LEG YR 12 Flashcards

Question

The appropriateness of plea negotiations

Answer 1

- Whether the accused is willing to participate in the investigation - The strength of the evidence, including strength of prosecutions case - Whether accused is ready and willing to plead guilty - Whether accused is represented - Whether witnesses are reluctant or unable to give evidence - Time and expense in a trial - Views of the victim (prosecutor consults victims and takes their views into account)

Answer 2

To provide free legal information to the community as well as free advice and representation to those who can't afford it. - To provide effective, efficient, and economic aid - To make resources reasonably affordable

Answer 3

- They both provide free advice, services and information - Funded - Helps accused individuals - Online resources available in many languages - Victims assist

Answer 4

A factor which may cause the judge to give the offender a harsher sentence

Answer 5

A factor which may cause the judge to deliver a more lenient sentence

Answer 6

Where the offender has to serve their sentence straight after one another.

Answer 7

Where the term of imprisonment is served with another at the same time.

Answer 8

- saves time, cost and resources - victims are saved the trauma from reliving the trial - help ensure there is certainty of outcome for parties

Answer 9

The plaintiff, they must prove the defendant is liable

Answer 10

It is o the balance of probabilities, meaning their version of events was more likely than not

Answer 11

- Fees for legal representation - Costs - Disbursements - Adverse cost orders - Limitation of actions - Enforcement issues - What if the defendant won't pay - Whether the defendant has assets or money to pay anything to the plaintiff - Whether defendant is in jail, overseas or uncontactable

Answer 12

A restricted amount of time that a civil action can be taken, plaintiff must lodge th claim with that time frame or they'll be prevented

Answer 13

If the plaintiff is unsuccessful in their claim, the will have to pay for their legal costs and may pay for the legal costs of the other party

Answer 14

1. By settling with the defendant before the court/tribunal make a decision 2. By the court/tribunal making a decision and awarding a remedy

Answer 15

if defendant unwilling to comply the plaintiff may have to issue enforcement proceedings. could include, - A court sheriff seizing the defendants assets to sell them

Answer 16

- The opportunity to know the case against them - Opportunity to present their version of the case - Use of an interpreter - No unreasonable time delays

Answer 17

Its an alternative method of solving a dispute. Process in which the parties in conflict can sit down, discuss the issues involved, develop options, consider alternatives and try to reach an agreement. - The mediator will **facilitate** discussion and encourage parties to reach their own agreement. - Agreement may be enforceable

Answer 18

An independent 3rd party who provides suggestions about possible ways to resolve the dispute. - Conciliator has more influence over the outcome than the mediator - The conciliator helps **guide the conversation** between both sides in a civil case. - They do not make decisions, but they help the parties reach an agreement by giving suggestions and keeping things calm and fair.

Answer 19

- Both involve an dependent, impartial 3rd party who facilitates discussion and may assist parties in reaching a resolution - Less formal than court herings - If successful can save time in waiting - Conducted in private, beneficial for party who wish to keep settlement confidential

Answer 20

- Decision reached may not be enforceable, or difficult to enforce - Because court isn't deciding the case one party may compromise too much - One party may refuse to attend, or participate, therefore a waste of time and money - For high profile disputes, where there's large public interest theres no open justice

Answer 21

An unbiased 3rd party member who listens to both sides and can make a decision thats binding on both parties.

Answer 22

- Whether the parties have agreed to arbitrate the dispute or the claim is less than $100,000 - Whether both or one party want the dispute resolved privately, or whether they want a public record of what occurred.

Answer 23

- Parties have no control over outcome imposed on them by the arbitrator - Not available if the parties haven't agreed to this form of dispute resolution or if claim is not a small claim in the magistrates court - Arbitrations can be formal if parties agreed, adding to stress, time and costs

Answer 24

- Decision is biding and fully enforceable through the courts - Held in private and confidential - Arbitrator is usually an expert on the subject matter

Answer 25

- Act impartially - Case management (pre trial) - Case management (during trial) - Determine liability and the remedy - Decide on costs

Answer 26

- They ensure case is ready for trial - They have the power to give directions to the parties - They can limit discovery and make discovery orders - They can order parties to attend mediation

Answer 27

- Have the power to ask questions to clarify evidence and hand down rulings during the trial - If there is a jury, the judge may also need to address the jury, give directions and sum up the case - If party is unrepresented, judge is responsible in ensuring they understand their rights and process

Answer 28

- If theres no jury the judge must decide if the plaintiff has proven liability on the balance of probabilities - If a remedy and what remedy should be awarded - Judge provides reasons for their decision known as a court judgement

Answer 29

- After a hearing the judge or magistrates will decide which party bears the costs

Answer 30

- Act as an impartial umpire, don't overly interfere as to not advantage a party - Experts in law, legal processes and cases and use this expertise in managing the trial - Manage the case both before and during the trial - Able to assist self represented parties

Answer 31

- Risk of apprehend bias that impact decision making - Limited cultural and general diversity - Can't interfere excessively in their cases - Some cases may be less actively managed, parties fail to comply with pre trial steps but no consequences

Answer 32

- Be objective - Listen to and remember evidence - Understand directions and summing up - Decide on liability (maybe damages)

Answer 33

- Both expected to be impartial when making a decision based on facts and evidence - Must listen to and concentrate on the evidence - Both have a role of ensuring they comply with their obligations

Answer 34

- In a criminal trial they decide on guilt, in a civil trial they decide on liability - In a criminal trial they decide on guilt beyond reasonable doubt, whereas in a civil trial they decide on liability on the balance of probabilities - In a criminal trial, jury never decide on sanctions, but in some civil trial a jury may determine the damages

Answer 35

- May have unconscious bias or prejudice - Civil trials can be complex and hard to understand for average members of society - Jury trials may result in further delays - A number of people are unable to participate in the jury as their ineligible, excused or disqualified, large section of the community is not represented

Answer 36

- Randomly picked, no connections to the parties - Collective decision making reduces bias - Represents a cross section of the community - Allows jury members to be more informed about our civil justice system

Answer 37

*Main parties are the plaintiff and defendant - Make decisions about the conduct of the case - Disclose information to the other party - Exchange evidence - Participate in the trial

Answer 38

The individual who the civil claim is against

Answer 39

The individual initiating the civil claim and they have the burden of proof of proving liability on the balance of probabilities

Answer 40

- Each party controls their own case and has control over how the case will be run as long as rules of evidence are followed - They make a decision on, which claims they will make, what defences they will raise, and which witnesses they will call

Answer 41

- Parties must hand over relevant documents - If plaintiff claims to have suffered physical injuries, they provide medical records - If plaintiff claims defendant sent humiliating emails, emails are relevant - If defendant claims they didn't breach a contract, they may produce documents to show they did in fact fulfilling their contract

Answer 42

- Parties need evidence to prove their case, types of evidence includes: - Lay evidence, people giving a witness testimony - Expert evidence, evidence given by a professional about an issue in the case e.g. a doctor

Answer 43

Participating in the trial includes: - Making opening and closing addresses - Presenting the case to the judge or jury - Cross examination of others witnesses

Answer 44

- Have the obligation to disclose ad discover all relevant documents to eachother, ensuring no surprises - Both have opportunities to present their cases, making opening and closing addresses - Have complete control over how they run their case

Answer 45

- Some may be more familiar with their disclosure obligations than others - Process are complex and difficult to understand without the use of a lawyer, making it difficult for self represented parties - Party control means that the parties need time to prepare their case and make decisions, adding to delays and causing stress

Answer 46

They are lawyers who undertake the role of preparing the case on behalf of the parties. they're experts in the area of law and help ensure that parties can present their best possible case

Answer 47

Its difficult for parties to present their case without legal representation. They may not know how to present there case or evidence and how to cross examine a witness due to emotion or stress during the case

Answer 48

- Are experts who are able to help the parties navigate the civil justice system, includes assisting and conducting opening and closing addresses - Have objectivity in being able to make decisions - Help avoid delays that may arise with self represented parties

Answer 49

- Not all are equal, some have more experience than others - Not everyone can afford legal representation - Lawyers are expensive, if they lose they're order to pay the other parties legal costs too

Answer 50

A type of proceeding where a group of people who all have claims against the same party join together in a proceeding, happens when 7 or more people have the same issues

Answer 51

- Start when a single person (lead plaintiff) represents the group - Group members dont have to actively be involved in the proceedings - Group members may need to decide to opt in to the class action or opt out

Answer 52

- If the class action fails, the lead plaintiff will be responsible for the costs and any adverse costs order - Its possible for the law firm of the plaintiff to fund the class acton and can also charge a fee

Answer 53

Depends on the nature of the claim, - 7 or more people - Whether a plaintiff litigation funder, law firm is willing to fund the claim - Someone is willing to be lead plaintiff - Size and nature of the claim - If a persons has suffered a significant amount more than the others

Answer 54

- Impose a large cost burden on the lead plaintiff if class action fails - Size of the class action takes up a significant amount of court time and resources - Approval process for the settlement is significant - Fear by some that class action lawyers take advantage of class actions because they get more out of it - Litigation funders take a large % of the total amount awarded, which then reduces amount for group members and doesn't reflect their actual loss - Some group members may not get adequate or up to date info about the proceeding

Answer 55

- Group members aren't responsible for the payment of any costs, increasing access to justice for group members - More efficient way of dealing with a number of claims - People are able to pursue claims they may otherwise have been prepared to, because the claim is so small and the costs may be too much - Litigation funders and plaintiff laws firms who act upon "no win, no fee", increases access to justice - More convenient way for group members who wish to pursue a claim but don't want the inconvenience of having to actively participate in proceedings

Answer 56

- Inform Victorians about consumer law - Ensure businesses are complying with consumer law - Advises the victorian government on consumer legislation - Provides information and guidance to consumers to educate them what their responsibilities are - Enforce compliance with consumer law - Provides consumers and traders, landlords and tenants with a dispute resolution process

Answer 57

CAV aims to: - Helps people come to a resolution with their dispute effectively without any costs to them - Helps parties reach a resolution that is consistent with the law. - CAV has the ability to enforce compliance with any party not following the law

Answer 58

- Disputes between purchasers and suppliers or consumers and suppliers about the supply or possible supply of goods or services - Disputes between a tenant and a landlord, rental agreement, rent signing or ending a lease, repairs

Answer 59

- Its within its jurisdiction - If the tenant or consumer have tried to resolve the issue themselves, if not CAV won't intervene - Its not a trivial complaint (insignificant) - If the issue has not already been heard in CAV or VCAT - If the issue is likely to be resolved - If theres been a breech in legislation

Answer 60

- When a binding decision is needed and court may be more appropriate - If one party is not taking the process seriously, is unwilling to participate - If the matter is too big or complex for CAV - If the matter is urgent, time sensitive and court would be faster

Answer 61

- CAV's conciliation service is free, meaning that its accessible to all victorians - Process is informal, can be conducted over the phone removing many anxieties people have - Ensures procedural fairness, by allowing both sides the opportunity to present their side of the story - Addresses disputes individually, reducing wasting of time and resources - The conciliation process offered by CAV ensures parties reach a resolution themselves

Answer 62

- Assistace is mainly limited to consumer and CAV disputes, no power to assist with other types of civil diputes - Has no powers to compel parties to undergo conciliation - Has no powers to enforce any decisions reached by the parties in conciliation - Not all cases are accepted, conciliation services limited - Not approproiate for large and complex disagreements

Answer 63

It is a tribunal in Victoria, Australia, that resolves legal disputes and cases. VCAT is less formal than a court and focuses on dispute resolution

Answer 64

- Residential tenancies division - Civil division - Human rights division - Planning and environment - Administrative division

Answer 65

- **Low costs**, no hearing fees for many claims, parties can represent themselves - **Accessible**, conducts hearing in various locations, allowing people to make applications online and conducts hearing online or by phone - **Efficient**, aims to reduce waiting times, doesn't use pre trial procedures or formal processes, members are independent and act as unbiased adjudicators

Answer 66

They have exclusive jurisdiction, if VCAT doesn't have exclusive jurisdiction, parties are welcome to use other methods - Claims by residential landlords and tenants where the Residential Tenancies Act has been breached. - Claims of unlawful discrimination and breaches of the Equal Opportunity Act - Claims by business and consumers that allege the Australian Consumer Law & Fair Trading Act has been breached.

Answer 67

VCAT **can't** hear: - Class actions - Disputes between employees and employers - Between neighbours - About drivers in a car accident - Federal or interstate cases - Where the parties are residents of other states

Answer 68

- Fast track mediation and hearing, up to $10k, if the dispute isnt solved in mediation it will be solved in a hearing on the same day - Compulsory conferences, confidential meetings that occur between the parties in front of a VCAT member, use conciliation - Final hearing, if the matter hasn't been settled it will go to a final hearing before a VCAT member, parties are given an opportunity to present their case, the hearing is less formal and technical

Answer 69

- Require a party to pay money - Require a party to do something - Require a party to refrain from doing something - Declare that a debt is or isn't owing - Review, vary or control a contract - Dismiss a claim

Answer 70

Appeals from a decision made in VCAT can only be made on question of law - Party may argue that the law has not been properly interpreted - If the tribunal was presided over by the president or Vice President the appeal will be heard in the court of appeal, otherwise it will go to the trial division of the supreme court

Answer 71

- Its within VCAT's jurisdiction - If parties want a less formal proceeding - Parties want a cheaper option - Parties want their case heard in a timely manner - Parties are happy to appeal only on questions of law

Answer 72

- Parties can resolve the dispute themselves through mediation - If fees are too high - If parties wish to have avenues of appeals - Case is too complex for VCAT - Case is outside their jurisdiction (defamation cases)

Answer 73

- Cheaper than courts due to low application fees - Offers a speedy resolution of disputes - Informal atmosphere ensures parties can put their case forward in their own way - Flexibility of VCAT's hearing processes ensures fainress and equality for an unrepresented party - Each VCAT list operates in its own specialised jurisdiction, developing expertise in that area of law - Decision mad in the final hearing is binding on the parties, its enforceable

Answer 74

- Due to legal representation, the costs of taking a matter to VCAT can sometimes be high - Has suffered delays in some of its lists - May be too informal, some parties may feel uncomfortable - Can't create precedents, can only apply law made by parliament or the courts - Decision can only be appealed on the point of law, making it complex and expensive - VCAT orders will steel need to be enforced through the courts, taking longer

Answer 75

in determining whether or not a case is appropriate for court, you need to consider - Whether the dispute falls within the courts jurisdiction - Whether the parties are unable to come to a resolution on their own or through dispute resolution methods - When the case is a large complex matter and has a large amount of damages

Answer 76

To interpret and apply laws to civil cases

Answer 77

- Parties haven't attempted to resolve the dispute themselves - Case involves a very Moir civil infringement - Parties want their case solved in a fast and inexpensive manner - The parties want to maintain their relationship

Answer 78

They have unlimited jurisdiction

Answer 79

The limit is $100,000, if they seeking more they go to supreme or county court

Answer 80

Courts can't hear cases where VCAT has exclusive jurisdictions they include - Domestic building disputes - Rental tenancies disputes - Residential tenancies disputes - Planning disputes

Answer 81

Parties should consider solving their disputes outside of court when: - Parties can resolve this through negotiation /mediation - Costs or privacy is an issue - Concern about adverse costs orders - Can't afford legal representation - They're uncomfortable with formal procedures

Answer 82

- Various pre-trial procedures allow the parties to reach an out of court settlement - Undertaking various pre-trial procedures, ensures a more efficient and timely resolution - Use processes to ensure procedural fairness, - Allow interactions between the courts and the parties - Makes a binding decision, meaning outcome is certain and enforceable

Answer 83

- Suffer delays, pre trial procedures take a long time to complete - Costs involved, may restrict access to the courts and limits parties being treated equally - Procedures are complex and difficult to understand without a lawyer - Formalities of the court can be stressful - Don't allow for compromise or "win-win" situations

Answer 84

- Legal representation - Issuing a civil claim in CAV is free, in VCAT is inexpensive, however in courts its costly - Expert witnesses (doctors) - Mediation/conciliation - Filing and hearing fees - Using a jury - Adverse costs orders

Answer 85

- Use of alternative dispute resolution bodies - Use of alternative dispute resolution methods - Disputes resolved faster - Using case management, judge may narrow issue and limit discovery - Orginisations and bodies can provide pro bono assistance

Answer 86

- The cost of lengthy cases, and the missing out on paid work may prevent a party from pursuing their case - Costs associated with a lawyer make it hard to receive legal advice and therefore limit the ability to participate in the case, such as presenting their arguments and presenting evidence

Answer 87

- The cost of lengthy cases and the costs of legal representation can mean not everyone has the same access to expert lawyers creating disparity - Not all legal representation is equal, some may have more expertise but are more expensive impacting equality same treatment

Answer 88

- The cost of lengthy cases as well as legal representation can mean that one party may not be able to afford to pursue their case and therefore never achieve civil justice - If able to afford it, lawyers provide legal information to the client improving access on an informed basis - Costs limit access engagement as there are financial barriers impacting the acheivement of access

Answer 89

- The inability to take time away from work or family for lengthy cases impacts a persons ability to achieve participation

Answer 90

- The length of time a civil case undertakes limits a persons willingness to begin the proceeding

Answer 91

- Not everyone is able to be available for long cases and therefore dont have equal opportunities to present their case

Answer 92

- Backlogs - Pre trial proceedings - Evidence gathering and preparation

Answer 93

- Ordering parties to attend dispute resolution methods - Limit scope of discovery - Order that no pleadings are required - Restrict the time for the final hearing, limiting witnesses - Some matters are dealt with "on the paper" avoiding the need for a trial - Using online methods such as having hearings and mediation online

Answer 94

Damages Injunctions

Answer 95

An amount of money awarded by the courts to compensate the plaintiff for loss or injury caused by the wrongful acts of the defendant.

Answer 96

"to return the plaintiff to the original position they were in before the wrong occurred, as much as possible"

Answer 97

A court order directing a person to undertake a specific action, or to stop a specific action. its order to prevent further harm or harm to the plaintiff

Answer 98

- Compensatory, special, general and aggravated - Exemplary damages - Nominal damages - Contemptuous damages

Answer 99

Their aim is to "to return the plaintiff to the original position they were in before the wrong occurred, as much as possible". - Special damages, are to compensate the plaintiff for losses that are quantifiable - General damages aim to compensate for losses that aren't easily quantifiable - Aggravated damages awarded when the court believes the plaintiff suffered humiliation, embarrassment, or insult because of the defendant

Answer 100

- They aim to punish the defendant for an extreme infringement of rights. - Can't be used in defamation cases. - Used to show strong disapproval of the defendants conduct

Answer 101

A small amount of money that has been awarded - Occurs when the plaintiff has proved that they have been wronged but theres no injury, loss, harm or damage - Their aim is to uphold the defendants rights without awarding substanial damages

Answer 102

When the court feels that the plaintiff has a legal right to damages but not a moral right

Answer 103

- If the loss suffered was only financially, then its easily calculated, and the plaintiff may be able to be restored to their organ position - Whether loss suffered was pain and suffering, no amount of damages can restore plaintiff to their original position, they can only compensate the plaintiff - Whether future loss has been suffered (reputation, can't get a job - Whether the damages are actually paid by the defendant, if not then they won't return them to their original positions - Whether other orders or remedies may be required - Whether there are limits on the amounts that can be awarded, limits the ability of damages to achieve its purpose

Answer 104

- If the amount is small, its isn't sufficient to wish the defendant and act a s a deterrent. - Ability of the defendant to pay - The extent to which the award of damages is known, to deter others, award of exemplary damages must be known by public to deter others

Answer 105

- Whether the plaintiff has suffered loss, if plaintiff did suffer loss, but there was no evidence, the plaintiffs rights may not be fully upheld - Amount of damages, if amount is too small it won't uphold plaintiffs rights - Costs incurred to initiate and conduct the civil claim, which can be compensated though nominal damages

Answer 106

Restrictive injunctions Mandatory injunctions

Answer 107

- Orders someone to refrain from doing something - Known as prohibitory injunction

Answer 108

- Orders someone to do something - Purpose is to require the defendant to take action to prevent further harm or remedy the situation

Answer 109

- Whether defendant will comply - Whether harm has already been suffered, an injunction may not be able to address that harm - Whether a restrictive injunction alone is sufficient - Whether there are other orders that may be required - Injunctions dont address the costs, stress and inconvencinac involved in taking the action

Answer 110

- Whether the defendant will do what's ordered, may ignore the order and not do anything - Whether harm has already been suffered - Whether a mandatory injunction alone is sufficient - Whether there are other orders that may be required

Answer 111

A tribunal is a formal body, similar to a court, that resolves disputes and makes decisions about specific matters

LEG YR 12 Flashcards

(137 cards)