Unit 3 Aos 2 Flashcards
(16 cards)
Burden of proof
The obligation/responsibility of a party to prove a case. Rests with party who instantiates the action (plaintiff)
Standard of proof
The degree or extent to which a case must be proved in court
Civil claim- balance of probabilities
Factors to consider before initiating a civil claim
COSTS
- legal representation
- disbursements (out of pocket expenses)
- adverse costs orders
LIMITATION OF ACTIONS
- restriction placed on the time within which a civil action can be commenced
ENFORCEMENT ISSUES
- whether defendant will/can pay
- may have no assets
Mediation- benefits
Mediation - a method of dispute resolution that uses an independent third party to help the disputing parties reach a resolution
Strengths
-mediator is impartial
- less formal
- less costly
- venue is suitable for both parties
- saves time
- private
Weaknesses
- decision isnt legally binding (not enforceable)
- one party may compromise too much without a judge
- parties may refuse to attend
- if isn’t resolved, may be waste of time and money
- no open processes
Reasons for a court hierarchy
Administrative convenience
- cases can be distributed according to their seriousness and complexity
- can more easily manage the allocation of time for longer, more complex cases
Appeals
- someone who’s dissatisfied with a decision in a civil trial can take the matter to a higher court (with grounds for appeal)
Grounds for appeal include
- a point of law
- question of fact
- remedy awarded
Principles of justice
Fairness
- open processes
- impartial processes
- participation
Equality
- substantive equality
- formal equality
Access
- engagement
- informed basis
Impact of time
Factors that may impact on how long it takes for a case to be heard
-backlogs
—> delays
- pre-trial procedures
—> process of discovery, case management processes may be used to make orders about discovery and other pre trial steps to streamline the process
—> evidence gathering and preparation
- time it takes for a party to get their cases ready for hearing (gathering evidence and preparation for hearing)
Role of judge in civil justice system
ACT IMPARTIALLY
CASE MANAGEMENT before trial
- manage the case during the pre-trial stages (ensuring a case is ready for trial)
CASE MANAGEMENT during trial
- managing trial or hearing
DETERMINE LIABILITY AND REMEDY
DECIDE ON COSTS
- which party will bear the costs ?
Role of jury
BE OBJECTIVE
LISTEN TO AND REMEMBER EVIDENCE
UNDERSTAND DIRECTIONS AND SUMMING UP
- from judge about issues or points of law
DECIDE ON LIABILITY and in some cases damages
- whether plaintiff has established their case on the balance of probabilities
CLASS ACTIONS (benefits)
A type of proceeding where a group of people, who all have claims against the same party, join together in a proceeding (7 more more ppl)
Benefits
- group members aren’t responsible for the costs (but share costs if successful)
- more efficient
- can pursue claims that usually wouldn’t be dealt with (small)
- litigation funders allow for a ‘no win, no fee’ basis
Weaknesses
- large burden on lead plaintiff who has to bear costs
- takes up a large amount of resources and time sue to size of case
- litigation funders have been criticised for taking a large percentage of the costs awarded
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CAV
Jurisdiction:
- disputes between purchasers and suppliers, or consumers and suppliers , about the supply or possible supply of goods and services eg. Product is faulty
- disputes between tenant and landlord eg. Rental agreements, repairs ect.
Aim of CAV is to help people come to an agreement about how to resolve disputes efficiently without costs.
- allows smaller disputes to obtain a dispute resolution service
Appropriateness of CAV
- whether its in their jurisdiction
- whether consumer/ tenant has tried to solve the matter themselves
- whether it justifies or needs CAVS help
- whether consumer is vulnerable or disadvantaged
VCAT
Jurisdiction:
- residential tenancies
—> tenants and landlords, rooming house owners and residents, caravan park owners and residents, site tenants and owners - administrative
—> professional conduct inquires and applications from people seeking a review or decisions made by government and other authorities - civil
—> relating to consumer matters, building works, owners corporation matters, retail tenancies, and sale and ownership of property - human rights
—> matters relating to guardianship and administration, equal opportunity, racial and religious vilification, health and privacy info., disability matters and decisions made by mental health tribunal - planning and environment
—> reviews of decisions made by councils or other authorities
Purpose
- low cost
- accessible
- efficient
- independent (unbiased)
Appropriateness of VCAT
- in their jurisdiction
- whether they will take VCAT seriously
- may prefer the formality of a courtroom
Disputes VCAT cant hear
- class actions
- employers and employee disputes
- neighbours
- drivers in car accidents
- involving federal or state law where VCAT hasn’t been given power to hear it
Remedies
Any order made by a court designed to address a civil wrong or breach
-damages
-injunctions
Injunctions
*order directing someone to stop doing a certain act, or compelling someone to do a certain act, rectifies the situation
Restrictive
- orders someone to refrain from doing something
Mandatory
- orders someone to do something
Aim is to restore plaintiff to original position before the wrongdoing !
