U2 AOS1 - Key Concepts of Civil Law II

Question 1

Burden of proof

Answer 1

• The responsibility of proving the facts of the case
• In civil law, the burden of proof rests on the plaintiff. This means that they must present evidence to establish the elements of the civil wrong

Question 2

Counter claims

Answer 2

• This is a separate claim made by the defendant in response to the plaintiff’s claim, asserting that it is the plaintiff who is actually at fault (e.g. disputed car accident)
• Counterclaims have independent procedural existence (i.e. they are not a defence). If the plaintiffs action is struck out by the court, the defendants counterclaim will live on
• The defendant has the burden of proof in relation to proving the elements of the counterclaim

Question 3

Standard of proof

Answer 3

• The degree to which the case must be proven in court in civil law.
• The plaintiff must prove that the wrongdoing occurred on the balance of probabilities. This means that the plaintiff’s version of events is more likely to have occurred than the defendants (more likely than not)

Question 4

Limitation of actions (expiry date)

Answer 4

• The restriction on bringing a civil law claim after the allowed time
• For almost all civil claims, there is a time within which the aggrieved party can sue the wrongdoer

Question 5

Limitation of actions’ purposes

Answer 5

• Ensure civil cases are resolved in a timely manner
• Ensure reliable evidence is readily available
• Ensure that the defendant does not have a potential case pending for an unlimited amount of time

Question 6

Limitation of actions time period

Answer 6

• Limitation of Actions Act 1958 (Vic) sets out the time limits
  
  • Defamation - one year
  • Under tort law where there is personal injury - three years
  • Under tort law where there is no personal injury - six years
  • Breach of contract - six years
• The court can grant a time extension, depending on the circumstances and nature of the case
• Some civil claims have no time limitation. For example, a plaintiff’s claim for physical or sexual abuse that they suffered as a minor

Question 7

When does the period for the personal injury limitation of actions start?

Answer 7

• This limitation of actions starts from the date when the person knows the injury has occurred. For example, if radiation occurs, but cancer is only identified far later, then the period for the limitation of actions begins when the radiation cancer is diagnosed