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VCE Legal Studies Units 3/4 2024 > U3 AOS 2 > Flashcards

U3 AOS 2 Flashcards

The Victorian Civil Justice System

1
Q

balance of probabilities

A

standard of proof for civil. plaintiff must establish that their claim is more probable.

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2
Q

burden of proof

A

the obligation to prove a case. In civil cases, the plaintiff has it UNLESS the defendant is countersuing or raising a defence. In criminal cases, the prosecution has it unless the accused raises a defence

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3
Q

civil dispute

A

disagreement between two or more parties in which one makes a claim against the other

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4
Q

civil justice system

A

a set of processes, bodis and institutions used to solve civil disputes

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5
Q

civil law

A

an area of law that defines rights and responsibilities of individual/groups/organisations in society and regulate private disputes

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6
Q

class action

A

when 7 or more people have a claim against the same person in similar facts, also known as a representative or group proceeding.

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7
Q

damages

A

money one pays to another party to remedy loss or harm. most common civil remedy

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8
Q

defendant

A

in civil, party who alleged to have breached civil law, being sued by plaintiff in court

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9
Q

discovery of documents

A

pre trial procedure where parties get each others documents.

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10
Q

liability

A

legal responsibility for acts or omissions

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11
Q

limitation of actions

A

time restriction on bringing a civil claim. Many are described in the Limitation of Actions Act 1958 (Vic).

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12
Q

limitation of actions for loss or harm due to defamation

A

1 year

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13
Q

limitation of actions for loss or harm due to breach of contract

A

6 years

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14
Q

limitation of actions for loss or harm due to physical or sexual child abuse.

A

no time restriction, Victoria was the first state to change it to this in 2015

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15
Q

mediation

A

drm in which uses 3rd party mediator to help reach a resolution. mediator cannot decide the outcome. Unlike conciliation, the mediator cannot recommend solutions.

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16
Q

plaintiff

A

the party that initiates the legal claim against another party in court

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17
Q

pleadings

A

civil cases, pre trial procedure. document exchanged, plaintiff and defendant state claims and defences.

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18
Q

remedy

A

order by court or tribunal to address civil wrong or breach. should provide a legal solution to the plaintiff.

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19
Q

standard of proof

A

to which extent must the case be proved in court. For civil law, it is on the balance of probabilities, while for criminal law, it is beyond reasonable doubt

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20
Q

statement of claim

A

document by plaintiff to notify the defendant of the claim, cause and the remedy they want

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21
Q

sue

A

to take civil action, claiming they did a legal wrong or infringed a legal wright

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22
Q

tribunal

A

a dispute resolution body, meant to be cheaper, more informal and faster way to resolve civil disputes than the court

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23
Q

vicarious liability.

A

legal responsibility of third party, eg employer is liable for the conduct of their employees.

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24
Q

lead plaintiff

A

the person named as plaintiff in class action, represents group members. aka representative plaintiff.

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25
Q

group member

A

a member of a group of people who are part of a class action

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26
Q

adverse costs order

A

court order for a party pay the other party’s legal costs

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27
Q

statute

A

law made by parliament that has received royal assent. DOWN WITH THE MONARCHY

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28
Q

reasons for limitation of actions

A

defendant does not have to face action after too long, evidence is not lost, people can remember, resolve quickly promote social cohesion to ensure the dispute does not linger and fester within the community

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29
Q

access

A

one of the principles of justice, means that all people should be able to engage with the justice system on an informed basis

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30
Q

appeal

A

an application to have a higher court review a ruling (decision)

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31
Q

case management

A

method used by courts/tribunals to control the progress of cases more efficiently and effectively. Usually involves the person presiding over the case making orders and directions, eg the judge saying the parties need to go to mediation

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32
Q

conciliation

A

a DRM where the third party helps the two parties come to a resolution, conciliator makes suggestions for solutions.

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33
Q

arbitration

A

A DRM where the arbitrator listens to both sides and makes a legally binding decision (arbital award)

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34
Q

equality

A

POJ, people should be treated the same way, but if this would cause disadvantage, need to implement adequate measures, eg intepreter

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35
Q

fairness

A

one of the POJ, all people can participate in justice system, processes are impartial and open

36
Q

apprehended bias

A

a fair minded lay observer might reasonably believe that the person deciding the case may not bring an impartial mind to the case

37
Q

evidence

A

information, documents and other material used to prove the facts in a legal case

38
Q

cross-examinaion

A

the questioning of a witness called by the other side

39
Q

Participation in a civil case

of a party, that is

A

Involves fairness.
- know the case against them eg pretrial procedures

  • opportunity to present their version of the case, including cross-examination
  • use of an interpreter (not free in civil)

-no delays, or witnesses forget what happened and plaintiff is too old to enjoy the remedy.

40
Q

the opportunity of a party to present their version of the case

A
  • including cross examination
  • bring their own witnesses
  • make submissions
  • produce documents
41
Q

disparity

A

two or more things or people are not equal

42
Q

self-represented party

A

person before court or tribunal who has no lawyer or other legal professional

43
Q

oath

A

when a person swears the truth on a religious or spiritual belief. no religion/spiritual belief, then it isan affirmation

44
Q

Consumer Affairs Victoria (CAV)

A

consumer affairs regulator in vic. Has advisory, info, compliance and enforcement roles

45
Q

Victorian Civil and Administrative Tribunal (VCAT)

A

range of civil issues, such as human rights, Civil claims, residential tenancies.

46
Q

alternate dispute resolution methods

A

ways of resolving civil disputes without the use of a court or tribunal, also known as just dispute resolution methods

47
Q

mediator

A

independent third party that does not interfere or persuade

48
Q

terms of settlement

A

document that sets out the conditions of the agreement for the parties to resolve the dispute

49
Q

when is mediation/conciliation appropriate

A
  • the relationship between the parties will continue
  • willing to compromise
  • one or both want to resolve privately
50
Q

when is mediation/conciliation inappropriate

A
  • urgent matter
  • one or both want to resolve publicly
  • gross imbalance of power
  • history of agressive behaviour
51
Q

pros of mediation/conciliation

A

independent third party, less formal, safe environment, can save time and money, private

52
Q

cons of mediation/conciliation

A

may not be enforceable, intimidation, refuse to attend, waste of time and money, no open justice

53
Q

pros of arbitration

A

binding and fully enforceable, private, control over process, arbitrator usually an expert

54
Q

cons of arbitration

A

no control on outcome, not available all the time, can be costly, can be formal

55
Q

Roles of the Judge/Magistrate

A

Manage the case BEFORE and DURING the trial

Act impartially

Determine liability (if no jury)

Determine Costs

56
Q

Roles of the Jury

A

Be objective
Listen and remember to evidence
Understand directions and summing up
decide on liability and sometimes damages

57
Q

Jury in a civil case

A

6 jurors, sometimes 8 for long/complex trials (only 6 deliberate)

Not compulsory for any case, never in magistrates

The party that wants it pays for it

58
Q

counterclaim

A

separate claim made by the defendant in response to the plaintiff’s claim

59
Q

party control

A

a term used to describe the power the parties have to how the case will run

60
Q

lay evidence

A

Evidence given by a lay (ordinary) person about the facts

61
Q

expert evidence

A

evidence given by an expert about an area within their expertise.

62
Q

examination-in-chief

A

questioning your own witnesses in order to prove your own case

63
Q

litigation funder

A

a third party who pays for some or all the costs and expenses associated with initiating a claim in return for a share of the amount recovered. Litigation funders are often involved in class actions

64
Q

Consumer Affair Victoria (CAV)

A

A dispute resolution body that regulates consumer law and settles disputes via conciliation. It is free and accessible, but does not have a lot of enforceable power and cannot deal with larger cases

65
Q

Victorian Civil and Administrative Tribunal (VCAT) Jurisdiction

A

disputes regarding Residential tenancies, civil claims, human rights, planning & environment, administrative division

66
Q

methods used by VCAT

A

mediation, compulsory conferences, final hearing before a member

67
Q

Fast track hearing and mediation (FMAH

A

small claim about goods and services in the civil list of VCAT do mediation and hearing quickly on the same day to solve dispute efficiently

68
Q

compulsory conferences

A

a confidential meeting between the parties involved in a dispute
(in the presence of an independent third party) to discuss ways to resolve their differences and explore possible resolutions

69
Q

strengths of VCAT

A

cheaper
- less formal
- faster
- more flexible
- specialised
- final hearing is binding

70
Q

weaknesses of VCAT

A

frequent legal representation - money
- delays from COVID
- may be too informal
- cant make precedents
- only appealed point of law
- still need to enforced by courts

71
Q

VCAT and appeals

A

ONLY on a point of LAW
usually goes to Trial division
if the member was the president or Vice-president, it goes to Court of Appeal

72
Q

Magistrates court jurisdiction

A

$100,000 or below. a plaintiff can lower the claim to get to the magistrates court

73
Q

Magistrates court arbitration

A

for claims $10,00 and below.

74
Q

aggravated damages

A

when the defendant has to pay for their conduct causing humiliation, embarassment or insult

75
Q

compensatory damages

A

amount of money awarded to plaintiff for harm, injury, other losses. Includes:
- general damages
- special damages
- contemptuous damages
- aggravated damages

76
Q

contemptuous damages

A

very small sum awarded that the plaintiff succeeded legally, court/tribunal morally disapproves of it

77
Q

damages

A

money paid in order to remedy for loss or harm. in courts OR tribunals

78
Q

exemplary damages

A

very large amount of money to show strong disapproval of the defendant’s conduct

79
Q

general damages

A

damages for something that is not easily quantifiable, eg pain and suffering

80
Q

injunction

A

remedy that is an order to do or not to do something

81
Q

loss of amenity

A

loss of a persons ability to enjoy something they used to have (eg, a workplace injury and a guy has no legs now)

82
Q

mandatory injuction

A

an injunction that says you have to do something, or take active steps to prevent harm (or further harm) to the plaintiff

83
Q

nominal damages

A

small amount of money in damages to confirm that rights were infringed, but losses were minimal

84
Q

remedy

A

order made by court or tribunal to address a civil wrong or breach. should be a legal solution

85
Q

restrictive injunction

A

order that says don’t do something so it doesn’t harm or further harm the plaintiff.

86
Q

special damages

A

amount of money paid that is for easily quantifiable things, eg medical expenses, repairs, loss of wages.

VCE Legal Studies Units 3/4 2024 (4 decks)

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