U3 AOS2

• wills: legal documents that distribute assests after death
• negligence: failure to exercise reasonable care when a duty of care is owed
• defamation: making false statements that harm someone's reputation
• proving defamation: false, published to a third party & caused reputational harm
• nuisance: interference with property use and enjoyment
• contract: governs agreements between parties
• plaintiff: party who initiates legal action
• defendant: party blamed for the wrongdoing
• burden of proof: which party has the onus of proving the facts of the case = plaintiff
• standard of proof: on the balance of probabilities
• COSTS: legal representation, disbursements and adverse costs order
• disbursements: out of pocket expenses e.g. mediation fees, jury fees, expert witnesses
• adverse costs order: the court ordering one party to pay the other parties legal costs
• limitation of actions: restrictions placed on the time within which a civil action can be commenced
• loA reasoning: evidence is not lost, witness memory is not effected, disputes should be resolved quickly to promote social cohesion, burden on defendant
• enforcement issues: difficulties that may arise in the plaintiff being able to receive the remedy
• E.I examples: defendant refuses or cannot pay, in jail, overseas, no assets
• fairness: open, impartial and participation
• access: engagement and informed
• equality: substantive or formal
• fewer than 5% of civil cases proceed to trial
• mediation = facilitative
• conciliation = advisory
• arbitration = determinative
• mediation is a cooperative resolution process where the mediator facilitates communication
• a conciliator has specialised knowledge about the type of dispute and can offer solutions to the parties
• an arbitrator is an impartial and independent third party who listens to parties present evidence and makes a binding decision
• terms or deeds of settlement: a document that sets out the terms of a settlement and limits people's ability to go back on their word
• more appropriate: continuing relationship, willing to compromise, private, held at the right time, defendant admits liability and parties want to avoid costs and time associated with court
• less appropriate: history of broken promises, violence or threatening behaviours, parties want publicity, requires urgent court intervention, gross imbalance of power, parties unwilling to negotiate in good faith
• arbitrators decision = arbitral award
• arbitration appropriate: parties agreed, claim is less than $10,000 in the Magistrates Court, want an automatically binding outcome, confidential, want a third party to decide outcome
• arbitration not appropriate: parties have not agreed, parties want control over outcome, parties want publicity or plaintiff wants to make a point about the defendant's conduct, would rather have the formal procedure of court
• reasons for a court hierarchy:

  appeals

  administrative convenience
• an appeal is an application to have a higher court review a ruling
• court hierarchy allows for the distribution of cases into high and lower courts, which helps to allocate resources, create processes that efficiently resolves disputes, and stream line the administration of justice
• civil jurisdiction:

  M.C: claims of up to $100,000 (below $10,000 = arbitration) - none

  C.C : unlimited - none

  S.C.T.D: unlimited - question of law from M.C and VCAT

  S.C.A: none - all appeals from CC and SC, question of law when Chief Magistrate and President or vice-president made decision
• Judge/Magistrate: act impartially, manage a trial/hearing, decide the liability and remedy, case management: to facilitate the just, efficient, timely, and cost-effective resolution of issues in dispute - give directions, order mediation, complete pre-trial procedures, limit time, limit number of witnesses and examination time, limit number of documents
• judges have significant discretion in using their powers that can be perceived as bias and arguably overrides party control
• judge comparison to criminal:

  SIMILARITIES

  act impartially and unbiased

  assisting self-respresented

  instruct and give directions to the jury

  DIFFERENCES

  civil may have to decide on liability

  civil can order both parties to undertake procedures such as mediation and discovery. there is greater case management powers in civil