Civil litigation is ordinarily understood to be litigation between individuals. In other words, it is not criminal in nature, which is litigation between the Crown and an individual who breaches some statutory prohibition or mandate. It is litigation between persons who are engaged in a dispute concerning private rights. A civil case can therefore be a case arising from an agreement or a contract or a breach of some duty that is owed to that individual. Some common civil claims relate to the person making the claim or his property and personal rights.
For example, trespass to person and trespass to property are perhaps the two most commonly litigated causes of action in civil litigation. Defences are of course available and this area of law is governed by legal maxims which are many centuries old (it must be remembered that the English common law, which was inherited by Australia upon settlement, relies on the doctrine of precedent. This means that ancient cases that establish corner-stone principles of law can be cited as authority here even today). Defamation, which incorporates both the old causes of action in slander and liable, is another area of civil litigation which is commonly appealed to by aggrieved parties. Other civil claims frequently exercised before the Courts relate to the use of property, particularly intellectual property. This can involve the abuse of trademarks, copyright, patents and the breach of the moral rights of artists and authors.
Where the dispute relates to an agreement between persons, the litigation may take the form of a contractual claim. The rules and principles of contract law will therefore have to be considered by the civil litigation solicitor. The terms and conditions of the contract will have to be determined. Questions of conditions precedent will need to be settled. Terms will often need to be interpreted so that the party’s duties and obligations are not vague or ambiguous. Remedies may be available such as rescission, specific performance or a claim in damages or compensation. Equitable principles may apply, and remedies such as quantum meruit or quantum valebat may be available (depending on the facts of the case and the manner in which the claim is plead). Other civil litigation claims can be categorised in the following practice group:
- Breach of trust, whether in the context of family law litigation or other civil disputes.
- Breach of privacy, concerning litigation relating to the use of private information.
- Breach of confidentiality, relating to confidential and secret information disputes.
- Defamation of character (the litigation of liable and slander) which may also have criminal consequences.
- Harassment disputes in personal, employment and academic contexts.
- Vilification disputes in employment, personal or academic contexts.
- Victimisation disputes in academic, employment or personal contexts.
- Discrimination on the grounds of gender: where a person is treated in an unfair manner due to his gender.
- Discrimination on the basis of ethnicity or racial background where the individual is mistreated because of his ethnic or racial background.
- Discrimination due to disability, where a person may be able to sue because of inappropriate treatment on the grounds of his disability.
- Discrimination as a consequence of religious or political views, where a litigation matter can be grounded on the basis of mistreatment for political conviction or religious faith.
Al of these claims and disputes will have their specific elements which need to be established before action can be taken in court. Defences will also be available for those who are answering allegations under any of the above practice areas of litigation. Moreover, many of these types of claims can overlap between various practice areas. For this reason, it is a good idea to retain a civil litigation solicitor who has a working command of commercial litigation (and perhaps even contract law and property law) so that the civil litigation legal advice offered is comprehensive and takes into consideration all relevant factors which may assist in:
(a) Preparing a claim against a Defendant, or
(b) Defending against a Plaintiff’s claim.
If you are considering civil litigation, you may wish to contact our office and make an appointment to see one of our solicitors in our Sydney office.
This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.
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If you require assistance with a matter, you should make an appointment to see one of our Lawyers in one of the following locations:
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