Revise weak area from prac sac

Question 1

Role of the judge

Answer 1

• Determine the sentence
  clarify unclear legal terminology
  can adjourn a trial if the accused is self-rep
  manage the trial
  uphold the Criminal Procedures Act 2009
  legally trained and expertise

Question 2

Role of the jury

Answer 2

• Adhering to their role as a part of the Juries Act 2000
• Made of 12 randomly selected lay individuals
  -Listen to the judge explain legal elements
  deliberate among other jurors to reach a verdict
  ask the judge clarifying questions

Question 3

Costs the accused doesn’t have to pay for

Answer 3

-Filling fees
- for a jury
-court resources i.e tipster
- May not have to pay for legal representation
- interpreter

Question 4

Costs the accused has to pay for

Answer 4

• Legal representation
  -fees associated with preparing a case
• Appeal application
• pay for a solicitor during questioning

Question 5

Delays

Answer 5

• Indictable offences- require committals which take approximately 8 months
• Backlog of courts
  -A case may be adjourned if the accused has to self-represent
• Jury empanelment and deliberation
• Giving directions to the jury
• Appeals

Question 6

cost factors

Answer 6

-the parties are the ones that generally bear the cost of resolving the dispute. since it is a civil dispute, the state will not get involved in funding proceedings -as parties have the choice to take the matter to court

Question 7

cost factors- legal representation

Answer 7

-depending on the complexity of the legal issue, a party may choose to engage in the service of a solicitor, a barrister or both.
-in some cases, a solicitor is needed to seek legal advice or draft and file a legal document (i.e. a writ)
-Expense relates to the complexity of the case, the experience of the representation and the avenue in. which the matter is being heard. Eg. a senior barrister =$600 per hour, king’s counsel= $1000 per hour

Question 8

cost factors- disbursements

Answer 8

• Money paid to third parties for representation of a case
  Eg:
  payment for collection of reports, financial statements, video footage, photocopy, liaising with other external organisations, written statements from expert witnesses

Question 9

cost factors- court fees

Answer 9

• Costs incurred from bringing a matter to court
  Eg:
  
  • filing fees, hearing fees, fees for a jury
  • a writ in the county court costs $779
  • hearing fees in the county court cost $800 per day
  • the cost of a jury for the first day $1600 then $300 for subsequent days

Question 10

cost factors- adverse court order

Answer 10

• the legal requirement that one party pays for the other party’s legal fees
  Eg: if a plaintiff is successful, the defendant [says some or all of their legal fees vice versa

Question 11

Limitation of actions

Answer 11

• a restriction of time in which a plaintiff must commence civil action In court, after which time, the plaintiff is unable to bring an action relating to the civil wrong against the defendant
• Limitation of Actions Act 1958 (Vic)
• Why: Encourages parties to bring matters to court in a timely manner, ability for witnesses to recall the incident from memory accurately, ensures the quality of evidence to support the party’s claims remain high, ensures the defendant does not have to defend a civil action after signicant time
• Exception- Plaintiff can apply for an extension of time if they have a disability during the relevant period or date of discoverability occurs after the event
• Eg: defamation - 1 year, negligence- 6 years, breach of contract- 6 years, personal injury- 3 years

Question 12

Enforcement issues

Answer 12

• A factor involving the plaintiff considering if they are successful in their claim can their claim be enforced on the defendant
  -May be considered if:
  defendant is likely to declare bankruptcy/unemployed
  if defendant = company may not have any assets to sell to pay damages
  if the defendant is in prison or has relocated overseas
  if the defendant cannot be identified or is unknown

Question 13

roles of the judge- case management

Answer 13

• method used by courts to control the progress of legal cases more effectively and efficiently
• involves the judge making orders and directions in proceedings granted under the Civil Procedure Act 2010

Question 14

roles of the judge- case management before the trial

Answer 14

• Purpose:
  1. ensuring that the case is ready for trial
  2. determine whether the matter can be resolved prior to commencing the trial
  -Involves- giving directions to parties, ordering mediation, filing particular documents, discovery process- allowing parties to get copies of each other’s documents relevant to the dispute

Question 15

roles of the judge- case management after the trial

Answer 15

• Purpose:
  1. ensure correct rules of evidence and procedure are followed
  2. both parties can afford the same opportunity
• involves; limit the examination of witnesses
  -limit the number of witnesses the party can have
• limit the number of documents that a party may use as evidence
  -ask witnesses questions and clarify evidence
  -handown a ruling
  -ensuring parties- self-represented-understand rights and obligations

Question 16

roles of the parties- plaintiff

Answer 16

• the party that initiates a civil claim against another person
• Party control;
  choosing which court to bring the matter to, choosing what evidence to present, choosing witnesses
  -disclosing info to the defendant:
  Responsibility of parties to ensure all relevant documents are presented (Civil Procedures Act 2010), the plaintiff suffers physical injury- (medical records/ photos of injury/ tests), and party’s role to discover documents continues through
• Presenting evidence:
  present all evidence to judge through trial, lay evidence/ expert evidence

Question 17

roles of the parties- defendant

Answer 17

• Party defending themselves against a claim by another for alleged breach of law
• Party control:
  raise relevant evidence, call witnesses, choose to present a defence
  -Disclosing evidence;
  ensure all relevant documents are presented to court,
• Presenting a defence:
  defendant can present a defence to the judge through the trial

Question 18

Civil jury

Answer 18

• not a guaranteed right in civil disputes
  -required to determine liability and award remedies aside from damages in defamation
• 6 jurors
• not common
  -a party must seek approval to have a jury

Question 19

role of the jury

Answer 19

• Remail objective:
  must be independent and unbiased throughout proceedings, if they cannot be they must ask to be excused
  -Listen to evidence judge’s direction and submissions from legal representation:
  jury must listen to all relevant evidence presented @ trial to ensure the verdict reached id based on relevant evidence and facts
  -Determine liability:
  Most of the time unanimous verdict is requires; however 5/6 is accepted

Question 20

Class actions

Answer 20

-Criteria: 7 or more plaintiffs, must share the same area of law, must be from the same incident/ against the same defendant

Question 21

Role of the lead plaintiff

Answer 21

• initiate a claim on behalf of the other plaintiffs
• assume the financial risk if the case is unsuccessful
  -appear in court on a regular basis
• ensure the claim upholds the interests of all the plaintiffs not just personal
• file the case under their name
• provide instructions to lawyers regarding their claim

Question 22

CAV

Answer 22

-purpose: enforce compliance with consumer law, provide means of dispute resolution, advise the government, and guide businesses and educate consumers on when they have rights

Question 23

CAV appropriate

Answer 23

• fits under CAV jurisdiction- tenant v landlord/ consumer v business
• seeking a cheap alternative to courts - free
• seeking an informal resolution - r/ship maintained

Question 24

CAV inappropriate

Answer 24

-seeking a legally binding outcome
- want strict rules of evidence and procedure
-parties are unwilling to cooperate in conciliation process

Question 25

VCAT - CAV similarities

Answer 25

• Both are statutory bodies
• aim to resolve disputes
  -lack of strict rules of evidence and procedure
  -civil matters in appeal of consumer/ business
• third-party = independent and impartial + experience

Question 26

CAV diff

Answer 26

• free
  -jurisdiction only hears consumer/ tenant
  -conciliation
• Australian Consumer Law and Fair Trading Act 2012 (vic)

Question 27

VCAT diff-

Answer 27

-Lower cost not free
-can use fast-track mediation/ judicial determination
- can hear civil disputes from businesses and landlords or consumers/ tenant
- Victorian Civil and administrative tribunal Act 1988 (Vic)

Question 28

VCAT methods

Answer 28

• Fast-track mediation appropriate:
  win-win situation-> maintain r/ship
  less formal -> efficient
  amount insignificant
• Fast-track mediation inappropriate:\
  not legally binding
  power imbalance between parties
• Hearing appropriate
  legally binding
  require legal expertise
• Hearing inappropriate
  likely want to maintain a positive r/ship

Question 29

purpose of courts

Answer 29

Provide access to an experienced and independent legal expert
provide parties with a legally binding and enforceable outcome
provide an avenue for appeal
provide access to trial by jury

Question 30

Delays- Fairness

Answer 30

witnesses cannot provide accurate evidence -> limited participation
delays impact credibility of evidence -> unfair outcome
Case MGMT power lead to fair proceeding

Question 31

Costs- Access

Answer 31

-VCAT promotes engagement through tiered fees
-CAV is free -> engagement
-Costs can limit engagement for parties X able to afford
- Legal rep = expensive / X afford -> limit info
-CAV VCAT have info on website -> low cost + info basis

Question 32

Remedies purposes

Answer 32

-restore the plaintiff to the postion they were in prior to having their rights infringed
uphold the rights of the plaintiff
deter others from committing civil breach

Question 33

Damages

Answer 33

• Compensatory damages - specific general and aggrated -> aim to restore plaintiffs position back to position they were in prior to having their rights infringed BY compensating their loss with a monetary award
  -Exemplary damages aim to deter others from infringing civil law -> punish the defendant

Question 34

Injunctions and damages

Answer 34

Similarities- aim to restore the plaintff back to the position they were in prior to having their rights infringes
-Diff ( injunctions) - court order to stop or start something
- Diff ( damages)- monetary amount paid to plaintiff to restore their position