SAC2A

• the burden of proof in a civil matter is on the plaintiff, and the standard of proof is on the balance of probabilities
• the aim of suing is to right the wrong and returning the individual to their original position. other purposes include compensating for wrong doing or suffering, stop the defendant from behaving in a certain way, making the defendant act in a certain way, or to send a message to the defendant / society
• factors to consider before suing: costs, limitation of actions, and enforcement issues
• costs in a civil matter include legal advice/representation, disbursements (expert witness fees, mediation fees, etc), and adverse cost orders (having to pay for the other parties legal fees)
• before initiating a claim, the plaintiff should consider

  • the cost of resolving the dispute
  • the amount of damages that may be awarded
  • possibility of adverse costs
  • eligibility for legal aid / assistance
  • what the most affordable option is
• the limitation of actions is the time restriction placed on bringing a civil claim to court. they are listed in the Limitations Act, such as defamation only being commenced within a year. once this period passes, a defence may argue that the claim is not legal as it exceeds the time frame (can be extended in special circumstances)
• reasons for limitation of actions

  • defence is saved facing an action after a significant time has passed, which allows them to ‘move on’
  • evidence can get lost and memories fade, making the standard of proof harder to attain
  • it encourages disputes to be resolved quickly, ensuring social cohesion
• enforcement issues are whether or not the defendant refuses to or cannot pay the damages. to consider:

  • the level of assets owned by the defendant (or their family)
  • whether the defendant is in jail or overseas (can you contact them)
  • who the defendant actually is
  • if there is an alternative plaintiff (eg. employer rather than employee)
• a remedy is how a plaintiff’s civil rights are protected or corrected for injury caused by a defendant. it is used in a civil matter to restore the injured party to the position they were in (or as close to as possible) before the wrong occurred
• alternative purposes of remedies

  • to uphold moral and legal rights (nominal damages)
  • to punish the defendant (exemplary damages)
  • to stop the defendant from further harm (injunctions)
• Damages involve an amount of money awarded by the courts to compensate the plaintiff for loss or injury caused by the wrongful acts of the defendant
• An injunction is a court order directing a person to undertake a specific action, or to stop a certain action. Normally ordered to prevent harm, or further harm to the plaintiff
• The purpose of damages is to compensate the plaintiff for any loss or harm suffered. This helps to achieve the overall purpose of remedies – returning the plaintiff to the position they were in before the defendant caused the harm
• The purpose of injunctions is to rectify a situation caused by the person who has been found to be in the wrong. Injunctions can help achieve the overarching purpose of remedies
• compensatory damages → aims to restore the plaintiff to the position they were in before their rights were infringed
• special damages aim to compensate the plaintiff for losses that are quantifiable (they have a precise monetary value that can be easily calculated)
• general damages aim to compensate for losses that are not easily quantifiable and will be calculated by the court based on evidence
• aggravated damages are awarded where the court believes the plaintiff suffered humiliation, embarrassment or insult because of the defendant’s actions (eg. cruel conduct)
• exemplary damages (or punitive damages) to punish a defendant and deter them from continuing such behaviour. it is used in situations where the conduct is malicious, violent, or in scornful disregard for rights of the plaintiff (not used in defamation)
• nominal damages are used for a plaintiff who has not suffered real or significant damage from the defendant’s behaviour, and be awarded a small amount of money. usually sought as a matter of principle, to uphold the rights of the plaintiff
• contemptuous damages awarded to a plaintiff who made a claim which the court felt was legally sound yet undeserving (it may be a legal right, but not a moral right to use the court for it). a very small award of contemptuous damages signals the courts contempt of the plaintiff’s actions
• Damages normally cannot restore the plaintiff if the plaintiff has suffered loss or injuries other than pure economic loss: such as reputation, illness, physical limbs, loss of a loved one, or mental anxiety. therefore damages can only provide a sum that is considered to be compensatory for the type of loss that is non-economic
• for economic loss (loss of money), particularly for cases where there is a debt owing or there is a specific amount such as loss of wages, damages is normally adequate in restoring the plaintiff
• damages do not compensate for the time, inconvenience, stress and cost of having to take the matter to court, therefore the plaintiff usually has to seek additional orders for costs and interest, which even then may not fully compensate them
• some Acts of Parliament, such as the Wrongs Act place restrictions on the amounts that can be obtained, and therefore in some circumstances may not fully compensate the plaintiff
• other remedies such as injunctions are better suited for compensating a plaintiff (eg. when the parties behaviour is affected)
• sometimes the defendant is not able to pay the damages that are awarded to the plaintiff, therefore the order by the court to pay damages may be futile
• interlocutory injunctions are temporary, urgent injunctions issued before court decision to prevent a party from continuing an action before/during the hearing (eg. to stop one party from destroying a heritage building, as this cannot be undone)
• restrictive injunctions are a form of remedy that require a person to refrain from doing something. they exist to prevent harm, or further harm, from being caused to the plaintiff
• mandatory injunctions are a form of remedy that orders a person to do a particular act, such as performing their part of a contract / agreement (or forcing them to hand over documents). they require the defendant to take action to prevent harm (further) suffered by the plaintiff, or take action that will remedy the situation
• reasons for a civil court hierarchy: administrative convenience and appeals
• administrative convenience is where less serious/complex cases are heard in the lower courts, and more serious/complex cases are heard in the higher courts. The existence of the court hierarchy allows for civil cases to be distributed according to their complexity and seriousness, allowing courts to then allocate their time and reduce delays, and create processes for efficient resolution of cases
• appeals involve a party (who is dissatisfied with the outcome of the trial) appealing to a higher court to review the case/decision. This allows for matters to be taken to higher courts where cases can be heard with more superior and specialised judges that have extensive knowledge and expertise. Without a hierarchy, there would be no avenue/possibility for review (if there is an error, nothing can be done)
• before a higher court hears your case, you need to apply for leave for an appeal. some grounds for an appeal include

  • a point of law (law applied incorrectly)
  • a question of fact (whether facts were applied correctly to reach decision)
  • the remedy awarded (too high / too low / order was incorrect)
• case management before a trial:

  • judges have a responsibility to ensure the case is ready for trial
  • this ensures the case is as just (fair), efficient, timely and cost effective as possible
  • judge powers of case management have been established by laws created in Plt: Power to give directions or instructions to parties imposing an obligation to do something or specifies how the proceeding will run (eg. attend mediation)
• case management during a trial:

  • judges will usually follow typical procedures, but they have the power to change procedures in civil law (not criminal)
  • change order of evidence
  • limit time of hearing
  • limit examination/cross-examination of witnesses
  • limit number of witnesses
  • limit length of submissions made
  • limit number of documents presented
  • can ask questions for clarification
  • can make rulings on admissibility of evidence
  • can instruct jury
  • can assist self-rep parties to understand processes & their obligations
• similarities of criminal and civil judges:

  • both are expected to act impartially and without bias, making decisions based on facts and evidence
  • both have the role of assisting self-rep parties, if they are not represented by a lawyer
  • both have the role of instructing a jury, and giving directions (not applicable to Mag Crt)
• differences between civil and criminal judges

  • civil decides liability, criminal decides guilt
  • civil decides remedy, criminal decides sanction
  • civil can order processes like mediation, whereas criminal case management powers do not extend to these processes/procedures
• similarities of a civil and criminal jury

  • both are expected to be impartial when making decisions, to decide based on facts/evidence (not prejudices)
  • both must listen and concentrate on evidence, and may ask judge clarifying questions and take notes
  • both have a role to comply with their obligations, such as not conducting outside research about the case
• differences between civil and criminal jury

  • criminal determines guilt, civil determines liability
  • different standards of proof to meet (higher in criminal)
  • criminal jury will never decide the sanction, but some civil juries may decide the damages to award the successful plaintiff