Chapter 7: Resolving a Civil Dispute Flashcards
(127 cards)
1
Q
What are complaint bodies?
A
Organisations established by parliament to offer free dispute resolution services to people who make formal grievances about the conduct of another party.
2
Q
What is Consumer Affairs Victoria (CAV)?
A
A complaint body which protects and promotes the interests of consumers.
3
Q
What is the role of CAV?
A
- advise Vic gov on consumer legislation
- inform and guide people about consumer laws
- enforce compliance with consumer laws
- facilitate efficient, free and non-adversarial dispute resolution for consumers/sellers + landlords/tenants
4
Q
What dispute resolution methods is used by CAV; what services does it provide?
A
conciliation
dispute res services over the phone
sometimes in-person conciliation
5
Q
What factors influence the appropriateness of using CAV to resolve a civil dispute?
A
- whether its within CAV’s jurisdiction
- whether its likely to be resolved
- whether there are better alternative ways to resolve dispute
+ whether it has been dealt with by VCAT or court or there is case pending
+ whether consumer has tried to resolve dispute themselves first
+ whether complaint warrants involvement (ensuring it’s not trivial)
+ if consumer is vulnerable/disadvantaged (if they are, CAV’s involvement may be needed)
6
Q
What types of disputes are within CAV’s jurisdiction?
A
disputes about:
- supply of goods/services
- residential tenancies
- retirement villages
- owner’s corporations
7
Q
What influences whether a dispute is likely to settle?
‘know of’ this, don’t obsess ~ will vary based on scenario
A
- delay in complaining to CAV
- if other party has previously refused to undertake conciliation
- if person complaining has contributed to dispute through inappropriate behaviour
- dispute is not overly subjective
- if other party made reasonable offer that was rejected by consumer
8
Q
What influences whether there are other or better ways to resolve the dispute?
A
- willingness to negotiate
- previous failed attempts to negotiate
- whether binding order is more appropriate than reaching resolution themselves
- other party unlikely to take conciliation seriously
- if party prefers formality of tribunal/court
- case too big or complex
- urgent matter
9
Q
Evaluate CAV as a dispute resolution body
A
STRENGTHS:
* Free = accessible to all
* Informal = without fear/favour
* Both sides can present their case and rebut each other’s = procedural fairness
* Has criteria to assess disputes individually = filter = less wastage of time/resources
* Aims to conciliate in timely manner = less delays
* Non-adversarial = voluntary not imposed decision = more likely to accept outcome
WEAKNESSES:
* Limited role (e.g. no big/complex cases) and jurisdiction = less cases can be resolved through it
* Power imbalance between parties may increase anxieties and hinder fairness
* Decision is not binding unless terms of settlement entered
* CAV does not have power to make final order
* Not all cases accepted due to criteria and prioritisation of cases
* Parties may not take process seriously = unsuccessful = add to delay + stress
Page 211-212
10
Q
What is a tribunal?
A
A civil dispute resolution body that is less costly, more informal and more efficient than the courts.
11
Q
What is VCAT (Victorian Civil and Administrative Tribunal)?
A
A tribunal that deals a range of civl disputes heard by various lists e.g. Human Rights List, Civil Claims List, Residential Tenancies List
12
Q
What is a member?
A
Person who presides over final hearings and compulsory conferences at VCAT
e.g. VCAT president, vice-presidents, deputy presidents, senior members, ordinary members
13
Q
Identify the divisions of VCAT
A
PARCH Planning and environment Administrative Residential Tenancies Civil Human Rights
14
Q
What is the purpose of VCAT
A
Provide Victorians with a low-cost, accessible, efficient and independent tribunal delivering high-quality dispute resolution processes.
15
Q
How is VCAT low cost?
A
- low filing fees than courts
- no hearing fees for some claims
- in many list, parties don’t have to go through pre-trial procedures, which can add to legal costs incurred by parties
- encouraging self-representation (not paying lawyers)
16
Q
How is VCAT accessible?
A
- various locations in Vic
- offers telephone and video conferences in place of attending tribunal, allows online applications and conducts online hearings
- less formal than courts = more comfortable
17
Q
How is VCAT efficient?
A
Constantly aims to reduce waiting times = cases heard quicker
18
Q
How is VCAT independent?
A
- VCAT members are impartial and act as unbiased adjudicators
- supported by Court Services Victoria (CSV) which is independent of parliament and government
19
Q
What dispute resolution methods are used at the Victorian Civil and Administrative Tribunal (VCAT)?
A
- mediation, including fast track mediation and hearing for small civil claims
- compulsory conferences
- a final hearing before a member
20
Q
What is fast track mediation and hearing?
A
Dispute resolution process used for small claims (valued between $500 and $10,000) about goods/services in the Civil Claims List at the Victorian Civil and Administrative Tribunal (VCAT).
21
Q
What happens if the mediation fails in the process of fast track mediation and hearing?
A
The dispute goes straight to a hearing on the same day before a VCAT member
22
Q
How can mediation carried out as part of pursuing a claim through VCAT become binding?
A
When terms of settlement is entered into, and VCAT makes an order giving effect to the terms of settlement so that the terms become a formal order of the tribunal and be binding.
23
Q
What is a compulsory conference?
A
A confidential meeting where disputing partiers discuss ways to resolve their dispute in the presence of a VCAT member. Use a conciliation process.
24
Q
What is a final hearing?
A
A hearing which allows disputing parties to present their case before a VCAT member who makes a binding decision for them.
25
Explain appeals from decision made by VCAT
Can only be made on a question of law.
If tribunal was presided over by President or vice president, appeal hears in Court of Appeal. All others head in the Trial Division of the Supreme Court.
26
What factors influence the appropriateness of resolving a dispute through VCAT?
- whether dispute is in VCAT's jurisdiction
| - whether there are other or better ways to resolve dispute
27
What is exclusive jurisdiction?
When only a particular dispute resolution body (e.g. VCAT) has the lawful authority to hear and determine particular types of disputes.
28
What is review jurisdiction?
When a dispute resolution body (e.g. VCAT) has the lawful authority to affirm, change or set aside a decision made by another authority.
29
What types of claims are outside of VCAT's jurisdiction?
- representative proceedings
- disputes between employers and employees
- disputes between neighbours (unless it's also a dispute about owner's corporation)
- disputes between drivers in car accidents
- disputes involving federal/state law where VCAT lacks the power to hear the matter
30
What factors influence whether there are other or better ways (than using VCAT) to resolve a dispute?
- whether parties can resolve dispute themselves through negotiation/mediation
- nature of fees (for some lists, they may be just as high as or higher than courts)
- whether parties want greater avenues for appeal
- whether parties will take VCAT seriously
- whether parties prefer formality of court
- complexity/size of matter
- if parties don't wish to be bound by precedent of courts (VCAT can't make new law)
31
Evaluate VCAT as a dispute resolution body
Page 219
32
Identify the main types of pre-trial procedures
Pleadings
Discovery of Documents
Exchange of Evidence
33
Define pleadings
A pre-trial procedure in which the plaintiff files their statement of claim and the defendant files their statement of defence to help define the issues in dispute.
34
What is a statement of claim? Provide Example
A document filed by the plaintiff to notify the defendant about the details of the claim and the remedy sought.
E.g. if plaintiff claims that defendant has breached contract, statement of claim will state what the contract was, how it was breached and the loss suffered.
35
What is the defence? Provide example.
A document filed by the defendant which sets out a response to each of the plaintiff's claims (contained in their statement of claim).
E.g. defendant may admit that there was a contract but deny that they have breached it.
36
Explain the purposes of pleadings
- procedural fairness: ensuring other side knows what claim/defence is about
- reduce the element of surprise = upholds fairness
- give court written court of case = allow court to understand issues to better manage the trial and pre-trial procedures = upholds access
- set limits to dispute = other processes like discovery also confined = save time/resources = access
- encourage out-of-court settlement e.g. Each party develops an understanding of the strength of the opposing party’s case; this encourages parties to settle before a trial
- clarifying legal issues and facts before trial ensures that the trial runs smoothly and more quickly. This minimises delays and promotes fairness for those seeking compensation (as delays compound suffering).
37
What is discovery of documents? Provide examples.
A pre-trial procedure requiring parties to list all the documents of relevance to the case. Copies are normally provided to the other party.
E.g.
- If the plaintiff claims that there is a written contract you would expect they would have a copy of it.
- If the plaintiff claims to have suffered physical injuries you would expect them to have medical records.
38
Explain the purposes of discovery
- disclosing all relevant documents allows court and other party access to them, enabling them to better understand case
- reduce element of surprise as parties have seen relevant documents and can prepare defence
- encourage out-of-court settlement e.g. Each party develops an understanding of the strengths and weaknesses of the opposing party’s case as adverse docs must also be disclosed; this encourages parties to settle before a trial
- familiarising with other sides' documents ensures that the trial runs smoothly and more quickly. This minimises delays and promotes fairness for those seeking compensation (as delays compound suffering).
39
What is lay evidence?
• Evidence given by an ordinary person about the facts in dispute
* Laypersons may give evidence as follows:
* as a witness outline
* by filing a witness statement
* orally.
40
If a witness provides a witness outline or witness statement (the written form of evidence they would give orally), do they still need to attend trial?
Yes. For cross-examination.
41
Does a layperson who gives evidence orally have to provide a witness outline or statement before giving the evidence?
No.
42
What is expert evidence?
Evidence given by an independent expert about an area within their expertise.
* Example: accountancy, medicine, finance, engineering or law expert
* Expert evidence is often submitted by way of a written report by an independent expert.
43
What are the purposes of exchange of evidence?
- reduces the element of surprise at trial, particularly when evidence is disclosed in writing before trial
- provides opportunity to rebut against other side by engaging own expert
- allows each party to understand case of opposition = access
- allows each party to determine the strength of the other side’s case and determine their likelihood of success = may encourage out-of-court settlement by revealing weaknesses in own case
- runs smoothly and more quickly. This minimises delays and promotes fairness for those seeking compensation (as delays compound suffering).
44
What is a court hierarchy?
A ranking of courts from highest to lowest in order of the complexity and severity of cases they deal with.
45
Explain how the existence of a court hierarchy enables administrative convenience
Administrative convenience is one reason for a court hierarchy which refers to how the handling of cases is streamlined through the presence of a centralised court system.
The ranking of courts means cases can be distributed according to their seriousness and complexity. This provides logistical efficacy as the Magistrates' court - of which there are many in the state - can handle the multiple minor cases while the Supreme and County court can devote with the more time-consuming, complex cases without being clogged up with minor cases.
46
Explain how the existence of a court hierarchy enables appeals
The existence of a ranking of courts based on the complexity of matters they deal with ensures that someone who is dissatisfied with a decision in a civil trial can apply to a higher authority for a review of the verdict.
47
How does the system of appeals enable fairness?
The system of appeals helps to achieve fairness as a just outcome is more likely to take place because any mistakes made in the original court can be corrected.
If there was no system of appeals, unfairness would result as there would no process whereby unjust decisions could be corrected.
48
Identify and outline the grounds for appeal in a civil case
A point of law - legal error in application of law
A question of fact - facts not appropriately applied to reach decision
Remedy awarded - nature of order enforced
49
Outline original and appellate jurisdiction of Magistrates' Court
Original:
Claims up to $100,000
Appellate:
No appellate jurisdiction
50
Outline original and appellate jurisdiction of Magistrates' Court
Original:
Claims up to $100,000
Appellate:
No appellate jurisdiction
51
Outline original and appellate jurisdiction of the County Court
Original:
Unlimited
Appellate:
No appeals, unless given power under specific Act of Parliament
52
Outline original and appellate jurisdiction of Supreme Court (Court of Appeal)
Original:
No original jurisdiction
Appellate:
On question of law, question of fact or remedy awarded from County Court or Supreme Court
53
Outline original and appellate jurisdiction of Supreme Court (Trial Division)
Original:
Unlimited
Appellate:
On question of law from Magistrates' Court or VCAT
54
Identify the responsibilities of a judge
ADAM. D the judge must
```
Attent to jury
Decide on costs
decide of Admissibility of evidence
Manage the trial
Determine liability and remedy
```
55
What does managing the trial involve for judges in a civil trial?
Using powers of case management and giving directions to ensure a just, timely and efficient trial that follows the court's set procedure (unless this procedure is intentionally changes by the judge themselves)
56
Define case management
A method used by courts and tribunals to control the progress of legal cases more effectively and efficiently. Generally involves the judicial officer making orders and giving directions in the proceeding.
57
What are directions?
Instructions given by the court to the parties about time limits and the way a civil proceeding is to be conducted.
58
What does deciding on admissibility of evidence involve for judges in a civil trial?
Decide which evidence is permissible and which must be excluded from trial to ensure fairness in the way evidence is allowed.
59
What does attending to jury (if there is one) involve for judges in a civil trial?
No jury in most civil trials.
If there is a jury, judge may need to address them during trial, give directions to jury and sum up the case to the jury at the conclusion of the trial.
60
What does determining liability and the remedy involve for judges in a civil trial?
If there is no jury, judge must decide whether plaintiff has established their claim against the defendant on the balance of probabilities, and if so, what remedy (if any) should be awarded.
This means the judge, not the jury, acts as decider of facts.
Judge should provide their judgement in a timely manner and in way that is accessible and readable.
61
What does deciding on costs involve for judges in a civil trial?
After each hearing, judge decides which party should bear the costs.
General rule: costs calculated in the end and successful party is entitled to costs, not always the case
62
Under what circumstances may a jury be used in a civil case?
- if plaintiff/defendant specify during pleadings that they want a trial by jury. but court can direct that trial be without jury if it decides that a jury is not required.
- court may order that a proceeding be tried by jury (rare)
63
Who pays the fees for engaging a civil jury?
The party who wished a civil dispute to be tried by jury.
64
How many jurors in a civil jury?
Normally 6
But 2 additional jurors may be empanelled by court
So say 6-8 jurors
But only 6 of them actually deliberate
65
Identify the responsibilities of a civil jury
```
LOUD
Listen to and remember evidence
Be Objective
Understand directions and summing up
Decide on liability, and in some cases, damages
```
66
What does being objective involve for civil juries?
Jury must be independent, unbiased and put aside any prejudices and preconceived ideas to decide purely on the facts.
67
What does listening to and remembering evidence involve for civil juries?
Evidence may be complex and hard to understand for laypersons.
Thus, jurors must concentrate on and remember evidence (e.g. by taking notes) to be able to decide on the facts presented during trial.
68
What does understanding directions and summing up involve for civil juries?
To be able to make decisions on points of law and to apply facts to the law as explained by the judge, jury must listen carefully to directions and summing up.
69
What does deciding on liability and, in some cases, damages involve for civil juries?
Decide whether plaintiff has established their case on the balance of probabilities.
70
What kind of verdict must a civil jury reach?
Must try and reach a unanimous verdict (6/6 jurors in agreement), but court may accept majority verdict in all cases (5/6 jurors in agreement)
71
Identify the responsibilities of a party in a civil case
DOM parties
Discover relevant documents
comply with Overarching obligations
Make decisions about the conduct of the case
72
What does making decisions about the conduct of the case involve for parties in a civil trial?
Based on concept of party control which enables parties to decide how their case will be run (as long as court procedure is followed), including what claims they make, what defences they raise and which witnesses they call on.
73
Define the concept of party control
A term used to describe the power that each party in a legal case has to decide how they will run their case.
74
What does discovering relevant documents involve for parties in a civil trial?
Undertaking the pre-trial procedure of discovery by handing over key relevant documents.
75
What does complying with overarching obligations involve for parties in a civil trial?
Must act in accordance with the 10 overarching obligations established by the Civil Procedure Act 2010 (Vic).
These include duty to:
- act honestly
- only take steps to resolve or determine dispute
- cooperate
- don't mislead or deceive
- use reasonable endeavours to resolve dispute
- narrow the issues in dispute
- ensure costs are reasonable and proportionate
- minimise delay
- disclose existence of critical documents
- only make claims that have a proper basis
76
Identify the responsibilities of legal practitioners in a civil trial
```
COOPerate
Comply with duty to the court
comply with Overarching obligations
make Opening and closing addresses
Present the case to the judge or jury
```
77
What does complying with their duty to the court involve for legal practitioners in a civil trial?
Must prioritise duty to administration of justice above duty to client and thus avoid misleading/deceiving the court and be honest.
78
What does making opening and closing addresses involve for legal practitioners in a civil trial?
Normally prepare submissions and present them in court before the commencement of evidence and finally after the conclusion of evidence.
79
What does presenting the case to the judge or jury involve for legal practitioners in a civil trial?
Present case in manner that is the best interests of their client.
Involves undertaking examination-in-chief, cross-examination and re-examination and making submissions about matters that arise during trial.
80
What does complying with overarching obligations involve for legal practitioners in a civil trial?
Must act in accordance with the 10 overarching obligations established by the Civil Procedure Act 2010 (Vic).
These include duty to:
- act honestly
- only take steps to resolve or determine dispute
- cooperate
- don't mislead or deceive
- use reasonable endeavours to resolve dispute
- narrow the issues in dispute
- ensure costs are reasonable and proportionate
- minimise delay
- disclose existence of critical documents
- only make claims that have a proper basis
81
What is the overarching purpose of the civil procedure act?
To facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute
82
Identify two powers of case management
Power to order mediation
| Power to give directions
83
Explain the judicial power to order mediation
At any point, a judicial officer may make an order referring a civil proceeding to mediation to assist the prompt and economical resolution of a dispute.
84
Explain the judicial power to give directions
At any stage, a Judicial officer can give instructions which specify how a civil proceeding is to be conducted to assist in the prompt and economical resolution of the dispute.
85
What factors influence the appropriateness of using courts as dispute resolution bodies?
whether dispute is within the court's jurisdiction
| whether there are other/better ways to resolve the dispute
86
What matters fall under VCAT's exclusive jurisdiction and cannot be heard by the courts?
- domestic building disputes
- retail tenancies disputes
- residential tenancies disputes
- planning disputes
87
What factors influence whether there are other/better ways (than using courts) to resolve the disputes?
- whether negotiation is possible
- costs of taking matter to court
- ability to engage legal representation
- level of comfort with formality of courtroom and rules of procedure
- size and complexity of matter
- whether proceeding is a class action that must be heard in Supreme Court
- time it will take to have matter resolved in court. If swift resolution is wanted, CAV/VCAT better
- sensitivity to publicity
88
Evaluate courts as a dispute resolution body
FAIRNESS
strength
- pre-trial procedures allow parties to determine strength/weakness of other side's case and prepare rebuttal = present case in best light
- impartial + independent judge/jury
weakness
- pre-trial procedures are long+complex, add to stress and inconvenience, make it harder to present case in best light
- formality and set procedures can worsen stress = undermine 'without fear or favour'
- subconscious assertion of bias as they cannot be completely impartial = verdict may still be influenced by their pre-existing views/values
ACCESS
strength
- certainty of outcome through binding and enforceable decisions = ensures access to resolution
- use of jury allows for application of community values and enables expression of community voice in civil justice system
weakness
- delays are common due to pre-trial procedures and appeals can still work to prolong the process of reaching a resolution
- jury trial can add to delay as matters must be explained to jurors
- expensive to engage jury
- costs of filing, legal rep, disbursements hinder access
EQUALITY
strength
- procedures and laws apply to all e.g. both parties undertake pre-trial procedures & judicial powers of case management are applicable to all parties
- judicial powers e.g. directions used to ensure that neither party is advantaged/disadvantaged
weakness
- quality of legal rep engaged can create advantage/disadvantage
- vulnerable party may be disproportionately affected by formalities and delays = their personal characteristics disadvantage them
89
What are alternative dispute resolution methods?
Ways of resolving or settling civil disputes that do not involve a court or tribunal hearing (e.g. mediation, conciliation, arbitration)
90
What is mediation?
Mediation is an alternative dispute resolution method in which parties reach a voluntary resolution to their dispute. An independent third party, the mediator, encourages the two parties to communicate and reach a conclusion.
Legal representation is usually not used in mediation.
The decision reached by the parties is itself not binding, but it can become enforceable if a terms of settlement is entered into.
91
In what ways may mediation be available to parties?
* Courts – the Magistrates’ Court, County Court and Supreme Court can refer civil disputes to mediation.
* VCAT – VCAT often refers a claim to mediation before a final hearing.
* CAV – Primarily uses conciliation, and only has the power under certain statutes to use mediation.
* Private use – Individuals may attempt at any time before or after they initiate a claim.
92
What is conciliation?
Conciliation is an alternative dispute resolution method in which parties reach a voluntary resolution to their dispute. An independent third party, the conciliator, encourages the two parties to communicate and reach a conclusion, and will offer suggestions to the parties as to how the dispute might be resolved.
Legal representation is usually not used in conciliation.
The decision reached in conciliation by the parties is itself not binding, but can become enforceable if a terms of settlement is entered into.
93
In what ways may conciliation be available to parties?
* Courts – All courts do have the power to order any civil proceeding to conciliation.
* VCAT – The parties may be ordered to take part in a compulsory conference to identify and clarify the nature of the issues in dispute in the proceedings.
* CAV – CAV primarily use conciliation to resolve disputes.
* Private use – Individuals may attempt conciliation at any time either before or after they initiate a claim.
94
What types of disputes are suitable for mediation and conciliation?
- relationship between disputing parties will continue
- parties willing to negotiate
- defendant admits liability and only remedy needs to be determined
- parties want privacy and confidentiality
- combination of remedies required to achieve plaintiff's outcome
- court has referred parties to mediation/conciliation
- legal costs expected to be significant and matter can be resolved at early stage
95
What types of disputes are not suitable for mediation and conciliation?
- involve overwhelming emotions that interfere with negotiation process
- history of broken promises
- history of violent/threatening behaviour e.g. domestic violence
- one/both parties unwilling to negotiate
- imbalance of power between parties
- poor mental health weakens prospects for success
- debt is clearly owing by one party
- urgent
96
Identify strengths of mediation and conciliation
- the decision is more likely to be acceptable to the parties as they have reached it themselves
- less formal setting; can help alleviate stress and feelings of intimidation
- make use of experienced and independent third party who empowers BOTH parties to say their piece
- less time consuming and costly compared to courts
- matters can be discussed with confidentiality without publicity and without discussions being held against the party if matter not settled as part of process
- more flexibility as parties are free to explore options to resolve dispute that aren't available in court
97
Identify weaknesses of mediation and conciliation
- both parties must be willing to participate for it to be successful, if one or both don't cooperate, it will be waste of time and money
- unless parties enter into terms of settlement, decisions are not binding and may not be followed = resulting in need to pursue dispute in court = add to time and cost + delay justice
- not appropriate for some disputes, such as when one party has an unfair advantage or more bargaining power
- one party may dominate the other party
- in mediation, mediator cannot give advice or offer suggestions = parties may not be able to understand + enforce their legal rights
- no ability to appeal decision made, restricting use of a mechanism of civil justice system and restricting access
98
What is arbitration?
Arbitration is an alternative dispute resolution method in which parties present their own evidence and legal arguments to an arbitrator. This independent third party listens to the case presented by each party and decides an outcome.
Legal representation is usually not used in arbitration.
The decision imposed in arbitration is legally binding.
99
What is an arbitral award?
A legally binding decision made in arbitration by an arbitrator.
100
In what ways may arbitration be used?
* Courts – All courts can refer disputes to arbitration with consent of the parties; for small claims in Magistrates' Court (under $10,000) court can refer dispute to arbitration by a magistrate
* VCAT – Hearings are not arbitrations, but VCAT can refer a matter to arbitration if it is a more appropriate forum.
* CAV – Does not use arbitration.
* Private use – Parties can arrange their own private arbitration.
101
What types of disputes are suitable for arbitration
- willing to negotiate by way of arbitration
- less than $10,000 and issued in the Magistrates' Court
- binding and enforceable resolution made by independent third party is sought
- parties want evidence to be presented to third party & want some rules of evidence to apply
- want to avoid publicity of courtroom and want matter to be resolved confidentially and in private
102
What types of disputes are unsuitable for arbitration?
- unwilling to negotiate by way of arbitration
- want greater control over dispute resolution process & outcome
- wish to have their 'day in court' and would rather not have matter conducted in private
- parties are more comfortable with formal rules of evidence and procedure, and would rather a court conduct the process
103
Identify strengths of arbitration
- more flexibility than courts = more timely resolution
- less formal than courts
- cheaper than courts
- legally binding and enforceable outcome ensures that it will be followed
- third party is independent and has expertise
- private and confidential
104
Identify weaknesses of arbitration
- can be as formal as court, depending on how parties have agreed for arbitration to be run
- not always available to parties; only if they have agreed or if court orders
- decision is made for parties by the arbitrator - may not be mutually accepted
- more expensive than mediation and conciliation
- can be costly and take a long time if parties undergo several stages, such as producing evidence
- limited right to appeal
- no control over outcome
105
Outline the role of a mediator, conciliator and arbitrator
All are an independent third party
Mediator: facilitates discussion between the parties and ensures that both sides are heard. does not need to be an expert in field
Conciliator: facilitates discussion and suggests options and possible solutions. usually has specialist knowledge in the field.
Arbitrator: listens to both sides and makes a binding decision on the parties. usually has specialist knowledge in the field.
106
What is a remedy?
Any order made by a court designed to address a civil wrong or breach. It should provide a legal solution of the plaintiff for a breach of the civil law band and (as much as possible) restore the plaintiff to their original position prior to the breach of their rights.
107
What is the general purpose of remedies?
To restore the plaintiff, as far as possible, to the position they were in before the wrong occurred.
108
What are the 2 main types of remedies?
Damages
| Injunctions
109
What are damages?
A sum of money that the court/tribunal orders one party to pay to another. It is the most common remedy in a civil claim.
110
Identify the types of damages that can be sought
- compensatory
- nominal
- exemplary
- contemptuous
111
What is the general purpose of damages?
To compensate the plaintiff for the loss suffered so as to restore the plaintiff, as far as possible, to the position they were in before the wrong occurred.
112
What is the overarching purpose of compensatory damages?
To restore trhe party whose
113
What is the overarching purpose of compensatory damages?
To compensate the plaintiff for the loss suffered so as to restore the plaintiff, as far as possible, to the position they were in before the wrong occurred.
114
Identify the different types of compensatory damages
specific damages
general damages
aggravated damages
115
What are specific damages?
A sum of money designed to compensate for loss that can be given a precise monetary value and is easily quantifiable.
e.g. medical expenses, loss of wages
116
What are general damages?
A sum of money that is deigned to compensate loss that is not readily quantifiable. Hence, general damages are an estimate of the assessed magnitude of the wrong done and the consequences of the wrong.
e.g. pain and suffering, permanent injury, future loss of wages etc.
117
What are aggravated damages?
A sum of money 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.
118
What are nominal damages? What is their purpose?
A small amount of money awarded to show that the plaintiff was legally right.
Their purpose is to uphold the plaintiff's rights without awarding any substantial amount of damages.
119
What are contemptuous damages? What is their purpose?
A small sum of money rewarded to a plaintiff who has the legal right to damages, but not a moral right to them.
Designed to show court's contempt for a claim while admitting the plaintiff's right to make it.
120
What are exemplary damages (aka punitive damages and vindictive damages)? What is their purpose?
A large sum of money that seeks to punish a defendant for an extreme infringement of rights and, to some extent, deter others from undertaking similar actions.
Designed to punish and deter the defendant where their conduct is malicious, violent, cruel. insolent and in scornful disregard of the plaintiff's rights.
121
Can exemplary damages be awarded to a plaintiff for defamation?
No
122
Are there specific restrictions placed on damages for particular cases?
Yes. Certain types of claims and certain types of loss have restrictions imposed on damages.
e.g. in defamation claims, damages for non-economic loss (pain and suffering) are limited to $250,000 (though, in some cases, this can be increased).
123
What is an injunction?
A remedy in the form of a court order to do or not do something.
Can be either restrictive/prohibitive or mandatory.
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What is the general purpose of an injunction?
An injunction is designed to prevent harm or further harm, or rectify a situation caused by the wrongdoer.
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What is a restrictive/prohibitive injunction? What is its purpose?
A court order requiring a person to refrain from undertaking an action.
To prevent a person doing harm or further harm.
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What is a mandatory injunction?
A court order compelling a person to do a particular act.
| To rectify some wrong.
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What are interlocutory/final injunctions?
An injunction (mandatory or restrictive) can be interlocutory or final.
An interlocutory injunction is a temporary injunction that is awarded quickly to preserve the position of the parties until the final determination of the matter (interlocutory injunction). At final hearing/trial, it can become a final (permanent) injunction or be dismissed.
A final injunction is a permanent injunction made at the conclusion of the case, at the final hearing or trial.
