The plaintiff presents their examination in chief after the Defendant TRUE OR FALSE??? There is always a jury in a civil case TRUE OR FALSE??? Recap – Civil Trial Procedures
Main aim of taking civil action in court is to receive a remedy. Remedies are awarded to the Plaintiff following a judgment in their favor Several forms of remedy are available 1.Damages 2.Injunctions 3.Orders of Specific Performance 4.Rescission 5.Restitution Civil Remedies
Most common form of remedy in a civil dispute Amount of damages and what the value of that compensation represents will differ depending on the facts of each case, the injuries the plaintiff sustained and the purpose of the verdict There are 5 common forms of damages 1. Damages
Xl Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] Case Facts: XL petroleum purchased a service station site from land owner St.Christoper Motors for the purposes of selling discount Petrol in The purchase was for full rights of occupancy. Caltex operated the site up until 1968, when they sold the site to St.Christoper. The site had underground tanks which Caltex installed in Following the purchase by XL and operation of the site, the Caltex manager for retail sales in NSW instructed a local plummer to pierce the underground tanks and fill them with water, rendering them unusable for purpose.
Xl Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] Case findings. In the case findings the jury found that damages for lost earnings and replacement of the tanks to the amount of $5, However they further found for exemplary damages against Caltex to the value of $400,000, total damages awarded being $405, interest. On appeal and upholding the decision Brennan J has said that an award of exemplary damages ‘is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff's rights and to deter him from committing like conduct again’
Injunctions are an order from the court either 1)Stopping the defendant from doing something (Restrictive Injunction) OR 2)Compelling the defendant to do something (Mandatory Injunction) Injunctions may also be Perpetual – meaning permanent Interim – meaning temporary 2. Injunctions
Injunctions are commonly used when the plaintiff wishes the defendant to do or not do something Example: Gina Rinehart & Channel 9 Mini-Series radio/gina-rinehart-wins-bid-to-view-house-of- hancock-after-taking-action-against-channel-nine eh8e.html radio/gina-rinehart-wins-bid-to-view-house-of- hancock-after-taking-action-against-channel-nine eh8e.html When are injunctions used
An order of specific performance means that the defendant is ordered to carry out the terms of a contract. Example: Peter has entered into a contract with Simmons homes to build a house. The final installment has been paid, however the builder refuses to finish installing the final door fittings as they have moved onto another property. All terms of the contract stand and an order may be made that the builder complete the contract in the time period specified. 3. Order of Specific Performance
A rescission order is where the court may order to terminate/ cancel a contract in a civil matter. It aims to return parties to their original position before a contract was entered into This is not always possible Example: Contract is entered for the making of a wedding dress. A deposit is paid. The client (defendant) then cancels their dress as they have found another one. If the dress has not commenced being made the court could issue a recession order and the deposit returned 4. Rescission
The final form of remedy is Restitution This is where the court may order the defendant to return property to the plaintiff who is the rightful owner, the defendant to forfeit gains they have unlawfully obtained from the plaintiff or to provide compensation to a victim of a crime. Example: Geelong Tattslotto casehttp:// syndicate-sues-for-missing-millions gh8fwx.htmlhttp:// syndicate-sues-for-missing-millions gh8fwx.html 5. Restitution