Legal U2 All Together

Purpose of civil law

Provide a legal solution to restore the plaintiffs position before the breach

Key components of civil law

Breach, causation, loss, limitation of actions, burden of proof, standard of proof

Breach

Going against what was not agreed eg. broken contract

Causation

One action/event that leads to another one to happen (the harm suffered was as a direct result of the defendant's actions)

Direct causation

Occurs when the harm suffered is directly linked to the defendant's actions without any intervening factors

Indirect causation

Occurs when the harm suffered is caused by a series of events that are not directly linked to the defendant's actions

Injury, loss & damage

Harm or negative effects caused to someone or something

Limitations of action

Limited time to sue

Burden of proof

They have the responsibility of showing the evidence

Standard of proof

Level of certainty required to prove a claim(umbrella term)

Balance of probabilities

Plaintiff must prove that their claims are more likely true than the defendants, more than 50% sure

Plaintiff

The party that initiates the civil dispute (been harmed)

Class action

A large amount of plaintiffs join a case to sue someone

Defendant

The party being accused or sued in a legal proceeding (who did the harming)

Tort

Harmful/wrongful act you can sue over

Elements

What you need to know to prove the case

Defences

Lawful excuse

Negligence

Breaching duty of care causing harm/loss

Elements of of negligence

Breach duty of care, duty of care, injury loss or damage, causation

Defences for negligence

Contributory negligence, assumption of risk

6 years

Limitation of action negligence

Exceptions to duty of care

Waiver, good samaritan, donating food & volunteering

Nuisance

Is the interference with someone’s ability to enjoy their own space or to enjoy a public space

Public nuisance

Action that harms everyones rights

Private nuisance

Action that affects your personal rights

Elements of nuisance

Rights to their property/public space, interference with plaintiffs use of land, suffered loss injury or damage

Defences for nuisance

Statutory authorisation, consent, reasonable use

6 years

Limitation of actions for nuisance

Defamation

To ruin someone’s reputation through stating untrue information

Elements of defamation

The statement was untrue/harmful, referred to the plaintiff, was published by the defendant

Defences for defamation

Honest opinion, truth

1 year

Limitation of actions defamation

Discrimination

Being treated unfairly based off an attribute

Direct discrimination

Obvious unfair treatment based on a specific attribute or characteristic

Indirect discrimination

Hidden unfair treatment based on a ‘neutral’ policy or practice that disproportionately affects a certain group

Elements of discrimination

Based on certain attribute, took place, caused harm/unfair treatment

Defences for discrimination

Inherent requirements, unjustifiable hardship etc

12 months

Limitation of actions for discrimination

Impact on plaintiffs

Refers to the effects or consequences experienced by individuals who bring discrimination claims. This can include emotional distress, economic loss, and social stigma.

Impacts on defendant

Refers to the consequences faced by individuals or organizations accused of discrimination, which may include legal costs, reputational damage, and potential changes to policies or practices.

Damages/compensation

The amount of money you get

Special damages

Damages that can be calculated exactly eg. doctors bill

General damages

Pays for the loss thats harder to measure eg. anxiety

Aggravated damages

Pays for humiliation towards the plaintiff

Mandatory injunction

Punishment in which you have to do

Restrictive injunction

A punishment that stops you from doing something

Compensation

Remedy

An order from the court

Injunction

Human rights

Basic freedom and protections that belong to every person

How rights are protected

Rights are protected by systems, common law, statue law, international constitution & Australian Constitution

Getting rights

• You can get rights from protests & precedents

Australian Constitution

• Written 1901 

• Written set of rules of how Australia is run 

• Eg. Freedom of religion

Express rights

Clearly stated in the Constitution which can only be changed by a referendum (yes or no) through both houses of parliament and approved by majority voters eg. freedom of religion, right to vote

Implied rights 

Rights not explicitly stated in the Constitution but you can guess you already have those rights even if not written down, recognized by the High Court of Australia

International treaty

Formal agreement between 2 or more countries

• All UN member countries meet and agree on an issue 

• Negotiate and sign it (if your country chooses to)

United Nations

• Promote human rights globally

• Australia sometimes signs international treaties

• A member of the country is represented in the UN 

• Based in New York City 

Universal Declaration of Human Rights 

Document made by the United Nations which lists all the basic rights

• Created after WW2

• Eg. Right to education, freedom to speech, freedom of movement, freedom from torture

Eddie Mabo

• Australian activist

• Aboriginal & Torres Strait Islanders have rights to their traditional land which lead to native title

• Mabo vs Qld (Common law)

Native title

The right to traditional lands for Indigenous Australians

• Statue law

Groups campaigning for human rights

Aboriginal activists, women’s rights, lgbtqia+

Statue law

Creates acts of parliament, this makes it a law  eg. Disability Act 2007

Statutory right 

• Given to us by parliament 

• Always contains ‘Act” 

• Eg. Disability Act 2007

Common law

Courts develop rules through decision eg. Mabo vs Qld

• Parliament can codify and abrogate common law rights

Ratify

Related to International treaty so if Australia agrees then they have to make it a local law

Codify

to write down common law rights (common law made into statue law)

Abrogate

to remove common law rights

Parliament

Where laws are made & changed

• Federal Parliament (Canberra) - Makes laws for all of AUS

• State & Territory Parliament - Makes laws for their own areas

• Each Parliament has House of Representatives (Lower House), House of Senate (Upper House), King (represented by Governor or Governor General

Counter claim

Defendant accuses the plaintiff of a wrong doing in the same case

Discovery of documents

Process where both sides must share important papers

Principles of justice

Fairness, Equality, Access (FEA)

Fairness

Having fair legal processes and a fair hearing (both sides can present their case without disadvantage)

Equality

Everyone is treated the same before the law, regardless of personal characteristics

Access

People can understand and use the legal system to resolve their disputes

Alternative dispute resolution

(ADR) Mediation, Conciliation, Arbitration (MCA) - Another way to solve disputes without going to court

Mediation

An alternative dispute resolution that involves a third party to facilitate, the initial parties reach a conclusion themselves

Conciliation

An alternative dispute resolution that involves a third party to give advice (eg. suggesting possible solutions), the initial parties reach a conclusion themselves

Arbitration

An alternative dispute resolution that involves a third party to listen to both sides and make the legal binding decision

Benefits of ADR

Cheaper, faster, less formal, private, doesn’t need a lawyer

Limitation of ADR

Mediation & Conciliation potential power imbalance, Arbitration is legally binding so can’t appeal the decision

Tribunals

Specialised legal organisation that helps resolve certain types of disputes
Benefits - Cheap, fast, less formal, specialised, accessible
Limitation - Can’t hear every dispute eg. class action, cost can add up if you need a lawyer

Examples of tribunals

Victorian Civil & Administrative Tribunal (VCAT), AFL tribunal, Fair work commission

Ombudsman

An organisation that resolves disputes & investigates complaints about decisions made by the government bodies
Benefits - Cheap, fast, accessible, fair
Limitations - Cannot force the organisations to do what they suggest (no binding power), can only investigate certain government or services

Examples of ombudsman

Victorian Ombudsman, Telecommunications Industry Ombudsman, Public Transport Ombudsman

Difference between tribunal & ombudsman

Tribunals: Make legal binding decisions, decisions legally enforceable, you need to be there & Ombudsman: Investigate & makes recommendations, cannot enforce decisions, you can call

Complaint bodies

Are organisations that handle complaints from the public about services, products, or organisations
Benefits - Cheap, fast, accessible, fair
Limitations - No binding power, only handle certain complaints, some investigations may delay

Examples of complaint bodies

E Safety Commissioner, Consumer Affairs, Victorian Equal Opportunity & Human Rights

Types of courts

Magistrates, County, Supreme - Trial Division & Supreme Court of Appeal

Magistrates court

Only hear up to civil cases worth $100,000. Usually minor civil dispute The court will hear the case & decide on the remedy if the defendant is found liable. Eg. property damage claims

County court

Claims up to unlimited amount (over $100,000). Parties may have their case heard by a judge alone or judge & jury will then decide the remedy. If defendant is found liable by the jury, either the judge or jury will determine the remedy. Eg. serious personal injury case

Supreme court

Highest court, divided into Trial Division & Court of Appeal. The supreme court can hear cases worth any amount. Court of appeal is if the parties are unhappy with the outcome (applies to lower courts). Parties may have their case heard by a judge alone or judge & jury to decide liable or not & will then decide the remedy. Eg. serious defamation case

Benefits to court

Binding decisions, can hear any dispute, formal process

Limitations of courts

Takes long, expensive, not private

Jury

Has 6 people, decide liable or not liable, can decide remedy (judge too), optional for civil case, must be 18+ & Australian Citizen

Difficulties faced by groups in the civil justice system

FN, LSS, YP, RRR - First Nations People, Low Socioeconomic Status, Young People, People in Regional, Rural & Remote Areas

First Nations people

May see courts as distrustful & cultural barriers - Can use Koori Court

Low Socioeconomic status

Have limited financial resources, lack of access to court - Can use legal aid (free lawyers)

Young people

Lack knowledge & resources to use the legal court - Youth specific services

People in regional, rural & remote areas

Residents outside major cities may find it difficult to access court - Can video call online

Remedies

Two types - Damages $$$ & Injunction Court Order
Damages - Compensatory: Specific, General, Aggravated (SGA) - Exemplary, Contemptuous, Nominal (ComEConN)
Injunctions - Mandatory & Restrictive (MR)

Compensatory damages

Repay the plaintiff for the injury suffered (SGA)