Exam

Question 0

Explain the difference between the burden and standard of proof

Answer 0

The burden of proof falls on the plaintiff as they are required to prove their claim, however the standard of proof is based on the balance of probability and is necessary to see whether a claim made is most likely correct.

Question 1

Why is there a need for civil laws in society?

Answer 1

To protect the rights of each individual and parties.

Question 2

Name the two parties to a case in civil law.

Answer 2

1. Plaintiff

2. Defendant

Question 3

What is the aim of Civil law?

Answer 3

To regulate conduct between parties, and provide compensation to an injured party.

Question 4

What is the purpose of criminal sanctions/ civil remedies?

Answer 4

To restore an injured party or wronged party (plaintiff) to the position they were in before the act or omission occurred.

Question 5

What are the two situations in which courts can make laws called?

Answer 5

1. Common law

2. Statutory interpretation

Question 6

What are common law rules?

Answer 6

If parliament is silent on an area or has not yet passed a relevant act, the courts have the ability to make their own laws.

Question 7

How is precedent created?

Answer 7

When courts reach a decision in a case they state the reasons for their decision. These law principles that concern what the law is and means will be applied to future cases in the same way.

Question 8

List the Victorian court hierarchy

Answer 8

Supreme Court (Court of appeal)
Supreme Court (Trial division)
County Court
Magistrates court

Question 9

Define the doctrine of precedent

Answer 9

A common law principle where the decisions of superior courts of record are binding on courts lower in the same hierarchy, where the material facts of the case are similar.

Question 10

What is the principle of Stare Decisis?

Answer 10

To stand by what has been decided. Courts will look to what other judges in cases before theirs have decided, and follow the decisions of those courts. Brings certainty and consistency to the common law.

Question 11

Which courts can create precedent?

Answer 11

Superior courts of record.

Question 12

What is Ratio Decindendi?

Answer 12

When judges in superior courts publish their decisions, a reason for that decision is included. The Ratio Decidendi is the reason for the decision.

Question 13

EXAM TIP - what forms precedent?

Answer 13

Never say that the verdict itself forms precedent. Precedent is only made by a legal idea present in the case. Only a decision on the law principle can change the common law!

Question 14

What is Obiter Dictum?

Answer 14

Obiter Dictum statements are comments made ‘by the way’ by judges in their written judgements in a case. Judges will not only provide the Ratio Decidendi, they will often write comments about what the law on a particular matter could be and how future issues might be resolved.

Question 15

When will a precedent be binding?

Answer 15

1. Set by Superior Court of record
2. Set in the same court hierarchy
3. Set by a court higher in the hierarchy
4. The material facts of the case are similar

Question 16

How does persuasive precedent work?

Answer 16

The parties to the case will attempt to influence the way the new law is created - they will try to persuade the judge as to what the law should be. Can be influential and informative.

Question 17

Persuasive precedent may be:

Answer 17

1. A precedent set in another court hierarchy (another state or another country)
2. Decisions made by courts on the same level in the court hierarchy
3. Decisions made by courts lower in the hierarchy
4. Precedents set in cases were the material facts were slightly different
5. Comment made ‘by the way’ in Obiter dictums of previous cases

Question 18

Explain what is meant by the term Doctrine of Precedent?

Answer 18

A common legal principle where the decisions made by superior courts of record are binding on courts lower in the same hierarchy were the material facts of the case are similar.

Question 19

Why is Ratio Decidendi important to the doctrine of precedent?

Answer 19

Because the legal reasons for a decision are published in the Ratio Decidendi and the legal reasons for decisions are what forms precedent.

Question 20

What is the primary role of the courts?

Answer 20

To make decisions on facts of law and resolve disputes. A by-product of this is that decisions made can form law.

Question 21

What are the four ways in which a judge can depart from precedent? (list them here but must add summary in exam)

Answer 21

RODD

1. Reversing
2. Overruling
3. Distinguishing a case on the facts
4. Disapproving

Question 22

What is reversing a precedent?

Answer 22

A party that loses a case, appeals against the original decision and the appeal is upheld; this means that the original decision has been reversed. This creates a new precedent that is binding on lower and the one previously set is discarded.

Question 23

What is overruling a precedent? (Requires two separate cases)

Answer 23

A superior court decides not to follow a decision of a lower court and discards that previous decision. For example a precedent set in the Supreme Court (Trial Division) in 1997 was referred to a case in the Court of Appeal in 2007 and the court of appeal decided not to follow it as they believed it was wrongly decided, the Court of Appeal would be said to have overrule the Supreme courts 1997 decision.

Question 24

What is Distinguishing a case on the facts?

Answer 24

Decides not apply an existing binding precedent to the care before it because it is satisfied that the material facts of the current case are different from those in the precedent. This creates a precedent that sits side by side with the existing precedent.

Question 25

What is Disapproving to depart from precedent?

Answer 25

When a judge criticises an existing precedent in their Obiter dicta. A judge can then ignore the precedent and create their own, however the laws will then exist in conflict to each other because neither has more authority then the other.

Question 26

Briefly describe Donoghue v Stevenson. Decision Ratio Decidendi Impact

Answer 26

Lord Atkins found that the manufacturer owed a duty of care to the ultimate consumer. Ratio Decidendi stated that one must take reasonable care to avoid acts or omission which you can reasonable forsee would be likely to injure you neighbour. Established law of Negligence in England.

Question 27

What did Grant v Australian knitting mills establish?

Answer 27

The law of Negligence in Australia

Question 28

What is Statutory Interpretation?

Answer 28

The process of judges giving a more clear, up-to-date or specific meaning to words of phrases in legislation, I order to apply the law to the facts of a dispute.

Question 29

When engaging in Statutory Interpretation are Judges forming precedent?

Answer 29

Yes, when judges make a judicial decision on the meaning of words or phrase within acts of parliament this creates precedent, which is binding on lower courts and persuasive to other courts.

Question 30

Give a brief summary on the the first reason for Statutory Interpretation. Specific meaning

Answer 30

1. Specific meaning - most legislation is drafted in broad and general terms, but needs to be applied to specific circumstances. The courts must give a more specific meaning to parliaments vague terms.

Question 31

Give a brief summary of the second reason for statutory interpretation. Forsee

Answer 31

Legislation may not deal with a particular circumstance that arises in a case, parliament may have failed to forsee all future circumstances when drafting the act.

Question 32

Brief summary on the third reason for statutory interpretation. Ambiguous

Answer 32

The words in a legislation may be ambiguous, having several possible legitimate, but contradictory meanings. The court will need to decide which of the possible meanings best acheives the purpose of the legislation, or is the most logical.

Question 33

What are defences to negligence?

Answer 33

1. Contributory Negligence Defendant may try to prove plaintiff was slightly to blame. Should have know about risks. 2. Assumption of Risk (volenti non fit injuria) Voluntary acceptance of the risk of injury. Defendant must prove plaintiff was aware of an obvious risk.

Question 34

Define Negligence

Answer 34

Failure to take reasonable care. A person is obliged to take reasonable care in regard to other people, where it is reasonably foreseeable that other people could be harmed by their actions or omissions.

Question 35

Elements of Negligence that must be proved

Answer 35

1. A duty of care was owed 2. The duty of care was breached 3. The breach of duty of care caused harm

Question 36

Define defamation

Answer 36

Written or verbal statements that lower a persons good reputation in the eyes of the community.

Question 37

Elements of defamation that must be proved

Answer 37

1. The statement is defamatory 2. The defamatory statement refers to the plaintiff 3. The defendant published the defamatory statement

Question 38

Order of pleadings

Answer 38

1. Writ 2. Statement of claim 3. Notice of appearance 4. Statement of defence 5. Counterclaim 6. Better particulars

Question 39

Define Negligence

Answer 39

Failure to take reasonable care, when obliged to take reasonable care and when it is reasonably foreseeable that other people could be harmed by their actions or omissions.

Question 40

Name and brief description of 4 defences to defemation

Answer 40

1. Justification - Contextual truth 2. Absolute privilege - comments made during parliament, courts and tribunals 3. Innocent Dissemination - no prior knowledge of material being defamatory. 4. Triviality - unlikely to be harmed by defamatory material

Question 41

Brief summary of Juicial Determination

Answer 41

- Most formal dispute resolution method - Only method suitable for criminal disputes - Used by courts and Vcat - Automatically binding

Question 42

Brief summary of Mediation

Answer 42

- Third party facilitates discussion - Normally mandatory pre-trial procedure - Settle disputes between people who have to maintain an ongoing relationship - Normally enter binding settlement - Somewhat informal

Question 43

Brief summary of Conciliation

Answer 43

- Third party facilititates discussion who is normally an expert in the field - Makes suggestions - Normally enter binding settlement - Somewhat informal

Question 44

Brief summary of Arbitration

Answer 44

- Third party facilitates discussion and makes a binding decision - Normally conducted privately - More formal then arbitration and mediation

Question 45

Strengths of Judicial Determination

Answer 45

- Makes binding decisions | - Decisions more easily enforceable

Question 46

Weaknesses of Judicial Determination

Answer 46

- High cost of proceedings - Can be traumatic for parties to attend court - Can involve long delays

Question 47

Strengths of Mediation

Answer 47

- Parties more likely to reach a decision that is acceptable to both parties - Informal atmosphere - Less confrontational and therefore good for maintaining ongoing relationships - Can discuss matters openly because discussion cannot be used as evidence in court

Question 48

Weaknesses of Mediation

Answer 48

- Both parties must be prepared to attend - One party can influence a decision - Decisions not always binding - No advice about how to resolve dispute

Question 49

Strengths of Concilliation

Answer 49

- Parties more likely to reach a decision that is acceptable to both parties - Informal atmosphere - Conciliator can give advice - Discussions cannot be used as evidence in court

Question 50

Weaknesses of Conciliation

Answer 50

- Both parties must be prepared to attend - One party can influence a decision - Decisions not always binding

Question 51

Strengths of Arbitration

Answer 51

- Decisions are binding - Less formal than a court hearing - Advice given about how to resolve disputes

Question 52

Weaknesses of Arbitration

Answer 52

-Expensive

Question 53

Name the three pre-trial proceedings

Answer 53

1. Pleadings 2. Discovery 3. Directions Hearings

Question 54

Advantages of Pleadings

Answer 54

Parties are encouraged to agree on as many issues as possible. Any claim that the opposing party is willing to admit then does not need to be proven at trial.

Question 55

Disadvantages of Pleadings

Answer 55

Cooperation is limited as lawyers draft all documents and communication is limited.

Question 56

List the three stages of Discovery with brief explanation

Answer 56

1. Interrogatories - List of questions 2. Discovery and Production of documents 3. Medical examination and the provision of hospital records

Question 57

Advantages of Discovery process

Answer 57

Parties are encouraged to agree on as many issues as possible by being able to see the strength of supporting evidence. Any fact that the opposing party is willing to admit does not have to be proved in court.

Question 58

Disadvantages of Discovery process

Answer 58

The interpretation of evidence often differs wildly between parties, the same piece of evidence can be used by each party differently.

Question 59

What are directions hearings?

Answer 59

Directions hearings are conferences with the trial judge where the court may give any directions for the conduct of the case that it thinks will assist effective, prompt and economical resolution.

Question 60

What is the difference between an offer and an invitation to treat.

Answer 60

An offer is capable of acceptance and then able to enter a binding contract however an invitation to treat is not capable of acceptance and therefore is not an offer.

Question 61

What is an injunction?

Answer 61

An injunction is a court order. A temporary injunction is called an 'interlocutory' injunction and is in force until the completion of the trial. A permanent injunction is called a 'perpetual' injunction.

Question 62

What is the difference between compensatory and punitive/exemplary damages?

Answer 62

Compensatory dames are awarded to the plaintiff for the purpose of replacing the monetary value of rights or property that the plaintiff has lost. Where as punitive/exemplary damages are large sums of money paid out to make an example.

Question 63

List the 5 features of the Adversary system

Answer 63

1. Roles of the Parties 2. Role of the judge 3. Rules for Evidence 4. Burden and Standard of Proof 5. Need for legal representation