Unit 2 - Chapter 6 - Civil Law in Action Flashcards
(115 cards)
1
Q
What is the role of the court hierarchy in civil disputes?
A
It allows for:
. Specialisation in different matters (courts develop their expertise in dealing with the types of cases that come before them)
. Appeals (A party who is not satisfied with the decision in the lower court, and feels the court made an error, can take the case to a higher court on appeal)
. Doctrine of Precedent (judge-made law that is binding on lower courts)
. Administrative Convenience (because the courts have different jurisdictions to hear different matters it means smaller claims can be heard in the Magistrates’ Court, and more complex and larger claims to be heard in the County Court and the Supreme Court)
2
Q
What types of jurisdiction do courts have?
A
. Original Jurisdiction
. Appellate Jurisdiction
3
Q
What is original jurisdiction?
A
The authority to hear a case for the first time.
4
Q
What is appellate jurisdiction?
A
The authority to hear a case on appeal.
5
Q
What is the County Court’s original and appellate jurisdiction?
A
ORIGINAL:
. Unlimited civil claims
. Litigants can choose to have their case heard in either the County Court or the Supreme Court
. Litigants also have a choice of trial by judge or by judge and jury
APPELLATE:
. Does not have the jurisdiction to hear appeals in civil matters except when an Act specifically says otherwise
6
Q
What is the High Court’s original and appellate jurisdiction?
A
ORIGINAL:
. Hear disputes that arise between states and cases that require interpretation of the Constitution
. Hears federal law matters arising out of a treaty and where the Commonwealth Parliament is a party
APPELLATE:
. Hears state matters on appeal
. It is the highest court of appeal for all Australian states and hears appeals on questions of law and in the interests of the administration of justice
7
Q
What is the jurisdiction of the Supreme Court (Court of Appeal)?
A
. In its original jurisdiction the Supreme Court hears appeals from the County Court or Supreme Court on:
- points of law
- questions of fact
- or the amount of damages awarded
. It can also hear appeals from the president and vice-president of VCAT
8
Q
What is the Supreme Court’s (Trial Division) original and appellate jurisdiction?
A
ORIGINAL:
. Jurisdiction for civil claims is unlimited
. A jury of six is optional in civil cases
(The Supreme Court is used for many complex and large civil disputes)
APPELLATE:
. A single judge in the Supreme Court can hear appeals from the Magistrates’ Court on a point of law and can also hear appeals from the VCAT
9
Q
What is the Children’s Court’s original and appellate jurisdiction?
A
ORIGINAL: Family Division
. Hears a range of applications and makes a variety of orders in relation to the protection and care of any person under the age of 17 years
. Also has jurisdiction to hear applications for intervention orders under the Crimes (Family Violence) Act 1987 and the stalking provisions of the Crimes Act 1958 where either party is under the age of 17 years
APPELLATE:
. None (specialised court dealing with matters relating to children, therefore no appellate jurisdiction)
10
Q
What is the Magistrate Court’s original and appellate Jurisdiction?
A
Original:
. Minor civil disputes from $10,000 up to $100,000
. Any cases claiming under $10,000 go to arbitration in the Magistrates Court
Appellate:
. None (however rehearings can take place if eg. one of the parties did not appear)
10
Q
What is the order of the Victorian court hierarchy?
A
Coroners Court-Magistrates Court-Children's Court County Court Supreme Court (Trial Division) Supreme Court (Court of Appeal) High Court
12
Q
What are dispute resolution bodies?
A
They are bodies, other than courts, which can also resolve disputes.
13
Q
What are some dispute resolution bodies?
A
. Victorian Civil and Administrative Tribunal (VCAT) . Dispute Settlement Centre . Family Relationship Centres . Consumer Affairs Victoria . Ombudsman Victoria
14
Q
What is Victorian Civil and Administrative Tribunal (VCAT)?
A
. It was established under the Victorian Civil and Administrative Tribunal Act 1998 and began operations on the 1st of July 1998
. VCAT is divided in four with a
- civil
- administrative
- residential tenancies
- human rights division
. It was established to deal with a range of disputes and resolve them in a timely, cost effective and efficient manner.
15
Q
What is the Dispute Settlement Centre?
A
. It deals with a wide variety of civil disputes, including neighbourhood disputes, fences and noise complaints
. They can help people to resolve disputes without having to resort to taking legal action.
. They offer practical strategies, mediation services and education programs, and their service is free
16
Q
What are the Family Relationship Centres?
A
. It offers a range of services and programs aimed at helping families at all stages of life, including:
- people starting relationships
- those wanting to make relationships stronger
- those having relationship difficulties
- and those affected when families separate
17
Q
What is Consumer Affairs Victoria?
A
. Consumer Affairs helps people who have a consumer dispute
. It offers:
- advice
- education programs
- and will conduct conciliation between parties to try to reach a resolution
18
Q
What is Ombudsman Victoria?
A
. The Ombudsman will help people who have a dispute with a:
- Victorian government department
- public statutory authority
- or officers of a municipal council
. They will investigate on behalf of the complainant and help to resolve the issue
19
Q
What is the first thing that happens when a civil dispute arises?
A
The parties will usually try to negotiate with each to resolve the dispute without the assistance of a third party.
20
Q
What happens if negotiation is not successful/possible?
A
If unsuccessful the parties will either decide to abandon the claim of use other methods of dispute resolution. If it isn’t appropriate one of the parties may use the court or tribunal system to resolve the dispute.
21
Q
What is dispute resolution through the courts?
A
Judicial Determination.
22
Q
What are methods of civil dispute resolution other than going to court that can help parties to reach a settlement?
A
Alternative Dispute Resolution (ADR)
23
Q
What do Alternative Dispute Resolutions include?
A
. Mediation
. Conciliation
. Arbitration
24
Q
What is Judicial Determination?
A
. This refers to resolving disputes through the courts
. When a decision is made in a hearing or trial, they are judicially determining the case
. Resolution of a dispute through judicial determination is normally used as a last resort (because it is expensive and time-consuming)
. VCAT also uses judicial determination to resolve some disputes.
(Justices of the Supreme Court, judges of the County Court and magistrates in the Magistrates’ Court are known as judicial officers)
25
What is Mediation?
. This is when the assistance of an independent third party intervenes between parties in a dispute.
. These are known as mediators and they are trained to assist the parties to come to a decision themselves and also empower them.
. They are not to make a decision for the parties.
26
What is Arbitration?
. This is when a third party listens to both sides of a dispute and tries to help them reach an agreement.
. If this is not possible, third party makes a decision.
. In taking their case to arbitration, the parties are agreeing to abide by the arbitrator's decision.
27
What is Conciliation?
. This also requires the assistance of a third party.
. The third party listens to the parties in a dispute like mediation, however they also make suggestions about appropriate ways of resolving the matter.
. VCAT uses a similar method known as compulsory conference.
28
What is Collaborative Law?
. This is where disputing parties and their lawyers sign a contract to agree to work together in good faith.
. This is done to avoid court.
. Negotiation and problem-solving techniques are used to try and reach a fair and just outcome for both parties.
29
Evaluate Judicial Determination.
STRENGTHS:
. Makes binding decisions
. Decisions more easily enforceable
. May create a binding precedent
WEAKNESSES:
. High cost of proceedings
. Stressful, inconvenient and traumatic for parties to attend court
. Can involve long delays
. Heard in public and attracts publicity
. Limitations of a court
30
Evaluate Mediation.
STRENGTHS:
. Parties more likely to reach an acceptable decision
. Informal atmosphere
. Less confrontational
. Can discuss matters openly
. The types of resolutions are flexible
. Parties can avoid publicity
WEAKNESSES:
. Both parties must attend
. One party may be more dominant
. Decisions are not binding
. No advice given about how to resolve
the dispute
. Not appropriate for some disputes
. The third party has little involvement
31
Evaluate Conciliation.
STRENGTHS:
. Parties more likely to reach an acceptable decision
. Informal atmosphere
. Less confrontational
. Advice given
. Can discuss matters openly
. The types of resolutions are flexible
. Parties can avoid publicity
WEAKNESSES:
. Both parties must attend
. One party may be more dominant
. Decisions are not binding
. Not appropriate for some disputes
32
Evaluate Arbitration.
STRENGTHS:
. Arbitration is binding
. More informal than judicial determination
. Advice can be given about how to resolve the dispute
. Can discuss matters openly
WEAKNESSES:
. More expensive than other types of ADR
. There can be delays
33
What needs to be done to initiate a case?
In order to initiate a case you must make an appointment with your solicitor and obtain legal advice to see if you have a case. The solicitor will then usually send a letter of demand to the person you think has infringed your rights. The letter will request an earlier settlement of the matter. If this cannot be reached, a case can be initiated.
34
What are the purposes of civil pre-trial procedures?
. To inform the defendant of the case being brought against him or her
. To inform the plaintiff if the defendant wishes to defend the case
. To clarify the issues in dispute
. To allow the counsels for both parties to become familiar with the facts of the case
. To provide details about each other’s case
. To give the parties time to prepare adequately
. To allow the parties time to consider the merits 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 the trial. This will reduce delays in bringing matters to court, and reduce the cost of the trial
35
What are the pre-trial proceedings in the Magistrates Court?
. Complaint outlining the particulars of the claim (Claims over $10000 commence with the plaintiff lodging this document on the defendant)
. Notice of defence and/or counterclaim (defence must does this once complaint document is served to them)
. Pre-hearing conference (with a registrar to see if they can come to an agreement)
. Proceeds to a full hearing in Magistrates court (if agreement cannot happen)
*If the amount is less than $10 000, the matter goes straight to arbitration*
36
What are the pre-trial proceedings in the County Court or the Supreme Court?
```
. Pleadings
. Certifications
. Discovery
. Directions Hearings
. Notice of Trial
. Offer of Compromise
. Mediation Before Trial
```
37
What are pleadings?
. Pleadings contain details of the claims made and the defences raised.
. They are a series of documents that are formally served on the parties and filed with the court.
. The purpose of these pleadings is to give the court a written record of the case and to inform the parties of the claims being made and the defences raised.
38
What do pleadings include?
. A writ or originating statement
. A statement of claim
. A notice of appearance
. A defence and counterclaim (optional)
. A reply to defence and counterclaim (optional)
. Further and better particulars
39
Explain the following pleading: Writ
. This is prepared by the plaintiff and issued by the court. It explains the actions that will be taken against the defendant.
. It also provides basic details to the defendant including:
- whether there is a judge alone or also a jury
- the place of trial
- how long the defendant has to file a notice of appearance
. It is usually attached to the statement of claim.
40
Explain the following pleading: Statement of Claim
This gives details of the claim made by the plaintiff, and is often attached to the writ. It is prepared by the plaintiff.
41
Explain the following pleading: Notice of Appearance
. This is a simple document which provides the plaintiff and the court with formal notification that the defendant will attend and defend the case.
. It is filed with the court and served on the plaintiff by the defendant.
42
Explain the following pleading: Defence and Counterclaim
. This is where details are given about the defence being put forward by the defendant to the plaintiff’s claims.
. A counterclaim is optional for the defendant, if he or she thinks they have a claim against the plaintiff.
43
Explain the following pleading: Reply to Defence and Counterclaim
Used if the plaintiff wants to agree with the defendant on an issue. This is an optional step.
44
Explain the following pleading: Further and Better Particulars
. Either party may request further details of the other party’s claim; that is, the defendant may require ‘better particulars’ (more details) of the plaintiff’s case.
. Eg. the plaintiff may have claimed that there is a contract between the plaintiff and the defendant. (The defendant may ask for more details about that contract, such as when it was made, how it was made and what it contained. This is known as a request for further and better particulars)
45
What are Certifications?
. These are requirements for parties taking disputes to court.
. These requirements come from the Civil Procedure Act and state that parties need to file two certifications with the court when they first file pleadings documents.
46
What do Certifications include?
. A proper basis certification
| . An overarching obligations certification
47
Explain the following Certification: Proper Basis Certification
These are to be signed by the party or, if represented, by their legal representative.
. It certifies that the party has a proper basis for:
- the claim (if the plaintiff)
- or the defence (if the defendant)
48
Explain the following Certification: Overarching Obligations Certification
. This is to be signed personally by the party (or a
representative of the party if it is a company).
. It certifies that they have read and understood the 10 overarching obligations imposed on the parties.
. Examples of the obligations are to act honestly, to cooperate with the other party and to disclose documents.
49
What is the Discovery stage?
The discovery stage allows the parties to find out further information on matters that remain unclear.
50
What does the Discovery Stage include?
. Discovery of documents
. Interrogatories
. Discovery by oral examination
. Medical examinations
51
Explain the following Discovery Stage: Discovery of Documents
```
. Either side is normally required to disclose any relevant documents or a class of documents.
. Once a party has received details of the documents in the other party’s possession or control, that party is able to inspect or receive a copy of those documents.
```
52
Explain the following Discovery Stage: Interrogatories
These are a list of questions about the case, served by either party on the other.
53
Explain the following Discovery Stage: Discovery by Oral Examination
This is where one party may ask the court if they can put questions to the other party before going to court.
54
Explain the following Discovery Stage: Medical Examinations
If necessary, either side may ask the other side to attend a medical examination.
55
What are Direction Hearings?
. This is a pre-trial procedure during which the court may give any directions to the parties about the conduct of the civil proceeding.
. A directions hearing is held at the court where the plaintiff has issued his or her claim.
. Further directions hearings can be held if the court thinks fit.
56
What do Direction Hearings include?
. Directions
- further steps
- make orders
. Number of requests
57
Explain the following Direction Hearing: Further Steps
The court may require the parties to undertake further steps to enable the parties to get ready for trial. (These are known as ‘directions’).
. Eg. the court may order the parties to attend mediation by a certain date in an attempt to resolve the dispute.
58
Explain the following Direction Hearing: Make Orders
. The court can also make orders (directions) that the defendant file and serve a list of documents by a certain date.
. This is done if there is a dispute between the parties about whether certain documents have been discovered.
59
Explain the following Direction Hearing: Number of requests
. 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.
. Eg. the court will encourage the parties to make admissions that will speed up the proceedings.
60
What is a Notice of Trial?
This is issued by the court when both sides have completed the pre-trial procedures. It states the time and place of the trial.
61
What is an Offer of Compromise?
. This is a document sent by one party to the other in a proceeding where the party makes a settlement offer.
. Either party can make an offer of compromise (and it can be made at any time during the proceeding)
. It can also be used as a weapon to obtain better costs offer if the party is successful at trial.
62
What is Mediation Before Trial?
. At any time during the pre-trial or trial proceedings, the court may order the matter to be referred to mediation (this occurs more often than not).
. At any stage of a proceeding the court may, with or without the consent of any party, order that the proceeding be referred to a mediator.
63
List the Full Civil Pre-Trial Proceedings.
```
. Pleadings
- writ
- statement of claim
- notice of appearance
- defence and counterclaim
- reply to defence and counterclaim
- further and better particulars
. Certifications
- a proper basis certification
- an overarching obligations certification
. Discovery
- discovery of documents
- interrogatories
- discovery by oral examination
- medical examinations
. Directions Hearings
- further steps
- make order
- number of requests
. Notice of Trial
. Offer of Compromise
. Mediation Before Trial
```
64
List the Courtroom Procedure for Civil Claims in the County Court and Supreme Court.
. Calling-on of the case
. Empanelling and swearing-in of the jury*
. Witnesses
. View
. Opening address (P)
. Plaintiff's counsel presents his or her case
. Opening address (D)
. Defendant's counsel presents his or her case
. Closing address (D)
. Closing address (P)
. If there is a jury*
. Jury*
. If the plaintiff is the successful party
*If there is a jury
65
Explain the following Courtroom Procedure for Civil Claims in the County Court or Supreme Court: Calling-on of the case
. It is the announcement of the commencement of the case. (by the judge's associate in the court)
. The legal representative of each party announces who they act for by saying "If the court pleases, I appear for the plaintiff/defendant."
66
Explain the following Courtroom Procedure for Civil Claims in the County Court or Supreme Court: Empanelling and swearing-in the jury
. This is done if either party has requested a jury.
| . It is where the jury is chosen from a panel of jurors whose suitability is scrutinised.
67
Explain the following Courtroom Procedure for Civil Claims in the County Court or Supreme Court: Witnesses
Ordered out of the courtroom.
68
Explain the following Courtroom Procedure for Civil Claims in the County Court or Supreme Court: View
If applicable, the case may be adjourned until the judge (and jury if present) and the parties to the case have met at the scene of the civil wrong to investigate evidence.
69
Explain the following Courtroom Procedure for Civil Claims in the County Court or Supreme Court: Opening Address (P)
This is by the plaintiff's counsel and is where the details of the case are stated, including important witnesses and evidence.
70
Explain the following Courtroom Procedure for Civil Claims in the County Court or Supreme Court: Plaintiff's Counsel presents his or her case
. Examination-in-chief by the plaintiff's counsel
. Cross-examination by the defendant's counsel
. Re-examination by the plaintiff's counsel
71
Explain the following Courtroom Procedure for Civil Claims in the County Court or Supreme Court: Opening Address (D)
By the defendants counsel.
72
Explain the following Courtroom Procedure for Civil Claims in the County Court or Supreme Court: Defendant's Counsel presents his or her case
. Examination-in-chief by the defendant's counsel
. Cross-examination by the plaintiff's counsel
. Re-examination by the defendant's counsel
73
Explain the following Courtroom Procedure for Civil Claims in the County Court or Supreme Court: Closing Address (D)
By defendant’s counsel (order of closing addresses reversed where defence presents no evidence – plaintiff sums up followed by summing-up of the defence)
74
Explain the following Courtroom Procedure for Civil Claims in the County Court or Supreme Court: Closing Address (P)
By the Plaintiff's Counsel.
75
Explain the following Courtroom Procedure for Civil Claims in the County Court or Supreme Court: If there is a jury
The judge directs the jury on the relevant law, and explains the burden of proof, the substance of the plaintiff’s case and the defence relied on by the defendant.
76
Explain the following Courtroom Procedure for Civil Claims in the County Court or Supreme Court: Jury
Retires to consider its verdict (if applicable).
77
Explain the following Courtroom Procedure for Civil Claims in the County Court or Supreme Court: If the Plaintiff is the successful party
The jury (or judge if no jury) grants a remedy to the plaintiff and may order the defendant to pay the costs of the plaintiff.
78
What is the role of the jury in civil cases?
. To consider the facts of the case and
. Decide who is most likely in the wrong
. Their decision is made on the balance of probabilities
. A unanimous or majority decision must be made
. May also be required to decide on the appropriate remedy eg. the amount of damages to be awarded. (In defamation cases, only a judge can decide the amount of damages)
79
How many jurors can there be in a civil jury?
6 jurors
80
What are Peremptory challenges?
A peremptory challenge in a civil trial is made by striking the name or number of the potential juror from the list of persons to be selected to serve on the jury, without reason. The plaintiff and the defendant are entitled to three peremptory challenges each.
81
What are Challenges for Cause?
There can be an unlimited number of challenges for cause; that is, challenges with a reason.
82
The adversarial nature of a civil trial.
. The method of trial used in Australian courts is the adversary system. This system is based on the two parties to a case battling to win, each party acting as the adversary of the other.
. In a civil case, the plaintiff (the person with the complaint) wins the case if the defendant is found to be in the wrong.
83
What are the key features of the adversary system?
```
. 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
```
84
Explain the following key feature of the adversary system: The role of the parties
Each party has control of their own case and is able to choose what evidence they may provide as proof and which witnesses they may call, however they still must follow the rules of evidence and procedure and advice given by their legal representatives. Not only that, the parties also have some influence over the composition of a jury (if there is one).
85
Explain the following key feature of the adversary system: The role of the judge
. There must be an independent umpire, being the judge or the magistrate to ensure that the case is conducted according to the rules of evidence and procedure, and that both sides are treated fairly.
. This "umpire" is not able to take sides and cannot control or force the parties to present the case in any particular way.
. However, they do have significant powers to manage a case, including the power to limit discovery and the power to limit the time for evidence in the trial.
86
Explain the following key feature of the adversary system: Rules of evidence and procedure
. Only relevant and admissible evidence is allowed to be heard by the court. Evidence is normally given orally by witnesses; with the allowance for each side to cross-examine the opposing sides witnesses.
. Both parties are required to comply with the rules of evidence and procedure. The trial will follow a procedure, such as when the parties are able to make submissions or examine witnesses.
87
Explain the following key feature of the adversary system: The need for legal representation
. For the adversary system to work effectively, each side is able to engage legal representation. This is so each party has an equal opportunity to be represented.
. However, there is still the fact that a person with a more highly skilled legal representative may win the case; this could mean a person’s ability to win the case can depend on the skill of his or her legal representative.
. The more-skilled legal representatives are often the most costly to employ.
88
Explain the following key feature of the adversary system: The burden and standard of proof
. The burden of proof is on the plaintiff. He or she has the responsibility of proving the case to win.
. The standard to which civil cases must be proven is on the balance of probabilities.
. This means that the judge (or the jury) must consider which story, or which party, is more right than the other.
89
What are the advantages of the adversary system?
. Impartiality and neutrality of the judge (takes no side, promotes fairness in our justice system, expertise)
. Parties controlling own case (parties feel more satisfied, more free)
. Legal representation ensures that parties are able to rely on people with expertise and knowledge about the law and about the rules of evidence and procedure.
. Rules of evidence and procedure allow for consistency and fairness.
. Burden of proof ensures that whoever is bringing the case has to prove it.
90
What are the disadvantages of the adversary system?
. There can be unequal representation
. High cost of proceedings
. Truth may not emerge
. Legal expertise of judges may be underused
91
What are Civil Remedies?
. A Civil Remedy is a way in which a court can right a wrong that has occurred, the plaintiff normally seeks this.
. The aim of civil remedies is to restore the party who has suffered loss or injury to the position they were in before the loss or injury occurred, or as close to this position as possible.
. This is usually in the form of a payment of money.
92
What are the different types of remedies?
. Damages
. Injunctions
. Order of specific performance
93
What are damages?
. Damages refer to the monetary payments or 'compensation' given to the injured party in an attempt to restore them to the position they were in before the injury.
. However, sometimes there is permanent damage which is physically impossible to restore to the injured party (eg. The loss of a limb) therefore an amount of money is given to try to compensate (as much as possible) for the damage suffered.
94
What are the 3 main types of damages?
. Compensatory
. Nominal
. Exemplary
95
What are compensatory damages?
Compensatory damages are the type of damages usually sought. There are three types of compensatory damages:
. Special or specific damages – These are awarded to compensate the injured party for items
that can be calculated objectively and exactly (Eg. loss of wages, medical expenses and hospital expenses)
. General damages – Awarded to compensate the plaintiff for pain and suffering. These cannot be
accurately assessed because they include consideration of the extent of the plaintiff’s emotional suffering and loss of enjoyment of life.
. Aggravated damages – Awarded to compensate the plaintiff further if the court believes that the defendant’s conduct injured the plaintiff’s feelings by causing humiliation and insult.
96
What are nominal damages?
. This is awarded where the Plaintiff has not suffered any loss or injury at all except their pride due to the defendants actions.
. This may occur in a defamation case, where it may be shown that what was said was untrue and there was damage to the reputation of the plaintiff, but the damage was very little.
97
What are Exemplary and Contemptuous damages?
Exemplary: If the defendant’s actions were very negligent or if they showed total disrespect for the wishes of the plaintiff the court may decide to award exemplary or 'punitive damages'. This is because the court is seeking to punish the defendant and deter others from similar actions.
Contemptuous: These are awarded in cases when the plaintiff may have a valid claim and could even be successful in exercising their rights, but the court is not particularly sympathetics.
98
What are injunctions?
Injunctions are a civil remedy aimed at stopping someone (restrictive) doing something or making someone (mandatory) do something. They can be granted on a temporary or long-term basis. There are two types of injunctions, being Restrictive and Mandatory.
99
What is a restrictive injunction?
This is an injunction stopping someone from doing something eg. a person could apply for a restrictive injunction to stop a building being destroyed if it
were in the interests of the nation to preserve it.
100
What is a mandatory injunction?
This is sought when a person wishes to compel someone to do a particular act, eg. to remove something from their land.
101
What are orders for specific performance?
. An order for specific performance is an order directing someone to complete a contract. This is normally used in disputes relating to contracts for the sale of land.
. Eg. if person A had completed a contract of sale to sell his or her house to person B and then person A, the seller, changed his or her mind (perhaps because person A’s child wanted to buy the house), person B could obtain an order for specific performance enforcing person A to complete the contract and sell the house to person B.
102
Evaluate Damages.
STRENGTHS:
. Special damages can provide money to cover out-of-court expenses.
. General damages can give compensation for pain and suffering.
. Exemplary damages give the court the opportunity to punish the wrongdoer when the wrong has had excessive consequences.
. The possibility of having to pay damages can deter people from being negligent or committing other civil wrongs.
WEAKNESSES:
. There is inconsistency in damages awarded.
. There are difficulties in pursuing a claim for damages.
. The person found to be in the wrong may face hardship as a result of having to pay damages.
103
Evaluate Injunctions.
STRENGTHS:
. Injunctions can be used to stop someone doing something immediately, e.g. manufacturing a dangerous product.
. They can be used to order someone to do something to rectify a situation.
WEAKNESSES:
. Difficulties can be caused by an injunction if it is put in place before a dispute is decided in court, especially if it is later decided that the activity should not be stopped.
104
Evaluate Orders for Specific Performance.
STRENGTHS:
. Such an order provides a mechanism for enforcing a contract.
. Sometimes damages are not appropriate.
WEAKNESSES:
. Difficulties can be caused by enforcing a contract; damages are usually an appropriate remedy.
105
What are Post-Trial Procedures?
. Enforcement Procedures
| . Civil Appeals
106
What are enforcement procedures?
. Enforcement procedures are the actions taken when when a person who has been found wrong during a civil trial doesn't follow court order to pay damages to the winning party.
. The money owing under a court order is called a judgment debt. If this money is not paid, the plaintiff can initiate enforcement procedures.
107
What do enforcement procedures include?
. A warrant of seizure and sale
. An attachment of earnings order
. An attachment of debts order
. Bankruptcy
. Enforcement of injunctions
108
Explain the following enforcement procedure: A warrant of seizure and sale
. This enables a person who is owed money (judgment creditor) to seize property from the person who owes the money (judgement debtor).
. This property could be items such as a boat, car or house.
109
Explain the following enforcement procedure: An attachment of earnings order
Such an order forces the judgment debtor’s employer to pay the debt at regular intervals directly out of the judgment debtor’s wages to the judgment creditor.
110
Explain the following enforcement procedure: An attachment of debts order
This can involve a third person, who owes
money to the judgment debtor which pays the debt directly to the judgment creditor.
111
Explain the following enforcement procedure: Bankruptcy
. If the debt exceeds $5000, the judgment creditor can serve a bankruptcy notice on the judgment debtor.
. The debt must then be paid within a specified time. If it is not, the debt, and most of the bankrupt’s property, is put in the hands of the official trustee in bankruptcy.
(Debtors who owe money can also start bankruptcy proceedings themselves, if they want the trustee to take over their financial affairs)
112
Explain the following enforcement procedure: Enforcement of injunctions
. A person is in contempt of court if he or she does not follow an injunction (does something that he or she has been ordered not to do, or does not do something that he or she has been ordered to do).
. Being in contempt of court is a criminal offence, and a court can impose a term of imprisonment or a fine, or both.
113
What are Civil Appeals?
. After a trial either party has the ability to appeal the decision made when mistakes have been made.
. Therefore these appeals can be made on the grounds of a point of law. (Eg. The trial judge may have misdirected the jury on how the law applied to the case, or on the amount of damages)
. A person appealing against a decision is called the appellant. The other party is called the respondent.
114
Where do civil appeals go to from each court.
. Appeals from the Magistrates’ Court are heard in the Supreme Court before a single judge (because County Court cannot hear civil appeals).
. Appeals from the County Court are heard in the Court of Appeal, which consists of three judges.
. Appeals from the Supreme Court (single judge) are heard in the Court of Appeal.
. Appeals from the Court of Appeal (three judges) are heard in the High Court. Someone wishing to make an appeal to the High Court must first seek leave (permission) from the High Court to do this.
115
What are some difficulties faced parties to a civil dispute face?
. People may not be aware of their rights
. Some people may have circumstances that make it more difficult to pursue or defend a claim (eg. physical disability, mental illness, language difficulties or cultural differences
. People may feel traumatised by the prospect of pursuing a claim
. Mediation will only work if both parties agree to attend
. Pre-trial procedures can cause long delays
. The high cost of using legal representatives can cause people to abandon their claim, or if pursued,
can cause huge financial difficulties
. The risk of having to pay the other party’s legal costs could be a deterrent
. It can be stressful having to act in an adversarial way, particularly if the other side is an employer,
neighbour or family member
. Witnesses may have difficulty remembering the details needed to prove the case
. It may be difficult to collect necessary evidence
. Parties to a case may find it difficult to give evidence in court
. A jury may have difficulty understanding the evidence
. It may be difficult to enforce a court order
