Unit 2 Exam Terms

Front 1

criminal law

Back 1

relates to acts or omissions where the police take the offender to the court, the prosecution is carried out by the state on the behalf of the society.

Front 2

civil law

Back 2

is when a civil action takes place which is a dispute between two parties (private individuals, companies or government) the person whose rights have been infringed sues the other person for the damage done and asks the courts to order the defendent to rectify the situation or pay compensation, helping them back into their original position this is done through civil remedies.

Front 3

on the balance of probabilities

Back 3

according to which side of the story is most probably correct.

Front 4

beyond reasonable doubt

Back 4

there must be proof that the alleged offender is guilty of a crime, if there is any reasonable douby as to the guilt of the accused, then the verdict should be not guilty.

Front 5

precedent

Back 5

statement of law made through the courts which may be follwed in similar cases that come before the courts.

Front 6

binding precedent

Back 6

must be followed by courts of the same or lower jurisdiction within the same hierarchy which provides for fairness and consistency.

Front 7

persuasive precedent

Back 7

when court’s precedents in other states or countries are not binding on Victorian courts, but can be used in like cases to persuade a verdict.

Front 8

ratio decidendi

Back 8

the reasons a court gives for setting a precedent.

Front 9

obiter dictum

Back 9

is a statement a court makes in setting a precedent that is related to the main issue in the case but does not form part of the reasons given for the decision.

Front 10

4 ways for precedent to be avoided

Back 10

distinguish
reversed
overruled
disapproved

Front 11

distinguish

Back 11

facts sufficiently different from binding precedent

Front 12

reversed

Back 12

in the same case a higher court changes the decision.

Front 13

overruled

Back 13

precedent changed by superior court in a different case with similar circumstances.

Front 14

disapproved

Back 14

court disapproval but is bound by precedent.

Front 15

tort

Back 15

is a civil wrong.

Front 16

negligence principles

Back 16

duty of care is owed
duty of care is breached
causation
loss or harm

Front 17

duty of care is owed

Back 17

is owed when the risk is foreseeable, significant or not significant and in the circumstances, a reasonable person in the same position would have taken precautions to eliminate any risk of harm.

Front 18

duty of care is breached

Back 18

when the defendant fails to do what a reasonable person would have done.

Front 19

causation

Back 19

the injury was caused by the breach of care, and the injury would not have occurred without the breach of the duty of care.

Front 20

loss or harm

Back 20

can be physical, mental or damage to property.

Front 21

defences to negligence

Back 21

contributory negligence
volenti non fit injuria

Front 22

contributory negligence

Back 22

the defendant may try to prove that the plaintiff helped to cause the harmful situation or is partly to blame for the harm done.

Front 23

volenti non fit injuria

Back 23

refers to the voluntary acceptance of the risk of injury.

Front 24

defamation

Back 24

is aimed at protecting the character of individuals against attempts to discredit their standing in the eyes of the community.

Front 25

defamatory principles

Back 25

defamatory statement
statement refers to plaintiff
statement has been published

Front 26

defamatory statement

Back 26

a statement or other published material is therefore regarded as defamatory if it lowers the reputation of the plaintiff in the eyes of others in the community.

Front 27

statement refers to plaintiff

Back 27

it may be sufficient to prove that people reading, hearing or seeing the statement would reasonably conclude that it was about the plaintiff.

Front 28

statement has been published

Back 28

communicated to people other than the person it refers to.

Front 29

defences to defemation

Back 29

justification
contextual truth
absolute privilege
publication of public documents
fair report of proceedings of public concern
qualified privilege
honest opinion
innocent dissemination
trivialty

Front 30

justification

Back 30

applies when a defamatory statement is substantially true.

Front 31

contextual truth

Back 31

applies when a number of defamatory statements are made within the same context and the plaintiff objects to one statement but not all.

Front 32

absolute privilege

Back 32

where he or she can prove that the defamatory material was published in relation to proceedings of parliament, parliament bodies, courts, tribunals or communication between husband and wife.

Front 33

publication of public documents

Back 33

to prove that the published material was a fair copy, summary or extract of public document, but only if the material was published in the public interest or for educational purposes.

Front 34

fair report of proceedings of public interest

Back 34

can argue that the material was no more than a fair report of proceedings published for the information of the public or for educational purposes.

Front 35

qualified privilege

Back 35

is applicable where the defendant believes the recipient of defamatory information has a moral or legal interest in receiving the information, acts without malice or spite and acts reasonably in the circumstances.

Front 36

honest opinion

Back 36

the defamatory material is an expression of his or her honest opinion (as a commentator) rather than a statement of fact.

Front 37

innocent dissemination

Back 37

dissemination protects people who may unknowingly distribute defamatory information, such as printing companies, booksellers, libraries and internet or email providers.

Front 38

trivialty

Back 38

applies where the publisher can show that the plaintiff is unlikely to be harmed by the publication of the defamatory material.

Front 39

civil remedies

Back 39

is to restore the party who has suffered loss or injury to the position they were in before the loss or injury occurred.

Front 40

types of civil remedies

Back 40

damages
interest and costs
injunctions
order for specific performance

Front 41

damages

Back 41

is any permanent damages which are impossible to physically restore the injured party to how they were before the injury.

Front 42

types of damages

Back 42

compensatory damages
special or specific damages
general damages
aggravated damages
nominal damages

Front 43

compensatory damages

Back 43

usually sought

Front 44

special or specific damages

Back 44

awarded to compensate the plaintiff for items that can be calculated objectively and exactly.

Front 45

general damages

Back 45

awarded to compensate the plaintiff for pain and suffering

Front 46

aggravated damages

Back 46

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

Front 47

nominal damages

Back 47

are awarded by a court if the court believes that the defendant has infringed the rights of the plaintiff, but the plaintiff did not suffer any actual loss.

Front 48

interest and costs

Back 48

the defendent is order to pay money to the plaintiff.

Front 49

injunctions

Back 49

a civil remedy aimed at stopping someone from doing something.

Front 50

types of injunctions

Back 50

restrictive injunction
mandatory injuction

Front 51

restrictive injunction

Back 51

stopping someone from doing somthing.

Front 52

mandatory

Back 52

when someone wishes to compel a person to do a particular act.

Front 53

order for specific performance

Back 53

is any order for someone to complete a contract.

Front 54

alternative dispute resolution

Back 54

mediation
conciliation
arbitration
judicial determination

Front 55

mediation

Back 55

if individuals are unable to reach a decision between themselves, it may be appropriate to ask for the assistance of an independent third party (often two meditators) who can mediate between the parties, the final decision is made by the parties and is not binding.

Front 56

conciliation

Back 56

the third party listens to both sides of the dispute and makes suggestions about appropriate ways of resolving the matter, the final decision is made by the parties and is not binding.

Front 57

arbitration

Back 57

a third party listens to the parties and tries to help them reach an agreement and if this is not possible, the third party makes a decision.

Front 58

judicial determination

Back 58

refers to resolving disputes through the courts or tribunals

Front 59

pre trial proceedures

Back 59

pleadings
discovery
directions hearings
certificate of readiness for trial
notice of trial
offer of compromise
pre-trial conference
mediation

Front 60

pleadings

Back 60

the purpose is to give the court a written record of the case and to inform the parties of the claims being made.

Front 61

discovery

Back 61

allows the parties to find out further information on matters that remain unclear.

Front 62

directions hearings

Back 62

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.

Front 63

certificate of readiness for trial

Back 63

is signed by all parties to show that they are ready to attend trial.

Front 64

notice of trial

Back 64

is issued by the court when both sides have completed the pre-trial procedures, stating the time and place

Front 65

offer of compromise

Back 65

a defendant is permitted to pay the court an amount of money that he or she thinks will be sufficient to settle the claim.

Front 66

pre-trial conference

Back 66

the court may direct the parties to attend in an attempt to settle the matter before attending court or mediation.

Front 67

mediation

Back 67

the mediator assists the parties to reach a settlement.

Front 68

human rights

Back 68

are entitlements or permissions, usually of a legal or moral nature.