unit 2 AOS 2 Flashcards
what is purpose of nuisance law
Focuses on violation of ones right to reasonable convenience and comfort in life
identify the two types of nuisance law
Private nuisance
Public Nuisance
Describe private nuisance
Act or omission which unreasonably interferes with individuals use and enjoyment of own land
describe public nuisance
Act or omission which interferes with use comfort, enjoyment of land of a number of people
What rights are protected under nuisance law
Right to enjoy ones own land
the right to move freely
The right to seek a remedy if rights are infringed
3 Elements of nuisance law
Plaintiff has interest in the land/rights in relation to the land
e.g homeowner and tenant
The interference with the individuals land was unreasonable
e.g noise, dirt, pollution, dust
Plaintiff suffered loss
e,g material loss-property damage or psychological loss
Defenses to nuisance law
Statutory authorisation- law allows for certain acts
e.g police officer, metre reader, postal workers
Consent- plaintiff provided defendant with permission to act in a certain way
Reasonable us of land-use of land not out of the ordinary, not at unreasonable time or day
Identify the types of trespass
Trespass to person-assault-battery-false imprisonment
Trespass to goods
Trespass to property
elements of assault
direct threat-spoken or actions
Knowledge of threat
reasonable fear
Battery elements
Direct contact
intentional act
voluntary act
False imprisonment elements
Total restriction- no reasonable means of escape
intentional
Restraining done by defendant
Trespass to goods elements
Direct interference
Plaintiff in possession of goods
Intentional
principle of justice fairness in relation to civil justice system
the ability to participate in the civil justice system; to be treated impartially; open proceedings
principle of justice equality in relation to civil justice system
treating parties similarly; parties are of same status; if such treatment leads to disadvantage measures put into place
principle of justice access in relation to civil justice system
To allow parties to engage in proceedings; to utilise the civil justice system to resolve disputes; to engage on an informed basis
how does civil justice system address fairness
able to gain legal advice and representation
presence of independent, impartial third party
strict rules of evidence
possible jury
how does civil justice system address equality
independent, impartial third party
each party opportunity to present case
each party can be legally represented
how does civil justice system address access
multiple dispute resolution methods
multiple despite resolution institutions
mediation
independent impartial third party Guides disputing parties
does not offer solutions nor make decisions
used by courts and VCAT
conciliation
independent impartial third party can make suggestions, each disputing party has chance to present case
used in consumer affairs Victoria
Arbitration
independent impartial third party, presides over disputing parties, allows parties to present case, more formal than mediation and conciliation, if no settlement reached third party impose a legally binding settlement
used in MC for claims up to $10k
Judicial determination
independent impartial third party, elevated above parties, strict rules of evidence and procedure. Most formal method, legal rep needed due to complexity
used in MC hearing, CC and SCTD
pros and cons of mediation
pros
parties reach agreement themselves-relationships maintained
cons
stronger party may intimidate weaker party, weaker party may overcompensate
pros and cons of conciliation
pros
likely to abide by outcome, avoid costs and delays, suggestions provided
cons
might be too informal
non legally binding outcome
pros and cons of judicial determination
pros
legally binding outcome
formality-ideal if power imbalance
cons
formality may be intimidating
costs e.g legal rep
tribunals role as a disputing resolution institution and e.g
less formal and cheaper than courts
relatively quick
VCAT at vic level
complaints body role as a disputing resolution institution and e.g
exist to assist those involved in civil disputes revolving possession of goods and services and work of professional or industry
e.g Consumer affairs Victoria
courts role as a disputing resolution institution and e.g
institution of last resort
firstly determines liability then a remedy
judicial officers
e.g is MC
