legal studies (Victoria Australia) civli law 1

Sherlock Holmes
Flashcards by , created about 3 years ago

subtopics: civil remedies (injunction, damages), The adversary system (advantages and disadvantages), pretrial procedures, dispute resolution.

Sherlock Holmes
Created by Sherlock Holmes about 3 years ago
Civil Law
Reese Spence
Alternative Dispute Resolutions
Ffion Edwards
Geography Coasts Questions
Our Legal System
Criminal + Civil Law ch. 5-8
Natasha Janevska
Dispute Resolution
Duty of care
Law In Action Glossary
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.