Legal Studies (3.2)

Plaintiff

The party who initiates the claim, alleging that their rights have been infringed

Defendant

The party alleged to have breached the plaintiff’s rights

Purpose of Civil Law

To restore the person whose rights have been infringed to their original position

Burden of Proof

The obligation of a party to prove the facts of the case, residing with the party who initiates the claim; the Plaintiff

• The burden of proof can be reversed:

  • If the defendant makes a counterclaim, during which they will have to prove their allegations against the plaintiff

  • If the defendant raises a defence they are required to establish and prove it

Standard of Proof

The strength of evidence required to prove a case, that is, the extent to which a party must prove the facts of the case; ‘on the balance of probabilities‘

Factors to Consider before Initiating a Civil Claim

• Costs

• Limitation of Actions

• Enforcement Issues

Costs (Factors to Consider before Initiating a Civil Claim)

Civil action is inherently expensive, and the plaintiff must thus consider a range of costs prior to initiating a case

Cost of Legal Representation

• This will vary according to the complexity of the case, length of case, expertise of lawyer etc

• Typically lawyers charge by the hour

Cost of Disbursements

• Filing a case in the Magistrates’ Court costs $162-$772

• In the County Court filing for a writ costs $865

• A trial in the County Court costs $1023 per day

• The cost of mediation is between $2000-$20,000

Adverse Cost Order

• Whichever party loses the case must pay for the reasonable legal fees of the other party

  • eg. If the plaintiff is unsuccessful they will have to pay the reasonable legal fees of the defendant