Civil Law in Action

1. Civil Law in Action Wednesday 17 August 2011

2. Review: What are the advantages of having a court hierarchy? Court hierarchy

3. Develops expertise • Makes efficient use of resources • Allows for appeals • Allows for the use of precedent Reasons for a court hierarchy

4. If your rights have been infringed, you have the following choices: • Legal action through the courts • Legal action through a tribunal, e.g. VCAT • Alternative dispute resolution A matter of choice

6. HCA – Full court is often 5 or 7 Justices (judges), must not be less than 2. • HCA – Full bench is all 7 Justices • SC and FC – Full court is usually 3 judges Full court vs Full bench

7. Court procedures vary • Purpose is to determine which facts are relevant and gather evidence for court • Plaintiff may withdraw the claim at any point – WHY is this a good thing? Pre-hearing procedures

8. Decide which remedy is most appropriate for your client: • Damages; Specific performance; Rescission; Injunction Decide if there are alternatives to court action: • Self-help; Negotiation; Mediation; Conciliation; Arbitration 1. Which remedy?

9. Based on the cause of action, complexity of the case and remedy sought, determine the most appropriate court 2. Which court?

10. Written by the plaintiff’s solicitor • Outlines the complaint and demands • Legal action will be taken if not met • Usually 14 days to respond 3. Letter of demand

11. Proceedings begin when the plaintiff files a writ • A writ must be served on the defendant • A writ contains names and addresses of the parties, the place and mode of trial and the solicitor’s details 4. Writ

12. Defendant completes the notice of appearance • This shows that the defendant will defend the matter • The notice is served to the court and the plaintiff Notice of appearance

13. Standard of proof – balance of probabilities • Burden of proof – plaintiff • Each party is responsible for presenting its own case • Witnesses are examined, cross-examined and re-examined • Judge only OR Judge and Jury Adversarial trial

15. Only in the County Court or Supreme Court • Consists of 6-8 people • Party that requests the jury must pay the costs • Either side may challenge the member of the jury – unlimited challenges for cause and 3 peremptory challenges • Unanimous or majority decision • Determines verdict and damages (ex. Defamation) Jury in civil trials

17. Special damages – compensation that can be accurately assessed, e.g. Doctor’s bills, hospital charges, medication • General damages – compensation that cannot be accurately assessed, e.g. pain and suffering • Nominal damages – small sum for insignificant injury or loss • Exemplary damages – large amount of money to punish the defendant for wrong-doing • Contemptuous damages – awarded where the plaintiff has a valid claim but the court is not sympathetic Damages

18. Generally a remedy for breach of contract • When you want the wrongdoer to meet their obligations under the contract Specific performance

20. Emily enters into a contract with William to purchase his car for $10,000. William delivers the car but Emily has not paid him the money. William wants Emily to meet her end of the deal. The court orders specific performance, i.e. Emily has to pay William the $10,000 she owes him. Example

21. A remedy for breach of contract, releasing the parties from their obligations. • Both parties are returned to their original position. Rescission

22. Emily enters into a contract with William to purchase his car for $10,000. William delivers the car but Emily has not paid him the money. • This time, William wants his car back. • The court orders rescission which means that William gets his car back and Emily DOES NOT pay him the $10,000 • Both parties are returned to their original position Example

23. Let’s summarise • What do these 2 remedies have in common? • What is the key difference? Specific performance and Rescission

24. A court order to make someone do something OR to stop someone from doing something • Appropriate for defamation Injunction