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LEGAL STUDIES SEM 2 > LEGAL STUDIES EXAM REVISION II > Flashcards

LEGAL STUDIES EXAM REVISION II Flashcards

1
Q

WHAT IS CIVIL LAW?

A

civil law involves disputes between individuals, groups, etc. It allows those whose rights have been infringed to seek remedies.

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2
Q

PURPOSES OF CIVIL LAW?

A
  • achieves social cohesion
  • protects the rights on individuals
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3
Q

(OTHER) PURPOSES OF CIVIL LAW?

A
  • providing remedies
  • establishing guidelines
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4
Q

BREACH?

A

failure to observe a law or obligation imposed on them

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5
Q

CAUSATION?

A

defendants actions resulted in harm suffered and that the harm wouldnt have occured if it wasnt the defendants actions.

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6
Q

LOSS?

A

the plaintiff must be suffered harm or loss

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7
Q

TYPES OF CIVIL LAW?

A
  • negligence law
  • defamation law
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8
Q

DEFAMATION LAW AND DEFAMATION?

A

legal concept that refers to false statements about an individual to a third party that harms ones reputation
an area of civil law that aims to protect a plaintiff from having their reputation damaged

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9
Q

LIMITATION TO ACTIONS:

A

all civil claims have a period of time in which action can be taken

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10
Q

BURDEN OF PROOF?

A

also known as onus proof, is the person who has the responsibility of proving a case (prosecution to bring the evidence into the case to prove the accused guilty)

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11
Q

STANDARD OF PROOF?

A

The weight or strength or evidence that must be brought.

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12
Q

POSSIBLE PLAINTIFFS TO A CIVIL DISPUTE

A

Aggrieved party: the person’s whose right have been infringed or has suffered loss
Other victims: individuals/groups who has indirectly suffered loss

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13
Q

WHO IS A DEFENDANT?

A

The wrongdoer: when a person has committed a wrong against someone else, they have caused loss of plaintiff.
Insurer: the insurer of the person who has caused loss or damages

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14
Q

NEGLIEGENCE LAW?

A

negligence laws ensures people are protected from harm by legally enforcing all individuals and organisations to take reasonable care and avoid causing harm to another party.

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15
Q

THE RIGHTS PROTECTED BY LAW (NEGLIGENCE)

A
  • protect an individuals right to be safe from unjust harm, loss or damage
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16
Q

ELEMENTS OF NEGLIGENCE?

A

duty of care, breach, causation, remoteness

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17
Q

LIMITATIONS OF ACTIONS FOR NEGLIGENCE:

A

3 years for negligence, and can be extended if given permission from a judge

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18
Q

POSSIBLE DEFENCES FOR NEGLIGENCE?

A

contributory negligence: this means that the plaintiff is partly at fault of the situation
assumption of risk: the plaintiff had full knowledge of the risks

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19
Q

POSSIBLE REMEDIES FOR NEGLIGENCE?

A

specific damages: has precise values e.g. loss wage
general damages: don’t have precise e.g. inability to walk

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20
Q

IMPACT ON NEGLIGENCE? (ON THE PLAINTIFF AND DEFENDANT)

A

PLAINTIFF: loss of life, serious physical injury
DEFENDANT: loss of business, physical injury

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21
Q

RIGHTS PROTECTED BY THE LAW (DEFAMATION)

A

personal reputation, professional reputation and business reputation.

22
Q

ELEMENTS OF DEFAMATION?

A
  1. matter is defamatory
  2. matter is false
  3. matter is about the plaintiff
  4. been published to a third party
  5. matter is the caused serious harm
23
Q

LIMITATION OF ACTIONS FOR DEFAMATION:

A

plaintiffs have one year to claim a defamation

24
Q

POSSIBLE REMEDIES OF DEFAMATION:

A

mandatory injunction: forces parties to do something
restrictive injunction: prevents parties from doing something

25
Q

IMPACT ON DEFAMATION? (PLAINTIFF AND DEFENDANT)

A

plaintiff: emotional impact (stress), unemployment
defamation: costs, public humiliation

26
Q

WHAT IS FAIRNESS AND GIVE ME AN EXAMPLE?

A

all people can participate in justice system and its processes should be impartial and open. e.g. the right to legal representation.

27
Q

WHAT ARE THE 3 PRINCIPLES OF JUSTICE?

A

Fairness, Equality and Access

28
Q

WHAT IS EQUALITY AND GIVE ME AN EXAMPLE

A

all people should be treated the same regardless of race and other personal attributes. e.g. availability of a translator

29
Q

WHAT IS ACCESS AND GIVE ME AN EXAMPLE

A

all people should be able to use procedure methods that are apart of the legal system.
e.g. right to legal aid (lawyers, legal advisors)

30
Q

WHAT ARE THE 3 TYPES OF METHODS TO USE TO RESOLVE DISPUTES?

A

mediation, conciliation and arbitration

31
Q

MEDIATION?

A

mediation uses the process of negotiation (a joint problem solving technique (non-judicial)
which involves parties to discuss issues with the aim of reaching an agreement)
- mediators cannot suggest or make and decisions for the parties

32
Q

CONCILIATION

A

conciliation uses the process of negotiation (a joint problem solving technique(non judicial)
which they possess knowledge about the type of dispute and assists them)
- can suggest and offer opinions for parties

33
Q

ARBITRATION:

A
  • arbitration is more formal than conciliation and mediation
    conciliation uses the process of negotiation (a joint problem solving technique(non judicial)
    listens to parties present evidence to make a binding decision
34
Q

TRIBUNALS?

A

offer an alternative for traditional courts
(are designed to be faster, less expensive, less formal)
- typically hear and resolve disputes such as human rights

35
Q

TRIBUNALS (VCAT) STRENGTHS AND LIMITATIONS?

A

strengths:
tribunals (VCAT) hearings are resolved quickly, which reduces delay
limitation:
must often self-represent

36
Q

OMBUDSMEN?

A

ombudsmen acts as an independent body that watches the actions of businesses to ensure they are in following with the law

37
Q

TYPES OF OMBUDSMEN?

A
  • government ombudsmen
  • industry ombudsmen
38
Q

COMPLAINT BODIES?

A
  • complaints bodies investigate and resolve disputes through conciliation
  • service is free
39
Q

WHAT ARE THE 3 INSTITUTIONS TO RESOLVE A DISPUTE?

A

tribunals, ombudsmen and complaint bodies

40
Q

ROLE OF A JURY IN CIVIL TRIAL?

A
  • to be objective
  • to listen to all facts and evidence
  • to concentrate during trial
  • to listen to directions of judge
  • to decide whose most likely wrong based on evidence
41
Q

ORIGINAL JURISDICTION AND APPELATE OF MAGISTRATE

A

ORIGINAL JUSRISDICTION: minor civil disputes seeking claims up to 100k, claims below 10k referred to arbitration
APPELATE: None

42
Q

(TRIAL DIVISION)ORIGINAL JURISDICTION AND APPELATE OF SUPREME COURT (TRIAL DIVISION)

A

ORIGINAL JURISDICTION: 100k = unlimited
(can hear claims up to any amount)
often hears cases of class actions or commercial disputes
APPELATE: cases from magistrate court or VCAT

43
Q

ORIGINAL JURISDICTION AND APPELATE OF SUPREME COURT (COURT OF APPEAL)

A

ORIGINAL JURISDICTION: None
APPELATE: cases from county court and supreme court
questions of fact regarding to remedies

44
Q

WHEN ARE JURIES USED IN A CIVIL TRIAL?

A
  • juries used during original jurisdiction of the county or supreme courts (the use of juries are optional)
  • made up of 6 jurors
45
Q

FIRST NATIONS PEOPLE AND THE CIVIL JUSTICE SYSTEM?

A
  • Aboriginal and Torres strait islanders need to overcome many problems when dealing with the justice system such as cultural practices, intergenerational trauma, language barrier, social economic barriers and geographical barriers.
46
Q

CULTURAL PRACTICES:

A

it’s considered disrespectful to talk about particular topics. For example, speaking about the name of a recently deceased person is considered inappropriate amongst several Aboriginals

47
Q

LANGUAGE BARRIERS:

A
  • some English words may have different meanings, creating miscommunication for first nations.
  • this negatively impacts the degree of understanding the jury
48
Q

MANY DIFFERENT GROUPS IN SOCIETY ARE FACED WITH DIFFICULTIES WHEN DEALING WIT CIVIL JUSTICE SYSTEM:

A
  • people of low socioeconomic status
  • young people
  • people who live in regional, rural or remote area
49
Q

OMBUDSMEN ADVANTAGES AND LIMITATIONS?

A

afv: impartial and neutral

lim: limited/lack authority

50
Q

COMPLAIN BODIES ADV AND LIM?

A

adv: low costs and simple procedure

limited/lack authority

LEGAL STUDIES SEM 2 (9 decks)

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