Legal SAC AOS2 Flashcards
(30 cards)
The judge
An independent impartial party that ensures court procedures are followed and that parties are treated fairly.
The judge must ensure that the principals of justice are upheld.
Responsibilities of the Judge
- Manage the trial
So that the trial is conducted in a timely, just and efficient manner.
Judges have the ability to control the case by making orders and giving directions throughout the proceedings known as ‘case management’, orders may include attending mediation or not permitting a piece of evidence.
*Deciding on the admissibility of evidence
Whether or not a piece of evidence is permitted ensures fairness in the trial process.
*Attending jury matters (if there is one)
May need to address the jury during trial, give directions to the jury.
*Determine liability and remedy
Decide whether the plaintiff has established his or her claim against the defendant and if so what remedy should be awarded.
Legal practitioners
Are experts who are familiar with civil trials and undertake the role of preparing and conducting a case on behalf of a party.
Legal practitioners must ensure the rule of law is upheld and the law is applied equally and fairly.
Responsibilities of legal practitioners
*Make and opening and closing address
A solicitor or brister will prepare submissions and present them orally through their opening and closing addresses.
*Present the case to the judge and or jury
Legal practitioners are responsible for presenting the case to the judge and jury by asking the witness questions and making submissions about matters that come up during trial.
Jury
It is unlikely to have a jury for a civil trial but if the plaintiff or defendant or in some rare cases even the judge decides that they want a jury to be used it will be made up of 6 individuals who are chosen at random.
Responsibilities of the jury
*Be objective
The jury must be unbiased and bring an open mind.
*Listen to and remember the evidence
Jurors can take notes if it helps them to remember the information, a jury member must not do their own investigation on the case at hand.
*Decide on liability and some cases remedy
Must decide who and what to believe on the balance of probabilities it must be a unanimous decision.
Parties
The main parties in a civil trial are the plaintiff and the defendant. The plaintiff is the one bringing the case forward and who is claiming to have had their rights breached or infringed by the defendant.
Responsibilities of the parties
*Make opening and closing addresses
Both parties will give an opening and closing address that summaries and outlines the case.
*Present the case to the judge and or jury
Most of the trial is taken up by presenting the facts and evidence to the judge/jury and interviewing witnesses either expert witnesses or lay witnesses.
*Comply with overarching obligations
Must act honestly, Cooperate and not mislead or deceive others.
Judicial powers of case management
Case management refers to the powers given to Victorian judges and Magistrates to manage civil disputes through the ‘Civil Procedure Act’ and other statue.
These powers give judges power to order mediation and to give directions.
Power to order mediation
The court can order parties to either arrange private mediation or a court officer to act as a mediator.
Parties can be referred to mediation at any stage of the proceeding.
Mediation is considered successful and allows parties to realise the benefit of settling out of court and without a trial.
Power to give directions
Judges have the power to give directions before or after a trial, parties who don’t comply may have a sanction imposed.
Directions are instructions given by courts imposing obligations on parties such as attending court or mediation (this assists in minimising delays).
Directions before a trial can include the conduct of proceedings limiting expert evidence, allowing for a bleeding amendment and stipulating timelines for any step to be undertaken. (placing limits on time, limiting/examining the number of witnesses.
Mediation
Independent 3rd party known as a “mediator” who initiates a conversation between the 2 disputing parties, the mediator does not put their input in and does not help them come to a decision.
(no interfering and not binding)
Country court appropriateness
Can hear cases from $100,000 +
Supreme Court appropriateness
Can hear cases from $100,000 +
Magistrates court appropriateness
Can hear cases up to $100,00 (no more)
VCAT appropriateness
Cases relating to…
- Domestic buildings
- Residential tenancies
- Planning disputes
Purpose of civil remedies
To return the plaintiff back to the original position they were in before their rights were breached or infringed.
Damages
A legal remedy involving an amount of money paid to the plaintiff.
Aim to compensate the plaintiff to the extent that money is able to do so.
Types of damages
*Compensatory damages (most common)
Specific + General
*Aggravated damages
*Nominal damages
(small amount of money wanted )
*Contemptuous damages
(small amount is rewarded cause its unnecessary)
*Punitive damages
(large sums of money)
Compensatory damages
Specific:
Can be calculated exactly such as medical expenses.
General:
Unable to be calculated, any future loss of earnings or suffering such as losing a hand.
Aggravated damages
An added sum of money paid to a plaintiff in situations where there has been extreme insult or humiliation.
(the defendant has acted in a nasty or offensive way)
Nominal damages
Where the plaintiff only request a small amount of money, they more so just want the satisfaction and moral victory of winning the case.
Contemptuous damages
The court agrees and acknowledges that there has been a legal issue that has been breached but you don’t deserve money.
You’r doing it to just be a dickhead and annoying (bank suing an old lady for not paying on time).
Punitive damages
Really large sum of money is paid to the plaitiff that might not be related to the magnitude of harm suffered.
The defendant has acted in a really malicious/reckless/cruel manner.
Known as exemplary damages.
Making an example of someone, punishing the other person rather than just retuning the plaintiff to their original state.
