UNIT 2: AOS 2 Flashcards
Civilian jurisdiction of the County Court
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
Civilian Jurisdiction of the Supreme Court Trial Procedure
1 Justice and an optional jury of 6 Original Jurisdiction: unlimited Appellate jurisdiction: appeals on point of law from the Magistrates Court and VCAT
Civil Jurisdiction of the Supreme Court Court of Appeal
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
Methods of Civil Dispute
Mediation
Conciliation
Arbitration
Judicial determination
Mediation
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
Conciliation
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
Arbitration
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
Judicial Determination
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.
Purpose of civil pre trial procedures
- 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.
Operation of civil pre trial procedures
Pleadings Discovery Directions Hearing Notice Of Trial Offer of Compromise
Pleadings
- A writ or originating notice
- A statement of claim
- A notice of appearance
- A defence and counterclaim
- Further or better particulars
Discovery
- Interrogatories
- Discovery (documentation, oral examination and medical examination)
Writ or Originating Notice
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
Statement of Claim
A document giving the details of the claim made by the plaintiff
Notice of appearance.
Filed with the court and served on the plaintiff by the defendant, showing that they want to defend the case
Defence and counter claim
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
Further or better particulars
Request of further details of the other party’s claims (more details of the case) e.g asking more details about that contract
Interrogatories
A list of questions about the case between either party
Discovery of documentation
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
Discovery by oral examination
One party may ask the court if they can put questions to the other party before going to court
Discovery by medical examination
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
The Civil Jurisdiction of the Magistrates Court
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
Directions hearing
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
Notice of trial
issued by the court when both sides have completed the pre-trial procedures. It states the time and place of the trial
Offer of compromise
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.
Adversary System
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
The Role of the Parties
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.
The Role of the Judge
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.
Rules of evidence and procedure
relevant and admissible evidence is allowed, witnesses give evidence orally with the ability to be cross examined.
The need for Legal Presentation
equal opportunity to be represented, each party is represented fairly with fair chance
The burden and standard of proof
Plaintiff holds the burden of proof. Standard is based on a balance of probabilities.
Damages
Amount of money given as compensation for the loss of a party in a civil case.
Special Damages
Compensate the injured party for items that can be calculated e.g. medical expenses
General Damages
Compensate the plaintiff for pain and suffering, estimated amount.
Aggravated Damages
injured plaintiffs feelings
Nominal Damages
Awarded by the court if they believe the defendant has infringed the plaintiffs rights but the plaintiff did not suffer any loss.
Exemplary Damages
Punish the defendant. If the defendants action was so negligent that they want to deter others from doing it.
Restrictive Injunction
A court order stopping someone from doing something
Mandatory Injunction
A court order compelling someone to do something.
Orders for Specific Performance
Order directing someone to complete a contract
Enforcement Procedures
- warrant of seizure and sale
- an attachment of earnings
- an attachment of debts
- bankruptcy
- enforcement of injunctions
Warrant of Seizure and Sale
The property is seized from the debtor and sold so the creditor can receive the money which was awarded to them
An Attachment of Earnings
Forces the debtors employee to pay the debt at regular intervals directly out of the debtors wages to the creditor.
An attachment of Debts
A third person, who owes money to the debtor, pays the debt directly to the creditor.
Bankruptcy
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
Enforcement of Injunctions
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
Difficulties faced by parties
- Not aware of their rights
- Long delays
- High cost of legal representation
- difficulty enforcing a court order
- difficulting in acquiring necessary evidence
