Victorian civil justice system AOS2A

Question 1

what is the purpose of civil law?

Answer 1

protect rights of individuals and to restore the injured party back to its original position prior to infringement through a remedy

Question 2

what are the two types of remedies

Answer 2

damages- money
injunctions- which prevents the actions of the defendent

Question 3

what are the 4 features of a civil case

Answer 3

• dispute between individuals and organisations
• breach of a right
• claim initiated by the plaintiff
• remedy

Question 4

what are the two main legislations for civil law

Answer 4

civil procedures act 2010 (vic)
the charter of rights and responsibilities act 2006 (vic)

Question 5

examples of fairness in civil law

Answer 5

• availability of jury to spread decisions
• consistant procedures of legal system

Question 6

examples of equality in civil law

Answer 6

• all individuals treated in the same manner
• consistant strict rules applied to both parties

Question 7

examples of access in civil law

Answer 7

• utilise legal system in an effective manner
• able to understand rights and entitlements

Question 8

plaintiff

Answer 8

individuals that believe their rights have been infringed and as a result has suffered damage

Question 9

defendent

Answer 9

individuals that the plaintiff has alleged to have infringed their rights

Question 10

what is the burden of proof

Answer 10

the plaintiff has the onus or responsibility to prove their case in court and ensures that it meets the standard

Question 11

what is the standard of proof

Answer 11

the level or extent which the plaintiff must prove their case. ‘ balance of probabilities’ meaning it has more likely to have happened with evidence given

Question 12

what is litigation

Answer 12

the process of taking a civil case to court

Question 13

what does liable mean

Answer 13

an outcome whereby the courts find the defendent is responsible for causing the infringement from their actions

Question 14

what is vicarious liability and an example

Answer 14

the legal responsibility of a third party for the wrongful acts of another

eg: employer and employee

Question 15

what are representative proceedings

and an eg

Answer 15

known as ‘class actions’ that are initiated by the plaintiff on their own behalf (leader) on behalf of other members. a minimum of seven member

eg: largest class action= victoria black saturday bushfires where 119 ppl died. suing ausnet for a faulty powerline that caused the fire

Question 16

3 x strengths of rep proceedings

Answer 16

1- class actions save costs and allow individuals the ability to pursue an outcome over a complex legal matter

2- individuals involved gain a share of damages rewarded

3- class actions remove power imbalance

Question 17

3 x weaknesses of rep proceedings

Answer 17

1- group members are bound by judgement unless they opt out

2- there has been controversy over the equitable distribution of the amounts awarded

3- due to the complex nature of class actions such as large volume evidence then these may take months to settle

Question 18

what are the five factors to consider when initiating a civil

Answer 18

• negotiation options
• costs
• limitations of actions
• scope of liability
• enforcement issues

Question 19

what are negotiation options

Answer 19

negotiate options refers to the methods in which parties should consider to allow them to negotiate their desired outcomes

Question 20

what is the purpose of negotiations and when do they occur

Answer 20

purpose:
- mainatain an ongoing relationship with the opposing party
- saves time and costs as normally cheaper

when:
- considered prior to the courts being formally engaged

Question 21

x2 strengths and weaknesses of negotiation options

Answer 21

strengths:
- parties can have higher input in the outcome
- cheaper and most effective options

weaknesses:
- may not lead to desired outcome and time is wasted
- no legal requirements to comply with

Question 22

what is cost of pursuing a claim

Answer 22

in a civil dispute parties must bear costs pf the action

Question 23

what is the purpose of cost pursuing the claim and when do they occur

Answer 23

purpose:
- how much will it cost?
- will the cost be recorvered?
- will the defendent be able to pay the costs?

when:
should be considered prior to courts

Question 23

what is the purpose of cost pursuing the claim and when do they occur

Answer 23

purpose:
- how much will it cost?
- will the cost be recorvered?
- will the defendent be able to pay the costs?

when:
should be considered prior to courts

Question 24

2x strengths and weaknesses of cost of pursuing a claim

Answer 24

strengths: - parties dont have to bear costs as can use litgation funding - individuals are not hindered with affording legal representation weaknesses: - disbursement costs will need to be considered - complex matters can take many months

Question 25

what is limitations of actions and examples of some

Answer 25

time period or limit that applies from when damage has occurred to the plaintiff and legal action is initiated eg: defamation= one year breaches of contract= 6 years tort= 6 years personal injury= 3 years

Question 26

what is the purpose of limitation of actions

Answer 26

- ensure availability of witnesses and documentation - ensure plaintiff acts within timely manner

Question 27

what is the legislation for limitation of actions

Answer 27

limitation of actions act 1958 vic

Question 28

2x strengths and weaknesses of limitation of actions

Answer 28

strengths: - have time limits when evidence is given so that there is fresh recollection - having time limits allows for a degree of finality which can decrease stress and anxiety weaknesses: - may put defendant at disadvantage if said later within a year - evidence can be changed

Question 29

what is the scope of liability and an example

Answer 29

refers to determining whether the defendants actions or ommissions caused the harm that led to the plaintiff damage eg: donoghue vs stevenson- demonstrated that the defendant was reckless in meeting duty of care

Question 30

what is the scope of liabilitys purpose and who can plaintiffs take legal action against

Answer 30

purpose: -determine whether plaintiff is taking legal action against the correct parties - to determine whether the defendant is liable upon the claim employers and insurers

Question 31

strengths and weakness of scope of liability

Answer 31

strengths: - assess the extent in which a defendant is liable and considers if the plaintiff has contributed to own damage - allows plaintiff to focus on parties that are responsible for their damage weaknesses: - holds eomployers responsible for actions of employees even if had limited input on the actions they made

Question 32

what are enforcement issues

Answer 32

plaintiff needs to take into consideration when pursuing a civil case because the outcome decided may not be enforced - the plaintiff may win the case but the decision of the court may prevent the defendant to comply with it

Question 33

what is the purpose of enforcement issues

Answer 33

to determine whether matter is worth pursuing and if so what methods to use determine whether legal fees will eceed amounts awarded

Question 34

strengths and weaknesses if enforcement issues

Answer 34

strengths: - can determine if defendant will comply therefore plaintiff can alter decision weaknesses: - plainitiff can be limited in seeking a remedy if defendant does not have recources to pay

Question 35

what is consumer affairs victorias

Answer 35

cav is an independant government, statutory body created to regulate monitor and educate consumers on rights and obligations

Question 36

purposes of cav

Answer 36

- regulating - educating - conciliating - enforcing - reviewing main purpose: assist victoria in being responsible cumsumers and educating on rights and responsibilities

Question 37

who can cav assist?

Answer 37

- consumers and businesses regarding good and services - landlord and tenants - sale of property and agents - seller and purchaser - building and renovation - disputes between tenants and villages

Question 38

crtieria to accessing cav

Answer 38

1- does matter fall within jurisdiction 2- have the parties attempted self help 3- is there likelihood of success 4- no courts have been involved in the dispute

Question 39

3x strengths and weaknesses of cav

Answer 39

strenths: - dispute resolution is achieved in a timely manner - concilitation is free regardless of income - process is informal weaknesses: - cav to perform it must come with jursidiction - cav has limited rescources - cav has no power

Question 40

appropriate vs inapropriate cav

Answer 40

appropriate: - dispute is within jurisdiction - issue relates to infringement of consumers rights inpropriateness: - car accidents - dispute between employer and employee

Question 41

what is vcat? and its legislation

Answer 41

victorian civil and administrative tribunal definition: statutory,independant govt body that was established in 1998 to hear minor civil disputes legislation= victorian civil and administrative tribunal act 1998 (vic)

Question 42

what is the purpose of vcat?

Answer 42

provide individuals with: - low cost eg no hearing fees - accessibility eg various locations across victoria - efficient eg no lengthy court procedures - independant eg vcat members will remain unbiased

Question 43

what are the five divisions of vcat and what do they do?

Answer 43

1- planning and environmental 2- human rights division= guardian ship, human rights 3- residential tenancies division= can be vcat or cav 4- administrative division= legal practice, review legislations 5- civil division= building and property, civil claims, unlimited jurisdictions

Question 44

vcat resolving disputes mediation

Answer 44

mediation= applicant and respondent meet with a trained mediator to see if they can resolve a dispute without a hearing - attend of free will - impartial and independant mediator - being open and discussing outcomes - NOT LEGALLY BINDING

Question 45

vcat resolving disputes compulsory conferences

Answer 45

used for more complex matters - identify dispute - promote a settlement - question facts of law

Question 46

vcat resolving disputes hearings

Answer 46

most formal method - both parties present - both parties will take oath - recieve oppurtunity to both give evidence - LEGALLY BINDING DECISION

Question 47

outcomes of vcat

Answer 47

orders may be enforced or taken to court to lodge appeal on question of law

Question 48

x3 of vcat being appropriate

Answer 48

1- parties have explored all other dispute mechanisms 2- required in a timely manner 3- parties require a binding decision made by a legal expert

Question 49

x3 of vcat being inappropriate

Answer 49

1- not attempting to resolve dispute 2- dispute in a complex area 3- parties would like a jury to determine a matter

Question 50

what are pretrial procedures the legislation what are their purposes

Answer 50

definition: set of hearings and processes that must take place in a civil dispute in a county or supreme court legislation= civil procedures act 2010 (vic) purposes: underpin pre trial procedures, just, efficient, timely resolution

Question 51

pre trial procedure 1) letter of demand and purpose

Answer 51

def: a letter sent from the plaintiff to defendent advising them the legal proceedings will be initiated unless agreement is reached purposes: - establish the nature of plaintiffs claim - indicates a time limit - enables an early settlement

Question 52

pre trial procedure 2) writ and purpose

Answer 52

def: formal document issued to the defendent and to supreme to outline nature and facts of case purpose: - informs defendent litigation has been initiated - provides timely execution of writ - title of action, names and addresses

Question 53

pre trial procedure 3) notice of appearance and purpose

Answer 53

def: document lodged by the defendant within 10 days of recieving writ purpose: - informs plaintiff that action will be defended - chooses to act or ignore

Question 54

pre trial procedure 4) pleadings and purpose

Answer 54

def: refers to the process where large number of documents and info is exchanged between plaintiff and defendant - statement of claim - defence - reply purpose: - outline precise nature of claim - avoid wasting court time

Question 55

statement of claim

Answer 55

informs defendant of full details states facts alleged to the defendant

Question 56

defence

Answer 56

a document lodged by defendant

Question 57

counterclaim

Answer 57

defendant may respond with ca counterclaim that is asking something for return

Question 58

pre trial procedure 5) discovery and its purpose

Answer 58

def: process that involves more information being exchanged to seek further clarification regarding issues of case eg: medical reports or letters,emails purposes: - allow parties to request more info - promote timely access - promote an out of court resolution

Question 59

what is discovery via interrogates and purposes of it

Answer 59

both parties have right to request for more info to ask further questions interrogates= written questions purposes: - provide parties with more detailed info - to encourage out of court settlement

Question 60

5 x key responsiblities of the judge

Answer 60

1) undertake case management- involves handling of the case, ordering parties to attend mediation and setting time frames 2) overseeing jury selection - regulating process in which juries are chosen 3) deciding admissibility of evidence - determining whether evidence is valuable or not as it may cause prejudice to the jury 4) enforcing rules and evidence or procedures - ensures each party acts to rules so that they have an equal opportunity to present their case 5) determining a remedy - plaintiff can choose either judge or jury to determine remdy (except defamation)

Question 61

3 x responsibility of the jury

Answer 61

1) listen and evaluate evidence - jury must attend trial everyday and consider if evidence supports plaintiffs burden of proof 2) applying the law - with guidance of the judge, the jury needs to apply the elements of law to determine whether the plaintiff has met their burden and standard of proof required 3) deciding/awarding damages - if the plaintiff elects the jury to award remedies the jury can determine damages

Question 62

responsiblities of plaintiff and defendant 3x for each

Answer 62

plaintiff: - decide whether to abandon claim or initiate claim against the defendant - decide to engage in legal representation - undertake necessary pre trial procedures defendant: - decide to agree or deny claims stated in letter or demand - decide whether to issue counterclaim in response to plaintiffs claims - if unsucessful pay costs and abide by court orders regarding appropriate remedies

Question 63

4x responsiblities of legal practitioners

Answer 63

- represent clients in court through preparing and presenting their case - protecting the rights of their client by ensuring fair and equal treatment in the court room - researching facts and the relevant law - deciding order and presentation of relevant materials and witnesses

Question 64

how much can victorian magistrates court hear and what methods of disputes do they use

Answer 64

can hear claims to the value of 100,000 mediation,conciliation,arbitration and judicial determination

Question 65

what are the outcomes and appeals of the magistrates court

Answer 65

outcomes: - decisons made are binding and enforceable - remedies can include a range of orders appeals: - can only appeal on POINT OF LAW which will go to supreme court trial division

Question 66

what is the county court and what is their outcomes and appeals

Answer 66

county court has unlimited jurisdiction- no financial limits a jury of 6 can be used county can hear matters such as: - personal injuries - defamation - commercial contracts outcomes: - decision made by judge is binding and enforceable appeals: county cannot hear appeals from mag court NO APELLATE JURISDICTION

Question 67

supreme court trial division the outcomes and appeals

Answer 67

trial division can hear cases with unlimited amounts outcome: decision is binding and enforceable in courts appeals: - on point of law from mag court - some vcat matters on point of law

Question 68

supreme court- court of appeals

Answer 68

hears civil appeals from county or trial division no original jurisdiction

Question 69

what are the two reasons for a court hierachy

Answer 69

- adminstrative conveniance - appeals

Question 70

what is administrative conveniance

Answer 70

refers to the efficient use of limited financial and physical recources within the legal system . aim is to reduce delays eg: - claims less than 100,000 are directed to magistrates court and heard in a relatively quick manner

Question 71

what is appeals

Answer 71

refers to the ability pf parties to request that the outcome of their case to be reviewed by a more senior judge if they believe an error has been made in the decision