Legal Studies AOS 2 - SAC 2

What are the three Principles of Justice?

fairness, equality and access

What is Civil Law?

plaintiff seeking compensation from someone they allege has infringed their rights

What are the two main types of compensation?

damages and injunctions

Who has the burden of proof in a civil case?

plaintiff

What is the standard of proof in a civil case?

the balance of probabilities

What percentage does the plaintiff have to prove liability?

at least 51%

What are some examples of civil torts?

defamation, negligence, trespass, wills and inheritance

What is the main aim of civil law?

to return the person whose rights have been infringed back to their original position

When is the civil case heard in the Magistrates court?

if the claim is for $100,000 or less

Juries are…

optional by the plaintiffs decision

What is defamation?

communicating false statements that harm a person's reputation, encompassing both libel (written) and slander (spoken) forms.

Factors of defamation include…

the statement must have a negative impact on the person's reputation causing them to be viewed less favourably

What is negligence?

when someone owes a duty of care which they breach resulting in harm, loss or injury

Factors of negligence include…

failure to behave with the level of care that a reasonable person would have exercised under the same circumstances

Factors to consider when initiating a civil claim…

costs, limitation of actions, enforcement issues, scope of liability

Costs

fees of legal representation, court costs and possible fees to be paid to the plaintiff if the defendant is liable

Limitation of actions

the maximum period in which the plaintiff can seek compensation

Enforcement issues

plaintiff must consider whether the defendant can afford to pay damages

Scope of liability

consider who the defendant/s are

What are appeals?

a way for higher courts to review the decisions of lower courts

List one main reason for the court hierarchy

administrative convenience

Administrative convenience

cases being distributed according to their seriousness which helps to make court processes and workloads become more efficient

Higher courts will hear…

cases that are complex such as defamation and negligence

Lower courts will hear…

minor cases

Civil Procedure Act 2010

main legislation that governs civil law

What does mediation consist of?

involves an independent third party called the mediator whose role is to encourage the two parties to come to a resolution

What can't the mediator do?

can't give advice or suggest a resolution that they believe would be appropriate, cannot make legally binding decisions

What does conciliation consist of?

involves an independent third party called the conciliator who assists the parties to come to a resolution

What can't conciliation do?

make a legally binding decision

What can a conciliator do?

can offer advice and suggestions as they are typically specialised for the case/situation

What does arbitration consist of?

involves an independent third party known as the arbitrator who listens to both parties and makes a legally binding decision

What usually happens in arbitration?

decisions made in arbitration are not made by the parties, they are legally binding and most matters at VCAT are heard in an arbitration hearing before a VCAT presiding member

What is a class action?

is when at least seven people make a claim over the same issue

What are class actions also known as?

representative proceedings

Who usually starts a class action?

led by the lead plaintiff who commences the action on behalf of themselves and the other plaintiffs

Why are class actions beneficial?

they enable the costs of going to court to be shared

What does Consumer Affairs Victoria (CAV) do?

is a victoria consumer affairs regulator who aims to help victorians be informed about buinesses and to ensure that businesses do the right thing (can make use of mediation)

What does Victorian Civil and Administrative Tribunal (VCAT) do?

established in 1998 and can hear and decide civil and administrative cases often pertaining to property, money or unlawful discrimination

What is a remedy?

the outcome of a civil case

Types of remedies…

compensation (damages) and injunctions

What is the purpose of a remedy?

to restore the plaintiff back to their original position before the harm occurred

What are the three main types of compensation?

Compensatory damages (specific, general, aggravated), nominal damages, exemplary damages

Specific (compensatory) damages are…

medical expenses, lost income

General (compensatory) damages are…

emotional pain and suffering

Aggravated (compensatory) damages are…

humiliation

Nominal damages

a very small amount of compensation paid (often to prove a point)

Exemplary damages

extreme infringement of rights with the main purpose being to punish and deter the defendant

What is an injunction?

an injunction is a court order which orders the defendant to either perform an action (mandatory injunction) or refrain from a certain action (restrictive injunction)

What is the purpose of an injunction?

to effectively prevent ongoing harm

Impact of delays…

unfairness for both parties in a civil dispute

What can cause a delay?

pre-trial procedures, waiting times, case management powers and court delays

Who attempts to reduce time delays?

VCAT aims to reduce time delays but can still experience extensive waiting times for some cases