EXAM CRAM

Question 1

Legislative Assembly:

Answer 1

• Victorian government (state level).

* Includes 88 members/seats.

Question 2

Legislative Council:

Answer 2

• Victorian government (state level).

* Includes 40 members/seats.

Question 3

Roles of the Crown:

Answer 3

Providing Royal Assent to Bills- The primary function of the Crown is to grant royal assent to bills that have passed both houses. Giving royal assent means that the GG or G signs the bill on behalf of the Queen, which must take place for the bill to become and Act of Parliament. S58 of the Australian Constitution gives the GG or G the authority to give royal assent.
• Executive Council- The GG is a member of the federal executive council. (GG,PM and Senior Ministers). The GG performs roles on the advice of the PM. Eg drafting laws through delegated legislation. This involves rules regarding the operation of the government bodies and statutory interpretation. The GG role is a supervisory role on the executive council.
• Reserve Powers- These are not listed in the constitution but convention. Reserve powers include the power to appoint a PM in the case of a hung parliament, power to dismiss a PM who has lost the confidence of the parliament and is acting unlawfully.

Question 4

Reasons for Laws to be changed (Access to Law):

Answer 4

As people become better educated about the law and their rights, they are more likely to want to seek justice if they believe they have had their rights infringed. To take a matter to court is expensive and intimidating. To assist people in their efforts to seek a just resolution to disputes that arise, the law has been changed to provide alternative avenues of dispute resolution such as the Victorian Civil and Administrative Tribunal (VCAT) 1998. This is a cost-effective, time efficient, and specialised way to resolve disputes.

Question 5

Reasons for Laws to be changed (Changes in values and attitudes)

Answer 5

If a law is not accepted by the community it could lead to more and more people being willing to disobey the law. In order for the law to remain acceptable it must change to keep up with these changing values. Public Health and Wellbeing Amendment (Safe Access Zones) Act 2015 (VIC) - This act establishes safe access zones of 150 meters around clinics at which abortions are provided. This is to ‘protect the safety and wellbeing and respect the privacy and dignity of people accessing those services as well as employees and others who enter the premises.

Question 6

Reasons for laws to be changed (Protection of the community):

Answer 6

Laws are needed to make unlawful those actions that may harm the community or individual members of the community. Public Health and Wellbeing Amendment Act (No Jab, No Play) Act 2015 (VIC) - This act amends the Public Wellbeing Act 2008 to increase immunisation rates for young children in the community.

Question 7

Formal Pressures for changes in the law come

Answer 7

from within the formal structures of the law-making process and include:
• The Cabinet, which is responsible for deciding what changes in the law should take place.
• Government departments, which decide what changes in the law are required in their area.
• Law reform bodies, which are responsible for investigating the need for changes in the law as
need arise.
Examples include the VLRC, Vic Roads & Ministers.

Question 8

Informal pressures come

Answer 8

from individuals or groups who are not connected with the law-making process and cannot be instrumental changing the law, but who can try to influence the law-makers to change the law. Examples include individuals, political parties, pressure groups and trade unions.

Question 9

Legislative Process:

Answer 9

1. Introduction and first reading – the bill is first introduced to the house.
2. Second reading – the purpose of the bill is explained, debated and voted on.
3. Third reading – the Bill is voted on the final form as well as being considered in detail.
4. The same procedure occurs in the second house (usually upper, after it has occurred in the lower house).
5. Royal assent – the governor-general or the governor signs the Bill.
6. Proclamation – The act comes into operation.
7. The bill then becomes law.

Question 10

A petition is a

Answer 10

formal, written request to the government for action in relation to a particular law that is considered outdated or unjust. It usually has a collection of signatures on it, which have been gathered from supporters. The principal petitioner is the person who initiates, sponsors or organises a petition.

Question 11

Demonstrates are held to alert

Answer 11

the government to the need for a change in the law. For these to be successful, a large group of people must show their support for the change in the law and attend the demonstration. Demonstrations and protests can take different forms, but they all aim to bring an issue to the attention of the community and the lawmakers with the objective of influencing a change in the law.

Question 12

The VLRC is an

Answer 12

n independent (of the political process), government- funded organisation that develops, reviews and recommends reform of Victoria’s state laws.

Question 13

Role of the VLRC:

Answer 13

• Has the ability to make recommendations for law reform on matters referred to them by the state Attorney General, Martin Pakula. This includes conducting research, consulting with the community and reporting on their work.
• The VLRC can make recommendations on minor legal issues of general community concern, which have not been referred to them by the state Attorney General.
• It has the ability to suggest to the state Attorney General to refer a law to the VLRC that may be in need of investigation and change.
• It can educate the community on areas of law relevant to the work of the VLRC. They work with groups in the community to ensure that changes in the law are effective.

Question 14

Specific powers are

Answer 14

all powers set out in the constitution regarding the Commonwealth Parliament. The purpose of these powers is to ‘make laws for the peace, order and good government of the Commonwealth’. Most of these powers are set out in section 51 (known as the 40 heads of power).
E.g. S.51 (xii) – Currency, coinage and legal tender.

Question 15

Exclusive powers are

Answer 15

law-making powers contained in the Constitution over which only the Commonwealth Parliament can legislate and state parliaments cannot. Some of specific powers listed in 51 of the Constitution are exclusive to the Commonwealth Parliament. Some exclusive powers are made exclusive by other sections in the Constitution; for example, section 51 gives the Commonwealth the power to make laws regarding coinage + currency and section 115 prohibits the states from coining money.

Question 16

Concurrent powers are the

Answer 16

law-making powers listed in the Constitution that can be exercised by both the Commonwealth and the states. Many of the specific powers given to the Commonwealth Parliament in section 51 of the constitution are concurrent powers. All powers listed in the Constitution and not exclusive powers, are concurrent powers. For example, taxation powers are given to the Commonwealth however state parliaments can also levy taxes. E.g. Trade, Tax, Marriage.

Question 17

Residual powers are those

Answer 17

law making powers that are not listed in the Constitution and are therefore left with the states at the time of Federation. The constitutional guarantees that the states shall continue to have control over these matters. E.g. Law enforcement and Public transport.

Question 18

Section 109 of the Constitution provides a

Answer 18

mechanism to resolve conflict and inconsistencies between state and Commonwealth laws that can sometimes arise in the area of concurrent powers. Section 109 of the Constitution states that if there is a conflict between state and Commonwealth laws in an area of concurrent law-making power, the Commonwealth will prevail, to the extent of the inconsistency between the two pieces of legislation.

Question 19

Restriction imposed by the Constitution on the Commonwealth:

Answer 19

• The Commonwealth does not have the power to legislate where the states have residual power e.g. differing road rules throughout the country.
• Some sections of the Commonwealth Constitution specifically restrict the Commonwealth from legislating in certain areas e.g. s116 conceding freedom of religion.
• The Constitution also limits Commonwealth power through s.128 which states that if the Constitution is to be changed, then that change must be put to a referendum.

Question 20

Restriction imposed by the Constitution on the State:

Answer 20

• If the Commonwealth has been given exclusive power in a certain area, then the states cannot legislate. E.g. The Constitution specifically forbids the states from making laws to do with defence or currency.
• Section 109 does not outline specific restrictions on states, however it does limit the capacity of the states to make law on matters the hate already been dealt with by the Commonwealth.
• Section 115, prevents States from producing currency.

Question 21

The referendum process:

Answer 21

• Any proposed change to the Constitution must first be passed by the Commonwealth Parliament. The Bill has to be passed by both houses or one house twice after a 3-month interval, however if it does fail to pass in the end, the governor-general can still choose to submit the proposal to the people.
• The Constitution can only be changed after a successful referendum, which is a compulsory vote on a proposed change to the wording of the Commonwealth Constitution. The referendum outlining the proposed change is put to the people not less than two months, but no more than 6 months after it has been passed by the Commonwealth Parliament.
• For a referendum to be successful, it must satisfy the double majority provision. The Double Majority provision involves a majority of the popular vote in Australia, and a majority of votes in a majority of states (4/6).

Question 22

Role of the High Court:

Answer 22

• To give meaning to the words in the Constitution and apply the Constitution to everyday situations: When a case is brought to the High Court, the court needs to give meaning to the words in the Constitution and apply the words to the case. The High Court must listen to the facts of the case and decide whether an Act that has been passed is unconstitutional.
• To act as a guardian of the Constitution: It does this by influencing the day-to-day applications of the Constitution and ensuring that it remains relevant to the Australian people. The High Court interprets the words of the Constitution and gives meaning to them.
• To keep the Constitution up to date: The need for the High Court to interpret words within the Constitution arises from changes that occur in society, such as changes in attitude, changes in technology and changes in community standards.

Question 23

Referral of powers involves

Answer 23

the states agreeing to hand over an area of power to the Commonwealth, such as terrorist acts inside Australia. The impact of the referral of powers is that there is a change in the division of powers between the states and the Commonwealth in favour of the Commonwealth.

Question 24

Process of Referral of Powers:

Answer 24

• The process of referral of law-making power involves the states agreeing to hand over an area of power to the Commonwealth, such as terrorist acts inside Australia. When the decision has been reached, the state parliaments pass an Act giving their law-making power to the Commonwealth.
• Commonwealth Parliament passes an Act accepting this power from each state that has referred its power.
• The power is added in practice (but not in law) to the Commonwealths specific powers, although the wording of the Constitution does not change and the power doesn’t to become a specific power. It is still a residual power, but if the referral act stays in force, the Commonwealth can legislate on it.

Question 25

Protection of Rights in Australia:

Answer 25

• Common Law (courts using precedent).
• Statue law (acts of parliament).
• Structural protection (indirect in the Constitution).
• Express rights in the Constitution.
• Implied rights in the Constitution.

Question 26

Structural protection of rights refers to

Answer 26

rights being protected in our Constitution indirectly, by the mechanisms that operate within our legal system. The Constitution provides for three types of structural protection, including representative government, responsible government and the doctrine of the separation of powers.

Question 27

Representative Government:

Answer 27

The government should represent the views of the majority and if not, they will be voted out. It is reinforced through regular elections. Representative government is established in the Constitution, which requires direct elections of the Senate and House of Representatives, this is outlined in sections 7 and 24 of the Australian constitution.

Question 28

Responsible Government:

Answer 28

This refers to the governments level of accountability to the voters. An elected government must be answerable and accountable to the people for its actions. Ministers are drawn from within government and must maintain the confidence of the government and the parliament and be accountable to them as well, as their actions are scrutinised. This is also known as executive accountability.

Question 29

Separation of Powers:

Answer 29

the powers of government can be balanced by separating the leadership of government (the executive) from both the law-making branch of government (the legislature) and the interpretation of these laws by the courts (the judiciary). By allowing these branded to operate independently they act as a check on each other’s power and ensure that none is able to dominate. Under the ‘doctrine of separation of powers’, each of these arms of government should be kept separate and the powers of each arm exercised by a different group of people.

Question 30

Express rights are

Answer 30

those rights that are explicitly mentioned and entrenched within the Constitution, meaning that they can only change as a result of a referendum. In Australia, there are 5 express rights entrenched into the Constitution.

Question 31

The 5 Express Rights are:

Answer 31

S.92 Trade within the Commonwealth shall be free
S.116 Freedom of Religion
S.80 Trial by Jury
S.51 (xxxi) Acquisition of Property under Just Terms
S.117 Discrimination on the basis of state

Question 32

S.80 Trial by Jury:

Answer 32

There must be a jury trial for indictable Commonwealth offences.
There are, however, two limitations to this; most indictable offences are crime under state laws, where s80 applies to only Commonwealth offences.
Limitations: Most criminal offences are created by state laws and not Commonwealth laws, because ‘crime’ is a residual power. Section 80 only guarantees a jury trial for criminal offences under Commonwealth legislation.

Question 33

S.116 Freedom of Religion:

Answer 33

The Commonwealth cannot pass laws that establishes a state religion, impose any religious observance, prohibits the free exercise and practise of any religion, requires a religious test as a requirement for holding any Commonwealth office.

Question 34

Implied Rights are

Answer 34

rights that are intended in the words of the Constitution. The High Court, in the process of deliberating on a case, may determine that a right exists. The High Court therefore can expand the rights that we have. The High Court, when determining an implied right exists, does not change the words of the Constitution.
• There is only 1 Implied Right, being ‘Freedom of Political Communication’.

Question 35

Stare Decisis:

Answer 35

the process of lower courts following reasons for the decision of higher courts. ‘to stand by what has been decided’.

Question 36

Binding Precedent:

Answer 36

Precedents in a superior court in the same hierarchy dealing with the same legal principles and material facts are referred to as binding precedents. When a precedent is binding on a case, the precedent must be used when making a decision.
For a precedent to be binding on a particular case, the precedent must be:
• From the same hierarchy of courts.
• From a superior court – one that is higher in the hierarchy.

Question 37

Persuasive Precedents:

Answer 37

Persuasive precedents are not binding on courts. However, because they are seen to be noteworthy and highly regarded propositions of law, some courts may consider persuasive precedents as influential on their decisions. Precedents considered to be persuasive include:
• From courts in another hierarchy, such as other states or countries.
• From courts on the same level of the hierarchy (which are not binding).
• From inferior courts in the same court hierarchy.
• Obiter Dicta contained in a judgement of a court in the same hierarchy or in another hierarchy.

Question 38

Departing from Precedent (Reversing)

Answer 38

When a case is taken on appeal to a higher court, the superior court may change the decision of the lower court, thereby reversing the earlier decision (precedent) in the same case. The new precedent created by the superior court is then the one to be followed in future cases.

Tomas Klamo was convicted of manslaughter of his four-week-old son in the Supreme Court. The child died of a brain haemorrhage. The Court of Appeal decided to uphold the appeal against the conviction and ordered that Klamo be acquitted. This therefore reversed the decision of the Supreme Court.

Question 39

Departing from Precedent (Overruling)

Answer 39

Higher Courts can choose not to follow precedents set in lower courts in earlier cases. If they do this, the ratio decidendi of the new case creates new common law, and this new precedent will replace the old principle of law that was overruled.

The High Court allowed AON’s appeal against the decision that allowed ANU to amend the original statement of claim against AON. In the process, the High Court overruled the previous 1997 decision in Queensland v. JL Holdings Pty Ltd (JL Holdings case).

Question 40

Departing from Precedent (Distinguishing)

Answer 40

The judge may decide that the legal principle contained in the precedent is not relevant to the new facts, and that they are therefore not required to follow the precedent. The Court is then able to make new common law that covers a slightly different set of facts.

The judge in the Davies v. Waldron case distinguished the case from Gillard v. Wenborn. He said it was necessary to link the intoxicated person in charge of the car with a risk that he will drive the car when in an unfit state. The case was distinguished on the difference in the facts of the two cases. The accused in Davies v. Waldron was found attempting to start the car (and was at risk of driving), whereas the accused in Gillard v. Wenborn was found asleep in the driver’s seat, with the car running, and was not at risk of driving.
The judge found that the accused in Davies v. Waldron was in charge of the motor vehicle and did start to drive the motor vehicle within the meaning of the Road Safety Act.

Question 41

Departing from Precedent (Disapproving)

Answer 41

A lower court in the court hierarchy expresses disapproval of an existing precedent set by a higher court in the hierarchy but is still bound by it. S judge could make a statement (obiter dictum) saying that they do not agree with the precedent but believe that it should be left to parliament to change the law, or to indicate to a higher court that he or she believes that the precedent needs to be reconsidered. This may prompt parliament or the courts to amend the precedent.

Mr. and Mrs. Trigwell were injured when a vehicle collided with their car after hitting two sheep. They sued the driver of the other car and the owner of the sheep for damages.
The High Court decided to follow the old common law that the landowner did not owe a duty of care for their stock straying from their land onto the highway.
The Victorian Parliament decided to follow the suggestion made by Justice Mason and passed the Wrongs (Animals Straying on Highways) Act 1984 (Vic.), which abolished the common-law immunity.

Question 42

Effects of Statutory Interpretation (Precedent may be set):

Answer 42

Precedents may be set for future cases to follow - precedents about what a particular word, phrase or section means. In future cases, the legislation and the precedent on the interpretation are read together to form the complete law.

In Brislan’s case the phrase “telegraphic, telephonic and other like services” was interpreted to include other technology such as radios. However, the state’s had to read this broader definition of ‘communications technology’ with the wording of the Constitution to determine the law regarding the Commonwealths power.

Question 43

Effects of Statutory Interpretation (Meaning is narrowed):

Answer 43

Words in legislation are given a more specific meaning, enabling a dispute by seeing whether the facts of their case fall within the meaning or outside that meaning. By the judges interpreting an Act, they are able to add meaning to the wording and subsequently decreasing the level of ambiguity present in the wording and phrasing. The courts may not physically change the wording of the Act itself, but they may interpret the wording in order to apply it to the relevant case.
For example: STUDDED BELT CASE.

Question 44

Relationship between Courts and Parliament in law-making (Parliament may abrogate and codify common law principles):

Answer 44

The Parliament may deem it necessary to abolish or repeal common law principles that have been created through the decisions made by court’s (precedents), this is known as abrogation. It may do this for multiple reasons, including the judge’s decision being unrepresentative of the people’s values or the parliament simply disagreeing with the precedent set. For example, it may be argued that John Howard’s 10-point plan is a form of abrogation, as it disagreed with some decisions bade by the judges in the High Court.

In addition to this, the Parliament may decide to codify a common law principle into a piece of Statute law in order to make the decision binding upon everyone in society. For example, the Native Title Act 1993 was passed in order to include the decisions made by the High Courts in the Mabo case and established and protected Native Title for Aboriginal Australians.

Question 45

Relationship between Courts and Parliament in law-making (Courts apply and interpret law):

Answer 45

For legislation to be effective, the courts must be able to apply the statutes to the cases before them, in order to make a decision on a case. For this to happen, the court may have to interpret the wording and meaning of an Act in order to properly apply the piece of legislation to the appropriate case.

Decisions made (ration decidendi) by the meanings of the words in statutes form precedents that become part of the law to be followed in future cases of similar material facts. For example, the interpretation of the words ‘external affairs’ by the High Court in the Tasmanian Dam case set by a precedent to be followed in the future.

Question 46

Reasons for a court hierarchy (Appeals):

Answer 46

A hierarchy allows a person to appeal a case if they believe mistake has been made during their case. Appeals allow a party the opportunity to have an error corrected by a more experience judge, which would not happen in ‘flat’ system as no judge would have the authority to override another judge’s decision.

Question 47

Reasons for a court hierarchy (Specialisation):

Answer 47

Each court has its own jurisdiction and hears the same types of disputes each day, each court can develop expertise in the relevant law and procedure. Personnel within the court also develop expertise in the areas of law that the court deals with, creating better and more efficient outcomes for participants.

Question 48

Reasons for a court hierarchy (Doctrine of Precedent):

Answer 48

Precedent is the way in which courts make binding law, as courts lower in a hierarchy must follow 4the decisions of courts higher in the hierarchy in cases where the material facts are similar. This creates certainty and consistency for parties bringing a dispute to court in a way that a more horizontal system would not, as no court would have the authority to make binding precedent for another.

Question 49

Arbitration is a method of resolving disputes in which an

Answer 49

ndependent arbitrator will listen to both sides, and make a binding decision. Its aim is to find out which party is more in the right than the other. More informal than a court case, yet some rules of evidence apply. The role of the arbitrator is the make suggestions to help settle dispute, if not possible they settle the dispute.

Question 50

Judicial Determination is a dispute resolution process whereby

Answer 50

parties present evidence and submit arguments to a judicial officer (judge, magistrate, or president/vice president of VCAT) who then makes a binding decision. It involves strict rules of evidence an procedure and the role is to listen to evidence and decide which party is more in the right, and to determine who should win the case.

Question 51

VCAT’s purpose is to

Answer 51

provide Victorians with a low cost, accessible, efficient and independent tribunal delivering high quality dispute resolution. The Victorian Civil and Administrative Tribunal is a legal body consisting of numerous specialist lists that each resolve particular types of civil disputes.

Question 52

Bail is when the accused is

Answer 52

released from custody after being charged on condition that they appear in court at a later date. The main aim of bail is to allow the accused person the opportunity to prepare a case, outside of custody, and until the hearing or trial, as a person must be presumed innocent until proven guilty.

Question 53

A surety is another

Answer 53

person over the age of 18 who is prepared to guarantee the accused person
will attend court. For example, in the Tony Mokbel case, his sister-in-law acted as his surety and put up $1 million as a form of guarantee of Mokbel’s appearance in court. However, he escaped to Greece, and his sister-in-law was forced to pay $1 million or sentenced to 2 years in jail.

Question 54

The conditions of bail include:

Answer 54

Ø A promise of appearance in court on a later date.
Ø Provide a surety, who will guarantee the attendance.
Ø Reporting to a police station (on a regular bases).
Ø A curfew.

Question 55

Considerations when granting bail:

Answer 55

Ø Charged with murder or treason. Although bail may be given in an exceptional case.
Ø Charged with drug trafficking under the Drugs, Poisons and Controlled Substances Act 1981 (Vic) or the Customs Act 1901 (Cth). Although in exceptional circumstances, bail
may be given.
Ø Pose an unacceptable risk to society or is likely to: abscond, commit an offence whilst on
bail, endanger the safety or welfare of members of public, or interfere with witnesses or
evidence.
Ø The accused’s personal situation may also be taken into account. This may include such
things as children, caring for elderly and other responsibilities.

Question 56

Remand is when someone is refused

Answer 56

bail they be held on remand until the case comes to trial, or until bail is granted in the future. The aim is to protect the community against the actions of an accused person. This is achieved, as they are protected from possible recidivism or re-offenders of inflicting any further harm to society, and the law-abiding citizens.

Question 57

Committal hearings are heard in the Magistrates Court which aims to

Answer 57

determine if the case against the accused has sufficient weight to justify the trial. Otherwise
known as Prime Facie case. A hand-up brief committal hearing is essentially when the ‘hand-up brief’, which includes all forms of
evidence to be used in the trial, is handed to the Magistrate to determine if there is sufficient evidence and if it will proceed to trial.

Question 58

Committal mention hearing is when the court may determine

Answer 58

whether the matter should be heard summarily. Possibility of cross-examination of witnesses, and give oral evidence. If this application for cross-
examination is not successful, the matter will proceed using the hand-up brief. In this stage, the Court may ask the accused how they will plea. If guilty, and there is sufficient
evidence to support the conviction, the accused will be sent for sentencing.

Question 59

A fine is a

Answer 59

monetary penalty paid by the offended to the court.
• Under the Sentencing Act, fines are calculated in ‘penalty units’, with one penalty unit being equal
to $155.46.
• This enables the government to increase all fines by increasing the value of a penalty unit
without changing all the relevant Acts.
• If a fine is not paid the offender can be imprisoned or ordered to do community work.

Question 60

Imprisonment is when an offender

Answer 60

is detained in jail for a period of time, called a ‘sentence’. They lose their sense of liberty and other freedoms.
• This is considered the most serious sanction, as it mainly used as a ‘sanction of last resort’.

Question 61

A Community Correction Order is a

Answer 61

supervised sentence served in the community and includes special conditions such as treatment and unpaid community work of a specified number of hours.
• A CCO can be imposed for up to 2 years in the Magistrate’s Court, and for between 2 years and the statutory maximum term of imprisonment for that offence in the County or Supreme Court.
• Its purpose is to provide an order that fits the offence or circumstances of the offender in order
to address those problems.
• The penalty for contravening a CCO is 3 months’ jail or a fine up to 20 penalty units.

Question 62

Pleadings are a

Answer 62

series of documents exchanged between the parties. They set out and clarify the slain and the defences of the parties and help to define the issues that are being disputed.

Question 63

Purpose of Pleadings:

Answer 63

• Ensure that each party is aware of the specific claims made by the other side.
• Ensure that each party is aware of the way in which the other side sees the facts of the case.
• Give the court a written record of the details and progress of a case.
• Speed up resolution by encouraging agreement or as many issues as possible before trial.
• Encourage efficient preparation by imposing time limits on each document exchange and filing.

Question 64

Discovery is the

Answer 64

the compulsory disclosure, by one party to an action to another, of relevant testimony or documents.

Question 65

Purpose of Discovery:

Answer 65

• Assisting the parties to prepare for the trial by allowing them to see the evidence that will be brought against them.
• Encouraging parties to agree on as many issues as possible and narrow matters in dispute by allowing them to see evidence they may not already have.
• Providing the court with a record of all the evidence to be brought in the case, by requiring that affidavits be filed with the court.
• Encouraging the party with the weaker case to settle before trial.

Question 66

Interrogatories:

Answer 66

Both parties have the right to request more information from the other or to ask further questions to gain a better understanding of the facts that might be useful in evidence. This occurs in writing and is known as interrogatories. Interrogatories aims to deal with certain matters before court and also reduce the element of surprise at court.

Question 67

Recent changes to Discovery:

Answer 67

The Justice Legislation Amendment (Discovery, Disclosure and Other Matters) Act 2014 (Vic) was given Royal Asset on 8 April 2014, and amends the Civil Procedure Act 2010 (Vic) (the “CPA”). The amendments mainly concern document management in the discovery process.

The amending legislation does the following to the CPA:
• It gives a court power to order parties to prepare a statement of issues, which may be used for many purposes including discovery.
• It gives a court power to give directions limiting the obligation of discovery to a class or classes of documents or to documents relating to one or more specified facts or issues in dispute.
• It gives a court power to order a party to pay a specified amount to another party in relation to the costs of discovery, including by way of payment in advance or as costs in the proceeding

Question 68

Directions hearings are

Answer 68

rief hearings before a judge or an associate judge, and is a chance for the judge or the associate judge to discuss with the parties the progress of the case and give ‘directions’ to the parties.

Question 69

The court could direct that the parties to:

Answer 69

• Disclose a particular class of documents by a certain date, particularly where there has been a dispute between the parties about the relevance of those documents.
• Exchange written submissions.
• Organise and attend mediation.

Question 70

Purpose of Directions Hearing:

Answer 70

• Give directions in the proceedings to ensure an effective, complete, prompt and efficient determination of the case.
• Set a timetable for future steps in the pre-trial proceedings so that the matter can progress towards trial.
• Hear any applications made by the parties before going to trial, such as applications regarding discovery or pleadings.

Question 71

Compensatory damages (Specific damages):

Answer 71

Awarded to compensate the plaintiff for items that can be calculated objectively and exactly e.g. loss of wages, medical expenses and hospital expenses.

Question 72

Compensatory damages (General damages):

Answer 72

Awarded to compensate the plaintiff for pain and suffering. These cannot be calculated objectively because they include consideration of the extent of the plaintiff’s emotional suffering and loss of enjoyment of life. The plaintiff’s counsel may estimate the amount that would be suitable. The defendant’s counsel may also make submissions about the appropriate amount.

Question 73

Compensatory damages (Aggravated damages):

Answer 73

Awarded to compensate the plaintiff further if the court believes that the defendant’s conduct injured the plaintiff’s feelings by causing humiliation and insult.

Question 74

Nominal Damages:

Answer 74

Nominal damages are awarded by a court if the court believes that the defendant has infringed the rights of the plaintiff, but the plaintiff did not suffer any actual loss. The court therefore awards a very small amount as compensation. This may occur in a defamation case, where it may be shown that what was said was untrue and there was damage to the reputation of the plaintiff, but the damage was very little.

Question 75

Exemplary damages:

Answer 75

Exemplary damages, sometimes known as punitive damages, are the only example in civil law of a court seeking to punish a defendant and denounce an action. Exemplary damages may be awarded if the defendant’s action was so negligent that the court wishes to deter others from similar action and to show disapproval of the defendant’s action.

Question 76

Restrictive Injunctions:

Answer 76

An injunction stopping someone from doing something, for example, a person could apply for a restrictive injunction to stop a building being destroyed if it were in the interests of the nation to preserve.

Question 77

Mandatory Injunction:

Answer 77

Sought when a person wishes to compel someone to do a particular act, for example to remove something from their land.

Question 78

An order of specific performance

Answer 78

is an order directing someone to complete a contract. This type of civil remedy is normally used in disputes relating to contracts for the sale of land.

Question 79

Rescission order is an order

Answer 79

terminating a contract. Both parties are returned to the position thy were in prior to the contract being signed.

Question 80

Restitution order is an order

Answer 80

in which the court orders the defendant to return goods belonging to the plaintiff.

Question 81

Empanelling a jury:

Answer 81

1. The Juries commissioner advises the Electoral Commission of the number of jurors needed. Names are randomly selected from the electoral roll.
2. Potential jurors are sent a Notice of Jury Selection questionnaire to determine their eligibility, this must be returned within 14 days.
3. Once the questionnaires are returned, potential jurors are classified as one of the following: Disqualified, Excused, Ineligible, Eligible

Question 82

Disqualified:

Answer 82

Past behaviour makes a person inappropriate to sit on a jury. This may be due to a previous criminal record or being bankrupt.

Question 83

Excused:

Answer 83

Jury services would cause unnecessary hardship. The juror either has a right to be excused or must request permission to be excused. Examples of a right includes living more than 50km from the court, being of advanced age. Examples of a request includes being a sole carer of another individual.

Question 84

Ineligible:

Answer 84

Due to the potential juror’s work or personal characteristics making them unable to hear a case fairly. Examples of professions include working as a judge or police officer. Examples of personal characteristics include being blind/deaf or unable to understand English.

Question 85

Simplifying Jury Directions:

Answer 85

After presentation of cases, directions are when the judge instructs the jury, summaries the cases, clarifies the issues involved in cross-examination and points of law.

• It was found that instructions were previously too complex, voluminous and unclear leading to appeals/retrials. (14/18 in 2010)
• The Juries Directions Act 2015 (VIC):
Ø Trial judge can shorten and simplify instructions.
Ø Avoid complex technical language.
Ø Only give directions containing as much or the relevant law as the jury is
required to know including by giving ‘integrated directions’.