UNIT 2: AOS 2 Flashcards

1
Q

Civilian jurisdiction of the County Court

A
1 Judge and an optional jury of 6
Original jurisdiction: 
unlimited, litigants can choose to have their case heard in either the County Court or the Supreme Court 
Appellate Jurisdiction: 
no appeals, unless under a specific Act
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2
Q

Civilian Jurisdiction of the Supreme Court Trial Procedure

A
1 Justice and an optional jury of 6 
Original Jurisdiction:
unlimited
Appellate jurisdiction:
appeals on point of law from the Magistrates Court and VCAT
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3
Q

Civil Jurisdiction of the Supreme Court Court of Appeal

A

Appellate jurisdiction: with leave on point of law, or question of fact or amount of damages from a single judge of the county court or Supreme Court and from VCAT when constituted by the President or Vice President

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4
Q

Methods of Civil Dispute

A

Mediation
Conciliation
Arbitration
Judicial determination

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5
Q

Mediation

A

When the disputing parties come before an independent third party mediator who doesn’t enter the discussion however ensures that each party is given the opportunity to put their case forward. Mediation is not binding and requires each party to abide by the agreement, used when there is an ongoing relationship

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6
Q

Conciliation

A

Where the two parties come before an independent third party conciliator who listens to both sides and at the conclusion makes suggestions on how to resolve the dispute. The resolution is not binding

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7
Q

Arbitration

A

Where the disputing parties come before an independent third party arbitrator who listens to both sides of the dispute and makes a ruling which is legally binding

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8
Q

Judicial Determination

A

Where the disputing parties come before an independent third party justice, judge or magistrate (judicial officer) who listens to both sides and makes a decision, based on the evidence presented, which is legally binding on the parties.

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9
Q

Purpose of civil pre trial procedures

A
  • to inform the defendant that a case is being brought against him/her
  • to inform the plaintiff if the defendant wishes to defend the case
  • to clarify issues in the dispute
  • to allow the counsels for both parties to become familiar with the facts of the case
  • to provide details about each other’s cases
  • to give the parties adequate time to prepare
  • to allow the parties time to consider the means of their cases
  • to encourage out of court settlement
  • to provide the court with a written record of the issues and arguments to be discussed during the trial
  • to reduce the time in court as some issues will have been settled before trial.
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10
Q

Operation of civil pre trial procedures

A
Pleadings 
Discovery 
Directions Hearing 
Notice Of Trial
Offer of Compromise
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11
Q

Pleadings

A
  • A writ or originating notice
  • A statement of claim
  • A notice of appearance
  • A defence and counterclaim
  • Further or better particulars
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12
Q

Discovery

A
  • Interrogatories

- Discovery (documentation, oral examination and medical examination)

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13
Q

Writ or Originating Notice

A

A document prepared by the plaintiff and issued by the court. This explains the action that will be taken against the defendant. It provides basic details such as; mode of trial, place of trial and how long the defendant has to file a notice of appearance

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14
Q

Statement of Claim

A

A document giving the details of the claim made by the plaintiff

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15
Q

Notice of appearance.

A

Filed with the court and served on the plaintiff by the defendant, showing that they want to defend the case

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16
Q

Defence and counter claim

A

Details about the defence being put forward by the defendant to the plaintiffs claims. A counterclaim is optional if the defendant thinks they have a claim against the plaintiff

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17
Q

Further or better particulars

A

Request of further details of the other party’s claims (more details of the case) e.g asking more details about that contract

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18
Q

Interrogatories

A

A list of questions about the case between either party

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19
Q

Discovery of documentation

A

Either side is normally required to disclose any relevant documents or a class of documents. Once a party has relieved details of the documents in the other party’s possession or control, that party is able to inspect or relieve a copy of those documents

20
Q

Discovery by oral examination

A

One party may ask the court if they can put questions to the other party before going to court

21
Q

Discovery by medical examination

A

If necessary, either side may ask the other side to attend a medical examination. The investigation within the exam is documented and sent to the requesting party

22
Q

The Civil Jurisdiction of the Magistrates Court

A

1 magistrate
Original Jurisdiction:
claims up to $100,000
cases claiming less than $10,000 decided by arbitration in the magistrates court
Appellate Jurisdiction:
no appellate jurisdiction
re-hearings can take place in some circumstances

23
Q

Directions hearing

A

The court may give any directions to the parties about the conduct of the civil proceeding. The court may require the parties to undertake further steps to prepare for trial known as directions. A direction may be to attend mediation etc. The court may make a number of requests of the parties in order to reduce the likely duration of the trial and arrive at a decision as promptly as possible

24
Q

Notice of trial

A

issued by the court when both sides have completed the pre-trial procedures. It states the time and place of the trial

25
Q

Offer of compromise

A

A document sent by one party to the other in a proceeding in which the party makes a settlement offer. If the other party doesn’t accept the offer legal costs can be awarded on a higher basis by the court because the party did not accept a better outcome.

26
Q

Adversary System

A
System where two parties battle in court to win. 
-The role of the parties
-The role of the judge
-Rules of evidence and procedure
-The need for legal representation 
The burden and standard of proof
27
Q

The Role of the Parties

A

what evidence they use, which witnesses they call. influence over the composition of a jury and complete control over the way the case is put.

28
Q

The Role of the Judge

A

Indépendant umpire to endure the case is conducted accordingly and both sides are treated fairly. The judge cannot take sides or force parties to present the case in any particular way.

29
Q

Rules of evidence and procedure

A

relevant and admissible evidence is allowed, witnesses give evidence orally with the ability to be cross examined.

30
Q

The need for Legal Presentation

A

equal opportunity to be represented, each party is represented fairly with fair chance

31
Q

The burden and standard of proof

A

Plaintiff holds the burden of proof. Standard is based on a balance of probabilities.

32
Q

Damages

A

Amount of money given as compensation for the loss of a party in a civil case.

33
Q

Special Damages

A

Compensate the injured party for items that can be calculated e.g. medical expenses

34
Q

General Damages

A

Compensate the plaintiff for pain and suffering, estimated amount.

35
Q

Aggravated Damages

A

injured plaintiffs feelings

36
Q

Nominal Damages

A

Awarded by the court if they believe the defendant has infringed the plaintiffs rights but the plaintiff did not suffer any loss.

37
Q

Exemplary Damages

A

Punish the defendant. If the defendants action was so negligent that they want to deter others from doing it.

38
Q

Restrictive Injunction

A

A court order stopping someone from doing something

39
Q

Mandatory Injunction

A

A court order compelling someone to do something.

40
Q

Orders for Specific Performance

A

Order directing someone to complete a contract

41
Q

Enforcement Procedures

A
  • warrant of seizure and sale
  • an attachment of earnings
  • an attachment of debts
  • bankruptcy
  • enforcement of injunctions
42
Q

Warrant of Seizure and Sale

A

The property is seized from the debtor and sold so the creditor can receive the money which was awarded to them

43
Q

An Attachment of Earnings

A

Forces the debtors employee to pay the debt at regular intervals directly out of the debtors wages to the creditor.

44
Q

An attachment of Debts

A

A third person, who owes money to the debtor, pays the debt directly to the creditor.

45
Q

Bankruptcy

A

Serve a bankruptcy notice on the defendant. The debt must be paid in a specific time, if not the property and debt is placed in the hands of the trustee

46
Q

Enforcement of Injunctions

A

A person is in contempt of court if they don’t follow an injunction. It can impose a term of imprisonment a fine or both

47
Q

Difficulties faced by parties

A
  • Not aware of their rights
  • Long delays
  • High cost of legal representation
  • difficulty enforcing a court order
  • difficulting in acquiring necessary evidence