UNIT 2: AOS 2

Question 1

Civilian jurisdiction of the County Court

Answer 1

1 Judge and an optional jury of 6
Original jurisdiction: 
unlimited, litigants can choose to have their case heard in either the County Court or the Supreme Court 
Appellate Jurisdiction: 
no appeals, unless under a specific Act

Question 2

Civilian Jurisdiction of the Supreme Court Trial Procedure

Answer 2

1 Justice and an optional jury of 6 
Original Jurisdiction:
unlimited
Appellate jurisdiction:
appeals on point of law from the Magistrates Court and VCAT

Question 3

Civil Jurisdiction of the Supreme Court Court of Appeal

Answer 3

Appellate jurisdiction: with leave on point of law, or question of fact or amount of damages from a single judge of the county court or Supreme Court and from VCAT when constituted by the President or Vice President

Question 4

Methods of Civil Dispute

Answer 4

Mediation
Conciliation
Arbitration
Judicial determination

Question 5

Mediation

Answer 5

When the disputing parties come before an independent third party mediator who doesn’t enter the discussion however ensures that each party is given the opportunity to put their case forward. Mediation is not binding and requires each party to abide by the agreement, used when there is an ongoing relationship

Question 6

Conciliation

Answer 6

Where the two parties come before an independent third party conciliator who listens to both sides and at the conclusion makes suggestions on how to resolve the dispute. The resolution is not binding

Question 7

Arbitration

Answer 7

Where the disputing parties come before an independent third party arbitrator who listens to both sides of the dispute and makes a ruling which is legally binding

Question 8

Judicial Determination

Answer 8

Where the disputing parties come before an independent third party justice, judge or magistrate (judicial officer) who listens to both sides and makes a decision, based on the evidence presented, which is legally binding on the parties.

Question 9

Purpose of civil pre trial procedures

Answer 9

• to inform the defendant that a case is being brought against him/her
• to inform the plaintiff if the defendant wishes to defend the case
• to clarify issues in the dispute
• to allow the counsels for both parties to become familiar with the facts of the case
• to provide details about each other’s cases
• to give the parties adequate time to prepare
• to allow the parties time to consider the means of their cases
• to encourage out of court settlement
• to provide the court with a written record of the issues and arguments to be discussed during the trial
• to reduce the time in court as some issues will have been settled before trial.

Question 10

Operation of civil pre trial procedures

Answer 10

Pleadings 
Discovery 
Directions Hearing 
Notice Of Trial
Offer of Compromise

Question 11

Pleadings

Answer 11

• A writ or originating notice
• A statement of claim
• A notice of appearance
• A defence and counterclaim
• Further or better particulars

Question 12

Discovery

Answer 12

• Interrogatories

- Discovery (documentation, oral examination and medical examination)

Question 13

Writ or Originating Notice

Answer 13

A document prepared by the plaintiff and issued by the court. This explains the action that will be taken against the defendant. It provides basic details such as; mode of trial, place of trial and how long the defendant has to file a notice of appearance

Question 14

Statement of Claim

Answer 14

A document giving the details of the claim made by the plaintiff

Question 15

Notice of appearance.

Answer 15

Filed with the court and served on the plaintiff by the defendant, showing that they want to defend the case

Question 16

Defence and counter claim

Answer 16

Details about the defence being put forward by the defendant to the plaintiffs claims. A counterclaim is optional if the defendant thinks they have a claim against the plaintiff

Question 17

Further or better particulars

Answer 17

Request of further details of the other party’s claims (more details of the case) e.g asking more details about that contract

Question 18

Interrogatories

Answer 18

A list of questions about the case between either party

Question 19

Discovery of documentation

Answer 19

Either side is normally required to disclose any relevant documents or a class of documents. Once a party has relieved details of the documents in the other party’s possession or control, that party is able to inspect or relieve a copy of those documents

Question 20

Discovery by oral examination

Answer 20

One party may ask the court if they can put questions to the other party before going to court

Question 21

Discovery by medical examination

Answer 21

If necessary, either side may ask the other side to attend a medical examination. The investigation within the exam is documented and sent to the requesting party

Question 22

The Civil Jurisdiction of the Magistrates Court

Answer 22

1 magistrate
Original Jurisdiction:
claims up to $100,000
cases claiming less than $10,000 decided by arbitration in the magistrates court
Appellate Jurisdiction:
no appellate jurisdiction
re-hearings can take place in some circumstances

Question 23

Directions hearing

Answer 23

The court may give any directions to the parties about the conduct of the civil proceeding. The court may require the parties to undertake further steps to prepare for trial known as directions. A direction may be to attend mediation etc. The court may make a number of requests of the parties in order to reduce the likely duration of the trial and arrive at a decision as promptly as possible

Question 24

Notice of trial

Answer 24

issued by the court when both sides have completed the pre-trial procedures. It states the time and place of the trial

Question 25

Offer of compromise

Answer 25

A document sent by one party to the other in a proceeding in which the party makes a settlement offer. If the other party doesn't accept the offer legal costs can be awarded on a higher basis by the court because the party did not accept a better outcome.

Question 26

Adversary System

Answer 26

``` System where two parties battle in court to win. -The role of the parties -The role of the judge -Rules of evidence and procedure -The need for legal representation The burden and standard of proof ```

Question 27

The Role of the Parties

Answer 27

what evidence they use, which witnesses they call. influence over the composition of a jury and complete control over the way the case is put.

Question 28

The Role of the Judge

Answer 28

Indépendant umpire to endure the case is conducted accordingly and both sides are treated fairly. The judge cannot take sides or force parties to present the case in any particular way.

Question 29

Rules of evidence and procedure

Answer 29

relevant and admissible evidence is allowed, witnesses give evidence orally with the ability to be cross examined.

Question 30

The need for Legal Presentation

Answer 30

equal opportunity to be represented, each party is represented fairly with fair chance

Question 31

The burden and standard of proof

Answer 31

Plaintiff holds the burden of proof. Standard is based on a balance of probabilities.

Question 32

Damages

Answer 32

Amount of money given as compensation for the loss of a party in a civil case.

Question 33

Special Damages

Answer 33

Compensate the injured party for items that can be calculated e.g. medical expenses

Question 34

General Damages

Answer 34

Compensate the plaintiff for pain and suffering, estimated amount.

Question 35

Aggravated Damages

Answer 35

injured plaintiffs feelings

Question 36

Nominal Damages

Answer 36

Awarded by the court if they believe the defendant has infringed the plaintiffs rights but the plaintiff did not suffer any loss.

Question 37

Exemplary Damages

Answer 37

Punish the defendant. If the defendants action was so negligent that they want to deter others from doing it.

Question 38

Restrictive Injunction

Answer 38

A court order stopping someone from doing something

Question 39

Mandatory Injunction

Answer 39

A court order compelling someone to do something.

Question 40

Orders for Specific Performance

Answer 40

Order directing someone to complete a contract

Question 41

Enforcement Procedures

Answer 41

- warrant of seizure and sale - an attachment of earnings - an attachment of debts - bankruptcy - enforcement of injunctions

Question 42

Warrant of Seizure and Sale

Answer 42

The property is seized from the debtor and sold so the creditor can receive the money which was awarded to them

Question 43

An Attachment of Earnings

Answer 43

Forces the debtors employee to pay the debt at regular intervals directly out of the debtors wages to the creditor.

Question 44

An attachment of Debts

Answer 44

A third person, who owes money to the debtor, pays the debt directly to the creditor.

Question 45

Bankruptcy

Answer 45

Serve a bankruptcy notice on the defendant. The debt must be paid in a specific time, if not the property and debt is placed in the hands of the trustee

Question 46

Enforcement of Injunctions

Answer 46

A person is in contempt of court if they don't follow an injunction. It can impose a term of imprisonment a fine or both

Question 47

Difficulties faced by parties

Answer 47

- Not aware of their rights - Long delays - High cost of legal representation - difficulty enforcing a court order - difficulting in acquiring necessary evidence