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year 12 legal studies > civil law 1 (1st term) > Flashcards

civil law 1 (1st term) Flashcards

1
Q

lesson one (28)

what are civil disputes?

A
  • a disagreement b/w 2 or more indiv whereby 1 groupparty makes a claim againnst another usually, claiming a loss
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2
Q

lesson one (28)

what are the purposes of civil law?

A
  • enable party to enforce their rights
  • det whether the def is liable
  • award a remedy & return the plan. to their o.g position (as much as possible)
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3
Q

lesson one (28)

define sue

A
  • to take civil action against another person claiming that they have infringed some legal right of the plan. or did something wrong that neg affected the plan
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4
Q

lesson one (28)

define litigation

A
  • commencing a civil actions in court - normally begins by seeking leg rep & filling of a writ
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5
Q

lesson one (28)

define liable

A
  • finding that one party is resp for the other’s loss / infringement
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6
Q

lesson one (28)

define remedy

A
  • orders made by a court or tribunal to address a civil wrong or breach - desig to restore the plan. back to their o.g post
  • in from of injun or dam
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7
Q

lesson one (28)

what are some types of civil disputes?

A
  • negligence (breach of duty of care)
  • defamation (def comm flase claims t/f dam plan rep
  • breach of contract (failure of oblig w/n ccontract terms
  • family law (matters inv par / child / fam mem)
  • tresspass to land (unlaw interf w/ land)
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8
Q

lesson one (28)

who is the plantiff?

A
  • the party who commences the civil action & claims their rights have been infringed or a wrong has occurred
  • also known as aggrieved party / wronged party
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9
Q

lesson one (28)

who is the defendant?

A
  • the party who is alleged to have infringed the plaintiff’s rights or is alleged to be responsible for the wrongdoing
  • the party that is defending themselves against a claim by another person, the plain. for an alleged breach of law
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10
Q

lesson one (28)

who can the parties to a civil dispute be?

A
  • an indiv. being sued in their own name / group of indiv. being sued or suing together
  • corp. (company) - sep leg entity from the dir. can be sued = Pty Ltd or Ltd
  • Cth / state / govt agency or body –> e.g suing vic police for false arrest
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11
Q

lesson one (28)

suing employers

A
  • if employee infrin a person’s rights whilst acting in the course of their employment –> injured person may be able to sue the employer via vicarious liability
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12
Q

lesson one (28)

what is vicarious liability?

A
  • the leg resp of a 3rd party for the wrongful acts of another e/g an employers’ liability for what their employees did
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13
Q

lesson one (28)

why may a person sue the employer not the employee (vl)?

A
  • employ / comp = $
  • teach comp respon. & expect
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14
Q

lesson one (28)

who does the burden of proof rest upon in civil law?

A
  • the plantiff
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15
Q

lesson one (28)

what does the burden of proof mean in civil law?

A
  • follows the principle that the party who brings the case must satisfy the decision maker (usually the judge) that their claim is supported by facts
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16
Q

lesson one (28)

in what instances may the burden of proof rest upon the defendant?

A
  • def may choose to file a countercl. –> def has burden to prove their claim
  • def raises def (e.g def = contrib neg)
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17
Q

lesson one (28)

what does the standard of proof mean?

A
  • refers to the strength of evidence required to prove the case
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18
Q

lesson one (28)

what is the standard of proof in civil law?

A
  • the plain. must prove their case based on the bal of prob
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19
Q

lesson one (28)

what does the balance of probabilities mean?

A
  • that it is more probable / more likely than not that their (plain.) claim is true
  • less strict standard than brd
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20
Q
A
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21
Q

lesson one (28)

what are the avenues available in civil law to resolve matters (disp reso bodies)?

A
  • complaints bodies
  • tribunals
  • courts
    –> whether or not dispute reso bodies are able to resolve a dispute will depend of their juris & powers
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22
Q

lesson one (28)

what are complaints bodies?

A
  • govt funded, stat bodies that exists to invest compl from ppl about the conduct of other parties
  • regulated / have their powers through parl passing leg.
    –> cons aff vic / vic ombud - hear compl about councils / prisons / vic roads
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23
Q

lesson one (28)

what are tibunals?

A
  • operate like a court in that they resolve broad range of disputes
  • e.g. VCAT (+stat body) –> operate w/n jurisd to hear matters such as consumer disputes, ten, discrim, neighb disp
  • gen cheaper & quicker in res disp
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24
Q

lesson one (28)

what are the courts?

A
  • either vic / fed courts
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25
Q

lesson one (28)

what are the common stages of civil proceedings?

A
  1. parties att to reach an o-of-c sett
  2. plain. commences a civ proc in court
  3. part prep their case for trial
  4. j may order parties = att med –> enc early det of case
  5. if sett X reached part = pres case at trial
  6. j & j make dec as to whether def = liable
  7. if def = liable –> rem = awarded to plain
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26
Q

lesson two (29)

what is the factor of costs?

A
  • in a civ disp, it is the part that will gen bear he costs of resol the disp. since civ law is about upholding rights of indivs, the state will X get involved to fund proceed.
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27
Q

lesson two (29)

although a party has suffered an infringement or loss due to a breach of their rights, what are three factors which should be considered prior to intiating a civil claim?

A
  • costs
  • limitation of actions
  • enforcement issues
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28
Q

lesson two (29)

what are the costs associated with civil proceedings?

A
  • legal rep
  • disbursements
  • adverse court orders
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29
Q

lesson two (29)

what are the costs associated with legal representation?

A
  • dep on complex of leg iss party = choose engage in services = sol / barr / both
  • some cases –> sol = seek leg adv / draft & file leg doc
  • complex cases –> barr = rep client in pre-trial hearings / pres case in court
  • $ leg rep = dep on compl of case = exp of leg rep / aven matter being heard (court / trib)
  • sen barr = $600 p/h w/ KC = $1000 p/h
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30
Q

lesson two (29)

what are disbursements?

A
  • other expenses incurred as part of prep for the case outside leg rep
  • monies paid to 3rd parties for preparation of the case
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31
Q

lesson two (29)

what are examples of disbursements?

A
  • payment for collection of report, fin statement, video footage
  • photocopying
  • liasing w/ other ext. org outside of leg rep
  • witten statements from exp wit
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32
Q

lesson two (29)

what are adverse court orders?

A
  • the legal req that one party pays for the other party’s leg costs.
  • if plain = unsucc in their claim –> court may order they pay some of the def leg $
  • gen rul = succ party should have their leg costs paid by the losing party in addition to rem
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33
Q

lesson two (29)

what are limitation of actions>

A
  • a restriction on the time limit in which a plain. must commence a civil action in court, after which time, the plain is unable to bring an action relating to the civil wrong against the def
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34
Q

lesson two (29)

what is the legislation that refers to the limitation of actions?

A
  • Limitations of Actions Act 1958 (Vic)
    –> outlines the time frames within which different types of civil actions must be commenced
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35
Q

lesson four (31)

what are the other dispute resolution methods alngside courts (can be w/n)?

A
  • mediation
  • conciliation
  • arbitration
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36
Q

lesson four (31)

what is mediation?

A
  • least formal meth for res dis
  • inv parties willing to coop in order to reach a sol
  • through assis of imp 3rd party = mediator = facilitate
  • X strict rules of evi & proced
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37
Q

lesson four (31)

through assistance what do the parties do in mediation?

A
  • sit down to discuss the issues involved
  • consider options
  • try to reach an aggreement through neg & compromise
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38
Q

lesson four (31)

is legal representation involved in mediation?

A

legal rep = gen X used to promote a sense of inform h/w can be used
if med = used in sup court as pre-trial proced leg rep = pres

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39
Q

lesson four (31)

where are some specific places mediation be conducted?

A
  • in private office
  • in court
  • dispute resolution centre of vic
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40
Q

lesson four (31)

define terms of settlement

A
  • a legally binding document that outlines the terms that the parties have agreed to after mediation which can be enforceable through courts if one party does X comply
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41
Q

lesson four (31)

is the decision of mediation legally binding?

A
  • dec reached = X leg bindng unless a deed of settlement is signed by both parties
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42
Q

lesson four (31)

what are the key basic features of mediation?

A
  • two disputing parties w/ possible respresentatives
  • 3rd party = role to FACILITATE communication b/w parties
  • resol made by parties, voluntarily
  • resol may be eforceable if t.of.s entered into
  • used extensively in vic courts & VCAT
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43
Q

lesson four (31)

when is mediation used?

A
  • before court
  • during court
  • as an alt to court
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44
Q

lesson four (31)

why may parties used mediation before court?

A

med may be used by parties before engaging in the courts to resolve disputes in particular, if it is important to maintain an ongoing relat & $ cost may be an issue

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45
Q

lesson four (31)

what type disputes may / who may use mediation before court?

A
  • disagreements b/w neigh
  • disp b/w landlords & ten
  • disp among fam mem
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46
Q

lesson four (31)

who may order parties to attend mediation?

A
  • the mag / cc / sc = order parties to attend med once the case has been initiated in the court as part of a pre-trial proed
  • can be ordered w/o consent of parties
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47
Q

lesson four (31)

how is mediation in the courts payed?

A
  • $ for med usually split b/w parties
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48
Q

lesson four (31)

who mediates during mediation in court?

A
  • associ judges can also mediate –> ref to as judicial med
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49
Q

lesson three (30)

what does fairness refer to?

A
  • impartiality
  • open processes
  • participation
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50
Q

lesson three (30)

how does civil law uphold impartiality?

A
  • plaint = have indep & imp adj preside over their case (j/med/con/arb)
  • should plaint = wish to have a jury –> entit to having a jury of 6 decide the outcome of their case & award rem should matter be heard in cc or sc
  • j & j must reach dec based upon applying the facts & evid prest in the case rather than their own opin or bias
  • Civil Procedure Act (Vic) ensures the rules of prep & pres a case is applied to both sides –> reg aspects = narr leg issues disp, disclosure during discov, case man powers of judge
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51
Q

lesson three (30)

how does civil law uphold open processes?

A
  • disp that utilises the courts = open to pub = court’s judgem –> prom transp over judicial dec & acc of leg prof
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52
Q

lesson three (30)

how are open processes not achieved in civil law?

A
  • should parties choos med / con as method to resolve diputes = may be held in private –> lack of open processes
  • jurors when reaching a dec = X req to provide a reason for their decision t/f dep on matters discussed during delib dam & rem = may X = consist
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53
Q

lesson three (30)

who may desire a private resolution to a civil matter?

A
  • bus that may X want their name / image disclosed
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54
Q

lesson three (30)

how does civil law / legal system uphold participation?

A
  • after consid of all fact –> all plaint have right to lodge a claim against a def b/c of a loss or if they believe that the matter is X worth pursuing then they can ‘cut their losses’ = CHOICE
  • plaint can engage in sev aven to have their issue resolved = courts/med/con/arb/trib/compl bod = depending on nature of disp
  • some aven of resol = X req leg rep –> prom plaint abil to part in leg sys more easily
  • through a series of pre-trial civ procedures = pleadings / disc of docu & directions –> def = gain infor about the case against them & prep
  • bp = same opp to pres their case / side to j & j during trial
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55
Q

lesson three (30)

how does a letter of demand uphold the feature of fairness - participation?

A
  • LOD = easy to write t/f x req leg rep –> allows plaint to part or become involv in resolv their disp w/o need or $ of leg rep
  • rec this letter allows def to make a dec as to how they wish to become involved w/ the disp e.g pay the $ or resp to disp
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56
Q

lesson three (30)

how does a letter of demand uphold the feature of fairness - transparency / open processes

A
  • LOD allows def to be made aware they they will be involv in a leg disp, what the claim is & how much theur need to pay –> x surprise for def
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57
Q

lesson three (30)

what does equality aim to ensure?

A
  • ensure uniform treatment of all indivs in the civil justice sys h/w should this cause disp / disad, extra measure should be implemented to allow everyone to engage w/ the just sys
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58
Q

lesson three (30)

how is the feature of equality - same treatment (formal) - upheld in civil disputes?

A
  • all part can intitate a claim if they can demon an infring of their rights & loss
  • all parties can have indep adj preside over their case
  • all part must engage in the same pre-trial proc to ensure adeq prep & pres of their case in court
  • all part can & are enc to neg prior & during trial & resolve their disputes w/o proceeding to a trial
  • all part have their matter heard in supe courts can request to have j if can pay
  • all part can engage in leg rep to provide them w/ leg assist
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59
Q

lesson three (30)

how is the feature of equality - different treatment (substantive) - upheld in civil disputes?

A
  • if party x afford leg rep & must self-rep –> judge / mag may need to take steps to explain certain rights & processes e.g. what is means to cross exam wit
  • org = VLA & CLCs = prov extra supp to indiv who do x have res to uphold their civ rights –> more equitable outcomes
  • interp may be req for ppl w/ lim eng to assist w/ trans
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60
Q

lesson three (30)

what is a writ?

A
  • a formal leg doc that is filed by the plaint w/ the rel courts (usu sup) to inform them that lit (the process of suing in courts) has commenced
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61
Q

lesson three (30)

what does the writ outlines?

A
  • names & leg rep of both parties
  • where the matter is being res (which court)
  • the claims made by both sides
  • timelines for adhering to certain req e.g. settling the claim
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62
Q

lesson three (30)

what does access aim to ensure?

A
  • ensure that everyone can engage in the civ just sys & it proceedings w/ adeq knowledge
  • crucial b/c allows plaint to comrpeh theur leg entit & diff steps involv in their civil disputes
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63
Q

lesson three (30)

how is the feature of access - engagement - enhanced in civil disputes?

A
  • unlike crim = range of dispt res meth = avail to parties to util –> ranging from = ADRs, trib, CAV & courts
  • tech dev –> disp resolved via online vid link or conf e.g. trib hearings can be conducted online w/o req phy pres of either party
  • fin access = CAV & hum rights (discrim) matters heard by VCAT = free of charge
  • class act / group proc –> group mem = share $ when taking leg act against large corp
  • VCAT = discount for pens cards when charging app fee –> allow more afford app to resol civ disp
  • leg rep = x often needed unless part eng in courts
  • range of disp res aven also means courts = less likely to be clogged & exp delays
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64
Q

lesson three (30)

what does infored basis refer to?

A
  • for ppl to engage w/n civ just sys should be able to get inform & use procedures / meth / instit that resol civ disp = courts / trib / instit that can provide leg adv to parties
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65
Q

lesson three (30)

how do specialist CLCs uphold the feature of access - informed basis?

A
  • can assist certain groups w/ vul in society
    –> e.g. AED = est to spec assist indiv w/ disab reg civ matters arising from unlaw term / bull / harr / wages / working cond
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66
Q

lesson three

how is the feature of access - informed basis - upheld in civil disputes?

A
  • specialist CLCs
  • complaints bodies
  • online websites
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67
Q

lesson three (30)

how do complaints bodies uphold informed basis?

A
  • comp bod = consum affairs vic = prov free inform online to educate consum on their rights but also used concil to resolve free of charge
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68
Q

lesson three (30)

how do online websites enhance informed basis?

A
  • one web = VCAT / vic leg aid / wom leg / vic omb = provide inform & guid for part on their rights in some civ matt & where to take their disp to be res –> most rec / req part to engage in s-h 1st
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69
Q

lesson three (30)

how do civil disputes not uphold informed basis?

A
  • self-help req part to have a certain lv to edu & can artic & comm w/ other part –> x always occur
70
Q

lesson four (31)

how can mediation be utilised as an alternative to court?

A
  • VCAT often refers claims to med prior to fin hearing
  • part = access priv med through disp settle centre of vic
71
Q

lesson four (31)

what are circumstances where mediation is appropriate?

A
  • rel need = main b/w part = man & employee
  • part = will to disc issue
  • part = pref priv & confid –> want res disp = less form & pub manner
  • bp = lower leg fees b/c court proc = more $
  • prompt reso needs = reached / sig wait times asso w/ det of civ disp via courts
72
Q

lesson four (31)

in what circumstances is mediation not appropriate?

A
  • part = x will to disc / compro
  • x want an ongoing rel w/ party / rel = x need = main
  • part = domin –> uneven abil to openly disc issue eq –> e.g. spousal rel / man & employee / par & child = age sep / disab
  • med = x leg bind w/o LOD t’f x wnsure agreement is duit upheld by bp
  • ppl want day in court & want pub awar for what happened to them t/f use court is have res to pay for
73
Q

lesson four (31)

what is the role of the conciliator?

A
  • will listen to the facts & evid pres by both sides & make SUGGEST reg ways & options to resol the disp
74
Q

lesson four (31)

who will the conciliator generally be?

A
  • an indiv w/ spec knowledge in that field pertaining to the leg disp e.g. consumer law / fam law / workplace relations
75
Q

lesson four (31)

what are the key features of conciliation?

A
  • two disp parties w/ possible rep
  • 3rd part = conc = supp / fac comm
  • resol = made by part volun - may be on the advice of the concil
  • resol = enfor if t.of.s ent into
  • prim by CAV & VCAT
76
Q

lesson four (31)

why may a party wish to use conciliation over mediation?

A
  • desire imp 3rd party w/ spec exper –> greater assist & support
  • failed med
  • desire assist sugg of resolution
77
Q

lesson four (31)

why might a party not use conciliation over mediation?

A
  • & req w/ inv a concil
  • b/c reol of cil = incr assertive then med –> incr control & thor disc & tailored made solution w/o input from concil
78
Q

lesson four (31)

what are circumstances in which conciliation is not appropriate?

A
  • parties = highly emotional
  • parties = unwill to disc issues
  • hist of vio / threats b/w parties
  • power imbal b/w parties
  • parties want leg bind result to their disp
  • prefer form assoc w/ jud det
79
Q

lesson four (31)

when is conciliation appropriate?

A
  • even & mutal resp & bal b/w parties = x disp imbal
  • desire to maint rela
  • incr prompt resol in comp to other court proceedings = x filing of hearing / pre-trial proc
  • part = will to disc / open mind
  • x hist of viol / abuse / threats of harm
  • want clear cut sugg for part
80
Q

lesson four (31)

how does mediation & concil achieve fairness?

A
  • use of inep & imp 3rd party
  • incr part due to min $ comp to $ of courts
  • incr part b/c w/w pot rather than adversarial
  • incr part as conc can sugg outcomes
  • incr op.proc b/c bp = present –> use of d.of.s
81
Q

lesson four (31)

how does mediation and conciliation limit fairness?

A
  • methods conducted in private –> lim op.proc
  • relies on both sides –> part can be red if one side refuses
  • decr part if outcome x reached
82
Q

lesson four (31)

how does mediation and conciliation achieve equality?

A
  • bp are able to contrib to the outcome (same)
  • bp have the same environ to resol disp / same rules applying dep on method
  • when used as a pre-trial proce –> bp = sam opp to avoid trial
  • bp have their priv / decr pub through eng w/ med & concil
  • lower $ to court –> allows for sub eq if one side = decr resources / $
83
Q

lesson four (31)

how does mediation and conciliation not uphold equality?

A
  • one party may be more aggress / med may x able to advo for other party
  • disp in abil to neg an outcome –> may = press into signing & agreeing to something x understand
84
Q

lesson four (31)

how is access upheld by mediation and conciliation?

A
  • med & concil = incr $ eff w/ x pre-trial proc / filing of court hearing & x leg rep req t/f part w/ lower incom ect –> incr eng
  • less form –> red complex = x leg jarg / extensive compl leg doc t/f incr in.b b/c all edu lvs
  • concil incr in.b through sugg
  • bp methods provides parties gen w/ opp to be aware / informed to prep their case
85
Q

lesson four (31)

how does mediation and cociliation not achieve access?

A
  • bp want to disc t/f if x –> lim eng & abil to eng w/ med / con
  • b/c x leg binding –> x want to eng
  • red eng b/c relies on bp to coop
  • b/c rep rep = disc –> parties may x always be infromed about options
86
Q

lesson five (32)

what are the key features of arbitration?

A
  • two disp parties w/ possible rep
  • 3rd party = arb
  • resol decided by the arb
  • arbital award = binding
  • conduc in private
  • less form & more $ effect than att courts
87
Q

lesson five (32)

what is the role of the arbitrator?

A
  • listen to both sides
  • make leg bind dec on both parties = arb award
88
Q

lesson five (32)

how is arbitration used in private?

A
  • arr by part themsel
  • usu inv comm transact - due to tms in contract
  • takes place at disp resol centre / melb comm med & arb centre
89
Q

lesson five (32)

when is arbitration used?

A
  • in private
  • in court
  • arbitration in tribunals
90
Q

lesson five (32)

what does it mean for arbitration to be used in courts?

A
  • small claim filed in mc = below $10,000 –> matt obliged to be referred to arb
  • mags = refer matters to arb w/ consent of parties or amounts abv $10,000
  • cc & sc –> can req part att arb if consent
  • req = explicit / x enforce arb att b/c dec rests in hands of arb (x judge) –> decr ownership of resol t/f part = want exp of judge x arb
91
Q

lesson five (32)

arbitration is tribunals (vcat)

A
  • VCAT –> can ref part to arb bf final hearing h/w x conduct arb process itself
92
Q

lesson five (32)

when is arbitration appropriate?

A
  • part consent / agree to attend arb / arb = incl as part of their contractual agreement
  • matt = below $10,000 & matt = filed in mc
  • part want to bene from leg bind dec
  • part will bene from matt being resolv in private / in confid mann w/o pubof trial
  • part want to bene from more form procedure (comp to m & c) whereby 3rd indep party = view evid & facts pres
93
Q

lesson five (32)

when is arbitration not appropriate?

A
  • part want to bene from civil rules of proced = writ
  • part want involv of peers (jury)
  • part want pub awar of matter
  • part = x consent / agree to att arb
  • leg bind dec –> part want incr auth / say / ownership
  • lang barrier & sig fin disp
94
Q

lesson six (33)

what are the reasons for a civil court hierarchy?

A
  • administrative convenience
  • appeals
95
Q

lesson six (33)

define administrative convience

A
  • refers to the ability of the courts to distribute resources more effectively by org disp according to how serious or complex they are.
96
Q

lesson six (33)

why are superior courts able to demonstrate admin convenience?

A
  • superior courts (sc) = free to devote time & resources to long, comx disp as court x delayed by resolv minor disp
97
Q

lesson six (33)

why are lower courts able to establish admin convenience?

A
  • lower courts (mc) can quickly resolve a large no. of rela minor disputes –> min dlays for part disp
98
Q

lesson six (33)

court hierarchy and administrative convience example thought

A
  • through the ranking of the courts –> v. top = senior sc judges are enabled to devote greater time dedication to interp law for compl matters. whereas the res mc are positioned to deal w/ more comm disp
  • the res of each court = div in a way that caters for the volume of cases they hear (29 sc j & 23 mag)
99
Q

lesson six (33)

define appeal

A
  • leg process that a dissatisfied party may pursue to have the court’s decision reviewed by a higher court
100
Q

lesson six (33)

is a dissatisfied party of a civil dispute automatically entiteld to an appeal?

A
  • party = dissat w. outcome of civ disp = x auto entit to have dec reviewed on appeal
  • must be granted leave to appeal / perm to appeal a case / have leg grounds for doing so
101
Q

lesson six (33)

what are the grounds of an appeal?

A
  • Q of law
  • Q of fact
  • the remedy awarded
102
Q

lesson six (33)

define question of law

A
  • arguing that the law has x been correctly applied
  • e.g. accepting inadmissible evid wrong leg test to the case
  • error of law
103
Q

lesson six (33)

define question of fact

A
  • whether the facts of the case had been applied appropriately to reach decision
  • error of facts
104
Q

lesson seven (34)

who are the 3 key personnel within the civil courtroom?

A
  • mag / judge
  • jury
  • parties
105
Q

lesson seven (34)

who is the judge?

A
  • an indep auth who presides over a trial, ensuring procedural fairness by overseeing all personnel & evid
  • cc & sc
106
Q

lesson seven (34)

define magistrate

A
  • an indep auth who presides over hearings in the mags’ court for less serius summ offences, committal proceedings & some civ disp
107
Q

lesson seven (34)

who is the justice?

A
  • a judge in a rel superior court in the hierarchy such as the sc of vic - COA or hc of aust
108
Q

lesson seven (34)

what is the main role of a judge?

A
  • case management (during / before)
109
Q

lesson seven (34)

what are other important roles of the judge?

A
  • remain unbiased
  • apply the rules of evid & proced
  • direct the jury
  • det liability & awarding remedies
110
Q

lesson seven (34)

what is case management?

A
  • method by courts to control the progress of leg cases more effect & effici
  • gen involves a person presiding over the case, making orders & direct in the proceedings
  • granted to judge under Civil Procedures Act 2010
111
Q

lesson six (33)

what are the strengths of reasons for a court hierarchy (appeals & admin)?

A
  • c.h. –> appelas to be made by b.p if an error in o.g. dec
  • c.h. allows courts to adopt diff processes & use their resources in way ensures cases = resolved eff –> small cases = mc / more mag / more court venues
  • ranking –> judges (sc) –> incr time & dedic to inter law of complex cases b/c cases distrib & org b/c jurid of courts
112
Q

lesson six (33)

what are the weaknesses of reasons for a court hierarchy (appeals & admin)?

A
  • x auto right to app & app proc = diff to understand w/o lawyer part b/c need to est grounds of appeal
  • diff courts = conf for ppl who x understand civ just syst –> emph when overlapping jurisdic or self-rep part
113
Q

lesson seven (34)

what is the purpose of case management before trial?

A
  • ensuring the case is ready for trial or to det whether the matter can be resolved prior to trial commencing to save the parties time & $
114
Q

lesson seven (34)

what does giving directions include?

A
  • filing a part document by certain date
  • discov process
  • attending med = order att by certain date to try & resol
115
Q

lesson seven (34)

define giving directions

A
  • poses an obligation on a party or both to do something by a certain time, or specifies how a civil proceeding will be conducted
116
Q

lesson seven (34)

what is the discovery process?

A
  • ensuring parties get copies of each other’s docu that = rele to issues in the disputes = contract / reports / photographs / emails
  • j = set bound to ensure that these documents are onlt ones rele to disp
117
Q

lesson seven (34)

should matter not be resolved during pre-trial stage then during the trial how does the judge manage the trial?

A
  • ensuring correct procedure = foll e.g. plain = 1st then def
  • lim examin of wit
  • x allowing cross-exam of certain wit
  • time lim on exam in chief
  • lim no. of docu that party may tender into evid
  • ask wit some qs to clarify their evid
  • hand down a ruling
  • ensur part = self-rep = underst their rights & oblig along w/ court proces
118
Q

lesson seven (34)

what does it mean for the judge to remian unbiased?

A
  • a judge or mag must remain impartial throughout the entire proceeding
  • x favour either party
  • act = umpire for the courtroom to oversee case
119
Q

lesson seven (34)

when applying the rules of evidence & procedure what are judges required to make rulings when it comes to evidence about?

A
  • det whether evid = admiss
  • ensuring wit = examin & cross examin
  • giving dir as to how evid = pres & what docu jury permitted to see
  • prov clarity on rules of evid & procedure
120
Q

lesson seven (34)

how and what does the judge direct the jury on?

A
  • instruct jury on their role in civ trial if one used
  • explaining who has the onus to meet sop
  • prior to delib j = summ evid pres to assist clarifying application of law to facts presented
121
Q

lesson seven (34)

what does it mean for the judge to have the role of determining liability & awarding remedies?

A
  • x jury –> j det whether plain proven on bop def caused inj / loss (mc –> mag)
  • j / m respon of ordering approp rem once verdict = det for wronged party –> dam / injunct &/or other rem
122
Q

lesson seven (34)

how does the role of the judge uphold fairness?

A
  • indep j & m ensure trials are conducted w/o bias & according to rules of evid –> contrib to f as dec = based on law & facts alone
123
Q

lesson seven (34)

how does the role of the judge limit fairness?

A
  • j & m rely on parties to present all evi & facts of disp during trial t/f if part = x leg rep –> may prevent all rele facts from being pres to court or in their best light this –> unfair trial
124
Q

lesson seven (34)

how does the role of the judge achieve equality?

A
  • j & m ensure rules of evif & proc apply equ to all part during civ disp
125
Q

lesson seven (34)

how does the role of the judge restrict equality?

A
  • whilst j & m = imp jud off = subj to pers bias & may uncon discrim against certain part & pers charact lim equ
126
Q

lesson seven (34)

how does the role of the judge promote access?

A
  • j & m case mana pwers = sett lim for evid & ordering med –> mini $ of civ disp –> enhance acc
127
Q

lesson seven (34)

how is access limited by the role of the judge?

A
  • acc hearing / trial by m / j = chall b/c assoc high $ & time consuming nat of proceedings –> courts & experties of jud off = inacc
128
Q

lesson seven (34)

what are the similarties between judges in civil & criminal trials?

A
  • conduct w/o bias
  • ensure rulings & evidence & proce =applied
  • answer further qs about leg terms for jury
  • det whether case resolved prior to court trial = comm / med
  • adhere to strict rules of evid & pro
  • det & dec admiss of evid / docu
129
Q

lesson seven (34)

what is unique to the role of judges in criminal law?

A
  • mag will det prima facie = x same j for indict trial
  • j plays less active role in cas mana = x order pre-trial proc other than comm b/c pros = leg exp / exp to gather & present case
130
Q

lesson seven (34)

what is unique to the role of judges in civil law?

A
  • order med to resolve thier disputes pre & during trial
  • take opp to assist & provide guidance to unrep parties
  • the same judge will case manage
  • determine liability & remedies awarded
131
Q

lesson seven (34)

define party control

A
  • the power to determine the course of proceedings by parties
132
Q

lesson seven (34)

how does the plaintiff’s role enact party control?

A
  • choosing which court to bring their claim (dep on amount claimed)
  • choosing what evidence to present
  • the choice of witnesses to use
  • what defences they will raise
  • must comply w/ the rules of evidence & procedure
  • disclosing infor to the def
133
Q

lessen seven (34)

what is the plaintiff’s role & responsibility when disclosing information to the defendant?

A
  • respon of parties to ensure all rele doc are presented to courts as per the Civil Procedure Act 2010 (Vic)
  • plain = phys injuries –> medical rec / text / emails / photographs
  • parties role to discover docu cont thr trial
134
Q

lesson seven (34)

plaintiffs role of presenting evidence

A
  • must pres all evid to j thr trial along w/ jury if req
  • lay evid
  • expert evid
135
Q

lesson seven (34)

what is lay evidence?

A
  • evi given by ordin person about what happened or what they saw
  • X give evid about their opinon / expertise on the matter
  • e.g. someone who saw the plain. fall occur
136
Q

lesson seven (34)

what is expert evidence?

A
  • given by people w/ a prof opinon about an issue in the case
  • may have expertise in the field of med / fin / psych
137
Q

lesson seven

how does the plaintiff participate in the trial?

A
  • making opening & closing addresses
  • pres case to the j & j –> wit used –> barr ask qs thr exam in chief
  • cross exam of other side’s wit in hope of challenging cred or iden holes or weak in evid
138
Q

lesson seven (34)

what are the roles of the plaintiff?

A
  • party control
  • disclosing information to the defendant
  • presenting evidence
  • participating in the trial
139
Q

lesson seven (34)

define counterclaim

A
  • a sep claim made by the def in response to the plain’s claim & usually heard at the same time
140
Q

lesson seven (34)

what is the role of the defendant in regards to party control?

A

def has party control over how they wish to present their side of the case
–>
- raise rele evid
- call on their own wit
- def = x oblig to pres def if they believe the plain has x sufficiently proven their case on balance of prob

141
Q

lesson seven (34)

what is the role of the defendant?

A
  • party control
  • disclosing evidence
  • present defences through out the trial & to jury if selected
142
Q

lesson seven (34)

what is the role of the defendant when disclosing evidence?

A
  • def has duty to ensure all rele docu are presented to the court as per the Civil Procedures Act 2010 (sim to plain)
143
Q

lesson seven (34)

hwow does the role of the parties uphold fairness?

A
  • parties to a civl disp have ctrl of their own case & = resp for dec what facts to pres & how to pres them
  • –> t/f p.c contrib to f b/c part = part in & have ctrl over the civ court proc
144
Q

lesson seven (34)

how does the role of the parties hinder fairness?

A
  • self rep parties may x understand who doc = rele –> t/f fail to disclose all rele evid to court –> jeop f outcome to case where x all evid = assessed
  • self rep parties may stru to undst how to pres leg arg & evid in best possible light –> unf outcome
145
Q

lesson seven (34)

how does the role of the partie achieve equality?

A
  • bp given = opp to pres their case to court
  • bp must abide by court processes & procedures –> bp treated the same before the law
146
Q

lesson seven (34)

how is equality not upheld within the role of the parties?

A
  • x all part = equipped to pres their case to a j & j w/o assis of leg pract –> t/f some part ( low socio status) = x able to def themselves effectively b/c expense of leg rep
147
Q

lesson seven (34)

how is access promoted by the role of the parties?

A
  • courts prov some gen guidance to part who are rep themselves reg court procedures –> allow better engage w. just sys & its processes on an inf bas –> enhance acc
148
Q

lesson seven (34)

how does the role of the parties impede access?

A
  • instit = VLA = often unable to supp parties in civ disp –> leaving def w/o leg rep –> parties w/o leg rep = strug to undst rights / how to pres argu & evid –> lim
149
Q

lesson seven (34)

what is unique about the role of parties in criminal law?

A
  • x oblig for acc in pre-trial –> incr flex in p.c
  • prosec must prep for committ
  • prosec must discl evid & facts to acc
  • prosec rep state
  • enter into plea
150
Q

lesson seven (34)

what is unqiue about the role of parties in civil law?

A
  • many opp to choose methods to resol disp (ADRs / courts / neg)
  • plaint bears the burden
  • expect that parties engag in o.of.c attempts to resol disp
  • b/c limit iin VLA self rep = incr guid & assis from j
151
Q

lesson seven (34)

what are the similarties between the role of parties within criminal & civil law?

A
  • party control
  • pres / org / prep evid
152
Q

lesson eight (35)

how are juries used in civil cases?

A
  • jury = x guaranteed right for part
  • req to det liab & aw rem
  • 6 jurors
  • x common (2022-2023 = 11 civ / 42 crim sc)
  • party must seek approval to have jury used in civ matt & must be able to fund $
153
Q

lesson eight (35)

what is the cost of a jury in the county court?

A
  • 1st day = $1,626
  • subsequent days = $303.60
154
Q

lesson eight (35)

what are the main roles of a jury?

A
  • remain objective
  • listen to evid, j’s directions & submissions made by leg reps
  • det liability
155
Q

lesson eight (35)

what does it mean for the jury to remain objective?

A
  • should be indep & unbiased throut prroceedings & when set verdict
  • jurors = believe x rem imp = excused during empan
156
Q

lesson eight (35)

explain the juries role of listening to evidence, judges directions & submissions made by legal reps

A
  • must listen to all evid pres at trial to ensure verdict reached = based on rele evid & facts
  • jurors = notes & keep track of info throut trial through listening to direct given by j & explan of key concepts
157
Q

lesson eight (35)

how does the jury determine liability?

A
  • det whether deff = resp for plain’s loss / harm = based on whether plain = satisf their burden & met standard - bal of prob
  • unan or 5/6
  • jurours = x req reasons for verdict
  • other than def –> j = contrib calcu dam
158
Q

lesson eight (35)

how do juries help uphold fairness?

A
  • a randomised cross-section of the comm. used determine verdict –> parties to a civ disp = feel their case = decided by their peers & according to div range of views
  • juries = x seek addit info about case beyond courtroom & = instruc to disreg any prior knowl of disp. –> incr f b/c enc juries = impar.
159
Q

lesson eight (35)

how does the role of the juries impede fairness?

A
  • making dec in leg cases = complx task & undertaken by ppl w/ x leg training –> incr risk of unf verdict
  • jurors = x req to prov rationale of verdict –> x guara law = correctly appl based on facts pres
160
Q

lesson eight (35)

how does the juries role promote equality?

A
  • bp = cap to req j trial in civ disp reg of personal charact
161
Q

lesson eight (35)

how do juries limit equality?

A
  • party = wish have a j trial h/w = unable to bear $ –> lim eq b/c those = low socio stat = less likely to utili civ j trial
  • indivi = inel / disq from j –> parties x feel j = true cross sect of comm –> underm eq to trial of 1’s peers
162
Q

lesson eight (35)

how do juries uphold access?

A
  • presence j –> incr use of plain eng inst of leg jargon –> ens j undst courts proc & evid asked to make dec on –> allows bp undst the processes being used to det their case –> incr inf bas
163
Q

lesson eight (35)

how do juries restrict the principle of justice?

A
  • add fees req –> x fin viable for some part to req j –> fin constraints makes trial by j = inaccess
  • acc to eff disp reso = delay by j b/c ext time req = empan j & expl key concepts / evid
  • j –> mistr b/c j miscond –> req retrial & incr delay achiev just –> hind eff & timely acc to just
164
Q

lesson eight (35)

what are the variety of reasons to why legal representatives are needed in civil matters?

A
  • civ just sys = compx & diff navig b/c meth & proc (pleadings / discov / med) inv in resol in civ claim
  • parties want to rely on expert & experi of skilled leg rep to rec best rem poss
  • party = too emot invest in case to make object dec about how to argue / pres their case
  • part = need assist ident & coll rele evid = rep / bank statements / emails / video rec / transcripts to asst prep of case
165
Q

lesson eight (35)

who can the legal representatives in civil matter be divided into?

A
  • solicitors
  • barristers
166
Q

lesson eight (35)

who are solicitors?

A
  • trained lawyer in civ matters
  • p & def may initi see if believe they have cliam/def claim
  • gen assist clients w/ d-to-d leg matt & concerns
167
Q

lesson eight (35)

what can a solicitor do?

A
  • prov adv to clients about likli of succ on leg matt
  • ident fact to consid before initi claim ($ / time / lim of actions)
  • prep leg docu for triial (writ)
  • comm w/ other party’s leg rep
  • res rele law
  • eng the rele serv of a barr to rep client in court
168
Q

lesson eight (35)

who are barristers?

A
  • self-emply lawyers who reg appear in court & resp for rep a party during trial
169
Q

lesson eight (35)

how do legal representatives represent a party during trial?

A
  • making leg arg
  • qing of wit
  • pres evid
  • summ the case for the j & j
  • once case = over –> ensu that leg binding agreem may be formed / lawy ensu agree = binding bp & agree = x unf on client
170
Q

lesson eight (35)

what factors need to all apply for a defendant to receive assistance from VLA?

A
  • the claim more than $5000
  • def’s sole home is at immediate risk in the action
  • strong prospect that the def can def the action
171
Q

lesson eight (35)

when may VLA grant legal assistance to the plaintiff?

A
  • when the plaintiff is in a civil dispute to which their claim is $5000 or more
172
Q

lesson eight (35)

what is an example of a CLC in civil matters?

A
  • Disabil Discrim Leg Serv in melb assists ppl w/ dis discrim matters

year 12 legal studies (9 decks)

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