topic 4 & 5 Flashcards
(59 cards)
What is civil law?
private disputes between individuals it protects individual rights and responsibilities.
Difference between criminal and civil?
In criminal law, someone is alleged to have broken the law
In civil law no one has committed a crime however they are alleged to have infringed on the rights of someone else.
Reasons for civil law
Protect our rights
Impose duty on individuals not to harm or infringe upon their neighbours rights.
Provides a solution if our rights are breached
Standard of proof
Criminal trial - beyond reasonable doubt
Civil - balance of probabilities, plaintiff has to prove their version of the case is more than 50% likely to be true
Burden of proof -
Whose job it is to prove something
Criminal - prosecution
Civil - plaintiff
Civil vs criminal possible outcomes / findings
Criminal - guilty, not guilty, no decision ( hung jury )
Civil - defendant liable or not liable for compensation.
Civil court hierachy -
High court
Supreme court appeals division (Court of appeal )
Supreme court - trial division
county court
Magistrates court
High Court
original jurisdiction: Very limited
appellate jurisdiction: Appeals from the Court of Appeal
Supreme Court - appeals
(Court of Appeal)
original civil jurisdction: none
appellate civil Jurisdiction: appeals from the trial division and county court
Supreme Court - trials
original jurisdiction: unlimited
appellate civil jurisdiction: appeals from magistrates court
county court
original civil jurisdiction: Unlimited – no minimum or maximum $ amount
- hears moderate cases
appellate civil jurisdiction: none
Magistrates’ Court
original jurisdiction: Only claims up to $100,000
appellate civil jurisdiction: None
Jurisdiction
The power of a Court to hear a case is called its jurisdiction – the range/extent of its power/authority
Jurisdiction can be limited by
Geography –
Laws –
Cases – appelate/original/money restrictions
Remedy -
Courts have 2 types of jurisdiction
Original: The power to hear cases for the first time
Appellate: The power to hear appeals
Why is there a court hierachy?
Specialisation and expertise/experience
Efficiency saves time and money
Appeals
Appeals
If you do not like the decision of the court in the first instance, you can appeal to a higher court.
Without a hierachy..
There would be no courts to whom you could appeal as no higher courts exist
You would not know to whom you could appeal to
Specialisation
Courts can develop expertise in hearing and resolving certain types of disputes
Promotes consistency
All about the outcome, getting the fairest and most just outcome.
What is a precedent?
A judgement of a court that established a legal principle or point of law
Legal principles
Judges can establish legal principles that other courts have to follow in later cases, common law is all of the legal principles established by courts
- Like cases must be treated alike
- Courts value predictability
Three elements of the doctrine of precedent
All inferior courts are bound to follow the decision of superior courts
Courts only have t follow decisions made by superior courts in the same hierarchy
Cases must involve the same material ( important ) facts
Binding precedent
Decisions made by superior court is binding on all inferior courts, in that jurisdiction where the cases involve materially similar facts
Persuasive precedent
Persuasive could be:
Decision of court in another hierarchy like the NSW ruling
Decision of equal or lower court, in the same court
They may influence but you do not need to follow them
Nuisance - elements
Element that the plaintiff needs to establish on the balance of probabilities
There is action that subbstaintially interferes with the enjoyment of property
The nuisance is unreasonable
Damage or harm was caused
Eg. pain, suffering, inconvinience
