Legal End of year exam Flashcards

Question

Institutions that resolve civil disputes: tribunals

Answer 1

``` Tribunal: a dispute resolution body that resolves civil disputes and is intended to be a less costly, more informal and faster way to resolve disputes than courts. That obtains their power to resolve certain types of disputes from parliament. Parliament will pass a statue giving a tribunal the authority to hear and determine certain types of matters and applications. Tribunals develop expertise in particular types of disputes and can make decisions that are binding on the parties. Increases the community’s access to justice. Provide people with an alternative to court = more formal, costly, stressful and lengthy way of resolving disputes. Tribunals cannot hear every type of dispute, no power to hear representative proceeding= a legal proceeding in which a group of people who have a claim based on similar or related facts bring that claim to court in the name of one person (also called a class action or group proceeding) ```

Answer 2

Ombudsman: an officeholder with power to investigate and report on complaints relating to administrative action taken by government departments and other authorities. That obtains the power to hear and determine complaints through parliament. Get power by passing a statue. The role is to provide individuals and small businesses with an independent, timely and accessible dispute resolution service to resolve disputes in relation to certain agencies and industries. Provide a fair, free and independent way of handling complaints and resolving disputes. A government ombudsman, deals with disputes or complaints about government agencies. An industry ombudsman, deals with disputes between consumers and businesses in particular industries such as telecommunications, financial services, public transport, and energy and water. The power they hold is limited.

Answer 3

Complaint body: an organisation established by parliament to resolve formal grievances (i.e complaints) made by an individual about the conduct of another party. Deals with complaints about the provision of goods and services, or decisions made by certain bodies or authorities. They are intended to provide a free complaints and dispute resolution service so that ordinary Australians can access dispute resolution services. Do not hear disputes about individuals. Complaints bodies generally do not have the power to conduct a hearing or make binding decisions on the parties. Limited to offering free or low-cost dispute resolution services where the pirates agree to settle the dispute between them. Not formal procedures to resolve disputes, offer flexible services so that they are accessible to everyone. Can be online or over the phone. Can take enforcement action against individuals or companies that do not comply with certain laws.

Answer 4

Strengths: - increase access to justice by providing alternative methods of making complaints or resolving disputes other than through courts. - The cost is generally lower than taking a dispute to court. - Ombudsman and complaints bodies often resolve disputes for free, more access and availability of the civil justice system, even for those who cannot afford to take to court. - Freely available - Complaint bodies: resolve complaints and applications relatively quickly, like one month and six month from a complaint or application being made - Freely available - Without the fear of intimidation - Independent and impartial - Usually specialize in particular industry or area of law, increasing fairness in the process. - Fairness by giving parties the opportunity to present their case. Weaknesses: - People may not be aware that ombudsman and complaints bodies are available to help resolve disputes - May find it difficult to find the right service to help them, so they may not pursue their claim or complaints - Limited power to make binding decisions = therefore no certainly in whether the dispute has been finally resolved. - Not appropriate for large complex claims - Not appropriate where large sums of money are sought as compensation. - Are not available for everyone

Answer 5

Jurisdiction: the lawful authority (i.e power) of a court, tribunal or other dispute resolution body to decide legal cases. The role of victorian courts in civil disputes; the courts are the main dispute resolution body in Victoria, but is the last resort.

Answer 6

Two features to the role played by the victorian courts in resolving disputes: - Determining the liability of a party; to determine if the defendant is liable and to what extent the defendant is liable, decide off the evidence presented to the court during the trial. - Decide whether the plaintiff on the balance of probabilities has established or proven that the defendant caused the loss or harm suffered by the plaintiff. - Deciding on the remedy (if required) - Hear apples, manage the case (assist through the stages), provide specialisation and expertise in the type of dispute it is hearing. - Decides the remedy: if it is established that the defendant is liable or that the plaintiff is liable for the counterclaim, it is the role of the court to decide on the remedy. Like damages (an amount of money paid by one party to the other party)

Answer 7

There are two types of jurisdiction: original jurisdiction: the power of a court to hear a case for the first time (i.e not on appeal from a lower court) appellate jurisdiction: the power of a court to hear a case on appeal

Answer 8

Strengths: - Judges are impartial, meaning they make decisions based on fact and law, not on bias, thus helping to ensure equality and fairness in decision-making. - Specialised = ensure fairness - Encouraging people to attend mediation first, more quickly and more cheaply than having a full trial or hearing - Reduce delays - Binding decisions - Court hierarchy allows for parties to appeal a case. Weaknesses: - Courts are too expensive for many Australians = for legal representation - Formalities of the court process can result in parties feeling stressed

Answer 9

The Magistrates' Court and in appeal cases, there is no jury In the County Court and the Supreme Court, a jury is optional, if they want a jury they must request a jury trial, must also pay the fee associated with a a jury, unless it is the judge’s decision Six jurors in a civil jury in the County Court and Supreme Court Role of a civil jury - Consider facts of the case and to decide who is most likely to be in the wrong - Jury’s decision is made on the balance of probabilities - If a unanimous verdict cannot be reached, then a majority verdict of five out of six jurors will be accepted - Can required to decide on the amount of damages to be awarded - Are not required to give reason for their decision, parties will be unaware of the basis upon which the jurors made their decision. - Make decisions based on facts only = fairness and impartiality - Justice inline with community standards, rather than in line with views of small number of people

Answer 10

Strengths: - Independent and imperial - Allows the community to be involved in the legal system and in the administration of justice. - Fairness = by looking at evidence = not own personal research - Selected at random - Reflect community values Weaknesses: - Do not give reasons for their decisions, deliberation occurs behind closed doors - May have influenced by skilled lawyers or the emotional elements of a trial and although unlawful, may do their own research - A jury is expensive - Can result is delys

Answer 11

Remedy: any order made by a court that is 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 by the defendant and (as much possible) restore the plaintiff to the position they were in before they were wronged or their rights were breached.

Answer 12

Damages: an amount of money that the court (or tribunal) orders one party to pay to another party. It is the most common remedy in a civil claim. Paid by the defendant to the plaintiff and to compensate the plaintiff for losses they have suffered. - Compensatory damages: main type of damages usually sought - Special or specific damages: awarded to compensate the injured party (usually the plaintiff) for items that can be calculated objectively and exactly: loss of wages, medical expenses and hospital expenses. - General damages: are awarded to compensate the plaintiff for pain and suffering, cannot be calculated objectively because they include consideration of the extent of the plaintiff’s emotional suffering and loss of enjoyment of life. - Aggravated damages: are 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 Nominal damages: if the courts believe that the defendant has infringed the rights of the plaintiff, but the plaintiff did not suffer any actual loss. Awards a small amount of damages as compensation Exemplary damages: seeking to punish the defendant. Awarded if the defendant’s actions were so outrageous that the court wishes to deter others from similar action and to show disapproval of the defendant’s action. Contemptuous damages: might think that a plaintiff has a legal right to damages but does not have a moral right; that is, the plaintiff does not deserve to be paid damages. Small sum of damages might be awarded to show contempt of the claim that is made, while admitting the plaintiff’s legal right to make the claim.

Answer 13

Injunction: An injunction is designed to prevent a person doing harm (or further harm), or to rectify some wrong. In an attempt to restore the plaintiff to the position they were in prior to the loss or harm they suffered Restrictive injunction: stop someone from doing something Mandatory injunction: to make someone do a particular act

Answer 14

Statute law The Commonwealth, state and territory parliaments have passed Acts (legislations) to protect a wide range of rights, including passing legislation to uphold international treaties, like Victorian and other states, have passed specific human rights legislation to ensure the protection of basic human rights within their state and territory. - Most australia are protected by Commonwealth, state and territory legislation - Australian parliament have passed statues that outline and protect a broad rage of rights - The commonwealth parliament has the power to pass legislation that applies and protects of all australians Example: The right to vote, the right to freedom from discrimination, right to privacy One problem with rights being protected by legislation is that these rights are not permanently guaranteed. The Supreme law-making body, can pass legislation to change an existing right that is protected by statute law.

Answer 15

Strength: - Parliament can amend statues to incorporate further rights, particularly as socially changes - Parliament has the ability to pass laws quickly if there is need to promptly protect additional rights Weaknesses: - As the Supreme law-making body, parliament can amend statues, so rights may become limited or no longer exist - Statues do not always enable a person to be awarded any damages if their rights are breached.

Answer 16

Common Law Australian courts have enforced various rights in their judgments and precedents. These include the right to silence (the general right of an accused not be required to answer police questions or give evidence at their trial) and the right to a fair trial. Examples - The right to a fair trial - Right to freedom of movement - The right to a limited freedom of speech - The right to a legal representation (a lawyer) for a criminal trial.

Answer 17

Strengths: - Courts are independent of parliament and can establish precedent free from political pressures - Courts can make decisions to establish rights in areas where parliament has not established rights Weaknesses: - Common law rights are not always easy to define or identify (as opposed to statutory rights) - Courts must wait for a case to come before them to be able to declare the existence of rights.

Answer 18

The Australian constitution Protects a limited number of rights. The Australian Constitution guarantees five express rights of the Australian people, which are specifically written in the Constitution - Right to free interstate trade and commerce - Right to not be discriminated against - Right to receive ‘just terms’ when property is acquired by the commonwealth - Right to trial by jury for indictable - Right to a limited freedom of religion

Answer 19

The Victorian Charter of Human Rights and Responsibilities - Sets out the basic rights, freedom and responsibilities of the victorian people - The charter requires certain bodies - such as the victorian parliament, state and local government departments and organization (VicRoads, Vic Police) - and people delivering government services to act in a manner that complies with and upholds the basic human rights in the Human Rights Carter. Examples: Right to life, the right to protection from torture and cruel, inhuman or degrading treatment, freedom of thought, conscience, religion and belief, freedom of movement

Answer 20

Right: A moral or legal entitlement to have or do something A right is a basic freedom or standard that promotes and upholds the dignity of all people, and is guaranteed by a moral sense of duty or by the law. Example: the right to life, to access clean water, food and shelter, freedom of speech and religion, the right to vote, the right to fair and unbiased legal system. The five fundamental freedoms of the Australian people - Freedom of speech - Freedom of association - Freedom of assembly - Freedom of religion - Freedom of movement

Answer 21

Introducing a national charter or bill of rights - If Australia did adopt a charter or bill of rights, it is commonly agreed that it would adopt a statutory approach. This means the Commonwealth Parliament would pass an Act that sets out the basic rights of the Australian people. People argue that - It would strengthen the protection of rights - Make governments in Australia more accountable - Improve Australia's international image

Answer 22

Providing increased statutory protection for minority groups - To improve the protection of rights in Australia is to amend existing legislation to improve legal processes, government policy and the provision of services in a range of areas. This is particularly important in those areas where governments have been accused of neglected rights. - Indigenous Australians: rights that could be made to improve and respect for and rights of Indigenous Australians - Asylum seekers: to improve its treatment of asylum seekers - People accused of terror-related crimes: to ensure that commonwealth anti-terrorism laws do not breach basic human rights - People with a disability: to support people with a disability to ensure they have adequate access to a range of basic services like health, education and housing support

Answer 23

Providing greater access to legal aid and assistance - The ability of an individual or group to pursue a matter can be severely limited by cost and time involved in taking a case to court - To address this issue, more state and federal funding could be allocated to legal aid and assistance bodies, such as Victoria Legal Aid. In addition to providing vital legal representation and assistance to people involved in criminal cases. Victorian legal aid could also undertake more civil matters involving the alleged infringements of rights. - Victorian law foundation, so that all members of the community - especially those in minority groups who may be more likely to have their rights breached - are aware of their basic rights and the available options to challenge an alleged infringement