UNIT 2: AOS 1 Flashcards
The need for Civil Law
Civil law protects the rights of individuals. If individuals rights are infringed they can take the matter to court to ask for compensation as a way of righting the wrong committed against them.
Types of Civil Law
- Contract Law
- Family Law
- Tort Law
Contract Law
Aims to ensure that people who make promises under a contract are obliged to stick to them, or else compensate the other party to the contract if they fail to comply with the contract.
Family Law
Ensures some level of harmony or consistency is provided in family disputes
Tort Law
Relating to negligence and defamation, aims to protect the rights of individuals.
Key Principles of Civil Law
Plaintiff
Defendant
Balance of Probabilities
Liability
Plaintiff
The wronged person bringing the case to court
Defendant
The party alleged to be in the wrong
Remedy
A form of compensation whether it be monetary or not aiming to return the plaintiff to his or her position before the wrong occurred.
Burden of proof
Lies with the plaintiff.
Standard of proof
The balance of probabilities; that is, according to which side of the story is most probably correct.
The distinction between civil and criminal law
Person bringing the case
Criminal: prosecution. Civil: plaintiff
Other party
Criminal: accused. Civil: defendant
Standard of proof
Criminal: beyond a reasonable doubt
Civil: balance of probabilities
Consequences
Criminal: sanctions. Civil: remedies
Pre-trial procedures
Criminal: committal proceedings, bail or remand
Civil: pleadings directions hearings and discovery
Instigate action
Criminal: issue a summons or warrant
Civil: sue
The aim of criminal action is to punish the offender. The aim of civil action is to return the victim to the position they were in before the act took place
The relationship between Civil and Criminal Law
The same behaviours can rise a civil dispute and a criminal case. For example a person who hits another person can be charged with assault but the victim could also sue the offender for assault.
Law Making through the courts
Precedent
Statutory interpretation
Precedent
- Court makes a decision that is the first of its kind.
- It is a statement of law made through the courts and may be followed in similar cases that come before the courts in the future.
- If made in a higher court all lower courts must follow in the same hierarchy.
Ratio decedeni
The reason given for the decision
Obiter Dictum
A statement that is not part of the reason for e decision. A statement made by the way. May influence decisions in the future.
Binding precedent
One that must be followed by all lower courts in the same hierarchy. A precedent is binding if:
- there are similar material facts in the new case
- the precedent was set in a higher court in the same hierarchy as the new case
Persuasive Precedent
Precedents from other countries, states, lower courts and hierarchies are not binding on Victorian courts. The decisions made within any of these courts may influence a courts decision but the court can chose whether to follow it or not
Developing or avoiding earlier precedents
Reversed
Overruled
Distinguished
Disapproved
Reversed
A precedent can be reversed when the SAME CASE is taken to a higher court on appeal.
Overruled
A precedent can be overruled by a higher court in a different case.
Distinguished
If the material facts of a case are sufficiently different from the material facts in a binding precedent, a lower court may not have to follow it.
Disapproved
A court bound by precedent but expresses its disapproval of the precedent. This does not change the precedent, but a higher court, when deciding a later case, may choose to agree with the court that disapproved of the precedent and decide to overrule it.
Statutory Interpretation
Where a judge clarifies or interprets the laws written by parliament.
Torts
A civil wrong. Deals with the rights and obligations that people owe to others and the infringement of these rights and obligations.
The main aim is to return the wronged person to the position he or she was before the wrong occurred.
Tort of Negligence
Negligence means a failure to take reasonable care. A person is obliged to take reasonable care in regard to other people where it is reasonably foreseeable that other people could be harmed by their actions.
Key principles of negligence
- the person who was negligent owed a duty of care to the person injured.
- the duty of care was breached
- the breach of the duty of care caused loss or damage (causation)
- the wronged person has suffered loss or damage.
Duty of care
- the risk was foreseeable
- the risk was significant or not insignificant
- in the same circumstances, a reasonable person in the same position would have taken the precautions to eliminate any risk or harm.
Defences to Negligence
- Contributory negligence
- Assumption of risk
Contributory Negligence
The defendant may try to prove that the plaintiff helped to cause the harmful situation or is partly to blame for the harm done.
Assumption of risk
The voluntary acceptance of the risk of injury. The defendant must prove that the plaintiff was aware of an obvious risk and that he or she voluntarily chose to tame the risk. For example, sportspeople.
Defamation
Aims to protect the character of individuals against attempts to discredit their standing in the eyes of the community. A statement or other published material is defamatory if it lowers the reputation of the plaintiff in the eyes of others.
Key principles of Defamation
- statement is defamatory
- the defamatory statement refers to the plaintiff
- the statement has been published (communicated to people other than the person it refers to) by the defendant.
Defences to Defamation
- Justification
- contextual truth
- absolute privilege
- publication of public documents
- fair report of proceedings of public concern
- qualified privilege
- honest opinion
- innocent dissemination
- triviality
Justification
Applies when a defamatory statement is substantially true.
Contextual truth
When a number of defamatory statements are made within the same context and the plaintiff objects to one statement but not all.
Absolute privilege
Where he or she can prove that the defamatory material was published in relation to proceedings of parliament, parliamentary bodies, courts, tribunals or communication between husband and wife.
Publication of public documents
To prove that the published material was a fair copy, summary or extract of a public document, but only if the material was published in the public interest or for educational purposes.
Fair report of proceedings of public concern
The argument that the material was no more than a fair report of proceedings published for the information of the public or for educational purposes.
Qualified Privilege
Where the defendant:
- believes the recipient of the defamatory information has a moral or legal interest in receiving the information.
- acts without malice or spite
- acts reasonably in the circumstances
Honest opinion
The claim that the defamatory material is an expression of his or her honest opinion rather than a statement of fact.
Innocent dissemination
Protects people who may unknowingly distribute defamatory material, such as printing companies, Internet or email providers etc.
Triviality
Where the publisher can show that the plaintiff is unlikely to be harmed by the publication of the defamatory material.
Judge made law
Decisions made by judges that form part of the law.
Tort of Nuisance
Refers to unreasonable annoyance or interference with a persons use or enjoyment of land.
Public nuisance
Generally a civil wrong but can be a crime in some cases. It is an act or omission that endangers the comfort, health, lives, property or safety of a class of people.
Private nuisance.
A civil wrong, the unreasonable, unwarranted or unlawful use of ones property in a manner that substantially interferes with the enjoyment or use of another individuals property.
Elements of nuisance
- the act or omission created a substantial inconvenience
- the act or omission was unreasonable for the plaintiff to bear
- there was actual loss or harm caused.
Defences to nuisance
- the act or omission did not cause inconvenience
- the act or omission was not unreasonable
- there was no actual loss or damage
Tort of Trespass
Trespass to Goods.
Trespass to Land
Trespass to Person
Trespass to goods
The direct and voluntary interference of goods in the possession of another, regardless of whether damage is caused to those goods
Civil Law
Civil Law is the dealing with disputes between two individuals or groups where an individual’s or groups rights have been infringed.
Defences to Trespass to Goods
Consent- the person agreed to having their goods used or removed
Accident- where a person takes property with the genuine belief that it was theirs
Contractual rights over property- the person has the right to remove or sell the goods under contract
Trespass to Land
The direct interference, without lawful justification, with another persons possession of land.
Defences to Trespass to Land
Consent
Necessity- building on fire
Abatement of nuisance- to remedy a nuisance such as entering land to turn off running water tap which is causing flooding
Implied licence- entering property to read a gas meter
Trespass to Person
Three types which are all actionable, that is, the damage does not have to be proved. These are assault, battery and false imprisonment
Assault
Does not involve bodily force or contact. It is an act which without lawful justification, creates in a persons mind a reasonable fear that he/she is about to suffer bodily force or contact To prove there must be Direct threat Reasonable fear Knowledge of threat
Defences to Assault
D did not pose threat to P
P was not in fear of D
P has no knowledge of the threat
Battery
The unlawful, direct application of force to another person. An act will not be battery unless its effect is immediately felt by the person attacked. To prove there must be Direct contact Intention Voluntary act
Defences to Battery
No direct contact
No intention to contact
Action was involuntary
Self Defence
False Imprisonment
The unlawful imprisonment and it is committed when person are intentionally, directly and totally prevented from going where they wish To prive there must be Total constraint The D confined the person Intention
Defences to False Imprisonment
Not total constraint
Act not done directly by D
Unintentional
