Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

legal year 12 > aos3 > Flashcards

aos3 Flashcards

1
Q

civil disputes

A

a disagreement between two or more individuals whereby one group or party makes a claim against usually, claiming a loss

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

purpose of civil law

A

allow party to enable their rights
determine whether a party is liable
award a remedy and return plaintiff to their pre tort position

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

plaintiff

A

the party who commences the civil action and claims their rights have been infringed or a wrong has occurred

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

defendant

A

the party who is ALLEGED to have infringed the plaintiffs rights or is alleged to be responsible for the wrongdoing

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

vicarious liability

A

if an employee infringes a persons rights whilst acting in a course of their employment, the injured person may be able to sue the employer via vicarious liability

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

burden of proof

A

the plaintiff has burden of proof- the onus that their claim is supported by facts

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

standard of proof

A

level or strength of evidence required to prove the facts of the case
ON THE BALANCE OF PROBABILITIES= more probable or more likely than not that their claim is true

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

complaints body

A

govt funded, statutory bodies that exist to investigate complaints from people about the conduct of other parties

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

what are three types of cost

A

legal representation
disbursements
adverse court orders

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

legal rep

A

solicitor: preparing the case= seek legal advice, draft and file legal documents
barrister: need to represent client in pre trial hearings or present their case at court
cost of legal rep depends on the complexity of the case and what court/tribunal its being heard at

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

disbursements

A

preparing the case outside of legal rep=
-court fees= filing fees, hearing fees, jury (optional)
-writ in County Court=$779
-hearing fee in CC=$1606 first day then $303.60 for after
-fees for expert witness, mediation fees etc

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

adverse court orders

A

one party pays for the other party’s legal costs, if plaintiff is unsuccessful then they have to pay for some or all of the defendants legal cost

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

define of limitation of actions

A

a restriction on the time limit in which a
plaintiff must a commence a civil action in court, after which time, the plaintiff is unable to bring an action relating to the civil wrong against the defendant
legislation= Limitations of Actions Act 1958 (Vic)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

why does limitation of actions exist

A

-encourage parties to have matters heard in a timely matter
-ability for witnesses to recall info
-quality of evidence to support party’s claim is strong
-ensure that defendant does not have to defend a civil action after a significant period of time

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

civil actions that have a limitation

A

defamation= one year
personal injury= three years
negligence= six years
breach of contract= six years
action to recover land= 15 years
action to claim personal estate of a deceased person= 15 years

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

define enforcement issues

A

a factor that involves the plaintiff considering that if they are successful in their claim, can their claim be enforced on the defendant

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

enforcement issues can be considered by

A

-defendant has/likely to declare bankruptcy or is an unemployed individual
-defendant is a company, may not have assets to sell
-defendant is in prison
-defendant has relocated overseas permanently
-defendant is unknown or cannot be identified

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

impartiality in civil disputes

A

-both parties have an independent and impartial adjudicator preside over their dispute
-if parties want a jury, jury is not biased and decides liability based on facts and evidence not prejudice

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

open processes in civil disputes

A

-disputes that utilize the courts are open to the public which promotes transparency and ensures that legal personnel are held answerable and accountable for their actions

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

participation in civil disputes

A

-parties have the right to launch a civil dispute if they believe there has been an infringement on their rights
-parties can utilize many other dispute resolution such as mediation, conciliation etc…
-series of pre trials such as pleadings, discovery of documents and directions, the defendant is able to gain information on the claim and can prepare an adequate case against

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

formal equality in civil disputes

A

-all parties can initiate a civil claim in they believe there has been an infringement of their rights
-all parties have an impartial adjudicator who oversees the case to ensure both parties have the chance to represent their cases
-all parties must engage in pre trial procedures to ensure adequate preparation and presentation of their case
-all parties are allowed to request for a jury
-all parties can have legal representation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

substantive equality in civil disputes

A

-if parties can’t afford legal representation, then they may be able to self represent and the judge or magistrate can explain the processes and certain rights
-VLA and CLC are able to provide support to parties who cannot afford representation (with eligibility)
-interpreters can be utilized for non english speakers
-there are other methods of dispute resolution for those who may not have financial costs for judicial determination, such as mediation which is slightly cheaper

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

engagement in civil disputes –>
engagement refers to more things such as costs and accessibility

A

-range of dispute resolution methods available to parties
-tech development that allows disputes to be heard remotely
-financial access= VLA or CLC and CAV for human rights matter herd by VCAT are free
-class actions allows costs to be slightly lower for each individual party
-VCAT has discounts for those on pension cards

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

informed basis in civil disputes

A

-specialist CLC’s can assist those deemed vulnerable in society= eg AED= Association for Employees with Disabilities is established to assist individuals with disabilities regarding matters such as bullying and harassment in the workplace
-online websites such as VCAT, VLA provide FREE legal advice

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

mediation

A

involves an impartial third party who helps facilitate communication between parties in order for them to cooperate to reach a resolution
-legal rep is not usually needed however can be used
-one of the more informal methods of resolving disputes
-no strict rules of evidence and procedure
-ant decision is not legally binding unless a deed of settlement is signed by both parties

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

terms of settlement/deeds of settlement

A

a legally binding document that outlines the term that the parties have agreed to after mediation which can be enforceable through courts if parties don’t comply

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

when can mediation be used

A

before court= before engaging in courts
during court= magistate, county or supreme can order parties to attend as a pre trial procedure
mediation as an alternative to court= VCAT

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

mediation appropriate

A

-both parties are willing to discuss and negotiate and compromise
-parties don’t have financial means or don’t want to spend all their money
-a relationship needs to be maintained by parties
-parties prefer privacy and do not want the mater publicised or receive exposure
-a resolution needs to be reached quickly

29
Q

mediation is inappropriate

A

-relationship doesn’t need to be salvaged
-parties have the financial means to get legal rep and go through courts
-parties are willing to wait for courts
-parties aren’t willing to discuss ideas and cooperate together
-there is one dominant party
-parties want exposure or publicity on their case

30
Q

conciliation

A

involves impartial third party who facilitates communication between the parties to help them reach a resolution and is also able to make suggestions regarding ways and options to resolve disputes
-conciliator will generally be an individual with specialist knowledge in that field regarding that legal dispute

31
Q

when is conciliation used

A

-can be ordered to attend it
-tend to be the main methods used in tribunals and complaints bodies

32
Q

conciliation appropriate

A

-parties are willing to work together and reach a resolution
-parties don’t want to pay costs associated with judicial determination
-parties don’t want a legally binding document
-parties want to maintain a relationship
-parties want to partake in coming up with a resolution

33
Q

inappropriateness of conciliation

A

-parties are highly emotional
-parties aren’t willing to discuss with each other
-there is a history between two parties that means the relationship does not need to be maintained
-there is a power imbalance between parties=one party is more dominant
-parties want a binding result to ensure the resolution is upheld

34
Q

arbitration

A

one of the more formal alternate resolution methods
private
no rules of procedure and evidence
-involves an impartial third party arbitrator who listens to evidence and facts presented by both parties and possible representatives and make a legally binding decision

35
Q

when is arbitration used

A

private= arranged by parties themselves/ commercial transactions where it is stated in their contracts
in court= small claim is filed in the Magistrate Court for under 10k then parties are obligated to attend arbitration/ matters over 10k in mag court can also go to arbitration with consent of parties
tribunals= VCAT can refer parties to arbitration before the final hearing however doesn’t conduct it themselves
-county and supreme court as well if parties consent

36
Q

appropriatness of arbitration

A

-parties consent or agree to attend
-parties want to benefit to a legally binding decision
-parties want matter to be heard privately
-parties want a more formal procedure and want an impartial third party to view evidence and facts presented

37
Q

administrative convenience

A

-refers to the ability of the courts to distribute resources more effectively by organising disputes according to how serious or complex they are
–> for example, Supreme Court can devote free time to resources to long and complex disputes as the court is not delayed by resolving minor disputes

38
Q

strength of administrative convenience

A

-allows more complex cases to be resolved in a more efficient manner whilst also allowing for expertise

39
Q

weakness of administrative convenience

A

-there is a lack of judges in Victoria for the supreme court (29) and this could lead to delays

40
Q

appeals

A

-allows for a dissatisfied party to have their case reviewed by a higher court

41
Q

how to get an appeal

A

grounds/leave/permission for appeals:
-questions of law=law hasn’t been applied correctly
-questions of fact=whether facts of the case has been applied appropriately to reach a decision
-the remedy awarded

42
Q

strength of an appeal

A

-allows for the party to get case reviewed if they are unhappy= increases participation
-all parties can appeal= formal equality

43
Q

weaknesses of appeal

A

-to appeal, must have a plausible reason–>may be refused= decrease fairness
-may lead to delays

44
Q

judge

A

an independent authority who presides over a trial, ensuring procedural fairness by overseeing all personnel and evidence

45
Q

magistrate

A

an independent authority who presides over hearings in the Mag court for less serious summary offences, committal proceedings and some civil disputes

46
Q

justice

A

a judge in a relatively superior court in the hierarchy such as Supreme Court of Vic

47
Q

role of judge= case management before trial

A

purpose of this stage is to ensure that the case is ready for trial or to determine whether the matter can be resolved prior to trial, involves
-giving directions to party=pose an obligation on a party, or both, to do something by a certain time or specify how something will be conducted; this involves
-filing a particular document by a certain date
-discovery process so ensuring parties get copies of each others documents that are relevant to the issues
-attending mediation= judge may order parties to attend mediation by a certain date to try and resolve the dispute

48
Q

judge= case management during trial

A

-ensuring correct procedure is followed
-limit the examination of witnesses or not allowing cross-examination of certain witnesses or time limits on examination in chief
-limit the number of witnesses a party may call
-limit the number of documents that a party may tender into evidence
-ask witnesses some questions to clarify evidence
-hand down a ruling
-ensuring parties who are self represented, are able to understand their rights and obligations along with court processes

49
Q

other general roles of judges

A

-act impartial
-apply rules of evidence and procedure
-direct the jury
-determining liability and awarding remedies

50
Q

strength of judge

A

-impartial= ensure trials are conducted without bias or prejudice
-ensure rules of evidence and procedure apply and therefore allowing parties to present their case
-case management enhance the accessibility of courts

51
Q

weaknesses of judges

A

-rely on evidence of parties to make a judgement and if parties are self represented, this can prevent all relevant facts from being presented which can lead to an unfair trial
-impartiality isn’t guaranteed because still human and therefore may form subconscious bias or have prejudice due to personal beliefs
-accessing judges can be difficult all together because of high costs and time consuming

52
Q

judge in criminal vs judge in civil

A

criminal:
-hands down sanction only (where a jury is applicable)
-pre trial procedures= committal proceedings and it is NOT the same judge for the indictable trial
-judges play a less active role because it is role of prosecution to prove facts of the case
similarities:
-both give directions to jury
-both are impartial
-oversee case and ensure rules of evidence and procedure are followed
-deciding amiss-ability of evidence
judge in civil:
-can order parties to ADR
-determine liability and remedy
-case management and same judge will case manage
-also take the opportunity to assist and guide those who are unrepresented

53
Q

role of parties

A

party control:
determine what and how they will present their case at court

54
Q

role of plaintiff

A

party control involves=
-choosing which court to bring their claim
-what evidence to present
-choice of witnesses to use
-what defences they will raise
-disclosing information to the defendant
-presenting evidence
-lay evidence= evidence given by ordinary person
-opening addresses to judge
-cross examination

55
Q

role of defendant

A

-raise evidence
-call their own witnesses
-disclose evidence
-present defences

56
Q

what is the legislation that makes parties to disclose evidence

A

Civil Procedures Act 2010

57
Q

strengths of parties

A

-parties have control over their case and what evidence over what they present which increases participation
-given same opportunity ton present their case
-must abide by court rules of evidence and procedure
-courts provide some general assistance to those who are self represented so that they can ensure they understand court processes

58
Q

weaknesses of parties

A

-self represented may be at a disadvantage as they may not understand documents, legal terms and court processes
-some parties may not be able to afford legal rep
-vla are typically unable to provide legal rep for civil disputes

59
Q

similarities and differences for parties

A

similarities:
-have to disclose information
-present evidence
-can provide defences
-access to an impartial adjudicator
-access to impartial jury
-exercise party
control
parties in criminal:
-can enter into a plea
-judges may adjourn the case if parties aren’t represented
-prosecution must disclose information to the defendant
parties in civil:
-lots of pre trial procedures that parties may have to attend
-have the opportunity to have their case heard in a number of different ways
-can be self represented and if so can get
assistance and guidance from the judge
-expectation that parties attend an ADR to save time and resources

60
Q

how jury are used

A

-parties aren’t entitled to a jury in a civil case
-if party wants a jury, they must pay for it themselves not the state
-judge can order for case to be heard judge alone
-don’t have to give reason on why they reached verdict
if there is a jury, it is 6 jury members

61
Q

main role of a jury

A

-remain objective and impartial= remain independent and unbiased throughout the proceeding and if there is connection for it to be known and then they are dismissed
-must listen to evidence presented by both sides and reach verdict based of facts and evidence
-jurors can take notes and keep track of info throughput trial
-ask judge to explain legal terms
-main role is to determine the liability of the defendant and can also contribute to handing down an appropriate remedy

62
Q

why legal rep is needed

A

-civil system is very complex and difficult to navigate due to its processes
-parties want to rely on expertise and experience of a legal rep to present and prepare their best case to ensure best remedy or defence
-a party may be too emotionally invested in the case and hinder their ability how to present their case
-a party may need assistance to identify and collect relevant evidence

63
Q

solicitors

A

a specifically trained individual who helps prepare the case for individuals, normally the first person a party sees for legal advice
-provide clients about the likelihood of success on their legal matter or identifying clients factors to consider before initiating a claim
-prepare legal documentation, speak to witnesses, locate evidence, help write a writ, research relevant law
-communicate with barrister and also give them instructions in court in how to present case

64
Q

barrister

A

responsible for presenting the case in court
-making legal arguments and presenting evidence
-question witnesses
-summarise case for the judge and jury
-once case is over, ensure a legally binding document is formed and that it is binding on both parties

65
Q

legal assistance in civil

A

-persons case is not adjourned in civil because they are self represented however a judge has the duty to give them assistance and guidance

66
Q

vla

A

may be more difficult for parties of low socio economic to get legal rep
-may grant legal assistance to plaintiffs in civil cases where the amount of the claim is 5000 or more
-defendant may receive rep if the claim is more than 5000, the defendants sole home is at immediate risk in the action and there is a strong prospect that the defendant can defend the claim

67
Q

clc

A

-aed legal centres in melb can assist people with disabilities who have employment and education related legal problems

68
Q
A

legal year 12 (3 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions