This One
Name and define the two parties in a civil dispute.
Plaintiff - Party bringing a case against another, believe they have been wronged.
Defendant - Party accused of being wronged and has a case being brought against them.
Define and name the burden of proof in a civil case.
Who must prove the case - Plaintiff
What does Liable mean?
Liable means a person (defendant) is legally responsible for the injury/wronging of the plaintiff.
Define and name the standard of proof in a civil case.
How strong the evidence must be in a case for a defendant to be found liable - on the balance of probabilities
A concern a plaintiff might have about receiving the remedy in a civil case - for example, if the defendant is overseas they may be hard to reach.
Give one example of a way that the civil system aims to achieve equality.
- court processes applies to everyone (rules of evidence for example)
- Rule of law = everyone must follow the law
- Judge/Jury are independent
- VLA/CLCs can support parties
What are limitations of actions - provide one example.
The length of time in which a plaintiff must commence a civil action in court, after which the plaintiff is unable to bring an action relating to the civil wrong against the defendant.
Ex - Defamation = 1 year, Negligence 6 years
Two disputing parties will meet with a third party to discuss their issue and come to an agreement. The third party cannot give advice, take sides or do anything other than facilitate the discussions.
The parties can write up their agreement and have it formalised.
A legally ordered solution to a civil dispute.
Which court hears all civil claims under $100,000?
The Magistrates Court
Outline Arbitration
- two disputing parties
- third party (arbitrator) hears their evidences/points of views
- makes a legally binding decision
- still not as formal as court but much more formal than mediation/conciliation
What is administrative convenience?
The systematic benefit derived from legal matters being distributed amongst the courts according to their complexity and severity.
Which method of ADR has the third party make the decision in the case?
Arbitration
What are the three reasons that someone may opt to appeal?
Q of Law
Q of Fact
Issue with the remedy
Which ADR would suit a case involving a contract dispute where one party is a large company and the other is a private individual. - explain briefly why.
Arbitration, often this is within their contract but it can also take away the power imbalance.
In practice (theory), which two courts have the same civil jurisdiction?
And...what is it?
County & Supreme (trial)
Cases over $100,000
Explain how class actions support access in the civil system.
The expenses are covered for everyday people and allow for people to engage in the system where they otherwise would not/could not.
Recent class action - JBHI-FI's warranty concerns are not something most people would go to court about on their own - but together people can/will.
When will the high court hear appeals?
When there is a question of law of public importance.
When there are differing opinions on the law and it requires clarification.
Why are costs a concern for a plaintiff to consider?
Because they are significant in civil cases - court fees, legal rep fees, appeal costs and the cost of going to ADRs. Not to mention if they lose they may be ordered to pay the other party's fees.
Give a brief description of when it would be inappropriate for two parties to use mediation.
- When there is a power imbalance
- When the parties are emotional/unwilling to discuss
- history of violence/fear/aggression
- parties want a binding result from a third party
Give two strengths and two limitations of mediation to achieve the principles of justice.
S - mediator is not bias, faster, cheaper, less formal, lack of representation does not disadvantage a party, private for sensitive matters.
L - power imbalance could impact a party, not legally binding, requires compromise, past relationship factors can impact success, only binding if parties sign a deed of settlement.
List three common stages in a civil proceeding.
Plaintiff commences a claim, Parties present their case to the courts, Judge may request ADR/parties attempt an ADR, case may go to trial and have a judge determine an outcome, a remedy is found/requested, an appeal is lodged.
State three points of difference between mediation and arbitration.
- one is always legally binding
- mediation's 3rd party cannot intervene in the outcome meaningfully (no legal advice, bias or decision making)
- arbitration is more formal
List three ways the civil justice system upholds fairness.
Burden of proof lies with the plaintiff
Defendant can present their case
processes exist to reduce delays
remedies aim to restore wronged parties
class actions
ADR exists
Give one strength and one limitation of appeals to uphold fairness.
S - everyone can in theory (all = fair)
L - may not be able to afford to appeal as they must bare the costs of appeal (not all = not fair)