Flashcards
legal studies (Victoria Australia) civli law 1
Cards in this deck (33)
- 1What 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. - 2What 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. - 3What 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. - 4What 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.
- 5What 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. - 6What 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. - 7What are some venues of dispute resolution?VCAT
The courts in the hierarchy
Dispute settlement centers
Ombudsman
Family dispute centers
Consumer affairs Victoria. - 8What are the methods of dispute resolution?Mediation
Conciliation
Arbitration
Judicial determination. - 9What is MediationA 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. - 10How 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. - 11What is conciliation?Conciliation is when a third party has expertise in the area and suggests possible outcomes.
- 12What is arbitration?Arbitrator will make a legally binding decision. Lawyers are not necessary but can be used.
- 13What is Judaical determination?Going to the courts or VCAT and getting a judicial officer to make a legally binding decision
- 14What 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. - 15What 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
- 16What 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.
- 17What 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. - 18What 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. - 19What 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. - 20What 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. - 21traits 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. - 22Evaluate the role of the partiesADVANTAGES - party is satisfied and only relevant evidence is presented
DISADVANTAGES - winner and loser, not all evidence comes out, big responsibility for the plaintiff. - 23Evaluate the role of the judgeADVANTAGES - impartial and unbiased, all parties are treated equally
DISADVANTAGES - waste of expertise, cannot assist disadvantaged parties. - 24Evaluate 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 - 25Evaluate the need for legal representation.ADVANTAGES - equal rep, payment of legal rep costs awarded
DISADVANTAGES - not all rep is equal, expensive, unrepresented. - 26What 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.
- 27What is the aim of civil remedies?to restore the plaintiff to their original position. types:
damages
injunction
other - 28What are damagesdamages are an amount of money awarded to the plaintiff.
1- compensatory damages
2- nominal damages
3- contemptuous damages
4- punitive damages - 29What 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. - 30What 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. - 31What 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 - 32What 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. - 33How 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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- subtopics: civil remedies (injunction, damages), The adversary system (advantages and disadvantages), pretrial procedures, dispute resolution.
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- Sherlock Holmes
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