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28 Cards in this Set
- Front
- Back
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What is ADR?
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-Alternative dispute resolution.
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Name some forms of ADR.
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-Negotiation, Mediation, Conciliation, Arbitration.
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Explain Negotiation.
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-Parties come together to work through differences by mutual agreement. -May/May not have legal representation, -No third party, - can be face to face or over the phone or through a letter. -Quick and inexpensive. - When negotiation occurs when a case is being prepared for court it is refereed to as an out of court settlement. - Not binding.
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Explain Mediation.
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A neutral third party (mediator, usually 2) assists voluntary disputing parties to resolve their dispute.
- Mediator doesn't interfere, - Doesn't try to establish truth. - Cheaper and quicker than Court. - Not binding. |
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Explain Conciliation.
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Impartial third party (conciliator) tries to get the parties to reach an agreement. - Conciliator listens to facts and may suggest a solution. - Not legally binding.
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Explain Arbitration.
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-Neutral third party (arbitrator) -makes a decision(often used by tribunals) -Arbitrator can make an order/award or a decision in favor in one of the parties. -More formal than other forms of ADR but still - less formal than Court.
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What is VCAT? What are its divisions.
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Victorian Civil and Administrative Tribunal. Civil - between individuals. Administrative - Individual and Government. Human Rights - Discrimination cases. In each division there are subsections called lists that here specific types of cases.
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Describe a tribunal.
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Deal with specific areas of law set as an alternative to the court system. The general aim is for the two parties to negotiate and reach agreement but if not possible a settlement may be determined by an impartial third party. They are: Specialized, Quick, Inexpensive, Less Formal, Reduce workload of Courts, Increase individual's assess to law, can focus on social issues as well as the legal problem, greater range of remedies, legal representation not required.
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What are the phases of Civil Pre-Trial?
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Initiation, Pleadings, Discovery.
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Explain the Initiation process.
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Negotiation- Personal discussions may take place between parties. Individuals may consult a solicitor if they decide to pursue the matter.
Writ of Summons-Legal documents issued to defendants commanding their appearance in court. Informs what court, what type of trial, why it's commencing and the remedies sought. Generally personally served to defendant. Default judgement occurs if defendant absent. Notice of Appearance- Informs plaintiff if the defendant will defend the case. Copy forwarded to court, notifying that the defendant will submit to their jurisdiction (stops default judgement) |
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Explain the pleadings process.
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Exchange of a series of legal documents, for the purpose of informing the defendant that legal action is being taken.
Statement of Claim-Sets out precise details of the plaintiff's claim. Such as the cause of action, facts alleged, remedies sought. Usually sent with writ of summons. Statement of Defense- Allows defendant to put forward their version of the facts and defend claims. May admit some claims but deny others, sets out the extent that the defendant considers they are liable. Counter Claim- Defendant may decide to bring separate action against plaintiff. |
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Explain the Discovery Process.
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At this stage the parties have enough information to reach an out of court settlement.
Discovery of Documents-After pleadings parties might require more documents such as medical reports... Interrogatories- Each parties asks further questions, could lead to an out of court settlement. All questions must be answered within 60 days on oath (affidavit) Provides more detailed information, can be used by court to cross check information. Direction Hearings- Both parties meet to try to settle the dispute and define any legal issues. Usually an offer is made. Discussions and pleading made here can't be used in court as evidence. Certificate of Readiness- |
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Describe the Civil Court Hierarchy.
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Magistrates- Up to 100,000, under 10,000 arbitration, no appellate.
County- Unlimited for personal injury and other civil actions, no appellate. Supreme Court (single judge)- Unlimited claims for damages, appellate on points of law from VCAT and magistrates. Court of Appeal (3 justices) - No original, appeals from Supreme or county court or VCAT when constituted by vice president or president. High Court (3)- Constitutional cases, appellate for high (1) and appeal. |
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Explain the steps of a civil trial.
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Opening address by Plaintiff - basis of claim, summary of their case.
Examination of witnesses- Present witnesses, precedents, points of law : -Examination in Chief: Witnesses used to present evidence. - Cross Examination: Each party can question witnesses to test evidence presented. -Re-Examination: Each party opportunity to clarify any points of contention. Final Address- Defense gives final address, followed by plaintiff. Verdict- Liable/Not Liable. Remedies awarded. |
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Explain the role of a Jury in a civil Trial.
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Who requests it pays for it. 6 usually. Unlimited challenges for cause, 3 peremptory without cause. They make verdict and remedy (except in defamation cases)
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What are the two types of damages?
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Compensatory - Compensates pain, injury or financial loss.
Non Compensatory - Compensate for breach of rights. |
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Name and describe 5 types of damages.
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C:
-Special- Tangible for where there is monetary equivalent (loss of wages, medical bills) -General - intangible where there is no calculable value, (loss of reputation, pain and suffering.) NC: -Nominal: Small for minimal loss. -Exemplary: Large, intended to make example to punish or deter others from acting in a similar way. -Contemptuous: Small, for breach of rights but recognizing plaintiff undeserving. -Aggravated: Damages awarded by a court to reflect the exceptional harm done to the plaintiff. |
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What is an injunction?
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Temporary of permanent - Order compels or refrains someone from doing something.
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What is a order of specific performance?
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Order by court to complete a contract.
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What is Rescission?
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Order cancelling or rescinding a contract,
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What is Restitution?
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Order to return property to original order.
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What are 4 ways civil remedies can be enforced? Explain them.
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Warrant of Distress-Bailiff seize property to cover money + costs.
Garnishee Order- Orders third party who owes money to defendant to pay plaintiff. Bankruptcy of Liquidation - Defendant's property put under control of a liquidator. Fine or Imprisonment- If orders not followed they are held in contempt of court, a criminal offence, can be fined or imprisoned. |
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What are the difficulties faced when attempting to resolve civil disputes?
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Ignorance of the law, Ignorance of legal assistance, Language Barriers, High costs.
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What is Legal Aid? Why does it exist?
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Provides assistance to people of limited means.
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What does Legal Aid Offer?
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Advice or assistance.
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What is a community Legal Center? What does it offer?
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Offer advice.
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Adversarial nature of Civil Law
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Judge, Juries (sometimes), Burden of proof on plaintiff, standard of proof on the balance of probabilities (which story is more probable.
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What is Law Aid?
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Voluntary not for profit, provides pro bono or no win no fee schemes for people who can't defend their civil case.
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