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legal studies > civil law > Flashcards

civil law Flashcards

1
Q

What is the aim of civil law?

A

To protect the INDIVIDUAL rights of people

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2
Q

What are some examples of types of civil law?

A

Torts, Contract law, family law, company law

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3
Q

Aims of civil vs criminal law

A

Civil - Protection of individual rights
Criminal - Protection of community as a whole

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4
Q

Parties in civil vs criminal law

A

Civil - Plaintiff (parties whose rights have been infringed) and Defendant (party being sued)
Criminal - Prosecution (represents the crown) and Defense (represents the accused on trial)

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5
Q

Burden of proof in civil vs criminal

A

Civil - Plaintiff to prove the wrongdoing of the defendant
Criminal - Prosecution to prove the wrongdoing of the accused

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6
Q

Standard of proof in civil vs criminal

A

Civil - on the balance of probabilities
Criminal - beyond reasonable doubt

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7
Q

Outcomes in civil vs criminal

A

Civil - remedies
Criminal - sanctions

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8
Q

Juries in civil vs criminal

A

Civil - Optional and must be on agreement of both parties > made up of 6 jurors
Criminal - Compulsory and made up of 12 jurors

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9
Q

What are the methods of dispute resolution?

A

Negotiation
Letter of Demand
Mediation
Conciliation
Arbitration
Litigation

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10
Q

What is Negotiation?

A

It is the first step in resolving most disputes. It involves the people in the dispute discussing the problem, either orally or through written documents in an effort to come to an agreement on how to settle it.

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11
Q

What is a Letter Of Demand?

A

It is something that can be sent by a solicitor to add gravity to the claim and communicate the seriousness of the complaint to the other party. The purpose could be to; inform the recipient that there is a serious complaint against them, describe the nature of the complaint, outline the compensation that is sought, give the recipient a chance to settle it etc

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12
Q

What is Mediation?

A

In Mediation, the parties meet with an independent third party who acts as a mediator. The mediator is there to facilitate discussion and they must NOT make suggestions on resolutions to the parties.

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13
Q

What is Conciliation?

A

In Conciliation, the parties meet with an independent third party who acts as an conciliator. They MAY make suggestions on how to resolve the disputes but the parties must come to the outcome themselves.

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14
Q

Is the outcome in Mediation and Conciliation legally binding?

A

It may or may not be legally binding. The agreement must be put into a legally binding contract for it to be legally binding.

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15
Q

What is Arbitration?

A

It is where the parties argue their case to an independent arbitrator. The arbitrator makes a decision on how to best resolve the issue.

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16
Q

Is the decision from arbitration legally binding?

A

Yes

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17
Q

What is Litigation?

A

It is Judicial Determination. It happens when a dispute is not able to be solved through alternate means so the party whose rights have been infringed can seek remedy via the court system. In many instances, the courts will not hear a case unless parties have first tried to resolve case in other method.

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18
Q

What does original jurisdiction mean?

A

Hearing the case for the first time

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19
Q

What is the original jurisdiction of the Magistrate’s Court?

A

-Minor civil claims up to $100.000
-If the claim is less than $10,000 it’s referred to arbitration

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20
Q

What does Appellate Jurisdiction mean?

A

Hearing the case on appeal

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21
Q

What is the appellate jurisdiction of the magistrate’s court?

A

No appellate jurisdiction

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22
Q

What is the original jurisdiction of the county court?

A

Unlimited

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23
Q

What is the appellate jurisdiction of the country court?

A

No appellate jurisdiction

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24
Q

What is the original jurisdiction of the supreme court - trial division?

A

Unlimited

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25
Q

What is the appellate jurisdiction of the supreme court - trial division?

A

Appeals from Magistrates Court on questions of the law

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26
Q

What is the original jurisdiction of the supreme court - court of appeal?

A

no original jurisdiction

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27
Q

What is the appellate jurisdiction of the supreme court - court of appeal?

A

Appeals from country and supreme court (trial division) on questions of fact, law or amount of damages

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28
Q

What does Breach mean?

A

A breach is a violation of law, promise or obligation. It can mean that a person has failed in their responsibilities under tort law or contravened a term in a contract.

29
Q

What does Causation mean in civil law?

A

It means there is a direct link between the breach and the loss. The plaintiff must prove that it was the action or inaction of the defendant that led to the loss or harm they have suffered

30
Q

What are some examples of loss?

A

-Personal injury; physical harm to a person’s body
-Economic loss
-Reputation loss (defamation)
-Loss of income
-Death
-Pain and Suffering

31
Q

What is the name of the act which states how long a Plaintiff has to file a claim?

A

Limitations of Actions Act 1958 (Vic)

32
Q

What does Limitations of Actions mean?

A

The time limit in which the Plaintiff can initiate civil action

33
Q

What is the time allowed for a claim to be filed for personal injury?

A

3 years

34
Q

What is the time allowed for a claim to be filed for no personal injury?

A

6 years

35
Q

What does Non-Statutory Limitations mean?

A

Even if the Plaintiff is in the statutory period, the may be unable to commence a claim due to;
-The Plaintiff not having the fund to pursue the claim
-The Defendant may have insufficient funds to pay any damages awarded to the Plaintiff

36
Q

Who has the Burden of Proof in Civil Law?

A

The Plaintiff

37
Q

What is the Standard of Proof in Civil Law?

A

On the balance of probabilities = more likely than not

38
Q

What does jurisdiction mean?

A

Power

39
Q

What is a tort?

A

A civil wrong.

40
Q

What is legislation?

A

Statutes or Acts of Parliament

41
Q

What is judge made law /precedent?

A

Common law or Case law

42
Q

How is tort law developed?

A

A combination of legislation and judge made law

43
Q

What are some legislation that judges have to apply in the area of torts in Victoria?

A

-Wrongs Act 1958 (Vic) = for defamation
-Defamation Act 2005 (Vic)

44
Q

What is the tort of negligence?

A

It aims to ensure that a party who owes a duty of care to another party does not breach that duty, or is held accountable if they do.

45
Q

What are the three elements of negligence?

A
  1. The negligent party must have owed a duty of care
  2. They must have somehow breaches their duty
  3. The breach of duty of care caused the plaintiff to suffer loss or harm
46
Q

What are some established duty of care relationships?

A

-Land owner and tenant
-Occupier of land and visitor to land
-Teacher and their student
-Doctor and their patient
-Employer and their employee
-A road user and another road user

47
Q

What is the neighbour principle?

A

One must take reasonable care to avoid acts or omissions that could reasonably be foreseen as likely to injure one’s neighbor.

48
Q

What famous case helped establish negligence?

A

Donoghue vs Stevenson

49
Q

What does precedent mean?

A

A legal principle that has been established by judges when ruling over a case

50
Q

When does binding and persuasive precedent apply?

A

-Binding = established by higher court, established in same court hierarchy, similar material facts
-Persuasive = established by lower or same level court, established in a different court hierarchy, material facts aren’t similar

51
Q

What is the negligence case in Australia courts that set precedence?

A

Grant vs Australian Knitting Mills

52
Q

What must be included in the first step when answering a negligence question?

A

Duty of care; Per the neighbor principle established in Donoghue vs Stevenson, it is reasonably foreseeable that the actions or omissions of the ……. directly imact a ….. This is established under the law.

53
Q

What must be included in the second step when answering a negligence question?

A

Breach; It is reasonably foreseeable that …. could cause significant harm as ….. Therefore, a reasonable person would have …..

54
Q

What must be included in the third step when answering a negligence question?

A

Causation; But, for test

55
Q

What are are the three defenses to the tort of negligence?

A
  1. Lack of elements
  2. Voluntary assumption of risk
  3. Contributory negligence
56
Q

What does lack of elements mean in relation to being a full defense for negligence?

A

This defense is used when the defendant shows that not all elements of negligence are present. e.g
1. No duty of care was owed = no ‘neighbor relationship’
2. The duty of care X breached = the defendant acted as any reasonable person would have
3. No loss or harm happened = the plaintiff suffered no loss or harm (even if there was a breach)

57
Q

What does Voluntary Assumption of Risk mean?

A

This occurs when the defendant can demonstrate that the plaintiff;
-was fully aware of the risk
-fully appreciated the nature and extent
-freely and willingly accepted the risl

58
Q

What does Contributory negligence mean?

A

This occurs when the defendant can show that the actions of the plaintiff contributed to their injury/loss.

59
Q

What is the tort of defamation?

A

It aims to protect the reputation of individuals against the unjustified attempts to discredit their character in the eyes of others in the community.

60
Q

What does it mean for a statement to be defamatory?

A

It may be a blatant lie or an imputation, a false representation. It may lower someone’s reputation or their standing in the community.

60
Q

What are the three elements of defamation?

A
  1. The statement was defamatory
  2. The statement identified the plaintiff
  3. The defamatory statement was published/communicated to a third party
61
Q

What does it mean for the statement to have identified the plaintiff?

A

May be direct or may be that a reasonable person would read the statement and conclude that it was about the plaintiff.

62
Q

What does publication/communication to a third party mean?

A

It means it is shared to other people either orally, through writing, social media, drawing etc. It must be communicated to someone other than the aggrieved and the individual who make the defamatory statements is the publisher.

63
Q

What are the defenses to defamation?

A
  1. Lack of elements
  2. Justification
  3. Honest opinion
  4. Contextual truth
64
Q

What does lack of elements mean in relation to defamation?

A

If the plaintiff cannot establish all the elements of defamation are present, then defamation has not occurred.

65
Q

What does justification mean in relation to defamation?

A

It will not be considered defamatory is there was a good reason for publishing it. This could be for example if it was true.

66
Q

What does honest opinion mean in relation to defamation?

A

The defendant must be able to establish;
- the statement communicated was their opinion and not written as fact
- the opinion was honestly held
- the opinion was based up proper material
- the opinion was a matter of public interest (e.g health, safety, entertainment)

67
Q

What does contextual truth mean in relation to defamation?

A

It occurs when the defamatory statement is substantially true.

legal studies (4 decks)

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