6156452
Description
Flashcards by Sherlock Holmes, updated more than 1 year ago
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Created by Sherlock Holmes
over 7 years ago
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| Question | Answer |
| What are the reasons for court hierarchy? | -Allows courts to specialize e.g the county court becomes experts in serious personal injury claims. -Civil cases can be appealed. cases can be appealed on the decision, remedy or point of law -Allows laws to be made through the doctrine of precedent.' -Administrative convenience. |
| What is the original civil jurisdiction of the magistrate and county courts? | MAGISTRATES court - cases involving up to $100,000. Cases seeking less then $10,000 are recommended to Arbitration. COUNTY COURT - unlimited jurisdiction including all personal injury claims. There is also the option of having a jury of six. |
| What is the original civil jurisdiction of the supreme courts and the high courts? | SUPREME COURT TRIAL DIVISION - unlimited, again also with the option of a jury of six. SUPREME COURT OF APPEAL - no original jurisdiction HIGH COURT - covers disputes between parliment, and matters that arise under a treaty and constitution interpretation matters. |
| What is the original civil jurisdiction of the children's court? | the family division hears matters about the protection and care of a person under the age of 17 years old. |
| What is the appellate jurisdiction of the courts? | MAGISTRATES - None COUNTY COURT - None SUPREME COURT TRIAL DIVISION - hears appeals from the magistrates and children's court and VCAT SUPREME COURT OF APPEAL - hears appeals from county court, supreme court trial division, and VCAT when heard by the president or vice president. HIGH COURT - hears appeals from the supreme court of appeal. |
| What are some possible difficulties faced by parties in resolving civil disputes? | language difficulties fear of testifying intimidation infringement was minor embarrassment cost of legal fees higher then payout etc. |
| What are some venues of dispute resolution? | VCAT The courts in the hierarchy Dispute settlement centers Ombudsman Family dispute centers Consumer affairs Victoria. |
| What are the methods of dispute resolution? | Mediation Conciliation Arbitration Judicial determination. |
| What is Mediation | A mediator acts as a third person to try and bring the parties together where there is common ground. the agreement is not legally binding The mediator cannot suggest solutions. |
| How effective is Mediation? | ADVANTAGES: quick and inexpensive, maintains relationships, improves communication, decreased demand in court and both parties feel satisfied. DISADVANTAGES: not legally enforceable - no consequences, possible imbalance of power and some parties may not be willing to negotiate. |
| What is conciliation? | Conciliation is when a third party has expertise in the area and suggests possible outcomes. |
| What is arbitration? | Arbitrator will make a legally binding decision. Lawyers are not necessary but can be used. |
| What is Judaical determination? | Going to the courts or VCAT and getting a judicial officer to make a legally binding decision |
| What is the purpose of pre trial proceedings? | Both parties are informed of the details of the legal action. Consider if the case is worthwhile. Allows issues to be clarified. |
| What is a letter of demand? | A letter of demand when the plaintiffs legal rep sends the defendant informing them that if they do not comply then legal action will be taken |
| What is Pleadings? | Pleadings is the exchange of legal documents that are filed with the courts. Contain the details of the plaintiffs claims and the defendants defense. |
| What is the process of pleadings? | 1. writ of summons 2. notice of appearance 3. statement of claim 4. statement of defense 5. possible counter claims 6. further and better particulars. |
| What is a discovery? | the discovery and admittance of evidence. Interrogation - written questions answered under oath Discovery of documents - request for documents and evidence. medical examination and provision or hospital records if required. |
| What is the procedure during a civil trial? | jury requested and impaneled. Plaintiffs opening statement (summary of the case, evidence) plaintiffs case (examine in chief, cross examination and re-examination) repeated by defense defenses final address judge summaries case for jury and the jury or the judge delver a verdict and decide on a remedy. |
| What are the details of having a jury in a civil trial? | Available in the county and supreme courts. jury of six unanimous decision but a decision of 5/6 will also be accepted. |
| traits of the adversary system. | Role of the parties Role of the judge Role of legal representation Rules of evidence and procedure Standard and burden of proof. |
| Evaluate the role of the parties | ADVANTAGES - party is satisfied and only relevant evidence is presented DISADVANTAGES - winner and loser, not all evidence comes out, big responsibility for the plaintiff. |
| Evaluate the role of the judge | ADVANTAGES - impartial and unbiased, all parties are treated equally DISADVANTAGES - waste of expertise, cannot assist disadvantaged parties. |
| Evaluate the rules of evidence and procedure. | ADVANTAGES - promote fairness and consistency, both parties must follow, testable evidence DISADVANTAGES - incomplete evidence from witness, unwilling to testify |
| Evaluate the need for legal representation. | ADVANTAGES - equal rep, payment of legal rep costs awarded DISADVANTAGES - not all rep is equal, expensive, unrepresented. |
| What is the standard and burden of proof in a civil case? | the standard of proof is on the balance of probabilities, the burden of proof is on the plaintiff. |
| What is the aim of civil remedies? | to restore the plaintiff to their original position. types: damages injunction other |
| What are damages | damages are an amount of money awarded to the plaintiff. 1- compensatory damages 2- nominal damages 3- contemptuous damages 4- punitive damages |
| What are compensatory damages? | compensatory damages: 1- specific damages can be calculated exactly. e.g. medical bills. 2- General damages cannot be calculated but estimated on long term consequences. e.g. future earnings, pain or suffering 3- aggravated damages when the defendant has humiliated or insulted the plaintiff. |
| What are the details of the other types of damages? | Nominal damages - small amount of money paid to prove a point, but little damage was actually done contemptuous damages - tiny amount of money awarded but was not an issue for the courts. punitive damages - purpose is to damage the defendant due to violence/cruelty. |
| What is an injunction and what are the different types? | a court order that commands a person to do or stop doing a certain action. types: mandatory - forcing someone to do something e.g. publish an apology restrictive - forcing someone to stop doing something e.g. stop trespassing |
| What are some other remedies? | rescission - being let out of a contract specific performance - command to fulfill the contract restitution - return goods or land to plaintiff. |
| How do you enforce a remedy? | warrant of distress - seize of property. attachment of earnings - small payment from wages garnishee order - direct payment bankruptcy/liquidation contempt of court/criminal proceedings. |
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