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