These are rules that govern the many and varied procedures throughout all Australian courts and tribunals at both Federal, State and local levels in civil proceedings not in criminal proceedings. They dictate, for example, how documents must be served on the various parties, how the cases must be commenced, the various pleadings, motions and applications, and orders given, depositions, discovery and disclosure, the conduct of the trials and the process of awarding judgements and so on. These rules have been generally derived from the English courts.
Since Federation, each state and territory of Australia had a 2 or 3 tiered court system with the Supreme Courts overseeing them all. The civil rules of all the courts were determined by the rules from the Supreme courts. Most of these civil rules are now uniform between the courts within the various states and territories but unfortunately not between the states and territories. Example, the rules in Queensland are quite different to the rules in New South Wales.
What are the differences between criminal and civil procedures ?
One of the most obvious are that the standard of proof for a criminal trial is ‘beyond reasonable doubt’ and the standard of proof for a civil trial is ‘on the balance of probabilities’. Criminal trials have a much higher standard to reach due to the grave consequences of a guilty verdict.
Another difference is that, in England and France, criminal trials are usually brought by the State whereas civil trials are usually brought by private persons or corporations.
In English common law systems throughout the world such as Australia, Canada, USA and New Zealand, the party bringing a criminal charge (usually the state) is referred to as the ‘prosecution’, and the party bringing a civil action is referred to as the ‘plaintiff’ or ‘claimant’. In both kinds of action the opposing party is referred to as the ‘defendant’.
In many countries there is a clear distinction between criminal and civil procedure. Example, a criminal court may force a convicted defendant to pay a fine as punishment for his crime, and the legal costs of both the prosecution and defence. But the victim of the crime generally pursues his claim for compensation in a civil, not a criminal, action. In France and England, however, a victim of a crime may incidentally be awarded compensation by a criminal court judge.
A civil action may use the same evidence from a criminal trial for the same matter. For example, the victim of a road accident does not directly benefit if the driver who injured him is found guilty of the crime of careless driving. He still has to prove his case in a civil action. In fact he may be able to prove his civil case even when the driver is found not guilty in the criminal trial, because the standard to determine guilt is higher than the standard to determine fault. However, if a driver is found by a civil jury not to have been negligent, a prosecutor may be estopped from charging him criminally.
If the plaintiff has shown that the defendant is liable, the main remedy in a civil court is the amount of money, or “damages”, which the defendant should pay to the plaintiff. Alternative civil remedies include restitution or transfer of property, or an injunction to restrain or order certain actions.
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