Unit 3 SAC 2 Flashcards
(70 cards)
1
Q
What are the pre-trial procedures in a civil case?
A
- pleadings
- discovery of documents
- exchange of evidence
- mediation/conciliation
2
Q
Which party has the burden of proof in a civil case?
A
The plaintiff
3
Q
What is the standard of proof in a civil case?
A
On the balance of probabilities
4
Q
What cost factors should be considered before initiating a civil claim?
A
- fees for legal representation
- disbursement
- adverse costs order
5
Q
What is the limitations of actions?
A
The restriction placed on the time within which a civil action can be commenced eg. defamation is 1 year
- ensures evidence is not lost or forgotten
- resolves cases quickly
6
Q
What are the enforcement issues that should be considered before initiating a civil claim?
A
- whether the defendant has sufficient funds to pay the plaintiff
- if the defendant is in jail
- if the defendant is a company
- if the defendant will refuse to pay
7
Q
What is mediation?
A
A non-judicial dispute resolution method involving an independent third party called the mediator, who facilitates conversation between the parties.
- in 2021/22 the Supreme Court found that 1035 hearing days were saved due to the use of mediation
8
Q
What is conciliation?
A
A non-judicial dispute resolution method involving an independent third party called the conciliator, who facilitates conversation between the parties and offers suggestions based on their specialised knowledge of the case.
9
Q
When is mediation and conciliation appropriate?
A
- when the parties wish to maintain their relationship
- when the parties are willing to compromise
- if the parties prefer confidentiality
10
Q
What are the strengths of mediation and conciliation?
A
- independent, impartial third party
- less formal and intimidating
- safe and supportive environment
- can save significant time
- conducted in private
11
Q
What are the weaknesses of mediation and conciliation?
A
- the decision may not be enforceable
- there may be a power imbalance between parties
- may waste time and money if a decision is not reached
- no ‘open justice’
12
Q
What is arbitration?
A
A non-judicial dispute resolution method involving an independent third party called the arbitrator, who listens to evidence from both parties and hands down a binding decision.
13
Q
When is arbitration appropriate?
A
- when parties have agreed to arbitration
- when parties want a binding decision
- when parties want evidence to be presented to an independent third party
- when parties want to maintain confidentiality
14
Q
What are the strengths of arbitration?
A
- decision is binding and enforceable
- private
- arbitrator is an expert and is impartial
15
Q
What are the weaknesses of arbitration?
A
- parties don’t control the outcome
- not available unless both parties agree
- more costly than other dispute resolution methods
- can add stress time and costs
16
Q
What are the reasons for the Victorian Court Hierarchy in the civil justice system?
A
- administrative convenience
- appeals (point of law, question of fact, remedy awarded)
17
Q
What are the strengths of the court hierarchy?
A
- allows courts to adopt different processes in a way that resolves cases more efficiently
- allows for appeals to occur
18
Q
What are the weaknesses of the court hierarchy?
A
- different courts may be confusing
- no automatic right to appeal
19
Q
What are the roles of the judge and magistrate?
A
- act impartially
- case management before and during trial or hearing
- determine liability and the remedy
- decide on costs
20
Q
What are the similarities between civil and criminal judges and magistrates?
A
- act impartially and without bias
- assists self represented parties
- instructs the jury
21
Q
What are the differences between civil and criminal judges and magistrates?
A
- civil judge may determine liability
- civil has remedy, criminal has sanction
- mediation and discovery of documents for civil
22
Q
What are the strengths of the judge and magistrate?
A
- impartial umpire
- experts in the law
- manage case and ensure it is resolved in a just and efficient manner
- can assist self represented parties
23
Q
What are the weaknesses of the judge and magistrate?
A
- potential bias
- not culturally diverse
- some cases are more actively managed than others
- cannot overly intervene
24
Q
What are the roles of the jury?
A
- be objective
- listen to and rememer the evidence
- understand directions and summing up
- decide on liability and, in some cases, damages
25
What are the similarities between civil and criminal juries?
- both impartial
- listen to evidence
- comply with obligations
26
What are the differences between civil and criminal juries?
- criminal is guilt, civil is liability
- standard of proof is different
- criminal jury will never determine sanction, civil will sometimes decide damages
27
What are the strengths of the jury?
- randomly picked and have no connection to the parties
- allows participation from the public
- collective decision-making reduces possible bias
- reflect community values
28
What are the weaknesses of the jury?
- unconscious biases
- difficult for the jury to understand the processes
- may result in further delays
- ineligibility criteria
29
What are the roles of the party?
- make decisions about the conduct of the case
- disclose information to the other party
- exchange evidence
- participate in the trial
30
What are the similarities between civil and criminal parties?
- ongoing disclosure obligations
- must not mislead the court
- both allowed to present their case
31
What are the differences between civil and criminal parties?
- defendant in civil has ongoing discovery obligation
- not usually jury for civil
- party control does not exist much for criminal
32
Why are legal practitioners needed?
- lawyer will represent case in the best light
- party may be too invested in the case
- party may not know how to examine witnesses or present evidence
33
What are the strength of legal practitioners?
- experts in navigating the civil justice system
- have objectivity
- help avoid delays
34
What are the weaknesses of legal practitioners?
- high cost
- not all legal practitioners are equal in skill and expertise
35
What is a class action?
A type of proceeding where a group of people, who all have claims against the same party, join together in a proceeding.
- seven or more people
- includes lead plaintiff and group members
36
What are the types of class actions?
- shareholder
- product liability
- employee
- natural disaster
37
What needs to be considered when determining the appropriateness of class actions?
- whether there are seven or more people
- whether a law firm or a litigation funder is prepared to fund the claim
- whether there is someone willing to be the lead plaintiff
- the nature and size of the claims
- whether one group member has suffered significantly more than other group members
38
What are the strengths of class actions?
- group members are not responsible for the payment of any costs
- efficient way of dealing with a number of claims
- more economical and cost-effective to pursue the claim
- litigation funders and plaintiff law firms increase access to justice
- reduce the costs of defendants
- more convenient for group members
39
What are the weaknesses of class actions?
- impose a large cost burden on the lead plaintiff
- takes up significant time and resources
- lawyers may take advantage of class actions
- litigation funders may take a large percentage of damages awarded
- group members may not get a lot of information throughout the case
40
What is Consumer Affairs Victoria?
A complaints body that regulates consumer law and helps ensure that Victorians are informed about consumer laws, and ensures that businesses are complying with those laws.
41
What are the purposes of Consumer Affairs Victoria?
- to help people come to an agreement about how to resolve their disputes
- to try to help the parties reach a resolution that is consistent with the law
42
What cases can Consumer Affairs Victoria assist with?
- disputes between consumers and businesses
- disputes between a tenant and landlord
43
What dispute resolution methods does Consumer Affairs Victoria use?
- over the phone services
- conciliation
44
What factors are considered when determining the appropriateness of Consumer Affairs Victoria?
- whether the dispute is within CAV's jurisdiction
- whether they have tried to resolve the dispute themselves
- if both parties are willing to attend and participate in conciliation
- whether parties are willing to settle
45
What are the strengths of Consumer Affairs Victoria?
- their conciliation service is free
- informal processes
- ensure procedural fairness
- parties able to reach a resolution themselves
45
What are the weaknesses of Consumer Affairs Victoria?
- limited due to CAV's jurisdiction
- no power to compel parties to undergo conciliation
- no power to enforce decisions made
- no all cases are accepted by CAV
- not appropriate for complex cases
46
When was the Victorian Civil and Administrative Tribunal established?
Victorian Civil and Administrative Tribunal Act 1998 (Vic)
47
What are the purposes of the Victorian Civil and Administrative Tribunal?
- low cost
- accessible
- efficient
- independent
48
What cases can the Victorian Civil and Administrative Tribunal assist with?
- residential tenancies
- administrative
- civil
- human rights
- planning and environment
49
What are the dispute resolution methods used by the Victorian Civil and Administrative Tribunal?
- mediation
- compulsory conferences
- final hearing
50
What factors are considered when determining the appropriateness of the Victorian Civil and Administrative Tribunal?
- whether the dispute is within VCAT's jurisdiction
- whether the parties may be able to resolve the dispute themselves
- the nature of the fees
- whether parties wish to have greater avenues of appeal
- the complexity of the case
51
What are the strengths of the Victorian Civil and Administrative Tribunal?
- cheaper
- more time efficient
- informal processes
- flexibility ensures equality and fairness
- each VCAT list is specialised
- decision made is binding
52
What are the weaknesses of the Victorian Civil and Administrative Tribunal?
- increased use of legal representation could mean high costs
- some delays after COVID-19
- may be too informal
- VCAT cannot create precedents
- decisions can only be appealed on a point of law
- VCAT orders need to be enforced through the courts
53
What factors are considered when determining the appropriateness of the courts?
- whether the case falls within the court's jurisdiction
- whether the parties can resolve the dispute themselves
- the costs of taking a claim to court
- whether they are comfortable with the formalities
- the size and complexity
- whether they accept the possible delays
- whether the parties are prepared to have their affairs viewed publicly
54
What are the strengths of the courts?
- pre-trial procedures
- possibly more efficient and timely resolution before trial
- processes ensure procedural fairness
- allows for interactions between the court and the parties
- binding decision
55
What are the weaknesses of the courts?
- delays
- high costs
- procedures are complex and difficult to understand
- formalities can be stressful
- courts don't allow for compromise
56
What are the cost factors in the civil justice system?
- expert witnesses
- filing fees
- jury
- legal representation
57
What are the measures to address costs?
- alternative dispute resolution methods
- use of CAV and VCAT
- pro bono
- use of case management powers
58
What are the time factors in the civil justice system?
- backlogs
- pre-trial procedures
- evidence gathering and preparation
59
What are the measures to address costs?
- case management powers
- VCAT programs to deal with backlogs in some lists
- 'on the papers' avoids hearing
- increased use of online methods
60
What are the types of damages?
- compensatory (specific, general, aggravated)
- nominal
- contemptuous
- exemplary
61
What is the purpose of compensatory damages?
To restore the party whose rights were infringed to their position they were in prior to the infringement occurring by compensating for losses suffered.
62
What is the purpose of exemplary damages?
To punish and deter the defendant and the wider community where conduct is malicious, violent, cruel, insolent, or in scornful disregard of the plaintiff's rights.
63
What is the purpose of nominal damages?
To uphold the plaintiff's rights without awarding any substantial damages.
64
What is the purpose of contemptuous damages?
To show contempt for the crime while admitting the plaintiff's right to make the claim.
65
What factors determine whether damages achieve their purposes?
- whether the loss suffered was financial loss only
- whether the loss suffered was pain and suffering, mental anguish, disfigurement or impairment
- whether future loss will be suffered
- whether sufficient evidence is before the court about unquantifiable losses
- the ability of the defendant to pay
- whether other orders or remedies may be required
- whether there are caps on the amounts that can be awarded
66
What are the types of injunctions?
- mandatory
- restrictive
67
What is the purpose of mandatory injunctions?
To require the defendant to take action to prevent further harm from being suffered by the plaintiff or to take action that will remedy the situation.
68
What is the purpose of restrictive injunctions?
To prevent harm or further harm from being caused to the plaintiff.
69
What factors determine whether injunctions achieve their purposes?
- whether the defendant will comply with the order
- whether harm has already been suffered
- whether an injunction alone is sufficient
- whether there are other orders that may be required
