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Legal Studies > Civil Law > Flashcards

Civil Law Flashcards

1
Q

define civil law and give examples

A

Civil law defines the rights and responsibilities of individuals and regulates private disputes where one party’s rights have been infringed. Examples of civil law may include: negligence, breach of contract, defamation

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2
Q

what are the three purpose of civil law?

A
  1. protect individual’s rights from being infringed
  2. Restore the party whose rights have been infringed to their original position
  3. achieve social cohesion - by providing guidelines on acceptable behaviour and establishing bodies to resolve disputes, or to assists parties to a dispute to resolve that dispute.
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3
Q

Describe the burden of proof in a civil case

A

The burden of proof refers to the responsibility of a party to prove a case. In civil law, the burden of proof is that the plaintiff must prove that the defendant committed the civil wrong. This means that the defendant does not have to prove that they did not commit the civil wrong. However, if the defendant pursues a defence or counterclaim, then they will have the burden of proof.

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4
Q

Describe the standard of proof in a civil case

A

The standard of proof refers to the strength of evidence needed to prove a case. In a civil case, the standard of proof is the balance of probabilities. This means that it must be more likely than not (more than a 50% chance) that the defendant committed the civil wrong. This is must lower than the criminal standard of proof.

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5
Q

What is the role is the judge in a civil case?

A
  • To direct the jury as to the law to be applied to the case
  • The judge determines the civil remedy. Eg. injunction (all cases), and damages (in defamation cases).
  • If there is no jury then the judge decides the facts, determines the law and the verdict and the civil remedy
  • In the Magistrates’ court there is no jury and so the Magistrate determines the law, the facts, the verdict and the civil remedy
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6
Q

What is the role of the jury in a civil case?

A
  • 6 member jury
  • The jury determines the facts
  • Jury decides the verdict. ie. to uphold or dismiss the plaintiff’s claims
  • The jury decides the damages (except for defamation)
  • Jury verdict must be either unanimous verdict (6/6) or a majority verdict (5/6).
  • A jury in a civil case is not compulsory and there is no concept of hung jury
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7
Q

what is a plaintiff?

A

A plaintiff is the party who claims that another party has committed a civil wrong

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8
Q

What is the aggrieved party?

A
  • The aggrieved party is a person whose rights have been infringed and who has suffered loss
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9
Q

What is an insurer?

A
  • An insurer is an organisation which provides insurance to a person for certain losses (eg. fire damage, loss of property) - if a person does something which causes the insured person to suffer and insured loss then:
  • The insurer will make a payment to the insured person to compensate them for that loss; and
  • The insurer has a right of subrogation - this is the right of the insurer to “step into” the insured person’s shoes and sue the person who has caused the loss as if the insurer was the insured person.
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10
Q

Plaintiff: child

A
  • a child less than 18y/o can sue another person for a civil wrong in a representative action where a litigation guardian (“next friend” eg. parent/guardian) brings the action on behalf of the child
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11
Q

Who is the defendant?

A
  • The defendant is the person who is allege to have committed a civil wrong
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12
Q

Who is the wrongdoer?

A
  • A person who infringes the plaintiff’s rights and causes the plaintiff to suffer loss.
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13
Q

What is accessorial liability (The person who is involved in the wrongdoing)?

A

A person who encourages or assists the wrongdoer to infringe the plaintiff’s rights (The person who is involved in the wrong doing) will have accessorial liability

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14
Q

What is vicarious liability (employer)?

A

Where an employer infringes the plaintiff’s rights while acting in the course of their employment, their employee will have vicarious liability (ie. will be responsible for) the losses to the plaintiff that are caused by the employee

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15
Q

Explain the reasons for time limits

A

Reasons for time limit

  • it gives certainty for the defendant
  • Increases the reliability of evidence
  • achieves social cohesion - requires that disputes are resolves as quickly as possible; may disrupt society and cause stress
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16
Q

In regards to cost what does the plaintiff have to consider before initiating a civil claim?

A
  1. legal fees
  2. Disbursements (court fees, mediation fees, expert witness fees)
  3. Adverse cost orders
  4. Legal Aid
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17
Q

What are disbursements, and what does the Plaintiff have to consider in regard to this when initiating a civil claim?

A

Disbursements are out of pocket expenses. Disbursements may include:

  • court fees such as filing fees (fees to initiate a civil claim in court), hearing fees (per day fees depends on the court and length of hearing), jury fees (when plaintiff has requested a jury, per day, depending on the length of hearing)
  • Mediation fees (usually before hearing a case the court may order the parties to try to resolve their dispute by mediation)
  • Expert witness fees is required in some cases (eg. to provide medical or economic evidence), depends on the expertise of witness and the nature of the case
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18
Q

What is an adverse cost order (apart of disbursements)?

A
  • an adverse cost order is where the court orders the losing party to pay the legal costs of the winning party. These costs may be all the legal costs of the winning party. In addition to paying the legal costs of the winning party the losing party will have to pay for the legal costs for their own as well.
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19
Q

Describe enforcement issues

A

When enforcing a court order to pay damages requires the plaintiff to apply to the court for an enforcement order - where the defendant does not or cannot pay damages. There are three types of enforcement orders.

  • Warrant of siezure and sale: where defendant has to sell their assets and pay the sale to the plaintiff
  • Attachment of Debts: where a person who owes a debt to the defendant must instead pay the debt to the plaintiff
  • Attachment of earning: an order that the defendant’s employer must pay a percentage of the defendant’s wages to the plaintiff.
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20
Q

What is a remedy?

A

A remedy is an order made by a court to resolve a civil dispute

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21
Q

What is the purpose of civil remedies?

A

The purpose of civil remedies is to restore, as far as possible, the plaintiff to their original position. There are two types of civil remedies

  • Damages
  • Injunctions
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22
Q

What are damages?

A

Damages is the amount of money that a court orders a defendant to pay to a plaintiff because of a civil wrong that the defendant has committed against the plaintiff.

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23
Q

What is an injunction?

A

An injunction is a court order to stop the defendant doing something or to require the defendant to do something

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24
Q

What are compensatory damages and what is its purpose?

A

Compensatory damages are damages that compensate the plaintiff losses that the plaintiff has suffered. Its purpose is to restore, as far as possible, the plaintiff to their original position by compensating the plaintiff for loss that the plaintiff has suffered. There are three types of damages:

  • Specific damages
  • General damages
  • Aggravated damages
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25
Q

What are the two injunctions?

A
  • Restrictive (prohibitory) injunction: An injunction that [purpose]: requires a defendant to stop doing something (stop causing harm). Eg. by demolishing a heritage building
  • Mandatory Injunction: an injunction that [purpose]: requires a defendant to do something (rectify some wrong). Eg. clean up pollution
26
Q

What are the three compensatory damages?

A
  • specific damages
  • general damages
  • aggravated damages
27
Q

What are specific damages and their purpose?

A

Specific damages are damages that compensate the plaintiff for losses that can be given a precise monetary value (often because the losses have already occured). For example, loss of wage and medical expenses. The purpose is to compensate the plaintiff for losses that can be given a precise monetary value.

28
Q

What are general damages and their purpose?

A

General damages are damages that compensate the plaintiff for losses that cannot be precisely calculated either because the damages occur in the future or the losses cannot be given a precise monetary value. For example, future earning capacity and pain and suffering. The purpose is to compensate the plaintiff for losses that cannot be given a precise monetary value

29
Q

What are aggravated damages and its purpose?

A

Aggravated damages are damages that compensate the plaintiff for humiliation and insult. For example, defamation. The purpose is to compensate the plaintiff for humiliation and insult.

30
Q

What are nominal damages and its purpose?

A

nominal damages are a small amount of damages that is awarded where the defendant has infringed the plaintiff’s right but the plaintiff has not suffered any loss or the plaintiff is not seeking substantial damages. The purpose is to uphold the plaintiff’s right without awarding a substantial amount of damages. For example, where a person is defamed but their reputation is already bad.

31
Q

What are contemptuous damages and its purpose?

A

contemptuous damages are a small amount of damages that is awarded where the plaintiff has the legal right to damages but does not deserve them. The purpose is to demonstrate the court’s contempt/disapproval for the plaintiff’s claim.

32
Q

What are exemplary (punitive) damages and its purpose?

A

Exemplary damages are damages that the defendant is required to pay to the plaintiff as a punishment. Eg. where the defendant has been extremely negligent, malicious/violent, and the court wishes to show its disapproval of the defendant’s conduct. The purpose is to punish the defendant for an extreme infringement of the plaintiffs rights and deter the defendant/ others from behaving the same way in the future. For example, defendant causes a car accident (high speeding, wet conditions).

33
Q

What are interlocutory injunctions and its purpose?

A

Interlocutory injunctions is an injunction that a court grants on a temporary basis where the situation is urgent (eg. where if is. necessary to stop something irreversible from happening). The purpose is to preserve the position of the parties until the matter can be determined by the court.

34
Q

What is a final injunction and its purpose?

A

A final injunction is an injunction that a court grants on a long-term basis. The purpose is to rectify a situation caused by the defendant. For example, pouring chemicals and pollution, may be ordered to monitor/filter.

35
Q

What are civil pre-trial procedures?

A

Civil pre-trial procedures are procedures that must be completed before a civil case is heard by a court. Civil pre-trial procedures include:

  • Pleadings
  • Discovery of documents
  • Exchange of evidence
36
Q

What are pleadings?

A

Pleadings are documents exchanged between the plaintiff and the defendant in a civil case which sets out the plaintiff’s claim, the defendant’s defence and the issues that are in dispute

37
Q

What is a writ?

A
  • When initiating a civil claim the plaintiff gives a defendant a writ.
  • A writ is a document that informs the defendant of the nature of the plaintiff’s action (eg. breach of contract), the court that will hear the case and whether the case will be heard by a judge alone or by a judge and jury.
38
Q

What is a statement of claim?

A

During pleadings. It is given after the writ has been providing. A statement of claim is a document that gives details of the plaintiff’s claim (eg. how the contract was breached, the loss suffered), and the civil remedy that the plaintiff is asking the court to award (eg. damages)

39
Q

What is a defence document?

A

Provided during pleadings. The defendant may serve documents on the plaintiff called a defence. A defence is a document that sets out the defendants response to the plaintiff’s claim (eg. denial that the defendant breached the contract).

40
Q

What is the Discovery of documents?

A
  • It is a pre-trial procedure which requires each party to list all the documents in its possession that are relevant to the case and to provide copies of them to the other party.
    Eg.
    Breach of contract - the contract
    Negligence case - medical reports, hospital/doctor invoices
    Defamation case - defamation publication
41
Q

What are the two types of evidence that may be introduced in a civil case?

A
  • Lay evidence (Witness statements, oral evidence, witness outline)
  • Expert evidence (Expert witness written report)
42
Q

What is lay evidence and in what ways is it given?

A

Lay evidence is evidence given by an ordinary person about the facts in dispute. For example, a witness. Lay evidence may be given in two ways.

  • Witness statement: a written statement that sets out evidence of the witness (This replaces the witness being quested in examination-in-chief; the witness may still be cross-examined and re-examined)
  • Oral evidence: witness attends trial and answers questions under oath or affirmation

*parties relying on a witness statement must provide a witness outline which is a brief description of topics witness will give evidence on at trial.

43
Q

What is expert evidence and how is it given?

A

Expert evidence is opinion evidence given by an independent expert about an area within his or her expertise. For example, a doctor, accountant, engineer, an accident investigator in negligently driving). Expert evidence is typically given through a:
- Expert witness written report: sets out the evidence of the witness (this replaces the witness being questioned in examination-in-chief; the witness may still be cross-examined and re-examined). Expert witness is under a duty to the court to give evidence in an unbiased way

*the party relying on expert evidence needs to give a copy to the other party before the trial.

44
Q

What are the purposes of civil pre-trial procedures?

A

There are four purpose of pre-trial procedures

  1. Informs party of other party’s case and evidence
  2. Enables party to assess the strengths of the other party’s case
  3. Informs court
  4. Allows party to challenge expert evidence
45
Q

What are representative proceedings?

A

Representative proceedings (aka class action) is a legal proceeding in which a group of 7 or more people (the group members), who have a claim against the same person based on similar facts, bring that claim to court in the name of one of the parties (lead plaintiff). For example, Black Saturday class actions (electricity lines were not properly maintained and sparked bushfires)

46
Q

Identity 4 responsibilities of the judge

A
  1. the responsibility to assists a self-represented party to understand legal terminology and legal procedure. However, cannot conduct or argue the case for them
  2. the responsibility to manage the case by giving directions (ie. on how evidence is to be given). This is also one of the judicial powers of case management
  3. At the end of the trial (ie. after the evidence has been given and the closing address), judge must summarise the case for the jury (by identifying relevant evidence)
  4. The judge makes decision on costs - adverse cost orders. `
47
Q

Identify 4 responsibilities of the jury

A
  1. To listen to the judge’s summing of the case; and the law at the end of the trial (ie where all the evidence has been given and after the closing address)
  2. Except for defamation cases, determine the amount of damages that are to be awarded to the plaintiff where the defendant is liable
  3. A juror must listen to and remember all the evidence
  4. The jury must decide the verdict (whether the plaintiff’s claim is to be upheld or dismissed).
48
Q

What is the purpose of case management?

A

to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute

49
Q

What are the two case management power?

A
  • The power to order mediation

- the power to give directions

50
Q

Describe the power to order mediation

A

A judge or magistrate may make an order that a civil dispute is referred to mediation (dispute resolution)

  • Mediation can be a court office (eg. associate judge) or a person agreed by the parties
  • a civil dispute may be referred to mediation at any stage of the proceedings ie. before or during the hearing or trial
51
Q

Describe the power to give directions

A

Directions - an instruction given by the court that requires a party to do something that states how a civl proceedings is to be conducted

  • A judge or magistrate may make any order they consider appropriate at any stage of the proceedings (before or during)
  • this power enables the judge or magistrate to control the proceedings so as to minimise delays, so parties know what procedures they need to follow
52
Q

What are the examples of directions that may be given by a judge or magistrate?

A
  • order in which evidence is to be given
  • specifying the length of trial/hearing
  • limiting the no. of witnesses a party may call
  • limiting length of party’s submissions
  • limiting number of documents
53
Q

What is a directions hearing?

A

A pre-trial procedure at which a judge or magistrate gives instructions to the parties about time limits and the way the civil proceedings is to be conducted:

  • timetable for pre-trial steps
  • order for parties to attend mediation
  • providing expert evidence
  • to file reports
54
Q

What are the strengths of compensatory damages in achieving their purposes?

A
  1. Specific damages can compensate for quantifiable financial losses
  2. While money may not always be perfect compensation, general damages and aggravated damages can go some way to alleviating the plaintiff’s loss.
55
Q

What are the weaknesses of compensatory damages?

A
  1. money cannot always precisely compensate for losses such as emotional, physical or mental injury or for some economic loss (eg. loss of future earning capacity)
  2. Some losses are unquantifiable (general damages)
  3. Money may not be adequate compensation (injunction might be appropriate)
  4. Damages cannot compensate for the time, inconvenience and stress of the plaintiff having to go to court to enforce their rights
  5. They may be statutory limits on the amount of damages that can be awarded.
  6. Defendant may not be able to pay damages
  7. defendant may refuse to pay damages
56
Q

what is the strength of exemplary damages?

A
  1. Exemplary damages can punish a defendant where the defendant’s conduct is deserving of punishment. This can deter both the defendant and others from acting in that way in the future
57
Q

What is the strength of contemptuous damages?

A

Contemptuous demonstrate a court’s disapproval or plaintiff’s claim by being for a small amount

58
Q

What is the strength of nominal damages?

A

Nominal damages can uphold a plaintiff’s rights by making it clear that the defendant was in the wrong

59
Q

What are strengths of injunctions?

A
  • A final injunction can prevent a defendant from continuing to cause harm (restrictive injunction) or require a defendant to rectify harm that has already occurred (mandatory injunction)
  • An interloctury injunction can be granted quickly:
  • to prevent a threatened infringement of the plaintiff’s rights or
  • to preserve the positions of the parties,
    until the dispute can be heard and determined
60
Q

What are weaknesses of injunctions

A
  • restrictive injunctions does not rectify a situation where a defendant has already done something or failed to do something
  • payment of money may be a better form of compensation
  • injunction might not stop defendant from doing other things in the future (outside scope of injunction)
  • defendant may not comply with injunction

Legal Studies (5 decks)

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