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LEGAL UNIT 3 AND 4 > CIVIL LAW-2B > Flashcards

CIVIL LAW-2B Flashcards

1
Q

Define judge

A

the judge is an impartial independent party that ensures court procedures are followed and parties are treated fairly. the judge must ensure that the principles of justice are upheld

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2
Q

What are the responsibilities of the judge?

A
  • deciding the admissibility of evidence
  • attending to jury matters
  • determining liability and a remedy
  • deciding on who will bear the costs of the trial
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3
Q

Define case management

A

a method used by courts and tribunals
to control the progress of legal cases more effectively and efficiently. Case management generally involves the person presiding over the case (e.g. the judge) making orders and directions in the proceeding

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4
Q

Explain the role of the judge in deciding the admissibility of evidence

A

Similar to in criminal trials the judge determines what evidence is permitted under the rules, and if not deemed admissible the judge can choose to exclude evidence form the trial.

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5
Q

Explain the role of the judge in attending jury matters

A

If one of the parties have chosen to have a jury, the judge is responsible for guiding the jury through trial.The judge would give jury directions and sum up the case at conclusion of trial

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6
Q

Explain the role of the judge in determining liability and remedy

A

if there is no jury the judge is responsible for deciding whether the plaintiff has established their case against the defendant and if there should be a remedy. Will be delivered along with written reasons for the decisions known as judgements

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7
Q

Explain the role of the judge in deciding who will bear the costs of the trial

A

The judge will decide who will bear the costs after hearing the civil case. generally this step is left till the end of the trial., usually the winning party is entitled to costs

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8
Q

What are the responsibilities o the jury ?

A
  • be objective
  • listen and remember the evidence
  • understand directions and summing up by judge
  • decide on liability
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9
Q

Explain the role of the jury in being objective

A

the jury must be unbiased and bring an open mind to the tasks by putting aside any previous prejudice. each juror must not have a connection with any of the parties

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10
Q

Explain the role of the jury in listening and remembering evidence

A

jurors can take notes if it helps them remember information, but they must make sure they still concentrate on whats taking place in the courtroom. a juror must not undertake their own investigations on what happened

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11
Q

Explain the role of the jury in understanding directions and summing up by judge

A

during the trial the judge will give directions to the jury about issues or points of law, and will sum up the case at the end. the jury must listen carefully

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12
Q

Explain the role of the jury in deciding on liability

A

the jury must decide who or what to believe, and whether the plaintiff has established their case on the balance of probabilities. jury must try to reach a unanimous verdict

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13
Q

Define party control

A

In the victorian justice system each party controls their own case. Parties have complete control over decisions about how the case will be run as long as the rules of evidence and procedure are followed.

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14
Q

What are the responsibilities of the parties in a civil trial?

A
  • Make opening and closing address
  • present their case to judge or jury
  • comply with overarching obligations
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15
Q

Explain the role of the parties in making an opening and closing address

A

both parties will need to give an opening and closing address, which will outlines and summarise the case for both parties. generally the plaintiff will present their case first and then the defendant. however the judge can dictate this

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16
Q

Explain the role of parties in presenting the case to a judge or jury

A

most of the rial is taken up with presenting their case though lay witnesses and expert witnesses.

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17
Q

Explain parties in complying with overarching obligations

A

There are 10 overarching obligations under the civil procedure act the parties must follow.

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18
Q

What are the 10 overarching obligations

A
  • act honestly
  • only take steps to resolve or determine matters
  • cooperate
  • dont mislead or deceive
  • use reasonable endeavours
  • narrow the issue in dispute
  • ensure costs are reasonable and appropriate
  • minimise delay
  • discoles existence of critical evidence
  • only make claims with proper basis
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19
Q

What are legal practitioners?

A

legal practitioners are experts who are familiar with civil trials and undertake the role of preparing and conducting a case on behalf of a party. they must ensure the rule of law is applied equally and fairly

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20
Q

What are the responsibilities of legal practitioners in a civil trial?

A
  • make opening and closing address
  • present the case to judge to judge and jury
  • comply with the overarching obligations
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21
Q

Describe the role of legal practitioners in making an opening and closing address

A

if a party is legally represented the legal practitioner will usually present the opening and closing address. the solicitor and barrister will u usually prepare the submissions and the barrister will ordinarily present them orally

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22
Q

Describe the role of legal practitioners in presenting the case to judge or jury

A

if witnesses give evidence orally, then the barrister will ask the witness questions, either through examination in chief, cross examination or re examination. They must present their parties case in the best possible way while complying with overarching responsibilities

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23
Q

Describe the role of legal practitioners in complying with overarching obligations

A

legal practitioners are subject to the same overarching obligations as their clients. they should see their role as assisting the court un resolving the dispute

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24
Q

What power do civil courts have to order mediation?

A

the court can order parties to wither arrange private mediation or a court officer to acts as a mediator. parties can referred to mediation t any stage of proceeding or even ordered to do multiple sessions of mediation. encourages promos and economical resolution of disputes

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25
Q

What power does the court hold to give directions?

A

The civil procedure Act states that the court may give any direction or make any order it considers appropriate at any stage of proceeding. judges can therefor actively manage civil proceedings by giving directions before during and after trial . parties who don’t oblige are imposed a sanction

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26
Q

What is a direction?

A

is an instruction given by the court to one or more of the parties, which imposes an obligation on a party to do something within a set time frame or specifics of how proceedings will be conducted,

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27
Q

Examples of directions

A
  • limiting expert evidence

- placing limits on time, number of documents, examining witnesses

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28
Q

Define mediation

A

mediation is a form of alternative dispute resolution which involves an impartial and trained independent third party known as a mediator. A mediator facilitates communication and negotiation between parties , they are not allowed to provide advise or suggestions.

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29
Q

Define conciliation

A

is a form of alternative dispute resolution which involves an impartial, trained independent third party known as a conciliator. The conciliator is to listen to evidence and arguments of each side while assisting the parties on coming to their own agreement by providing advice and suggestions

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30
Q

Define arbitration

A

arbitration is an alternative dispute resolution method which involves an independent impartial, trained third party known as an arbitrator. the arbitrator is to listen to all evidence and arguments from each side before making a binding decision in favour of one party

31
Q

When is mediation and conciliation appropriate ?

A
  • a continuing relationship is required
    -the parties are willing to discuss their issues and come to a conclusion
    -
32
Q

When is mediation and conciliation not appropriate?

A
  • there is an imbalance of power
  • high levels of emotion are involved
  • there has been violent or threatening behaviour
  • one or both parties are not willing to come to an agreement
33
Q

When is arbitration appropriate?

A
  • a binding decision is needed because one or both parties are not willing to discuss openly ways to resolve dispute
  • when threatening behaviour has occurred
  • high levels of emotion
34
Q

When is arbitration not appropriate?

A
  • there is a need for continuing relationship between parties
  • when the claim is less than $10000
  • an appeal is likely in an unfavourable decision
35
Q

Define remedies

A

a term used to describe any order made bu a court designed to address a civil wrong or breach. a remedy should provide a legal solution for the plaintiff for a breach of the civil law.

36
Q

What do civil remedies ai to do?

A

to restore te plaintiff to their original position prior to the breach of rights

37
Q

What are the two main types of remedies and what are their subsections?

A
  • injunctions

- damages; compensatory, exemplary, nominal, contemptuous

38
Q

Define compensatory damages

A

are the most common form of damages sought. they aim to restore the party who’s rights have been infringed as far as possible to the position they were in before their rights were infringed by compensation them for losses suffered

39
Q

Briefly outline types of compensatory damages

A 
Specific= damages that ave a precise monetary value, can be listed
General= don not have an exact monetary value, therefor assessed by the court according to magnitude of wrong done and consequences 
Aggravated= awarded to compensate he plaintiff further is the court believes that the defendant conduct has humiliated the plaintiff further
40
Q

Define nominal damages

A

When nominal damages are awarded, a small amount of damages is paid by the way of damages. a plaintiff may be seeking to make a point about being legally in the right and to show that their rights have been infringed, but may not be seeking a large sum of compensation. They aim to uphold the plaintiffs rights without awarding substantial damages

41
Q

Define contemptuous damages

A

contemptuous damages is when a court or tribunal might feel that the plaintiff has the legal right to damages, but does not have morals right- that is they don’t deserve to be paid damages

42
Q

Define Exemplary damages

A

Exemplary damages are the only consequence of a civil actin that in some way seeks to punish the defendant for wrong doing. and deter others from acting in the asme manner. the purpose of exemplary damages is to punish, deter where conduct is malicious, violent, cruel.

43
Q

Define damages

A

damages are a monetary award that is paid by the defendant to the plaintiff with the aim of compensating the plaintiff for loss suffered. It also aims to restore the plaintiff to the position they were in before their rights were infringed.losses can be physical, financial,menatal or reputation

44
Q

Define injunctions

A

an injunction is an order made by the court that compels the defendant ti act or directs them not to act, with the aim of rectifying a situation. injections can be temporary(interlocutory) or final temporary injunctions are usually required un urgent circumstances and can be made final or dismissed at final trial

45
Q

What are cost factors that effect the civil justice system?

A
  • increased use of dispute resolution bodies
  • Legal costs
  • VCAT costs
46
Q

Describe the increased use of dispute resolution bodies

A

the availability of a range of dispute resolution methods has helped with the costs in dispute resolutions in two ways 1. the earlier a dispute is resolved the more money is saved avoid costs of pre trial procedures. 2. costs saved by resolving a matter before trial or hearing means costs saved for courts and VCAT

47
Q

How does increased use of resolution methods hep achieve justice ?

A

fairness- DRM that use skilled independent 3rd party can ensure equal opportunity for parties to present their case. also informality allows parties unfamiliar with courtroom to actively participate
Equality-3rd party operates impartially and unbiased who does not advocate
Access- cost savings allow to access a wider range of solutions without cost of trial

48
Q

Describe Legal costs

A

there are a number of costs associated with resolving a civil dispute. include legal representation, court costs, other disbursements and probability of paying parties costs

49
Q

How do legal costs decrease the principles of justice ?

A

fairness- if people do not have access to money to pay for legal costs they may be forced to settle or withdraw claim, unfair outcomes
equality- self represented or parties with less skilled legal representation can often have unequal footing in court
access- costs can prohibited a persons access to justice system as they’re often deterred or settle.

50
Q

Describe VCAT costs

A

tribunals are intended to be low costs, informal and quick in resolving disputes. they are an alternative to courts. VCAT is a super tribunal which offers parties ADR.

51
Q

How does VCAT costs enhance the principles of justice ?

A

fairness- VCAT costs remain ow for mosts claims and health cases holders pay even lower fees
equality- the three tier system tries to create equal outcomes by charging higher fees for businesses
access- low costs of greater=greater accessibility by creating alternatives to trial

52
Q

How does VCAT cost inhibit the principles of justice ?

A

fairness- many people who cannot afford to pay VCAT may have a risk of abandoning their case.
access- people have critiqued VCAt’s user payer system, claiming it restricts access to justice

53
Q

What are some recent reforms for cost factors?

A

introduction of three tier system in VCAT- 2016 VCAt has three tiers of fees, corporate, standard and health care card holders
Use of technology assisted review in Supreme Court- will assist in the discovery process, increasing efficient, cost effective and more timely process then lawyer.

54
Q

What are some suggested reforms for cost factors?

A

Greater legal aid funding- there is still a need to address longer term funding issues for legal service provides who provide legal aid. due to lack of funds less resources are available for civil law

55
Q

What are the time factors that effect the civil justice system?

A
  • VCAT waiting times
  • appeal process
  • use of case management
  • court delays
56
Q

Describe VCAT waiting times

A

VCAt intended to be a speedier and more efficient way of resolving disputes. generally it is much faster than courts at resolving disputes

57
Q

How do VCAT waiting times enhance the principles of justice?

A

fairness- the short waiting time for some disputes in VCAT can result in a fairer outcome with parties being able to recall facts in a dispute and not have to wait a significant amount of time for resolution
equality- short waiting Tims can reduce any risk of settlement occurring due to time limits
access- short waiting time improves access to justice, people are not deterred from issuing claims due to wait

58
Q

Describe appeal process

A

changes to the way appeals are handles in both the court of appeal and high court have aimed to reduce delays associated with appeals. include changes to ways appeals are heard and changes to the process used by the high court to hear special leave applications

59
Q

How does the appeal process enhance the principles of justice

A

fairness- an appeal must have real grounds to be granted leave. therefor no time is wasted if no basis
access- greater access to appeals as process is not as long if there is no grounds

60
Q

Describe the use of case management

A

method used by courts and tribunals to control the process of legal cases more efficiently and effectively

61
Q

How does the use of case management enhance the criminal justice system

A

fairness- more individualise ; courts and tribunals can adapt processes to needs of party
access- courts and tribunals ensure there is flexibility without discrimination
equality-greater access to courts and tribunals as their can be flexibility in formalities

62
Q

Describe court delays

A

court delays is the time it takes for courts to resolve disputes and are factors which increase the efficient time. court backlogs, pre-trial procedures

63
Q

How do court delays limit the principles of justice

A

fairness- delays can impact reliability of evidence, jeopardising fair outcome
equality- delays can impact more vulnerable parties who are generally unfamiliar wit litigation. can cause greater amount of stress
access-delays may force parties to settle or withdraw their claim frustrated by loss of time or unable to continue without settlement

64
Q

Recent reforms for time

A

introduction of judicial communion of Vic- a complaint to the JCV about conduct and capacity of judicial officer or member of VCAT about excessive delays can be made. encourages height standards

65
Q

Suggested reforms for time

A

improvements and increase in case management- the productivity commission has proposed that case management should be used more and improved

66
Q

What are the accessibility factors that effect the civil justice system?

A
  • barriers to communication
  • the use of representative proceedings
  • services provided in rural and remote areas
67
Q

Describe barriers to communication

A

can include anything that prevents a person from understanding information from another person or organisation. prevents a person from understanding their legal rights

68
Q

How does barriers to communication inhibit the principles of justice ?

A

fairness- people who are unable to communicate well in English may not understand their legal rights the DRM, therefor reducing their ability to present their case in best light
Equality- people who experience communication barriers may struggle to tell their side of the story. tis can make them unequal before the law
Access- a person who with little understanding of their legal tights or DRM may abandon their claim

69
Q

Describe the use of representative proceedings

A

representative proceedings are proceeding commenced by a lead plaintiff on behalf of seven or more persons who have a claim arising from similar or related circumstance

70
Q

How does the use of representative proceedings enhance the principles of justice?

A 
fairness- people with claims are able to join a class and not be subjected to personally paying costs or adverse cost orders
equality class actions are often conducted by experiences=d legal practitioners and law firms can present the case in best possible way
access- people who cannot afford to initiate their own claim are able to access justice by joining a class action
71
Q

Describe services provided in rural and remote areas

A

people living in rural and remote Vitoria often find it more difficult to access legal and dispute resolution services than people living in larger cities or areas. because services may be insufficient in those areas

72
Q

How does services provided in rural and remote areas inhibit the principles of justice?

A

fairness- decline or lack of legal services in an are impacts people being able to eek advice and assistance or legal matters therefor inhibiting a persons ability to put forward a prepared case
equality- rural and remote Victorians may not be equal before the law if have unequal access to legals services and practitioners
access- an inability to access legal services, courts and tribunals impact an individuals ability to pursue a case

73
Q

Recent reforms for accessibility factors

A

VLA online tool- VLA releases prototype of online tool which people with legal problems can use to determine whether they are eligible for legal aid and advice

74
Q

Recommendations for accessibility factors

A

expansion of information from VLA- VLA should expand its website to include web chat services and information in a wider range of languages
improving access to interpreters- orders national and indigenous Torres straight islander services across country

LEGAL UNIT 3 AND 4 (9 decks)

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