KK1 Key concepts of civil law
What is the plaintiff
This is the term for the initiating party in a civil case, the one claiming they have been wronged.
Name the three factors a party should consider before initiating a civil claim.
costs, limitation of actions, and enforcement issues
Describe access
the ability of all parties and people to understand their legal rights and have an ability to pursue their case by using a range of institutions and bodies available to them
Who is the mediator?
This third party keeps discussions on track but cannot offer any advice or suggestions to either party.
Name the two reasons for a civil court hierarchy required by the study design.
administrative convenience and appeals
What is the balance of probabilities?
This is the standard of proof in a civil case, meaning the plaintiff's version of the facts is more believable than the defendant's.
What is an adverse costs order?
This is the order a court makes at the end of a case requiring an unsuccessful plaintiff to pay the legal costs of the defendant.
What is liability?
This is the civil law equivalent of "guilt" — legal responsibility for doing something.
What is a deed of settlement?
Without this formal signed document, the outcome of a mediation or conciliation is not binding.
What is the maximum value of a civil claim the Magistrates' Court can hear.
$100,000
What is compensation?
Punishment is the aim of criminal law; this is the aim of civil law, and it's why the outcomes are damages and injunctions rather than imprisonment
What is the Limitation of Actions Act 1958 (Vic)?
This Act sets out the time frame within which a plaintiff must initiate their claim.
What is fairness?
This principle requires processes and procedures that are fair and just, including a fair hearing before an unbiased adjudicator, upholding the rule of law.
Who is the conciliator?
This third party is usually an expert in conflict resolution, can make suggestions and help parties explore options — but still cannot make the final decision.
Name the three grounds for a civil appeal
1. a point of law
2. a question of fact
3. the remedy awarded
What is a counterclaim?
This is a separate claim made by the defendant in retaliation against the original claim, heard at the same time as the plaintiff's case — and one of the situations where the burden of proof is reversed.
Give the limitation period for defamation, and the limitation period for breach of contract.
one year for defamation, and six years for breach of contract
What is equality? Give an example of equality being upheld in the civil justice system
•Equality as a principle aims to make sure all parties and people have equal legal opportunities and equivalent treatment before the law, meaning they aren’t faced with disadvantageous treatment or bias in their use of the legal system
Note that equivalent treatment doesn’t always mean the same treatment
an interpreter for a party with limited English is an example.
What is an arbitral award?
This is the binding and enforceable decision handed down by an arbitrator.
What are the two courts with unlimited civil claims and which one of the two can issue injunctions?
County Court and the Supreme Court (Trial Division) — with the Supreme Court (Trial Division) issuing injunctions
Name the defence in which the burden of proof is reversed onto the defendant if this specific type of defence is used
Contributory negligence: the plaintiff was partially responsible for their own loss, so the defendant shouldn't hold full liability
Name and describe the two enforcement proceedings covered in the slides: one deducts money at the source, the other involves the sheriff.
a garnishee order — where the court requires the defendant's employer or bank to deduct an amount each week — and a warrant of seizure and sale, where the sheriff takes and sells the defendant's goods or land to clear the debt
What is a litigation guardian?
A 16-year-old wants to sue. This is the term for the person over 18 who must sue on their behalf.
What is under $10,000, in the Magistrates' Court?
Arbitration is compulsory for civil claims under this dollar value initiated in this court.
Explain administrative convenience, using the Magistrates' Court as your example.
is the hierarchy distributing cases according to severity and complexity, and personnel according to experience, so the courts run with routine, consistency and efficiency — for example, minor disputes under $100,000 are heard quickly and cheaply in the Magistrates' Court, saving the time and expertise of higher courts for complex matters