Topic 5

Question 1

What are the parties called in a civil case?

Answer 1

The ‘plaintiff’ and the ‘defendant’. The plaintiff is the one who has the burden of proof (the one that has been wronged).

Question 2

What are the parties called in a criminal case?

Answer 2

The ‘prosecution’ and the ‘accused’. The prosecution is the one who has the burden of proof.

Question 3

Criminal vs Civil in offences

Answer 3

A criminal offence is a crime committed against the community, whereas a civil case is a breach of civil rights and is a dispute between private individuals.

Question 4

3 Different civil breaches

Answer 4

Defamation, Trespassing, Negligence

Question 5

What is defamation?

Answer 5

Is the act of communicating false statements about a person that injure the reputation of that person. Suing someone for defamation is to protect your reputation.

Question 6

What is Negligence?

Answer 6

Is a breach of a duty of care which results in damage. Suing someone for negligence is to protect yourself.

Question 7

What is trespassing?

Answer 7

Is entry to a person’s land or property without permission. Suing someone for trespassing is to protect your property.

Question 8

What is the standard of proof for both?

Answer 8

In criminal, the prosecution needs to prove the accused is guilty ‘beyond reasonable doubt’.

In civil, the plaintiff needs to show that the defendant is ‘liable’ on the ‘balance of probabilities.’

Question 9

What are the determinations?

Answer 9

In criminal, the aim to to find out if the accused is guilty.

In civil, the aim is to find out if the defendant is liable.

Question 10

Remedy vs Sanction

Answer 10

If the plaintiff is successful, they are awarded damages. In civil law, the ‘remedy’ is either ‘damages’ or ‘injunctions.’

A ‘remedy’ is the civil law equivalent of a ‘sanction.’
Sanctions in criminal law: fines, imprisonment, CCO
Remedies in civil law: damages and injunctions

Question 11

Jury?

Answer 11

In a criminal case that is not in the magistrates court (so Supreme or County), a jury of 12 is needed.

In civil cases not in magistrates court, either party can request a jury of 6, however it is very uncommon.

Question 12

Court Hierarchy in Vic

Answer 12

High Court of Australia

Supreme Court of Victoria (Court of Appeal)

Supreme Court of Victoria (Trial Division)

County Court of Victoria

Magistrates Court of Victoria

Victorian Civil and Administrative Tribunal

Children’s Court, Coroners Court, Koori Court

Question 13

What are the 2 reasons for hierarchy?

Answer 13

One is for ‘specialisation’ (criminal) or ‘administrative convenience’ (civil).

The other is for Appeals.

Question 14

What is specialisation?

Answer 14

Each court looks after a particular area of crime, such as the magistrates court which is the only court that hears ‘summary offences’. this is also called jurisdiction. Specialisation in dependant on how severe the crime committed is.

Question 15

What is administrative convenience?

Answer 15

In Civil Law almost every claim is financial.

For this reason, each court specialises in the type of financial claim involved, it is known as Administrative Convenience because it is only seperate by financial amount, not category. Administrative convenience is dependant on how much money is being sought for damages.

eg. If I am seeking damages of $85,000 this would be heard in the Magistrates court as it hears claims up to $100,000. This again is known as jurisdiction.

Question 16

Appeals

Answer 16

If someone wishes to appeal their sentence, they must go to the court that is one step higher in the hierarchy. eg. all appeals from the Magistrates court are heard in the County court.

Question 17

Why do we have appeals?

Answer 17

Because it upholds the principle of justice.

Question 18

Can anyone appeal?

Answer 18

No, you must have a legitimate legal reasoning to appeal.

Question 19

Are appeals expensive?

Answer 19

Yes, and they get more expensive the higher in the hierarchy you go.

Question 20

When is a precedent set?

Answer 20

When law by the court is created (common law) a precedent is set.

Question 21

Doctrine of Precedence?

Answer 21

When a precedent is set in court, it becomes either binding or persuasive.

Question 22

Binding vs Persuasive

Answer 22

Binding: A law is binding on all courts below the one the precedent is set in. The precedence only applies though,

Persuasive: It is persuasive in equal or higher courts.

Question 23

Example of Precedence

Answer 23

Deing vs Tarola: concerned whether a studded belt was counted as a ‘regulated weapon’. It was considered not and common law was made, this now being a precedent for any court lower in the Supreme Court.

Donoghue vs Stevenson: A snail was in an opaque ginger beer bottle, it was drunk and the person who bought the drink got very sick. She could prove that it was the drink that got her sick and sued. This is where civil cases started.

Question 24

Negligence

Answer 24

Relates to the principle of the duty of care.
In a number of situations, a person or group will owe a duty of care to another person or group. eg when you go on a school camp, the school has a ‘duty of care’ to make sure you are safe and comfortable.

Question 25

Relationship between negligence and duty of care

Answer 25

If an individual/group has breached their duty of care to someone else, the legal term for this is negligence.

Question 26

Elements of Negligence

Answer 26

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 of the breach.

Question 26

Impacts on Negligence

Answer 26

Impact on the Plaintiff:
- Loss of life
- Permanent physical incapacity
- Serious physical injury
- Emotional impact of the breach
- Loss of wages and livelihood
- Unemployment
- Effect on mental health

Impact on the Defendant
- Loss of business
- Public humiliation
- Physical Injury
- Costs
- Need to sell assets

Question 27

Defamation

Answer 27

Defamation seeks to protect
individuals against material that
can harm their reputation.

Question 28

Elements of Defamation

Answer 28

The statement is defamatory.

The statement is untrue.

The statement refers to the plaintiff.

The statement has been published by the defendant.

Question 29

Defences to defamation

Answer 29

Justification – the defendant feels their
comments were justified.

Contextual truth – If the context of what the defendant was saying was true, but they include one irrelevant false statement.

Absolute privilege – Rare cases where the defendant is immune from being sued (an example being if it was a parliamentary document).

Publication of public documents - see above.

Fair report of proceedings of public concern – see textbook.