unit 3 aos 2 legal studies Flashcards
(99 cards)
1
Q
purpose of civil law
A
to restore plaintiff back to position before wrong doing
to right a wrong
2
Q
burden of proof in civil law
A
party with the onus is the plaintiff, since they bring the case to court
burden of proof is reversed, and put onto defence if they make a counterclaim, or raise a defence
3
Q
what is a counter claim
A
counter claim is a separate claim made by the defence in the same case, making them the plaintiff in the counterclaim
4
Q
standard of proof civil law
A
strength needed is on the balance of probabilities, which means the plaintiff must prove that their version of events is most like to have occured then not
5
Q
difference between standard of proof, criminal vs civil
A
-> civil has lower threshold and its more easier to prove then criminal (beyond reasonable doubt)
6
Q
factors the plaintiff needs to consider before initiating a claim
A
- limitation of actions (time limit)
- costs
- enforcement issues
7
Q
limitations of actions
A
-> restriction placed on the time within which a civil action can be commenced, existing for most types of civil claims
-> (this means) if plaintiff tries to bring a claim which is outside the time limit, they are ‘time/statute barred’ from bringing their claim
-> notwithstanding this (they can apply to court to extend the limitation period are court may do it if it considers it to be ‘just and reasonable’
-> (this is vital because) it means defendant dosnt have to face an action after significant amount of time
-> (notwithstanding this) they dont exist for child sexual offence cases
- two examples - 6 years for breach of contract and 1 year from publication for defamation
8
Q
costs
A
-> vital for plaintiff to consider, since parties are generally responsible for playing their own costs in a civil case
-> (for instance) these costs can include legal advice and representation, as well as other disbursements such as court filing fees
-> notwithstanding this, some options for support are available with legal coats such as VLA and pro bono lawyers, though this is limited and mostly uncommon for civil cases
-> (this also impacts) a plaintiff if they aren’t successful in their case, they will not only have to pay for their own legal costs, but are generally also ordered by the court to pay part of the defendants legal costs under adverses costs order
-> (this increases the importance) of institutions and methods for resolving civil disputes outside the very expensive court system
9
Q
enforcement issues
A
-> this refers considering two vital questions when deciding whether to initiate a civil claim against a particular defendant
-> (this includes) whether the defendant is able to comply with any settlement or order made, and whether there is any reason to suspect that they will refuse to pay
-> (this is beneficial to consider) because if they don’t comply with the settlement order, then the plaintiff will have to take enforcement action, through the court usually which just adds further stress, more time and costs of the civil action
-> (as such) other questions that are important to ask is whether they are bankrupt, have access to savings, whether they are in jail or even difficult to contact
-> (notwithstanding this), if the defendant being sued for example; for negligence in the course of their employment, the plaintiff could sue their employer under the principle of vicarious liability.
-> (this closely relates to enforcement issues because) it means they will definitely have the money to pay you and it will ruin their reputation if they don’t follow an order or settlement made
10
Q
mediation
A
discussion between the two parties, where they develop options and consider alternatives to reach agreement
11
Q
third party in mediation
A
-> third party is independent and called a mediator
- expertise in assisting parties to negotiate
- helps facilitate communication
- cannot suggest how to resolve dispute
12
Q
parties role in mediation
A
to have discussion and try come to an agreement by negotiating and compromising
13
Q
mediation process
A
cooperative process
they are conducted in private, where outcome is usually confidential
less formal and no strict rules of evidence and procedure
14
Q
mediation final outcome
A
made between parties
made through an agreement
can be legally binding if terms of settlement is entered into
this means party can issue enforcement action if other party doesn’t follow agreement
15
Q
conciliation
A
discussion between two parties where they develop options and consider alternatives to reach agreement through negotiation and compromise
16
Q
third party in conciliation
A
conciliator plays more of an active and directive role
expertise in the area of dispute (eg. family law)
independent third party
helps facilitate communication
can suggest ways to resolve disputes *
17
Q
parties role in conciliation
A
have a discussion and try come to an agreement by negotiating and compromising
18
Q
conciliation process
A
cooperative process
conducted in private
less formal
no strict rules of evidence and procedure
19
Q
conciliation final outcome
A
made between parties
made through agreement
can be legally binding if terms of settlement are entered into
20
Q
arbitration
A
parties agree beforehand on who the arbitrator will be and what the rule of evidence and procedure will look like
21
Q
third party in arbitration
A
arbitrators can be anyone (mag, barristers)
independent third party
make the binding decisions
has to listen to both sides
22
Q
parties roles in arbitration
A
have to agree beforehand
decide on all the rules of evidence and how formal they want it to be
they can arrange it privatley
23
Q
arbitration process
A
adversarial process
private
rule of evidence decided by party
24
Q
arbitration final outcome
A
arbitrator makes final outcome by hearing both sides and coming to a conclusion
legally binding through arbitral award
25
arbitration purposes
1. to provide a more cost effective/time efficient process for the determination of civil disputes
2. to give parties more control over the rules of evidence and level of formality
3. to safeguard commercial relationships by ensuring a private and confidential dispute resolution out of media
26
mediation + conciliation purposes
1. save time and resources of justice system (courts and VCAT) by encouraging an early settlement by parties
2. to ensure that parties who may find a court/VCAT hearing stressful or intimidating still have access to a cooperative method of resolving their dispute where they can participate directly and more comfortably
3. to provide flexibility for parties, outcomes, they can agree and compromise on rather then having a win loss solution handed down to them by a judge or VCAT member
27
arbitration appropriateness
appropriate when
1. parties have agreed or if claim is under 10,000 dollars and it has been issued in mag court
2. if they want the benefit of a binding and enforceable decision by an independent third party
3. resolved privatley
not appropriate
1. more control over the outcome
2. want it in media limelight
28
mediation and conciliation appropriateness
| appropriate + not appropriate
appropriate when
1. whether relationships between parties will continue
2. one or both parties want the dispute to be resolved privately
3. willing to compromise
not appropriate when
1. history of violence; less willing to compromise
2. gross imbalance of power
29
CAV and its jurisdiction
Consumer Affairs Victoria
regulator and complaints body in the area of consumer law
limited jurisdiction
supply of g + s from consumers to business
residential tenancies from tenants to landlords
retirement village
30
purposes of CAV
help settle their consumer law disputes
1. quickly and efficiently
2. constructively and effectively
3. without any cost (free)
31
method used in CAV
conciliation
-> facilitated discussion, make suggestions come to agreement
expert from CAV
usually over the phone
voluntary both sides must consent
free for both parties
terms of settlement signed, enforced through court
32
appropriateness for CAV
yes!
1. within CAV jurisdiction
2. parties already temped to solve
3. consumer is vulnerable or disadvantaged
no:(
1. if initiated in another institution
2. landlord made reasonable offer
3. super complex
4. urgent
5. trivial
33
VCAT + jurisdiction
Victorian civil and administrative tribunal
deals with particular areas of law under given statute
jurisdiction within 5 divisions
1. administrative
2. residential tenancies
3. civil
4. human rights
5. planning and environmental
34
VCAT purposes
1. low cost (3 tiers, cooperate, standard, concession)
2. accessible (various locations)
3. efficient (timely resolution
4. independent (unbiased decision makers)
35
VCAT mediation as a method
done by VCAT member
without prejudice
terms of settlement (vcat order)
36
VCAT compulsory conference as a method
another word for conciliation
usually half days/ full days for more complex cases
37
VCAT hearing
run by VCAT member
little formality and technicality as possible
apply procedural fairness
parties present case including evidence
open to public
VCAT members make binding decisions
if one of the parties does not attend the hearing the VCAT member can still hear the case and make a decision
costs order - if one party is disadvantaged
38
VCAT appropriateness
yes
1. within jurisdiction
2. if relevant division would be more cost effective and faster then courts
3. both parties take it seriously
no
1. if parties could resolve it through negotiation outside formal institution
2. too complex for VCAT
3. if they want precedent for further cases
39
COURTS + purposes
| in resolving civil disputes (as an institution)
in resolving civil disputes
1. closely supervised and managed formal dispute resolution
2. to have case resolved through a binding decision of an independent judicial officer
3. to offer a wide (almost unlimited jurisdiction) in resolving all types of civil claims
40
COURT METHODS
1. higher courts can use judicial mediation to try resolve tje case without need for a trial
mag court uses arbitration if dispute is under 10k
all courts can refer parties to mediation/ conciliation without consent, or arbitration with consent if appropriate
final hearing/trial/ judicial determination strict rules of evidence and procedure
open to public
41
COURT appropriateness
| as an instituion , yes and no
yes
1. if it falls within jurisdiction
2. class actions
3. high formality needed
4. if you have legal rep
no
1. vcat specific jurisdiction (exclusive jurisdiction) eg. domestic building disputes, retail tenancy disputes etc.
2. if costs is an issue
42
what is a court hierarchy
a ranking of courts based on the severity and complexity of the case they can hear
jurisdiction -> authority of power (original + appellate)
43
reason: administrative convenience
-> having court hierarchy make efficient use of limited financial + physical resources available through allocation of civil cases to different levels VIA their complexity
-> to provide the most efficient system
-- reducing likelihood of delays or bottlenecks as courts are not constantly shifting
-- courts provided with appropriate resources to deal with disputes
44
appeals
| + your specific appeal memorisation
-> party who is dissatisfied with decision in civil law can challenge the decision in a higher court to be reviewed.
-- if there was no court hierarchy then there would be no higher courts and therefore no system of appeal could operate
--> considered a fundamental part of fairness as they allow for any mistakes made in the original decision to be heard by a more experienced judge or panel of jury and corrected
mag to county based on question of law - chosen appeal
45
roles of magistrate and judge
1. act impartially in decision making
2. manage the hearing/trial
3. determining liability + remedy
4. case management
46
mag/judge role: act impartially during decision making
| + however point
- ensuring no apprehended bias
- decisions include liability + remedies
they are still human, they may make mistakes
47
mag/judge role: manage the hearing/trial
ensuring correct procedure is followed
decide questions of law (admissibility of evidence)
48
mag/judge role: determining liability and remedies
listen to evidence presented and determine whos liable on the balance of probabilities
mag always determines liability and remedy, but if there is a jury, judge only determines the amount of damages in a defamation case
49
case management as a role definition
giving directions/orders to parties in order to control the progress of the case more effectively and efficiently
-- having a more active role in the case
50
case management before the trial
actively involved in giving parties opportunities to settle their dispute
ensuring case is ready
discovery -- it is the role of parties to disclose info, but judge/mag can utilize case management by limiting discovery to a certain category of documents or ordering discovery for a particular doc at a certain time
mediation -- can order parties to attend mediation by a certain date to resolve it before trial. previously said that the courts would face difficulties if they did not use mediation to encourage a timely and efficient resolution of disputes.
51
case management during the trial
change the order in which evidence is to be given
who will go first in addressing the court
* limit the time for the hearing or trial
* limit the examination of witnesses, or not allowing cross-examination of particular witnesses
* limit the number of witnesses that a party may call
* limit the length or duration of the parties’ submissions to the court
* limit the number of documents that a party may tender into evidence.
52
roles of the jury
1. be objective in decision making
2. listening to and remembering evidence
3. delivering a verdict and determining amount of damages
53
jury role: be objective in decesion making
| + however point
- must be unbiased and open minded to the task of delivering liability
- make decisions based on facts and law
no info from outside the trail and no connection to parties
may have unconscious biases or prejudices, and as they do not give reasons for their decisions
54
jury role: listen to and remember evidence
| + however point
must retain concentration and be vigilant for new information throughout the trial
can take notes to remember information
can only use evidence in deliberations
no outside sources such as social media or own investigations
we would never know, they dont give reasons for decisions
55
jury role: delivering verdict and determining amount of damages
- determine libraility of defendant to the civil standard of proof
- follows private deliberations
- must try reach a unanimous decision
- decides on amount of damages if remains (except defamations cases)
56
roles of the party
1. making decisions about conduct of the case
2. discovering documents to other parties
3. participate in hearing/trial
57
party role: making decisions about conduct of the case
- plaintiff and defendant control their case and how it will be run in trial
- which claims to make when lodging and witness to call
- still need to be consistent with rules of evidence and procedure
58
party role: discovering documents to other party
- pretrial procedure where each party must disclose any relevant documents in their possession to the other party
- for example if the plaintiff is claiming damages for physical injury; medical records must be disclosed
59
party role: participate in hearing/trial
- plaintiff + defendant presenting their case to mag/judge/jury
- opening closing statements
- cross examining witness
60
the need for legal practitioners includes
1. to understand the complex legal process and terminology in the civil justice system which most parties are unfamiliar with
2. to ensure they can present their evidence and test the opening parties evidence in the most effective way
3. a party may find it difficult to objectively assess the strength of its case and asses the risks of going to trial vs settling
4. to ensure closed process' such as mediation and conciliation are done fairly and without pressure on either party to settle, particularly in the case of a significant power imbalance
5. where one party is represented and the other is not
61
to understand the complex legal process and terminology in the civil justice system which most parties are unfamiliar with
| example, what happens if you dont, which is why you need a lawyer
## Footnote
POJ
- example could be discovering documents to the other party
- without one, if they misunderstand their legal rights it may lead to an unfair outcome, without proper legal advice they may not be able to effectivley navigate the legal system hidnering engagement
- a lawyer can explain legal terms they dont understand and ensure compliance with rules of evidence and procedure
62
to ensure they can present their evidence and test the opening parties evidence in the most effective way
| example, what happens if you dont, which is why you need a lawyer
## Footnote
POJ
- cross examining witness as an example
- without one, party may not be able to present their case legally or clearly leading to be being dismissed, creating an uneven level playing feild with a self represented party as one sides lawyer would be able to do it and the others wouldnt creating diadvantage
- a lawyer is able to present their clients own evidences clearly and confudct effective cross examination
63
a party may find it difficult to objectively assess the strength of its case and asses the risks of going to trial vs settling
| example, what happens if you dont, which is why you need a lawyer
## Footnote
POJ
- example could be personal injury case that may bring up heightened emotions for the plaintiff
- without one, party risks making decesion based on emotion rather then legal merit, hindering fairness as it leads to uninformed decesions that hinder particiapation within the case
- lawyer is able to provide an objective lens and expert analysis of the positioning based on facts and law
64
to ensure closed process' such as mediation and conciliation are done fairly and without pressure on either party to settle, particularly in the case of a significant power imbalance
| example, what happens if you dont, which is why you need a lawyer
## Footnote
POJ
- example if one party is wealthy or sophisticated and the other is not
- without one, the weaker party may be coerced into settling for less then what they are entitled to, allowing powerful party to dominate creating an imbalance in the playing feidl hindering equality
- a lawyer is able to support and advocate for their client in mediation/conciliation to ensure their voice is heard
65
where one party is represented and the other is not
| example, what happens if you dont, which is why you need a lawyer
## Footnote
POJ
- example is obvious
- without a lawyer, judges may struggle to remain nuteral to both sides while helping ensure procedural fairness leading to ineffecient or problematic proceedings, hindering acces as it suggests that legal outcomes are determined by who can afford a lawyer
- with both parties having a lawyer, it ensures legal strategy is competitve and not outchmatced due to lack of experitse
66
what are class actions
defintion - legal procceedings in which 7 or morew people have a claim based on same or simillar facts and bring that claim in corder in the name of one person
67
requirements of class actions
- 7 or more people
- against one defendant
- claims related to same or simillar circumstances
- same legal and factual evidence needed to be decided in the case
68
role of the lead plaintiff in class actions
- represent the group
- give instructiuons to lawyers
- appear in court
- give evidence
- hold cost liability
- soley responsible for adverse costs order
- sharing the damages or settlement if won
69
role of group members
- represented by lead plaintiff
- do not contribute to any legal costs
- do not have to attend courts unless presenting evidence or witness
- only personally involved at the start and end
70
what is opt out?
in aus we use opt out method in class actions
everyone who fits discription of a group member is assumed to be part of class actions unnless they decide to opt out by filing notice
if person opts out they are not bound to any settlement and can pursuue the defendant in seperate legal proceedings
71
how are class actions funded
1. no win no fee arrangement
2. litigation funder
3. group costs order
72
no win no fee arrangment
| what it includes
- plaintiff pays no legal costs upfront
- law firm works on case but doesnt get payed throughout
- if case is 'won' actual legal costs incurred throughout the case are taken out of settlement/damages amount at the end
- an uplift fee is taken out which recognises the risk of the law firm for taking the case
73
litigation funder
| what it includes
thid party that agrees to pay ongoing legal costs of the claim
plaintiff pays no legal costs upfront
If the case is won, the litigation funder takes the legal costs PLUS a pre-agreed percentage of the settlement/damages.
74
group costs order
received permission from court
plaintiff pays no legal costs upfront
Law firm works on the case but doesn’t get paid anything throughout
If the case is ‘won’, the law firm gets a pre-agreed percentage of the settlement/damages.
75
role of courts in class actions
courts are very involved in active case managment both pre trial and trial stages
vast majority of them settle at mediation
approving settlements agreed to between parties as well as approving legal costs of law firms and fees for litigation funders
76
when are class actions appropriate
- when requirements are met: effecient since courts only have to deal with one case (promotes access as court resources are used more effectivley, reducing delays and making legal system more available to everyone)
- group members unable to fund a claim (access since even indivduals who lack financial means are able to pursue justice and it ensures that financial barriers do not block their path to resolution)
- willing and able to lead plaintiff (fariness becsue they represent interests of the group in an organised way ensuring case is presented clearly giving best chance of justice for everyone involved
77
when are they not appropriate class actions
- when no one is willing to be the lead plaintiff (hinders access as the class action cannot proceed denying the group access to potential remedies especially for vulernable individuals who may lack the capacity or confidence to pursue the case alone
- group members achieve less compensation then if sued individually (hinders fairness as parties do not receive the remedy that reflects the actual harm sufferered hindering particiapation)
- group members want more control of the cae (hinders equality since decesions are made by lead plaintiff it may disadvantage some individuals and their voice in the outcome)
- long delays as class actions are slow (hinders access as it often takes years which delays justcie and limits access especially if the plaintiff and group members are seeking urgent relief
78
COSTS
| what do they include
legal rep
soliciters = 200-800 an hour
barristers = 2000 to 10000 a day
disbursmenets = mediation fees, filing fees, expert witness fees
79
impacts of costs
| prevented from pursuing
people may be prevented or discouraged from pursuing the civil claim or any defences at all
- this is bc soliciters cost 200 to 800 dollars an hour
- this means that access is limited because they phyiscally arent able to engage with the system if they dont have the financial means to do so
80
impact of costs
| self rep party
can lead to a party being self represented
- since barristers costs 2000 to 10000 a day, parties may not even have the money to pay for it, and may feel self rep is more affordable for them
- this means that equality is not achieved, as compared to a party with self rep, they arent able to be on the same level playing feild
81
impact of costs
| settling on less favourable
may lead to a party settling on less fabourtable terms
- disbursments in courts costs sooo much, so they may feel conciliation or mediation is best where they have to negotiate cause it doesnt cost that much
- this hinders fairness and particiaption
82
how do we reduce the impact of costs
1. funding arragments (no costs upfront, however more at the end)
2. cooperate dispute resolution (no court fees, however no oversight)
3. dispute resolution bodies (effecient and usually low to no cost however jurisdiction)
4. legal aid for small amount (for some however tight legibility)
5. class actions (plaintiff has even more costs and group members dont have enough control)
6. adverse costs order (only if you win)
83
TIME
| includes
- varies based on complexity type of claim and parties involved
- last 5 years there has been significant delays in court due to COVID
- VCAT mostly
84
impacts of time
| prevented or discouraged
parties may be prevented or discouraged from pursuing a claim or defence in the first place
- this is because it takes too long (Building and Property List, with a median time from application to hearing of 52 weeks)
- this hinders access as people cant engage in a timely or effecient manner especially for urgent matters it may make them not even lodge in the first place
85
impacts of time
| self rep
parties may chose to go in self represented
- this is because they casnt afford the costs over such a long period of time
- this hidners equality as one party will have and the other wont meaning there is an uneven level playing feild
86
impacts of time
| less favourable
parties settling on less favourable terms
- waiting time for some of these things is so long
- fairness particiapation
87
damages overal
| purpose
purpose: to restore the plaintfif to the position they were in before the wrongdoing occured
88
compensatory damages
purpose: to restore plaintiff to the position they were in before the wrong doing and where this is not possible, the damages aim to make up for the past and future losses
89
specific damages
purpose: to compensate for damages that are easily quantifiable and calculated
90
general damages
purpose: to compensate for damages that arent easily quantifiable or calculated
91
aggravated damages
to further compensate where court belives defendants confuct caused extreme humiliation embarassment and insult
| awarded on TOP of general or speficic
92
nominal damages
purpose: to confirm a plaintiffs rights have been infringed even though loss was substantial
| small amount usually awarded as only type
93
contemptous damages
purpose: to show that even though the plaintiffs claim succeeded the court dissaproves of it in moral temrs
| small amount, usually awarded as only type
94
exemplary damages
purpose: to punish and deter the defendant and others where conduct is malicious, vile, cruel and dodgy
| can be awarded alongside compensatory
95
injunctions overall
purpose: recitfy a situation caused by a defendant
| order for a defendant in civil case to do or not to do something
96
restrive injunction
purpose: to prevent harm or further harm to a plaintiff
| orders defendant to refrain from undertaking an action
97
mandatory injunction
purpose: prevents fuerther harm or ensures action fixes situation
| ordering defendant to do a particular act
98
interlocutry injunction
purpose: to preserve status quo of parties until final determination
| length: temporary injunction awarded quickly in urgent situation
99
final injunction
purpose: to rectify the situation caused by the defednant permanantly
| granted after case is heard in full by court
