VCE Legal studies Unit 3, AOS 2

Burden of proof (civil)

the obligation of the party bringing the case to the court to prove ones case

Standard of proof

the level of evidence that must be met to prove onse cas. in a civil trial it is: the balance of probabilities (what is the most likely scenario)

Representative proceedings

these are proceedings also called (class actions) involving 7 or more plaintiffs who have all been affected by the same event . they are useful becase they lower costs and provide consistency and equal treatment for all plaintiffs.

factors to consider when initiating a civil claim

Negotiation options
Costs
Limitation of actions
the scope of liability
Enforcement issues

what are negotiation options

options the occure pre trial that may resolve the issue without needing a court interferance.
such as the person spealking to the person they have an issue with.
or may involve them considering ADR methods (mediation and conciliation)

what are costs in factors to consider when initiating a claim

you muist consider costs of a legal dispute in the terms of if they are worth it.
legal representatoin and court fees are very expensive and so if you dont win you may have found yourself losing a lot of money.
courts also mean working less therefore losing income.

Limitation of actions

this refers to statutory limitations on civil torts. a plaintiff may not be able to take a case to court as it may ahve been too late, or out of the window of time, for them to have the case heard.
for example a defamation case must be initiated before a year of the defamatory statement being made.
a judge can extend this limitation period but thats not a cpommon occurence

the scope of liability

the scop of liability refer to HOW responsible the defendant was for the loss. (regarding negligence)
this can become very complex just how much a defendant was liable if say, their actions were minor, but they dominoed into the plaintiff suffering an even greater loss.

Enforcement Issues

(mokbel) this refers to the ability of a court to enfore remedies to revert the loss. it may become to enforce these when the defendant may be in another jurisdiction. a commoine enforcement issue is when awarding damages, the defendant may have lost all of their money from the case and so cannot pay the damages awarded.

what is the purpose of Consumer Affairs Victoria(CAV)

CAV is a victoria consumer affairs regulator concerned with upholding and enforcing consumer rights as well as educating businesses, consumers, landlords and tenants on changes to the law.

what are the strengths of CAV at dispute resolution

it is heavily specialised in consumer matters
it also is very good at resolving disputes between landlords and tenants
due to its use of Conciliation it is very good at resolving dispoutes if the parties wish to maintain a relationship afterwards.

what are the weaknesses of cav

literally anything that is isn't strong at.
it cannot deal with family disputes
or disputes between parties of a contract
or where there is great hostility between the two parties
(any other weakness of conciliation)
it isn't legally binding

what is the purpose of VCAT (victorian civil and administrative tribunal)

VCat is a umbrella tribunal organisation that seeks to be an alternative form of dispute resolution that is cheaper and less formal than the courts and more efficient dispute resolution.

what are the strengths of VCAT

VCAT has strength such as:
due to its highly specialised lists it can proved a form of dispute resolution that is by experts
it is much cheaper than courts with legal representation not encouraged
it is legally binding

what are the weaknesses (inappropriateness) of VCAT)

its ability of being "cheap" is undermined with voluntary legal representation becoming increasingly common.
VCAT is inapropriate if it hears complex matter
if the civil dispute is outside of victoria
if the dispute is a criminal matter

what is the purpose of civil pre-trial procedures

to encourage an out of court settlement(mediation is usually compulsory for civil issues)
to provide the defendant and plaintiff with the necessary information at hand(discovery)
to speed up the dispute resolution process(directions)
to allow the parties to determine if the trial is worthwhile (discovery)

why what are the reasons for a court heairachy in the victorian civil justice system?

appeals
administrative convenience

whay are appeals a good reason for a court heirarchy in the civil justice system

civil cases are complex. the use of appeals allows an individual who feel the outcome was unfair to have it brought to a higher court in the heirarchy (on appeal) to have decide wether it is a fair decision of not. (reassessed)
provides fpor fairness and imrpoves access to the law.
if there was no heirarchy they could not reassess.

why is administrative convenience such a good factor for reasons for a court heirarchy?

the use of a court heierarchy allows for more complex cases to be heard by the appropriate cases. this streamlines and speeds up the civil dispupte process as the cimple cases will be heard in the magistrates while the most complex are to be heard in the higher courts.

what are the responsibilities of the judge? in a civil case

the judge has the responsibility of ensuring court procedure is followed
deciding on questions of fact (when a jury isn't present)
deciding on questions of law
deciding the remedy

what are the responsibilities of the jury

deciding the facts of the case
to remain unbiased and impartial
deciding the damages
take part in deliberations

what are the limitations of a judge in a civil case

due to their impartiality they can not assist one side of the case even in they need it (if their representation is unsatisfactory/ unrepresented)

what are the limitations of the jury

because they are so less trained than a judge. they may be swayed by a charismatic or skilled legal team
they can substantially slow down the process
there is also a flawed assumption that a jry is an accurate representation of society (doesnt involve those with a background in law enforcement)

what is the role of legal representation in a civil trial

to argue/defend a parties case
to ensure the parties are following court procedure
explain the law and options to their party (enlighten them)

what are the limitations of legal representation

not all representation is equal
they have a high cost associated

whatis the role of the parties in a civil case

initiating the case
preparing a defence
choosing legal rep

what is the lmiitations of the parties in a civil system

they rely heavily on the advice of legal practitioners. if none is able to be gotten they will suffer.

power to order mediation

the civil procedures act 2010- expanded court powers to allow it to give directions such as mediation. this is used to encourage out of court settlements where able. can be done without consent of parties.

give directions

the ability of a court to give directions on a case to resolve it before taking the courts.
they can giove order such as limiting amounts of witnesses before a trial. give them significant influence over civil proceedings

what is mediation?

where two disputing parties come together to resolve their issue in front of an independant third party who ensure the resolution remains civil but doesnt voice solutions

what is conciliation

concuiliation is a form of dispute resolutoin where the parties come together to resolve their dispute wiht the assisstance of an independant third party (conciliator) who mediates the discussion but can also offer advice on how to reseolve the case (solutoins)

what is Arbitration

arbitration is a dispute resolution method where the disputing parties come together to have their case resolved by and independent third party (arbitrator) who listens to the facts of the case and decides upon them

what are the strengths of mediation

mediation allows disagreeing parties the opportunity to maintain their relationship afterwards. (like say child custody)
mediation is low cost
informal
allows plaintiff and defendant to be actively involved

what are the weaknesses of mediation

takes time and cost money. if a party is unwilling it just prolongues a case (more against the idea of ordering mediaiton)
if there is power imbalance in the room it would lead to a unsatisfactory outcome
it is not legally binding (unless they do)

what are the strengths of conciliation

informal
cheap and timely
allows an exisitng relaitionship to remain intact
the third party generally has some expertise on the matter

what are the weaknesses of conciliation

it isnt legally binding
parties doent have to listen to the conciliator
if theres a power imbalance issues arise
because its voluntary a party could leave at any time.

what are the strenghts of arbitration

legally binding
heard by an independant and unbiased third party
third party generall specialises in this field
provides for timelier dispute resolution
less expensive
not as strict for rules of evidence

what are the weaknesses of arbitration

takes away the abiolities of parties to resolve the civil dispute
more expensive and time consuming then the rest of the ADR methods
can damage the parties relationshi[
parties can appeal but their chances are slim.

the purpose of remedies

remedies have the puirpose of reverting an individual back to their original posoition (before the loss had incurred)

what is the purpose of damages

damages is the most commone form of civil remedy and incolves paying a monetary sum to repay the loss incurred.

what are compensatory damages

damages where the individual must repay back to comensate. there are three types
general: these are damages awarded that are more broad. such as loss of causation of life.
specific: damages easily estimated. usually hospital fees and etc
aggravated: when the court beleives it causes humiliation to the individual

exemplary damages are

where the court wishes to award the plaintiff a large sum of money.

contemptuous damages are

where the court agrees there is a legal right to claims. but not a moral one

nominal damages are

damages where the court only wishes to prove that the plaintiff is in the right

the purpose of injunctions is

to compel or to prohibit an individual (or orgaisation) from doing an action.
could mean to cut down a tree, stop infringing upon a persons right, or to stop the media from committing a certain action (ala rebel wilson)

injunctions can either be

before/during the case+ interlocutory
of after the case as the award: perpetual

what are the factors most affecting civil law

costs, time, accessibility

how does cost affect civil law

civil law has a very high cost from legal representation to court and administration fees.
those with low socio economic status wont be able to access the courts due to the cost
costs further affect is as it has a direct link to fairness by those with more money hiring better legal teams.
if they cant afford it at all it affect equality

how does time affect civil law

the long periods of witing time cam amount to even more court fees. this can severely limit the access of individuals
those with a limited time to defend thair case can be severely disadvantaged affecting equality

how does accessibility affect civil law?

access is hindered as peple geographically from ages away dont have the same abilities as those inner cities

this directly ties into equality as those that live closer tot he city gert better legal advice. making it unbalanced based on their geography.

thos who cannot acces dispute resolutions bodies have an unfair disadvantage as they cannot recreive an unbiased and fair hearing.