Tort to Trespass
what's a tort
a legal wrong that's not a criminal offence.
2 types of compensation for tort
1. Damages
2. Injuction
Standard of proof is based off
Balance of probabilites
difference between criminal and civil law
criminal law aims to protect civilians from perpetrators' crimes, and civil law is a dispute between parties.
Types of torts
Negligence, Battery, Assault, False Imprisonment, Defamation, Nuisance
What is the tort of negligence
Occurs when one party fails to owe another party duty of care and fails to take reasonable care to avoid causing foreseeable damage.
Trespass is...
A direct interference with private property.
Types of trespass to person
Assault, battery, and false imprisonment
Assault is defined
When a person communicates threats it creates the plaintiff's mind an opprehension of harmful contact.
Elements of assault (trespass to person)
1. Reasonable opprehension
2. Plaintiff believes they're in imminent danger
Battery defined
When defendant actually brings out harmful contact
Elements of battery (trespass to person)
1. Action caused physical contact with plaintiff
2. Reckless / Intentional
False imprisonment defined (trespass to person)
deliberate confinement of another person without the authority to do so
Defences to assault and battery
1. consent
2. necessity
3. lack of capacity to form intent
4. self-defence
false imprisonment elements
1. No lawful justification
2. No escape route / confined space
3. Plaintiff acknowledging they're in danger
4. Intentional / deliberate
Remedies for trespass to person
Compensation, injunction, punitive
Trespass to land defined
Unauthorised interference with land that affects occupiers' use of enjoyment
Legislation for trespass to land
Summary Offences Act 2005
Max penalty for trespass to land
1-year imprisonment or $2200
QCAT is...
Legal process for trespass to land
Order of trespass to land
1. Plaintiff files a claim to QCAT and the defendant
2. Outline facts and elements of trespass to land (damages that occurred and proof of ownership)
3. Defendant has 28 days to file a response
4. Both parties argue their case and the adjudicator will bind a decision
5. Parties represent themselves
Elements of trespass to land for plaintiff's file to be succesful
1. Must possess land
2. No lawful justification
3. Trespasser interfered with the use of land
Defences to trespass to land for defendant
1. Had lawful justification / consent
2. On land to get back goods
3. trying to stop a nuisance e.g smoke
Remedies for trespass to land
1. Injunction
2. Compensation
Trespass to chattels defined
Interference with another's goods without lawful interference
Elements of trespass to chattels
1. Interfered goods were owned by plaintiff
2. Intentions are irrelevant
3. Direct interference
4. Defendant responsible for interference.
Detinue is...
When the defendant refuses to return the chattel to the plaintiff.
Conversion is...
When defendant uses chattels that's inconsistent to the owner's rights.
Court Jurisdiction Court names
QCAT
Supreme Court
Magistrate Court
District Court
QCAT damages (court jurisdiction)
$0-$25,000
Magistrate Damages (court jurisdiction)
Up to $150,000
District Court damages (court jurisdiction)
$150,001-$750,000
Supreme court damages (court jurisdiction)
$750,000+