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328474
Civil law
Description
Mind Map on Civil law, created by bookworm1511 on 11/05/2013.
Mind Map by
bookworm1511
, updated more than 1 year ago
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Created by
bookworm1511
over 11 years ago
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Resource summary
Civil law
Law making
case law, judge law, common law
Precedent- decision serving for the future
doctrine of precedent
stare decisis
ratio decidendi
important in judgment: reference
obiter dictum
binding precedent
Reverse: appeal, the higher court can reverse
precedent no longer applies
Overrule:High court overrule lower for a different case
replace: old
Disapprove: express bad opinion
Distinguish: not apply in non similar cases
persuasive precendent
obiter can be used
Grant v Australian Mills 1936
Privy court applied negligence- 1st time
recorded in law reports
judgement
only decision- new
Statutory interpretation
judge give meaning to words in act
Reasons for interpretation may become precedent
intent of act not clear
complex and technical
meanings of words change
not cover recent changes
use materials: intrinsic, extrinsic, common law
studded belt case. weapon not defined
Torts
Negligence
reasonable care to ensure actions do not cause harm to others
duty of care owed- neighbour
risk was forseeable
closely and directly effected by actions
breach of duty
reasonable person
Injury or damage resulted
from defendant: 5% physical 10% psychiatric
Donoghue v, Stevenson 1932
exempt: Parliaments involvement in negelience
concerns arising cost public liability insurance
Mental harm
apology is not acknoledgement
Donations ( food)
Emergency helpers
volunteers
Intoxication.illegal activity- contribute
medical practise that is considered right
Defamation
untrue written or oral statement that destroys person reputation
statement was defamatory
about the plaintiff
can be reasonable assumed
communicated to a thirds person
Defences
Qualified priviledge
allows information when it concerns someone- Parent teacher interview: fair no malice
Absolute privliedge
speak freely without legal fear: benefit of community- parliament
Triviality
unlikley to suffer or no harm
Consent
Justification
truth, good reason
Contextual truth
mostly the truth
Fair report of public proceddings
report on earlier doc. E.g report for parliament
Honest opinion
Must be opinion in public interest. E.g food critic
Innocent dissemination
did not know
Publication of public docoments
publishing statement n public doc- courts
Can't sue: large groups,companies unless non profit or under 10 employees, dead or rep ( unless Tas), Vic ( internet providers
Dispute resolution Methods
Self help
+ confidence + satisfaction to solve your self
Negotiation
Mediation
+assist clarify info,fair and confedential
- sucess depends on parties
conciliation
third party actively involved: no force
- sucess depend on parties
+parties make decision
Arbitration
third person act like conciliator then makes legally binding decision
compulsory for civil claims up to 10,000
legal rep not attented
+-legally binding
Judicial determination
+ strict rules and right to appeal
VCAT
Statutory authority out of court: specialised knowledge but cheaper, less formal and time friendly
+ save time, cost, less intimidation, are legally binding
- no legal rep unless other party has one
Civil: legal practise
Admin: taxation
human rights: anti discrimination
+ confidential + flexibility, preserve relationships, parties more control,cost and time
Courts
Court hierarchy
PASTA
Precedent
consistency
Appeals
decisions reviews= fair
POL: judge and jury, interpretation
POF: sentence, facts
specialisation
expertise= consistency
Time and money
lower courts more then higher
Adim convenience
allocation based on amount or severity: efficentcy
Jurisdiction
Magistrates: up to 100,000, 10,00 arbitration E.g torts
County: unlimited claims, 1 judge optional jury of 6
litigant decides which cc or s.c. no appeal unless parliament
Supreme: unlimited claims, 1 judge optional jury of 6 usually commercial or equity
Appeal: POL MC or VCAT
Court of appeals: 3 justices
Hears all cases on appeal
High Court: Constitution
get leave for appeal
Full court of the high court: 3 justices final court of appeal from high court, federal/family and COA
Full bench of the High court: 5- 7 justices- constitution
Childrens court
Family court
full bench of family court
full court of high court
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