Topic 5 Flashcards
What is civil law
Civil law is the law that relates to private disputes between two individuals or groups
Civil law protects individual rights and establishes responsibilities that all members of society have to meet
It is all about rights and responsibilities
Difference between civil and criminal law
Civil:
In a civil case, no-one has committed a crime
However, they are alleged to have infringed on the rights of someone else
In this situation, the police do not get involved – the police are not there to protect all of our rights
So to protect our rights, we might take some type of civil action
Reasons for Civil Law
- To protect our rights
- Put a duty on others not to harm us/infringe upon our rights
- Provide a (solution) if our rights are breached
Who has the burden of proof
obligation/role/onus/job of establishing the case – ie whose job is it to prove something
- in a civil case, it is on the plaintiff
What is the standard of proof
Standard of proof – what level/degree of proof do you need in order to fulfil your burden – ie how much proof do you need
in a civil case, it is the balance of probabilities – plaintiff has to prove their version of the case is more than 50% likely to be true
What is jurisdiction
The power of a court to hear a case, can be determined through geography, laws, cases, certain amounts of money
COURT HEIRACHY
Magistrates court, county court, supreme court, high court
Why are courts arranged in a hierachy
There are 3 reasons why courts are arranged in a hierarchy
- Specialisation/expertise
- Appeals (u can only appeal to a higher court)
Efficiency/ saves time and money
What is precedent
‘Precedent’ means an example to be followed in the future
In legal terms, a precedent is a judgement of a court that establishes a legal principle or point of law
What is the doctrone of precedent (the three elements)
- All inferior (lower down) courts are bound to follow the decisions of superior (higher up) courts
- Courts only have to follow decision made by superior courts in the same hierarchy (decisions of higher courts in other jurisdictions might be persuasive or influential but they are not binding, not compulsory to be followed)
- Cases must involve same material (important) facts
So inferior (lower down) courts need to follow the decisions of superior (higher up) courts in the same hierarchy in cases where the material facts are the same!
Two types of precedent (PERSUASIVE AND BINDING)
Binding – decision made by superior court is binding on all inferior courts in that jurisdiction where the cases involve materially similar facts
So if Court of Appeal makes a decision, all courts in Vic have to follow the principle of that decision in later cases involving the same material facts
Persuasive – could be
May be considered by the court and the court may be influenced by that decision/use it as a guide, but the court is not bound to follow them. Court does not have to follow these principles
What needs to be proved in order for something to be classified as defamation
- Something was published publically
- The person lied DID NOT TELL THE TRUTH
- Whatver it was ruined the reputation of a person
What is ‘your neighbour’ in law
The law imposes a legal obligation on you to keep an eye out for your neighbor – your ‘neighbour’ is anyone who you can reasonable foresee might get injured if you do not take enough care
What 3 things need to be proved for it to be negligence
- That the defendant owed the plaintiff a duty of care
- That the defendant breached that duty of care
- That the breach of the duty of care caused harm or loss to the plaintiff
this must be proved on THE BALANCE OF PROBABILITIES meaning that what the plaintiff is saying is probably more likely then the defendant
