Flashcards in Civil Law In Action Deck (31):
Children's court jurisdiction
Family division heads care and protection applications for children under 17
County court original jursidiction
Unlimited - litigants can choose to have case heard in county or supreme
Option of 6 jurors
More complex cases heard in supreme
County court appellate jurisdiction
No appelate unless under specific act
Supreme Court (trial division) original jurisdiction
Supreme Court (trial division) appellate jurisdiction
Appeals in points of law from mag court and VCAT
Supreme (court of appeal) appellate jurisdiction.
With leave on point of law, or question of fact, or amount of damages from a single judge of county court, Supreme Court of VCAT
What is mediation? (Alternative dispute resolution method)
If individuals are unable to come to agreement, a third party (mediator) may be required. Encourages parties to make a decision between themselves
What is conciliation? (ADR method)
Requires a third party who listens to both sides of the story and makes suggestions about resolving the matter
What is judicial determination
Resolving disputes through the courts and VCAT. Judges are known as judicial officers. Usually last resort as expensive and time consuming
Strengths and weaknesses of judicial determination
S - binding
- a court can set a new precedent
W - more expensive and time consuming
- can be stressful
Strenghts and weaknesses of mediation and conciliation
S- conciliator can give advice
- parties can avoid publicity
W - required willingness of both parties
- not binding
Strengths and weaknesses of arbitration
S - is binding
- more informal than judicial determination
W - more expensive than med and conc as parties may use legal rep
What is arbitration? (ADR method)
third party listens to the parties and tries to help them reach an agreement. If this is not possible, the third party makes a decision
What is the purpose of pre trial procedures? (4)
Inform defendant of the case being brought against him/her
- to clarify the issues of dispute
- to encourage out of court settlement
- to provide details about each other's case
What is the letter of demand and who sends it?
Solicitor will send letter of demand to person you think has infringed your rights.
Letter will request early settlement of the matter.
If settlement can't be reached you can take the matter further
What does pleadings stage include?
A writ - prepared by plaintiff, explains action that will be taken against defendant
Statement of claim - gives details of claim made by plaintiff, prepared by plaintiff and attached to writ
Notice of appearance - shows defendant wishes to defend the case
What is the discovery stage?
Allows parties to find out further info on matters that remain unclear
What are the 4 stages of discovery
Discovery of documents - each side discloses any relative documents
Interrogations - list of questions about the case served by either party on the other
Discovery by oral examination - party may ask court if they can ask other party questions before going to court
Medical examination - either side may ask other to attend one if necessary
What are the role of jurors in a civil case? And when are they used
To consider the facts of the case and decide who is most likely in the wrong and decide the level of damages for the plaintiff.
Used mainly in defamation cases but are optional
What is the aim of civil remedies?
To restore the party who has suffered to the position they were in before the incident occurred
What are the 3 compensatory damages?
Specific damages - compensate for items that can be calculated eg. Loss of wages
General damages - compensate for pain and suffering eg. Loss of enjoyment of life
Aggravated damages - compensate further if court believes plaintiff suffered humiliation and insult
What are nominal damages?
Awarded if court believes defendant has infringed plaintiffs rights, but plaintiff didn't suffer any actual loss. Awards small amount of compensation
What are exemplary damages?
Awarded if the defendants actions were so negligent the court wishes to deter others from doing the same
What are injunctions?
Civil remedy aimed at stopping someone from doing something or to make someone do something
What are restrictive injunctions?
Stops someone from doing something eg. Stop a building being destroyed
What are mandatory injunctions?
Compels someone to do something eg. To remove something from their land
What are is an attachment of earnings offer? (Enforcement procedure)
Attachment of earnings order - forces the judgment debtors employee to pay the debts at regular intervals out of judgment debtors wages to the judgment creditor
What is an attachment of debts order? (Enforcement procedure)
Involves a garnishee (third person) who owes money to the judgement debtor, pays debt directly to judgement creditor
What are 3 difficulties that may be faced when trying to access the law?
- people may not be aware of their rights
- a jury may have difficulty understanding evidence
- people feel traumatised by the prospect of persuing a claim
What are two avenues of dispute resolution?
VCAT- VCAT has many lists that specialise in hearing different types of civil disputes
Consumer affairs Victoria - helps people who have a consumer dispute