Recent civil cases Flashcards
Defamation
- A type of tort which involves the action of damaging a person’s personal or professional reputation in the community through the communication of false and untrue statements or information.
jury
- An independent group of people chosen at random to decide on the evidence in a legal case and reach a decision (i.e. verdict)
damages
- the usual remedy in a civil claim, being an amount of money the court (or tribunal) orders one party to pay to another
appeal
- an application to have a higher court review a ruling (i.e. decision) made by a lower court
Writ
usually the first document filed by the plaintiff to start a civil proceeding in court, which explains the action being taken against the defendant and the place and mode of trial
statement of claim
- A court document, filed by the plaintiff, which sets out the nature of the claim and the remedy or relief sought
injunction
- A remedy in the form of a court order to do something or not to do something. An injunction is designed to prevent a person doing harm (or further harm), or to rectify some wrong
cross-examination
- The questioning of a witness called by the other side in a legal case
mediation
- A method of dispute resolution, using an independent third party (the mediator) to help the disputing parties reach a resolution
conciliation
- A method of dispute resolution which
uses an independent third party (i.e. the conciliator) to help the disputing parties reach a resolution
arbitration
- A method of dispute resolution in which an independent person (known as an arbitrator) is appointed to listen to both sides of a dispute and make a decision that is legally binding on the parties. The decision is known as an arbitral award
directions
- instructions given by the court to the parties about time limits and the way a proceeding is to be conducted
orders
- a way in which a court or tribunal controls
the progress of a case by making formal, written requirements and giving directions so that cases are resolved efficiently
discovery
- a pre-trial procedure which requires the parties to list all the documents they have that are relevant to the case. Copies of the documents are normally provided to the other party
How can equality be achived?
- The judge was required to act impartially and without bias,
- The plaintiff and the defendants both had experienced legal representation.
- The jury members would have been required to have had no connection or relationship with the
- parties, and would have been required to decide on the facts and not on any other matter.
- Both parties had the right to appeal.
How can Access be achived?
• It is likely that the use of mediation will increase access to justice, as it provides the parties with an
alternative method of resolving the dispute outside trial.
• Costs may be a factor in determining whether access to justice can be achieved.
• Wilson gave evidence in Melbourne during trial. Although the Court is actively using technology including video links in cases, witnesses still have to attend trial in person to give evidence if required to do so.
• The trial was conducted by way of an open hearing.
• The rulings that were handed down during the trial by Justice Dixon have been made available to the parties and to the public, thus ensuring access to the reasons that the Court made its decision along the way.
• The parties have a right to appeal, ensuring access to a higher court to review the lower court’s decision if necessary.
How can Fairness be achived?
- The directions and orders given by the Supreme Court would have allowed each party an opportunity to present their case and rebut the other side’s case. Those emails would have been seen by Wilson and her legal team before trial during the process of discovery. The discovery process thus ensured that relevant documents such as these were not withheld from the plaintiff.
- The rules of procedure allowed the parties to present their case. There are general rules of procedure about which party presents their case first at trial, though the Court does have the power to decide on the rules in each particular case.
- The jury was the decider of facts. The jury would have been required to consider the evidence and the law to come to a verdict
- The laws relating to defamation were properly applied. This includes the fact that the judge decided on the amount of damages.
- There was a timely resolution of the case. The claim was issued in May 2016, and a final judgment was handed down in September 2017. This may be seen as timely, having regard to the complexity and size of the dispute.
- Both parties had adequate legal representation. This assisted in ensuring a fair trial.
- Justice Dixon handed down a number of rulings during trial.
To establish a claim for defamation, the plaintiff needed to prove that:
the statements made in the articles published about her were defamatory (i.e. defamed her) • the articles contained false statements about her which injured her reputation
• the statements referred directly to her
• the statements had been published (communicated to other people) by the defendants.
Defermqation defences
- The justification defence
- The triviality defence
The justification defence
The justification defence can be used where the defendants claim that a statement that is made is
substantially true.
The triviality defence
The triviality defence can be used where the defendants believe that the circumstances of the
publication were such that the plaintiff was unlikely to sustain any harm.
duty of care
duty of care in relation to negligence, the legal obligation to be cautious and careful, keeping other people in mind when doing anything that could harm them
negligence
a type of tort which involves a breach of a duty of care, causing loss or harm
nuisance
a type of tort which involves interference with a person’s right to use and enjoy property
