Civil Law and Justice
Class Presentations
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Civil Procedures
A civil action arises when an individual suffers damage as a result of their rights being infringed by the actions or omissions of another party.
Areas of Civil Law
Litigation (engaging in court action over a civil matter)
Torts (Wrong)
Actions for negligence, defamiation, trespass or nuisance.
Remedy is usually damages or compensation.
Contract
A breach of contract occurs when one party has broken the terms of the agreement.
The Plaintiff usually wants financial compensation or an order requiring the defendant to perform or refrain from a certain action.
Litigation (engaging in court action over a civil matter)
Torts (Wrong)
Actions for negligence, defamiation, trespass or nuisance.
Remedy is usually damages or compensation.
Contract
A breach of contract occurs when one party has broken the terms of the agreement.
The Plaintiff usually wants financial compensation or an order requiring the defendant to perform or refrain from a certain action.
Types of Civil Disputes
Civil Law and the Principles of Justice
What is Justice? Former Chief Justice Hon Marylin Warren's Speech 2014
what_is_justice_-_hon_marilyn_warren_speech.pdf | |
File Size: | 174 kb |
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The Civil Procedure Act 2010 (Vic) – aims to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute.
Fairness
•Fair and unbiased hearing •Pre-trial and post-trial processes and procedures aim to achieve fair outcomes. •Impartial adjudicator •Individuals free to initiate legal actions to resolve disputes about their rights. •Standard of proof is balance of probabilities Equality •Civil pre-trial and post-trial processes and procedures aim to provide similar and uniform treatment for all people. •Rules of evidence and procedure ensure consistency and predictability Access The civil justice system provides a range of options for parties to resolve disputes. •In a minor civil claim dispute may be resolved with the assistance of CAV (Consumer Affairs Victoria) or heard and determined by VCAT (Victorian Civil and Administrative Tribunal •In a more complex civil claim dispute may be resolved in court. An individual with a small claim would be unlikely to enforce their rights if they had to go through lengthy, costly court case. |
Key Features of a Civil Case
- Dispute between two individuals
- Balance and burden of proof.
Purpose:
To restore the injured party to their original position by providing a remedy to the dispute.
Deciding to Take Civil Action
Questions to ask:
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Supreme Court of Victoria - Guides
Guide to Starting a Civil Proceeding | |
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Guide to Defending a Civil Claim | |
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Class Actions
When several people have each suffered the same type of damage as a result of an infringement of their rights. It may be possible for a single legal action to be started on behalf of all people affected. Prevents individuals from being discouraged from takin action due to lack of resources, cost barriers or ignorance of legal rights.
Representative must demonstrate on behalf of the group that:
When several people have each suffered the same type of damage as a result of an infringement of their rights. It may be possible for a single legal action to be started on behalf of all people affected. Prevents individuals from being discouraged from takin action due to lack of resources, cost barriers or ignorance of legal rights.
Representative must demonstrate on behalf of the group that:
- the claims arise from the same transaction or series of transactions.
- there is a common question of fact or law.
- it is convenient for the claims to be heard together.
Litigation
Taking legal action in a civil case. This action should only be considered after all other possible forms of dispute resolution have failed.
Letter of Demand
Plaintiffs solicitor may send a letter of demand to the defendant in the hope that the dispute will be resolved without the need for litigation. The letter:
Taking legal action in a civil case. This action should only be considered after all other possible forms of dispute resolution have failed.
Letter of Demand
Plaintiffs solicitor may send a letter of demand to the defendant in the hope that the dispute will be resolved without the need for litigation. The letter:
- informs the defendant that the solicitor is acting on behalf of the plaintiff.
- sets out the nature of the plaintiff's claim and remedy sought.
- states that failure to respond will result in a writ being issued and served on the defendant.
County Court Civil Trial Process
Civil Trial Process | |
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Supreme Court - Pre-Trial Proceedings
Pre-trial proceedings in a civil case begin with the exchange of a series of legal documents.
Writ
Served to notify the defendant of the case. Informs them of the case against them (statement of claim), the particular court in which the matter will be hard and the mode of trial.
A writ may be served within 12 months (can be extended by the Court for a further 12 months).
Generally must be personally served on the defendant. (substitute service - served on defendant's solicitor)
Notice of Appearance
Tells the plaintiff and the court that the defendant intends to defend the claim.
Pleadings
Set out the precise nature of the claim and the remedy sought by the Plaintiff. The reasons for pleadings include:
- defining the issues before going to court
- notifying the other party of the case.
- giving the parties and opportunity to prepare their case for court (reduces court time)
- provides the court with a written record of the relevant issues.Provide for an exchange of information between the plaintiff and the defendant.
- Statement of claim
- Defence
- Reply
- Counter-claim
Includes discovery and inspection of documents and written interrogatories of oral examination. Discovery promotes an out-of-court settlement.
- Discovery and inspection of documents
- Interrogatories
- Discovery by oral examination
All the court to take an active role in the conduct of the proceedings. Matters dealt with at directions hearings include:
- the state of the pleadings.
- any disputes concerning the state of the pleadings, request for details or complaints.
- establishing time frames for the discovery of documents, interrogatories, mediation, filing of court books.
- referral to mediation.
- ordering the parties to provide each other with a list of witnesses and a summary of the evidence of each witness.
- fixing the date for trial or further directions hearing.
Hearings and Procedure in Civil Trials
In a civil trial, the burden of proof rests on the plaintiff.
The standard of proof requires the plaintiff to convince the court 'on balance of probabilities' that their version of the facts is more believable.
Trial by Judge or Trial by Judge and Jury
If either party has opted for a judge and jury, the trial will commence with the empanelling of the jury. Panel will consist of 6 jurors. Each party is permitted to challenge three of the potential jurors from a list of 12, without having to give reason for the challenge. These challenges are called peremptory challenges.
An additional two jurors may be selected in long cases, however only six jurors make the final decision. The jury may also determine the level of damages.
In a civil trial, the burden of proof rests on the plaintiff.
The standard of proof requires the plaintiff to convince the court 'on balance of probabilities' that their version of the facts is more believable.
Trial by Judge or Trial by Judge and Jury
If either party has opted for a judge and jury, the trial will commence with the empanelling of the jury. Panel will consist of 6 jurors. Each party is permitted to challenge three of the potential jurors from a list of 12, without having to give reason for the challenge. These challenges are called peremptory challenges.
An additional two jurors may be selected in long cases, however only six jurors make the final decision. The jury may also determine the level of damages.
Civil Remedies
Some civil actions involve a matter of principle. Actions such as defamation, trespass or nuisance may not actually result in substyantial injury, damage or loss (financial or otherwise) to the plaintiff. However, in most cases, the plaintiff may have suffered considerable hardship due to the civil wrong. A common remedy is an award of damages. In some cases the court may make an order requiring the defendant to do or refrain from doing something. The plaintiff will specify the type of remedy and the amount sought in the statement of claim. It is also possible to obtain equitable remedies, such as an injunction or an order of specific performance.
Damages
The most common remedy for civil action. The court generally order the defendant to pay a sum of money to restore the plaintiff to their original position by providing compensation for the injury or damage suffered. Damages fall into the following categories:
Injunctions
An injunction is an order awarded against the losing party in a civil action that commands or prohibits certain behavior.
Order of Specific Performance
In cases of breach of contract, if the plaintiff wants the defendant to fulfill the contract rather than pay damages.
Restitution
This compels the defendant to return property that belongs to the defendant.
Rescission
In a dispute involving a contract, a breach of a condition may result in the court making an order to rescind or cancel the contract.
Some civil actions involve a matter of principle. Actions such as defamation, trespass or nuisance may not actually result in substyantial injury, damage or loss (financial or otherwise) to the plaintiff. However, in most cases, the plaintiff may have suffered considerable hardship due to the civil wrong. A common remedy is an award of damages. In some cases the court may make an order requiring the defendant to do or refrain from doing something. The plaintiff will specify the type of remedy and the amount sought in the statement of claim. It is also possible to obtain equitable remedies, such as an injunction or an order of specific performance.
Damages
The most common remedy for civil action. The court generally order the defendant to pay a sum of money to restore the plaintiff to their original position by providing compensation for the injury or damage suffered. Damages fall into the following categories:
- Compensatory damages (both specific and general - pain, suffering, loss of enjoyment of life etc)
- Exemplary damages - to set an example to the rest of the community.
- Nominal damages - just to reinforce the legal interest of the plaintiff.
- Contemptuous damages
Injunctions
An injunction is an order awarded against the losing party in a civil action that commands or prohibits certain behavior.
Order of Specific Performance
In cases of breach of contract, if the plaintiff wants the defendant to fulfill the contract rather than pay damages.
Restitution
This compels the defendant to return property that belongs to the defendant.
Rescission
In a dispute involving a contract, a breach of a condition may result in the court making an order to rescind or cancel the contract.
Mediation and Arbitration
The Supreme Court encourages the use of mediation and arbitration to resolve civil disputes and now refers all civil matters to promote out of court settlements and reduce the backlog of civil cases waiting for trial.
At any stage in the proceedings the court may, with or without the parties' consent, order the parties to mediation or arbitration.
Factors that determine if a case can be resolved by mediation:
The Supreme Court encourages the use of mediation and arbitration to resolve civil disputes and now refers all civil matters to promote out of court settlements and reduce the backlog of civil cases waiting for trial.
At any stage in the proceedings the court may, with or without the parties' consent, order the parties to mediation or arbitration.
Factors that determine if a case can be resolved by mediation:
- both parties must be willing and capable of discussion and negotiation.
- The primary intention must be to settle the dispute.
- the parties need to be on an equal standing.
- The parties need to be in equal bargaining positions - each party needs to be aware of the range of options and be in a position to make real choice.
Enforcement of Civil Remedies
The fact that the plaintiff has been successful in a court action and has received a judgement against the defendant does not always ensure payment. If the court makes an award of damages or an order that the defendant does not comply with, the court can enforce it by ordering one of the following:
The fact that the plaintiff has been successful in a court action and has received a judgement against the defendant does not always ensure payment. If the court makes an award of damages or an order that the defendant does not comply with, the court can enforce it by ordering one of the following:
- A warrant of distress (property owned by the defendant be seized and sold)
- A garnishee order (compels to pay)
- An attachment of earnings
- A writ of sequestration (seize or control land or property until debt paid)
- Bankruptcy and Liquidation
- Imprisonment
Legal Costs
In most cases the unsuccessful party will have to bear the responsibility of legal costs for both parties. However sometime the successful party may still have to pay some costs.
In most cases the unsuccessful party will have to bear the responsibility of legal costs for both parties. However sometime the successful party may still have to pay some costs.