Legal Studies 11- Unit 2: Outcome 2

Plaintiff

the person whose rights have been infringed and is commencing civil action

Defendant

the person being sued, defendant has infringed on the rights of the plaintiff

Burden of proof

lies on the plaintiff

Standard of proof

Balance of probabilities

damages

remedy being an amount of money

torts

a civil wrong

main 4 torts

negligence nuisance defamation trespass

fairness + example

there should be a fair hearing or trial eg. in a civil dispute each party is allowed to discover relevant documents, copies need to be provided to the other side

equality + example

civil justice system should ensure that certain groups in society partically vunerable g?roups are not disadvantaged eg. indigenous, elderly

access + example

procedures, methods and institutions that resolve a dispute eg. people being informed about their rights and remedies that may be available to them

dispute resolution methods

mediation, conciliation, arbitration

mediation

parties come together to resolve a dispute with the help of the mediator. mediator will support both party's views hoping that they will come to a resolution. Non- legally binding

conciliation

same as mediation (parties come together to resolve a dispute with the help of the mediator) but the mediator will also offer suggestions. Non-leggally binding

arbitration

where a third party makes a legally binding decision, often used in commercial situations eg. working hour disputes between employers and employees

How to make mediation and conciliation legally binding

have both parties sign a deed of settlement

3 main types of resolution bodies other than courts

tribunals, ombudsman, complaints bodies

purpose of tribunals

to provide a low cost, fast dispute resolution

role of the ombudsman

to deal with complaints against institutions, can make legally binding decisions

government ombudsman

deals with disputes or complaints against government agencies

industry ombudsman

deals with disputes between consumers and businesses mainly telecommunications and public transport

purpose of complaints bodies

to provide free dispute resolution service to give all access, they do not have the power to conduct a hearing or make legally binding decisions

role of the courts in a civil case

determine liability, determine remedy

jurisdiction of magistrates court

civil claims up to $100 000, arbitration claims under $10 000, original jurisdiction

jurisdiction of county court

hears civil claims for unlimited amount, generally hears TAC (transport accident commision) claims, and workplace incidents, both original and appelate (only under a specific act) jurisdiction

jurisdiction of Supreme Court

unlimited jurisdiction, original and appellate, hears point of law appeals from magistrates, generally hears torts claims

jurisdiction of court of appeal

only appellate jurisdiction, hears appeals from both supreme and county courts on point of law, damages and facts of the case, can hear VCAT appeals when constituted by the president or vice president

# of jurors in a civil case

6

unanimous verdict

6/6 jurors

majority verdict

5/6 jurors

Juries in civil cases

in magistrates theres no jury, in county and supreme there are optional juries at request of either party at their expense

purpose of remedies

to attempt to restore the plaintiff to their original position prior to their rights being infriged

types of remedies

nominal and compensatory

Compensatory Damages

General: related to pain and suffering, Specific: items that can be calculated, Aggravated: defendant's conduct injured the plaintiff's feelings by causing humiliation + insult

Nominal damages

awarded by the court if it believes that the defendant has infringed the plaintiff's rightd but they have not suffered loss or harm

civil revision

liable or not liable, plaintiff + defendant, optional jury

judicial determination

legally binding verdict handed down by the courts

VCAT advantages

low cost, accessible, fast, civil cases, hears wide range of disputes, legally binding

main types of remedies

damages and injunctions

exemplary damages

known as punitive damages, where a court shows disapproval of defendant's actions. cannot be awarded in defamation cases. purpose is to punish defendant and deter others

contemptuous damages

Plaintiff has a legal right to damages but does not have a moral right, small amount awarded.

injunctions

non-financial remedy. court makes order for defendant to undertake an action to attempt to restore plaintiff to prior position.

restrictive injunctions

stopping someone from doing something eg) stop a building being destroyed

mandatory injunctions

is a sought when a person wishes to compel someone to do a particular act eg) removal of something from their land.

difference between remedy and injunction

remedy is financial whereas injunction is an action

difference between complaints body and tribunal

complaints bodies are free an not legally binding whereas tribunals have a small fee and are legally binding