Unit 3 Aos 2

Question 1

parties in civil case

Answer 1

•Plaintiff – alleges their rights have been infringed, Sues the defendant.
•Defendant –alleged to have infringed on rights of plaintiff.
◦Parties can be individuals, groups, corporations or government bodies.

Question 2

types of civil law

Answer 2

•Family law
◦Relationships and financial arrangement between parents, children and other family members where parents have broken up.
•Defamation
◦Publishing untrue material which damages a person’s reputation
•Trespass
◦A person interferes with another person’s property or possessions without permission.
•Breach of contract
◦A person who has entered into a legally enforceable agreement fails to meet their obligations under that agreement.
•Nuisance
◦A person’s enjoyment of their land is negatively affected by the unreasonable actions of those on nearby property.
•Negligence
◦A person who owes a duty of care to others breaches that duty by failing to behave at the appropriate level.

Question 3

3 main dispute res bodies

Answer 3

• Complaints bodies such as CAV
• Ombudsmen, such as the Public Transport Ombudsman
• Courts, both Victorian (such as the Magistrates’ Court) and federal (such as the Federal Court).
• Tribunals, such as VCAT

Question 4

fairness, equality, access

Answer 4

•FAIRNESS - Fair processes and a fair hearing or trial means:
◦Both parties should have the opportunity to present their case
◦The dispute resolution process should not disadvantage either party
◦Both parties should understand the process and be able to fully participate in the hearings
◦There should be a fair process, including any pre-hearing procedures as well as the hearing itself.
•EQUALITY - in the civil justice system means that all parties should be treated equally before the law with an equal opportunity to present their case.
Legal processes should be free from bias or prejudice and the people who resolve disputes should be unbiased.
•ACCESS in the civil justice system means people understand their legal rights and can pursue their claims in the legal system.
People should be able to use courts and tribunals to solve their disputes and get assistance and information from other legal institutions.

Question 5

burden and standard of proof

Answer 5

The burden of proof is the onus or responsibility on one side to establish the facts of the case.
•This lies with the party bringing the case.
The standard of proof is the strength of evidence
needed to establish the case.
•In a civil case, this is the balance of probabilities, which means they are more likely to be telling the truth or in the right.

Question 6

class action

Answer 6

A class action is a civil case bought in the name of one person on behalf of a larger group who all have claims against the same party.

Question 7

benefits of class action

Answer 7

• That one person is named as the plaintiff (lead plaintiff) and the others will either need to opt in or opt out of the proceedings.
• Class actions are becoming more common. They are beneficial as:
• The group members can share the cost of the action – this gives more people access to the system.
• It saves time and resources within the legal system.
• Sometimes third party litigation funders can pay the upfront costs (in return for a percentage of any damages awarded).

Question 8

relevant factors when initiating a claim

Answer 8

• Can the dispute be settled by negotiation?
• What will be the costs involved in settling the dispute?
• Does the action need to be initiated within a certain time limit?
• Who is the defendant and to what extent are they liable?
• Will there be issues with enforcing any order against the defendant?

Question 9

negotiation

Answer 9

• Negotiation involves discussions between parties and sometimes their legal representatives.
• Facilitated negotiation is negotiation with a third party.
• Negotiation can be done through a body, for example the Dispute Settlement Centre of Victoria.
• If one party does not want to negotiate or feels threatened by the other, if the claims of one party are unreasonable or if there is a significant power imbalance between the parties, negotiation is unlikely to succeed.

Question 10

what are costs of a civil case

Answer 10

•A party involved in a civil dispute may incur costs in resolving a civil dispute.
•Legal advice and representation are costs.
•Parties may have to pay disbursements such as:
◦court fees- jury, filing, trial
◦mediation fees
◦expert witness fees.
•Adverse cost orders- court order that a party pays for the other party’s costs.

Question 11

VLA

Answer 11

•Victorian Legal Aid (VLA) provides free legal advice and representation.
•VLA tends to prioritise providing aid to defendants in criminal disputes.
•Before initiating an action, potential plaintiffs need to consider a range of cost related factors including costs of the legal action, costs they may have to pay if they lose the action and whether they can access legal aid
-Not available to for business and commercial , employment, estates etc

Question 12

limitation of actions

Answer 12

Limitation of actions is the time limit within which a civil action must be started.
•Generally, If not initiated within time, defence can be that the plaintiff is too late.
•This is so that disputes can be solved in a timely manner, people can move on and evidence is not lost or forgotten.
•In Victoria the Limitation of Actions Act 1958 (Vic) specifies these time limits, for

Question 13

possible defendants

Answer 13

•Possible defendants: the defendant is the person who is alleged to have infringed upon the plaintiff’s rights. Sometimes, someone other than the person who directly infringed upon the plaintiff can be sued – this can be:
◦Employer
◦Insurer
◦Others involved in the wrongdoing.(accessorial liability)

Question 14

extent of defendants liability

Answer 14

• A defendant might argue that while they are liable for part of the plaintiff’s loss, they are not liable for the full extent of the loss.
• This is common in negligence claims where the defendant argues contributory negligence – that the plaintiff partly contributed to their loss.
• If successful, the judge or magistrate will allocate blame amongst the parties in percentage terms.

Question 15

enforcement issue

Answer 15

• If a plaintiff succeeds in a civil action, an order of some type will be made against the defendant.
• Plaintiff’s need to consider whether, if such an order is made if the defendant can afford to pay the amount claimed by the plaintiff.

Question 16

benefits of negotiation

Answer 16

• Cost, time and stress involved in commencing a formal civil action may be avoided.
• Parties have control of outcome
• Parties may be more prepared to accept an outcome that they’ve helped come to

Question 17

CAV

Answer 17

• CAV is a complaints body that assists people in resolving disputes. It is an agency of the Victorian Government.
• Purpose:
- to provide consumers and traders, and landlords and tenants, with a dispute resolution process,
- help people settle in efficient and constructive way without any costs.
- use conciliation ; may sign a terms of settlement

• Can enforce and ensure compliance with consumer laws.
• They can take enforcement action in the courts against businesses / landlords, if they have breached consumer protection laws or if they have acted illegally
• Power ranges from warning letters and infringement notices to court action for serious matters.

Question 18

appropriateness of CAV

Answer 18

CAV’s jurisdiction:
• provision of goods and services
• residential tenancies
• retirement villages
• owner’s corporations
• The likelihood that case will settle depends on:
• the behaviour of the complainant
• delay in receiving the complaint
• previous cases involving the other party

Question 19

VCAT

Answer 19

VCAT is:
• low-cost
• accessible
• efficient
• independent.
VCAT 
•Consumers / traders
•Companies / registered businesses
•Trustees of trust funds 
•Most cases within 6 years of claim 
•Unlimited jurisdiction 
- Tribunals are dis res bodies which deal with a limited area of law, and build up expertise in that area. Divisions CHART
 VCAT – dispute resolution methods
• Mediation – VCAT offers a short mediation and hearing process for small civil claims
• Compulsory conferences- conciliation vcat member
• Final hearing- vcat member makes final decision

Question 20

appropriateness of VCAT

Answer 20

VCAT has the power to hear on:
• retail and residential tenancies
• purchases of goods and services • discrimination
• guardianship
• domestic building works
• registration of professionals.
VCAT cannot hear:
• representative proceedings or
• disputes between employers and employees
• disputes between people involved in car accidents • disputes between neighbours.

Question 21

pretrial- pleadings

Answer 21

documents including statement of claim and defence.