Civil Law in Action Wednesday 17 August 2011

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

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

A matter of choice 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

Full court vs Full bench 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

Pre-hearing procedures 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?

1. Which remedy? 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

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

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

4. Writ 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

Notice of appearance 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

Adversarial trial 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

Jury in civil trials 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)

Damages 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

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

Example 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.

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

Example 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

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

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