AOS2 Flashcards
(25 cards)
What are types civil disputes
defamation, breach of contract, negligence, trespass to land, will and inheritance, nuisance
what is defamation
relates to saying or publishing material which causes damage to another person’s reputation. (example: a newspaper article might falsely report that a business owner had committed fraud, which drives customers away)
what is a breach of contract
actions arise where someone had failed to do something they promised in a legally binding agreement (example: you might pay in advance for a new car, but when the time comes for delivery you find out the dealer sold it to someone else for more money, in breach of your contract)
what is trespass to land
this occurs when someone does into another persons land without permission, (example, a news photographer rewhip refuses to leave your home when asked ti go may be trespassing on the property)
what is nuisance
claims remade by poole who have lost enjoyment or use of property (either private or public)(example: a stench coming from a nearby factory might be a legal nuisance because it interferes with a person’s ability to enjoy their home.)
what is Will and inheritance
claims inviting disputes over a will. (example: an elderly person might be pressured into making a will that leaves all their money to a scam artist. this family could go to court to claim that the will was not valid.)
What is negligence?
it occurs when someone owes a duty of care to another and breachers that duty, causing harm or loss to them(example: a doctor might carelessly cut an artery during a medical procedure and harm the patient may sue, alleging a breach of duty of care owed to them.
who does the burden of proof lie on in a civil dispute
it lies with the person who is bringing the case before the court.
what is the standard if proof in a civil dispute
it refers to the strength of evidence needed to prove the case, the plaintiff must prove the case on the balance of probabilities this means that the party must prove their version of events is more probable to have occured.
what are the 3 factors to consider before initiating a civil claim
cost, limitation of action, enforcement issues
what is cost as a factor to consider before initiating a claim
a party involved in a. civil dispute may incur cost in resolving that dispute. The cost include fees for legal representation, disbursements (such as court fees, mediation fees and exert witness fees), and possible cost to be paid to the other is the plaintiff is not succesful
what is a class action
is a type of proceeding where a group o people, who all have claims against the same sporty, join together in a proceeding
when is a class action appropriate
if seven or more people have claims against the same person.
if the claims relate to the same, Siloam related circumstances
if the same issues need to be decided (such as whether the defendant owed a duty of care to those plaintiffs)
how does a class action work
class actions normally work by a single person who represents the group (or class). that person is known as the lead plaintiff. the people who form part of the group is known as group members.
what are the 3 factors to consider before initiating a civil claim
cost, limitation of action , enforcement issues
what is cost
party involved in a civil dispute may incur costs in resolving that dispute. the cost include fees for legal rep and disbursements
what are the fees for legal representation
The costs of legal representation include the costs of engaging a solicitor and a barrister. Depending on the case, and which dispute resolution body is used to resolve the dispute, sometimes a party will engage both a solicitor and a barrister.
examples of fess for legal representation
the complexity of the case and the time it will; take to resolve
the size of the case (such as number of witnesses, the extent if the evidence and the volume of documents involved
the expertise of legal representation ( lawyers and barristers with greater seniority or expertise usually charge for higher fees.
what is a disbursenment
out-of-pocket expenses or fees (other than legal fees) incurred as part of a legal case.
They include fees paid to expert witnesses, court fees, and other third-party costs such as photocopying costs
examples of disbursements
court fees (filing fees, hearing fees, and the fee for a jury if a party requests a jury
mediation fees (cost for a mediator and possibly the cost if the venue where the mediation is being held
what is adverse cost orders
If the plaintiff is unsuccessful in a claim they have initiated in court, then not only will they have to pay for their own legal costs, but they may be ordered to pay for some of the defendant’s costs.
things factors that plaintiffs must consider before initiating adverse cost orders
The general rule in civil disputes is that a successful party should receive an order from the court that
their costs are paid by the losing party.
The fear of having an adverse costs order made against them could deter a plaintiff from initiating a
civil claim. Therefore, it is a risk that the plaintiff needs to consider before initiating a civil claim.
Therefore, before initiating a claim, the plaintiff should consider:
* how much it will cost to have the dispute resolved
- whether they have the money to pay for those costs
- whether the damages that may be awarded outweigh the costs involved in making the claim
- whether they are eligible for legal aid or free legal assistance through other means
- whether they have the money to pay for the costs of the defendant if an adverse costs order is made
what is the limitation of actions
refers to the restriction placed on the time within which a civil action can be commenced. for most types of claims, the plaintiff will need to commence the proceeding within a certain period of time.
why is there is limitation of actions
- the defendant does not have to face an action after a significant amount of time
- evidence is not lost and people can still remember what happened
- disputes can be resolved as quickly as possible, to promote social cohesion. That is, it is in the best interests of the community that disputes be settled quickly so that they do not ‘linger’ or ‘fester’ in the community.
