Remedies

Question 1

• The plaintiff is

Answer 1

• The plaintiff is the person who commences a civil action

Question 2

• The defendant is

Answer 2

• The defendant is the person who is being sued.

Question 3

Principle of Fairness

Answer 3

The principle of fairness states that disputes must be delt with fairly, and any outcome reached must be fair. Hence, there should be a fair process and a fair hearing or trial.

Question 4

Principle of equality

Answer 4

• The principle of Equality means that all people should be treated equally before the law. This principle is upheld when no person or group is discriminated before the law because of a personal attribute.

Question 5

Prinicple of Access

Answer 5

• The principle of access is upheld when people are able to use the procedures, methods and institutions that resolve a civil dispute. People should also be able to get information about their rights, about when those rights may have been infringed, and about what remedies may be available to them.

Question 6

2. Distinguish between the principles of fairness and equality.

Answer 6

The principle of fairness is upholds when both parties are dealing with a fair hearing or trial process. On contrary, the principle of equality is upholds when no person or group is discriminated before the law.

Question 7

Identify two ways in which the principles of justice are upheld when resolving a civil dispute.

Answer 7

• The principle of Justice are upheld when the people who are deciding the dispute are impartial and unbiased and when people are able to understand their legal rights.

Question 8

Define the term ‘arbitration’

Answer 8

Arbitration is dispute resolution process that involves a third party (the arbtrator) listening to the parties and tries to help them reach an agreement. If its not possible, the third party makes a binding decision on the parties.

Question 9

Describe two main differences between conciliation and mediation.

Answer 9

One of the differences between conciliation and mediation is that conciliators usually have specialise knowledge about the subject matter of the dispute. However, the mediator does not necessarily need to be experts in the area of law that is the subject of dispute.

A mediator does not make decisions about whether there has been a break of law or offer legal advice. Although, conciliators can make comments on the law and offer legal advice.

Question 10

When is mediation used?

Answer 10

Mediation can be used in the early stages of disputes, when parties fail to reach a resolution on their own

Question 11

What are the benefits of mediation?

Answer 11

Enhanced support — Mediation involves using a trained, neutral mediator to engage with the conflicting parties and to help them work towards finding a solution that is acceptable to both sides. The Mediator listens to all views, talks to the parties privately and sometimes together, and guides each party through the process.

Greater control — Mediation does not guarantee an outcome, as no binding decision is made. Instead, the mediator works with the parties to try to find a solution, but with no guarantee that the issue will be resolved. This can mean that both parties have more control over the solution, and are not forced to accept an outcome with which they are not happy.

Question 12

Who can act as a mediator?

Answer 12

Mediators don’t have to be specialized in the subject of the dispute, although they do have to have good people skills and impartial during mediation.

Question 13

Who pays for mediation?

Answer 13

The parties in dispute will initially bear the costs of the mediator in equal proportions. This position may be modified by a prior agreement between the parties, such as a dispute resolution clause contained in a contract.

Question 14

Compare mediation and arbitration as methods of dispute resolution.

Answer 14

Mediations is concerned with giving both parties a opportunity to resolve their dispute in a formal environment with the help of a mediator whose job is to be impartial and empower both parties as an acting third party in the case. Although, this method of dispute resolution is not guaranteed that both parties will enter into a legally binding contract known as a statement of settlement. On the contrary, arbitration is most likely going to end with a terms of settlement contract being imposed on the parties, by the parties or arbitrator.

Question 15

How do each of the dispute resolution methods achieve each of the principles of justice?

Answer 15

• Mediation upholds the Principle of justice because the dispute is heard by an impartial third party, the meeting location is in a fair place where both parties feel like they are discussing on equal grounds, and the resolution method is accessible to the society.
• Conciliation upholds the principle of justice by ensure that the parties are aware of their legal rights by a conciliator who is usually specialised in the subject of dispute, the dispute is heard by an impartial third party, and the resolution method is accessible to the society.

Question 16

Dispute resolution methods

Answer 16

• Are a way to obtain an outcome in a civil dispute that does not involve a court or tribunal making a binding decision on the parties.
• These methods include: Mediation, Conciliation, Arbitration

Question 17

What are the disput resolutions used for?

Answer 17

• Mediation, Conciliation, Arbitration are ways to resolve a civil dispute without a court or a tribunal making a binding decision on the parties.

Question 18

Mediation

The process of negation through a mediator

Answer 18

• Mediation is a cooperative method of resolving disputes.
• It is a joint problem- solving process in which the parties in dispute sit down and discuss the issues they disagree on, put their side of the case and try to reach an agreement through negotiation.
• They do this with the help of a mediator, who is neutral and impartial.
• A mediator is an independent third party who does not interfere or persuades but helps the parties in a mediation as they try reach a settlement of the matter.
• The mediators do not necessarily need to be experts in the area of law that is the subject of the dispute, but they do need to have good people skills and a high level of conflict resolution skills.
• If the parties resolve the case through mediation, they will normally enter into a legally binding contract known as terms of settlement
• The mediator helps come to a decision not make a decsion

Question 19

Terms of settlement

Answer 19

• a document that sets out the terms on which the parties agree to resolve their dispute
• This deed of settlement or agreement may be enforceable through the courts.

Question 20

How is Mediation available to the parties in a civil dispute

Answer 20

• parties in a court case are often referred to mediation by a court before the final trial or hearing to see if a resolution can be reached.
• parties in a tribunal case are also often referred to mediation to try and resolve the dispute before the hearing.

Question 21

Conciliation.

Answer 21

• The final decision is made by the parties and is not binding.
• Like mediation, any discussions during conciliation are on a ‘without prejudice’ basis, meaning that those discussions cannot be used against either party if the matter does not settle at conciliation.
• ## The third party, known as the conciliator, listens to both sides of the dispute and makes suggestions about appropriate ways of resolving the matter. The conciliator assists the parties by exploring solutions to the dispute, and is usually someone with specialist knowledge about the subject matter of the dispute

Question 22

How is Conciliation available to the parties in a civil dispute

Answer 22

• some of the more specialised courts use a form of conciliation. For example, in the Family Court of Australia, which has power to hear family disputes, a conciliation conference is organised between the parties to try and reach an agreement about financial or parenting issues.
• parties in a dispute at the Victorian Civil and Administrative Tribunal (VCAT) are also often sent to what is called a compulsory conference. The compulsory conference uses conciliation as a way to help the parties come to a resolution

Question 23

Conciliation Strengths

• decision themselves
• alleviate stress
• less confrontational
• discussed openly without
• flexibility
• parties can avoid publicity
• specialised knowledge

Answer 23

• A decision made by the parties is more likely to be acceptable to the parties, as they have reached a decision themselves rather than it being imposed on them by a third party.
• Mediation and conciliation are held in a more informal atmosphere than a courtroom, which can help alleviate stress that the parties might otherwise feel.
• Mediation and conciliation are far less confrontational than a courtroom, without any examination of witnesses, and can be better for continuing relationships and to alleviate the stress of the parties
• Matters can be discussed openly without publicity or the discussions being held against a party if the matter doesn’t settle
• There is more flexibility for the parties in resolving the dispute, as the parties are free to explore options to resolve the dispute that the court or tribunal might not have the flexibility to
• Due to the confidential nature of conciliation and mediation, parties can avoid publicity that comes with an open court or tribunal hearing
• Conciliation only: The conciliator will have specialised knowledge in the field and will be able to guide the parties in reaching a solution

Question 24

• unfair bargaining power
• willingness of the parties
• Unless the parties enter
• have no power to
• dominate
• court’s involvement

Answer 24

• Conciliation and mediation are not appropriate for some disputes, such as where there is an unfair bargaining power or advantage that one party has
• The participation and willingness of the parties is required for a mediation or conciliation to be successful. If one or both parties are unwilling to cooperate, it will be a waste of time and money
• Unless the parties enter into terms of settlement, decisions reached during conciliation and mediation are not binding on the parties
• Both the mediator and the conciliator have no power to order the parties to come to a decision
• One party may dominate the other and may influence either the third party or the other party, particularly if the other party does not have legal representation
• It is not useful for civil disputes where an urgent injunction is required, or where the court’s involvement is necessary
• Mediation only: The mediator is generally not able to give advice or offer suggestions

Question 25

• Arbitration

Answer 25

• If this is not possible, the third party makes a binding decision on the parties.
• The arbitration decision is known as an arbitral award, and is fully enforceable if the party does not comply with it.
• Professional arbitrators charge the parties a fee for acting as an arbitrator in a dispute. The arbitrator will generally have knowledge of the subject matter, and will also have an understanding of the applicable law.

Question 26

How is Arbitration available to the parties in a civil dispute

Answer 26

• The Magistrates’ Court uses arbitration to resolve civil claims of less than $10 000.
• where the parties have previously agreed (normally in a contract) that any dispute that arises will be resolved by arbitration

Question 27

Arbitration Strengths.

• binding
• more informal
• expertise
• cheaper
• private and confidential

Answer 27

• Arbitration decisions are binding on all of the parties, ensuring certainty that the parties are required to follow it
• • Arbitration is more informal than court processes (though for private arbitrations it depends on what the parties have agreed on in terms of how it is to be conducted), thus allowing the parties to feel more at ease
• • The third party will have expertise in resolving these types of matters and will bring that expertise when making a binding decision
• • Private arbitration is private and confidential, so it is attractive for parties who wish to avoid the publicity of a trial
• • It can be cheaper than resolving the dispute through court (though for private arbitrations this will depend on how the parties have agreed to conduct the mediation)

Question 28

Arbitration Weaknesses

• more expensive than
• not always available
• take a long time
• no control
• can be as formal

Answer 28

• It is more expensive than mediation and conciliation because evidence is often gathered and put before the arbitrator, and legal representation is normally used. It can also be as expensive as courts, depending on how it is conducted
• It is not always available to the parties in dispute, and is generally only available where the parties have agreed on arbitration, or for small claims in the Magistrates’ Court
• It can take a long time for a decision to be reached if the parties go through several stages such as producing evidence
• • The parties have no control over the outcome, which will be imposed on them by a third party
• It can be as formal as a court process, depending on how the parties have agreed for the arbitration to run

Question 29

1. Identify four types of dispute resolution bodies.

Answer 29

Tribunals
The office of Ombudsmen
complaint bodies
Courts

Question 30

2. What are tribunals?

Answer 30

• Tribunals are dispute resolution bodies which obtain their power from parliament to resolve certain types of disputes.

Question 31

3. What is the purpose of VCAT?

Answer 31

VCAT purpose is to provide Victorians with low cost, accessible, efficient and independent tribunal delivering high quality dispute resolution processes.

Question 32

4. Suggest two reasons why tribunals are an important means by which people can resolve their disputes.

Answer 32

Tribunals provide individuals with a low cost, efficient and speedy method of dispute resolution process.
It provides Australians with an alternative option two resolving disputes to that of courts, which can often be seen as stressful and costly.

Question 33

5. Explain one way that VCAT aims to be accessible to all Victorians.

Answer 33

VCAT has a number of venues across the state, many of which are in rural areas

Question 34

Roles of Tribunals.

Answer 34

• Tribunals are dispute resolution bodies which obtain their power from parliament to resolve certain types of disputes.
• Tribunals develop expertise in particular types of disputes and are able to make binding decisions on the parties.
• The purpose of tribunals is to provide individuals with a low- cost, efficient and speedy method of dispute resolution process.
• Tribunals are not able to hear every type of dispute. For example, tribunals have no power to hear representative proceedings (also known as class actions)

Question 35

Commonwealth tribunals

Answer 35

• Administrative Appeals Tribunal (AAT)
• Fair Work Commission
• National Native Title Tribunal

Question 36

State tribunals

Answer 36

• Victims of Crime Assistance Tribunal (VOCAT)
• Victorian Civil and Administrative Tribunal (VCAT)
• Mental Health Tribunal

Question 37

• Administrative Appeals Tribunal (AAT)

Answer 37

• The AAT allows parties to seek an independent review of
  a decision made by the Commonwealth Government. For example, a party can seek a review of a decision made by a government body about taxation, child support or passports. The AAT also has specialist divisions such as the Migration and Refugee Division, which reviews decisions about the refusal or cancellation of visas.

Question 38

• Fair Work Commission

Answer 38

• The Fair Work Commission is the national workplace relations tribunal, which has the power to carry out a range of functions, including resolving workplace disputes through mediation, conciliation and in some cases public hearings.

Question 39

• National Native Title Tribunal

Answer 39

• The National Native Title Tribunal can hear and determine certain native title applications, being applications in relation to the recognition of land title unique to Aboriginal people.

Question 40

• Victims of Crime Assistance Tribunal (VOCAT)

Answer 40

• Victims can be awarded compensation from VOCAT, who will hear and determine an application and make a decision as to the financial assistance that should be awarded.

Question 41

• Victorian Civil and Administrative Tribunal (VCAT)

Answer 41

• VCAT is a ‘one-stop shop’ for parties and deals with a broad range of civil disputes, including small civil claims, residential tenancy disputes, discrimination claims and guardianship issues.
• VCAT purpose is to provide Victorians with low cost, accessible, efficient and independent tribunal delivering high quality dispute resolution processes.

Question 42

• Mental Health Tribunal

Answer 42

• The Mental Health Tribunal seeks to protect people with mental illness. One of its functions is to hear applications made by mental health patients who wish to challenge a treatment order that has been made against them, or wish to be transferred to another designated mental health service.

Question 43

1 What is an ombudsman?

For example, the Victorian Ombudsman was established by the Ombudsman Act 1973 (Vic).

Answer 43

• Ombudsman obtains power to hear and determine complaints through parliament. One of the key features of an ombudsman is that they ensure procedural fairness by giving parties an opportunity to respond to a complaint, and by giving reasons for any decision that is made.

Question 44

There are two types of ombudsman:

• Gov
• Indu

Answer 44

• a government ombudsman, who deals with disputes or complaints about government agencies
• an industry ombudsman, who deals with disputes between consumers and businesses in particular industries such as telecommunications, financial services, public transport, and energy and water.

Question 45

Role of an ombudsman

• free
• not vice versa
• resolve the complaint
• parties an opportunity to respond to a complaint

Answer 45

• Unlike courts and tribunals, an ombudsman is free. Further, unlike courts and tribunals, most ombudsman services hear complaints from individuals against industry providers, agencies and businesses (and not vice versa)
• An ombudsman will first try and resolve the complaint by working with the two parties. Where an agreement cannot be reached, the ombudsman may have the power to make a binding decision on the parties, though whether that decision has to be followed depends on the parties.
• One of the key features of an ombudsman is that they ensure procedural fairness by giving parties an opportunity to respond to a complaint, and by giving reasons for any decision that is made.

Question 46

Commonwealth Ombudsman

Answer 46

• Telecommunications Industry Ombudsman

- Fair Work Ombudsman

Question 47

Victorian Ombudsman

Answer 47

Energy and Water Ombudsman

Public Transport Ombudsman

Question 48

Public Transport Ombudsman

Answer 48

• The Public Transport Ombudsman investigates and resolves complaints about certain public transport operators, including Public Transport Victoria (which operates myki), Metro Trains Melbourne, V/Line and Yarra Trams. Issues they look at include ticketing, penalties, customer service and the conduct of public transport staff.

Question 49

• Telecommunications Industry Ombudsman

Answer 49

• The Telecommunications Industry Ombudsman provides people with a dispute resolution service in relation to complaints about their telephone or internet service in Australia.

Question 50

• Fair Work Ombudsman

Answer 50

• The Fair Work Ombudsman provides services to workers and employers, including assessing complaints or suspected breaches of workplace laws and in some instances enforcing workplace laws (including those related to pay and work conditions).

Question 51

Energy and Water Ombudsman

Answer 51

• The Energy and Water Ombudsman hears complaints about energy and water companies. Complaints may be about high bills or billing mistakes, energy disconnections, outages, power surges or water meters.

Question 52

What are complaints bodies?

Answer 52

Complaint bodies deal with complaints about the provision of goods and services, or decisions made by certain bodies or authorities.

Question 53

Explain two ways that complaints bodies aim to help ordinary Australians.

Answer 53

• They are intended to provide a free complaints and dispute resolution service so that ordinary Australians have access to dispute resolution services without any cost to them.

Question 54

3. What is the Victorian Equal Opportunity and Human Rights Commission (VEOHRC)? What sort of complaints does it hear?

Answer 54

• The VEOHRC hears disputes in relation to equal opportunity, discrimination and any infringement of human rights. The VEOHRC receives its powers from various Victorian statutes to help people resolve complaints about discrimination, sexual harassment, victimisation and vilification.

Question 55

4. Describe the dispute resolution method that is used by the VEOHRC.

Answer 55

The complaint process that is used by VEOHRC is conciliation. A person will assist the parties to talk through the issues with the aim of reaching agreement on how the dispute will be resolved.

Question 56

5. Does VEOHRC have the power to make a decision for the parties involved in a complaint? What other options do the parties have to reach agreement?

Answer 56

The Commission has no power to make orders, award compensation or make bindings decisions on the parties. The parties can reach an agreement to financial compensation, an apology, job reinstatement, or an agreement that the behaviour would stop.

Question 57

Identify two statutes in Victoria that make it unlawful to discriminate or vilify people.

Answer 57

• Equal Opportunity Act 2010 (Vic) and the Racial and Religious Tolerance Act 2001 (Vic)

Question 58

What are complaints bodies

Answer 58

• Inspector general of Taxation
• Inspector General of intelligence and security
• Health complaint commissioner
• • VEOHRC
• Consumer affairs Victoria
• Office of the eSafety commissioner

Question 59

decider of facts.

Answer 59

the judge or magistrate (or jury) is the decider of facts.

Question 60

The role of the Victorian courts in resolving disputes

Answer 60

• determining the liability of a party

- deciding on the remedy (if required).

Question 61

Determine liability

Answer 61

• The role of the courts to determine whether the defendant is liable and, if so, to what extent that defendant is liable
• They will determine whether the plaintiff, on the balance of probabilities (being the standard of proof in civil disputes), has established or proven that the defendant caused the loss or harm suffered by the plaintiff.
• If the defendant has made a counterclaim, the judge or magistrate (or jury) will also need to determine whether the plaintiff is liable for that claim.

Question 62

balance of probabilities

Answer 62

• the standard of proof in civil disputes. This requires the plaintiff to establish that it is more probable (i.e. likely) than not that his or her side of the story is right

Question 63

The Evidence Act 2008 (Vic

Answer 63

• A witness is not able to give evidence of an opinion to prove a certain fact
• At a final hearing or trial, witnesses give evidence either orally or in writing.

Question 64

Role of courts Manage the case

Answer 64

• give orders and directions to the parties.
• assist the parties through the stages of the proceeding before it reaches the final hearing or trial
• include requiring the parties to disclose relevant documents through the process of discovery of documents, or requiring the parties to attend mediation before trial

Question 65

Discovery of documents

Answer 65

• A pre-trial procedure which requires the parties to list all the documents they have that are relevant to the case. Copies of the documents are normally provided to the other party

Question 66

Role of courts Hear appeals

Answer 66

• have the power to hear appeals. If a party is dissatisfied with a decision of the judge or magistrate, that party may be able to appeal the decision if there are grounds to do so. The higher court will then review the decision.

Question 67

Decide on the remedy

Answer 67

• The most common remedy is damages (an amount of money to be paid by one party to the other – usually the defendant to the plaintiff).
• calculate the amount of damages, normally based on evidence that is presented by both parties about what the damages amount is

Question 68

Original jurisdiction Definition

Answer 68

• the power of a court to hear a case for the first time (i.e. not on appeal from a lower court)

Question 69

Appellate jurisdiction Definition

Answer 69

• the power of a court to hear a case on appeal

Question 70

Who has Original Jurisdiction?

Answer 70

• Magistrates’ Court - claims up to $100 000 unlimited
• County Court - unlimited
• Supreme Court (Trial Division) - unlimited
• Supreme Court (Court of Appeal) – No Original Jurisdiction

Question 71

Who has Appellate jurisdiction APPELLATE JURISDICTION?

Answer 71

• Magistrates’ Court Magistrates’ Court - no appellate jurisdiction
• County Court - no appellate jurisdiction, unless given under a specific Act of Parliament
• Supreme Court (Trial Division ) - appeals on a question of law from the Magistrates’ Court and VCAT
• Supreme Court (Court of Appeal) - appeals from the County Court, Supreme Court (Trial Division) or VCAT when constituted by the President or a vice-president

Question 72

Strengths of courts as dispute resolution bodies

• impartial
• active judicial case management
• specialised
• mediation
• procedural fairness
• reduce delays,
• binding decisions
• doctrine of precedent
• appeal

Answer 72

• Judges are impartial referees who make decisions based on fact and law, not on bias, thus ensuring equality and fairness in decision-making
• Courts aim to reduce delays and costs through active judicial case management and giving directions or orders to the parties
• Because of the court hierarchy, judges and court personnel are specialised, thus ensuring fairness and expertise in the way that proceedings are managed
• Encouraging parties to attend mediation and enter into an out-of-court settlement before trial has assisted in matters being resolved more quickly and more cheaply than having a full trial or hearing
• Formal court processes, the way in which cases are managed and rules of evidence ensure procedural fairness by allowing a party to present their case and rebut the other party’s case
• Many courts have adopted practices to reduce delays, such as ‘fast tracking’ some matters and reducing the pre-trial procedures that need to be undertaken
• Courts are able to make binding decisions which ensures certainty in the outcome
• The doctrine of precedent applies in court cases, therefore allowing consistency in decisions in similar cases
• The court hierarchy allows for a party to appeal a case

Question 73

weaknesses of courts as dispute resolution bodies

• too expensive
• delays
• formalities
• inconvenienced
• disadvantage
• access to justice

Answer 73

• Courts have been criticised for being too expensive for many Australians, largely due to the need for legal representation and the costs involved in undertaking procedures such as discovery
• Despite reforms to civil procedure in relation to case management, there can still be delays in a matter being resolved
• The formalities of the process can result in parties feeling stressed, intimidated or nervous
• The onus on the parties to prove their case can mean that they are inconvenienced by having to gather evidence and produce documents
• Without legal representation, which can be expensive, a party may be at a disadvantage in presenting their case, therefore meaning that they are not as equal as another party who may have skilled legal representation
• Some courts have been slow to adopt and embrace technology in some areas, such as e-filing, thus reducing access to justice for some people, particularly those in rural areas

Question 74

When is a jury used in civil trials?

Answer 74

• in the Magistrates’ Court, and in appeal cases, there is no jury
• in the County Court and the Supreme Court, a jury is optional. If either party wants a jury, then they must request a jury trial. They must also pay the fees associated with it (though a judge is able to still order that the trial be by judge alone).
• • It is also possible for the judge to require a jury for a civil trial. If this is the case, the state will pay for the jury.
• Juries, however, are sometimes used in defamation cases.
• There are six jurors in a civil trial.

Question 75

Peremptory challenges

Answer 75

Peremptory challenges are challenges without a reason. A peremptory challenge in a civil trial is made by striking the name or number of the potential juror from the list of persons to be selected to serve on the jury. There can be an unlimited number of challenges for cause; that is, challenges with a reason.

Question 76

Role of the civil jury

Answer 76

• In conducting their role, juries are seen to ensure justice is administered in line with community standards, rather than in line with the views of a small number of people (that is, judges).
• If present, a civil jury may also be required to decide on the amount of damages to be awarded. In defamation cases, only a judge can decide the amount of damages.
• Jurors are not required to give reasons for their decision (unlike a judge or magistrate).

Question 77

remedy

Answer 77

• In a civil case, the plaintiff normally seeks a remedy. Put simply, a remedy is a way in which a court can right the wrong that has occurred to the plaintiff.

Question 78

The purposes of remedies

Answer 78

• Restore (as much as possible), the party who has suffered loss or injury to the position they were in before the loss or injury occurred.
• This is usually in the form of a payment of money, known as damages. If a person is owed an amount of money, they can make a claim through the courts.
• An injured person may claim a sum (amount) of money to compensate for any pain or suffering incurred as a result of the civil wrong.

Question 79

Damages

Answer 79

• The main purpose of damages is to compensate the plaintiff for losses suffered. If there is any permanent damage, such as the loss of a limb, it will not be possible to physically restore the injured party to how they were before the injury. Damages are therefore given to try to compensate for the loss or injury suffered.

Question 80

Compensatory damages

Answer 80

special or specific damages – These are awarded to compensate the injured party (usually the plaintiff) for items that can be calculated objectively and exactly; for example, loss of wages, medical expenses and hospital expenses

general damages – These are awarded to compensate the plaintiff for pain and suffering. These cannot be calculated objectively because they include consideration of the extent of the plaintiff’s emotional suffering and loss of enjoyment of life. The plaintiff’s counsel may make submissions about the appropriate amount.

• aggravated damages – Aggravated damages are awarded to compensate the plaintiff further if the court believes that the defendant’s conduct injured the plaintiff’s feelings by causing humiliation and insult.

Nominal damages

• Nominal damages are awarded by a court if the court believes that the defendant has infringed the rights of the plaintiff, but the plaintiff did not suffer any actual loss.
• The contract was broken but there was no loss or damage.

Question 81

Exemplary damages

Answer 81

• Exemplary damages cannot be awarded in defamation case
• Exemplary damages may be awarded if the defendant’s action was so negligent that the court wishes to deter others from similar action and to show disapproval of the defendant’s action.

Question 82

Contemptuous damages

Answer 82

• A court might feel that the plaintiff has a legal right to damages, but does not have a moral right; that is, the plaintiff did not really deserve to be paid damages. In such a situation, a small sum of damages might be awarded to show contempt for the claim that is made, while admitting the plaintiff ’s right to make the claim.

Question 83

Injunctions

Answer 83

• Injunctions are a type of civil remedy when the court makes an order for the defendant to undertake an action or do something (or refrain from undertaking an action, or from doing something) in an attempt to restore the plaintiff to the position they were in prior to the loss or harm suffered.

Question 84

• restrictive injunction.

Answer 84

This is an injunction stopping someone from doing something; for example, a person could apply for a restrictive injunction to stop a building being destroyed if it were in the interests of the nation to preserve it.

Question 85

• mandatory injunction

Question 86

Effectiveness of injunctions

Answer 86

Like damages, whether an injunction will be effective will depend on the facts of the case, and the loss that the plaintiff has suffered. Some of the factors to consider are as follows:
• whether the defendant has already caused too much damage
• whether the defendant will stop the actions or may do other things to cause the plaintiff loss
• whether the defendant will comply with the injunction
• will the plaintiff be returned back to his or her position? For example, if the defendant is
stopped from publishing any more defamatory material, will that rectify the loss suffered to the plaintiff ’s reputation?
• is there another remedy that is better for the plaintiff?
• what about compensation for the time, stress and inconvenience of initiating court proceedings?

Question 87

Remedies are granted when….

Answer 87

• Remedies are granted when a civil law has been broken or rights have been infringed