There is hardly anything more unsettling than feeling cheated – you get a dishonest seller, a broken promise or a deal that was never what it seemed. Before you take any action, it is a good idea to find out if your issue is a civil matter, a criminal one or even both. This is because every path has its own set of rules and leads to different results. Figuring this out usually boils down to what the offender did and how much you have lost.
This blog explains what a civil case means, how it differs from criminal fraud, the typical legal grounds, and the steps you can take.
When you get a feeling that you are being swindled, usually your first question is
‘Who can help me?’,
‘What can I get back?’ and
‘Do I have a civil case?’
The answer to this question depends a lot on a clear distinction between civil and criminal law, because these two systems serve totally different purposes and are pursued by different parties. The main differences are briefly described below.
Compensation and punishment are the main focuses of civil and criminal cases.
You (or your lawyer) raise a civil claim, whereas police and prosecutors are the ones who deal with criminal fraud cases.
Civil cases rely on the ‘balance of probabilities’ basis of decision, which is a much easier standard to meet than the ‘beyond reasonable doubt’ criminal standard.
Civil actions are capable of producing results like awarding damages or rescinding an agreement, whereas criminal penalties mainly include the imposition of fines or prison sentences.
Importantly, the same act may be the basis for civil and criminal proceedings against the defendant(s) simultaneously.
Feeling cheated is an emotional reaction, but a civil lawsuit takes a recognised legal basis. To answer the question – do I have a civil claim, you first need to match your situation to a recognised ground for action. Here are the most common reasons outlined:
Under section 18 of the Australian Consumer Law, it is illegal for anyone, during trade or commerce, to engage in or carry out conduct that is misleading or deceptive.
If you were given a false statement that you relied on in making a contract, then you can either seek rescission of the contract or damages.
If the other party did not fulfil what was agreed, this would constitute a forms of breach of contract, You might have a claim for losses that resulted.
If a person knowingly publishes a false statement aiming at your reliance on it, you may be entitled to compensation for the deceit.
After you find the legal grounds, you may ask the next reasonable question, which is what a court can do for you in reality. Here are the options most readily available:
You get reimbursement for the loss or pain you have endured.
The contract is made null and void, and the parties are restored to their positions before the contract.
Orders by the court asking a party to desist from by sending the cease and desist letter or to perform a certain action.
Gather contract emails, receipts, flyers and any witnesses to what was promised.
Your knowledge of your rights will only be of value if you make a sensible move based on them. Your very first decisions will have a major impact on your case either way, so you should take a balanced and methodical approach to safeguard your interests. The points below might be of help:
Organisations like the Australian Competition and Consumer Commission and the state fair trading departments are the ones that generally deal with consumer complaints.
If you are in Western Australia, experienced Civil Lawyers Perth WA can find out whether your case is civil, criminal, or both and give you information about time limits.
Being cheated doesn’t always mean a crime has been committed, but it quite often implies that you have some rights as a consumer to fight for. In Australia, the Australian Consumer Law, contract principles, and the tort of deceit provide real mechanisms through which you can seek redress.
The best course of action will be dictated by your circumstances, so get your proof together, observe any time limits, and have a lawyer qualified to practice law advise you. With proper assistance, you will be in a position to make a confident decision and safeguard your interests.
