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Legal > Unit 3 AOS 2 > Flashcards

Unit 3 AOS 2 Flashcards

(76 cards)

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1
Q

Burden of proof

A

The responsibility to prove the facts of the case, lies on the plaintiff

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2
Q

Standard of proof

A

The level of certainty to prove a case, lies on the balance of probabilities

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3
Q

Limitation of actions

A

The restriction placed on the time within which a civil action can be commenced

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4
Q

Defamation limitation of actions

A

1 year

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5
Q

Negligence limitation of actions

A

3 years

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6
Q

Enforcement issues

A

Whether the defendant is able to and will pay damages

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7
Q

VCAT application fees

A

$72

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8
Q

Daily jury fee

A

$550-1000+

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9
Q

Fairness

A

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

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10
Q

Equality

A

All people engaging with the justice system and its processes should be treated in the same way, if the same treatment causes disparity or disadvantage, adequate measures should be implemented to allow all to engage without disparity, disadvantage to achieve the same outcome.

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11
Q

Access

A

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

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12
Q

Mediation

A

An independent third party facilitates communication between the parties, who discuss the issues involved, develop options, consider alternatives and trying to reach an agreement through negotiation. Less formal, low degree of enforceability but can be enforced if its in the terms of settlement

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13
Q

Conciliation

A

An independent third party makes suggestions and encourages parties to reach a mutually acceptable decision, who discuss the issues involved, develop options, consider alternatives and trying to reach an agreement through negotiation. Less formal, low degree of enforceability but can be enforced if its in the terms of settlement

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14
Q

Arbitration

A

An independent third party listens to both sides and makes a binding decision, each party presents their case, there is a somewhat degree of formality, and a high degree of enforceability as outcome is binding

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15
Q

Administrative convenience

A

Making efficient use of the limited physical and financial resources available. This reduces the number of delays by providing a means for allocating cases according to their seriousness and complexity

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16
Q

Example of administrative convenience

A

Minor civil disputes heard quickly in magistrates court

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17
Q

Appeals

A

Someone who is dissatisfied with a decision in a civil trial can if there are grounds for appeal, take the matter to a higher court

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18
Q

Appeals example

A

On a point of law- where the law has not been correctly applied (applied wrong legal test in case

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19
Q

Magistrates court civil case jurisdiction

A

Claims of up to $100,000
No appellate jurisdiction

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20
Q

County court civil case jurisdiction

A

Unlimited original jurisdiction
No appeals unless given power under a specific act of parliament

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21
Q

Supreme Court TD case jurisdiction

A

Unlimited original jurisdiction
Appeals on a question of law from magistrates court or VCAT

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22
Q

Supreme Court of appeals case jurisdiction

A

No original jurisdiction
All other appeals

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23
Q

Judges role criminal + civil similarities

A

Attend to the jury
Manage the trial
Act impartially
Listen to evidence

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24
Q

Case management powers (judge diffs to criminal)

A

-Change the order evidence is given
-Limit the time for the hearing
-Not allowing cross examination of a particular witness
-Limit the number of witnesses
-Limit the number of documents as evidence
-Rule on the admissibility of evidence

judge also decides on the outcome when there is no jury vs criminal when jury decides

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25
Criminal vs civil jury similarities
Randomly selected from the electoral roll Be objective Listen to and remember evidence Remain unbiased
26
Civil jury diffs to criminal role
-6 jury members -Decide on liability and remedy (except for defamation cases) -Jury is optional and must be requested by a party -The party that requests the jury must pay for it -Standard is on the balance of probabilities
27
The parties similarities to criminal
Both parties have the opportunity to present their case Must not mislead the court
28
Judge-fairness
Acts as an impartial umpire
29
Judge-equality
Can't always assist self represented parties
30
Judge-access
Assists the jury, ensuring they are informed during the trial
31
Jury-fairness
As they are untrained, may be difficult to remain unbiased
32
Jury-equality
Represents a cross section of the community
33
Jury-access
Allow the community to participate in the civil justice system
34
Parties-fairness
Processes are complex and difficult to understand
35
Parties-equality
Both parties have the opportunity to present their case
36
Parties-access
Both parties must participate in the trial, achieving engagement
37
Legal practitioners similarities with criminal role
Solicitor and barrister Skills in cross examination and presenting case Self represented parties are disadvantaged
38
Legal practitioners differences to criminal role
Parties might be too emotionally invested in a civil case to self represent May not always be needed e.g. in mediation
39
Strength of legal practitioners
More court expertise and knowledge which can speed up processes
40
Weakness of legal practitioners
Cost
41
Class action
A legal proceeding in which a group of 7 or more people who have a claim against the same person based on similar or related facts bring that claim to court in the name of one person
42
Class action features different from regular proceedings
-Group members -Opt in or opt out -Allocation of cost -Active management by court -Lead plaintiff who represents the group -Use of litigation funders- parties who invest in a class action and in return get a percentage of the damages
43
Benefits of class actions
-Group members not responsible for costs -Efficiency in dealing with many claims -Smaller claims can be pursued -Use of litigation funders and plaintiff law firms -Reduce costs for defendants -More convenient way to pursue claims for many group members
44
Disadvantages of class actions
-Large cost burden on lead plaintiff -Takes up court resources and time -Could be taken advantage of -Litigation funders can take a portion of the settlement -Costs on defendant -Information about the proceedings for group members
45
VCAT purpose
Provide a low cost, accessible, efficient and independent tribunal. To provide people with an alternative court for certain types of civil disputes. Aims to be accessible, fair and impartial.
46
CAV purpose
Provides consumers and traders, landlords and tenants with dispute resolution. Helps people settle their disputes efficiently and constructively without any cost.
47
Dispute resolution methods used in VCAT
Mediation Conciliation Final hearing
48
Dispute resolution methods used in CAV
Conciliation over the phone
49
When would VCAT be appropriate to use
- When it is in VCATs jurisdiction - When there is a low cost option needed - When parties want a more informal, less stressful option - If parties want to represent themselves rather than paying lawyers(80% of people represent themselves in VCAT) - When a binding decision is needed If flexibility of dispute resolution is needed(mediation, conciliation, final hearing
50
When would CAV be appropriate to use
- When cost is an issue since CAV is free - When informality is desired - When speed is important -When two parties are likely to cooperate and come to an agreement, as CAV is voluntary and decisions are non binding
51
When would VCAT not be appropriate to use
- Criminal or federal matters - Won't hear representative proceedings, disputes between employers and employees and dispute between neighbours - If the parties want the opportunity to appeal(appeals from VCAT are limited to questions of law) - If the parties would prefer the formality of court If they want to go to court to establish a legal precedent that has to be followed in future cases(VCAT decisions do not create precedent
52
When would CAV not be appropriate to use
- When your case is outside their jurisdiction - If a party is unwilling to participate - Not appropriate for large and complex disputes -If you want a binding decision
53
Up to how long does VCAT take for goods and services claims
41 weeks
54
Standard magistrates court filing fee
$166
55
How long does fast track mediation for small claims take
from only 1 hour
56
VCAT goods and services hearing costs
Day 1-4: $400 Day 5-9: $800
57
% of cases finalised within 12 months of commencing in the county court (2020/21)
57%
58
Time-fairness
Shorter wait times for VCAT facilitate fairness as issues around memory loss are avoided
59
Time-equality
-Delays can seriously impact the victim, especially if they suffered injuries -More vulnerable people may find the delay more stressful
60
Time-access
Delays can cause some parties to settle, withdraw or not pursue their civil claim which means that they aren't able to engage in the civil justice system
61
Cost-fairness
Judges can provide assistance to self represented parties, but cannot run their case
62
Cost-equality
Self represented or poorly represented parties are disadvantaged and likely to lose their case 3 tiers of VCAT costs, standard, concession and corporate, this achieves substantive equality by charging higher fees to those who can afford it
63
Cost-access
Legal costs may force people to settle or not make a claim due to the high costs, meaning they are unable to engage in the civil justice system
64
Fees in Supreme Court to file a writ
$742
65
The Supreme Court calculated that ordering parties to attend mediation saved _____ trial days in ______ year
1,105 trial days throughout 2020-21
66
Specific damages
Compensation that can be calculated (quantifiable). Medical fees, monetary loss, lost wages.
67
General damages
For losses not easily quantifiable(e.g. pain and suffering)
68
Aggravated damages
For humiliation, insult or embarrassment suffered because of the defendants conduct
69
Exemplary damages
Seeks to punish the defendant for an extreme infringement of rights. Seeks to punish and deter where conduct is malicious, violent or cruel. Cannot be awarded for defamation.
70
Contemptuous damages
Very rare, where a plaintiff has the legal right but not the moral right to damages(plaintiff doesn’t really deserve to be awarded the damages). Can be as little as 5c.
71
Nominal damages
A small amount paid where the plaintiff has been wronged but no injury, loss or damage was suffered. They seek to uphold the plaintiffs rights. Can be as little as $1.
72
Restrictive injunction
Prevent someone from doing something
73
Mandatory injunction
Forces someone to do something
74
Purposes of damages
-Restore -Compensate -Recognise -Punish -Deter
75
Interim (interlocutory) injunction
An injunction the judge can grant before the trial
76
Final injunction
Granted by the judge after the trial

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