/engage in legal proceedings.
- Informs defendant of case against them
- Enables defendant to formulate their own defence
What is mediation?
Process whereby an impartial third party facilitates discussion between parties of possible solutions to a dispute, but does not offer suggestions or decisions.
Why is mediation appropriate?
- Can retain relationship between parties
Why is mediation inappropriate?
- Is not binding
- May not produce solution
- Imbalance of power may arise
What is conciliation?
Process whereby an impartial third party facilitates discussion between parties and suggests possible solutions to a dispute.
Why is conciliation appropriate?
- Conciliator is an expert in area
Why is conciliation inappropriate?
- Is not binding
- May not produce solution
What is arbitration?
Process whereby an impartial third party hears a dispute between two parties and enforces a legally-binding solution.
Why is arbitration appropriate?
- Cheaper/quicker than court
- Always produces a solution
- Arbitrator is an expert in area
Why is arbitration inappropriate?
- Win-lose scenario
- Appeals are limited (decision is final)
- More expensive than mediation/conciliation
What is Consumers Affairs Victoria (CAV)?
Government body that provides information/advice to business traders and consumers about their rights and responsibilities.
What are the purposes of CAV?
- Provide information for business traders/consumers on rights/responsibilities
- Provide advice to business traders/consumers
- Register business licenses
- Conciliates disputes between traders and consumers
Why is CAV appropriate?
- Ensures individuals are educated on their rights
- Stops illegal business activities
- Enables individuals to defend their rights
Why is CAV not appropriate?
- Applies only to businesses/traders
- Can only conciliate if it is within jurisdiction and likely to have a settlement
What is Victorian Civil and Administrative Tribunal (VCAT)?
Government body which hears and facilitates disputes, offering out-of-court alternative dispute resolutions.
What are the purposes of VCAT?
- Provide parties with alternative dispute resolutions
- Ensure parties reach a solution to dispute
- Offer a cheaper/quicker method of resolving disputes
Why is VCAT appropriate?
- Informal (non-adversarial)
Why is VCAT not appropriate?
- Only suitable for civil disputes
- Gradually increasing in cost
- Mediation/conciliation may not reach solution
- Arbitration may produce a win-lose scenario
What are the purposes of a Court Hierarchy?
- Administrative Convenience
How does the Court Hierarchy provide Administrative Convenience?
Allows for allocation of cases according to complexity/content. Reduces delays and cost.
How does the Court Hierarchy provide Appeals?
System allows for higher courts to review decisions made by lower courts. Allows for consistency and fairness.
How does the Court Hierarchy provide Specialisation?
Division of courts allows for allocation of experts into particular fields. Allows for expertise and efficiency.