unit 3 aos 2

Question 1

civil justice system

Answer 1

a set of methods, processes and institutions used to resolve civil disputes

Question 2

the purposes of the civil justice system

Answer 2

• to enable a person to enforce their legal rights or take action over legal wrongs
• to determine whether the defendant has been found liable
• award a remedy where the defendant is liable

Question 3

dispute resolution bodies

Answer 3

• complaint bodies
• tribunals
• courts

Question 4

pre-trial procedures

Answer 4

• pleadings
• discovery of documents
• exchange of evidence
• mediation

Question 5

plaintiff

Answer 5

the party who initiates the claim
*in VCAT, this party is called the applicant

Question 6

defendant

Answer 6

the party who has allegedly breached civil law
*in VCAT, this party is called the respondent

Question 7

vicarious liability

Answer 7

the legal responsibility of a third party due to the actions of another

Question 8

types of civil disputes

Answer 8

• defamation
• breach of contract
• wills
• trespass
• nuisance
• negligence

Question 9

burden of proof

Answer 9

• the obligation of a party to prove a case
• rests on the party who initiates the case (plaintiff)
• the defendant can have the burden of proof if the file a counterclaim or if they raise a defense

Question 10

standard of proof

Answer 10

• the degree or extent to which a case must be proved in court
• on the balance of probabilities
• the plaintiff must prove their version of events is more probable than not

Question 11

factors to consider before initiating a claim

Answer 11

• costs
• limitation of actions
• enforcement issues

Question 12

costs

Answer 12

• fee for legal representation
• disbursements
• adverse costs order

Question 13

limitation of actions

Answer 13

• the restriction on bringing a civil claim after the allowed time
• limitations are imposed so that the defendant doesn’t face the claim after a significant amount, the evidence is not lost, and so that disputes are resolved as quickly as possible

Question 14

enforcement issues

Answer 14

consider if the defendant is able to pay and if the defendant will pay

Question 15

fairness

Answer 15

all people can participate in the justice system and it’s processes should be open and impartial

Question 16

impartial processes

Answer 16

• feature of fairness
• courts and personnel must be independent and impartial
• no apprehended bias

Question 17

open processes

Answer 17

• feature of fairness
• civil trials and hearings are open to the public and the court’s judgement is public
• civil disputes can be resolved privately (e.g. through mediation)

Question 18

participation

Answer 18

• feature of fairness
• opportunity to know the case against them
• opportunity to present their version of the case
• use of an interpreter
• no delays

Question 19

equality

Answer 19

all people should be treated in the same way, but if same treatment causes disparity or disadvantage, adequate measures should be implemented so that all can engage in the justice system without disadvantage

Question 20

same treatment

Answer 20

• feature of equality
• ‘formal equality’

Question 21

different treatment

Answer 21

• assistance to a self-represented party
• interpreters
• giving information in a different way
• changes to court processes
• different form of oath and evidence giving

Question 22

access

Answer 22

all people should be able to engage with the justice system and its processes on an informed basis

Question 23

engagement

Answer 23

• feature of access
• e.g. providing a range of dispute resolution methods, physical access, technological access, financial access, no delays

Question 24

informed basis

Answer 24

• feature of access
• e.g. education, information, legal services, legal representation

Question 25

mediation

Answer 25

- used a mediator to help the parties reach an agreement through negotiation and compromise - used by the courts and VCAT

Question 26

conciliation

Answer 26

- uses a conciliator who makes suggestion on how to resolve the dispute - the conciliator has influence over the outcome as they have specialist knowledge and make suitable suggestions - used primarily by CAV and VCAT - generally not used by the courts

Question 27

appropriateness of mediation and conciliation

Answer 27

factors to consider - whether the parties will continue to have a relationship after the dispute is resolved - whether the parties will stick to the agreement - whether there is a history of violent/threatening behaviour - if one or both parties want a private resolution, or if one or both parties wants a public resolution - imbalance of power - urgency

Question 28

terms of agreement

Answer 28

- a document that sets out the terms on which the parties agreed to resolve their dispute - is enforceable through the court, if a party breaches the terms - used in both mediation and conciliation

Question 29

arbitration

Answer 29

- an arbitrator listens to both parties and makes a legally binding decision (arbitral award) - private - less formal and costly than a court hearing/trial

Question 30

when is arbitration available?

Answer 30

- both parties agree to it - the court orders it (both parties must consent) - the claim is filed in the Magistrates' Court, but the plaintiff is seeking $10,000 or less

Question 31

appropriateness of arbitration

Answer 31

factors to consider - have the parties agreed to arbitrate? - do the parties want a binding agreement? - do the parties want control over the outcome? - do the parties want a private or public resolution?