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54 Cards in this Set
- Front
- Back
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Need for civil law |
1. Protect our rights 2. Impose a duty on others not to do anything to cause us harm 3. Provide a remedy such as compensation in the event of a breach of a civil right |
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Burden of proof |
Plaintiff |
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Standard of proof |
Balance of probabilities |
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Key principles of civil law |
1. A person’s rights must have been infringed for a civil dispute to have occurred. 3. Burden of proof. A person who believes his or her rights have been infringed upon bears the burden of proving a case. 4. Standard of proof. A person must prove only on the balance of probabilities that his orher claim is more probable than not. 5.In civil cases a plaintiff is seeking a remedy. |
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Remedy |
An outcome of a civildispute awarded by the court to thesuccessful party. |
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Types of civil law |
Tort law Contract law Land law Trust Neighbour disputes Wills and probate Family law |
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Differences between civil and criminal law |
Purpose: protection of community vs individual rights Parties involved: the state and accused vs the injured party (plaintiff) and the defendant Burden of proof: prosecution vs plaintiff Standard of proof: beyond reasonable doubt vs balance of probabilities |
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Types of precedent |
Binding and persuasive |
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Precedent |
A principle of law established by a court in the process of resolving a dispute. |
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Persuasive precedent |
A decision that is not binding, but can influence a decision or be used as a guide. |
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Binding precedent |
A precedent created by a higher court that must be followed by all lower courts in the same court hierarchy |
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Changing precedent |
A superior court may change precedents made in the same court |
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Donahue v Stevenson |
Provided a precedent for negligence cases. No contract existed. |
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Statutory interpretation |
The process of interpreting the words in legislation to determine the intention of parliament. |
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Reasons for statutory interpretation |
The meaning of a word is unclear The legislation does not cover all circumstances Parliament's intention is unclear |
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Effects of statutory interpretation |
Creates a precedent It is through the process of statutory interpretation that courts play an important role in law-making. |
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Tort |
A civil wrong for which the usual remedy is damages. It does not include breach of contract. |
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Types of tort law |
Negligence Defamation Trespass Nuisance |
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Negligence |
A tort. Negligence occurs when a person breaches a duty to take reasonable care to avoid a foreseeable risk, resulting in a person being injured or suffering a loss. |
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Duty of care |
A responsibility to ensure the safety of those who may be affected by acts or omissions |
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Elements of negligence |
1. The defendant owed a duty of care 2. The defendant breached the duty of care 3. The plaintiff suffered loss as a consequence |
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Neighbour principle |
A principle established in the tort of negligence. A neighbour is any person whose safety may be affected by what you do or fail to do and therefore a duty of care is owed. |
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Defamation |
Written or verbal communication that lowers a person’s reputation in the eyes of others in the community. |
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Dispute resolution methods |
Negotiation Mediation Conciliation Arbitration Judicial determination |
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Negotiation |
Discussions held between people in dispute with the aim of achieving a mutually agreeable solution Not binding |
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Mediation |
A neutral person called a mediator helps people in dispute to negotiate with each other in order to resolve the dispute. Not binding |
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Conciliation |
A third party (conciliator) will give advice and offer possible solutions to the parties. Not binding |
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Arbitration |
The parties present their case to an independent arbitrator. Legally binding |
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Judicial determination |
Parties may choose to have a hearing before an independent third party. Legally binding. |
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Amount of damages for each court |
Cases up to $10,000 are arbitration Magistrate's court: Claims from $10,000 to $100,000 - a hearing Higher court: From $100,000 - a trial |
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Pre-trial procedure |
Writ Statement of claim Notice of appearance Statement of defence Counterclaim Further and better particulars "We should not stop cool fun" |
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Writ |
A legal document served on the defendant by the plaintiff, which states that legal proceedings have been commenced. |
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Statement of claim |
A legal document filed by the plaintiff settingout the claims made against the defendant in a civil action. |
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Notice of appearance |
A document filed in the Supreme Court Of Victoria by the defendant’s legal counsel that acknowledges a writ has been received. |
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Statement of defence |
A legal document sent by the defendant to the plaintiff in response to the statement of claim. It sets out how the defendant plans to deal with claims made against them. |
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Counterclaim |
A claim lodged by the defendant in a civil action. It is usually the plaintiff who has a claim or claims against the defendant, but sometimes the defendant may wish to make a counterclaim to the effect that the plaintiff has in fact infringed the defendant’s civil rights. |
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Further and better particulars |
Usually form part of the pleadings between both parties, but sometimes it is necessary to ask for further and better particulars if particulars have been too vague or perhaps non-existent. |
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Juries in a civil dispute |
Either the plaintiff or the defendant may request a jury. 12 names pulled out, each party challenge 3 jurors. Jury of 6.
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Purpose of pre-trial procedures
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It is hoped the parties will reach an out-of-court settlement. Aims to get both parties to reveal what they know about the case so that it is clear what is being claimed against the defendant and what remedy is being sought
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Out-of-court settlement |
Where a civil dispute is resolved before the trial is concluded. It can occur anytime up until the verdict is delivered in court. |
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Positives of the jury system |
Cross section of the community - difference of opinion Selected at random from electoral roll - fair Allows everyone to participate and decide values Ordinary people demonstrate societal values. |
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Negatives of the jury system |
Not everyone is allegeable - excused (pregnant, travelling, etc), ineligible (criminals), disqualified (police, lawyers) Challenges remove fairness Too difficult for regular people to understand legal jargon |
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Remedy |
An outcome of a civil dispute awarded by a court to the successful party |
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Types of damages |
Compensatory (specific and general) Exemplary Nominal Contemptuous |
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Compensatory damages |
Seek to provide compensation forloss and/or injury. |
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Specific damages |
Provide compensation for the actual quantifiable cost of the civil wrong, which is easily calculated, such as the medical or legal costs associated with the dispute. |
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General damages |
Not easily calculated as they involve estimating the pain and suffering the plaintiff went through as a result of the defendant’s actions. May be for emotional stress or to compensate for permanent loss, such as the loss of someone’s eyesight,mobility or work prospects. |
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Exemplary damages |
The objective is to ‘make an example’ of the defendant andpossibly deter others from behaving in the same way thedefendant did. |
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Nominal damages |
Damages that involve a relatively small sum of money. The plaintiff’s reasons for taking civil action may be primarily to prove a point rather than to extract large sums of money from the defendant. |
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Aggravated damages |
Damages awarded when the court wishes to show disapproval of the defendant’s reckless disregard for the plaintiffs welfare. |
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Contemptuous damages |
Very small amounts of money.The court recognises that the plaintiff is technically right inthat his or her civil rights were infringed, but disapproves ofthe plaintiff’s actions in bringing the matter to court in thefirst place. |
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Marriage |
The unionof a man and a woman to the exclusion of all others, voluntarily entered into forlife |
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Declaration of Nullity |
A findingby the Family Court that no legalmarriage exists even though the couplemay have participated in a marriageceremony. |
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Divorce |
The termination of a marriage other than by the death of one of the parties to the marriage |
