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Legal Studies > UNIT 2: AOS 1 > Flashcards

UNIT 2: AOS 1 Flashcards

1
Q

The need for Civil Law

A

Civil law protects the rights of individuals. If individuals rights are infringed they can take the matter to court to ask for compensation as a way of righting the wrong committed against them.

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2
Q

Types of Civil Law

A
  • Contract Law
  • Family Law
  • Tort Law
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3
Q

Contract Law

A

Aims to ensure that people who make promises under a contract are obliged to stick to them, or else compensate the other party to the contract if they fail to comply with the contract.

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4
Q

Family Law

A

Ensures some level of harmony or consistency is provided in family disputes

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5
Q

Tort Law

A

Relating to negligence and defamation, aims to protect the rights of individuals.

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6
Q

Key Principles of Civil Law

A

Plaintiff
Defendant
Balance of Probabilities
Liability

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7
Q

Plaintiff

A

The wronged person bringing the case to court

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8
Q

Defendant

A

The party alleged to be in the wrong

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9
Q

Remedy

A

A form of compensation whether it be monetary or not aiming to return the plaintiff to his or her position before the wrong occurred.

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10
Q

Burden of proof

A

Lies with the plaintiff.

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11
Q

Standard of proof

A

The balance of probabilities; that is, according to which side of the story is most probably correct.

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12
Q

The distinction between civil and criminal law

A

Person bringing the case
Criminal: prosecution. Civil: plaintiff
Other party
Criminal: accused. Civil: defendant
Standard of proof
Criminal: beyond a reasonable doubt
Civil: balance of probabilities
Consequences
Criminal: sanctions. Civil: remedies
Pre-trial procedures
Criminal: committal proceedings, bail or remand
Civil: pleadings directions hearings and discovery
Instigate action
Criminal: issue a summons or warrant
Civil: sue

The aim of criminal action is to punish the offender. The aim of civil action is to return the victim to the position they were in before the act took place

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13
Q

The relationship between Civil and Criminal Law

A

The same behaviours can rise a civil dispute and a criminal case. For example a person who hits another person can be charged with assault but the victim could also sue the offender for assault.

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14
Q

Law Making through the courts

A

Precedent

Statutory interpretation

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15
Q

Precedent

A
  • Court makes a decision that is the first of its kind.
  • It is a statement of law made through the courts and may be followed in similar cases that come before the courts in the future.
  • If made in a higher court all lower courts must follow in the same hierarchy.
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16
Q

Ratio decedeni

A

The reason given for the decision

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17
Q

Obiter Dictum

A

A statement that is not part of the reason for e decision. A statement made by the way. May influence decisions in the future.

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18
Q

Binding precedent

A

One that must be followed by all lower courts in the same hierarchy. A precedent is binding if:

  • there are similar material facts in the new case
  • the precedent was set in a higher court in the same hierarchy as the new case
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19
Q

Persuasive Precedent

A

Precedents from other countries, states, lower courts and hierarchies are not binding on Victorian courts. The decisions made within any of these courts may influence a courts decision but the court can chose whether to follow it or not

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20
Q

Developing or avoiding earlier precedents

A

Reversed
Overruled
Distinguished
Disapproved

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21
Q

Reversed

A

A precedent can be reversed when the SAME CASE is taken to a higher court on appeal.

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22
Q

Overruled

A

A precedent can be overruled by a higher court in a different case.

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23
Q

Distinguished

A

If the material facts of a case are sufficiently different from the material facts in a binding precedent, a lower court may not have to follow it.

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24
Q

Disapproved

A

A court bound by precedent but expresses its disapproval of the precedent. This does not change the precedent, but a higher court, when deciding a later case, may choose to agree with the court that disapproved of the precedent and decide to overrule it.

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25
Q

Statutory Interpretation

A

Where a judge clarifies or interprets the laws written by parliament.

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26
Q

Torts

A

A civil wrong. Deals with the rights and obligations that people owe to others and the infringement of these rights and obligations.
The main aim is to return the wronged person to the position he or she was before the wrong occurred.

27
Q

Tort of Negligence

A

Negligence means a failure to take reasonable care. A person is obliged to take reasonable care in regard to other people where it is reasonably foreseeable that other people could be harmed by their actions.

28
Q

Key principles of negligence

A
  • the person who was negligent owed a duty of care to the person injured.
  • the duty of care was breached
  • the breach of the duty of care caused loss or damage (causation)
  • the wronged person has suffered loss or damage.
29
Q

Duty of care

A
  • the risk was foreseeable
  • the risk was significant or not insignificant
  • in the same circumstances, a reasonable person in the same position would have taken the precautions to eliminate any risk or harm.
30
Q

Defences to Negligence

A
  • Contributory negligence

- Assumption of risk

31
Q

Contributory Negligence

A

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

32
Q

Assumption of risk

A

The voluntary acceptance of the risk of injury. The defendant must prove that the plaintiff was aware of an obvious risk and that he or she voluntarily chose to tame the risk. For example, sportspeople.

33
Q

Defamation

A

Aims to protect the character of individuals against attempts to discredit their standing in the eyes of the community. A statement or other published material is defamatory if it lowers the reputation of the plaintiff in the eyes of others.

34
Q

Key principles of Defamation

A
  • statement is defamatory
  • the defamatory statement refers to the plaintiff
  • the statement has been published (communicated to people other than the person it refers to) by the defendant.
35
Q

Defences to Defamation

A
  • Justification
  • contextual truth
  • absolute privilege
  • publication of public documents
  • fair report of proceedings of public concern
  • qualified privilege
  • honest opinion
  • innocent dissemination
  • triviality
36
Q

Justification

A

Applies when a defamatory statement is substantially true.

37
Q

Contextual truth

A

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

38
Q

Absolute privilege

A

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

39
Q

Publication of public documents

A

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

40
Q

Fair report of proceedings of public concern

A

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

41
Q

Qualified Privilege

A

Where the defendant:

  • believes the recipient of the defamatory information has a moral or legal interest in receiving the information.
  • acts without malice or spite
  • acts reasonably in the circumstances
42
Q

Honest opinion

A

The claim that the defamatory material is an expression of his or her honest opinion rather than a statement of fact.

43
Q

Innocent dissemination

A

Protects people who may unknowingly distribute defamatory material, such as printing companies, Internet or email providers etc.

44
Q

Triviality

A

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

45
Q

Judge made law

A

Decisions made by judges that form part of the law.

46
Q

Tort of Nuisance

A

Refers to unreasonable annoyance or interference with a persons use or enjoyment of land.

47
Q

Public nuisance

A

Generally a civil wrong but can be a crime in some cases. It is an act or omission that endangers the comfort, health, lives, property or safety of a class of people.

48
Q

Private nuisance.

A

A civil wrong, the unreasonable, unwarranted or unlawful use of ones property in a manner that substantially interferes with the enjoyment or use of another individuals property.

49
Q

Elements of nuisance

A
  • the act or omission created a substantial inconvenience
  • the act or omission was unreasonable for the plaintiff to bear
  • there was actual loss or harm caused.
50
Q

Defences to nuisance

A
  • the act or omission did not cause inconvenience
  • the act or omission was not unreasonable
  • there was no actual loss or damage
51
Q

Tort of Trespass

A

Trespass to Goods.
Trespass to Land
Trespass to Person

52
Q

Trespass to goods

A

The direct and voluntary interference of goods in the possession of another, regardless of whether damage is caused to those goods

53
Q

Civil Law

A

Civil Law is the dealing with disputes between two individuals or groups where an individual’s or groups rights have been infringed.

54
Q

Defences to Trespass to Goods

A

Consent- the person agreed to having their goods used or removed
Accident- where a person takes property with the genuine belief that it was theirs
Contractual rights over property- the person has the right to remove or sell the goods under contract

55
Q

Trespass to Land

A

The direct interference, without lawful justification, with another persons possession of land.

56
Q

Defences to Trespass to Land

A

Consent
Necessity- building on fire
Abatement of nuisance- to remedy a nuisance such as entering land to turn off running water tap which is causing flooding
Implied licence- entering property to read a gas meter

57
Q

Trespass to Person

A

Three types which are all actionable, that is, the damage does not have to be proved. These are assault, battery and false imprisonment

58
Q

Assault

A 
Does not involve bodily force or contact. It is an act which without lawful justification, creates in a persons mind a reasonable fear that he/she is about to suffer bodily force or contact
To prove there must be
Direct threat
Reasonable fear
Knowledge of threat
59
Q

Defences to Assault

A

D did not pose threat to P
P was not in fear of D
P has no knowledge of the threat

60
Q

Battery

A 
The unlawful, direct application of force to another person. An act will not be battery unless its effect is immediately felt by the person attacked. 
To prove there must be
Direct contact
Intention
Voluntary act
61
Q

Defences to Battery

A

No direct contact
No intention to contact
Action was involuntary
Self Defence

62
Q

False Imprisonment

A 
The unlawful imprisonment and it is committed when person are intentionally, directly and totally prevented from going where they wish
To prive there must be
Total constraint
The D confined the person 
Intention
63
Q

Defences to False Imprisonment

A

Not total constraint
Act not done directly by D
Unintentional

Legal Studies (7 decks)

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