Legal Studies- Civil Law

What is the burden of proof?

Refers to the responsibility for proving the facts of the case. Burden is with the plaintiff.

When can the BOP be with others?

If the defendant offers a defence or counterclaim, they will have the BOP for that.

What is the standard of proof?

-Refers to the strengths of evidence or the degree to which the facts of the case must be proven.

-On the balance of probabilities.

What are the relevant factors when initiating a civil claim?

Cost, limitation of actions, enforcement issues, negotiation options, scope of liability.

What are costs?

The amount of money that has to be paid to resolve a dispute.

What are court costs?

-Filing fees, higher courts cost more.

-Magistrates $145-680.

-Supreme $1000-4000+.

Jury costs= If wanted, $500-1000 per day.

Legal representation= Complexity of case, length, expertise of your lawyer.

What are disbursements?

-Expert witnesses, testing and scientific info.

-Lost earnings.

What are limitations of actions?

-Refers to the legal time frame in which a plaintiff needs to bring their civil action.

-Different for different claims.

-Limitations of Actions ACT 1958.

What are the reasons for the limitation of actions?

-Memories fade, evidence is poorer over time.

-Disputes should be resolved quickly.

What are enforcement issues?

-If you get a remedy, is the defendant able to comply? If they can pay, but don’t, you have to go back to court again to get an additional order such as a warrant of seizure, attachment or debt, or attachment of earnings.

What are common issues for enforcement?

-No money. A company that is bankrupt or an individual that has no money or assets.

-Defendant is in jail or overseas or otherwise unable to be found.

What is negotiation?

-Can be just between the parties or assisted (with lawyers or ADR professionals).

-Might avoid court (but often continues whilst a court case is ongoing).

-Usually means less cost than court.

-Allows control and input in outcome.

-May be unenforceable, what if negotiations outcome fall through?

-Success settlement outside of court- reduces court backlogs, there is always an outcome.

What is the scope of liability?

Before initiating a claim:

1.Who and how many people are liable?

2. To what extent are they liable.

Who is liable?

Remember enforcement issues- who actually has the capacity to pay.

Person who caused harm or loss must be liable but also that person’s employer (vicarious liability).

-A person involved in the wrong doing (accessorial liability).

How can it be considered vicarious liability?

-Must have been acting in the course of employment.

-Not acting in an unauthorised way.

-However, can be liable for criminal acts (such as sexual abuse).

How is a insurer related to the liable party?

-The defendant is still the liable party, but ultimately insurance pays so they financially support the case.

To what extent are they liable?

-The defendant may not be wholly liable for the loss or damage.

-Perhaps another party is responsible for the damage or loss, in whole or in part.

-And lastly, perhaps the plaintiff’s behaviour also contributed to the loss or damage. This is called contributory negligence.

What is fairness?

All people can participate in the justice system and its processes should be impartial and open.

What is equality?

All people engaging with the justice system and its processes should be treated in the same way. If the same treatment creates disparity or disadvantage measures should be implemented to allow all to engage in the justice system.

What is equal treatment vs equitable policies?

Equal treatment is treating everyone the same whereas equitable policies are treating people differently according to their needs.

What is access?

All people should be able to engage with the justice system and its processes on an informed basis.

What is mediation?

Non-judicial dispute resolution method. involving an independent third party (mediator), who facilitates conversation between disputing groups.

Is mediation legally binding?

The mediator does not provide any input or suggest any resolution and the outcome is not legally binding unless deed of settlement is signed.

When is mediation not appropriate?

-Parties are unwilling to discuss the issues, making an agreed upon settlement unlikely.

-Power imbalance.

-History of violence or threats between the parties.

-Parties want a binding result.

When is mediation appropriate?

-E.g. breach of contract between employee and employer.

-When relationships need to be maintained.

-Parties are willing to discuss the issues.

-Both parties want lower legal fees.

-A prompt resolution needs to be reached.

What is conciliation?

Dispute resolution method involving an impartial third party, known as a conciliator, who possesses specialist knowledge about the type of dispute in question.

Is conciliation legally binding?

The conciliator can assist in helping the parties reach a resolution however the outcome is not legally binding unless deed of settlement is signed.

When is conciliation appropriate?

-When relationships need to be maintained.

-Parties are willing to discuss the issues.

-Both parties want lower legal fees.

-There is an admission of responsibility by one of the parties.

When is conciliation not appropriate?

-Parties are unwilling to discuss issues, making an agreed upon settlement unlikely.

-Power imbalance.

-History of violence or threats between the parties.

-Parties want a binding result.

What is arbitration?

Non-judicial dispute resolution method involving an independent third party (arbitrator), who listens to parties present their evidence and make a legally binding decision.

Is arbitration legally binding?

The arbitrator listens to all the evidence and makes a legally binding decision to resolve the dispute.

When is arbitration appropriate?

-Parties agree to participate in arbitration.

-The dispute involves damages of less than $10,000.

-The case requires a binding and enforceable decision.

When is arbitration not appropriate?

-Parties do not agree to arbitrate.

-Parties are comfortable navigating complex court rules and procedures.

-Parties would like greater control over the outcome of their dispute.

What is the original jurisdiction of the Supreme Court of appeal?

None.

What is the appellate jurisdiction of the court of appeal?

Questions of law, fact or amount of damages, with leave, from decisions of County court, Supreme Court and VCAT decision made by President or Deputy president.

What is the original jurisdiction of the magistrates court?

Claims of up to $100 000.

What is the appellate jurisdiction of the magistrate’s court?

None.

What is the original jurisdiction of the trial division of the supreme court?

Unlimited in all civil claims.

What is the appellate jurisdiction of the supreme court trial division?

On a question of law from the Magistrate’s court and VCAT.

What is the original jurisdiction of the county court?

Unlimited in all civil claims.

What is the appellate jurisdiction of the county court?

No appeals, unless given power under a specific Act.

What is administrative convenience?

-Not specialisation.

-Allows for a more efficient court system as matters can be allocated to the court that is deemed most suitable to that level of severity or complexity of the case.

Why is administrative convenience necessary?

-The superior courts are free to devote time and resources to long, complex disputes as the court is not delayed by resolving minor disputes.

-The lower courts, can quickly resolve a larger number of relatively minor disputes, minimising delays for parties to such disputes.

What the location of authority of a magistrate?

Magistrates’ Court for less serious or complex matters.

How is the verdict decided in a magistrates court?

Determines the verdict in civil matters.

What is the location of authority of a judge?

More complex matters in courts higher than the Magistrates’ Court.

How is the verdict decided by a judge?

Will often have to award damages after the jurt has decided on the verdict of the civil trial.

What is a judge?

An independent authority who presides over a trial, ensuring procedural fairness by overseeing all personnel and evidence.

What is a magistrate?

An independent authority who presides over hearings in the Magistrates’ Court for less serious matters such as summary offences, committal proceedings and some civil disputes.

What are case management powers?

The ability of a judge or magistrate to make orders and provide directions to the parties about the proceedings, withh the aim of ensuring justice is delivered efficiently.

What do case management powers involve?

-A judge or magistrate may identify early during proceedings what the real issues in a dispute may be.

-They may create a timetable in which the parties must take certain steps, or limit the number of witnesses which may be called upon.

-This allows a case to be tried more efficiently while remaining fair to both parties.

What is the role of the jury in a civil trial?

-Must remain impartial (civil and criminal).

-6 jurors in civil, 12 in criminal.

-Used in civil trials in the County court and supreme court.

-Governed by the Juries Act 2000 (Vic).

-Can recommend a remedy to the judge.

What is a jury in a civil case?

Is made up of six members and their role is to decide whether the plaintiff has proven their claim on the balance of probabilities.

What is a class action?

When a group of people with the same legal grievance come together to lodge a single civil action.

-Seven or more people have related claims against the same defendant.

How do class actions relate to access in terms of strengths?

-Individuals don’t have to pay for a separate lawsuit.

-It may be cost effective to participate in a class action, in a way an individual action may not.

How do class actions relate to access in terms of limitations?

-A significant (40%+) of the payout goes to the lawyers or litigation funders (bodies that use litigations as an investment strategy)

-Litigation funders and no win no fee, make decisions based on likelihood of financial return, not on case merit.

How do class actions relate to fairness in terms of strengths?

A defendant need not repeat their claims to defend themselves, saving court time and money.

How do class actions relate to fairness in terms of limitations?

-The vast majority of cases settle, which means that a fair hearing is never conducted. If a litigation funder is used, who then is the client/party?

What is CAV(Consumer Affairs Victoria)?

-Complaints body for consumer law, residential tenancies.

-Conciliation only.

What is VCAT(Victorian Civil and Administrative Tribunal)?

-A dispute resolution body for residential tenancies, discrimination, employee relations/contract, consumer law.

-Mediation and conciliation.

What are courts?

-A legal institution concerned with the interpretation and application of laws, in order to make legal decisions involving crimes or legal disputes.

-Arbitration.

What are the costs in a civil dispute?

Damages if you lose, other party’s fees if you lose, witnesses, jury.

-The length and complexity of the case can impact cost.

-A civil dispute has many costs involved.

-The financial situation of parties is also important to consider.

What is the impact of cost on the POJs?

Can cause plaintiffs to give up, costs can mean cases don’t see a court room, high incidence of self-represented parties, if you can pay you can compile as much evidence as needed.

What is time in a civil dispute?

Pre-trial procedures, prioritisation of criminal cases.

-A civil dispute can take weeks to months to be resolved.

-This can negatively impact the stress levels and mental health of parties.

What are the strengths of CAV?

-Quick method of dispute resolution. Parties can reach a just outcome without stress/delay associated with a trial.

-Uses a conciliator to facilitate discussions between parties, can ensure both parties have the same opportunity to present their perspective and reach a mutually acceptable resolution.

What are the weaknesses of CAV?

-Cannot impose a legally binding resolution, posing a risk of non-compliance with agreements reached during conciliation, limiting fairness.

-CAV’s conciliation process may not result in agreement to resolve the dispute, limiting access to justice.

What are the strengths of VCAT?

-Outcomes at VCAT hearings are legally binding, promoting fairness as it ensures the parties abide by VCAT’s decisions.

-VCAT members are impartial and independent, ensuring procedures are conducted in an unbiased manner, upholding equality.

What are the weaknesses of VCAT?

-Has limited jurisdiction and cannot resolve large and complex disputes, such as class actions. Thus, it is not equally available for all civil disputes.

-Cannot be an advocate or provide legal advice to self-represented parties which may result in one party being at a disadvantage to another.

What are the strengths of the courts?

-Jurors, if used, can encourage a fair outcome that reflects the views and values of a cross-section of society.

-Court hearings and trials enable parties to access a binding resolution that is legally enforceable.

What are the weaknesses of the courts?

-The high cost of court proceedings and legal representation can make the courts inaccessible to parties.

-Court trials are often time consuming and can face delays due to complex processes. This can risk an unfair trial.

What is the purpose of CAV?

Free advice, informal, specifically for consumers and producers.

What is the purpose of VCAT?

Residential tenancies, discrimination, employee relations/contract, consumer law.

What costs do the courts cover?

Original Jurisdiction of Magistrates court: $10,000-$100,000.

Jurisdiction of County- unlimited $.