Unit 3 AOS 2 Legal (Victorian civil justice system)

Question 1

What is the Standard of proof in a civil case?

Answer 1

A Balance of Probabilities
the degree to which the case must be proved on the balance of probabilities

Question 2

Who has the burden of proof?

Answer 2

The Plaintiff

Question 3

What are the three alternative dispute resolution methods?

Answer 3

Mediation
Conciliation
Arbitration

Question 4

What cases does Arbitration usually hear?

Answer 4

Business related disputes usually

Question 5

What are all factors to consider before intimating a civil claim

Answer 5

• Cost
• Limitation of actions
• Time
• Enforcement issues

Question 6

What are some of the main costs related to the civil justice system

Answer 6

• Regular legal representation, the cost of lawyers, solicitors.
• Disbursements (out of pocket expenses such as (Court fees, mediation fees, expert witness fees )
• Adverse cost order If a plaintiff is unsuccessful in court the plaintiff must pay the costs of the other party which can lead to deterring the plaintiff from initiating a claim

Question 7

What is limitation of actions

Answer 7

Limitation of action refers to the restriction placed upon the time when a civil claim can be filed, therefore the plaintiff must file a claim before the limitation of actions runs out, if the limitation of actions run out the plaintiff will not be able to file a civil claim

Question 8

Is there limitation of actions for a defamatory case

Answer 8

Yes limitations of actions will be put in place during a defamatory case usally one year after the defamatory comments have been made will fbe the limitation of actions

Question 9

Is there a limitation of actions for a physical or sexual abuse cases

Answer 9

No, Victoria was the first state to remove limitation periods for a person who has suffered physical, sexual abuse, or phycological harm as a minor in 2015.

No, In 2015 Victoria became the first state to remove limitation periods for persons who suffered physical
or sexual abuse as a minor, or psychological injury that arose out of that abuse

Question 10

What are enforcement issues

Answer 10

Normally there are 2 ways a plaintiff will settle a remedy

1. Settling with defendant before court or tribunal ands down decision
2. By the court or tribunal making a decision about liability and awarding a remedy

Plaintiff must take into consideration if defendant can
- Pay the cost even if it thought them having to sell of assists
- If defendant is in jail overseas or uncontactable may be difficult getting remedy

• If defendant can loan/ borrow money to pay off

Question 11

How does the principle of fairness apply to civil cases?

Answer 11

Impartial processes (no apprehended bias, all people involved must be independent and impartial etc)
Open Processes ( civil hearings should be open to the public and court judgement should be given in public, there are instances where disputes can be resolved in private like mediation.)
Participation ( opportunity to know the case put against them, opportunity to present their version of the case, use of an interpreter, no unreasonable delays etc)

• opportunity to know the case put against them through discovery as well as being able to present their own case, also use of interpreter and no delays

Question 12

How does the principle of equality apply to civil cases?

Answer 12

Same treatment ( the parties in a civil dispute should be treated in the same way, formal equality)
Different treatment ( substantive equality, sometimes treating two parties in the same way results in disparity or disadvantage) this can also be described as the ‘one size fits all approach’ as it does not work for everyone

Question 13

What are some examples of where a court may need to use substanisve equality (different treatments)

Answer 13

-assistance to a self-represented party
-interpreters
- providing information in a different way
- changes to court or tribunal processes
- different forms of giving evidence

Question 14

How does the principle of access appeal
to civil cases?

Answer 14

Engagement (providing a range of dispute resolution methods, physical access, technological access, financial access, no delays)
Informed Basis (for people to engage with the civil justice system, they should be able to get information and use procedures, methods and institutions that resolve a civil dispute)

Question 15

What are some ways a person can become more informed?

Answer 15

-education
-information (from vlas or clcs)
-legal services
-legal respresentation

Question 16

What is mediation?

Answer 16

a joint problem- solving process, a negotiation, where both parties sit down and discuss a resolution, both parties are sat in by a 3rd party mediator that its their role to ensure that both party’s come to a decision they will do this via trying to assist all parties involved in the case

Mediators are not legal experts and do not have much specialization. Meditation is a cheapest form of ADR available and everything said in mediation has without prejudice bias which means and interaction said in mediation cannot be said in a court of law if negotiations fail

Question 17

What types of cases does mediation hear?

Answer 17

smaller disputes such as divorce/marriage disputes. doesnt have a specialisation and can be used for anything

Question 18

What is conciliation

Answer 18

Conciliation is another form of ADR like meditation (in this case the independent and impartial 3rd party is named the conciliator), conciliation like mediation is still an informal process where the 3rd party listen to both sides arguments while only providing suggestions for the appropriate ways a matter can be resolved

Conciliators generally have specialized knowledge in the case that they are hearing (e.g Workplace injuries) Conciliators also act as a go- between for both parties this means parties are kept in separate rooms where the conciliator will move between rooms to handle the negotiations between the parties, like mediation conciliation is also not legally binding

Question 19

What type of cases do conciliation hear?

Answer 19

• Workplace disputes
• claims for improvements in pay or conditions of employment, disciplinary cases, grading issues, disputes arising from proposed changes to the way work is done, company restructuring

Question 20

What is arbitration

Answer 20

Much more formal than other ADR’s. Arbiter is still an independent impartial 3rd party but if party’s cannot make a solution they can offer suggestions and if that does not work they can then offer a solution called a arbiter award which IS legally binding

In taking case to arbitration both parties have agreed before negotiations to abide by the arbiters decision, usually written into contract between company’s, (arbiters have specialized knowledge that they are taking part in {e.g commercial disputes])

More costly than ADR’s cause legal representation is involved, magistrates court will use arbitration for cases of less than $10,000

Question 21

What are the 2 functions of the Victorian court hierarchy

Answer 21

• Administrative convivence
• Appeals

Question 22

Strengths and weaknesses of the VIC court hierarchy (MUST KNOW)

Answer 22

Strengths
- Hierarchy allows court to adapt different processes and use their resources in a way that ensures cases can be resolved efficiently. For example given the volume of smaller cases heard in the magistrates court there are more magistrates and more court venues
- A court hierarchy allows appeals to be made by both parties if there is an error in the original decision

Weaknesses
- The different courts may be confusing for people who do not understand the civil justice system. This can be particularly so where there are overlapping jurisdiction (e.g county court and supreme court) or for self- represented parties
-There is no automatic right to appeal and appeal processes are difficult to understand without a lawyer , particularly as there is generally the need to establish grounds for appeal

Question 23

Strengths and weaknesses of arbitration

Answer 23

Strengths
- Decision made by arbiters is legally binding
- hELD CONFIDENTIAL
weakeness
-no appeals

Question 24

what are some pre-trial procedures

Answer 24

discovery
mediation

Question 25

what is the goal of remedies

Answer 25

To restore the plaintiff back to the original position prior to the civil breach occurring.

Question 26

What is discovery