Unit 2 EXAM- glossary terms

Question 1

access

Answer 1

all people should be able to engage with the justice system and its processes on an informed basis. In the civil justice system, access is crucial as it allows parties to comprehend their legal entitlements, and the different elements involved in their dispute.

Question 2

Arbitration

Answer 2

a non-judicial dispute resolution method involving an independent third party, known as the arbitrator, who listens to evidence presented by parties and makes a binding decision. Arbitration is commonly used to resolve disputes related to large commercial contracts privately, as an alternative to conducting a trial in court.

Question 3

Australian Constitution

Answer 3

The founding document of Australia that sets out the composition of the Australian Parliament, its function, layout and its powers. The Constitution differs from regular legislation in Australia in that it can only be altered via referendum in which a majority of electors from all states and territories, and a majority of electors in a majority of states approve the amendment.

Question 4

Breach

Answer 4

An act or omission that represents a failure to meet a legal obligation. As civil law protects certain individual rights, such as defamation laws protecting the right to good reputation, when these rights have been infringed, it means civil law has been breached.

Question 5

Burden of proof

Answer 5

is the responsibility of a party to prove the facts of a case. In a civil case the burden of proof rests with the plaintiff who is bringing the action., it is not the responsibility of the defendant to disprove their liability.

Question 6

causation

Answer 6

the relationship between an event or action and a resulting event. To establish a claim, the plaintiff needs to show that the defendant’s breach was a necessary condition of the loss suffered, meaning that the harm sustained by the plaintiff would not have occurred but for the defendant’s action, or inaction.

Question 7

civil jurisdiction

Answer 7

is the legal power of a court or other authority to make decisions in civil cases. The Victorian court hierarchy ranks courts from least to most superior and enables civil disputes to be appropriately and efficiently heard with each court in the hierarchy developing their own specialist jurisdiction. The courts may have both an original, and an appellate jurisdiction, or may only have either original or appellate jurisdiction.

Question 8

civil law

Answer 8

governs disputes relating to the rights of two parties (which can be individuals, or organisations), and aims to restore parties to the position they were in before their rights were infringed and they suffered injury or loss. Claims in civil law can include negligence and defamation and enable the party whose rights have been infringed to seek compensation for their loss or injury.

Question 9

common law

Answer 9

is the body of law that is derived from judicial reasoning and decisions in past cases. Common law is created where a legal issue arises and there is no existing law, and the facts of the case are different to any previous cases. In these cases, the court creates a new principle of law (common law) to resolve the issue, which will then be followed in future cases of a similar nature.

Question 10

complaints bodies

Answer 10

are organisations that deal with complaints and assist with dispute resolution in relation to the provision of goods and services, or decisions made by authorities. Consumer Affairs Victoria is a civil complaints body that provides information and helps resolve disputes to create a fair and competitive marketplace for consumers and businesses.

Question 11

conciliation

Answer 11

a non-judicial dispute resolution method involving an independent third party, known as the conciliator, who possesses specialist knowledge about the type of dispute in question and assists parties in a dispute to reach a resolution. The conciliator facilitates communication between the disputing parties, whilst also providing them with their own opinions, perspectives and possible solutions.

Question 12

damages

Answer 12

are a type of remedy in which monetary compensation is awarded to the plaintiff in a civil dispute to compensate their loss caused by a civil breach. Damages can include replacing the monetary value of a property, covering expenses, and compensating for the loss, pain and suffering related to a plaintiff’s injury, or death.

Question 13

defamation

Answer 13

is an area of civil law that aims to protect a plaintiff from having their reputation unfairly damaged. An action in defamation cannot be pursued if the defamatory statement is true, meaning it only protects the plaintiffs from false statements that unjustly damage their reputation, striking an appropriate balance between protecting a person’s reputation and the protection of free speech.

Question 14

defences

Answer 14

are legally recognised arguments used by a party to justify their actions, so as to claim they are innocent of a crime, or not liable for a civil breach.. Some defences are a complete defence such as the voluntary assumption of risk, while other defences such as contributory negligence do not negate the defendant’s liability but will reduce the damages awarded to the plaintiff by the percentage to which the plaintiff has contributed to their own injury.

Question 15

defendant

Answer 15

is the party liable that is defending themselves against a claim by another person, the plaintiff, for an alleged breach of civil law. The defendant may be an individual, company, or institution and there may be one or multiple defendants that are directly or indirectly responsible for the breach of the plaintiff’s rights.

Question 16

elements of an offence

Answer 16

are what the plaintiff needs to prove occurred on the balance of probabilities in order to establish the liability of a defendant. For example, one element of negligence is that the defendant owed the plaintiff a duty of care, such as the duty a teacher owes to take reasonable steps to ensure the safety of their students.

Question 17

equality

Answer 17

all people engaging with the justice system and its processes should be treated in the same way; if the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow all to engage with the justice system without disparity or disadvantage. Equality aims to protect participants in the civil justice system from discrimination based on personal attributes such as age, gender, wealth, native language, ethnicity and religion.

Question 18

fairness

Answer 18

all people can participate in the justice system and its processes should be impartial and open. Fairness is central to the civil justice system as each plaintiff has the ability to protect their civil rights before the law, and each defendant can defend themselves against claims.

Question 19

human rights

Answer 19

are entitlements and liberties that exist for all human beings, irrespective of personal qualities and characteristics. Human rights are basic entitlements that people from around the world agree are esential for all people to maintain a cohesive and functioning society.

Question 20

injunctions

Answer 20

are court orders (civil remedies) compelling a party to do something, or preventing a party from doing something. Injunctions either remedy a past civil breach or prevent a potential future civil breach from occurring. If the defendant does not comply with the terms of the injunction, they may be held in contempt of court.

Question 21

jury

Answer 21

is a group of randomly selected people who are required to deliver a verdict in a trial based on the evidence presented to them in court. In civil trials a jury of six will determine both the verdict, and the damages awarded to the plaintiff, except in defamation cases where the jury will determine liability, but not damages.

Question 22

liability

Answer 22

the state of being legally responsible for something. The key question for the judge or jury to determine in a civil case is whether the defendant is liable for the plaintiff’s injuries. If liability is established then a civil remedy will be awarded to the plaintiff.

Question 23

limitation of actions

Answer 23

is a restriction on the time limit in which a plaintiff must commence a civil action in court, after which the plaintiff is unable to bring an action relating to the civil wrong against the defendant. Different causes of action will have different time limits that apply to them, for example, a defamation action must be brought within one year of the defamatory statement being made.

Question 24

loss

Answer 24

a disadvantage experienced by a party due to an action or the inaction of another party. A plaintiff must have suffered loss in order to be granted a remedy by the courts when taking civil action.

Question 25

mediation

Answer 25

is a non-judicial dispute resolution method involving an independent third party, known as the mediator, who facilitates conversations between disputing groups. The mediator assists the parties to reach a voluntary resolution, however the outcome of mediation is not legally binding unless the parties choose to document their agreement into a deed of settlement signed by the parties, which can then be made the subject of a court order.

Question 26

negligence

Answer 26

a failure to behave with the level of care to prevent loss or injury to another person, that a reasonable person would have exercised under the same circumstances. For example, it is well established that a motor vehicle driver owes a duty of care to other road users to drive their own vehicle to the standard of care that would be expected of the reasonable driver. If they breach this standard of care and the plaintiff is injured or suffers loss as a result of this breach then the driver will be liable in negligence to the plaintiff.

Question 27

ombudsman

Answer 27

an independent authority that operates on state and federal levels and is created to investigate complaints against a company or organisation. The Ombudsman will usually only intervene in a dispute if the parties have not first attempted to resolve the dispute themselves, and if the parties cannot find a solution then the ombudsman can make a legally binding decision, depending on the nature of the complaint and the power of the ombudsman in question.

Question 28

plaintiff

Answer 28

the party that initiates a civil claim against another person, the defendant, in court. In a civil case, the plaintiff is the party, or parties, who have had their rights breached and consequently is claiming a civil remedy as a result of loss or damage they have sustained resulting from that breach.

Question 29

principles of justice

Answer 29

are fairness, equality and access. These principles form the basis for assessing whether justice has been achieved in the legal system, and the Victorian civil justice system is composed of a range of legal principles, mechanisms and processes to attempt to uphold these principles.

Question 30

reforms

Answer 30

in a legal context are changes suggested or made to a law in order to improve it. For example, several reforms have been suggested to the right to vote in Australia, such as lowering the legal voting age to 16 years old.

Question 31

remedies

Answer 31

are court orders that aim to enforce a right by preventing a civil breach, or correct a civil breach and return the plaintiff to the position they were in prior to the breach by the defendant. For example, damages are a type of civil remedy in which monetary compensation is awarded to the plaintiff in a civil dispute to compensate their loss caused by a civil breach.

Question 32

standard of proof

Answer 32

is the degree to which the facts of a case must be proven in court. The standard of proof applicable in a civil proceeding is ‘on the balance of probabilities’ which requires the plaintiff to prove that it is more probable than not that their injury or loss was caused by the defendant’s act or omission.

Question 33

statute law

Answer 33

is the body of law that comprises laws made by parliament also known as legislation. In order for a proposed law to come into effect, it must receive approval from a majority of the members in both Houses of Parliament and then receive final approval from the King’s representative (known as the Governor at State level, and the Governor-General at Commonwealth level).

Question 34

tribunals

Answer 34

is an institution with the authority to judge, adjudicate, or determine civil claims or disputes. The Victorian Civil and Administrative Tribunal (VCAT) is a dispute resolution body that has the power to hear and determine certain types of civil and administrative disputes.

Question 35

VCHRR

Answer 35

is a piece of Victorian legislation that sets out human rights, freedoms, and the responsibilities of the government and public bodies to protect these. The VCHRR requires Victorian Parliament to review bills and determine their compatibility with the rights set out in the Charter, whilst encouraging debate if the bill is incompatible with human rights.