Legal Studies All Flashcards

what party does the burden of proof lie with in a civil case?

the plaintiff

what is the standard of proof in a civil case?

on the balance of probabilities

what are the three factors to consider before initiating a civil claim?

-cost

-enforcement issues

-limitation of actions

what parts of cost should be considered before initiating a civil claim?

-the costs for legal representation

-disbursements: such as court filing fees (up to $743 in Magistrates, 749+ in County and 4000+ in Supreme) jury costs ($600 a day first week, $1000 a day in second week onward), and mediation costs ($2000 to $20000 a day)

-adverse costs orders (ACO’s): if the plaintiff is unsuccessful in a claim they initiated, they may be required to pay up to 60-70% of the defendants legal costs along with their own)

what is the limitation of actions?

the restriction placed on time within which a civil action can be commenced.

what is the purpose of a limitation of actions?

-so that the evidence is not lost (also witnesses can remember what happened)

-disputes can be resolved as quickly as possible

-the defendant does not have to face an action after a significant amount of time

what enforcement issues must a plaintiff consider before initiating a civil claim?

-whether the defendant is willing to pay

-whether the defendant can pay (e.g if they are in jail or bankrupt ect)

-if the defendant is in jail

-if the plaintiff knows who the defendant is

-assets of the defendant (if they are a company)

-if the defendant can be contacted

what is alternate dispute resolution?

a less formal method of dispute resolution than judicial determination, where a civil dispute is reconciled between the parties with the help of an independent third party

what is mediation?

an ADR method whether the two disputing parties participate in a cooperative discussion facilitated by a mediator.

when is mediation appropriate to use?

-want a quicker and cheaper process than court

-want to maintain a relationship w/ other party

-trust other party to fulfil agreement

-willing to compromise

-want privacy/a less formal process

when is mediation NOT appropriate to use?

-want a binding decision

-doesn’t trust other party to fulfil agreement

-imbalance of power between parties

-history of violence

-either party is unwilling to compromise

what is conciliation?

an ADR method where two parties participate in a cooperative discussion with the assistance of a conciliator who will facilitate the discussion and offer suggestions and solutions

(conciliator typically has specialist knowledge on topic)

when is conciliation appropriate to use?

-if expert knowledge would benefit

-parties need help reaching a compromise + are willing to accept third party suggstions

-parties want control over outcome

-they trust the other party to fulfil the agreement

when is conciliation NOT appropriate to use?

-parties want a binding decision

-either party is unwilling to accept third-party suggestions

-there is an imbalance of power

-lack of trust for parties fulfilling agreements

what is artbitration?

an dispute resolution method without a formal court process that instead involves an arbitrator listening to both sides of the dispute presented by the parties, who will then make a binding decision on behalf of the parties

when is arbitration appropriate to use?

-if the parties want a binding decision

-want a more formal process than other ADR methods

-parties cannot make a decision

-expert knowledge may be useful

-want a guaranteed decision

-parties want to present evidence

when is arbitration NOT appropriate to use?

-two parties want to maintain a strong relationship

-want a cheaper/quicker method

-want the rules of evidence that are used in court

-want to be control the outcome

what is the Victorian civil court hierarchy (with appellate and original jurisdictions)?

1. supreme court of appeal: -original (N/A), appellate (on a question of law, fact or amount of damages from a single judge from Country or Supreme Court. or a question of law from VCAT when the President or VIce-President made the order)

2. supreme court: original (unlimited), appellate (on a question of law from the Magistrate’s court or VCAT- unless the Cheif Magistrate/vice-president/President made the order)

3. county court: original (unlimited), appellate (no appellate jurisdiction unless given power under an Act of Parliament)

4. magistrates court: original (claims up to $100,000), appellate (N/A)

what are the two reasons for the civil court hierarchy?

administrative convenience (means cases can be distributed according to their seriousness and complexity, meaning people do not have to waste. money and time initiating action in an inappropriate court)

appeals (if someone is dissatisfied with a decision in a civil trial, they can take the matter to a higher court if there are ground to appeal)

what are the roles of the judge in a civil trial (before)?

• give directions to parties/jury

• set time for hearing/trial

• order discovery (parties to exchange of/disclose evidence and documents relevant to issues)

• order mediation (if the judge feels it nessacary they can order that the parties undergo mediation to attempt to resolve their issues before the trial

what are the roles of the judge in a civil trial (during)?

• change the order evidence is given

• not allow cross-examination of certain witnesses

• assist self-represented parties

• role on the admissibility of evidence

• limit number of witnesses or documents allowed as evidence

what are the roles of a judge in a civil trial (after)?

• publish reasons for decision

• set costs hearing

• determine any adverse costs orders

what are the roles of the jury in a civil trial?

• be objective

• listen to and remember evidence

• decide on liability

• decide damages (except in defamation cases)

what are the roles of the parties in a civil case?

before

• disclose evidence- discover relevant documents

during

• plaintiff must prove the facts of the case

• defendant has to prove their defence gives a good answer to the claim

• comply with overarching obligations to the court

• cross-examine witnesses

what are the strengths and weaknesses of a judge?

strengths:

• impartiality in upholding rules of evidence and procedure (ensures fairness and equality)

• instructs jury that they only focus on facts of the case (ensuring fairness)

weaknesses:

• limited involvement in case

• judge-only trials may cause bias (not fair)

what are the strengths and weaknesses of the parties in a civil case?

strengths:

• each party gets to make their own decisions about their case

weaknesses

• unrepresented parties may be disadvantaged due to the complexities of the civil case (not ensuring equality or access)

• may be difficult to prove if someone is or isn’t complying with overarching court obligations

what are the strengths and weaknesses of a jury in a civil case?

strengths

• selected randomly so no bias against either party

• decide on damages meaning more community input

• decision making shared amongst people, means the outcome will be more accurate and less biased

weaknesses

• optional and have to be paid for by party (reduces equality)

• smaller than criminal juries (less diverse representation)

• jurors may research case, which would lead to bias

what are the roles of a legal practitioner in a civil case?

• provide specialised legal advice

• represent parties

• advice on ADR methods

• examine witnesses

• adhere to overarching obligations to the court

• disclose and file legal documents

what are the strengths and weaknesses of a legal practitioner in a civil case?

strengths

• objective in decision making

• can avoid biases caused by self-represented parties

• assist parties in decision-making and navigating civil procedures

• have more expert legal knowledge

• comply to overarching obligations to court

weaknesses

• responsibility to client may conflict with responsibility to court

• expensive

• better representation may lead to a better outcome (not all lawyers are equal)

what is a class action?

a legal proceeding in which a group of people (group members) who have a claim based on similar or related facts against the same defendant, bring a claim in the name of one person (lead plaintiff)

what is a lead plaintiff?

the person named as the plaintiff in a class action. they will assume all costs of that class action

what is a litigation funder?

a third party who pays some or all of the cost associated with a class action claim in return for a percentage of the damages if they win

what are the requirements for a class action?

• seven or more people have claims against the same person

• the same issues needs to be decided

• the claims relate to the same, similar or related circumstances

• person willing to be lead plaintiff

when are class actions appropriate?

• there are seven or more people with similar issues

• the plaintiff, law firm or litigation funder is prepared to fund the claim

• someone is willing and able to be the lead plaintiff

• the suffering or loss of all group members is relatively equal

what are the strengths of class actions?

strengths

• more efficient way to deal with numerous claims at once

• people can pursue civil action when they may not have been able to afford it individually

what are the weaknesses of class actions?

weaknesses

• large cost burden on lead plaintiff if class action fails or there is no litigation funder

• class action lawyers may take advantage of groups by taking a comparatively large amount of money compared to the members

• communication between group memebrs may be difficult

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

to provide a low cost, accessible, efficient and independent tribunal that is an alternative to court

what is VCAT’s jurisdiction?

• administration (legal practice, planning and environment and regulation)

• civil (civil claims for consumer matter or building and property)

• human rights (guardianship and human rights)

• residential tenancies (disputes between tenats and landlords)

what dispute resolution methods does VCAT use?

-mediation (option for fast track mediation for goods and services valued between $500 and $10,000)

0final hearing (where both parties present their case and are heard by a VCAT member who will make a binding decision on behalf of the parties)

when is VCAT appropriate?

• case is within jurisdiction

• parties want a lower cost option than court

• need a binding decision

• parties want less formality

• parties want to represent themselves

when is VCAT not appropriate?

• case is outside jurisdiction

• parties want ability to appeal

• would prefer the formality of court

what is the purpose of consumer affairs victoria (CAV)?

to provide consumers and traders with dispute resolution with no cost

what is CAV’s jurisdiction?

• supply of goods and services (consumers and traders)

• residential tenancies (landlords and tenants)

• retirement villages

• owners corperations (disputes about common ownership)

what dispute resolution methods does CAV use?

conciliation (CAV typically uses over the phone conciliation. they may offer in person services too if needed)

when is CAV appropriate?

• when cost is an issue

• parties want an informal process

• want a faster process

• the two parties are able to come to an agreement

• the person initiating the dispute is the person without power (e.g. the tenant or consumer)

when is CAV not appropriate?

• case isn’t in jurisdiction

• parties want binding decision

• case is too large or complex

• a landlord or business wants to initiate a claim against their tenant or consumer

• want a more formal process

when is court appropriate?

• cost is not a barrier

• want more formality

• want a binding decision

• two parties unable to come to a mutual decision

• parties engaged legal representation

when is court NOT appropriate?

• claim is too small

• cannot afford it

• party is self-represented and doesn’t want to be disadvantaged

• want a faster process

• want a private process

what parts of the civil justice system are impacted by cost?

• lawyers costs (top barrister - $25,000 per day, solicitor- $250-600 per day)

• greater the superiority of the court, the greater the cost

• minimal legal aid for civil cases

• disbursements (application fees - $72 (VCAT residential tenancies), $170- 500 (magistrates), $300+ (county), expert witnesses, filing/photocopying fees)

• jury ($600 per day first week, $1200 per day second week onwards)

• adverse costs order (can be 60-70% of defendants costs)

what parts of the civil justice system are impacted by time?

• court delays (county court can have 10-14 month wait and 5-6 month wait on judgements)

• VCAT waiting times (50 week wait for residential tenancies cases)

• pre-trial procedures

• jury deliberation

what is a remedy?

an order made by the court designed to address a civil wrong or breach. it should provide a legal solution and attempt to restore the plaintiff to their original position prior to the breach of their rights

what are the two kinds of remedies?

-damages

-injunctions

what are the four kinds of damages (and their purposes)?

• compensatory (compensates for the losses the plaintiff suffered in order to return them to their original position)

• nominal (upholds plaintiff'‘s rights without awarding a substantial amount of damages. acknowledges the plaintiff’s legal win but doesn’t compensate for losses)

• exemplary (damages that aim to punish the defendant for an extreme infringement of right and aims to deter other from similar actions)

• contemptuous (a very small amount of money awarded by the court to show that while a plaintiff’s case succeeded legally, the court disagrees with it morally)

what are the three kinds of compensatory damages?

• specific (damages for for something that can be given a presice monetary value such as medical costs or less of wages)

• general (damages that take into consideration not eaily quantifiable consequences of the wrong such as future loss of wages, and pain and suffering)

• aggravated (damages that are awarded to compensate for the plaintiff’s injured feelings or humiliation due to the defendants actions)

what is an injunction?

a court order either directing someone to stop doing something or to do something. it aims to rectify a situation caused by the person found to be in the wrong

what are the four kinds of injunctions?

• restrictive (an order that forces someone to stop- or refrain from- doing something)

• mandatory (an order that forces someone to do a particular act)

• interlocutory (an order that is awarded quickly in urgent circumstances but is not permanent. aims to preserve the parties positions until the final hearing)

• permanent injunction (when the temporary injunction becomes permanent at the final court hearing)

what are the weaknesses of the four kinds of damages?

• general (only measures losses at one point, may underestimate losses)

• nominal (defendant might not take seriously)

• exemplary (rich people won’t be affected)

• contemptuous (acknowledgement is symbolic only, plaintiff is still able to sue)

what are the purposes of remedies?

• restore plaintiff to original position they were in before their rights were breached

• compensate for plaintiff’s losses or harm

• deter defendant from acting similarly in the future

• denounce defendants actions

• punish defendant for severe infringement of rights

what are the four reasons for law reform?

1. changes in beliefs, values and attitudes (people are more likely to obey lawys that relfect their views and values. e.g banning gay conversion therapy)

2. changes in social, economic and political conditions (laws must be continually reformed to keep up with social changes (e.g. aging population), economic changes (e.g. changes in the workforce) or changing international circumstances )

3. advances in technology (given the constantly changing nature of technology, new laws that are updated to control it is important. e.g. laws on cyberstalking)

4. need for community protection (law reform must occur to ensure individuals in the community are adequately protected from harm. e.g laws prohibiting machetes or restricting vaping)

what are the four ways that law reform can be introduced?

1. petitions (a formal written request- online or on paper- to government to take some action or implement law reform)

2. demonstrations (when a group of people gather together to express their common concern or dissatisfaction with an existing law or issue)

3. use of courts (in taking a case to court, individuals can bring about changes in the law through the judges clarification of the meaning of laws that an individual may find unclear/unfair)

4. media (social and traditional ways of communicating information to the public)

what are the strengths of petitions?

• simple, easy and inexpensive

• online petitions are easy to sign

• lots of signatures show community support and make politicians more likely to consider a change

• once a petition is given to an MP it must be presented to parliament, and even if it is not successful it may help garner attention from other MP’s

what are the weaknesses of petitions?

• people may be reluctant to provide name, address or meail on petition

• may sign a paper petition twice, reducing integrity

• effectiveness of a petition depends on whether an MP is willing to table it and their influence in parliament

• many petitions do not gather media/public attention

• parliaments receive hundreds of petitions ever year so there is no guarentee the suggested law will be adopted

what are the strengths of demonstrations?

• can show parliament that most people support a change in the law, especially if there are thousands of participants

• can attract media attention generating further support for issue/change

• can gain support of MP’s who want to ‘adopt a cause’ to improve their public image

• can alert or educate members of the c ommunity about social, economic and political injustice and the need for law reform

what are the weakness of demonstrations?

• if a demonstration turns violent/disruptive it may be less effective/decrease support for law change due to negative media coverage

• can be difficult to organise

• a demonstration focusing on an issue outside of commonwealth parliament control may be less effective

• demonstration are often singular events and may not generate enough ongoing support for law reform

what are the strengths of using courts for law reform?

• even if a court challenge is unsuccessful, it may gain significant media coverage, which can generate community interest in possible change to the law

• judges can rule that legislation made outside the power of the parliament is invalid

• judges are politically independent and will determine cases on fact rather than gaining voter support

• judges comments and decisions can encourage parliament to make law

what are the weaknesses of using courts for law reform?

• courts can only change a law when a case is brought before them

• can be expensive and time consuming without a successful outcoming guaranteed

• with the exception of the High Court, judge made law can be abrogated by parliament

• judges are not elected so their decisions may not be reflective of the community

what are the strengths of traditional media?

• has expertise by consulting experts and following professional journalism practices

• easily accessible, especially online

• allows for public awareness and educates about potential law changes

• credible

• can reach a wide audience of lots of people

what are the weakness of traditional media?

• politically biased (different news corps with only publish certain info)

• advertisements may be expensive so only well-resourced individuals an organisations views may be shown

• there is a duopoly

• selective coverage of issues

what are the strengths of social media?

• easily reaches very large numbers of people\

• accessible and affordable

• has a global reach

• can amplify minority voices

• can raise awareness/gauge community supoport

what are the weaknesses of social media?

• risk of spreading misinformation/uninformed opinions to go viral

• algorithms can create echochambers where people believe that one idea is the only correct one

• too much diversity in issues can lead to a lack of change due to government fearing backlash from one group

• can become oversaturated with one issue, reducing the impact

what are the four major functions of the Victorian Law Reform Commission (VLRC)?

1. major inquiry (examining and reporting on any proposal or matter referred to it by the Victorian Attorney-General and make recommendations to the Attorney General for law-reform)

2. community inquiry (investigating any relatively minor legal issue that VLRC believe are of general concern with the community and report back to Attourney-General with law reform suggestions. can do this without a reference as long as it doesn’t take up too many resources)

3. monitoring (can monitor and coordinate law reform activity in Victoria, including making suggestions to the Attorney-General about a legal issue or matter relating to law reform for investigation)

4. education (can provide educational programs and inform the community on any area of the law relevant to its investigations or references)

what are the strengths of VLRC?

• independent body and not politically influenced/biased

• if the Victorian Parliament asks the VLRC to investigate a need for law change, the government may be more willing to implement its recommendations

• by reflecting community views in its recommendations, the VLRC increases the likelihood of governments implementing them

• VLRC has the power to make recommendations on relatively minor legal issues (without reference from Attourney-General) which can lead to important law reform

• consults with experts to properly understand area of law

what are the weaknesses of VLRC?

• can only investigate issues referred to it by the government, or minor community issues that will not use too many resources

• no obligation for Parliament to support or introduce law reform to adopt the VLRC’s recommendations

• inquiries limited to the terms of reference given to them by Attourney-General (if not a community investigation)

• VLRC’s investigations can be time consuming (12-24 months) and costly

• limited by resources

• can only suggest changes to Victorian law not Commonwealth

what is a royal commission?

the highest form of public inquiries in Australia that are responsible for investigating a matter of public concern. can be established at a State of Commonwealth level and are responsible for making recommendations to government on terms of reference provided.

what is the VLRC?

the leading independent law reform organisation in Victoria that investigates the need for law reform in the state and provides the government with impartial advice and reccomendations

what are the strengths of a royal commission?

• if the government asks the royal commission to investigate something, they are more likely to take recommendations

• Royal Commissions are independent from parliament and therefore more likely to make unbiased recommendations

• can compel people before them, making their findings more powerful

• can be used to measure community views on an issue by receiving public consultations and submission, making parliament more likely to adopt legislation

• provides comprehensive investigation into area/issue

what are the weaknesses of a royal commission?

• can be used as a tool against political opponents by government avoiding dealing with difficult legislation by delegating to a Royal Commission

• no obligation for parliament to support or implement suggestions

• can be time consuming and expensive (average 2-4 years ns cost up to $60 million)

• influence of a Royal Commission on law reform depends on the factors, such as the time of it’s reporting, subject matter and whether there is bipartisan support

what are the four reasons for constitutional reform?

1. recognise Australia’s first nation’s people (currently no mention of First Nations people in the constitution)

2. increase protection of rights (no Bill of Rights and constitution only protects five express rights)

3. change in commonwealth’s law-making powers

4. reform Australia’s political system

what are some examples of how the government has tried to reform the constitution (for each reason for constitutional reform)?

• recognise Australia’s First Nation’s people: Voice to parliament (2023)- failed, change to preamble (1999)- failed

• increase protection of rights: including civil rights in constitution (1988)- failed

• change in the commonwealth’s law-making powers: extend power over aircraft and navigation (1919) -failed, extend power over social services (1946)- success

• reform Australia’s political system: change to timing of federal elections (1988) -failed, becoming a republic (1999)- failed

what is a referendum?

a national vote on a question about a proposed change to the Constitution

what are the three stages required for a referendum to be successful?

1. the parliament (proposed alteration drawn up as a bill. bill must be passed in absolute majority by both houses of the Commonwealth parliament)

2. the people (information sent out to all households explaining proposed changes. referendum is held where voters must vote ‘yes’ or ‘no’. must be passed by double majority (majority of all voters nationwide and the majority of voters in the majority of states))

3. governor general (must grant royal assent)

how many referendums have been successful in Australia?

8/45

what are the strengths of referendums?

• a doubly majority requirement protects smaller states such as Tasmania and SA being overlooked

• compulsory voting gives people the right to determine whether or not there should be a change to the constitution

• the process of a referendum is lengthy and requires detailed info to be provided meaning there can be confidence that the voters were well informed of the change

what are the weaknesses of referendums?

• public may not understand complex details of proposal, or may vote ‘no’ due to fear of not understanding

• double majority is very difficult to achieve meaning even valid changes are limited

• time consuming and expensive (e.g. 1999 referendum cost $66 million dollars)

• double majority may seem undemocratic because the change will not pass even if there is a majority in the country

what are the four factors affecting referendums?

1. bipartisan support (whether or not the change is supported by the two major parties)

2. will of the people (whether or not the change is supported by the Australian people)

3. nature of the proposal (how complex or accessible the proposal is)

4. education (whether or not the public understands what is going to be changed)

how does bipartisan support increase the likelihood of a successful referendum?

• can increase public trust when proposal has more political support

• easier to pass with a double majority

• people more likely to vote ‘yes’ as they typically vote with their political party

how does bipartisan support decrease the likelihood of a successful referendum?

• if the two parties do not agree, it can crease conflicting and confusing information

• many voters just vote with their political parties

• if the opposition does not agree they will create a very strong ‘no’ campaign, possibly limiting success

how does the will of the people increase the likelihood of a successful referendum?

• if voters are driving for a change, there may be greater willingness to vote yes

• if the change reflects community values, it is more likely to gain a double majority

how does the will of the people decrease the likelihood of a successful referendum?

• if the government is driving for the change rather than the people, voters may be cautious/resistant

• if the proposal increases Commonwealth power, states may encourage voters to vote no

• distrust of politicians may lead to people being more likely to vote no

• support tends to fall away from the cause as the referendum gets closer

how does the nature of the proposal increase the likelihood of a successful referendum?

• if the proposal is clear and straightforward, people will be more inclined to vote yes

• people are more inclined to vote yes if the arguments are clear

• if the information is accessible (lacking legal jargon, available in different languages) it is more likely to be successful

how does the nature of the proposal decrease the likelihood of a successful referendum?

• if the information is complex or hard to access people are more likely to vote no

• an ambiguous question may also lead to voting no

how does education increase the likelihood of a successful referendum?

• booklets sent out to all voters detailing the constitution and referendum process must be straightforward so people are more likely to vote yes

• use of social and traditional media allows for a better reach of information

how does education decrease the likelihood of a successful referendum?

• social media as a form of education can lead to the spread of misinformation

• the constitution is complex and people may just vote with their political party instead of trying to understand it

• it costs money to educate people

what is the significance of the 1967 referendum?

• This referendum can be used to argue that the Australian people have a strong ability to change the Constitution

• It increased the law-making powers of the Commonwealth parliament

• The outcome of the 1967 referendum highlight the ability of the Australian people to change the constitution, especially in areas that relate to social or human rights issues. Over 90% of voters across Australia voted ‘Yes’.

• The amendments made in this referendum allowed the Commonwealth Parliament to make laws with respect to Aboriginals which was an area of law-making power it was previously denied. Therefore the referendum caused an area of residual law-making power to become a concurrent power, shifting the division of law-making power in favour of the Commonwealth. For example, this referendum later enabled the passage of legislation such as the Native Title Act which allowed Indigenous people to claim land rights.

what is the significance of the 2023 voice referendum?

• This referendum can be used to demonstrate the difficulty of changing the words of the Constitution without bipartisan support for the proposal. Votes have been found to have largely fallen down party lines after a popular and effective 'no' campaign from the Liberal party.

• It is possible that voters didn't understand the practical impact of the change which stems from a general lack of understanding from the general community about the Constitution

• There was a difference between voters approval of First Nations recognition and the specific structure of the Voice.

• The disastrous results may have reduced politician's likelihood of trying to introduce referendums in the future

what recommendations were made by the VLRC in the stalking case?

• Victims being more easily able to access financial support to improve ability to report stalking

• Improving the way victoria police records incidents and reports to do with stalking

• Funding for education about non-family and cyber-stalking

• Amendment of Crimes Act 1958 to clarify the offence of stalking

• Funding of the training of magistrates and court personal to better respond to stalking cases

• Increase availability of PSIO

what changes were implemented/ignored by the government in the stalking case?

• Improved funding to Victorian legal services by $7.3 million

• No changes to promote increased reporting

• Updates to Victoria Police website to have signs of stalking and ways to report

• No changes to Crimes Act for definition of stalking

• Victims of Crime Financial Assistance scheme to provide victims with assistance such as counselling, medical treatment, and loss of earnings

how did the VLRC investigate into the stalking case?

• Got 115 submissions from anonymous individuals

• Submissions from groups such as the Victoria Police, Law Institute of Victoria, Victims of Crime comissioner

• Held 36 consultations with organisations dealing with stalking including the Victorians magistrates/country courts and sexual assault service network

• Held group discussions about the topics and had surveys about people's experiences with stalking

what were the terms of reference for the VLRC stalking case?

• How laws can be strengthened to promote and enhance victim wellbeing and safety

• Barriers to reporting for victims of stalking

• Sentencing practices and sentencing options

what were the terms of reference to the Yoorook royal commission?

• Historical injustices (truth telling)

• Ongoing systematic issues

• Causes and consequences of these issues