3.2 Civil Law

Burden of proof

The party which has to prove liability.

Plaintiff

Standard of proof

The standard at which the case must be proved, the level of certainty.

Balance of probabilities

Burden of costs in a civil case

- Court fees (P)

- Legal representation (D and P)

- Jury (D or P)

Things to consider before initiating civil claim

- Cost considerations

- Enforcement issues

- Limitation of actions

Cost considerations

- Consider cost and possible financial consequences if unsuccessful

3 things to consider - Cost considerations

- What will it cost

- Will plaintiff recover the costs

- Will defendant be able to pay the costs

"What will it cost?"

- Legal representation

- Payment for expert witnesses

- Court fees

"Will I recover the costs?"

- Cost of proceedings balances with amount of compensation rewarded

"Will defendant be able to pay the costs?"

- Can defendant afford to pay the compensation

- How long will it take?

Limitation of actions

The period of time in which a civil claim may be lodged

Purpose of limitation of actions

- Ensures cases are initiated when recollection of events are fresh

- Ensures personal and business certainty

- Ensures plaintiff acts within timely manner to resolve issues

Limitation of actions for defamation

1 year from publication of defamatory material

Limitation of actions for negligence

3 years

Limitation of actions - Personal injury tort

3 years of discoverability of injury

12 years from date/omission which caused the injury or death

Enforcement issues

Plaintiff must consider if the defendant is able to pay the amount awarded.

Enforcement issues - Examples

- Does defendant have the funds or assets to pay

- If defendant is in jail, overseas, or uncontactable

- Does the defendant have other access to money if needed e.g. loan

Ways the court can enforce the court decision if defendant does not comply

- Warrant for distress

- Garnishee order

- Attachment of earnings

- Bankruptcy and liquidation

Warrant for distress

Property seized and sold to recover funds

Garnishee order

Compels a third party who owes money to the defendant to pay the plaintiff

Attachment of earnings

Order that allows the employer of the defendant to deduct the amount owing from the defendant's wages

Bankruptcy and liquidation

- Assets are sold, proceeds distributed

- Does not guarantee plaintiff amount owed

- Amount recovered depends on total assets

Define fairness as a POJ

All people can participate in the justice system and its processes are impartial and open

How is fairness upheld in the civil justice system

- Parties have control of their case

- Rules of evidence and procedure

- Each party has rights to give their version of facts

Define equality as a POJ

All people engaging with the justice system and its processes should be treated in the same way. If the same treatment causes disparity or disadvantage, adequate measures should be implemented to allow all to engage with the justice system without disparity or disadvantage.

How is equality upheld in the civil justice system

- Strict rules of evidence and procedure apply to both parties

- Legal aid provides advice and assistance

- Parties both have the right to legal representation

Define access as a POJ

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

How is access upheld in the civil justice system

- Tribunals (VCAT) provide specialist resolution

- Alternative dispute resolution methods (cheaper)

- Pamphlets and information available

Strengths of the courts

- Binding resolutions

- Allows for legal representation

- Range of civil disputes

- Follows rules of evidence and procedure

Weaknesses of the courts

- Expensive

- Time consuming

- Legal representation is expensive and may be unequal

- May not be appropriate (win-lose only)

Define mediation

- Alternative dispute resolution method

- Impartial third party helps identify issues in dispute

- FACILITATE DISCUSSION of possible solutions

- Parties reach final decision

- Not legally binding

Appropriate - Mediation

- Cost effective

- Win-win

- Informal

- Ongoing relationship

- Faster

Not appropriate - Mediation

- Not legally binding

- May not produce a solution

- Imbalance of power

Imbalance of power in mediation

- Financial disparity

- One party may be more knowledgeable of rights

- Language and cultural barriers

Define conciliation

- Impartial third party listens to both sides

- Suggests ways to resolve dispute

- Parties reach decision

- Not legally binding

Appropriate - conciliation

- Inexpensive and fast

- Informal

- Cooperative

- Win-win

- Ongoing relationship

Not appropriate - conciliation

- Not legally binding

- No finality in decision

- Relies on goodwill

Define arbitration

- Dispute referred to third party to make decision

- Arbitrator listens to both parties and makes a binding decision on their behalf

- Civil claims under $10,000 in Mag. court are automatically referred to arbitration

Appropriate - arbitration

- Binding

- Less formal than courts

- Faster than court

- Lower cost than courts

Not appropriate - arbitration

- Win-lose scenario

- May still not be quick

- Limited avenue of appeal

- Expensive if lawyers used

Court hierarchy from lowest to highest

Magistrates Court

County Court

Supreme Court (Trial Division)

Supreme Court (Court of Appeal)

Jurisdiction

The type of case a court can hear/has authority over

Original jurisdiction

the authority to hear cases for the first time

Appellate jurisdiction

The authority of a court to review decisions made by lower courts

Magistrate's Court - Original Jurisdiction

Claims up to $10,000

* Less than $10,000 referred to arbitration

Magistrate's Court - Appellate Jurisdiction

None

County Court - Original Jurisdiction

Unlimited in all civil claims

County Court - Appellate Jurisdiction

None

Trial Division - Original Jurisdiction

Unlimited

Trial Division - Appellate Jurisdiction

- Point of law from Mag. Court

- From VCAT when ruled by regular member

Court of Appeal - Original Jurisdiction

None

Court of Appeal - Appellate Jurisdiction

- From Supreme Court or County Court

- From VCAT when ruled by president/VP of VCAT

Administrative convenience

- Makes efficient use of limited resources available

- Reduces delays by providing a means of allocating cases according to their seriousness and complexity

- Ensures parties do not waste time in an inappropriate court

Appeals

- If party thinks decision is unjust the hierarchy allows the party to have the decision reviewed by a higher superior court

- Provided they have the grounds for appeal

- Without hierarchy there would be no avenue for appeals by superior court

- Allows for fairness and unjust decisions to be corrected

Grounds for appeal

- Point of law

- Question of fact

- Remedy awarded