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Legal Exam > Legal Studies U3 AOS2 > Flashcards

Legal Studies U3 AOS2 Flashcards

1
Q

What are the types of civil claims?

A

Negligence, defamation, breach of contract, family law, trespass to land and private nuisance.

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2
Q

What is negligence?

A

When the defendant owes a duty of care to the plaintiff and breaches this duty.

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3
Q

What is defamation?

A

When the defendant communicates false statements to a third party, damaging the plaintiff’s reputation.

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4
Q

What is a breach of contract?

A

When the defendant fails to perform their obligations arising from the terms of a contract.

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5
Q

What is family law?

A

Matters relating to parents, children, and other family members. Also relating
to property disputes arising from a breakdown in marital or de-facto relationships, such as those regarding the division of assets.

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6
Q

What is trespass to land?

A

When the defendant unlawfully interferes with the land the plaintiff possesses.

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7
Q

What is private nuisance?

A

When the defendant unlawfully interferes with the plaintiff’s use or enjoyment of land.

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8
Q

Who has the burden of proof in civil law?

A

The burden of proof in a civil claim lies with the plaintiff, unless the defendant files a counterclaim in which case they are responsible for proving this claim.

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9
Q

What is the standard of proof in civil law?

A

On the balance of probabilities (more likely than not)

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10
Q

What are the factors to consider before initiating a civil claim?

A

Costs, limitation of actions and enforcement issues.

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11
Q

What are the costs involved in a civil case?

A

Fees for legal representation
Adverse cost orders
Mediation fees
Court fees
Appealing to a higher court

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12
Q

What is the limitation of actions?

A

A restriction on the time limit in which a plaintiff must commence a civil action in court, after which the plaintiff is unable to bring an action relating to the civil wrong against the defendant.

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13
Q

What is the limitation of actions for defamation?

A

One year

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14
Q

What is the limitation of actions for negligence?

A

Six years

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15
Q

What is the limitation of actions for a breach of contract?

A

Six years

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16
Q

What is the limitation of actions for personal injuries?

A

Three years

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17
Q

What is the limitation of actions for actions to recover land?

A

15 years

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18
Q

What is the limitation of actions for actions to claim the personal estate of a deceased person?

A

15 years

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19
Q

What are enforcement issues?

A

Issues preventing the defendant to compensate the plaintiff

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20
Q

What is mediation?

A

A non-judicial dispute resolution method involving an independent third party, known as a mediator, who facilitates conversations between disputing groups. The mediator does not interfere, make a decision or suggest solutions.

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21
Q

When is mediation appropriate?

A

Both parties are willing to attend.
Both parties are willing to abide by the outcome.
Both parties have future relationships in mind (family, work, friends, etc).
Both parties want lower legal fees.
Both parties willing to compromise.
A prompt resolution needs to be reached.

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22
Q

When is mediation not appropriate?

A

Parties are highly emotional.
Parties are unwilling to discuss issues.
There is a power imbalance between parties.
There is a history of violence or threats between the parties.
Parties want a binding result.

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23
Q

What is conciliation?

A

A non-judicial dispute resolution method involving an independent third party, known as a conciliator, who possesses specialist knowledge about the type of dispute in question and assists parties in a dispute reach a resolution.

24
Q

When is conciliation appropriate?

A

Both parties are willing to attend.
Both parties are willing to abide by the outcome.
Both parties have future relationships in mind (family, work, friends, etc).
Both parties want lower legal fees.
Both parties willing to compromise.
There is an admission of responsibility by one of the parties.

25
Q

When is conciliation inappropriate?

A

Parties are highly emotional.
Parties are unwilling to discuss issues.
There is a history of violence or threats between parties.
There is a power imbalance between parties.
Parties want a binding result.

26
Q

What is arbitration?

A

A non-judicial resolution method involving an independent third party, known as the arbitrator, who listens to parties present evidence and makes a binding decision.

27
Q

When is arbitration appropriate?

A

Parties agree to participate in arbitration.
The dispute involves civil damages of less than $10,000, which was issued in the Magistrates’ Court.
The case requires a binding and enforceable decision.

28
Q

When is arbitration inappropriate?

A

Parties do not agree to arbitrate.
Parties are comfortable navigating complex court rules of evidence and procedure.
Parties do not want the result decided on their behalf.

29
Q

Which institutions can be used to resolve civil disputes?

A

Consumer Affairs Victoria (CAV), Victorian Civil Adminstration Tribunal (VCAT) and Courts.

30
Q

What is CAV?

A

The Victorian civil complaints body that provides information and helps resolve disputes to create a fair and competitive marketplace for consumers and businesses.

31
Q

What is CAV’s jurisdiction?

A

CAV can resolve complaints against a business by a consumer and complaints against a landlord by a tenant.

32
Q

What is VCAT?

A

A dispute resolution body that has the power to hear and determine certain types of civil and administrative disputes.

33
Q

What are the VCAT branches?

A

Residential Tenancies division
Civil division
Human Rights division
Administrative division
Planning and environment division

34
Q

What disputes can’t VCAT deal with?

A

Class actions
Cases where parties are residents from different states
Cases involving the exercise of federal jurisdiction
Cases where the Commonwealth of Australia is a party
Cases involving the Australian Constitution.

35
Q

How does CAV solve disputes?

A

Primarily by directing parties to attend conciliation, although participation is voluntary.

36
Q

How does VCAT solve disputes?

A

Mediation, cumpulsory conferences (conciliation method), final hearings

37
Q

What are the purposes of VCAT?

A

To provide low-cost dispute resolution services
To provide efficient dispute resolution services
To provide accessible dispute resolution services

38
Q

What are the purposes of CAV?

A

Creating a fair and competitive marketplace
Providing information and advice
Providing accessible dispute resolution services
Providing an avenue to resolve minor disputes efficiently and with minimal costs

39
Q

When is CAV appropriate?

A

Parties have already attempted to resolve the dispute themselves.
Both parties are willing to attend and participate in conciliation.
Parties wish to avoid costs and delays associated with resolving disputes through the courts or VCAT.
Parties are willing to settle.
Both parties are willing to comply with the agreement reached during conciliation.

40
Q

When is CAV inappropriate?

A

The dispute does not fall under CAV’s jurisdiction.
Parties have not attempted to resolve the dispute by themselves.
One or both parties are not willing to attend and participate in conciliation.
There is a better method of resolving the dispute.
The court or VCAT has already ruled on the matter, or the case is currently waiting to be heard.
The dispute is initiated by a landlord or business.
The dispute is a class action.
One or more parties want a legally binding decision.

40
Q

Which dispute resolution methods are used by the Courts?

A

Mediation, conciliation, arbitration, judicial determination

40
Q

What is the purpose of the courts?

A

Provide access to an independent, experienced, and knowledgeable judicial officer.
Enforce procedural fairness.
Provide access to a trial by jury.
Provide a dispute resolution avenue for class actions.
Provide a legally binding outcome.
Order a remedy.
Provide an opportunity to appeal the outcome of a case.
Set precedent for future cases.

40
Q

When are Courts appropriate?

A

The claim falls within the courts’ jurisdiction and does not fall under VCAT’s exclusive jurisdiction.
If the parties prefer to have an independent and experienced judge or magistrate impose a legally binding decision.
It is a large and complex civil claim, such as a class action.
When parties prefer the formalities and procedures of a court proceeding.
When both parties have access to and can afford legal representation.
When the parties have considered the cost, time, and possible delays associated with a court proceeding.
If the parties wish to have a broad range of avenues to appeal the outcome of a case.
If the parties prefer the application of precedent in determining their dispute, or they believe the application of a specific precedent would support the success of their case.

40
Q

What claims can the County court here?

A

Unlimited jurisdiction

41
Q

What are the reasons for a court hierarchy in civil cases?

A

Administrative convenience and appeals

41
Q

What claims can the Magistrate’s court here?

A

Civil claims under $100,000

41
Q

What claims can the Supreme court here?

A

Unlimited jurisdiction, class actions, Appeals from VCAT and Magistrates’ Court on a question of law

42
Q

What claims can the High court here?

A

Appeals from the Supreme Court – Court of Appeal

43
Q

How does the Civil Court Hierarchy support adminstrative convenience?

A

The superior courts, such as the Supreme Courts, are free to devote time and resources to long, complex disputes as the court is not delayed by resolving minor disputes.
The lower courts, such as the Magistrates’ Court, can quickly resolve a large number of relatively minor disputes, minimising delays for parties to such disputes.

44
Q

What are the roles of a judge or magistrate?

A

Enforce rules of evidence and procedure equally
Decide questions of law
Direct the jury if there is one
Case management powers
Decide a verdict and remedy if there is no jury

45
Q

What are class actions?

A

Legal proceedings brought by one or numerous plaintiffs acting for themselves as well as on behalf of a wider group (7 or more) of people who have a claim with similar facts.

46
Q

When are class actions appropriate?

A

Workplace accidents
Medical malpractice
Financial malpractice
Preventable natural disaster (e.g flood or fire)
Faulty or dangerous goods or services

47
Q

What are Third-party litigation funders?

A

Commercial entities that agree to meet the costs of the litigation in return for a proportion of the damages recovered if the case is successful.

48
Q

What are the types of compensatory damages?

A

Specific, general, aggravated

49
Q

What are the purposes of remedies?

A

To return the plaintiff to their original position
To deter others from committing civil breaches
To uphold the plaintiff’s rights

Legal Exam (9 decks)

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