Legal practice Exam deck 1 Flashcards

Question

Order by the Court

Answer 1

The Criminal Procedure Act 2009 (Vic) gives the courts power to adjourn a trial until legal representation from VLA has been provided. The courts must be satisfied that the accused person would not be able to receive a fair trial without legal representation, and the accused cannot afford to pay for their own lawyer.

Answer 2

Generalist and Specialist

Answer 3

- Information, legal advice and minor assistance - Duty lawyer assistance - Legal casework services including representation and assistance.

Answer 4

- To see whether a charge for an indictable offence is appropriate to be heard and determined summarily - To decide if there is enough evidence to support a conviction for the offence charged - To find out whether the accused plans to plead guilty or not guilty - To make sure there is a fair trial. Committal proceedings do this by: Making sure the prosecution's case is disclosed to the accused Giving the accused an opportunity to hear or read the evidence and cross- examine witnesses Allowing the accused to put forward a case at an early stage if they choose to do so Allowing the accused to properly prepare and present a case Making sure the issues to be argued are properly defined Found in Section 97 of the Criminal Procedure Act

Answer 5

The main and final stage of the committal proceeding is the committal hearing. At the committal hearing, the accused can question the prosecution's witnesses and make submissions about the charges. After the evidence and submissions, the magistrate decides whether to commit the accused (i.e. send the accused to trial). If the magistrate finds there is evidence to support a conviction at trial, the accused is committed to stand trial and released on bail to wait for the trial or is held in remand. If the magistrate decides there is not enough evidence to support a conviction, the accused is discharged and allowed to go free. If further evidence is found in the future, the accused can be brought before the court again, because the committal proceeding is not a trial and the accused has not been found guilty or not guilty.

Answer 6

- Committal proceedings help to save the time and resources of higher courts by filtering out the weak cases that are unlikely to succeed. - The committal process allows the accused to be informed of the prosecution's case against them. - The onus is on the prosecution to establish to the court that there is enough evidence to support conviction at trial. - The prosecution is given the opportunity to withdraw some charges or combine charges after the evidence has been considered. - The accused can test the strength of the prosecution's case. This includes the opportunity to examine prosecution witnesses

Answer 7

- Committal proceedings are very complicated. - The services of a legal representative can be expensive. - Committal proceedings can add to the delay of getting a case to trial, which can reduce access to the criminal justice system and could also increase the risk of an unfair outcome. - Committal proceedings can contribute to the stress and trauma experienced by the accused, the victim and their families. - For stronger cases, the committal proceeding stage is often considered unnecessary and a burden.

Answer 8

Plea negotiations are discussions between the prosecutor and the accused about the charges against the accused. They can take place in relation to summary or indictable offences. Plea negotiations can result in an agreement being reached between the prosecutor and the accused about the charges that the accused will plead guilty to. Negotiations are conducted on a 'without prejudice' basis. Plea negotiations can happen at any stage, and even before the charges have been laid.

Answer 9

- To resolve a criminal case by ensuring a plea of guilty to a charge that adequately reflects the crime that was committed. - To achieve a prompt resolution to a criminal case without the cost, time, stress, trauma and inconvenience of a criminal trial. Plea negotiations also provide certainty of outcome.

Answer 10

- Whether the accused is willing to cooperate in the investigation or prosecution of co- offenders, or offenders of other crimes - The strength of the prosecution's case - Whether the accused is ready and willing to plead guilty - Whether the witnesses are reluctant or unable to give evidence - The possible adverse consequences of a full trial - The time and expense involved in a trial - The views of the victim - The likelihood of a long trial.

Answer 11

- Negotiations provide substantial benefits to the community by saving the cost of a full trial or hearing. - Negotiations help with the prompt determination of criminal cases and increase public confidence in the legal system. - Victims, witnesses and their families, and the accused's family are saved the trauma, inconvenience and distress of the trial process. - Accused may receive a reduced sentence because of a plea of guilty before trial - Fairness can still be achieved if the accused is pleading guilty to charges that reflect the gravity and nature of the offence. - Negotiations help to make sure that there is certainty in outcome for all parties.

Answer 12

- The community and victims may feel the negotiations have resulted in the accused being 'let off'. - Self- represented accused people may feel pressured into accepting a deal even if the evidence is not strong - The negotiation process may be seen as the prosecutor avoiding the need to prove the case beyond reasonable doubt, which is a fundamental principle of our justice system - Negotiations do not need to be disclosed and can be held privately. This lack of transparency may make some people question the agreement or the reason why the prosecution decided to reduce the severity of the charges

Answer 13

A sentence indication is given by a court to the accused to let the accused know what sanction is likely to be imposed on them. It is intended to give the accused a broad idea of the sentence they are likely to get if they plead guilty to the offence at a particular point in time. Prosecution must consent if for an indictable offense.

Answer 14

An accused will often defer a decision to plead guilty because they may be apprehensive about the sentence that may be imposed. The purpose of a sentence indication is to provide the accused with some clarity about the likely sentence that will be imposed, so that they can make an early decision to plead guilty and alleviate the fear that they will receive a custodial sentence. Providing the accused with a sentence indication can also save the time, costs, resources, stress and inconvenience of having a contested trial (or hearing) that may result in a higher sentence. The offender benefits from an early guilty plea because he or she is likely to receive a shorter sentence by avoiding the need for a trial or hearing.

Answer 15

- Whether the accused has applied for a sentence indication - For indictable offences, whether a sentence indication has already been given. A sentence indication may be given only once during a proceeding for an indictable offence, unless the prosecution consents to another indication being given - The type of offence and the court hearing the charges. Sentence indications are more likely to be appropriate in the Magistrates' Court and the County Court. - Whether there is sufficient information for the judge or magistrate to make an indication. - Whether the accused is charged with an indictable offence and the prosecution consents to the sentence indication. - The strength of the evidence against the accused, and whether the accused has raised a legitimate defence - The nature of the offence. The Sentencing Advisory Council has said that sentence indications may not be appropriate for sex offence cases, given their sensitivity.

Answer 16

- It can result in the early determination of the case. This results in prompt justice rather than delayed justice. - It can save money and resources. - It can be conducted in open court. - The accused is not bound to accept the indication and plead guilty. - The indication is given by an experienced and impartial judge or magistrate - The accused has greater certainty about what sentence they will receive. - It can minimise the trauma, stress and inconvenience of victims and witnesses if a sentence indication is given early. - Any victim impact statement can be considered by a judge when giving an indication. - If the accused pleads guilty at the earliest possible time after the sentence indication, they can't receive a greater sentence than was indicated for a summary offence. - If the accused asks for a sentence indication but does not plead guilty, a different judge or magistrate will hear the trial or hearing. This means that the accused won't be bound by the sentence indication. - Any application for a sentence indication, and the indication given by the judge or magistrate are not admissible in evidence if the accused chooses to proceed to trial.

Answer 17

- The judge is not obliged to grant the accused's request for the sentence indication. - In the higher courts, the prosecutor must consent to the indication being given. - Legislation allows the court to close a proceeding to the public when a sentence indication is given. This means there will be a lack of transparency about what occurred. - For indictable offences, the accused may not necessarily know what sentence may be imposed (but will know whether a term of imprisonment will be imposed). - The sentence indication may be given before all the facts have been admitted or proved. - It may lessen the impact or need for a victim impact statement because the court won't need to hear as much evidence to decide on the sentence. - It denies the victim their 'day in court'. They may want to see justice occur with a guilty verdict.

Answer 18

Specialisation and Appeals

Answer 19

- Manage the Trial - Decide on Admissibility of Evidence - Attend to Jury Matters - Give Directions to Jury and Sum up Case - Hand Down a Sentence - Order that the VLA provide legal representation - Be familiar with technology - Be courteous and not interfere - Assist a self-represented party

Answer 20

- Be Objective - Listen to and Remember the Evidence - Understand Directions and Summing Up - Deliver a Verdict

Answer 21

- Give an Opening Address - Assist the Judge in Jury Matters - Present the Party's Case - Give a Closing Address - Make Submissions about Sentencing - Attend Trial - Research the Law - No Bias

Answer 22

- Be Prepared - Comply with their Duty to the Court - Present the case in the best light possible - Advise the accused of their rights - Defend the accused - Act in a proper manner

Answer 23

a penalty imposed by courts on a person who is guilty of an offence.

Answer 24

set out in section 5(1) of the Sentencing Act. These purposes are: - Rehabilitation - Punishment - Deterrence - Denunciation - Protection

Answer 25

A court will consider sanctions that could help treat the offender and address the underlying reasons for the offender committing the crime. This aims to assist offenders to change their attitudes and behaviour with the goal of preventing them from reoffending in future. This can be achieved by giving a community correction order (CCO) to encourage rehabilitation rather than sending offenders to prison.

Answer 26

Punishment gives the community some revenge against the offender. When a crime has been committed, an offender has done something unacceptable to society, especially if someone has been hurt, and must be punished so that the victim of the crime and the community feel justice has been done. Offenders should be punished to an extent and in such a manner that is just in all the circumstances, so the community can feel it has achieved retribution.

Answer 27

Some sanctions are aimed at discouraging other people from committing similar crimes. This is known as general deterrence because it is aimed at deterring the entire community from committing similar offences. Sanctions are also a specific deterrence because they discourage the offender from committing the same offence again.

Answer 28

Denunciation refers to the disapproval of the court. A sanction may be given to show the community that the court disapproves of the offender's conduct.

Answer 29

Protection is an aim that seeks to safeguard the community from the offender. Sometimes it is necessary to remove an offender from the community to achieve this aim, because the offender is physically prevented from reoffending. A non-custodial sentence such as a CCO, can also protect the community from offenders because they keep offenders busy when they might otherwise be engaged in criminal activity. However, offenders sometimes abuse CCOs and offend while carrying out community work.

Answer 30

It is an amount of money ordered to be paid by the offender to the state of Victoria. A fine can be imposed as the only sanction, or it can be imposed with any other sanction.

Answer 31

- Punishment - Deterrence - Denunciation

Answer 32

- The wealth of the offender - The ability to denounce the crime - Whether a fine is sufficient to act as a general deterrent for the whole community - Whether there is a more appropriate sanction

Answer 33

a supervised sentence served in the community that includes special conditions, such as treatment of the offender and unpaid community work for a number of hours. A court can only impose a CCO if the offender has been convicted or found guilty of an offence punishable by more than 5 penalty units, the court has received a pre-sentence report, and the offender consents to the order. A CCO can be imposed for up to two years in the Magistrates' Court for a single offence, and no more than five years in any of the Victorian courts. A CCO can be combined with a fine or up to one year in prison. When combined with a prison sentence, the CCO will commence on the offender's release from jail.

Answer 34

- Must not commit another offence punishable by imprisonment during the term of the order - Must report to a specified community corrections centre within two working days of the order coming into force - Must report to and receive visits from a community corrections officer - Must notify an officer of a change of address - Must not leave Victoria without permission - Must comply with any directions of community corrections officers.

Answer 35

- Unpaid Community Work - Treatment and Rehab - Supervision - Residence Restriction - Place or Area Exclusion - Curfew - Alcohol Exclusion - Bond

Answer 36

- Punishment - Rehabilitation

Answer 37

- Whether there is a condition that will achieve the right purpose for the offending - The most appropriate condition to be imposed, and whether the court imposes that condition - Whether the offender will comply with the conditions - Whether a CCO properly protects the community where protection is a relevant purpose - Whether there is another or better sanction that will achieve the necessary purposes.

Answer 38

People who have been convicted of a crime can be sentenced to imprisonment for a time, which means they will be removed from society and they will lose their freedom and liberty. Prison terms are expressed in levels from one to nine, one being the most serious (life imprisonment) and nine being for six months. If a court sentences an offender to imprisonment for two years or more, it must also state a minimum, non-parole period. If the sentence is between one and two years, then the court has the option of stating a non-parole period. The Magistrates' Court is limited in the length of imprisonment it may impose. The maximum term of imprisonment for a single offence is two years and five years for two or more offences. The maximum term of imprisonment can only be imposed by the Supreme Court.

Answer 39

A concurrent sentence runs at the same time as another sentence. A cumulative sentence is served straight after another sentence. A cumulative sentence must be given: - For certain serious offenders - Where the imprisonment is in default of payment of a fine or sum of money - For an offence by a prisoner or an escape offence - For an offence committed by a person released on parole or on bail.

Answer 40

If an offender has been convicted of multiple, related offences, the court has the option of imposing an aggregate sentence that applies to more than one offence, rather than separate sentences for each offence. Aggregate sentences are not available for serious offences where there is a presumption that sentences will be served cumulatively.

Answer 41

The court can only impose an indefinite sentence on an offender if it is satisfied, to a high degree of probability, that the offender is a danger to the community because of: - Their character, history, health, age or mental condition - The nature and gravity of the serious offence - Any special circumstances

Answer 42

- Punishment - Protection - Rehabilitation - Denunciation - Deterrence

Answer 43

- The rate of recidivism and whether imprisonment is effective - The availability of drugs in prisons - The exposure of offenders to negative influences - Whether the offender will be offered appropriate opportunities to rehabilitate, and whether they will take advantage of those opportunities - Whether there are other sentences, like CCOs, which are better focused on rehabilitation - The extent to which the community is protected if short prison terms are given.

Answer 44

- The use of violence, explosives or a weapon when committing the offence - The nature and gravity of the offence (e.g. if the victim suffered a brutality or cruelty, or the offence was unprovoked, or the crime was pre- planned) - Any vulnerabilities of the victim (e.g. having a disability or being very young, or old and frail) - The offender being motivated by hatred or prejudice against a group of people with common characteristics - The offence taking place in front of children, or seen by them - A breach of trust by the offender towards the victim (e.g. the offender was in a position of trust such as a parent who has abused a child) - The offence occurred while the offender was on a CCO or on bail.

Answer 45

- The offender was provoked by the victim - The offender showed remorse - The offender has no record of previous convictions - The offender was acting under duress - The offender has co- operated with the police and made full admissions - The offender has shown e orts towards rehabilitation while awaiting sentencing, or has prospects of rehabilitation - The offender was under personal strain at the time - The injury or harm caused by the offence was not substantial, or there was no risk to any people - The offender was young, or had some disability that made them not fully aware of the consequences - The offender pleaded guilty early.

Answer 46

One of the factors a court must consider when sentencing an offender is whether the offender pleaded guilty to the offence and, if so, how far into the case. A guilty plea at an early stage before trial (or hearing) or at the start of the trial can result in a less-severe sentence.

Answer 47

First, if the offender knows that an early guilty plea is considered in sentencing, it may encourage them to plead guilty rather than going to trial. Second, an early guilty plea can have significant benefits to the criminal justice system, including the prosecution, the victims, society, the accused and his or her families, by avoiding the time, expense and stress of a trial. Criminal trials can be particularly traumatic for victims and their families, and an early guilty plea will spare them that trauma. A reduction in sentence because of an early guilty plea will therefore reward the offender for admitting to the crime that he or she has committed.

Answer 48

A victim impact statement contains details of any injury, loss or damage suffered by the victim as a direct result of the offence. Its purpose is to assist the court when it is deciding on the sentence. A victim may make the statement to the court if a person is found guilty of an offence. A copy must be filed with the court a reasonable time before sentencing. Victims can also give the court medical and psychological reports, which can be attached to their victim impact statements. A victim may request that their victim impact statement be read aloud in open court. This may be done by the victim, or a person whom the victim requests read the statement (and the court approves of that person). The court may give directions as to which parts of the statement are in fact admissible and which may be read in court.

Answer 49

The Plaintiff and The Defendant - An individual suing or being sued in their own name, or a group of individuals suing or being sued together - A corporation, otherwise known as a company - a separate legal entity from the directors or individuals who run the company, which can sue and be sued - A government body (e.g. the state of Victoria, a local council or a statutory authority such as Victoria Police).

Answer 50

- Family Law - Defamation - Breach of Contract - Negligence - Trespass

Answer 51

- Complaint bodies, such as Consumer Affairs Victoria - An ombudsman, such as the Public Transport Ombudsman - Tribunals, such as the Victorian Civil and Administrative Tribunal and the Mental Health Tribunal - Courts, which are either Victorian courts or federal courts (including the Federal Court and the Family Court).

Answer 52

lies with the person or party who is bringing the case. In a civil dispute, this is the plaintiff. When a plaintiff sues a defendant, it is the plaintiff who must show that the defendant was in the wrong.

Answer 53

Must prove the case on the balance of probabilities

Answer 54

If a group of people all have claims against the same party, they may be able to join to commence a civil action known as a class action. A class action is the main type of representative proceeding, which is brought in the name of one person on behalf of someone else. It can be commenced if: - Seven or more people have claims against the same person - Those claims relate to the same, similar or related circumstances, and - The same issues need to be decided (e.g. whether the defendant owed a duty of care to those plaintiffs).

Answer 55

- Shareholder class actions, where shareholders of a company may make a claim about being misrepresented about the state of the company's affairs - Product liability class actions, where consumers who have purchased a good or service have all suffered the same loss or damage - Natural disaster class actions, where the group members have suffered loss or damage because of a natural disaster

Answer 56

- The group members can share the cost - It is a more efficient way of the court dealing with several claims, saving court time and the time of court personnel - People can pursue civil actions that they might not be able to afford in an individual case, and this gives them access to the courts to resolve their disputes - In certain circumstances, a litigation funder may be prepared to fund the class action on behalf of the people who have suffered loss. They do this in return for a percentage of any settlement or damages awarded, thus increasing the ability of the group members to pursue a claim even when they don't have the funds themselves.

Answer 57

- Negotiation options - Costs - Limitation of actions - The scope of liability - Enforcement issues.

Answer 58

- Arranging between themselves, with or without legal representation, an independent third party, such as a mediator, to help resolve the dispute. The independent third party or mediator is neutral and impartial and will help the parties come to their own agreement about how to resolve the dispute. This is often known as a 'facilitated negotiation'. - Arranging a negotiation or other dispute resolution service through a body such as the Dispute Settlement Centre of Victoria, or FMC Mediation and Counselling Victoria

Answer 59

- One or both parties does or do not want to resolve the dispute, or is or are not interested in negotiating - There have already been attempts to negotiate the dispute, and they have failed - One of the parties has been harmed or threatened by the other party, there has been violence involved, or there is distrust or fear among the parties - There are no issues or dispute to be negotiated - It is unlikely that negotiation will result in a successful outcome - There is an urgency in having the matter resolved through court - There is a significant power imbalance between the parties, and so the parties are not on an equal footing to be able to negotiate.

Answer 60

- The costs, time and the stress involved in commencing a formal civil action may be avoided - The parties have control over the outcome, as opposed to it being decided for them by a third party. - The parties may be more prepared to accept an outcome that they have helped come to, as opposed to a decision that has been imposed formally by a court or another dispute resolution body such as a tribunal.

Answer 61

- Fees for Legal Rep - Disbursements, such as court fees, mediation fees and expert witness fees - Adverse Court Orders

Answer 62

Plaintiffs must bring their cases to court within a time limit. Limitation of actions refers to the restriction placed on the time within which a civil action can be commenced. For most types of claims, the plaintiff will need to commence the proceeding within a certain number of months or years.

Answer 63

- Possible Defendants - Employers - Insurers - People Involved in Wrongdoing

Answer 64

One of the other issues that may arise for a plaintiff, and which he or she will need to consider before bringing an action, is the extent to which the defendant is liable. That is, the defendant may argue that if they are found liable, then they are only liable for a part or a portion of the plaintiff's loss or damage.

Answer 65

- The defendant may be bankrupt, which means that he or she will not have any assets or money to pay anything to the plaintiff - Even if the defendant is not bankrupt, he or she may still be unable to pay - The defendant may be in jail, particularly if the civil dispute arose out of a criminal action, and the defendant has been found guilty and imprisoned. It will therefore be more difficult to enforce the remedy - If the defendant is a company, that company may not have any assets - The defendant may be overseas or uncontactable, in which case it may be difficult to force them to pay any money - The plaintiff may not even know who the defendant is.

Answer 66

- Warrant of seizure and sale - Goods or land are seized by the sheriff and sold to pay the money owed, with the remainder being given to the defendant. - Attachment of debts - The plaintiff's award for damages attaches to the defendant's debts; that is, where a third person owes money to the defendant, the third person is required to pay the plaintiff rather than the defendant. - Attachment of earnings - The court can order the defendant's employer to pay the debt at regular intervals directly out of the defendant's wages.

Answer 67

will help people settle their disputes efficiently and constructively, without any cost, and assist them in agreeing on the resolution of the dispute without imposing a decision. Its role is to resolve disputes efficiently and effectively, to ensure that any inappropriate conduct is stopped, and to help any party that has been wronged seek compensation for any loss they have suffered. only accepts complaints from consumers and tenants, not from businesses and landlords.

Answer 68

The main method used by CAV to help parties resolve disputes is conciliation. Conciliation involves the assistance of an independent or neutral third party who helps the parties reach a mutually acceptable decision between them.

Answer 69

- Whether the dispute is within CAV's jurisdiction. - Whether the dispute is likely to settle. - Whether there are other or better ways to resolve the dispute

Answer 70

- The supply of goods and services - Residential tenancies - Retirement villages - Owners' corporations.

Answer 71

- There has been no delay in the person complaining to CAV - CAV's database of complaints does not show that the other party has previously refused to participate in conciliation - The person complaining has not contributed to the dispute through inappropriate behaviour - The dispute is not overly subjective (e.g. where the consumer has complained about services which are personal in nature, such as hairdressing, because this would call for opinions about whether something as personal as a haircut was 'good' or not) - The trader hasn't already made a reasonable offer that was rejected by the consumer.

Answer 72

- Whether they will be able to, or have tried to, resolve the dispute themselves (e.g. through negotiation) - Whether the dispute is best resolved by a court or tribunal making a binding order on the parties, rather than reaching a resolution themselves - Whether the other party is unlikely to take the conciliation process seriously, or may not show up, so issuing a claim in a court or tribunal is more likely to force them into realising the seriousness of the dispute - Whether one party would prefer the formality of the tribunal or court processes to resolve the dispute - Whether the matter is too big or complex to be appropriate for CAV - Whether resolution of the matter is urgent, so a court is a better option (e.g. an order to stop a trader selling a car to someone else)

Answer 73

- Its conciliation service is free, meaning that it remains accessible to all Victorians, regardless of their ability to pay - The conciliation process is informal, and can be conducted over the telephone, which removes many anxieties people have with the formalities of a courtroom - CAV ensures procedure fairness by allowing both sides the opportunity to present their case and rebut the other side's case - CAV assesses disputes individually, case by case, reducing waste of time and resources on disputes that are clearly unlikely to be resolved through conciliation - CAV aims to conciliate disputes in a timely manner, so parties do not have to wait months or years for resolution through a more formal body such as a court - The conciliation process offered by CAV ensures that parties reach a resolution themselves. Parties may be more likely to accept an outcome if it has not been imposed or forced on them.

Answer 74

- CAV's role is limited mainly to consumer and landlord disputes, meaning that it has no power to assist with the many other types of civil disputes. - CAV has no power to compel parties to undergo conciliation. - CAV also has no powers to enforce any decisions reached by the parties in conciliation. - Not all cases are accepted by CAV due to its criteria and its prioritisation of cases. - The informal nature of the conciliation process, and lack of a binding decision, may mean that one or more parties may fail to take the matter seriously. - CAV is not appropriate for large and complex disagreements, including those with difficult legal questions or several different parties, which can only be resolved by a court or tribunal which has greater expertise in the law.

Answer 75

- Administrative - Civil - Human Rights - Residential Tenancies

Answer 76

is to provide Victorians with a low-cost, accessible, efficient and independent tribunal delivering high-quality dispute resolution processes. VCAT provides parties with an alternative to court to resolve certain types of civil disputes through its various lists. Each list deals with a limited area of law and builds up expertise in that area. VCAT uses various dispute resolution methods.

Answer 77

- Mediation - Compulsory Conferences - Final Hearing

Answer 78

Compulsory conferences are confidential meetings during which the parties discuss ways to resolve their dispute in the presence of a VCAT member. Compulsory conferences use a conciliation process. The VCAT member who assists in the process may suggest forms of settlement and may explore the likely outcomes of the case if it goes to a hearing. That is, a member may give a view as to the possible decision that may be reached at hearing. The VCAT member who assists in the compulsory conference generally will not hear the case at the final hearing and will not tell the member presiding over the hearing what happened at the compulsory conference.

Answer 79

At the hearing, the parties will be given an opportunity to present their case, which will include giving and hearing evidence, asking questions of witnesses and providing documents which support their case. A VCAT member will oversee the hearing and make a binding decision on the parties.

Answer 80

- Require a party to pay money - Require a party to do something, such as perform work, carry out repairs or vacate premises - Require a party to refrain from doing something - Declare that a debt is or is not owing - Review, vary or cancel a contract - Dismiss a claim.

Answer 81

Appeals from a decision made by VCAT may only be made on a question of law. For example, a party may argue that the law has not been properly interpreted in the case. Permission is required to appeal a VCAT decision. If the tribunal was presided over by the President or a vice-president, the appeal will be heard in the Court of Appeal. All other appeals will be heard in the Trial Division of the Supreme Court.

Answer 82

- Whether the dispute is within VCAT's jurisdiction - Whether there are other or better ways to resolve the dispute

Answer 83

- Purchases or sales of goods and services (unlike CAV, VCAT accepts claims made by sellers and businesses as well as purchasers) - Disputes between tenants and landlords relating to renting a house, unit or flat, a room in a rooming house or a site or a caravan in a caravan park - Owners' corporations (bodies which manage the shared or common property of a property) - Discrimination, sexual harassment, victimisation or vilification - Domestic building works - Lawyers, lawyers' conduct and the provision of legal services - The flow of water between properties - Retail tenancies - The use or development of land, including objections in relation to permits granted for use of land.

Answer 84

- Whether the parties can resolve the dispute themselves through negotiation or mediation - The nature of the fees (for some lists, the fees are just as high as court fees, or even higher) - Whether the parties wish to have greater avenues of appeal (appeals from VCAT decisions are limited to appeals on a question of law) - Whether one or more of the parties are unlikely to take VCAT seriously, and so a court is a preferred dispute resolution body - Whether one or more of the parties would prefer the formality of the courtroom - Whether the matter is of a complexity or size that is not appropriate for VCAT - Whether the party prefers the court to resolve the dispute because of the doctrine of precedent.

Answer 85

- VCAT is normally cheaper than courts due to low application fees, lower hearing fees, the costs saved by not having to undertake expensive pre-trial procedures and parties being able to represent themselves - It generally offers a speedy resolution of disputes - An informal atmosphere ensures that parties can put their case forward in their own way, which can make people feel more comfortable with the process - The flexibility of VCAT's hearing processes ensure fairness and equality for an unrepresented party, because the member can aim to ensure an unrepresented party has an equal opportunity to understand processes and present their case - Each list operates in its own specialised jurisdiction, resulting in tribunal personnel developing expertise in resolving disputes in that area of law - Parties are encouraged to reach a resolution between themselves, and often VCAT will refer matters to mediation or a compulsory conference before the matter is determined by a final hearing. This saves costs and time, making it more accessible to the parties. - Smaller claims benefit from the more streamlined process - A decision made in a final hearing is binding on the parties, which means it is enforceable

Answer 86

- Due to increased use of legal representation, the costs of taking a matter to VCAT can often be as high as, if not higher than, court costs. - For large and complex civil claims, including class actions, VCAT is not an appropriate forum to resolve the dispute - There is a limited right to appeal VCAT decisions. - It may be too informal - some parties may feel uncomfortable or ill-equipped to deal with the lack of formal procedure, or may prefer a formal process of giving evidence - VCAT members are normally not judicial officers, meaning they may be casual, sessional members without as much experience in hearing matters as judges - VCAT has suffered long delays in some of its lists, particularly the Planning and Environment List. - Because VCAT is not part of the court hierarchy, it is not bound by precedent, and its members are not bound by previous VCAT decisions.

Answer 87

- Pleadings - Discovery of Documents - Exchange of Evidence

Answer 88

Pleadings are a series of documents filed and exchanged between the parties to a court proceeding. They set out and clarify the claims and the defences of the parties. The two main documents exchanged during the pleadings stage are: - A statement of claim, which is filed with the court by the plaintiff, and served to the defendant. It sets out in detail the claims made against the defendant and the remedy sought by the plaintiff. - A defence, which is filed by the defendant. It sets out the defendant's response to each of the plaintiff's claims. In general, if claims and defences are not included in the parties' pleadings, they cannot make new claims and raise new defences later in court, except with the leave (permission) of the court or with the consent of the other party.

Answer 89

- Require the parties to state the main claims and defences of their case. This aims to achieve procedural fairness by ensuring the other side knows what the claim or the defence is about. - Compel each party to state the material facts and particulars (details) they are relying on to prove their claims and defences. This avoids taking an opponent by surprise with facts that a party is relying on to support their claim or defence - Give the court a written record of the case, which allows the court to understand the issues, so it can manage the trial and pre-trial procedures - Set the limits to the dispute, which enables other procedures such as discovery to be confined to the issues in dispute - Assist in reaching an out-of-court settlement where appropriate.

Answer 90

The discovery of documents stage enables parties to get copies of documents that are relevant to the issues in dispute. Documents which are relevant to the claims and defences are listed in a formal document and the other side is entitled to inspect those documents

Answer 91

- Require the parties to disclose or reveal all relevant documents to the other side so that all parties have access to the documents, ensuring fairness in the process - Reduce the element of surprise at trial and avoid a 'trial by ambush', since the parties have seen the relevant documents well in advance at trial and have had time to prepare their arguments - Allow each party to determine the strength of the other side's case and their own likelihood of success - Ensure that the parties and the court have all the relevant material and documents required to achieve a just outcome (some of the documents will then be submitted in evidence to support a party's case) - Assist in reaching an out-of-court settlement where appropriate.

Answer 92

Laypersons or ordinary people give lay evidence. They do not give evidence about their opinion or expertise about a matter, but rather about what they know about the factual circumstances. The type of evidence from laypersons will depend on the case. Experts are often called by parties in a civil claim to give an opinion about an issue in the case. Depending on the nature of the case, the person may have expertise in a field such as medicine, accountancy, finance, engineering or law

Answer 93

- Reduce the element of surprise at trial and avoid a 'trial by ambush', particularly where the evidence is disclosed in writing and before trial - Allow each party to determine the strength of the other side's case and determine their likelihood of success by assessing the strength of the evidence - Provide both parties the opportunity to 'rebut' the other side's expert evidence by engaging their own expert - Allow the defendant to understand the amount of damages that the plaintiff¬ is seeking to enable the defendant the opportunity to consider whether it may be better to settle the matter out of court.

Answer 94

- Administrative Convenience - Appeals

Answer 95

- Manage the Trial - Attend to the Jury - Decide on the Admissibility of Evidence - Determine Liability and the Remedy - Decide on Costs

Answer 96

- Be Objective - Listen to and Remember Evidence - Understand Directions and Summing Up - Decide of Liability

Answer 97

- Make Opening and Closing Addresses - Present the Case to the Judge or Jury - Comply with 10 overarching obligations

Answer 98

- Make Opening and Closing Addresses - Present the Case to the Judge or Jury - Comply with Overarching Obligations

Answer 99

- Power to Order Mediation - Power to Give Directions

Answer 100

A judge or magistrate has the power to make an order referring a civil proceeding, or a part of a civil proceeding, to mediation. This power is given to a judge by various sections of the Civil Procedure Act, including Section 66. In addition to the Civil Procedure Act, the court rules also enable a judge to refer the parties to mediation. Parties can be referred to mediation at any time of the proceeding, which can include at a very early stage or even during trial.

Answer 101

A direction is an instruction given by the court to one or more of the parties, which imposes an obligation on a party to do something by a certain time or speciﬁes how a civil proceeding is to be conducted. It might be that they must ﬁle a document, attend court, or attend mediation by a certain time. Judges maintain control of a proceeding by giving directions along the way, so that delays can be minimised, and the parties know what procedures they need to follow.

Answer 102

- The conduct of proceedings - Timetables or timelines for any steps to be undertaken - Participating in any method of dispute resolution, such as mediation - Expert evidence, including directions about limiting expert evidence to speciﬁc issues - The allowance for a party to amend a pleading - Discovery, including relieving a party from the obligation to provide discovery, or limiting discovery.

Answer 103

- The order in which evidence is to be given, or who will go ﬁrst in addressing the court - Limiting the time to be taken by a trial - Limiting the examination of witnesses, or not allowing cross examination of witnesses - Limiting the number of witnesses that a party may call - Limiting the length or duration of the parties' submissions to the court - Limiting the number of documents that a party may tender into evidence - Evidence, including whether it should be given orally or in writing - Costs, including whether a party should bear the costs.

Answer 104

- Whether the dispute falls within the court's jurisdiction - Whether there are other or better ways to resolve the dispute

Answer 105

Both the County Court and the Supreme Court of Victoria have unlimited jurisdiction to hear civil disputes. That is, it does not matter what amount the plaintiff is seeking; both those courts are able to hear the dispute. The Magistrates' Court jurisdictional limit is $100 000. A plaintiff who is seeking damages of more than $100 000 must issue the claim in either the County Court or the Supreme Court.

Answer 106

- The court hierarchy allows for administrative convenience - The court provides opportunities to the parties to reach an out of court settlement - The court allows parties to determine the strengths and weaknesses of each other's case - The court seeks to achieve procedural fairness through the way it conducts its proceedings - Procedures and laws apply equally to all - It allows interaction between the court and the parties, which ensures fairness and equality - Parties are given information along the way so they can assess the merits of the case early on - The conduct of the trial includes decision makers who are impartial and independent - The use of the jury allows a reflection of community values in the decision making - The court process engages experts - The outcome is certain

Answer 107

- The court system often suffers delays, risking the possibility of unfairness - The costs in having a dispute resolved in courts may restrict access to the courts to resolve the disputes and may jeopardise parties being treated equally because of their socio-economic status. - Many of the procedures are complex and difficult to understand without a lawyer - The way that courts resolve disputes can be stressful - Judges cannot overly interfere or help a party, which may be unfair for some parties - Jurors are not experts in the law or evidence, which may jeopardise a fair outcome - Jurors do not have to give reasons for their decisions, and deliberations are secret - There may be unconscious biases - The role and responsibilities of the parties and legal practitioners may mean that the outcome is based on how a party presents their case, and not on who is liable

Answer 108

- Mediation - Conciliation - Arbitration

Answer 109

Mediation is a cooperative method of resolving disputes that is widely used by courts, tribunals and other dispute resolution bodies. It is a tightly structured, joint problem-solving process in which the parties in conﬂict sit down and discuss the issues involved, develop options, consider alternatives and try to reach an agreement through negotiation. They do this with the help of a mediator.

Answer 110

Conciliation is a process of dispute resolution involving the assistance of an independent third party, with the aim of enabling the parties to reach a decision between them. The third party does not make the decision but listens to the facts and makes suggestions and assists the parties to a mutually acceptable agreement or decision. The conciliator assists by exploring solutions to the dispute and suggesting possible options.

Answer 111

- They are much less formal that courts and VCAT - They may address the parties' needs better - They are conducted in a safe and supportive environment, in a venue that is suitable for both parties - They make use of an experienced third party who has expertise in resolving disputes or in the subject matter - They save time rather than waiting for a final trial or hearing - They are generally cheaper than having the matter litigated - They are private and confidential - They are voluntary - There is flexibility in the steps - They offer savings for the civil justice system

Answer 112

- The decision may not be enforceable, depending on terms of settlement - One party may compromise too much - One party may be more manipulative or stronger, so the other party may feel intimidated - One party may refuse to attend - The matter may not resolve and may need to be litigated anyway, thus wasting time and money - Some parties may make claims on principle and want a hearing - The decision will not form any precedent - One party may feel compelled to reach a resolution and therefore may feel dissatisfied - The mediation or conciliation may be conducted too early or too late in the proceeding to be effective

Answer 113

Arbitration is a method of resolving disputes without a formal court process. An independent arbitrator (a third party given the task of presiding over the discussion) will listen to both sides and make a decision that is binding on the parties. Unlike mediation and conciliation, in an arbitration the arbitrator makes a ﬁnal and binding decision. It is known as an arbitral award, and it is enforceable. Arbitration is often conducted in private, and it can be less formal and more cost-effective than attending a court hearing or trial. Parties have much more control over the process and are free to agree on the procedure. They may be able to agree on how evidence is to be submitted, or the time by which steps are to be completed.

Answer 114

- The decision is binding. This is fully enforceable through the courts - The arbitration is normally held in private and will be confidential, which can be beneficial for parties wishing to avoid the publicity of a trial - The parties have control over how the arbitration is to be conducted, by determining how evidence is to be presented and when steps are to be undertaken - The arbitrator is generally a expert on the subject matter. - There can be a more timely resolution of the dispute, as there is flexibility in the processes - Cost can often be less that court costs given there is greater flexibility over the process.

Answer 115

- Arbitration can be formal if the parties have agreed on a formal method of arbitration, adding to the stress, time and costs. - The parties have no control over the outcome, which will be imposed on them by the arbitrator - They can be costly and take a long time depending on the nature of the dispute and the way the parties have decided to resolve it - It is not available if the parties have not agreed to this form of dispute resolution, or if the claim is not a small claim in the Magistrates' Court. - The right to appeal is limited

Answer 116

A remedy is the way a court will recognise a plaintiff's right. It is what the plaintiff will seek, and what a court or tribunal may award, to legally end the dispute. Generally, a plaintiff will set out in the statement of claim the remedy sought. Often more than one remedy is sought by the plaintiff.

Answer 117

The general purpose of most remedies is to restore the plaintiff, as far as possible, to the position they were in before the wrong occurred. Various remedies are available in civil cases. The most common remedy sought is damages. Another common remedy is an injunction. Both damages and injunctions have speciﬁc purposes.

Answer 118

- Damages - Injunctions

Answer 119

Damages is an amount of money awarded to the plaintiff, to be paid by the defendant. Different types of damages can be sought, including compensatory, nominal, contemptuous and exemplary damages. The purpose of damages is to compensate the plaintiff for losses suffered, to return them to the position they were in before the defendant caused the harm. The types of losses that may have been suffered include ﬁnancial loss, physical or mental loss, and reputational loss.

Answer 120

- Compensatory - Exemplary - Nominal - Contemptuous

Answer 121

Compensatory damages are the most common damages sought. The aim is to restore the party whose rights have been infringed as far as possible to the position they were in before the infringement, by compensating them for losses suffered. It may not be possible to do this where there has been physical loss; for example, if a person has been left with a permanent injury. Compensatory damages can be speciﬁc damages, general damages and aggravated damages. Types: - Specific - General - Aggravated

Answer 122

When nominal damages are awarded, a small amount of money is paid by way of damages. A plaintiff may be seeking to make a point about being legally in the right and to show that their rights had been infringed but may not be seeking a large sum of money in compensation. Instead, the plaintiff might ask for only nominal damages or the court might award nominal damages. Therefore, the purpose of nominal damages is to uphold the plaintiff's rights without awarding any substantial amount of damages.

Answer 123

A court or tribunal might feel that the plaintiff has a legal right to damages but does not have a moral right - that is, the plaintiff did not really deserve to be paid damages. In such a situation, small damages might be awarded to show contempt for the claim that is made, while admitting the plaintiff's right to make the claim

Answer 124

Exemplary damages are the only consequence of a civil action that in some way seeks to punish the defendant for an extreme infringement of rights and deter others from undertaking the same type of actions. Exemplary damages are also known as punitive damages. The purpose of exemplary damages is to punish and deter the defendant where conduct is wanton, malicious, violent, cruel, insolent or in scornful disregard of the plaintiff 's rights. Exemplary damages cannot be awarded to a plaintiff for defamation.

Answer 125

Certain types of claims and certain types of loss have restrictions imposed on damages. For example, for personal injury claims made under the Wrongs Act 1958 (Vic), claims for non-economic loss, being pain and suffering and loss of quality of life, are limited to $598 360 (as at 1 July 2017 - the amount increases year to year). In defamation claims, damages for non-economic loss are also limited to $250 000.

Answer 126

An injunction is a court order directing someone to stop doing a certain act, or compelling someone to do a certain act. The purpose of an injunction is to rectify a situation caused by the person who was found to be in the wrong. It can be either: - Restrictive/prohibitive - ordering a person to refrain from undertaking an action - Mandatory - ordering a person to do an act An injunction can be interlocutory or ﬁnal. An interlocutory injunction is a temporary injunction that is awarded quickly and in circumstances where there is an urgent situation and an injunction is needed as soon as possible. At the ﬁnal trial or hearing, the interlocutory injunction can become a ﬁnal injunction, or it can be dismissed.

Answer 127

- Initiate and Make laws - Determine the Government - Provide responsible government - Represent the people - Publicize and scrutinize government administration - Act as a house of review - Control Government Expenditure

Answer 128

- Act as a house of review - Act as a states' house - Scrutinize bills through the committee process - Initiate and pass bills

Answer 129

- Initiate and pass bills - Form government - Provide Responsible government - Act as a house of review - Control government expenditure

Answer 130

- Act as a house of review - Examine bills through its committees - Initiate and pass bills

Answer 131

- Granting Royal Assent - Withholding Royal Assent - Appointing Executive Council

Answer 132

- Residual Powers - Exclusive Powers - Concurrent Powers

Answer 133

Residual powers are law-making powers left with the states at the time of federation and not listed in the Australian Constitution. Before the Federation of Australia and the forming of the Commonwealth Parliament, the states, as separate colonies, had power to make laws on all areas that affected their colony. At the time of federation, some powers were passed to the Commonwealth Parliament, but many powers were left with the states. Speciﬁc sections of the Constitution protect the continuing power of the states to create law in areas that were not given to the Commonwealth. These include Sections 106, 107 and 108 of the Australian Constitution

Answer 134

Most of the law-making powers of the Commonwealth Parliament are set out in Section 51 of the Australian Constitution and are referred to as 'heads of power'. These key powers of the Commonwealth are either exclusive powers or concurrent powers. An exclusive power is a power which can only be exercised by the Commonwealth Parliament. This means that only the Commonwealth Parliament can make laws in these areas.

Answer 135

Concurrent powers are law-making powers that both the Commonwealth and the state parliaments share. Many of the powers given to the Commonwealth Parliament in the Australian Constitution are concurrent powers.

Answer 136

Section 109 of the Australian Constitution is designed to help resolve conﬂicts and inconsistencies between state and Commonwealth laws. These inconsistencies sometimes arise when concurrent powers are exercised by the Commonwealth Parliament and one or more state parliaments. Under Section 109 of the Australian Constitution, if there is a conﬂict between state and Commonwealth laws, the Commonwealth law will prevail, to the extent of the inconsistency between the two pieces of legislation.

Answer 137

First, Section 109 can act as a restriction on state parliaments. It does so because it provides that, if a state parliament passes a law in an area where there is a Commonwealth law, the federal law will prevail over the state law to the extent of the inconsistency. However, Section 109 does not automatically operate such that the state parliament lacks the power to pass a law which is inconsistent with a Commonwealth law. The law needs to be challenged before it is declared to be invalid and if at some time in the future the Commonwealth law is abrogated or changed, and the state law continues to be in existence, then the state law will be in force and have effect.

Answer 138

The Commonwealth Parliament is a bicameral parliament, which means it has a lower house and an upper house. Under the Australian Constitution, Section 1 states that there must be two houses. The Australian Constitution does leave certain matters about the composition of the Houses to be legislated by the Commonwealth Parliament.

Answer 139

The bicameral structure of the Commonwealth Parliament is designed to act as a check on parliament in its law-making role. The Senate is designed to operate as a house of review. Most bills are introduced into the lower house, which means that the Senate will, among its duties, act as a house of review and as a state's house. It means that when reviewing bills, senators should in theory vote according to not only the wishes of their political party but also the interests of their state

Answer 140

- The existence of two houses allows for review of legislation by the second house. - If the government holds a slim majority or there is a hung parliament, then considerable debate can occur in the lower house than there might otherwise be. - If there is a hostile Senate or there are a signiﬁcant number of minor parties and independents in the Senate, then the upper house is likely to review bills passed through the lower house more carefully. - The requirement for a bicameral parliament is speciﬁcally stated in the Australian Constitution. This means that the Commonwealth Parliament is not able to pass legislation which abolishes either house.

Answer 141

- If the government holds a majority in the lower house, then debate and negotiations in the lower house are unlikely to occur. - Where the government controls the upper house, it tends to be a 'rubber stamp' conﬁrming the decisions made in the lower house. - The recent increase in the number of minor parties and independents in the Senate, while ensuring robust debate and views, can often mean that law-making is stalled or laws are not as effective as they could be. - The Australian Constitution does not require state parliaments to be bicameral, which means that there is no constitutional requirement for the Victorian Parliament to have two houses. - Because the lower house is controlled by the government, and usually members of parliament are required to vote according to the views of their political party, laws will generally only be passed if they are laws that the Federal Government support.

Answer 142

- Executive - Legislative - Judicial

Answer 143

Executive power is the power to administer the laws and manage the business of government. This power is vested in the Governor-General under Chapter II of the Australian Constitution. Speciﬁcally, Section 61 of the Australian Constitution states that the executive powers of the Commonwealth are vested in the Queen and is exercisable by the Governor-General.

Answer 144

Legislative power is the power to make laws. This power resides with the parliament under Chapter I of the Australian Constitution. Speciﬁcally, Section 1 of the Australian Constitution states that the legislative power of the Commonwealth shall be vested in the Federal Parliament. In Australia, the legislative power and the executive power are combined at a federal level

Answer 145

Judicial power is the power given to courts and tribunals to enforce the law and settle disputes. It is provided for under Chapter III of the Australian Constitution and is vested in the High Court and other federal courts. Section 71 states that the judicial power of the Commonwealth shall be vested in the courts. The legislative power and the judicial power must be kept separate. Only a court or tribunal has the power to decide if a law has been contravened.

Answer 146

This principle of separation of powers prevents power from being concentrated in one set of hands and helps to protect individual rights by providing checks and balances on the power of the Commonwealth Parliament. No one body can make law, administer law and rule on its legality. The government and the parliament must work together to pass laws, and the independence of the judiciary must be preserved. The power to judge criminal guilt, and to punish those who have broken the law, resides with the judiciary.

Answer 147

- The separation of powers allows for the executive to be scrutinised by the legislature. This provides checks and balances in that the legislature as the law-maker can refuse to pass legislation that is inappropriate - The judiciary is independent of the parliament and government. - Despite the overlap between the executive power and the legislative power, there are still checks between the two. Ministers are subject to scrutiny in parliament during question time, and it is the role of the opposition to examine the policies and bills and expose ﬂaws - At times the upper house is controlled by the opposition, or is composed of minority parties and independent senators, which provides for greater scrutiny of the government and its legislation - The principle of separation of powers is entrenched in the Australian Constitution. To abolish the principle would require a referendum

Answer 148

- The legislative power and executive power are combined. This can decrease the ability of the separation of powers principle to act as a check on each of the powers - Where the government controls the Senate, there is far less scrutiny that is applied to the laws and therefore the exercise of legislative power - Judges are appointed by the executive. This may result in the perception that the executive is inﬂuencing the composition of the benches of superior courts - The Australian Constitution only provides for separation of powers at a federal level, not at a state level - If the opposition controls the Senate, it can obstruct bills for political gain rather than providing authentic scrutiny

Answer 149

- The right to freedom of religion by preventing the Commonwealth from making laws establishing a religion, imposing any form of religious ceremony or worship and prohibiting the exercise of any religion (Section 116) - The right to free interstate trade and commerce (Section 92) - The right to receive 'just terms' when property is acquired by the Commonwealth (Section 51(xxxi)) - The right to trial by jury for indictable Commonwealth offences (Section 80) - The right not to be discriminated against based on the state where you reside (Section 117).

Answer 150

- Express rights impose limits on what parliament can make laws on and what it can't. - Any person who believes that a law infringes on these rights can take a case to the High Court. The High Court can then declare the law invalid. This allows for a judicial check on parliament. - Express rights cannot be removed by the Commonwealth Parliament. Only through a referendum process can the rights be changed or removed. - The High Court can act swiftly in declaring a law ultra vires if a person brings a court action, ensuring that there is an ability to challenge a Commonwealth law that has been made beyond the power of the parliament. - Express rights are clearly stated in the Australian Constitution and have remained unchanged since federation. The stability of express rights provides clarity for the public.

Answer 151

- There is limited ability for further rights to be added into the Constitution, therefore reducing the ability of more express rights to act as a check on parliament in law-making. - Where a person's rights have been affected adversely, the cost of initiating a court case is high. - The rights that are protected are limited in scope. Therefore, parliament can make laws in relation to those rights where those laws do not infringe. - The protection of rights does not prevent the Commonwealth Parliament from passing the law; that is, it will require the law to be challenged in court for the law to be declared invalid. - Express rights are relatively few compared to other countries. They are generally an ineffective means of acting as a check on parliament in law-making because there are so few of them, and they are so limited in scope.

Answer 152

- Act as a guardian of the Australian Constitution - Acts as a check for any abuse of power - It gives meaning to the words

Answer 153

- Judges are independent of the executive and the legislature and therefore decisions made on cases are based on legal principles rather than political pressure. - The existence of the High Court allows individuals who have an interest in the case to bring the matter to court and have a law overturned. This reinforces to the public that members of parliament are not above the law and judges are able to scrutinise laws made. - The judges of the High Court are experienced in making decisions, they have available to them a wide range of legal resources to ensure that decisions are properly made. - Where a parliament has made law outside its power, the High Court can act as an independent check to conﬁrm whether there has been an abuse of power.

Answer 154

- Judges can only rule on the facts of the case that is brought before them. They cannot create general principles of law outside the immediate case. - High Court judges cannot intervene in a dispute over parliamentary authority unless a case is brought before them. - The role of the High Court in interpreting the Constitution is limited by the fact that litigation is expensive, which potentially reduces the volume of cases that can be heard by the Court. - The decision of the High Court may depend on the composition of the High Court justices. Some justices are more conservative in their approach to interpreting the Constitution. - The High Court's role is limited to interpreting the Constitution rather than changing the words of the Constitution or ruling on whether it believes the parliament should have made the laws in question.

Answer 155

The referendum process acts as a restriction on the powers of parliament, because the Commonwealth Parliament cannot change the Constitution outside of this process. The Commonwealth Parliament cannot make change without referring it to the people. In this way, Section 128 operates as a check on the power of parliament to pass laws that change the Constitution. The procedure for changing the Australian Constitution, as set out in Section 128, has three stages: the parliament, the people and the Governor-General.

Answer 156

The Constitution can only be changed after a successful referendum, which is a compulsory vote on a proposed change to the wording of the Australian Constitution. The referendum outlining the proposed change is put to the people not less than two months, and not more than six months, after it has been passed by both houses of the Commonwealth Parliament. All those electors who are required to vote in the elections of each state and territory must vote on the referendum. Before the referendum is put to the people, the Australian Electoral Commission sends information to every household that explains the proposed change and provides arguments for and against it.

Answer 157

- A majority of voters in the whole of Australia must vote 'yes' - A majority of voters in a majority of states must vote 'yes' to the proposed change - that is, the referendum must be approved by a majority of voters in at least four out of the six states before it is accepted. The territories are not counted under this provision. The double majority requirement in Section 128 operates to restrict the power of the Commonwealth Parliament in that the wording of the Constitution can be changed only with agreement of voters according to the requirement.

Answer 158

- Section 128 allows the public to refuse to support a proposed change to the Constitution if the proposal is deemed inappropriate. - The double majority requirement is strict and has proven to be difficult to achieve. - The double majority requirement protects smaller states such as Tasmania and South Australia, meaning that the larger states that may support the change do not determine the success of the referendum - The vote is compulsory, which means all eligible voters will be required to vote 'yes' or 'no' to the proposal. - The process is a lengthy one and requires information to go to voters about the proposed change, including whether it will provide the Commonwealth Parliament with more power.

Answer 159

- The public may not understand the complex details of the proposal or may be reluctant to change or wary of change and may vote 'no' through fear of change or mistrust of politicians. - The double majority provision is difficult to achieve, which means that changes to the Constitution have been limited to those where there is overwhelming public support. - It is a timely and costly check on Commonwealth Parliament. It takes signiﬁcant time for a referendum process to be affected, and it can be costly. - If the referendum proposes an increase in the Commonwealth Parliament's power, the only action the states can take to stop the movement of power is to lobby strongly against the referendum and encourage the voters in their state to vote 'no' - The double majority requirement can result in an outcome that appears undemocratic.

Answer 160

- The requirement that a bill must be passed by both houses gives the second house an opportunity to check the bill and suggest amendments. - An important part of the law-making process is the debate that takes place in each of the houses. Members can point out any ﬂaws or any positives of the bill. In this way a wide range of views on the bill can be considered during the debates that take place. - Parliament is able to change the law quickly if necessary, particularly if the government has a majority in both houses of parliament, even though the legislative process is generally slow - At the Victorian level, a compatibility statement is tabled to ensure that the bill that is being presented is compatible with human rights as protected by the Charter of Human Rights and Responsibilities Act 2006 (Vic)

Answer 161

- The need to pass legislation through two houses before it can become law can slow the progress of legislative reform. - Parliament only sits for a limited number of days each year, and laws must be made during parliament sitting time. This can slow the legislative process. The government can, however, extend the sitting period or even recall parliament for a special session. - The parliament is restricted in its law-making ability by the fact that it can only pass the laws that are presented to it, usually by the government of the day. The government therefore has a responsibility to ensure that the laws presented to parliament respond to the needs of the people

Answer 162

- Business Groups and Organisations - Financial Donations - Independents

Answer 163

- Voting along party lines ensures certainty and stability. - Denial of a conscience vote can detract from representative government. - Internal party friction (disagreement) can encourage thorough debate of law reform. - Internal party friction can be disruptive and distract government from its legislative priorities.

Answer 164

- Ensure parliaments can only legislate within their power. - Allow individuals and groups to challenge legislation potentially made ultra vires. - The High Court can declare law made to be ultra vires. - The High Court must wait for a dispute to be brought before the court before making a ruling. - Challenging legislation is expensive, time consuming and has no guarantee of success.

Answer 165

- Restrict the law-making powers of parliament and indirectly protect individual rights. - Section 109 limits the state parliaments when legislating in concurrent areas of power. - The Commonwealth can influence the state legislative agenda through tied grants. - The wording of the Constitution can only be altered to change the Commonwealth's law-making powers by a referendum (public vote).

Answer 166

A precedent is the reasoning behind a court's decision. It establishes a legal principle or legal rule that must be followed by other courts ranked lower in the same court hierarchy when they are deciding future cases that are similar. This process of judges following the legal reasoning behind the decisions of higher courts is referred to as the doctrine of precedent. The doctrine of precedent creates consistency and predictability. By looking at past cases, a party that takes a case to court can anticipate how the law may apply to their situation and have some idea of the outcome because similar cases are decided in a similar manner.

Answer 167

- The principle of Stare Decisis - Ratio Decidendi - Binding precedents - Persuasive precedents - Obiter Dicta

Answer 168

The principle of stare decisis is another way of describing the process of lower courts following the reasons for the decisions of higher courts. Stare decisis is a Latin phrase meaning 'to stand by what has been decided'. Where appropriate and required, judges should stand by previous decisions to ensure common law is consistent and predictable.

Answer 169

Ratio decidendi is a Latin phrase meaning 'the reason for the decision'. It is the binding part of a judgment. A judgment is a statement by the judge at the end of a case that outlines the decision and the legal reasoning behind the decision. The ratio decidendi is not the decision itself, or the sanction or remedy given. It is regarded as a statement of law to be followed in the future.

Answer 170

Binding precedents are precedents that have been established by superior courts and must be followed by lower courts in the same hierarchy when resolving disputes with similar material facts. If a judge is bound by an existing precedent, they are obliged to follow it, regardless of whether they agree with the legal reasoning behind the decision of the superior court.

Answer 171

Persuasive precedents are precedents that are not binding on a court but may still be considered by a judge and used to inﬂuence their decision. It may be an important legal principle which is relevant to the case before the court, highly regarded by the judge and used to guide or sway their decision.

Answer 172

Obiter dictum is a Latin term meaning 'a thing said by the way'. When handing down a judgment, the judge (or judges) sometimes makes a statement that is not part of the reason for the decision (ratio decidendi). This is something the judge reﬂected upon and contemplated when making his or her decision. While not forming a part of the binding precedent, comments made in obiter may still be relevant and inﬂuential on decisions in future cases and as such can act as persuasive precedent.

Answer 173

A judge may be able to avoid following an existing binding precedent if he or she can ﬁnd a difference in the material facts of the case they are deciding and the material facts in the case in which the existing precedent was set. This is known as distinguishing a precedent. This is because a precedent set by a superior court in the same hierarchy is only binding on a lower court in cases where the material facts are similar.

Answer 174

When a case is taken on appeal to a higher court, the superior court may change the decision of the lower court. This is called reversing a precedent. When a court reverses an earlier decision, in the same case on appeal, a new precedent is created by the superior court's decision. The new precedent becomes the one to follow in future cases.

Answer 175

When a superior court decides not to follow a previously established precedent it can choose to overrule the existing precedent. By overruling a precedent, the superior court creates a new precedent that makes the earlier precedent inapplicable. This is like reversing a precedent, except that reversing applies when a judge changes an existing precedent set in a lower court in the same case on appeal, whereas overruling applies to changing a precedent in a different and later case. Superior courts can overrule an existing precedent set by a lower court in an earlier and different case because they are not bound to follow precedents created in lower courts.

Answer 176

When a lower court disagrees with an existing binding precedent set by a superior court in the same hierarchy, it may wish to express its dissatisfaction with the previous precedent. This is referred to as disapproving a precedent. While this statement of discontent does not allow the lower court to avoid following the precedent, it may encourage parliament to change the law or encourage a party to consider lodging an appeal against the decision in a higher court. A statement of disapproval, made as obiter dicta, may also be used to indicate to a higher court that a judge in a previous case believed the precedent needed to be reconsidered

Answer 177

- Problems that occur because of the drafting process - Problems that occur when a court is applying the Act of Parliament to resolve a case.

Answer 178

- Mistakes can occur during the drafting of a Bill - Parliamentary counsel may make mistakes when drafting a bill. - The act might not have taken future circumstances into account. - The intention of the act might not be clearly expressed. - There might be inconsistent use of the same word in the act. - An act may not cover new types of technology. - Parliamentary counsel may have used incorrect technical terms. - There may be inconsistencies with other statutes - A word in an act may not be deﬁned in the act - The deﬁnition of a word might be too broad in an act

Answer 179

- Most legislation is drafted in general terms - This is so it can cover a wide range of circumstances. However sometimes the terms used are so broad that they need to be interpreted so they can be applied to speciﬁc circumstances. - The act may have become out of date - This means it may need to be revised to keep up with changes in society. - The meaning of the words may be ambiguous - The words and phrases used in a statute attempt to cover a broad range of issues. As a result, the meaning of some words might be ambiguous. - The act might be silent on an issue and the courts may need to ﬁll gaps in the legislation - A statute tries to cover all situations that might arise in relation to the issues covered in the statute. This may not be possible as some situations may arise that were not foreseen, or gaps may have been left in legislation. - The meaning of words can change over time - The legal meaning of the term 'de facto relationship' was a man and a woman living in a domestic relationship. The deﬁnition of a de facto relationship is now a couple living in a domestic relationship, regardless of gender.

Answer 180

- Words or phrases contained in disputed acts are given meaning - This is so that the relevant statute can be applied to resolve the case before the court. - The decision reached is binding on the parties - Once a court has reached a decision on the meaning of an Act of Parliament, the parties to the case are bound by that decision until one of the parties lodges an appeal against the decision and the appeal court reverses it. - Precedents are set for future cases to follow - If the interpretation of the words and phrases in an act is made by a superior court, the reason for the decision forms a precedent that is then read together with the statute to determine the outcome of future cases. This will occur until the precedent created is extended, reversed or overruled by a higher court or overridden by parliament, which can pass a law to cancel a court's interpretation. - The meaning of the legislation (law) can be restricted or expanded - If a court interprets a word or phrase narrowly, this could restrict the scope of the law. Similarly, a broad interpretation of a word or phrase in a statute can extend the meaning of legislation to cover a wider range of circumstances or new area of law.

Answer 181

- The doctrine of precedent - Judicial conservatism - Judicial activism - Costs and time in bringing a case to court - The requirement for standing.

Answer 182

- The principle of stare decisis ensures consistency in common law because lower courts must follow precedents set by superior courts in cases with similar material facts. - The principle of stare decisis can ensure predictability in common law because parties can anticipate how the law is likely to be applied to resolve their dispute by examining past cases. - Common law is flexible because judges in superior courts can overrule and reverse precedents and lower courts can avoid them through distinguishing material facts. - By undertaking statutory interpretation judges can clarify unclear legislation so it can be applied to cases before the court. - By undertaking statutory interpretation judges can expand or limit the meaning of legislation. - By setting precedents courts can make law to complement legislation. - Judges are independent and impartial adjudicators who do not have political bias or feel compelled to satisfy voters when making decisions. - Courts can determine if parliament has made law beyond their power and declare any such law invalid. In doing so, courts provide an independent check that parliament does not exceed its law-making powers. - Judges can be an informal source of legislative change.

Answer 183

- Lower courts must follow a binding precedent even though they may consider it to be outdated or inappropriate. - Given the large amount of precedents in existence, and the different judgments in the same case, the process of identifying the relevant precedent can be time-consuming and costly for the parties. - Judges in superior courts may be reluctant to change an existing precedent, preferring parliament, as the supreme law-making body, to abrogate (cancel) it. - Judges can only interpret legislation when an appropriate case is bought before the court, which is generally reliant on parties being willing to pursue a dispute through the appeals process. - Judges cannot change the actual wording of legislation but rather create a precedent that is read with the existing legislation. - Courts can only clarify the meaning of legislation after a dispute over its meaning has arisen (i.e. ex post facto). - Unlike members of parliament, judges are not elected by the people and as such may not represent the views and values of the community in their decisions. - Judges may be conservative and exercise restraint when resolving disputes that may lead to a controversial change in legislation. - Parliament can pass legislation to override common law, with the exception of decisions made in constitutional matters.

Answer 184

- helps maintain stability in the law - lessens the possibility of appeals on a question of law - allows the parliament, which has the ability to reflect community views and values, to make the more significant and controversial changes in the law - restricts the ability of the courts to make major and controversial changes in the law - can discourage judges from considering a range of social and political factors when making law

Answer 185

- Allows judges to broadly interpret statutes in a way that recognises the rights of the people. - Allows judges to consider a range of social and political factors and community views when making a decision, which may lead to more fair judgments. - Allows judges to be more creative when making decisions and making significant legal change (as occurred in the Mabo Case). - Can lead to more appeals on a question of law. - Can lead to courts making more radical changes in the law that do not reflect the community values or are beyond the community's level of comfort

Answer 186

- Can deter litigants who cannot afford these costs, and who do not qualify for legal aid, from pursuing their case and their rights in court. - Can deter parties from pursing the appeals process. - Can discourage frivolous claims. - Can encourage parties to use alternative methods of dispute resolution and non-court institutions (e.g. VCAT and Consumer Affairs Victoria) to resolve their dispute. - Courts can resolve disputes quickly particularly where the circumstances require them to. - Not required to follow lengthy processes in deciding cases. - Some courts have suffered delays in having a case heard and determined. - Parties can be delayed in getting a case ready for trial.

Answer 187

- Ensures cases are only brought to court by people who are genuinely affected by an issue or matter rather than wasting valuable court time and resources on listening to people who are not affected by a matter. - Encourages people not directly affected by an issue or matter to seek other avenues of redress (e.g. lobbying members of parliament, petitioning or demonstrating) rather than going to court. - Means that people who have a general interest in a case (e.g. where legislation potentially breaches individual rights) have no right to pursue a legal challenge on behalf of public interest or the common good. - Means that potential improvements to the law that could have been made by listening to those with only intellectual interest in the case are lost.

Answer 188

- the supremacy of parliament - the ability of courts to inﬂuence parliament - the interpretation of statutes by courts - the (codiﬁcation) of common law - the abrogation of common law.

Answer 189

- Community Value Shifts - Legal System Expectations - Community Awareness - Need of Government Departments - Nature of Business - Technology - International Relationships

Answer 190

- The nature of relationships - Rights of children - Legislation regarding the environment - Legislation regarding basic human rights

Answer 191

- Expect law makers to be proactive in law making

Answer 192

- People have more knowledge than 100 years ago - As a result, there is greater demand for alternative dispute resolution methods - Greater demand for legal representation - Public has a greater role in holding the government accountable for their actions

Answer 193

- Privacy Rights - Censorship - Copyright - Taxation - Trademarks

Answer 194

- Road safety laws - Privacy laws - Defamation Laws - Sex offenders list

Answer 195

- Petitions - Demonstrations - Use of Courts

Answer 196

- Influence - Awareness Raising - Scope

Answer 197

- Petitions can minimise an issue - Dependence on MP's - No guarantee of publicity - Counter-Petitions

Answer 198

- Publicity - Influence Election Policies - Generate support from decision-makers

Answer 199

- Time - Coordination - Low Support

Answer 200

- Publicity - Influence Election Policies - Generate support from decision-makers

Answer 201

- Time - Cost - Establishing a prima facie case

Answer 202

- Traditional - Social

Answer 203

- Mass Publicity - Political Influence - Accessibility

Answer 204

- Oversimplification - Opposition - Reliability

Answer 205

- The VLRC conducts widespread community consultations to ascertain if law reform is necessary - Section 5 of the VLRC act stipulates the role of the VLRC are to inquire, investigate, monitor and educate - VLRC acts on references by the Attorney-General - VLRC is funded by the Victorian Government and is an independent body

Answer 206

- Independent of Parliament - Power to make law on minor legal issues - Enabled to seek community input

Answer 207

- Limited Resources - Often limited by AG references - Time consuming and costly

Answer 208

Strengths - Elected law-making body - Adequate resources - Ability to respond quickly Weaknesses - Does not have unfettered law-making powers - Reluctance of MP's to act - Time Consuming

Answer 209

Strengths - Courts can respond proactively - Obiter Dicta statements can influence Parliament - Judges are independent law-makers Weaknesses - Judges only make law ex post facto - Judicial conservatism - Judges are unelected law-makers

Answer 210

- Major public inquiries established by the Government to investigate something of public importance or concern in Australia - Established at both state and federal level - RC's are set up by the Crown (GG and Governor) yet act on advice from Government - Government provides funding and determines length

Answer 211

Strengths - Government more likely to act upon recommendations - Can measure community views through submissions - Can investigate an area comprehensively - Have power to call anyone before them - Independent from Parliament Weaknesses - RC's can be used as a tool against political opponents - No obligation for parliament to support or introduce law reform - Investigations can be time-consuming and expensive - Ability can be up to support for reform and timing of its reporting.

Legal practice Exam deck 1 Flashcards

To prepare for trial exams (september 2024) (236 cards)