PAL: Task 5: Civil Trials

burden of proof

lies with the plaintiff

(also have the burden of costs)

standard of proof

on the balance of probabilities (more likely to have occurred than not)

statute of limitations

plaintiffs have 6 years from the time of the alleged wrong in which to commence legal proceedings.

use of juries

in wa, ______ are rarely used, and are only used in defamation cases. They have 4 members

settlement

plaintiffs can withdraw their claim at any time, they can accept a ______.

mediation

only 3% of civil cases commenced, reach the trial stage. The rest are settled through ________.

statement of claim

amount ($) plaintiff is seeking in damages

writ

formal legal action can only commence when the plaintiff lodges a _______ with the court.

It contains a full description of the legal action against the defendant and specifies the remedy sought against them.

will specify if the case will be heard by a judge and jury or judge alone.

must be delivered to the defendant in a legal manner (served)

notice of appearance

• the writ will indicate the time in which the defendant has to formally respond to the unit.

• the defendant is required to lodge with the Court a notice of appearance - confirming the defendant accepts the jurisdiction of the court and they will defend the action.

• if the defendant does not respond to the writ, the plaintiff may seek to have the Court enter a default judgement against the defendant.

Defendant

• as the defendant, they are strongly encouraged to lodge a defence

  • a document that will respond directly to the points alleged by the plaintiff in the statement of claim.

• a defendant can admit certain elements of the claim made by the plaintiff, but will typically deny the substantial claims made by the plaintiff.

counterclaim

a document (that can be lodged) alleging that the plaintiff was responsible for the losses claimed by them, of that the plaintiff in fact caused damage to the defendant.

pleading documents of a civil action.

writ, statement of claim, notice of appearance, defence and counterclaim

further and better particulars

once all the pleading documents have been lodged, the ___________ is issued, to provide a better understanding of what is in dispute.

interrogatories

formal set of questions served by either plaintiff or defendant that relate to the issues in dispute and must be answered within 60 days by affidavit (legally signed document under oath, which can be referred to in the trial)

discovery (of evidence)

• both the plaintiff and defendant have the right to serve a ‘notice for discovery’

  • requires the other party to provide them copies of documents, reports, letters, photographs and other information relevant to the case.

• a notice of discovery is a legal demand that can only be refused if a party claims legal privilege → confidential documents that don’t have to be disclosed.

  • a party cannot refuse discovery just because it may be detrimental to their case.

certificate of readiness for trial

• if the parties cannot come to an agreement before the trial is due to start they can file a certificate of readiness for trial with the Court, this confirms they have completed pre-trial procedures and will indicate how long they anticipate the trial to last.

• court sets a date for trial if medication cannot be reached.

verdicts

judge alone: judge determines which party is liable, and how much compensation is awarded

with jury empanelled: jury debates verdict and how much compensation.

civil remedies: compensatory damages

specific damages precisely account for losses suffered, general damages compensate for matters that cannot be calculated exactly.

civil remedies: exemplary damages

making an example of, in society.

• punitive damages: rarely used in Australia

civil remedies: nominal damages

civil action was taken to prove a point of principle. Damages will be minor as reputation building is more important

civil remedies: injunctions

a court order requiring a person to either carry out or not carry out a particular act.

tort

civil wrong done by one party to another. A tort causes a person to suffer loss or harm. A person who is the claimant in a tort may sue for damages or other relief. Generally created by the common law, but there are also statutory wrongs which amount to _____.

negligence

a person suffers harm because of another party’s failure to take proper care.

defamation

a person’s reputation is damaged by another party’s publication of untruthful statements.

the publication of unsubstantiated facts that seriously harm the reputation of an individual (the ‘aggrieved’). The purpose of a defamation action is to correct public perceptions and compensate the aggrieved for harms caused.

false imprisonment

a person is unlawfully deprived of their freedom to move around.

personal liability

refers to an individual being held responsible at law for an act or omission committed by them personally.

vicarious liability

refers to the liability of an employer for an act or ommission by its employee during the ‘scope and course’ of their employment. Principals are also vicariously liable for the acts of ommissions of their agents.

Lehrmann v Network Ten Pty Ltd and Anors 2024

• plaintiff alleged he was defamed by “The project” and its interview with Brittanny Higgins in 2021, where she alleged she had been raped in a parliamentary office by a male staffer

  • although Lehrmann wasn’t named, he argued he was “clearly identifiable”

• Defence was required to prove substantial truth in its reporting. to avoid a successful finding of defamation.

• Justice Lee found in favour of Network Ten, that Lehrmann did on the balance of probabilities rape Higging, and was liable to pay compensation for losing the case.

  • was ordered to pay $2 million in legal costs to Ten, although Ten’s actual legal expenses were close to 3.7 million and was heavily discounted to reach a lump-sum agreement.

Reynolds v Higgins

plaintiff was former liberal defence minister Linda Reynolds and the defendant was former Liberal staffer Brittany Higgins, and the plaintiff claimed that Higgins had defamed her by publishing social media posts that suggested that Reynolds failed to properly support HIggins, participated in a cover-up of the complaint, and acted improperly in her handling of the matter. Court concluded that certain posts conveyed defamatory meanings that harmed Reynolds’ reputation. However, Reynolds was not successful in every claim. One publication was protected by defences such as honest opinion and some broader allegations made by Reynolds, including conspiracy claims were rejected. The court awarded Reynolds $315,000 damages and approximately $26,000 in interest. The court also ordered Higgins to pay 80% of Reynolds’ legal costs on an indemnity basis, which substantially increased Higgins’ financial liability.