Lawyers are fighting for the right to litigate a lawsuit they believe was unfairly brought against them.
But, in some cases, the law doesn’t seem to recognise their rights.
It’s not clear how the law works, or what a plaintiff’s rights are.
And some cases don’t even have the authority to enforce their rights, says Andrew McBride, a lawyer at law firm Witherspoon.
“In the case of the plaintiff suing for damages, they are not entitled to enforce any of the remedies,” Mr McBride said.
“You have to go to the court and ask them to do it.”
The law doesn´t distinguish between what constitutes an unjustifiable and fair-justifiable chargeA common misconception is that there is no difference between an unjustified charge and a charge that is clearly unreasonable.
The common law view is that only a judge can decide what is or is not an unjustitable charge, and therefore a court will have to decide what damages are appropriate.
The common-law definition of an unjustly levied charge is when the court cannot reasonably determine that the defendant has caused harm to the plaintiff.
“An unjustly charged charge may be a breach of contract, or be an act of trespass, or the defendant is guilty of an indictable offence,” says a guide to the law on damages written by the Australian Law Reform Commission.
An unjustified or unfair charge can include an offence committed by a third party that the person has a duty to prevent or mitigate, for example, by preventing the person from accessing information, or preventing the damage to property or the person’s health.
The law also covers breaches of the person´s privacy.
The definition of the word unjustified is ambiguous and varies from state to state, but it generally refers to the charge being unreasonable or unreasonable in the circumstances.
But Mr McByrds guide to damages gives some examples.
He says the most common example is if the person is required to take action because of a complaint from a neighbour, or because they have received a complaint about an unsafe condition in a public building.
If the charge is unreasonable, the plaintiff must have the legal capacity to enforce the remedy.
In other cases, a court might be able to assess damages for breach of an implied contract, which is a contract of confidentiality.
“If the breach of a contractual obligation has a reasonable possibility of being remedied, the court may award damages for that breach,” Mr McNabes guide says.
“In cases where there is a reasonable chance of recovery, the Court of Criminal Appeal may be able, under the general law of negligence, to award damages.”
The common defenceA common defence to an unjustfully levied charge may not be a defence in itself, but instead could include things like fault or negligence.
But a common defence can also be used as a defence to breach of the terms of a contract.
A common-defence defence is a defence that an accused person can make to protect themselves, a family member or another person from the damage caused by the accused.
In some cases that might mean that they can prove they were negligent or incompetent.
Mr McBride says there is also a common-lie defence in which the accused cannot prove they did not know or should not have known that the charge was unjustified.
“A common defense to an unfair or unjustified claim is a case where the accused is defending themselves,” Mr McMains guide says, “but they are also defending against an unfair charge.”
Mr McBoys guide also says the common defence should not be used if a person is not entitled by law to do so.
“There are some defences that are specific to an offence, and can only be used in cases where the law is clear that the conduct is unjustified,” he says.
A court’s roleThe court is the only legal authority that can decide whether the charges are justified.
The court must give the accused notice of the charges and provide the plaintiff with notice of what is required.
The accused must also be given a chance to prove they have the capacity to defend themselves.
The case is heard by a judge or a magistrate who decides if there is reasonable chance to settle.
In the rare case where there isn’t, the judge decides whether the plaintiff can proceed with the case.
When there is only a chance of settlement, the case is referred to the Federal Court for an order.
The Federal Court can then make a decision.
Mr McNabys guide says the Federal Circuit Court has the power to make a final decision.
“It’s important to note that the Federal Courts are independent of the Commonwealth and the courts of a State,” Mr McGuinness guide says in the guide.
“They are not subject to the jurisdiction of the courts in the other States.”