unit 3 aos2b

Question 1

define case management

Answer 1

a method used by courts/tribunals to control the progress of a case more effectively and efficiently. involves the judge making orders and directions in the proceeding

Question 2

state the judicial powers of case management (2)

Answer 2

power to order mediation and power to give directions

Question 3

define power to order mediation (judicial powers of case management)

Answer 3

court can order that a court officer acts as mediator or that parties arrange it privately. can be referred at any time of the proceeding. can assist prompt and economical resolution of a dispute.

Question 4

define power to give directions (judicial powers of case management)

Answer 4

a direction is an instruction given by the court to one or more of the parties which imposes an obligation to do something/not do something. court may give any direction considered appropriate at any stage of proceeding. can include order evidence will be given in, number of witnesses, length of submissions

Question 5

jurisdiction of courts as dispute resolution bodies

Answer 5

the county & supreme court have unlimited jurisdiction to hear civil disputes. magistrates court jurisdictional limit is $100,000

Question 6

things to consider when taking a matter to court

Answer 6

costs of court, size/complexity of matter, possible delays, access to legal representation, formalities of courtroom

Question 7

strengths of court as a dispute resolution body

Answer 7

laws apply equally to all, decision makers are independant and impartial, allows parties to determine strengths/weaknesses of each others case, jury allows community values to be upheld

Question 8

weaknesses of court as a dispute resolution body

Answer 8

subconscious biases, processes are difficult to understand without a lawyer, long delays, costs may restrict access

Question 9

define mediation

Answer 9

2 disputing parties, mediator facilitates conversation between parties, resolution made by parties. courts and vcat may order mediation or parties can request.

Question 10

define conciliation

Answer 10

2 disputing parties, conciliator offers suggestions & solutions, resolution made by parties. conciliator usually has specialist knowledge

Question 11

disputes suitable for mediation/conciliation

Answer 11

a relationship between parties will continue, parties are prepared to compromise, defendant admits liability, parties want privacy

Question 12

disputes unsuitable for mediation/conciliation

Answer 12

history of violence, matter is urgent, imbalance of power between parties, parties arent willing to reach an agreement

Question 13

strengths of mediation/conciliation

Answer 13

less formal/intimidating, voluntary process, private, flexibility in processes

Question 14

weaknesses of mediation, conciliation

Answer 14

decision may not be enforceable, one party may feel intimidated, one party may refuse to attend

Question 15

define arbitration

Answer 15

2 disputing parties, independant arbitrator listens and makes a legally binding decision. available when parties agree, court orders it or claim has been filed in magistrates court and plaintiff is seeking less than $100,000

Question 16

disputes suitable for arbitration

Answer 16

parties have agreed, parties want decision made by third party, want to avoid publicity of courtroom, parties want evidence presented to a third party

Question 17

disputes unsuitable for arbitration

Answer 17

parties want control over outcome, parties want formalities of courtroom

Question 18

strengths of arbitration

Answer 18

binding decision, private, arbitrator is expert, costs can be less than courts

Question 19

weaknesses of arbitration

Answer 19

parties have no control over outcome, can be formal(adds time and stress), right to appeal is limited, not available if claim isnt in magistrates court

Question 20

define remedy

Answer 20

an order made by the court designed to address a civil wrong. general purpose is to restore plaintiff as far as possible to their position before wrong occurred

Question 21

state the 2 types of remedies

Answer 21

injunctions and damages

Question 22

state the types of damages (4)

Answer 22

compensatory, nominal, exemplary, contemptuous

Question 23

state the types of compensatory damages (3)

Answer 23

general, specific, aggravated

Question 24

define damages

Answer 24

amount of money awarded to plaintiff to be paid by defendant. purpose is to compensate for losses suffered

Question 25

define compensatory damages

Answer 25

most common. aim is to restore party whos rights have been infringed to previous position. 3 types are general, specific, aggravated

Question 26

define specific damages (compensatory)

Answer 26

can be given a precise monetary value, easily quantifiable.

Question 27

define general damages (compensatory)

Answer 27

a general estimate, not readily quantifiable

Question 28

define aggravated damages (compensatory)

Answer 28

compensate plaintiff further if court believes defendant caused plaintiff humiliation

Question 29

define nominal damages

Answer 29

small amount. plaintiff may wish to make a point about being legally in the right but may not be seeking a large sum of money in compensation. purpose is to uphold plaintiffs rights without awarding substantial damages

Question 30

define contemptuous damages

Answer 30

plaintiff has a legal right to damages but not a moral right. small amount is awarded to show contempt

Question 31

define exemplary damages

Answer 31

seeks to punish defendant for extreme infringement of rights and deter others from undertaking similar actions

Question 32

define injunctions

Answer 32

court order directing someone to stop doing something or compelling someone to do something. purpose is to rectify situation caused by person thought to be in the wrong.

Question 33

state the 2 types of injunctions

Answer 33

restrictive/prohibitive: stopping an action. mandatory: completing a particular act

Question 34

define interlocutory injunction

Answer 34

temporary and is awarded quickly in situations where an injunction is needed asap. can be final or dismissed