Legal Sac 2

Burden Of Proof

The burden of proof in a civil case refers to the responsibility of the plaintiff to prove the facts of the case, in the civil case it fails upon the plaintiff who is the party bringing the claim to court.

Standard of Proof

is the level of certainty required in order to determine liability, in civil it must be more likely than not (balance of probabilities.)

Costs

A party involved in a civil dispute must incur costs, this refers to the financial expenses a party may face when initiating and pursuing a civil claim.

Limitations of Actions

The limitations of actions refers to the time period prescribed by law within which a party must initiate a legal claim; once this period expires, the right to sue is typically barred. Most civil claims have a limitation of 3 years.

Enforcement Issues

The enforcement issues refers to the practical difficulties a plaintiff may face in enforcing a remedy, such as obtaining compensation or compliance.

Mediation

A cooperation method of dispute resolution, involving the use of an independent third party, This is cost/time effective yet non binding

Conciliation

Conciliation is a method of dispute resolution involving the use of independent third party, normally someone with special knowledge and needs a terms of agreement to be binding.

Arbitration

Arbitration is a formal method of alternative dispute resolution where an independent third party (arbitrator) hears evidence and arguments from both sides and makes legally binding decision.

Pre-trial procedures

Pleadings (Statement of claim, defence), Discovery of documents, Exchange of Evidence, Mediation

Victorian Court Hierarchy

• Administrative Conveniance

• Appeals

Administrative conveniance

Using a court hierarchy for courts means that cases can be distributed according to their seriousness and complexities. Less serious/complex are heard in lower courts. More serious/complex in higher courts.

Appeals

Someone who is dissatisfied with a decision in a civil trial can, if there are grounds for appeal, take the matter to a higher court.  Can be made on a point of law, a question of fact and the remedy awarded.

Role of the Judges

Act Impartially, Case Management (before and during), Determine Liability, Decide on costs.

Act Impartially

The judge in a civil case must be impartial, this means the judge must ensure they oversee the case and make a decision on liability without bias to either party.

Case Management - before

To manage the case during pre trial in order to ensure the case is ready for trial. The power to give directions to the parties, which imposes an obligation. This includes ordering discovery and mediation.

Case Management - During trial

Have the power to: Change the order in which evidence is given, limit witnesses, limit evidence/documents.

Determine the liability and the Remedy

IF there is no jury in the trial, the judge must decide whether the plaintiff has established their claim and if so what remedy should be awarded.

Decide On Costs

After each hearing in a civil case the judge or magistrate will decide which party should bear the costs. Working out the costs means successful party is usually entitled to costs.

When is a jury used?

The plaintiff or the defendant can specify during the pleadings stage that they wish to have the proceedings tried by a jury, though the court can still direct that the trial be without a jury.

The role of the jury

Be objective, Listen to and remember the evidence, Decide on liability

Be Objective

The jury must be unbiased and bring an open mind to the task, putting aside any prejudices. No connection to the parties.

Listen to and Remember the Evidence

Jurors can take notes if it helps them remember information, but they must make sure concentration on courtroom. A jury must not undertake their own investigations of what happened, conduct any research on the case.

Decide On the Liability

In a civil trial, the jury must decide who or what to believe, and whether the plaintiff has established their case on the balance of probabilities. Decide if defendant has established a defence.

The Role of the Parties

Make decisions about case, Disclose information to the other party, Exchange Evidence, Participation in the trial.

Make Decisions about the case (Party Control)

In the trial system in Vic, each party controls its own case and has complete control over decisions about how the case will be run, as long as the rules of evidence are followed.

Disclose Information to other party

This is considered one of the most important steps in a civil proceeding, and it is the responsibility to hand over key documents. (medical documents)

Exchange Evidence

To prove their case, the plaintiff and defendant will generally need to rely on evidence. This is particularly the case where documents are unable to speak for themselves. (Lay and Expert Evidence)

Participation In trial

Make opening and closing adresses, Present case to judge, Cross examine any witnesses.

Role of Legal Practitioners

It is difficult for a party to present their own case in a civil trial without legal rep. They may not know how to present their evidence in the most effective way or how to cross-examine a witness. A party may also be too emotionally invested in the case to be able to make objective decisions about the way they argue their case.

Class Actions

A class action is a type of proceeding where a group of people, who all have claims against the same party, join together in a proceeding. 7+ people, same issue, same entity,

Costs in Class actions

If a class action fails, then the lead plaintiff alone is responsible for the courts of the proceeding and any potential adverse cost order. This means that not everyone may be prepared to be lead plaintiff. Firms can act on ‘no win, no fee’ or a litigation funder is often involved.

Appropriateness of Class Actions

Whether a class action is appropriate to resolve the dispute will depend on the facts of the case and the nature of the claim. These factors include: if 7+, if one group member has suffered significantly more than others, lead plaintiff, costs work.

Consumer Affairs Victoria

CAV regulates consumer law, its purpose is to help ensure victorians are informed about consumer law, and to ensure that businesses are complying with laws - Advise vic government on consumer legislation, provides information and guidance to educate people about consumer laws, enforce compliance with consumer laws.

They use conciliation as their dispute resolution method, a third party with special knowledge giving advise on the case yet not a binding decision.

Purposes of CAV in resolving disputes

To help them come to an agreement about how to resolve their disputes efficiently without any cost to them.

To help parties reach resolution consistent with the law, CAV has a compliance focus.

Cav’s Jurisdiction

• Disputes between consumers and suppliers

• Disputes between a tenant and a landlord

Strengths of CAV

• Conciliation service is free, time effective — accessible to all Victorians.

• CAV ensures procedural fairness by allowing both sides oppurtunity to present their side

• CAV allows for parties to come up with resolution themeselves.

Weaknesses of CAV

• limited to small jurisdiction

• no powers to undergo conciliation

• not appropriate for large and complex cases

VCAT

Tribunals are dispute resolution bodies which deal with a limited area of law, with expertise. The process of dispute resolution is less formal than courts, cheaper/time effective, Independant

TYPES OF DISPUTES IN VCAT (CHARP)

• CIvil Divisions

• Human Rights

• Administrative division

• Residential tenancies

• Planning and Environmental decisions

Dispute resolutions used by VCAT

• Mediation (fast track mediation if below $10000)

• Compulsory Conferences

• Final Hearing

Compulsory Conferences

• Compulsory Conferences are confidential meetings during which the parties discuss ways to resolve their disputes in the presence of a VCAT member

• This member suggests forms of settlement and likely outcomes if goes to hearing

Final Hearing

• If the matter has not settled at mediation, or CC, it goes to final hearing

• Parties will be given an opportunity to present their case, which will include giving and hearing evidence, asking questions of witnesses and providing documents which support their case.

Appropriateness of the Courts

• Whether the dispute falls within the courts jurisdiction

• Whether there are other or better ways to resolve the dispute

Courts Jurisdiction

• The county and supreme court have unlimited jurisdiction to hear civil disputes

• The Magistrates court jurisdictional limit is $100000

Reasons not to use Courts

• Whether party can resolve using mediation

• Prepared to accept the risks and uncertainty involved with a third party

• Can afford legal rep?

• Size and complexity of the matter

• Comfortable with the formalities of courtroom.