Semester 2 Exam Flashcards

Question

Define the term test case

Answer 1

A case bought before the courts where no precedent has been established

Answer 2

An international association of nations formed in 1945 to promote world peace and cooperation.

Answer 3

A United Nations document outlining the basic rights of all human beings

Answer 4

Defined as the basic rights and freedoms to which all humans are entitled, these rights include - the right to life and liberty - freedom of thought and expression - equality before the law

Answer 5

- No law prohibits an actions - common law - statute law - the constitution - structural protections

Answer 6

In some instances our rights are not protected by the law but exist because there is no law that interfered with the rights, such as the freedoms of movement which has the restriction of trespass

Answer 7

Some of our rights are protected by common law that is, law made by courts. The common law recognizes the right to silence of the right not to give self-incriminating evidence

Answer 8

Other rights are protected by statute law, that is law made by parliament. Principles sent in treaties are reflected In laws that have been passed at both federal and state level

Answer 9

Provides limited protection of Human rights through the 5 express rights, which are; - section 51, requires the commonwealth to pay compensation to a land owner when it compulsorily acquires the land - section 80, gives a criminal defendant the right by retail be jury for indictable offenses - section 92, the right to freedom of interstate trade - section 116, freedom of religious expression - section 117, right to freedom of discrimination on the basis of a persons state of residence

Answer 10

Responsible government Responsible government Separation of powers

Answer 11

Refers to a government where members are held accountable for their actions to the parliament and parliament is accountable to the voters

Answer 12

Protects citizens from any possible abuse of power by making the government answerable to the people at elections

Answer 13

It is stated that 'absolute power corrupts' therefor the law does not administer law and settle disputes Legislative - power to create laws Executive - power to administer laws Judiciary - power to settle disputes However this is not always true as politicians elected as ministers form the cabinet meaning they have legislative and executive powers

Answer 14

Enshrines a body of civil and political right, it was formed under Victorian statute law The charter sets out - freedoms, rights and responsibilities - protects people from injustice - allows everyone to participate in and contribute to society

Answer 15

Dignity - protection from torture, privacy and reputation Freedom - expression, rights in criminal proceedings, fair hearing Respect - life, protection of families and children Equality - recognition and quality before the law, taking part in public life

Answer 16

Government/public bodies - must observe these rights when they create law, set policies and provide services Parliament - must consider if all new laws meet the standard of rights in the charter, a statement of comparability must be prepared Courts - the courts must consider the rights in the charter when interesting legislations, the Supreme Court can issue a declaration of incompatibility

Answer 17

Roach was an indigenous Australian convicted of 5 charged under the crimes act 1958, which sentenced her to six year imprisonment in 2004

Answer 18

Outlined that the following people were not allowed to vote - those incapable of understanding the nature and significance of enrolling and voting - those serving a sentence of three or more years for an offense - those convicted of treason and treachery

Answer 19

In 2006 the act was amendment so that no prisoner serving a term of imprisonment could vote, known as the 2006 amendment act, this now meant that roach could not vote in the 2007 election

Answer 20

The decision was made to abolish the 2006 amendment act as section 7 and 24 of the constitution required that members of the senate had House of Representatives be chose by the people of the commonwealth

Answer 21

For - many people in the community believed that prisoners were receiving an extra judicial punishment which further isolated and stigmatized the prisoners Against - the federal government and some members of the general public did however have the opinion that a prisoner who is removed from society due to offending the laws of that society forfeited the rights to it only live but to have a say

Answer 22

A precedent that must be followed by all lower courts in the same hierarchy considering a 'like' case However a bind precedent does not exist if the precedent was set at the same level as the 'like' case, precedents only apply to lower courts and not of the same level

Answer 23

The area of law developed by the courts, judge made law

Answer 24

The person against whom the civil action is brought against

Answer 25

Published judgments of courts

Answer 26

A precedent that a court does not have to follow but can be influential when determining a case the decision may be from a; - lower court - court in the same level in the hierarchy - Court in another court hierarchy

Answer 27

A person who brings a civil action to court

Answer 28

A legal principle that allows 'like' cases to be treated similarly

Answer 29

The judges reason for their decision that forms the binding precedent for future like cases

Answer 30

The means by which the court restore a successful plaintiff to their original position

Answer 31

The rule that states that courts will stand by the decision handed down by the higher courts in the same hierarchy in like cases

Answer 32

Civil law is concerned with protecting and enforcing the rights of individuals Criminal law serves the purpose of regulating behaviors withing the community, establishing a set of guidelines and expectations of each member of society

Answer 33

Criminal law provides a means to prosecute the drunken driver Civil law offers the inured person the right to sure for compensation

Answer 34

Criminal law - prosecute | Civil law - sue

Answer 35

Criminal law - beyond reasonable doubt (prosecutor) | Civil law - on balance of probability (plaintiff)

Answer 36

Criminal law - verdict of guilty or not guilty | Civil law - liable or not liable

Answer 37

Criminal - if the accused is found guilty a sanction is imposed Civil law - If the defendant is found liable, a remedy is awarded to the plaintiff

Answer 38

Strict rules and guides that judges must follow when making and applying precedents. How these rules work is known as the doctrine of precedent

Answer 39

A decomposing snail was found in the bottom of a ginger beet which was poured by a friend into Ms Donoghue's glass, she become violently ill, and could not work. She could not sue the cafe owner as she had no contract with him, having not purchased the ginger beer so she then decided to bring action against the beverage maker (Mr Stevenson). The English courts established that Stevenson did own Donoghue a duty of care and that the duty had been breached by failing to properly inspect the product before offering ti for consumption, the English courts had established the 'neighbour' principle

Answer 40

Dr Grant established an itch as a result of a harmful chemical found contained within his sets of purchased underclothes, made by the knitting mills. He decided he would sue the manufacturer as they had been careless and as a result he had suffered discomfort. The AKM argued that there was no Australian law that held them liable, and that it was the responsibility of the purchaser of the goods to inspect them for any defects before purchasing them, Dr grant appealed the the highest Court in which they referred to the Donoghue vs. Stevenson case from the English courts. The court interpreted neighbour as any person who is likely to be closely and directly affected by your actions, therefor DR grant was entitled to compensation. This was the first time the legal principle of negligence had been applied in Australia, the ratio decidendi became a binding precedent to be followed by all lower courts in the Australian court system.

Answer 41

- Distinguishing - Disapproving - Overruling - Reversing

Answer 42

A judge may decide that a precedent does not apply to the case before them, this could occur when the judge thinks that the cases are not 'like' cases and should therefor not be treated similarly.

Answer 43

If the precedent is set by a high court, it is binding but it is still possible for the judge to make comments indicating they do not believe that a particular law is appropriate. The judge must still apply the precedent however a clear message is being given to the higher court that the judge believes the precedent should be changed.

Answer 44

A judge in a higher court may overrule an earlier precedent and replace it with a different one, if a precedent is overruled the original precedent is no longer binding.

Answer 45

When a new legal principle is stated in a lower court and one of the parties appeal to a higher court, the higher court can consider the ratio decidendi by the judge and if they don not agree with it the higher court can reverse the decision. the precedent set by the lower court can no longer be applied.

Answer 46

Involves judges interpreting words or phrases used in legislation. When a judge interprets the meaning of an act that will give a ratio decidendi for the decision which forms the precedent.

Answer 47

the legal recognition of the dissolution of marriage

Answer 48

Two people of the or opposite sex who are not married but are living as a couple on a genuine domestic basis

Answer 49

A social agreement to marry

Answer 50

The breakdown of a marriage as evidenced by 12 months separation

Answer 51

The Union of one man and one women to the exclusion of all other for life.

Answer 52

Orders made by the court where parents cannot agree to a parenting plan

Answer 53

An agreement made by parents about the guardianship of a child under a separation

Answer 54

An agreement drawn up before marriage about the division of a child after a separation

Answer 55

A register for domestic partner who, although not married are in a committed relationship.

Answer 56

Engagement is not a legal requirement but is used by many couples as a public and open commitment to each other

Answer 57

Common law definition was stated in the case of Hyde v. Hyde and Woodmansee as ‘the voluntary union for life of one man and one woman to the exclusion of all others’ This common laws definition of marriage law has been restated in the Marriage Act 1961 (Cwlth). The Marriage Act defines marriage as a ‘union of a man and women to the exclusion of all others, voluntarily entered into for life’

Answer 58

- Be of marriageable age - Not be closely related - Be of opposite sex - Be free to marry - Make a voluntary commitment - Valid marriage ceremony

Answer 59

A person must be over 18 to get married, Young people under 18 must have permission from their parents and magistrates’ Court to get married

Answer 60

A person cannot marry their ancestors or descendants but they can marry their cousins

Answer 61

A marriage must be between one man and one women

Answer 62

Bigamy is a crime. A person cannot marry again unless their spouse has dies or they are divorced.

Answer 63

A couple must marry voluntarily. If the marriage is undertaken for reasons of fraud or duress it can be declared void.

Answer 64

Couples must give a least one month’s notice of their intention to marry Must be performed by an authorized marriage celebrant The weeding must be witnessed by two other people over 18 Formal wedding vows must be exchanged At the completion of the ceremony, the couple, the celebrant and the witnesses must sign the marriage certificate.

Answer 65

Mutual support – marriage creates an obligation of mutual support Wills – gives direction of the division of assets Surnames – there is no legal requirement for a person to change their surname upon marriage Marriage contracts (Pre-nuptial agreements) – drawn up before a couple get married to set out what will happen to their assets if they divorce.

Answer 66

The Relationships Act 2008 (Vic) recognizes all couples irrespective of gender. It provides a registration scheme so that couples can prove the existence and legal status of their relationship for the purpose of Victorian and Commonwealth law.

Answer 67

All children are equal before the law irrespective of whether or not their parents are married

Answer 68

Prior to 1975 one of the parties has to prove fault according to the matrimonial Crimes Act 1959 (Commonwealth). Common grounds of fault included - Desertion for two years - Adultery - Separation for 5 years The law was later changes as it was recognized that no all marriages ended in fault, the federal government reformed the laws of divorce creating the Family Law Act 1975 (Commonwealth) Under the Family Law Ac the only ground for divorce is the ‘irretrievable breakdown of marriage, evidenced by the separation of 12 months.

Answer 69

A couple can live separately and apart in the same house, this occurs when one partner cannot afford to live separate until the family assets are divided, however the couple must not sleep, eat together or carry on any normal social engagements, they must live independently.

Answer 70

The law encourages couples to try to work out their problems. Short period of reconciliation (up to three months) do not affect the separation period

Answer 71

An application for divorce cannot be made within the first two years, one year of marriage and one year of separation without the permission of the court or the couple has attended counselling. This recognizes the fact that often the first year of marriage can be a time of learning and adjustment.

Answer 72

Couples must reach some agreement as to property division, financial support and parenting arrangements Parents are both equally responsible for the care of their children until the Family court makes a specific order Australian divorce laws apply to Australian citizens and to anyone who has lived in Australia for one year before making their divorce application

Answer 73

The Family court of Australia hears divorce cases and related matters. The family court is presided over by a judge and there is no jury.

Answer 74

The dispute resolution system aims to encourage couples to come to their arrangements and make their own decisions through the use of mediation and counselling.

Answer 75

Uncontested Cases- Can be heard quickly and if no children, the parties do not have to be present Contested cases – The court encourages the use of alternative dispute resolution process. If the parties cannot reach an agreement, the case will be determined by the Family Court

Answer 76

Initially the court will grant a decree nisis and the divorce does not take affect for a month. A divorce is final when the decree absolute is granted.

Answer 77

Parents are encouraged to come to an agreement, in writing, that outlines these points - The person with whom the child will live - Any contact between the child and another parent(s) - Any other particular aspect that may affect the child This type of agreement is known as a parenting plan

Answer 78

If no agreement is lodged with the court, the court will consider the best interests of the child in reaching a decision, through a parent order which impose obligations on both parents to care for their child.

Answer 79

Same-sex marriage is not recognized as a marriage within Australia, but as a domestic partnership (de facto relationship) For - Laws become outdated It would reflect societies moral/values Domestic partners already get the same rights as married couples Against - would go against original precedent - Democratically elected Age of population

Answer 80

An alternative dispute resolution method where both parties present their cases before an independent arbitrator who can make a final and binding decision

Answer 81

A civil remedy providing monetary compensation

Answer 82

Inspection of documents

Answer 83

A court order requiring that a party take an action or restrain from taking an action

Answer 84

Written question asked of one party to a civil action by another party

Answer 85

A dispute resolution method where a mediator assists parties to exchange information, ideas and possible alternatives

Answer 86

Methods of resolving disputes included mediation, conciliation, arbitration and judicial determination

Answer 87

The means by which the court restores a successful plaintiff to their original position

Answer 88

Expertise, allowed cases of a similar nature to be heard by a particular court Resources, If we did not have a hierarchy, personnel would have to be available in all courts to hear and administer all cases Appeals, appeals process promotes fairness and is a safeguard against unjust decision. Precedent, it is essential to the operation of precedents, the use of past decision in determining current cases relies heavily on the existence of a hierarchy.

Answer 89

The person taking the civil action is known as the plaintiff The person against whom the action is brought against is called the defendant Generally the parties to a civil case action are known as the litigants.

Answer 90

``` Letter of demand Writ Notice of appearance Statement of claim Defence Counterclaim Discovery process Directions hearing Certificate of readiness for trial ```

Answer 91

Filed by the plaintiff and outlines the names and addresses of the plaintiff and the defendant, information about the place and mode of trials and the name and address of the plaintiff solicitor, the writ must be must be served in person or posted to the defendants address,

Answer 92

The court may give the parties directions about the pre-trial proceedings, such as dates by which certain documents must be filed. The aim of the directions hearing Is to ensure that proceedings are conducted in an effective and timely manner.

Answer 93

The parties can elect to have a jury of six in civil cases heard in the county court or the Supreme Court. The party that makes the request is required to pay a fee to the court for each day that a jury is required. The Jury can is asked to reach a decision on the ‘balance of probability’ as well as determine the level of damages. A jury in a defamation case cannot determine the level of damages.

Answer 94

- Damages - Specific performance - Rescission - Injunction

Answer 95

Provide monetary compensation Special Damages – Expenses which can be accurately assessed. For example expenses such as doctors’ bills and hospital costs can be accurately assessed. General Damages – These expenses which are more difficult to assess such as the level of a person’s pain and suffering Nominal – Small sum of money awarded in situation where a plaintiff’s rights have been infringed but they may not have suffered significant injury or loss. Exemplary – Awarded when the court intends to make an example of the defendant to the rest of the community by ordering them to pay a large sum of money, this acts as a deterrent Contemptuous – Small sums of money awarded in cases when the plaintiff may have valid claims and could even be successful in exercising their rights but the court is not sympathetic.

Answer 96

often sought in cases concerned with breach of contract. When an order for specific performance is granted, the court directs the party at fault to carry out the terms of the contract.

Answer 97

puts an end to a contract and restores the parties to their original position.

Answer 98

A court order for the defendant to undertake or to refrain from undertaking, particular behaviour, injunctions may be temporary or permanent.

Answer 99

When an order is ignored, the party at fault will be in contempt of court. This means that the person is guilty of a crime and can therefore be punished and even imprisoned. When the court has awarded damages the payment can be ensured in a number of ways; - Police can be empowered to seize goods or land belonging to the debtor - The court can insist that certain portions of the debtors wage be paid directly to the creditor

Answer 100

When a third party assists both sides to identify the issue and ways in which the dispute can be resolved.

Answer 101

Where a third party listens to both sides and suggests ways in which the dispute can be resolved. They are usually an expert in the area.

Answer 102

A formal mean of dispute resolution that relies on a decision made by a magistrate or judge in the courts.

Answer 103

``` Advantages; - Lower fees - Quick - Win/win - Informal/less intimidating Disadvantages - Decision is not binding - Not compulsory - imbalance of power ```

Answer 104

``` Advantages - informal - Conciliator is an expert - Co-operative environment Disadvantages - decision is not binding - relies on goodwill ```

Answer 105

``` Advantages - binding decision - expertise - formal process - limited costs Disadvantages - limited appeals - Lengthy - win/lose scenario - Expensive if legal rep is needed ```

Answer 106

Language barriers – Not understanding English or not understanding legal jargon can limit a persons’ access to the law. Furthermore the volume of laws in the community can make it difficult to know the laws that apply to your case Access to professional representation – People may not know how to obtain legal assistance or be able to afford legal advice and representation.

Answer 107

``` Legal Aid Law Aid Trade union Tertiary institutions Community legal services ```

Answer 108

Victoria legal Aid (VLA) is a body that can offer assistance to people to gain access to the law and remedies for any legal disputes. VLA can provide assistance in areas of criminal law and family law and some civil law matters.

Answer 109

Law Aid – Law aid is a voluntary not for profit scheme that is managed by the Law institute of Victoria and the Victorian Bar council. All forms of civil cases are supported, including claims involving personal injury, discrimination, professional negligence, will and estates.

Semester 2 Exam Flashcards

(133 cards)