Term
The difference between civil law and criminal law
Purpose: |
|
Definition
Civil: To recognise that the rights of an individual have been infringed and to restore the injured party to their original position
Crim: To regulate the behaviour of individuals in the community |
|
|
Term
| Civil vs. crim - definitoin |
|
Definition
Civ - Laws regulating the behaviour of private individuals
Crim - Laws concerned not only with the rights of individuals directly involved but also with the welfare of society as a whole |
|
|
Term
|
Definition
civ - person who's rights have been infringed - plaintiff
crim - direct of public prosecuations (acting for community) |
|
|
Term
Nature of action
Standard o/ proof
Decision
Outcomee |
|
Definition
Sue vs. prosecute
Bal. o/ probs vs. beyond reaosn doubt
Liable /not liable vs. guilty/ n. gulity
Remedy vs. sanction |
|
|
Term
|
Definition
| the area of law developed by the courts - judge made courts - common law - forming precedent example: ?? |
|
|
Term
|
Definition
develops judge made law
recorded decision of judges are recorded - past decision kept for reference
- judge's decisions to become law means that it must have a new statement or legal principle |
|
|
Term
|
Definition
- decision recorded in law reports
- judgement is a formal statement by the judge outlining facts of case, decision and reason behind decision (ratio) |
|
|
Term
|
Definition
the legal reasoning used by the judge to reach the decision in a case.
- guide in determing what the law should be
- binding - follow ratio |
|
|
Term
|
Definition
- stand by what's been decided
- lower courts follow decision / ratio
- following them upholds consistency
- binding |
|
|
Term
|
Definition
precedent that must be followed by lower courts in similar cases
- only binding when facts are similar and precedent was by higher court IN SAME COURT SYSTEM |
|
|
Term
|
Definition
- doesn't have to be followed
- another court hierarchy or lower court
- a guide to judges |
|
|
Term
|
Definition
DORD
Distinguishing, dissapproving, overruling and reversing ;)) |
|
|
Term
|
Definition
Judge decides precedent doesn't have similar facts
- not bound if facts are not similiar |
|
|
Term
|
Definition
| cannot dissaprove if it's binding but can give a clear message of dissaproval to the higher court to change the precedent |
|
|
Term
|
Definition
| higher court judges replace a precedent with another one that becomes binding on lowwr courts, original precedent is no longer binding |
|
|
Term
|
Definition
- new legal principle in lower court
- a party appeals to a higher court
- higher court evalautes the situation
- higher court can reverse decision so precedent set by lower court can no longer be applied to the case. |
|
|
Term
| Interpretation of legislation & precedent |
|
Definition
- when a judge intreprets the meaning of an act they will give reasons for the decision they made -> formz precedent
- in future, courts can refer back to decision of how an act was interpretted -> the interpretation becomes precedent |
|
|
Term
| what is the doctrine of precedent? |
|
Definition
| it's referred to as Stare Decisis. It is a principle where judges are supposed to obey the holdings of prior decisions. The purpose is to have some stability in the common law. Some argue that it is too confining and that judges should be able to freely interpret the laws as they see fit. |
|
|
Term
| Case law is the set of existing rulings which have made new interpretations of law and, therefore, can be cited as precedent. |
|
Definition
| Case law is the set of existing rulings which have made new interpretations of law and, therefore, can be cited as precedent. |
|
|
Term
|
Definition
No duty
No breach
No damage
Contributory negligence
Voluntary assumption of risk |
|
|
Term
|
Definition
A tort imposing a duty to exercise reasonable care to ensure a person’s actions do not adversely affect others
eg) snail in the ginger beer bottle- company had the duty of case to...
To claim negligence the person needs to show that they were owed a duty of care. |
|
|
Term
| What is civil law described as |
|
Definition
● sets out rights and responsibilities ● gives rise to one or more parties suing one or more other parties in order to remedy
some form of suffering.
- Negligence occurs when a person behaves in a careless or reckless manner that results in an injury to another. |
|
|
Term
|
Definition
-civil wrong
- major area of common law
- designed to give a person a remedy for sufferage damage from another person |
|
|
Term
|
Definition
● ●
The plaintiff was a ‘neighbour’ of the defendant and was owed a duty of care.
The defendant was careless and breached that duty.
The carelessness caused the plaintiff damage or injury. |
|
|
Term
| Negligence and neighbours |
|
Definition
| A person’s ‘neighbour’ is someone who would be closely and directly affected by that person’s acts or omissions. |
|
|
Term
| Person owes a duty of care if... |
|
Definition
person owes a duty of care if:
● the risk was foreseeable ● the risk was significant or not insignificant (not far-fetched or fanciful) ● in the circumstances, a reasonable person in the same position would have taken
precautions to eliminate any risk of harm. |
|
|
Term
|
Definition
the plaintiff must then prove that the defendant breached that duty of care, by acting in a careless manner.
● The standard of care required will increase with the seriousness of the injury that could result.
● The greater the likelihood of injury, the greater the care that should be taken to avoid it.
● The easier the task of avoiding the injury, the more reasonable it is to expect that measures to avoid injury be taken. |
|
|
Term
|
Definition
- parliament has passed laws that limit how negligence can be applied to some situations
eg) volunteers who provide services cannot be sued for cuasing injury whilst doing so, good samaritans who help cannot be sued and if plaintiff was intoxicatd they may consider they contributed to the injuries |
|
|
Term
How has the right to sue for negligence been limited in Victoria? Suggest reasons for these limitations.
5 How does civil law, and the law of negligence, reflect the values of the community? |
|
Definition
|
|
Term
| Do you believe any changes are needed? |
|
Definition
|
|
Term
|
Definition
- the dissemination of a statement or other public material that lowers the reputation or standing in the community of the plaintiff in the eyes of the community
- seeks to maintain a person’s right to enjoy a good reputation |
|
|
Term
| In order to prove defamation |
|
Definition
● The statement was defamatory.
● The defamatory statement refers to the plaintiff.
● The defendant communicated the defamatory statement to a third person. |
|
|
Term
| A defamatory statement is... |
|
Definition
A defamatory statement is an untrue statement that lowers an individual’s reputation in the eyes of right-thinking people.
if others can identify the person about whom the statement is made. |
|
|
Term
|
Definition
- companies cannot sue unless they are non for profit or less than 10 ppl
- other than TAS, the dead or their representative cannot sue |
|
|
Term
|
Definition
Public documents - P
Innocent Dissemination - I
Abs priv - A
Q priv - Q
Honest - H
Fair reporting - F
Contextual truth - C
Triviality - T
Justication truth - J
Peter is just quirky and hires tacking fishy conmen |
|
|
Term
|
Definition
- ppl are free to say what they please about others
- parliament statements are priviliged
- so they can discuss issue w/o fear of legal action
- statements betwen husband & wife, lawyer & client |
|
|
Term
|
Definition
- aka as limited
- person given info has interest in info
- matter published to give info to that recepient |
|
|
Term
|
Definition
|
|
Term
|
Definition
| - statement might have untrue satemetns but the main content of the statement might be contextually true |
|
|
Term
|
Definition
| comment or opinion, observation |
|
|
Term
|
Definition
- proceedings of public concern
- reports from parli, international bodies, law reform bodies
defendent proves that it was in the public concern, it was a fair extract of the report and they had no knowledge that the earlier report wasnt fair |
|
|
Term
| Publication of public documents |
|
Definition
| not defmation to publish statement in public document |
|
|
Term
|
Definition
| It may not be considered a defamation if the defendant published the defamatory statement without knowing that they were distributing the statement. |
|
|
Term
|
Definition
| The defendant may claim that the defamatory statement has not caused any harm to the plaintiff. |
|
|
Term
|
Definition
| Trespass includes trespass to the person, trespass to land and trespass to goods. Cases of trespass to goods are not common. |
|
|
Term
|
Definition
| Trespass to the person recognises a person’s right to personal safety and freedom from personal inconvenience. It includes assault, battery and false imprisonment. |
|
|
Term
|
Definition
Assault is placing a person in a position where the person reasonably believes that they are in immediate physical danger.
- prove defendent posed a threat to plaint
- plaintiff held reasonible fear
- plaintiff had knowledge o/ threat |
|
|
Term
|
Definition
- application of physical harm w/o content
- actually carries out action - accompanied with assault if there was an initial threat
- defedent must make contact that was intentional and volunatarily (by choice) |
|
|
Term
|
Definition
False imprisonment occurs when one person unlawfully detains another person.
- not lawful like by police
- must be total restraint (no escape) and direct action and intentional |
|
|
Term
| defences to assault and battery |
|
Definition
- self defence
- neccessit in aim to save life of another
- incapacity (insanity)
- consent - injured by actions of another course of event eg) sports matches |
|
|
Term
|
Definition
| Trespass to land recognises a person’s right to own and occupy land. Trespass to land includes entering without permission, staying without permission or putting something on or against another person’s land. |
|
|
Term
| Parliament has made laws that give some people the right to enter your land without permission. |
|
Definition
| eg) rspca to check animals |
|
|
Term
|
Definition
| Nuisance recognises the right of a person to reasonable convenience and comfort in life. A nuisance may be a private or a public nuisance. |
|
|
Term
|
Definition
| public nuisance is now dealt with under criminal law. For example, a plumber, while connecting water to a house, digs a trench across the road and leaves it uncovered and unmarked all night. Because of the danger to the public, the plumber could be charged with the crime of public nuisance. Any individual who suffers injury could also sue the plumber for any damage they received |
|
|
Term
|
Definition
Private nuisance concerns interference with a person’s enjoyment of their land.
Matters such as a noisy stereo, the crowing of roosters and incinerator smoke blowing across a property have all been described as a private nuisance. T |
|
|
Term
|
Definition
- interference wasn't serious
- senstive plaintiff
- not often civil as legislation has been introduced to make behaviour that is a nuisance an offence |
|
|
Term
|
Definition
| Nuisance recognises the right of a person to reasonable convenience and comfort in life. A nuisance may be a private or a public nuisance. |
|
|
Term
|
Definition
| public nuisance is now dealt with under criminal law. For example, a plumber, while connecting water to a house, digs a trench across the road and leaves it uncovered and unmarked all night. Because of the danger to the public, the plumber could be charged with the crime of public nuisance. Any individual who suffers injury could also sue the plumber for any damage they received |
|
|
Term
|
Definition
Private nuisance concerns interference with a person’s enjoyment of their land.
Matters such as a noisy stereo, the crowing of roosters and incinerator smoke blowing across a property have all been described as a private nuisance. T |
|
|
Term
|
Definition
- interference wasn't serious
- senstive plaintiff
- not often civil as legislation has been introduced to make behaviour that is a nuisance an offence |
|
|
Term
|
Definition
up to 100000 (original)
appellarte - no jurisdiction |
|
|
Term
|
Definition
unlimited
jury o/ six - original
appelate - no juris |
|
|
Term
|
Definition
unlimited - jury of six - originl
appel - appeals from magistrate court |
|
|
Term
|
Definition
orginal - no jursi
appeals from county or supreme |
|
|
Term
|
Definition
original - claims from treaty or where commonwelath is a party
appelate - no juris
- final court of appeal |
|
|
Term
|
Definition
| childrens's family and fed |
|
|
Term
|
Definition
| Childrens - victorian - family division to hear cases of u17s who need care (if abondned or illtreated) - childrens court can hear cases between parent and child |
|
|
Term
|
Definition
| The Family Court hears matters relating to divorce, parenting orders, child maintenance and division of property. |
|
|
Term
|
Definition
| The Federal Court hears disputes concerning federal laws, such as copyright and trade practijarodgreehchjarogrechjarodces. |
|
|
Term
| reasons for court hierarchy |
|
Definition
| Reasons for a court hierarchy includes allowing for the use of expertise, more efficient use of resources and appeals. It is essential to the operation of precedent. |
|
|
Term
|
Definition
-> remedy claimed by plaintiff determines which court to go to
-> letter o/ demand - gain resolution to obtain remedy from defedent (by solicitor) outlining nature of complaint and demands - 14 days to meet demands |
|
|
Term
|
Definition
| The writ contains the names and addresses of the plaintiff and the defendant, information about the place and mode of trial - served on defendent |
|
|
Term
|
Definition
in person
notice of appearnce - defednet will defend in court
pleadings - parties exchange doucments and details of case to establish basic facts
state o/ claim - accompanies writ, by plaintiff to show outcome sought by plaintiff
statements of dfence or a countclaim can be put forward (eg. plaintiff responsible for damages) |
|
|
Term
|
Definition
| The discovery process allows for the discovery of documents and written questions known as interrogatories. |
|
|
Term
|
Definition
| During directions hearings, the court can ensure that the pre-trial proceedings are conducted in an effective and timely manner. |
|
|
Term
Certificate of readiness for trial
Once these procedures have been completed, the plaintiff will file a certificate of readiness for trial. |
|
Definition
Certificate of readiness for trial
Once these procedures have been completed, the plaintiff will file a certificate of readiness for trial. |
|
|
Term
n a civil case the plaintiff needs to prove their case on the balance of probabilities.
Each party prepares and presents their case. This includes the examination of witnesses and submissions on points
of law.
A successful plaintiff is entitled to claim a remedy and costs. A successful defendant may claim costs. |
|
Definition
|
|
Term
The parties can elect to have a jury of six in civil cases heard in the County or Supreme courts.
The jury can be asked to reach a decision on the balance of probabilities, as well as determine the level of damages. A jury in a defamation case cannot determine the level of damages. |
|
Definition
|
|
Term
|
Definition
Remedies in a civil case include damages, specific performance, rescission and an injunction.
Damages provide monetary compensation. |
|
|
Term
|
Definition
special - can be accurately assessed - eg) doctors bills
general - not accurately assessed eg) loss of enjoyment of life
nominal - plaintiff's rights infringed but not significant injury or loss
exemplary - make eg of defendent to community by ordering them to pay alot (deterrance)
contemptuous - court not sympathic to plaintiff and will give them a small wismall amount |
|
|
Term
|
Definition
| Specific performance requires the performance of the terms of a contract. |
|
|
Term
|
Definition
Rescission puts an end to
a contract and restores the parties to their original position. |
|
|
Term
|
Definition
| An injunction is a court order requiring that the defendant act in a certain manner. |
|
|
Term
| enforcement of civil orders |
|
Definition
| en an order (such as an injunction or order of specific performance) is ignored, the party at fault will be in contempt of court. This means that the person is guilty of a crime and can therefore be punished and sometimes even imprisoned. |
|
|
Term
| altneratives to court action |
|
Definition
| self help, negotiation, abonding, mediation conciliation, arbitration, judicial determination |
|
|
Term
|
Definition
| Negotiation is when two parties come together to work out a solution to a problem. |
|
|
Term
|
Definition
Mediation is where a third party assists both sides to identify the issues and ways in which the dispute can be resolved.
eg) victoria law foundation |
|
|
Term
|
Definition
| Conciliation is where a third party listens to both sides and suggests ways in which the dispute can be resolved. |
|
|
Term
|
Definition
| Arbitration is where a third party listens to both sides and makes a decision to resolve the dispute. |
|
|
Term
|
Definition
| Judicial determination is a formal means of dispute resolution that relies on a decision made by a magistrate or judge. |
|
|
Term
| adv of out of court resolutions |
|
Definition
| Out-of-court dispute resolutions provide quick, inexpensive, confidential and flexible means to resolve disputes. |
|
|
Term
|
Definition
| They would prefer to use a more formal structure, but cannot afford to go through an expensive court trial. These people may use a tribunal to help settle their dispute. Tribunals save people the costs and time often associated with going to court. The formal processes used by traditional courts are not conducive to speedy, cheap and informal dispute settlement. Tribunals are usually expert in a particular area, are less formal than a court and use other dispute resolution methods. |
|
|
Term
|
Definition
The Victorian Civil and Administrative Tribunal (VCAT) has three divisions: civil, administrative and human rights
civil division (credit list)
admin division (taxation list)
human rights division (antidiscrim list) |
|
|
Term
| Difficulties to gaining access to the law |
|
Definition
| People may have difficulty accessing the law because they don’t know the law, don’t know how to enforce their rights or don’t know how to obtain legal assistance. - language barriers or not knowing how to obtain 3rd paty legal advice or represenation |
|
|
Term
|
Definition
| VictoriaLegalAidcan provide assistance in family law and some areas of civil law. |
|
|
Term
|
Definition
| Law Aid provides some support for claims involving personal injury, false imprisonment, professional negligence, wills and estates. |
|
|
Term
|
Definition
|
|
