U2 Legal studies - exam

define civil law

an area of law that defines the rights and responsibilities of individuals, government entities, and organisations, and provides a legal framework for when these parties interact with each other

define loss

a disadvantage experienced by a party due to an action or the inaction of another party

define breach

an act or omission that represents a failure to meet a legal obligation

define ‘but for’ test

a legal test of causation that seeks to determine whether a party would have suffered harm if not for the actions of another party

define burden of proof

the responsibility of a party to prove the facts of a case

define counterclaim

a separate claim made by the defendant against the plaintiff

define balance of probabilities

the standard of proof in civil cases that requires the plaintiff to establish that their version of the facts is more likely to be correct, and the defendant is most likely liable

define standard of proof

the degree to which the facts of a case must be proven in court.

define plaintiff

the party that initiates a civil claim against another person, the defendant, in court

define class action

a legal proceeding brought by one or numerous plaintiffs acting for themselves as well as on behalf of a wider group of people who have a claim with similar facts

define defendant

the party that is defending themself against a claim by another person, the plaintiff, for an alleged breach of civil law

define negligence

a failure to behave with a level of care to prevent loss or injury to another person, that a reasonable person would have exercised under the same circumstances

define duty of care

a legal obligation to ensure the safety and wellbeing of others, and to avoid conduct that could be reasonably foreseen to harm another person

define reasonable foreseeability

an element of duty of care concerned with whether it is sufficiently likely that a person of ordinary prudence would take it into account when making a decision

define the neighbour principle

a legal principle that requires people to take reasonable care to avoid acts or omissions that could be reasonably foreseen to injure another person

define breach of duty

an act or omission by a defendant that is a failure to uphold their duty of care because the behaviour falls below the standard of care that would be expected of a reasonable person in the same position

define causation

the relationship between an event or action and a resulting event

define factual causation

a question of fact, required to prove negligence, in that evidence must demonstrate that the breach of the defendant was a necessary condition of the harm

define scope of liability

a factor considered when determining causation in negligence, whereby it must be appropriate for the scope of the defendant’s liability to extend to the harm caused

define remoteness

an element of negligence concerned with the extent of liability, which considers whether the consequences of the negligent action were so far removed from it as to have been unforeseeable by the defendant

define contributory negligence

failure by a person, typically a plaintiff, to take reasonable care for their own safety, which adds to the harm the person suffers

define voluntary assumption of risk

a defence to negligence in which it is claimed the plaintiff accepted and was aware of the risks inherent in the activity

define defamation

an area of civil law that aims to protect a plaintiff from having their reputation unfairly damaged

define defamatory matter

material, such as an article, electronic communication, picture, or oral statement, that is likely to tarnish a person’s reputation

define ordinary or reasonable person

a hypothetical person representing the average, rational person in the community

define limitation of actions

a restriction on the time limit in which a plaintiff must commence a civil action in court, after which the plaintiff is unable to bring an action relating to the civil wrong against the defendant (A time limit for when a plaintiff must commence a civil action, after which they cannot bring an action against the defendant.)

define contextual truth

a defence to defamation that may be raised where the statement does not damage the plaintiff’s reputation when read in context with other truthful statements

define honest opinion

a defence to defamation that may be raised when the defendant’s statement was a statement of opinion

define absolute privledge

a defence to defamation that may be raised when statements were made in situations where unrestricted communication is crucial and immune to defamation law

define Parliamentary proceedings

any verbal exchanges or actions taken during or related to the conduct of a House of Parliament

define judicial proceedings

any pre-trial, trial, or hearing over which a judge or magistrate presides

define qualified privilege

a defence to defamation that may be raised where the defendant had a reasonable belief that it was in the interest of the recipient to publish the communication

define remedy

a court order that aims to enforce a right by preventing a civil breach, or correct a civil breach and return the plaintiff to the position they were in prior to the breach by the defendant

define defemation

an area of civil law that aims to protect a plaintiff from having their reputation unfairly damaged.

define defamatory matter

material, such as an article, electronic communication, picture, or oral statement, that is likely to tarnish a person’s reputation.

define ordinary or reasonable person (defemation)

a hypothetical person representing the average, rational person in the community

define justification

a defence to defamation that may be raised where the defendant has published information that is substantially true.

define substantial truth

a defence for defamation that may be raised where the statements are true in substance or not materially different from the truth.

define parlimentary proceedings

any verbal exchanges or actions taken during or related to the conduct of a House of Parliament

define judicial proceedings

any pre-trial, trial, or hearing over which a judge or magistrate presides.

define damages

a type of remedy in which monetary compensation is awarded to the plaintiff in a civil dispute to compensate their loss caused by a civil breach.

define injunction

a type of remedy requiring a party to either perform a specific action or prohibiting a party from taking a particular action

fairness

the principle that all people can participate in the justice system and its processes should be impartial and open.

Victorian Civil and Administrative Tribunal (VCAT)

a dispute resolution body that has the power to hear and determine certain types of civil and administrative disputes.

Consumer Affairs Victoria (CAV)

the Victorian civil complaints body that provides information and helps resolve disputes to create a fair and competitive marketplace for consumers and businesses.

equality

the principle that all people engaging with the justice system and its processes should be treated in the same way. If the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow all to engage with the justice system without disparity or disadvantage.

rule of law

the principle that the law applies to everyone equally regardless of status.

Victoria Legal Aid (VLA)

a government-funded agency that provides free legal information, advice, and free or low-cost legal representation.

access

the principle that all people should be able to engage with the justice system and its processes on an informed basis.

class action

a legal proceeding brought by one or numerous plaintiffs acting for themselves as well as on behalf of a wider group of people who have a claim with similar facts.

mediation

a non-judicial dispute resolution method involving an independent third party, known as a mediator, who facilitates conversations between disputing groups.

deed of settlement

a legal document signed by parties to a dispute that states the agreed outcome of the dispute and is legally binding on the parties

concilitation

a non-judicial dispute resolution method involving an independent third party, known as a conciliator, who possesses specialist knowledge about the type of dispute in question and assists parties in a dispute reach a resolution.

arbitration

a non-judicial dispute resolution method involving an independent third party, known as the arbitrator, who listens to parties present evidence and makes a binding decision

tribunal

an institution with the authority to judge, adjudicate, or determine civil claims or disputes.

administrative dispute

a dispute involving an administrative decisionmaker, such as a government agency or statutory authority.

exclusive jurisdiction

the legal authority of a body, such as a court or tribunal, to determine a legal case that no other institutions have the authority to hear

compulsory conference

a private meeting between parties in a civil dispute to discuss ways to resolve their dispute with the assistance of a VCAT member.

question of law

an issue of law that is resolved by a judge, often concerning the interpretation and application of legal principles or legislation

question of fact

an issue within a case whereby the material facts of the case need to be determined by weighing up the credibility of the evidence

ombudsman

an independent authority that operates on state and federal levels and is created to investigate complaints against a company or organisation

complaints bodies

organisations that can deal with complaints and assist with dispute resolution in relation to the provision of goods and services, or decisions made by authorities

Consumer Affairs Victoria (CAV)

the Victorian civil complaints body that provides information and helps resolve disputes to create a fair and competitive marketplace for consumers and businesses.

deed of settlement

a legal document signed by parties to a dispute that states the agreed outcome of the dispute and is legally binding on the parties

court hierarchy

the arrangement of courts in order of superiority

appeal

a legal process that a dissatisfied party may pursue to have a court’s decision reviewed by a higher cour

jurisdiction

the legal power of a court or other authority to make decisions

original jurisdiction

the legal power of a court or other authority to hear a case for the first time

appellate jurisdiction

the legal power of a court to review a decision of a lower court or tribunal on appeal

Magistrates’ Court of Victoria

the first level of the Victorian court system in which relatively minor matters are heard and determined by judicial officers, such as magistrates.

County Court of Victoria

Victoria’s principal trial court that hears and determines criminal and civil matters

Supreme Court of Victoria

the most superior court in Victoria that deals with the state’s most serious criminal and civil cases

High Court of Australia

the most superior court in Australia that hears matters of federal significance and appeals from federal, state, and territory courts.

Question of law

an issue of law that is resolved by a judge, often concerning the interpretation and application of legal principles or legislation.

Question of fact

an issue within a case whereby the material facts of the case need to be determined by weighing up the credibility of the evidence

Case management powers

the ability of a judge or magistrate to make orders and provide directions to the parties about the proceedings, with the aim of ensuring justice is delivered efficiently

Administrative convenience

the systematic benefit derived from legal matters being distributed amongst the courts according to their complexity and severity

jury

a group of randomly selected people who are required to deliver a verdict in a trial based on the evidence presented to them in court.

electoral roll

the list of names of all Australians who are enrolled to vote. In order to enrol to vote, an individual must be an Australian citizen and over 18 years old.

verdict

a decision made by a judge or jury regarding the guilt or liability of a party.

jury empanelment

the process of selecting the jurors for a trial, whereby potential jurors can be found ineligible, or be disqualified or excused from jury duty for a range of reasons.

limitation period

the length of time in which a plaintiff must commence a civil action in court, after which the plaintiff is unable to bring an action relating to the civil wrong against the defendant..

socioeconomic status

the social standing or class of an individual or group, often measured by reviewing a combination of factors including education, income, and occupation

barrister

a self-employed lawyer who regularly appears in court and is responsible for representing a party in a trial by making legal arguments, questioning witnesses, and summarising the case to the judge and/or jury

solicitor

a lawyer who advises clients about legal matters, prepares legal documentation for trial, communicates with the other party’s legal representation, researches the relevant laws, and when required engages the services of a barrister and briefs them to represent a client in court.

fee waivers

when there is no longer a requirement for a party’s court fees to be paid as the courts recognise various factors that may limit such a payment, such as financial difficulties and young age.

young people

people aged 10 to 18 years who are subject to different legal processes

Community legal centres (CLCs)

notfor-profit community organisations that provide free legal information, advice, education, and casework services.

remedy

a court order that aims to enforce a right by preventing a civil breach, or correct a civil breach and return the plaintiff to the position they were in prior to the breach by the defendant.

loss

a disadvantage experienced by a party due to an action or the inaction of another party

damages

a type of remedy in which monetary compensation is awarded to the plaintiff in a civil dispute to compensate their loss caused by a civil breach.

specific damages

a type of compensatory damages that have a precise value, are easily quantifiable, and the amount can be calculated objectively

general damages

a type of compensatory damages that do not have a precise value and are not easily quantifiable. These are awarded when the plaintiff has endured general pain and suffering, loss of quality of life, or a shortened life expectancy.

aggravated damages

a type of compensatory damages that aim to further compensate the plaintiff for humiliation suffered or where they have been insulted due to the defendant’s conduct.

nominal damages

a small monetary amount awarded to show the plaintiff has suffered a civil breach, usually valued at $1, to uphold the plaintiff’s rights without providing compensation

exemplary damages

damages that aim to punish the defendant and are usually a large monetary amount

human rights

entitlements and liberties that exist for all human beings, irrespective of any personal qualities and characteristics.

united nations (UN)

an intergovernmental organisation that aims to promote better living standards and human rights, maintain international peace and security, and develop friendly relations among nations.

convention (treaty)

an agreement signed between two or more countries that are usually open to participation from the international community as a whole, or from a large number of countries. This is also known as a treaty

declaration

a non-binding agreement between two or more countries that establishes the aspirational rights and obligations that parties to the agreement seek to enforce.