Civil law

Description

Mind Map on Civil law, created by bookworm1511 on 11/05/2013.
bookworm1511
Mind Map by bookworm1511, updated more than 1 year ago
bookworm1511
Created by bookworm1511 over 11 years ago
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Resource summary

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