Legal Studies U2 AOS 1 Civil Liability Notes PDF

Legal studies- U2 AOS 1 Civil Liability 1. Purposes and types of civil law 2. Key concepts 3. Possible plaintiffs and defendants 4. Negligence 5. Defamation 1. Purposes and types of civil law \- Achieve social cohesion \- Protect the rights of individuals \- Provide an avenue for peop...

Legal studies- U2 AOS 1 Civil Liability 1. Purposes and types of civil law 2. Key concepts 3. Possible plaintiffs and defendants 4. Negligence 5. Defamation 1. Purposes and types of civil law \- Achieve social cohesion \- Protect the rights of individuals \- Provide an avenue for people to seek compensation where a breach of civil law has occurred \- Provide a means to seek compensation (remedies) - tort law - negligence, trespass, nuisance, defamation - family law - marriage, divorce, adoption, de facto relationships - industrial and workplace laws - occupational health and safety, working conditions, work contracts, workplace agreements, union disputes - consumer law - tenancy agreements, sale of goods, advertising laws - property law - wills, planning laws, real estate purchases **Family law** deals with the legal side of relationships between parents, children and other family members and carers. For example, when parents get a divorce or separate, they will need to sort out the way they will share property and arrange for the care of children. **Defamation** relates to saying or publishing material which causes damage to another person\'s reputation. For example, a newspaper article might falsely report that a business owner has committed fraud, which drives customers away. **Trespass** to land occurs when someone goes onto another person\'s land without permission. For example, a news photographer who refuses to leave your home when asked to go is trespassing on the property. **Wills and inheritance** claims involve disputes over a will. For example, a frail old man might be pressured into making a will that leaves all his money to a scam artist. The family could go to court to claim that the will was not valid. **Breach of contract** actions arise where someone has failed to do something they promised in a legally binding agreement. For example, you might pay in advance for a new car, but when the time comes for delivery you find out the dealer sold it to someone else for more money, in breach of your contract. **Nuisance** claims are made by people that have lost enjoyment or use of property (either public or private). For example, a stench coming from a nearby factory is a legal nuisance because it interferes with a person\'s ability to enjoy their home. **Negligence** occurs when someone owes a duty of care to another and breaches that duty, causing harm or loss to them. For example, a doctor might carelessly cut an artery during a medical procedure. - Employment law (disputes between employers and employees) - Equal opportunity and discrimination law 2. Key concepts **BREACH** \- Generally, the plaintiff has to prove that there has been some sort of breach made by the defendant. \- This breach can be a failure to observe the law, or an obligation imposed on them. \- The plaintiff has the responsibility to prove that a breach occurred \- but in some instances the defendant may make a **counter claim.** **CAUSATION** \- The plaintiff needs to prove that the defendant's actions caused or resulted in the harm suffered by the plaintiff. \- There needs to be a causal link in that the harm would not have occurred if not for the defendants actions. **LOSS** \- A plaintiff can only obtain a legal remedy if they prove that they have suffered loss. \- Loss includes: \- Economic or financial loss \- Property damage \- Personal injury \- Pain and suffering \- Loss of amenity (loss of enjoyment of life) **BURDEN AND STANDARD OF PROOF** \- Plaintiff must prove the case -- For certain defences or counterclaims, this burden moves to the defendant. \- Standard of proof: **Balance of Probabilities** **LIMITATION OF ACTIONS** \- Plaintiff's must bring their claim to court within a specific time frame as set out in the Limitation of Actions's Act 1958 (Vic). \- In some circumstances, the time period can be extended --usually the plaintiff must make an application to the court to do so. Type of claim Time period ------------------------------------------------------------------------------------- ------------- Breach of contract Six years under tort law Six years Under tort law where there is personal injury consisting of a disease or a disorder Three years Defamation One year **THE COURT HIERARCHY** \- Magistrates Court \- Claims of up to \$100,000 \- County court - Supreme \- Unlimited claims for damages \- Generally has a commercial + common law division for civil matters \- High Court \- Constitutional + Federal Matters 3. Possible plaintiffs and defendants **POSSIBLE PLAINTIFFS** Possible plaintiffs can include: \- The person who has suffered the loss \- Other victims (those who have indirectly suffered loss) - Representative proceeding \- Also known as a class action \- Where seven or more people have claims against the same party and those claims arise out of the same circumstances - Insurers \- Right of subrogation \- if the insured person has suffered loss and been paid for it, the insurer may be entitled to recover what they have paid. **POSSIBLE DEFENDANTS** Possible defendants: \- The wrongdoer \- Employers - Vicarious liability---responsible for the actions of their employee. \- Persons involved in the wrongdoing \- If you aid, encouraged or conspired to do the wrong, you may be involved - Insurers = May be possible for the plaintiff to sue the insurer --Workcover / work safe 4. Negligence - Duty of Care - Breach of this Duty - Causation - Injury, loss or damage **DUTY OF CARE** A person owes a duty if: \- The risk was foreseeable \- The risk was significant or not insignificant \- A reasonable person in the same circumstances would have taken precautions to eliminate any risk of harm. Certain groups of people owe others a duty of care by law: - Doctors & nurses - Motorists - Teachers - Manufacturers **EXCEPTIONS TO THE DUTY OF CARE** \- When participating in a risky recreational activity, consumers may have to sign a waiver. \- A 'good Samaritan' who gives care, help or advice in an emergency situation is exempt from liability as long as they act in good faith, within their competence and without payment. \- If you donate food in good faith for charitable purposes is protected if a person is harmed from consuming the food. \- Volunteers cannot be held personally liable if they cause damage or injury to another. **BREACH** In determining whether there was a breach, the following factors need to be considered: \- The likely risk of harm \- The likely seriousness of the harm \- The burden or taking precaution to avoid the risk of harm \- The social utility (benefit) of the activity that creates the risk of harm **CAUSATION** \- For a claim to succeed, the plaintiff must prove that the injury/loss was causes by a breach in the duty of care and that the injury would not have occurred if not for the breach. \- The harm cannot be too remote. \- There must not be a break in the chain of causation. **INJURY, LOSS OR DAMAGE** \- The injury, loss or damage can be physical, mental or damage to property. **NEGLIGENCE: LIMITATION OF ACTIONS & DEFENCES** \- The start of the limitation period for negligence depends on the type of injury suffered by the plaintiff: **- General negligence:** starts from the date the damage was suffered **- Disease or disorder: starts** from the date on which the plaintiff first knew they had the disease or disorder and that the disease or disorder was caused by the defendant. **-** **Death or personal injury:** 3 years starts from the date of which the cause of action was 'discoverable', 12 years from the date of the conduct \- In Victoria, the limitation on civil child abuse claims has been totally lifted. Type of negligence claim Limitation period ------------------------------------------------------------------------------------------- ---------------------- General negligence claims (eg a claim for property damage) 6 years An action for damages for negligence where personal injury includes a disease or disorder 3 years An action for damages for negligence where the injury was death or personal injury Either 3 or 12 years **DEFENCES** \- If the four elements of negligence cannot be proven, the plaintiff may not have a claim. The defendant may also rely on the following defences: - Contributory Negligence - The plaintiff is partially to blame - This can reduce the amount of damages - Assumption of risk (volenti non fit injuria) - A person was aware of the risk and knowingly chose to take the risk. +-----------------------------------+-----------------------------------+ | Impact on the plaintiff | Impact on the defendant | +===================================+===================================+ | - Loss of life | - Loss of business | | | | | - Permanent physical incapacity | - Public humiliation | | | | | - Serious physical injury | - Physical injury | | | | | - Emotional impact of the | - Costs | | breach | | | | - Need to sell assets | | - Loss of wages and livelihood | | | | | | - Unemployment | | | | | | - Effect on mental health | | +-----------------------------------+-----------------------------------+ Possible remedies **Compensatory damages** - Special damages- compensate for loss that can be measured by monetary value (eg. Loss of wages, medical bills) - General damages- compensate for loss that cannot be accurately measured (eg. Loss of enjoyment of life, pain and suffering) - Aggravated damages- awarded if defendant shows reckless disregard for the plaintiffs feelings - Cap on non-economic loss 650,000 5. Defamation **RIGHTS** \- In society, we have a right to freedom of expression, but that right is subject to duties and responsibilities. \- We do NOT have a right to say whatever we think about people, especially if it cannot be proven and ruins a person's reputation. \- Defamation law aims to protect the character and reputation of individuals against attempts to discredit them. **ELEMENTS** \- To establish defamation, you must prove the following: \- The statement is defamatory \- The statement is untrue \- The statement refers to the plaintiff \- The statement has been published by the defendant **STATEMENT IS DEFAMATORY** \- A statement is defamatory if it lowers a person's reputation or standing in the community, resulting in ridicule, contempt or hatred. \- The plaintiff has to prove that their reputation has been damaged. \- The defendant does not have to have had the intention to hurt the plaintiff **STATEMENT IS UNTRUE** \- Plaintiff must prove that the statement was untrue. \- A plaintiff cannot be defamed if the statement is SUBSTANTIALLY true. **REFERS TO THE PLAINTIFF** \- The plaintiff must prove that the statement refers to them. \- They do not need to be mentioned by name. \- It is sufficient if the people reading, hearing or seeing the statement would be able to reasonably conclude that the statement referred to the plaintiff. \- Group defamation: the group must be sufficiently small for it to be recognised that the plaintiff is: \- Part of the group \- Their reputation is lowered by reference to the group. **PUBLISHED** \- The plaintiff must prove that the statement has been communicated to a person other than the plaintiff. \- Comments become actionable once a third person reads, hears or sees the material. \- Publications can be verbal or in writing **LIMITATION OF ACTIONS** \- Under section 5(1AAA) of the Limitations of Actions Act 1958 (Vic) a plaintiff has one year to bring an action for defamation. \- The time starts from the date of the publication of defamatory material **DEFENCES** **Justification:** Defamatory statement is substantially true. **Contextual Truth:** Defamatory statement are made within the same context as the statements that are substantially true and do not further harm the reputation of the plaintiff. **Absolute privilege:** Complete immunity when published in relation to proceedings of parliament & parliamentary bodies, courts or tribunals. **Publication of public documents:** Published statement is a fair copy, summary or extract of a public document, but only if published for educational purposes/public interest. ***Public document:*** from a parliamentary body, court, tribunal, local government or statutory authority. **Fair report of proceedings of public concern:** Published for the publics information/educational purposes. EG: Law reform bodies, international conferences **Qualified privilege:** Protects a person who has no malice in publishing information and did it for good reasons. The defendant must believe that a person receiving the defamatory information has a moral/legal interest in receiving it Acts without malice/spite and acts reasonably in the circumstances **Honest opinion:** Opinion must be based on proper material and not a statement of fact. **Innocent dissemination:** Protects printing companies, booksellers, libraries and internet/email providers from unknowingly distributing defamatory material. **Triviality:** Where the publisher can show that the plaintiff is unlikely to be harmed by the publication of the defamatory material HISTORY: COMMON LAW \- Prior to 2006, defamation law was contained exclusively common law. \- There have been developments in common law in relation to social media: \- Example: Publishers are liable for defamatory comments published by others on their Facebook page. \- Case: Voller v Nationwide News Pty Ltd \[2019\] HISTORY: STATUTE LAW \- It is now contained within the Defamation Act 2005 (Vic). \- Unless the act specifies otherwise, common law principles relating to defamation are still in effect. Remedies Compensatory damages - Special damages \> compensate for loss that can be measured by monetary value (e.g. loss of employment or business opportunities) - General damages \> compensate for loss that cannot be measured (e.g. loss of enjoyment of life, anxiety, depression, sleeplessness) - Aggravates damages \> awarded if defendant shows reckless disregards for the plaintiff's feelings (e.g., feelings of same and humiliation) IMPACTS +-----------------------------------------------------------------------+ | Impacts on the plaintiffs | +=======================================================================+ | - Loss of reputation | | | | - Emotional impact of the defamatory material | | | | - Loss of wages and livelihood | | | | - Unemployment | +-----------------------------------------------------------------------+ +-----------------------------------------------------------------------+ | Impact of the defendant | +=======================================================================+ | - Costs | | | | - Need to sell assets | | | | - Public humiliation | +-----------------------------------------------------------------------+ Legal studies- U2 AOS2 Remedies 1\. methods used to resolve a dispute 2\. tribunals, ombudsmen & complaints bodies 3\. Victorian courts 4\. role of the jury 5\. achieving the principles of justice 6\. remedies 1. methods used to resolve a dispute ALTERNATIVE DISPUTE RESOLUTION METHODS Parties can use various methods to settle a dispute without going to court. Includes: \- Mediation \- Conciliation \- Arbitration MEDIATION \- Used by courts, tribunals & other dispute resolution bodies. \- Parties sit down and attempt to resolve their issues with the help of a mediator. \- Mediators are trained to assist parties in reaching a resolution \> they do not make the decision for them \- Mediators do not need to be an expert in law, but they need conflict resolution skills. **- Parties can speak freely** \> discussions cannot be used against them later **- Terms of Settlement** \> Parties are bound by promises made and are enforceable through the courts MEDIATION: AVAILABILITY **- Private mediation** \> Many organisations offer free or low-cost mediation. \- Dispute Settlement Victoria \- Victorian Bar Website **- Mediation referral** \> Before a final trial or hearing, courts can make a referral **- Tribunal Referral** \> Try and resolve the dispute before hearing\ - VCAT, VOCAT (Victims of Crime Assistance Tribunal) CONCILIATION **- Conciliator \>** listens to both sides of the dispute and makes suggestions \- Usually possesses specialist knowledge on the subject matter of the dispute **- Final decision is not binding \>** unless terms of settlement are signed **- 'Without prejudice' \>** if matter doesn't settle, discussions cannot be used against either party CONCILIATION: AVAILABILITY **- Used by various dispute resolution bodies** \> Consumer Affairs Victoria, Human Rights Commission **- Compulsory Conference** \> used by VCAT \- Specialised courts can use conciliation to resolve disputes \> Family Court **STRENGTHS OF MEDIATION AND CONCILIATION** **WEAKNESSES OF MEDIATION AND CONCILIATION** -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- A decision made by the parties during mediation and conciliation is **more likely to be acceptable** to the parties, as they have reached a decision themselves rather than it being imposed on them by a third party Both parties must be **willing to participate** in mediation or conciliation for it to be successful; if one or both parties are unwilling to cooperate, it will be a waste of time and money Mediation and conciliation are held in a **less formal** setting than a courtroom, which can help alleviate any stress felt by the parties Unless the parties enter into terms of settlement, decisions reached during mediation and conciliation are **not binding** on the parties or enforceable Mediation and conciliation are **far less confrontational** than a courtroom (e.g. there is no examination of witnesses). Using these methods can alleviate any stress felt by the parties and can help the parties\' ongoing relationship Mediators and conciliators have **no power** to order parties to come to a decision, or even attend Matters can be discussed confidentially, **without publicity** and without the discussions being held against a party if the matter doesn\'t settle as part of the process Mediation and conciliation are **not appropriate for some disputes**, such as where one party has an unfair advantage or more bargaining power There is more **flexibility** for the parties in resolving the dispute, as the parties are free to explore options to resolve the dispute that are not available to a court or tribunal **One party may dominate** the other party and may influence either the third party or the other party, particularly if the other party does not have legal representation The methods can more effectively achieve a win-win\' solution where both parties feel satisfied, as opposed to a court making a decision where one party is successful and the other is not Mediation and conciliation are not useful for civil disputes where an **urgent injunction** is required, or where the court\'s involvement is necessary **Conciliation only:** The conciliator has specialised knowledge in the subject matter of the dispute and can guide the parties in reaching a solution **Mediation only:** The mediator cannot give advice or offer suggestions ARBITRATION **- Arbitrator \>** Independent third party **- Helps the parties come to a decision \>** if unable to, can make a binding decision on the parties **- Arbitral award \>** enforceable if the parties do not comply \- Arbitrator will have knowledge of the law \- Used in commercial situations & international disputes **- Legal representation is often used \>** arbitration can be an expensive process **- More formal than mediation and conciliation \>** parties can choose how evidence is presented, what procedural rules apply, how formal the process is ARBITRATION: AVAILABILITY Arbitration usually occurs under two circumstances: \- Where parties have previously agreed (by contract) that disputes between them will be resolved by arbitration \- The Magistrates' Court uses arbitration for Civil claims less than 10,000 +-----------------------------------+-----------------------------------+ | **STRENGTHS OF ARBITRATION** | **WEAKNESSES OF ARBITRATION** | +===================================+===================================+ | Because arbitration is often | Arbitration is not as flexible as | | conducted privately, there is | mediation and conciliation; this | | flexibility in the way it can be | means the parties are normally | | conducted | limited to particular remedies or | | | outcomes | +-----------------------------------+-----------------------------------+ | Arbitration is less formal than | Arbitration can be as formal as a | | court processes, which allows the | court process, depending on how | | parties to feel more at ease | the parties have agreed for the | | although, for private | arbitration to run | | arbitrations, the degree of | | | formality of the arbitration | | | depends on what the parties have | | | agreed to in terms of how it is | | | to be conducted\] | | +-----------------------------------+-----------------------------------+ | It can be cheaper to resolve a | Arbitration is more expensive | | dispute using arbitration than | than mediation and conciliation | | going to court although, for | because evidence is often | | private arbitrations, this | gathered and put before the | | depends on how the parties have | arbitrator, and legal | | agreed to conduct the | representation is normally used; | | arbitration) | using arbitration can be as | | | expensive as going to court, | | | depending on how it is conducted | +-----------------------------------+-----------------------------------+ | The arbitral award (the decision | Arbitration is not always | | made by the arbitrator) is | available to the parties in | | legally binding on the parties, | dispute, and is generally only | | which ensures that the parties | available where the parties have | | will most likely follow it | agreed on arbitration, or for | | | small claims in the Magistrates\' | | | Court | +-----------------------------------+-----------------------------------+ | The third party will have | It can take a long time for a | | expertise in the subject matter | decision to be reached if the | | of the dispute and will use that | parties go through several | | expertise when making a binding | stages, such as producing | | decision | evidence | | | | | | The parties have no control over | | | the outcome imposed on them by a | | | third party | +-----------------------------------+-----------------------------------+ | Arbitration is private and | | | confidential, so it is attractive | | | for parties who wish to avoid the | | | publicity of a trial | | +-----------------------------------+-----------------------------------+ 2\. tribunals, ombudsmen & complaints bodies INTRODUCTION There are three other main types of dispute resolution bodies aside from courts in Victoria: - Tribunals - Ombudsmen - Complaints bodies \- This diagram shows data for ombudsmen and other complaints bodies & tribunals from 2011-2012 & data for courts from 2012-2013. TRIBUNALS Aim to provide low-cost, efficient and speedy dispute resolution. - Increase access to justice - They get their power from parliament - EXAMPLES: Fair Work Commission, Victims of Crime Assistance Tribunal, VCAT VICTORIAN CIVIL & ADMINISTRATIVE TRIBUNAL \- VCAT's president must be a sitting Supreme Court judge, and vice president a sitting County Court Judge \- VCAT hears 85,000 claims per year. **PURPOSE:** Provide Victorians with low cost, accessible, efficient & independent dispute resolution. - Charges low fees - Has a variety of locations - Cases are generally heard within a few weeks - Cases are heard by a independent VCAT member - Less formal than courts - Offers mediation & compulsory conferences (conciliation) "lists" fast track mediation compulsory conference "conciliation-like process" final hearing- VCAT member makes a decision- can be enforced in court   OMBUDSMEN Aims to provide individuals and small businesses with an independent, timely & accessible dispute resolution service. - **Government ombudsman \>** deals with disputes or complaints about govt. - **Industry ombudsman \>** disputes between consumers & businesses - **Power of an ombudsman is limited \>** only has jurisdiction over industries, businesses & govt agencies as conferred by parliament \- Services are free + act impartially & independently \- Will generally not see you until you have attempted to resolve the dispute with the agency first \- Works together with the two parties \> where an agreement cannot be reached, the ombudsman MAY have the power to make a binding decision **EXAMPLES (FEDERAL):** Commonwealth, Telecommunications Industry, Fair Work, Australian Small Businesses **EXAMPLES (STATE):** Victorian, Energy & Water, Public Transport COMPLAINTS BODIES \- Intended to provide a free complaints and dispute resolution service for individuals and small businesses. \- Generally, do not have the power to conduct a hearing or make binding decisions on the parties. EXAMPLES: eSafety Commissioner, Taxation, Consumer Affairs Victoria, Disability Services Commissioner, Victorian Equal Opportunity and human rights Commission. 4\. role of the jury CIVIL JURIES **No right to a jury in a civil trial:** - County & Supreme Court \> optional jury - Party who wants the jury must request it & pay the jury fees - Magistrates' Court & appeals \> no jury - Six jurors in a civil trial **Role:** - Determine liability on the balance of probabilities - Unanimous verdict or majority - May decide on amount of damages \> in defamation cases, only judge can decide on damages - Not required to give reasons for their decisions - Jurors are not allowed to do their own research & investigation STRENGTHS - **Jurors are independent & impartial \>** ensures equality & fairness - **Juries allow the community to be involved \>** increases community confidence - **Jury deliberates on evidence presented \>** fairness - Spreads the responsibility of making a decision across multiple jurors - **Jurors are selected at random** \> impartiality - Verdicts reflect community values WEAKNESSES - **Do not give reasons for their decisions \>** questions re: procedural fairness - **Complicated evidence means that task may be difficult \>** can jurors understand fully? - **May be influenced by skilled lawyers or emotional elements of the trial \>** may lead to bias - Jurors may have biases - **Jury is expensive \>** decreases access - Jury trial may cause delays in case - Civil juries have been criticised for inconsistency in damage assessment 5\. achieving the principles of justice The civil justice system can be quite difficult to navigate for many members of the public. It can be confusing, overwhelming and expensive to use. \ Some groups that may face more difficulties and disadvantage than others when trying to access the civil justice system:  - people with mental health issues      - First Nations people  - people with disability - people of low socioeconomic status  - recently arrived migrants                    - young people - elderly people - people in regional, rural and remote areas 6. remedies REMEDY: Any order made by a court (or a tribunal) designed to address a civil wrong or breach. A remedy should provide a legal solution for the plaintiff for a breach of the civil law by the defendant. - A remedy is a way in which a court can right the wrong that has occurred to the party who has suffered loss. - An amount of money awarded by the courts to compensate the plaintiff for loss or injury caused by the wrongful acts of the defendant - **INJUNCTION** - A court order directing a person to undertake a specific action, or to stop (cease) a specific action. It is normally ordered to prevent harm, or further harm, to the plaintiff. **PURPOSE** - To restore (as much as possible) the party who has suffered loss or injury to the position they were in before the loss or injury occurred. - To make the point that the defendant's conduct is not acceptable - To stop the harm from happening any further - To force someone to do something that they are refusing to do **DAMAGES** There are four main types of damages: 1. Compensatory damages 2. Nominal damages 3. Exemplary damages 4. Contemptuous damages **[COMPENSATORY DAMAGES]**\ - SPECIAL\ - GENERAL\ - AGGRAVATED - Compensatory damages are the main type of damages usually sought. Depending on the injuries and loss suffered, compensatory damages can restore the plaintiff to the position they were in before the wrong occurred. - There are 3 types of compensatory damages: - Special damages: Awarded to the plaintiff for loss that can be calculated objectively and exactly - General damages: Awarded to the plaintiff for pain and suffering. Not easily quantifiable and is often calculated by evidence. - Aggravated damages: Plaintiff is awarded extra compensation by the court. **FACTORS IN ACHIEVEING ITS PURPOSE** - Whether the loss suffered was financial loss only (quantifiable) - Whether the loss suffered was pain and suffering, mental anguish, disfigurement, or impairment (not as quantifiable, can only compensate) - Whether sufficient evidence is before the court about unquantifiable losses. No evidence = potentially inaccurate damages awarded - Whether the damages are actually paid. (defendant bankrupt, plaintiff will not return to original position) *EXAMPLES OF TYPES OF LOSSES*  **[EXEMPLARY DAMAGES]** - Exemplary damages are a very large amount of money awarded to show strong disapproval of the defendant's conduct - They are used to punish the defendant for an extreme infringement of rights and deter others from undertaking the same type of actions. - Also, effective in deterring the defendant where conduct is malicious, violent, cruel, insolent or in scornful disregard of the plaintiff's rights. **FACTORS IN ACHIEVING ITS PURPOSE** - [The sum of exemplary damages: ] - If the amount is high, it is more likely to punish and deter. - [The ability of the defendant to pay:] - The ability of the defendant to pay is **[IMPORTANT]** - Little money = they may not pay at all - Significant amounts of money = less punishment/impact. - [The extent to which the award of damages is known:] - Publicised = Deterrence **[NOMINAL DAMAGES]** - A small amount of money awarded to confirm that a plaintiff's rights have been infringed even though the losses were not substantial - Uphold the plaintiff's rights without awarding any substantial damages. **FACTORS IN ACHIEVING ITS PURPOSE** - Whether the plaintiff suffered loss. If the plaintiff did in fact suffer loss, but there was no evidence of that loss, or the court was not convinced there was loss, the plaintiff's rights may not be fully upheld. - The amount of the damages. If the amount is too small, some people may not view the damages as upholding the plaintiff's rights. - The costs incurred. The plaintiff may have incurred significant costs to initiate and conduct the civil claim. Would not be compensated. **[CONTEMPTUOUS DAMAGES]** Contemptuous damages are a very small amount of money awarded by a court to show that even though the plaintiff's claim succeeded legally, the court disapproves of it in moral terms - Plaintiff has a legal right to damages but does not have a moral right (does not deserve to be paid damages). - Awarding a small amount of damages is to show contempt for the claim that is made. - Contemptuous damages are rarely awarded. ***[INJUNCTIONS]*** There are two main types of injunctions: 1. Restrictive Injunction 2. Mandatory Injunction **MANDATORY INJUNCTION** Requires the defendant to take action to prevent further harm from being suffered by the plaintiff or to take action that will remedy the situation. **FACTORS IN ACHIEVING ITS PURPOSE:** - Whether the defendant will do what is ordered. - Whether harm has already been suffered. An injunction alone may not be able to address that harm. In this case, damages may also be required. - Injunctions alone do not fully address all the harm that may have been suffered. - Whether a mandatory injunction alone is sufficient. In some situations, a restrictive injunction may also be required. ***[Example:]* Mandatory injunction may require the defendant to take post down, but a restrictive injunction may be required to stop them from posting in future.** **RESTRICTIVE INJUNCTION** To prevent harm, or further harm, from being caused to the plaintiff. This can be done by ordering someone to refrain from taking steps (or any further steps). **FACTORS IN ACHIEVING ITS PURPOSE:** Whether the defendant will comply: [ ***Example:***] ignoring a court's order to take down defamatory posts, means the plaintiff may continue to suffer harm. Whether harm has already been suffered. An injunction alone may not be able to address that harm. In this case, damages may also be required. Whether a restrictive injunction alone is sufficient. In some situations, a mandatory injunction may also be required. ***[Example:]*** A restrictive injunction may stop the defendant from posting any further, but a mandatory injunction may also be required to force the defendant to take the posts down. Legal studies- U2 AOS3 Human Rights 1\. Human Rights 2\. Protection of rights 3\. One human rights issue 1\. Human Rights WHAT ARE HUMAN RIGHTS? - Basic freedoms or standards that promote and uphold the dignity of all people, and are guaranteed by a moral sense of duty or by the law - Basic moral or legal entitlements that belong to all people, regardless of their race, nationality, religion, gender identity, age, economic status or any other attribute. **UNICEF states:** 'Human rights are universal and inalienable \[absolute\]. All people everywhere in the world are entitled to them. No one can voluntarily give them up. Nor can others take them away from him or her' Universal human rights have not necessarily always been available to all. Women: - Did not have the right to vote in federal elections until (1902) - Not allowed to drink in public bars until the 1970s. First Nations Peoples: - Not technically recognised in the Australian population count until 1967, - Denied basic rights, including the right to entitlements such as the age and disability support pensions. - Subject to government policies such as the forcible removal of First Nations children from their families. LGBTQIA+ people: - The Tasmanian Government refused to repeal (cancel) its anti-homosexuality laws until 1997 - Marriage equality was also not recognised in Australia until in 2017 There are still human rights issues and injustices that need to be addressed UNIVERSAL DECLERATION OF HUMAN RIGHTS - International declaration: a non-binding agreement that sets out the 'aspirations' or 'intentions' of the countries (or international organisations) who are parties to the declaration. - Universal Declaration of Human Rights: sets out most of the basic human rights that all nations and governments, including Australia, should strive to promote and uphold. It is considered the basis of international human rights law. PROTECTING HUMAN RIGHTS - One of the ways that Australia has protected human rights is to become a signatory to an international treaty. - International treaty: Agreement between two or more countries (or international organisations, such as the World Bank) that gives rise to legal rights and obligations, and is governed by international law - International law: Establishes rules, guidelines and responsibilities of countries and international organisations, and their relationships with each other. Establishes principles about how they should treat their citizens. - Becoming a signatory to an international treaty demonstrates the intention of the signatory country to adopt the treaty and incorporate it into its domestic law. - Being a signatory to an international treaty is not enough to make Australia bound (under international law) to the treaty. - Australia must specifically pass statute law (or legislation) to approve and adopt the various rights outlined in the international treaty. This is called ratification of the treaty. - When a nation ratifies a treaty, it is legally bound to implement the rights contained in the treaty. MAJOR INTERNATIONAL TREATIES/ DECLARATIONS the human rights of people who belong to potentially vulnerable groups: - Convention on the Rights of the Child (1989): - Convention on the Elimination of All Forms of Discrimination against Women (1979): - Convention on the Rights of Persons with Disabilities (2006) - Declaration on the Rights of Indigenous Peoples (2007) - Convention relating to the Status of Refugees (1950) - Convention on the Elimination of All Forms of all forms of racial discrimination (1965) In Australia, human rights are protected in various ways **Statute law** - Commonwealth, state and territory parliaments have passed Acts of Parliament (legislation) to protect a wide range of human rights, - VIC, ACT and QLD have also passed specific human rights legislation to ensure the protection of basic human rights within their state or territory. - Example: the Victorian Parliament has passed the Charter of Human Rights and Responsibilities Act 2006 (Vic), which sets out the basic rights, freedoms and responsibilities of the Victorian people **Common law** - Australian courts have enforced various human rights in their judgments. - Includes: the right to silence (the general right of an accused not to be required to answer police questions or give evidence at their trial) and the right to a fair trial - The Australian Constitution - protects a limited number of human rights. - Example: guarantees five express rights of the Australian people, which are specifically written in the Constitution - **Convention on the Rights of the Child (1989)**: Protects the rights of children, including their right to education, health care, and protection from abuse and exploitation. - **Convention on the Elimination of All Forms of Discrimination against Women (1979)**: Aims to eliminate discrimination against women in all areas, including politics, employment, and education, ensuring gender equality. - **Convention on the Rights of Persons with Disabilities (2006)**: Ensures that people with disabilities enjoy the same human rights as others, promoting their full inclusion in society. - **Declaration on the Rights of Indigenous Peoples (2007)**: Recognizes the rights of indigenous peoples, including rights to land, culture, and self-determination. - **Convention relating to the Status of Refugees (1950)**: Defines the rights of refugees and the legal obligations of states to protect them. - **Convention on the Elimination of All Forms of Racial Discrimination (1965)**: Seeks to eliminate racial discrimination and promote understanding between races. - **Convention on the Rights of the Child (1989):** **Why it was made:** Children are among the most vulnerable in society, often subjected to neglect, abuse, exploitation, and lack of access to basic necessities. This convention was created to ensure that children\'s rights to protection, education, health, and development are upheld globally. - **Convention on the Elimination of All Forms of Discrimination against Women (1979)**: **Why it was made**: Historically, women have faced systemic discrimination in many areas of life, including the workplace, politics, and social life. This convention was introduced to ensure women\'s equal rights, protect them from violence and discrimination, and promote gender equality in all aspects of life. - **Convention on the Rights of Persons with Disabilities (2006)**: **Why it was made**: People with disabilities often face exclusion from society, discrimination, and lack of access to services and opportunities. The convention was made to promote their rights, independence, and dignity and ensure they can fully participate in society on an equal basis with others. - **Declaration on the Rights of Indigenous Peoples (2007)**: **Why it was made**: Indigenous peoples have historically been marginalized, oppressed, and deprived of their land and cultural rights. This declaration was created to protect their cultural heritage, land rights, and autonomy, as well as to address past injustices and promote their right to self-determination. - **Convention relating to the Status of Refugees (1950)**: **Why it was made**: After World War II, there were millions of displaced people and refugees in need of protection. This convention was created to define who qualifies as a refugee and to outline the rights of refugees and the obligations of states to offer them protection and assistance. - **Convention on the Elimination of All Forms of Racial Discrimination (1965)**: **Why it was made**: Racial discrimination has been a persistent issue across many societies, leading to inequality, violence, and segregation. This convention was introduced to address and eliminate racial discrimination in all forms and promote tolerance, understanding, and equality between different racial groups. **1. Primary Purpose of the Victorian Charter of Human Rights and Responsibilities:** The Charter of Human Rights and Responsibilities (the Charter) is a Victorian law that sets out the basic rights, freedoms and responsibilities of all people in Victoria. It is about the relationship between government and the people it serves. **2. How the Charter Aims to Protect Human Rights:** The Charter works to protect human rights by: - **Requiring public authorities** (including government bodies and services) to act in ways that are compatible with the human rights outlined in the Charter. - **Ensuring laws** are interpreted in a way that is consistent with human rights, unless a law explicitly states otherwise. - **Providing individuals the right** to challenge decisions in court or tribunal where human rights are allegedly violated by public authorities. **3. Three Fundamental Human Rights Protected by the Charter:** Right to Recognition and Equality before the Law (Section 8): Everyone has the right to be recognized as equal before the law, to enjoy their human rights without discrimination, and to be treated equally. Right to Freedom of Expression (Section 15): People have the right to freely express their ideas, opinions, and information, though this right can be limited in order to respect the rights and reputations of others or protect public order and safety. Right to a Fair Hearing (Section 24): People have the right to a fair and public hearing by a competent, independent, and impartial tribunal in legal matters. **4. Limitations to Rights Protected by the Charter:** The Charter includes a general limitations clause which states that rights may be limited only so far as can be demonstrably justified in a free and democratic society, taking into account all relevant factors. Public authorities can limit human rights when those limitations can be justified. This means that government and Parliament can continue to make decisions on behalf of the community about how best to balance rights, protect Victorians from crime, and use limited funding for competing public interest challenges. - Edward koiki Mabo was an indigenous Australian who was born on a small island in the Torres straits known as Murray island - He joined four other members of the Meriam people to have their legal right to their land recognised in the Australian legal system - The case was brought as a 'test' case all the way to the high court and established High court protects constitution= ultra vires "beyond the powers" Courts can\'t do anything by themselves someone needs to bring the case to court which is a weakness Limited by a person needing to bring the case forward Money Time Resources Standing 1 more statute that confers rights Quick easy to change, not strongly protected Mabo case Links to common law and statute law