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LEGAL STUDIES UNIT 3 AND 4 > UNIT3 AOS2; Civil Law Part A > Flashcards

UNIT3 AOS2; Civil Law Part A Flashcards

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1
Q

Civil Law

A

Civil action is when an individual suffers damages as a result of their rights being infringed by the actions of another party
- Can be remedied by the parties negotiating and reaching a suitable agreement

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2
Q

Plaintiff

A

The person initiating a civil action

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3
Q

Defendant

A

The responding party, the one civil action is being put against

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4
Q

Torts

A

Negligence, defamation, trespass or nuisance claims

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5
Q

Contract

A

Involving legally binding agreements between two or more parties

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6
Q

Burden of Proof

A
  • Plaintiff must prove the case, prove the defendant is in the wrong
  • Presents evidence to establish the case against the defendant
    Defendant has the burden of proof when making a counterclaim
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7
Q

Standard of Proof

A
  • Strength or amount of evidence needed to prove the case
  • Must be proved on the balance of probabilities
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8
Q

Balance of Probabilities

A

The plaintiff must prove that they are most probably or most likely in the right and the other party is most likely wrong
49% or less - 51% or more

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9
Q

Factors to Consider Before Initiating a Claim

A
  1. Costs
  2. Limitations of Action
  3. Enforcement Issues
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10
Q
  1. Costs
A

The high cost of legal representation can act as a barrier to many people who wish to take a civil issue to court.
Plaintiff needs to consider whether it is worth pursuing

Depend on:
- The complexity
- The number of witnesses
- The expertise of the lawyer

Example:
Senior solicitor $500-$800 p/h
Senior barrister $9000 per day

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11
Q

Additional Costs

A

Magistrates court can cost from 70 thousand to 100 thousand
Mediation is $2,000 to $20,000 per day
- If not successful, may have to pay for the defendant’s costs. Usually the losing party pays for the winning party’s costs.

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12
Q
  1. Limitations of Actions
A

Restrictions placed on the time within which a civil action can be commenced

Reasons:
- So the defendant doesn’t have to face an action after a significant amount of time
- Evidence is not lost and people can still remember what happened
- So they are resolved as quickly as possible

IN GENERAL a claim must be commenced within six years after the date on which the action occurred.
3 years for personal injury, 1 year for defamation cases
- Not particularly date of wrong doing but date of which the plaintiff first knows

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13
Q
  1. Enforcement Issues
A

Plaintiff will need to consider whether the defendant is able to pay and whether or not the defendant will pay
- The defendant is in jail
- Bankrupt or have little money to pay
- Overseas or uncontactable

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14
Q

Mediation

A

Parties in conflict sit down and discuss issues involved, develop options, consider alternatives and try reach an agreement through negotiation.
- Resolution is made by the parties (voluntarily)
- Third party mediator facilitates communication between parties but doesn’t offer solutions

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15
Q

Conciliation

A

Similar to mediation but the conciliator has more influence over the outcome
- Resolution is made by the parties (it may be on the advice of the conciliator)
- Third party conciliator facilitate communication between the parties and offers suggestions and solutions

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16
Q

Mediation and Conciliation; Suitable

A
  • Relationship between parties will continue, like families or friends
  • Both parties are prepared to compromise and stick to the agreement
  • When parties want privacy and confidentiality
  • When the court has referred the dispute to mediation or conciliation
  • When legal costs are expected to be high
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17
Q

Mediation and Conciliation; Unsuitable

A
  • When overwhelming emotions may interfere with negotiations
  • Irreparable damages between the parties
    Like broken promises, violent/threatening behaviors, one or more parties unwilling to co-operate
  • Imbalance of power between the parties
  • Where the matter is urgent
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18
Q

Strengths of Mediation and Conciliation

A
  • Less formal and less intimidating
  • Safe and supportive environment
  • Save time and money
  • Experienced third party
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19
Q

Weaknesses of Mediation and Conciliation

A
  • Decisions may not be binding/enforceable
  • No ability to appeal decision
  • One party may be stronger so the other party is intimidated, someone who is wealthy
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20
Q

Arbitration

A

Independent arbitrator makes a final and binding decision. It’s conducted in private and is informal. Equal opportunities for everyone.
- Resolution is decided by the arbitrator
- Third party listens to the evidence and arguments of disputing parties then make a decision

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21
Q

Arbitration; Suitable

A
  • When the claim is less than $10,000
  • When parties want some rules of evidence
  • When parties want a binding and enforceable award made by an independent third party
  • To avoid publicity and keep confidentially and privacy
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22
Q

Arbitration; Unsuitable

A
  • Where the parties have not agreed to arbitrate the dispute
  • When parties want greater control over the process and outcome
  • Want to have their case in court
  • More comfortable with formal rules or evidence and procedure
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23
Q

Strengths of Arbitration

A
  • Decision is binding and fully enforceable
  • Usually faster than courts
  • Arbitrators, expert on the subject
  • Private and confidential, great for parties wanting to avoid publicity
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24
Q

Weaknesses of Arbitration

A
  • Arbitrations can be formal, this adds to stress, time and costs
  • Parties have no control over outcome
  • The right to appeal is limited
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25
Methods used to Resolve Disputes
1. Mediation 2. Conciliation 3. Arbitration
26
Class Action
Legal proceeding where a group of people have a claim based on similar or related facts bring that claim to court in the name of one person - Instead of individual people initiating a proceeding, single proceeding on behalf of all affected people by the defendant
27
Class Actions; Commenced if?
- Seven or more people have claims against the same person - Same or similar circumstance - A litigation funder is less likely to take a claim if it's less than 1 million. If over 5 million it's more likely to be funded.
28
Characteristics of a Class Action
- A person apart of the group represents the group as the lead plaintiff. Everyone else are group members - Potential third party, a litigation funder funding the action
29
Class Action; Improves Access to the Law
- Individuals do not have to file or fund separate lawsuit - Individuals having the opportunity to hold powerful firms and organisations accountable for their actions
30
Benefits of Class Actions
- Avoids costs of seven people commencing a separate claim themselves - Reduces costs of defendant as they aren't needing to go to court 7 times - Allows for better use of courts resources
31
Appropriateness of Class Actions; Weighing
- 7 or more people? - Avoiding lead plaintiff from the burden of the costs - Someone willing to take lead plaintiff - Group suffered more than others and may have to conduct their own proceedings and fund it rather than do a class action
32
Strengths of Class Actions
- Increased access to justice as group members are not responsible for the payment of any costs unless the claim is successful. As most cannot afford to initiate a claim by themselves - Saving resources and time as it's more efficient way of dealing with a number of claims - People can purse claims they aren't prepared for - Reduce cost for defendant
33
Weaknesses of Class Actions
- Large cost burden on lead plaintiff - Even though it avoids multiple claims, the size of the class action is very complex and takes up a significant amount of court resources and time - Opportunity for class action lawyers to 'take advantage' of them, they get more out of the class action than the group members themselves in a much shorter amount of time - Sometimes multiple class actions commenced by different law firms relating to the issue, increasing the cost of the defendant - Some group members may not get adequate up to date information about the proceeding as they can sometimes involved thousands of people.
34
Complaints body and business unit of Vic government department of justice and regulation
- CAV - VCAT
35
CAV
Consumers Affairs Victoria
36
Purpose of CAV
- Responsible for regulating Victorian consumer law - CAVs main role is to provide consumers and traders and landlords and tenants with a dispute resolution process - Helping consumers and tenants only - Without cost - Exercises consumer rights when they might have been infringed
37
Dispute Resolution Method Used
- Conciliation is usually used to help parties resolve disputes - If parties come to a decision they may sign terms of settlement, making the outcome binding
38
Jurisdiction of CAV
- Is limited / narrow The Supply of Goods and Services Examples: - Product is faulty or cannot be repaired - Service not completed with care, took too long, caused damage - Warranties of car changing in price, or the condition of the car Residential Tenancies Examples: - Disputes about repairs - Rental agreements, rents, signing or ending a lease or rental applications
39
Appropriate; CAV
- If dispute falls within CAV jurisdictions - If dispute is likely to settle (no delays in making the complaint, other party hasn't previously refused conciliation, person complaining has not contributed to the dispute through inappropriate behaviour
40
Inappropriate; CAV
- Doesn't fall within CAV jurisdictions - Dispute is unlikely to settle (reasons in appropriate) - A better way of resolving dispute such as courts / tribunal (Binding decision, formal, matter too complex or urgent, not taking conciliation seriously not showing up)
41
Strengths of CAV
- Conciliation process is free - Is informal, more comfortable - Fair, allows both sides an opportunity to present their case and refute other side - No time wasted on cases unlikely to be resolved - Disputes heard and resolved in a timely manner - Ensures parties reach a resolution themselves which they will therefore be more likely to accept
42
Weaknesses of CAV
- CAVs roles / jurisdictions are limited to consumers and tenants - No power to compel parties to undergo conciliation - No power to enforce decisions (unless terms of settlement is signed) - Not all cases accepted - Not appropriate for large or complex disputes - Informal process may result in one party does not take it seriously
43
VCAT
Victorian Civil and Administrative Tribunal
44
Purposes of VCAT
1. Low cost 2. Accesible 3. Efficient 4. Independent (decisions are binding through VCAT)
45
1. Low Cost
- Only need a small amount for filing the claim - In 2023 the standard fee was just over $70 for smaller claims - Parties can represent themselves rather tham paying for a lawyer
46
2. Accesible
- VCAT hearings are conducted in various locations in Victorian and are therefore accessible to all members of society - VCAT hearings are less formal than court hearings making parties more comfortable
47
3. Efficient
VCAT constantly aims to reduce waiting times, resulting in more efficient hearings and resolutions
48
4. Independent
VCAT members are independent and unbiased
49
Dispute Resolution Methods used by VCAT
:Most used: 1. Mediations 2. Compulsory Conferences 3. Final Hearing 4. Appeals :Least used:
50
1. Mediation
- Valued between $500 and $10,000 - If dispute doesn't settle, will go straight to hearing on the same day before a VCAT member
51
2. Compulsory Conferences
- Are confidential meetings during which parties discuss how to resolve their dispute in the presence of a VCAT member, parties can be ordered to these - A conciliatory type meeting VCAT member may: - Suggest forms of settlement - Give a view on a decision
52
3. Final Hearing
- If not settled in mediation or compulsory conference then it will be listed for a final hearing before a VCAT member - Less formal than attending court - Equal opportunities - VCAT member will oversee and make a binding decision, decisions include orders (requiring a party to do something)
53
4. Appeals
Only to be made on a point of law
54
Jurisdictions of VCAT
- Administrative - Civil - Human Rights - Planning and Environment - Residential Tenancies
55
Residential Tenancies
Disputes between residential tenants and landlords, caravan park owners and residents etc - Unpaid rent, repairs, maintenance, damages or changes to property, and excessive rent increase
56
Civil Division
Civil disputes relating to consumer matters, building works, owners corporation matters, retail tenancies, and sale and ownership of property - Products and services bought or sold
57
Appropriate; VCAT
- Purchase or sales of goods and services, not just purchase like CAV - Disputes between tenants and landlords
58
Inappropriate; VCAT
VCAT CAN NOT HEAR: - Class actions, disputes between employers and employees, disputes between neighbours, disputes between driver in car accidents, disputes involving federal or state
59
Strengths of VCAT
- Normally cheaper than courts - Quick resolution of disputes - Informal atmosphere allows parties to put forward case in own ways - Expertise developed in specialised jurisdictions - Parties encouraged to reach resolution themselves - Decision made in final hearing in binding
60
Weaknesses of VCAT
- Increased use of legal representation increases the cost - VCAT has suffered long delays in some of it's lists - Too informal for some parties - Some VCAT members are not judicial officers resulting in a lack of experience in hearing matters - Procedure is long as VCAT orders still need to be enforced through the courts
61
Fairness
Unbiased or independent PROCESS - All people can participate in the justice system, and it’s process should be impartial and open.
62
Equality
Concerns a person, people are not discriminated against based on personal characteristics or income. - All people in the Justice system should be treated the same way Same treatment Different treatment
63
Access
We use and understand the legal system. - Engagement (physical, financial and technological access) - Informed Basis (informed with enough information to make a decision)

LEGAL STUDIES UNIT 3 AND 4 (5 decks)

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