Topic 5 Flashcards
What is civil law?
concerned with cases in which there is a dispute between private individuals
- a corporation or company is considered to be an individual
Why does the court hear civil cases?
To restore and preserve the rights of individuals and to settle the dispute.
Name of the parties in Criminal Trial
The prosecution and the accused
Name of the parties in Civil Trial
The plaintiff and the defendant
What is criminal law?
is concerned with cases in which a person has committed an offence against the well-being of the community such as
- The state: terrorism or sabotage
- A person: murder or assault
- Property: theft or damage
Difference between criminal and civil?
In criminal law, someone is alleged to have broken the law, whereas in civil law, they are alleged to have infringed on the rights of someone else.
Purpose for Civil Law
- To protect your rights eg. right to safety
- Impose a duty on others to not do anything to cause harm eg. drive recklessly
3.
Standard Of Proof - Criminal
Beyond Reasonable Doubt
Standard Of Proof - Civil
On the balance of probabilities, they plaintiff has to prove their version of the case is more than 50% true.
Who has the burden of proof?
Criminal - Prosecution
Civil - Plaintiff
Possible Findings
Criminal - Guilty, not guilty, no decision (hung-jury)
Civil - Defendant is liable or not liable
Possible Outcomes - Criminal
Sanctions such as fines, imprisonments, or CCO’s
Possible Awards when found liable - Civil
Compensation, Injunctions (a court order that someone must do, do not or stop doing something)
List the Court Heirachy
- High Court of Australia
- Supreme Court (Court of Appeal)
- Supreme Court (Trial Division)
- County Court
- Magistrates’ Court
Define Specialisation
Refers to developing courts and judges with expertise in specific areas of law, in criminal trials. These specialised courts help improve the quality and efficiency of justice by having experts handle cases in their areas of expertise.
Magistrates’ Court - Original Jurisdiction
- Summary Offences
- Indictable Offences heard summarily
- Committal Proceedings
- No appellate Jurisdiction
County Court - Original Jurisdiction
- Indictable Offences except treason, murder, attempted murder.
- Hears Appellate Jurisdiction from the Magistrates’ Court on a conviction or sentence
Supreme Court (Trial Division) - Original Jurisdiction
- Serious Indictable offences
- Hears Appellate jurisdiction from the magistrates’ court on a point of law
Supreme Court (Court of Appeal) - Original Jurisdiction
- No original Jurisdiction
- All appeals from the County Court or the Supreme Court
What is a precedent?
A judgement of a court that established a legal principle or point of law
What is administrative convenience?
refers to the practice of organising claims by their financial value rather than the specific nature of the case. This approach is commonly used in civil law to streamline the handling of cases, ensuring that they are processed more efficiently and effectively
Define Original Civil Jurisdiction
The types of non-criminal cases that a court can hear and decide first, without those cases being heard in another court first
Examples of Civil Cases
- Defamation: protect your reputation
- Negligence: protect yourself
- Nuisance: rights of a person
What is the doctrine of precedent?
a legal principle that requires judges to follow the decisions established in previous similar cases by higher courts. This ensures consistency and predictability in the application of the law.
What is a binding precedent?
A decision made by a superior court is ‘binding’ on all inferior courts in that jurisdiction where the cases involve materially similar facts.
What is persuasive precedent?
When a lower court or a court at the same level sets a precedent, it becomes a persuasive authority for equal or higher courts. This precedent only applies if the important facts of the case are quite similar
Definition of Negligence
a legal concept that arises when an individual or group fails to fulfil their duty of care to another, resulting in harm.
When does ‘duty of care’ exist?
When a person or organisation is responsible for the safety and well-being of another person or group. If this duty is breached, it is considered negligence.
List elements of negligence
- The person/group had a duty of care to another
- That duty of care has been breached
- Causation - the plaintiff needs to prove that the harm they received was a result of the breach of duty of care
- Injury, loss, damage - One or more of these elements need to be satisfied as a result on the breach
2 defences to negligence
- Contributory negligence - the argument that the plaintiff contributed to the negligence
- Assumption of risk - the argument that the plaintiff was aware of the risk before the accident, but still chose to take the risk.
What is defamation?
a legal concept that aims to protect individuals from false statements that can harm their reputations. It balances the principle of freedom of expression with the need to safeguard one’s character.
Reasonably foresee
A person/group is obliged to reasonably foresee any circumstances where the person/group they are looking after is being cared for.
Elements of defamation
- The statement is defamatory
- The statement is untrue
- The statement refers to the plaintiff
- The statement has been published by the defendant
When is graffiti illegal?
- It is drawn on public property
- It is drawn (without consent) on private property
What are PSO’s?
They are government initiated Protective Service Officers that are assigned around Victoria to monitor and patrol peak hour train services
Do the PSO’s have the same powers as police?
No, they don’t but they can ask for your name and address if:
1. You have broken the law
2. If they believe you are about to break the law
What are ticket inspectors?
Ticket Inspectors are assigned to trains, trams, and buses around Melbourne to check if the users are carrying a proper ticket.
What do inspectors have the right to do?
- Check your ticket and concession entitlement
- Ask to take your ticket for evidence
- Ask for name, address and ID
- Arrest you until police arrive
