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Legal > Sac 6 (40 marks) > Flashcards

Sac 6 (40 marks) Flashcards

1
Q

What are the four reasons for a court hierarchy

A

Specialisation
Appeals
Administrative Convenience
Doctrine of Precedent

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2
Q

Explain specialisation

A
  • each court in the hierarchy becomes familiar with the types of cases heard in their jurisdiction
  • results in legal personnel developing expertise to the type of cases they would hear, which is more efficient
  • without the hierarchy, all courts would hear all types of cases without developing expertise
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3
Q

Explain appeals

A
  • hierarchy allows a party to appeal to a superior court, providing they establish grounds for appeal
  • provides for fairness, unjust decisions are corrected
  • without the hierarchy appeals to a higher court wouldn’t exist
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4
Q

Explain administrative-convenience

A
  • allows higher courts to hear more serious, lengthy cases
  • lower courts hear minor, shorter cases
  • helps reduce delays in lower courts, allowing minor cases to be dealt with quickly
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5
Q

Explain the doctrine of precedent

A
  • allows decisions go higher courts to be binding on lower courts
  • precedents in higher courts create predictability, fairness and consistency like cases heard in same manner
  • no hierarchy the D.O.P couldn’t operate as no lower courts
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6
Q

State 3 problems with a court hierarchy

A

Possible confusion relating to the court in which a particular case would be heard

appeals add to the cost of cases for both the individuals involved and the legal system

more administration and court personnel required overall to run the court system

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7
Q

State 4 strengths of a court hierarchy

A

Allows the doctrine of precedent to operate, which creates consistency and predictability

Allows the operation of appeals to superior courts

Administrative convenience - more - serious and complex cases heard in higher courts by more experienced judges

Specialisation - the courts are able to specialise in their particular area of law

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8
Q

state 4 weaknesses of a court hierarchy

A

A precedent from a higher court may be distinguished by a lower court, or a binding precedent from a higher court may not be appropriate to the circumstances before the lower court

It could be said that there are too many appeals

More administrative personnel needed to run the different courts

There are more courts - a single court would be easier for people to find, as all matters would be heard at the same place

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9
Q

Magistrate’s original CIVIL jurisdiction

A

Civil
Up to $100,000 for all civil mattes including personal injury; civil claims less than $100,000 go to Arbitration (one magistrate)

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10
Q

Magistrate’s original CRIMINAL jurisdiction

A

Criminal
Summary offences (minor offences)
Indictable offences heard summarily (more serious offences)
Committal proceedings (pre-trial procedure)
Bail applicants (released on conditions before going to trial)
Issuing warrants (usually for arrest or search) one magistrate

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11
Q

Magistrate’s APPELLATE jurisdiction

A

No appellate jurisdiction

Rehearings can take place in some cases, such as one of the parties not appearing

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12
Q

County original CIVIL jurisdiction

A

Civil

Unlimited in all civil matters (one judge with an optional jury of 6)

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13
Q

County original CRIMINAL jurisdiction

A

Criminal
Indictable offences, except murder, attempted murder, certain conspiracies, operate offences (one judge and a jury off 12 when the plea is ‘not guilty’)

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14
Q

County APPELLATE CIVIL jurisdiction

A

Civil

no appeals, unless under a specific ACT

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15
Q

County APPELLATE CRIMINAL jurisdiction

A

Criminal

From the Magistrate’s Court against conviction or sentence (one judge)

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16
Q

Supreme Court (trial division) CIVL original

A

Civil

Unlimited in all civil matters (one justice with an optional jury of six)

17
Q

Supreme Court (trial division) CRIMINAL original

A

Criminal

Most serious indictable offences (one justice and a jury of 12 when the plea is ‘not guilty’)

18
Q

Supreme Court (trial division) CIVIL APPELLATE

A

Civil

On points of law from the Magistrate’s Court and from the Victorian Civil and Administrative Tribunal (one justice)

19
Q

Supreme Court (trial division) CRIMINAL APPELLATE

A

Criminal

On points of law from the Magistrate’s Court (one justice)

20
Q

Supreme Court (of appeal) original jurisdiction

A

No original

21
Q

Supreme Court (of appeal) APPELLATE CIVIL

A

Civil with leave
on points of law
on a question of fact
on an amount of damages

22
Q

Supreme Court (of appeal) APPELLATE CRIMINAL

A

Criminal with leave
on points of law
conviction
on severity of leniency of sanction

23
Q

VCAT: general ideas

A

provide cheaper, quicker less formal method of dispute resolution.

4 divisions:
civil divison
human rights division
administrative division
residential tenancies division

eg: tenant and landlord, trader and consumer

24
Q

Reasons of VCAT

A

accessible and informal: not bound by strict rules of evidence and procedure. can be directed to mediation

timely resolution of disputes: a matter heard in weeks rather than months and duration go hearing is shorter, minimal pre-trial process

expertise: personnel have expertise in dealing with specific laws and related disputes

low cost: usually low cost, although have been increasing, low cost because usually doesn’t require legal representation + small application fee

25
Q

Orders of VCAT

A

party to pay more money
party to do something
restrict from doing something

26
Q

Appeals of VCAT

A

can on appeal ON POINT OF LAW. appeals are heard in the supreme court trial division, unless heard by president or vice president, then appeals are heard in court of appeal

27
Q

Name the four ADR (alternative dispute resolution methods)

A

Mediation
Conciliation
Arbitration
Judicial Determination

28
Q

Evaluate Mediation

A 
a method of dispute resolution for civil disputes using an independent third party to help the disputing parties reach resolution. 
do not make suggestions, help parties negotiate themselves.
mediator doesn't interfere, allows parties to have control of dispute.
not binding (unless parties enter terms of agreement)

strengths:
confidential
cheaper/quicker than JD
preserves ongoing relationships

weaknesses:
no appeals
possible imbalance of power (unfair outcome)
not binding so one party may ignore agreement

overall: mediation is an effective way of dispute resolution as it is quicker and cheaper than JD, however lack of party participation may result in an unjust outcome.

29
Q

Evaluate Conciliation

A

a method of dispute resolution for civil disputes using a third party to help disputing parties reach a resolution.
third party:
make suggestions, but parties have to reach decision themselves.
decision is normally not binding, unless sign a deed of settlement. > then binding

differs from mediation: a conciliator takes a more active role in dispute resolution by making suggestions compared to a mediator, and is usually an expert.

strengths:
confidential> avoid public scrutiny, more likely to be honest.
cheaper/quicker than JD
preserves relationships

weaknesses:
non binding, one party may ignore agreement
no appeals
voluntary> one party may not attend

30
Q

Evaluate Arbitration

A

method of dispute resolution for civil disputes, where a third party is appointed to listen to both sides of the dispute and make a decision that is binding on the parties.

strengths:
binding > enforceable
confidential > likely to be honest
usually cheaper than JD but binding decision

weaknesses:
parties are told the decision >win/lose
more formal/ thus intimidating
reluctant to pursue

31
Q

Evaluate Judicial Determination

A 
a method of dispute resolution which involves the parties to the case presenting arguments and evidence to a judicial officer, who then makes a binding decision.
(NOT an ADR)
involves two parties
judicial officer makes a resolution
binding

strengths:
binding, enforceable decision
can appeal if provide grounds
will have an outcome

weaknesses:
costly
not confidential
time consuming decision made for the parties

32
Q

similarities/differences between mediation and conciliation

A

sim:

  • involve a third party to facilitate discussion
  • any decision made is not binding unless a deed of settlements is drawn up

differences:

  • mediator cannot make suggestions regarding resolution, conciliator can
  • independent third party has specialised knowledge in the area in conciliation
33
Q

sim/diff between mediation and arbitration

A

sim:

  • independent third party
  • less reliance on legal representation/cheaper than JD

diff:
-decisions made by arbitrator is binding unlike mediation
-resolution is made by arbitrator, whereas mediation it is made by the parties
arb is legally binding

34
Q

sim/diff between mediation and JD

A

sim:

  • both involve independent third party
  • both appropriate for civil law

diff:

  • JD follows strict rules of evidence and procedure, mediation is more relaxed
  • decision in JD is usually binding
35
Q

sim/diff between conciliation and arbitration

A

sim:

  • both involve and independent third party
  • both third parties can offer suggestions

diff:

  • third party makes final decision in arbitration whereas in conciliation the parties come to an agreement
  • decision is binding on arbitration however not for conciliation
36
Q

sim/diff between conciliation and JD

A

sim:

  • both have independent third party
  • both suitable for civil cases

diff:

  • jd follows strict rules of evidence and procedure, whereas conciliation doesn’t
  • third party makes the decision in jd, whereas in conciliation the parties come to an agreement
37
Q

sim/diff between arbitration and JD

A

sim:

  • both give legally binding evidence
  • both involve and independent third party

diff:

  • arb will initially give suggestions before giving a legally binding outcome
  • JD is moer formal, with strict rules of evidence and procedure

Legal (6 decks)

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