Outcome 2 civil

Question 1

The Burden of Proof

Answer 1

The burden of proof refers to who has the responsibility
to prove the facts of the case.

In civil law, the person who has the burden of proof,
must prove the other party is liable. (We do not use the word guilty in civil law!)

In civil law, the burden of proof is on the plaintiff. They must show that the defendant is liable (at fault/was the
wrongdoer).

–> The burden of proof in a civil case CAN change!

• If the defendant files a counterclaim against the
  plaintiff, the defendant is making a direct claim and
  now has a burden of proof for that claim.
• If the defendant in their defence states that plaintiff
  contributed to the harm, the defendant must prove
  that defence.

Question 2

The Standard of Proof

Answer 2

The standard of proof refers to the level of evidence
required to prove liability in the case.

In a civil case, the plaintiff (or sometimes the defendant)
must prove the case on the balance of probabilities.

This means that their version of events were more likely
than not (more probable than not).

This is a less strict standard of proof than criminal law, as
there is room for ‘reasonable doubt’.

Question 3

1.Factors to consider before initiating a claim

Answer 3

1)COSTS
A party involved in a civil action may face costs whilst resolving the
dispute. Certain fees could include;
court fees
mediation fees
legal representation
expert witness fees
fees to be paid to the other party

Fees for Legal Representation
-the complexity of the case and how long it will take to solve
-which dispute resolution body is used
-the size of the case (example, number of witnesses or documents to
examine)
-the expertise of the legal practitioners (the more experienced they are,
the more they will charge).
-The High costs of obtaining legal representation can be a barrier that may
prevent people from initiating a civil case.

Disbursements
Issuing a claim may leave a person with a lot of
disbursements (out of pocket expenses). such as
- court fees( filing fees, jury fees) and tribunal fees (hearing fees )
-mediation fees
- fees for expert witnesses
- costs involved in using tech to manage documents

Adverse Cost Orders
If the plaintiff is unsuccessful in their claim, they will have to
pay for their legal costs and they may have to pay for the
legal costs to the other party.

This is a deterrent from initiating a civil claim as it can be
costly, especially if the outcome is against them.

Question 4

2.Factors to consider before initiating a claim

Answer 4

Limitation of Actions
There is a restricted amount of time that a civil action can be taken. The plaintiff must lodge the civil claim within that time
frame, or they will be ‘barred’ (prevented) from seeking a remedy.

A limitation of actions exists to ensure;

The defendant does not face action after a lengthy period of time

Evidence is not lost and witnesses can still remember what
happened

Disputes can be resolved quickly to promote social cohesion.

A plaintiff has one year to launch a defamation claim.

A plaintiff has six years to launch a breach of contract claim.

There is no limitation of actions for persons who suffered sexual
assault as a minor.

Question 5

3.Factors to consider before initiating a claim

Answer 5

Enforcement Issues
There are two ways a plaintiff can obtain their settlement or remedy.

By settling with the defendant before the court/tribunal makes a
decision.

By the court/tribunal making a decision and awarding a remedy.

Before making the claim, the plaintiff should consider the likelihood of
receiving the remedy from the defendant. Mostly in they are able to
pay or if they are willing to pay.

Things to consider:
- whether the defendant has assets or money to pay anything to the plaintiff
- overseas or uncontactable or in jail difficult to enforce remedy
- if the defendant is a company whether the company has assets
- can they access loans

IF THEY WONT PAY
If the defendant is unwilling to comply, the plaintiff may
have to issue enforcement proceedings. This will force the
defendant to issue the remedy.

This could include a court sheriff seizing the defendant’s
assets to sell them.

This could be difficult if the defendant is in another
country or doesn’t have the ability to pay.

The plaintiff must consider if it is financially worth suing
the defendant.

Question 6

The Principle of Fairness- Impartial Processes

Answer 6

In the civil justice system, the courts and personnel
including; the judge, magistrates, jury members,
mediators and arbitrators must be independent and
impartial.

They must decide on facts of the case and the law, and
not their prejudices. If there is any reasonable belief that
there is bias (apprehended bias) the judge may need to excuse themselves.

Question 7

The Principle of Fairness- Open Processes

Answer 7

Civil trials should be open to the public and the
judgement of the court should also be given in public.

This ensures the administration of justice is transparent and open to scrutiny.

Civil trials, hearings and tribunal hearings are open so the public can see justice being done

However

There are many instances where disputes are resolved
privately. This because of the private nature of disputes
and the ability of parties to decide how they want their
case resolved.

Mediation is an example where the dispute is private and
the resolution is normally kept confidential.

Question 8

The Principle of Fairness- Participation

Answer 8

All people should be able to participate in the justice
system. This includes the plaintiff and the defendant
and the wider community- the jury. They key
characteristics of participation in a civil case include;

Opportunity to know the case against them

Opportunity to present their version of the case

Use of an interpreter

No unreasonable time delays

Question 9

The Principle of Equality

Answer 9

Equality means that all people engaging with the justice
system should be treated the same way.

However, if treating people the same way causes
disparity (disadvantage), measures should be taken to allow everyone to engage with the justice system without disadvantage.

SAME TREATMENT
This is known as “formal equality”, all parties should be treated the same
way and given the same level of support regardless of who they are.

For example, both parties are required to complete the pre-trial
procedures, regardless of who they are or their representation.

DIFF TREATMENT
- assistance to a self-represented party: a judge or magistrate may need to take steps to explain
certain rights or processes to a self-represented party
- interpreters:
- providing information in a different way
- changes to court or tribunal processes
- different form of giving evidence

Question 10

The Principle of Access- Engagement

Answer 10

People should be able to engage with the civil justice system and its
processes. This includes;

providing a range of dispute resolution methods- courts can be
intimidating and expensive, so people need access to alternative
bodies such as CAV and VCAT

physical access- people should have physical access to courts,
tribunals and legal representatives. This is more difficult for people
with disabilities or living remotely.

technological access- virtual services or hearings,

financial access

no unreasonable time delays

Question 11

The Principle of Access- Informed Basis

Answer 11

For people to engage in the justice system, they
should be able to get information and use
procedures, methods and institutions to help
resolve the civil dispute.

This includes; courts, tribunals, bodies and
institutions that provide legal advice, education,
information, assistance and representation.

People should be informed of their rights and the
remedies available to them.

To be more informed people should be able to access:
education- a person who has a better understanding of the civil
justice system will be better informed about their rights and
potential remedies.

information- people should have access to information about how
to resolve disputes and their rights

legal services- people should have access to the services that
inform them of their rights or give advise on how best to resolve a
dispute

legal representation- is the most effective way to be informed
about processes, the law and their rights.

Question 12

Dispute Resolution Methods

Answer 12

Parties having a dispute can use a range of methods to solve the dispute. These methods include: mediation, conciliation and arbitration.

These methods can be used by the parties to avoid going to courts and tribunals, however they are also used by courts and tribunals.

Fewer than 5% of civil cases will proceed to a final hearing or trial.

Question 13

Mediation

Answer 13

Mediation is a cooperative method of solving disputes that is widely used by courts and tribunals.

It is a joint problem solving process in which the parties in conflict can sit down, discuss the issues involved, develop options, consider alternatives, amd try to reach an agreement or compromise.

An independent mediator will advocate for the parties, facilitate discussion and encourage them to reach their own agreement.

If the parties come to an agreement, they may sign a ‘terms of settlement’ which may be enforceable.

Question 14

How Mediation is used

Answer 14

If the plaintiff issues their claim in court, the court will generally order them to go to mediation before the final trial or hearing, with or without the consent of the parties.

The mediator is appointed by the court or agreed upon by the parties. The cost will be split between the parties.

Associate judges (judges with certain powers to resolve civil disputes) can also mediate disputes in the county and Supreme Court.

VCAT often refers claims to mediation before a final hearing.

Parties can engage with mediation at any time before the claim or after initiating the claim.

Mediators can be accessed through centres such as the Dispute Settlement Centre of Victoria, or through private mediation service providers.

Question 15

Conciliation

Answer 15

Conciliation also uses an independent third party.
The conciliator cannot make the final decision but will listen to the facts and make suggestions about possible ways to resolve the dispute.

Conciliation differs from mediation as the conciliator has more influence over the outcome than the mediator.

However the processes are similar, for example, the parties can still sign a term of settlement.

Question 16

comparison of mediation, conciliation, and arbitration

Answer 16

1. Third Party Involvement
   Mediation: Neutral mediator facilitates discussion but does not give advice or make decisions.

Conciliation: Neutral conciliator guides the discussion and offers suggestions/advice, but doesn’t impose a decision.

Arbitration: Independent arbitrator hears both sides and makes a binding decision.

2. Decision-Making Power
   Mediation: Decision is made by the parties themselves.

Conciliation: Decision is made by the parties, with guidance from the conciliator.

Arbitration: Decision is made by the arbitrator and is legally binding.

3. Legal Binding Nature
   Mediation: Outcome is not binding unless formalised in a contract.

Conciliation: Outcome is not binding unless formalised.

Arbitration: Outcome is legally binding and enforceable.

4. Formality
   Mediation: Informal and relaxed setting.

Conciliation: Less formal than court but may include structured advice.

Arbitration: Formal, similar to a court trial.

5. Cost
   Mediation: Low-cost, especially when court-ordered.

Conciliation: Low-cost, often government-funded.

Arbitration: More expensive than mediation/conciliation but cheaper than courts.

6. Time
   Mediation & Conciliation: Generally quick resolution.

Arbitration: Takes longer due to formal hearings, but still faster than court.

7. Control over Outcome
   Mediation & Conciliation: High control – parties shape the agreement.

Arbitration: Low control – decision made for them.

8. Use Cases
   Mediation: Family, workplace, neighbourhood disputes.

Conciliation: Equal opportunity, discrimination cases.

Arbitration: Commercial, contractual, or technical disputes.

9. Principles of Justice
   Mediation & Conciliation:

Access: Cheaper and quicker access to resolution.

Fairness: Voluntary and cooperative, but power imbalance can affect fairness.

Equality: May vary based on negotiation skills of parties.

Arbitration:

Fairness: Binding, independent decision ensures procedural fairness.

Equality: Both parties present evidence equally.

Access: Costs can limit access for some.

Question 17

How conciliation is used

Answer 17

Generally, courts prefer to use Mediation rather than Conciliation.

Conciliation is used by other bodies such as Consumer Affairs Victoria (CAV). VCAT can also order parties to undertake conciliation.

Like Mediation, parties can arrange for Conciliation at any time.

Question 18

Appropriateness of mediation and conciliation

Answer 18

• whether the relationship between the parties will continue (e.g. the dispute is between neighbours
  or family members, or between employer and employee). In this situation, mediation and
  conciliation may help to preserve the relationship
• whether the parties are willing to meet in a spirit of compromise and stick to any agreement
  reached.

—> If there is a history
of broken promises or the parties do not show a willingness to compromise, they may be less
appropriate

• whether there is a history of violent and threatening behaviour. In this case, it may be
  inappropriate for the parties to come together in such a setting
• whether one or both of the parties want the dispute to be resolved privately or confidentially
  or whether they want a public record of what occurred or the plaintiff wants to ‘make a point’ about the defendant’s conduct
• when the mediation or conciliation is to be held. If it is held too early, when the parties do not yet
  know the details of the claim or how much is in dispute, then it may fail to resolve. It may also be
  held too late, when the parties have already spent so much money on the claim that they feel they
  must go to trial or hearing on the issues
• whether the matter is urgent. If so, and there is a need for urgent court intervention, the parties
  may not be able to wait for a mediation or conciliation to be held
• whether there is a gross imbalance of power. If that is the case, the other party may prefer to
  resolve it in court or at a tribunal.

Question 19

Strengths and Weaknesses of Mediation & Conciliation

Answer 19

strength:
- Mediation and conciliation involve an
independent, impartial third party (the mediator or conciliator) who does not take sides but facilitates the discussion and may assist the parties to reach a resolution themselves.
- Mediation and conciliation are much less
formal than a court hearing, and therefore are likely to be much less intimidating, stressful and daunting for parties
- mediation and conciliation can
save significant time in waiting for a final
hearing or trial. They also save the costs
of the final trial or hearing, which can be
significant
- Mediation and conciliation are normally
conducted in private. This can be beneficial
particularly for a party who wishes to keep
the settlement confidential

Weaknesses:
- The decision reached may not be enforceable, or may be difficult to enforce, depending on the terms of settlement. If that is the case, there may be a lot of money and time spent on reaching a resolution, but the plaintiff will need to continue with their case anyway if the defendant fails to comply with the terms.
- Because the court is not deciding the case,
one party may compromise too much, or one may be more manipulative or stronger, so that the other party may feel intimidated.
- particularly for high-profile disputes where
the community may have an interest in the
outcome, there is no ‘open justice’
- If the matter does not resolve, then it may
be a waste of time and money. often the
parties have to spend money on legal fees
preparing for and attending the mediation or
conciliation, only for it to be unsuccessful.
- One of the parties may refuse to attend, or if they do attend

Question 20

Arbitration

Answer 20

Arbitration is another method of dispute resolution without a formal court process.

The unbiased third party member is known as the arbitrator. They will listen to both sides and can make a decision that is binding on both parties (arbitral award).

Arbitration is more private and less formal and more cost effective than courts.

Parties are in more control over the process.

Question 21

The Arbitrator

Answer 21

The arbitrator;
is not bound by rules of evidence but may inform themselves of matters.
must ensure both parties are being treated equally and that each party is given the opportunity to present their case.
is not required to present the case in a formal manner.

Question 22

Arbitration is used when….

Answer 22

Arbitration is used when:
the parties have agreed to settle their dispute by arbitration
the claim has been filed in the Magistrates Court and the plaintiff is seeking $10,000 or less.
The courts and VCAT have the power to refer parties to arbitration
commonly used in a private setting where it is arranged by the parties themselves
used in the Melbourne Commercial Mediation and Arbitration Centre

Question 23

The Appropriateness of Arbitration

Answer 23

whether the parties have agreed to arbitrate the dispute, or the claim is less than $10 000 and has been issued in the Magistrates’ Court. If so, then arbitration is appropriate. If not, then the parties may not be willing to arbitrate the dispute

• whether the parties want the benefit of a binding and enforceable decision made by an independent third party, or whether they would prefer to have control over the outcome and decide on that outcome themselves (in which case, a method such as mediation may be more appropriate)
• whether the parties wish to have the dispute considered by a third party and want evidence to be presented to that third party
• whether both or one of the parties want the dispute to be resolved privately or confidentially the plaintiff wants to ‘make a point’ about the defendant’s conduct (in which case it may be less appropriate)

Question 24

Strengths and Weaknesses of Arbitration

Answer 24

Strengths:
- decision is binding and is fully enforceable
through the courts. This means that there is
certainty in the outcome.
- The arbitration is normally held in private and will be confidential, which can be beneficial for parties wishing to avoid the publicity of a trial.
- The parties have control over how the
arbitration is conducted, by determining how
evidence is to be presented and when steps
are to be undertaken.
- arbitrator is generally an expert on
the subject matter and is required to act
impartially when making a binding decision.

Weaknesses:
- The parties have no control over the outcome, which will be imposed on them by the arbitrator.
- It is not available if the parties have not
agreed to this form of dispute resolution,
or if the claim is not a small claim in the
Magistrates’ Court.
- It can be costly and take a long time
depending on the nature of the dispute and
the way the parties have decided to resolve
it.
- Arbitrations can be formal if the parties have agreed on a formal method of arbitration, adding to the stress, time and costs.

Question 25

why we would have a court Hierarchy reasons- administrative convenience

Answer 25

A court hierarchy ensures that cases can be distributed based on the seriousness of the case. Less serious cases will be heard in the lower courts- the Magistrate Court whilst more serious cases will be heard in higher courts such as the County or Supreme Court. Minor civil cases under $100,000 can be heard in the Magistrates Court. They can be heard quicker and be less expensive. The County and Supreme Court have unlimited Jurisdiction. Class actions are only heard in the Supreme Court.

Question 26

why we would have a court Hierarchy reasons- appeals

Answer 26

If someone is dissatisfied with the result of the trial/hearing they can appeal on the following grounds; Point/question of law- if the law has been incorrectly applied such as inadmissible evidence has been heard. a question of fact- whether the facts of the case have been applied correctly the remedy awarded- the way a court has enforced a right or on the damages awarded ----If there were no court hierarchy, there would be no one to review decisions and no possibility of appeals.

Question 27

what is Jurisdiction and appellate Jurisdiction

Answer 27

the authority of a court to hear and determine cases. appellate Jurisdiction in which a superior court has power to correct legal errors made in the lowest court

Question 28

Jurisdiction of courts

Answer 28

MAGISTRATES COURT: ORIGINAL: Claims of up to $100 000 APPELLATE: no appellate jurisdiction COUNTY COURT: ORIGINAL: unlimited in all civil claims APPELLATE: no appeals, unless given power under a specific Act of parliament SUPREME COURT (trial division): ORIGINAL: unlimited in all civil claims APPELLATE: on a question of law from the Magistrates’ Court (unless the Chief Magistrate made the order) and from VCAT (unless the president or a vice-president made the order) SUPREME COURT(court of appeal): ORIGINAL: no original jurisdiction APPELLATE: * All appeals from a single judge of the County Court or Supreme Court * on a question of law from the Magistrates’ Court when the Chief Magistrate made the order * on a question of law from VCAT when the president or a vice-president made the order

Question 29

Strengths and Weaknesses of court Hierarchy

Answer 29

Strengths: - A court hierarchy allows courts to adopt different processes and use their resources in a way that ensures cases can be resolved efficiently. for example, given the volume of smaller cases heard in the Magistrates’ Court, there are more magistrates, and more court venues. - A court hierarchy allows appeals to be made by both parties if there is an error in the original decision. Weaknesses: - The different courts may be confusing for people who do not understand the civil justice system. This can be particularly so where there are overlapping jurisdictions (e.g. County Court and Supreme Court) or for self represented parties. - There is no automatic right to appeal, and appeal processes are difficult to understand without a lawyer, particularly as there is generally the need to establish grounds for appeal.

Question 30

Role of the Judge/Magistrate

Answer 30

Act impartially Case management (pre trial) Case management (during trial) Determine liability and the remedy Decide on costs

Question 31

Role of the Judge/Magistrate- Act impartially

Answer 31

The Judge/Magistrate must be impartial and cannot make a decision with any bias towards either party. Judges and Magistrates are also independent from the Government, they are appointed, not elected. This minimises them from having political biases.

Question 32

Role of the Judge/Magistrate- Case management (pre trial)

Answer 32

Judges and Magistrates will also ensure a case is ready for trial. Judges and Magistrates have the power to give directions to the parties which are instructions given to the parties that they are obliged to follow. Judges and Magistrates can also limit discovery and make discovery orders. They can also order parties to attend mediation. --->Case Management- directions hearing Judges and Magistrates will give instructions along the way so that delays can be minimised and that parties know what to do. Directions can be given at any time, or in a directions hearing. Penalties can be given to parties who do not comply with directions. ---- The judge (or magistrate) may order the parties to attend mediation by a certain date to try to resolve the dispute before trial. ---discovery, which enables the parties to get copies of each other’s documents that are relevant to the issues in dispute.

Question 33

Role of the Judge/Magistrate- Case Management- during trial

Answer 33

* change the order in which evidence is to be given, or who will go first in addressing the court * limit the time for the hearing or trial * limit the examination of witnesses, or not allowing cross-examination of particular witnesses * limit the number of witnesses that a party may call * limit the length or duration of the parties’ submissions to the court * limit the number of documents that a party may tender into evidence.

Question 34

Role of the Judge/Magistrate- Determine Liability

Answer 34

IF there is no jury the judge must decide if the plaintiff has proven liability on the balance of probabilities and if a remedy or what remedy should be awarded. This makes the Judge/Magistrate is the decider of facts. Judges will provide reasons for their decisions known as a court judgement. Parties should not have to wait months/years for a decision.

Question 35

Role of the Judge/Magistrate- Decide on Costs

Answer 35

After the hearing/trial the Judge or Magistrate will decide which party bears the costs. This is usually left to the end of the trial, and the successful party is often entitled to costs.

Question 36

Comparison of role of the Judge/Magistrate civil and criminal

Answer 36

Similarities: * A judge or magistrate in a criminal case and in a civil case is expected to act impartially and without bias, making decisions during the case on facts. * Both judges/magistrates will have the role of assisting a self-represented party if the accused or one of the parties in the civil dispute is not represented by a lawyer. * Both criminal and civil judges and magistrates have the role of instructing a jury and giving directions to the jury, if there is one in a civil case. This is not applicable to magistrates as there is no jury in the Magistrates’ Court. Differences: * A judge in a civil trial may have to decide on liability if there is no jury, and a magistrate in a civil case will decide on liability if the case is heard in the Magistrates’ Court. however, a judge in a criminal trial in the higher courts will not decide guilt; this is left to the jury. * A judge in a civil trial may have to decide on a remedy , whereas in a criminal case a judge or magistrate decides the sanction if the accused is guilty of committing a crime. * A judge/magistrate can order both parties to undertake procedures such as mediation and discovery. While a judge or magistrate in a criminal case also has case management powers, they do not extend to ordering procedures such as these, which are civil dispute procedures.

Question 37

Strengths and weaknesses of the Judge/Magistrate

Answer 37

Strengths: Impartiality: Act as neutral umpires and do not take sides, ensuring fairness in trials. Legal expertise: Have in-depth knowledge of the law, which supports fair and accurate decisions. Case management: Can manage cases efficiently using powers like limiting discovery or trial time to ensure timely resolution. Support for self-represented parties: Can offer guidance on procedures to help those without legal representation. Weaknesses: Human bias: Risk of actual or perceived bias, especially when fatigued. Lack of diversity: Limited cultural diversity may lead to community distrust in achieving just outcomes. Inconsistent case management: The level of case oversight can vary, potentially causing delays. Limited intervention: Cannot overly assist or interfere, even in cases involving self-represented parties

Question 38

Juries are used when...

Answer 38

* the plaintiff or the defendant can specify during the pleadings stage that they wish to have the proceeding tried by a jury, though the court can still direct that the trial be without a jury if it decides a jury is not required. The party who wishes a civil dispute to be tried by a jury must pay the applicable fee * the court may order that a proceeding be tried with a jury, though this is rare.

Question 39

The Jury

Answer 39

Juries decide on the facts of the case and make a verdict of liable/not liable. The jury may also have to assess damages except in a defamation case. The Jury has 6 members (unlike the criminal jury that has 12 people). The empanelment process is the same. There can be two extra jurors for lengthy trials, however only 6 will decide on the verdict.

Question 40

Roles of the Jury

Answer 40

Be objective Listen to and remember evidence Understand directions and summing up Decide on liability (and maybe damages)

Question 41

Roles of the Jury- Be objective

Answer 41

The jury must be unbiased and open minded. They must put aside prejudice and preconceived notions.

Question 42

Roles of the Jury- Listen to and Remember Evidence

Answer 42

Evidence and be complicated (and frankly boring). Technical language may be used which may be difficult for the average juror to understand. Jurors are permitted to take notes to help them pay attention and remember information. Jury members cannot undertake their own investigations, conduct any research or make any enquiries.

Question 43

Roles of the Jury- Understanding Directions and Summing up

Answer 43

During the trial the judge will give directions to the jury about issues or point of law. The judge will then sum up the case for the jury. If a juror does not understand the directions given by the judge it is their responsibility to ask questions.

Question 44

Roles of the Jury- Decide on liability (and possibly damages)

Answer 44

In a civil trial, the jury must decide if the plaintiff has proven that the defendant is liable on the balance of probabilities. They must decide whether the defendant has established a defence. They must try to reach a unanimous verdict (6/6) but a majority verdict (5/6) will be accepted. Like criminal law, deliberations are also confidential and jurors have the opportunity to discuss the matter and challenge/question each other.

Question 45

Comparing Civil and Criminal Juries

Answer 45

Similarities: Impartiality: Both must be unbiased and decide based on evidence, not personal opinions. Engagement: Both must actively listen to evidence, take notes, and ask the judge clarifying questions. Obligations: Both must follow strict rules, like avoiding outside research or media about the case. Differences: Decision type: Criminal jury: Decides guilt of the accused. Civil jury: Decides liability of the defendant. Standard of proof: Criminal: Beyond reasonable doubt. Civil: Balance of probabilities (lower standard). Role in outcome: Criminal jury: Does not decide on the sanction. Civil jury: May decide the amount of damages awarded

Question 46

Strengths and Weaknesses of Civil Juries

Answer 46

Strengths: Impartiality: Jurors are randomly selected and make decisions based on evidence, not personal interest. Public participation: Allows community members to be involved in the justice system and increases transparency. Collective decision-making: Group discussion can help reduce individual bias. Community representation: Jurors come from diverse backgrounds, helping reflect society’s values in decisions. Weaknesses: Unconscious bias: Jurors may have hidden prejudices, and since they don’t give reasons, it’s unclear if bias influenced their verdict. Complexity of cases: Jurors may struggle to understand complex legal issues or evidence in civil cases. Delays: Explaining matters to the jury and time taken for deliberation can slow down the trial. Limited representation: Many people are excluded from jury service, which may reduce how representative the jury actually is.

Question 47

Role of the Parties

Answer 47

The main parties in a civil trial are the plaintiff and defendant, however there can be more than one plaintiff and/or defendant. The plaintiff has the specific role of proving the facts of the case as they have the burden of proof. The defendant will respond to the claim with a defence. They may also have to prove their claim if they make a counterclaim. The parties have the following main roles: Make decisions about the conduct of the case Disclose information to the other party Exchange evidence Participate in the trial

Question 48

Role of the Parties- Disclose information to the other party

Answer 48

Parties must hand over relevant documents. Medical records or messages to prove physical injuries claimed by the plaintiff. Emails or messages used to prove defamation or humiliation caused by the defendant. Contracts or related documents to prove a party fulfilled or breached an agreement. if the defendant claims they did not breach a contract but in fact fulfilled their obligations under the contract, they may produce documents to show they did in fact fulfil the contract. The parties’ role to discover documents continues all the way up to and during trial.

Question 49

Role of the Parties- Exchange Evidence

Answer 49

The parties will need evidence to prove their case, that may go beyond the documentation provided. Types of evidence includes; Lay evidence- ordinary people giving witness testimony, they do not need to provide evidence. Expert evidence- when evidence is given by a professional about an issue in a case. They will comment on the evidence within their specialty. E.g. a doctor.

Question 50

Role of the Parties- Participate in the trial

Answer 50

This includes: making opening and closing addresses. presenting the case to the judge or jury. cross-examination of the other side’s witnesses to challenge the credibility of the witnesses

Question 51

summary of the strengths and weaknesses of the parties' role in a civil trial

Answer 51

Strengths: Obligation to disclose documents: Ongoing duty to share all relevant documents helps avoid surprises and ensures fairness. Opportunity to present case: Both parties can make submissions and question witnesses, allowing a full presentation of their arguments. Party control: Parties have autonomy over how they run their case, including decisions about evidence and legal arguments. Weaknesses: Unequal understanding of obligations: Some parties may not fully understand their duty to disclose all relevant documents, especially if unrepresented. Complex legal processes: The procedures are often difficult to navigate without legal help, disadvantaging self-represented parties. Delays and costs from party control: While parties have control, this can lead to delays, increased stress, and higher costs due to the time needed for preparation.

Question 52

Legal Practitioners

Answer 52

Legal practitioners (lawyers) undertake the role of preparing the case on behalf of the parties. They are experts in the area of law and help ensure that parties can present their best possible case and to assist in achieving a just outcome. They ensure the rule of law is upheld and that the law is applied fairly and equally.

Question 53

Why do we need Legal Practitioners?

Answer 53

It is difficult for parties to present their case without legal representation. They may not know how to present their case or evidence, or how to cross examine a witness. They may be too emotional or stressed during the case. If one party is better represented than the other, this could let to an unfair advantage and outcome.

Question 54

Legal Aid

Answer 54

Obtaining legal aid can be challenging, more so in the civil justice system than the criminal justice system. Most grants for legal assistance are for criminal law. VLA will not assist in business matters such as pay disputes or work injuries. Some CLCs may have some capacity to help. VCAT generally does not allow lawyers and they may not be necessary for Mediation.

Question 55

summary of the strengths and weaknesses of legal practitioners in civil

Answer 55

Strengths: Expertise and guidance: Legal practitioners help parties navigate the legal process, including presenting arguments and examining witnesses. Objectivity: Lawyers can provide a clearer, more rational view of the case, unlike self-represented parties who may be emotionally involved. Efficiency: Their knowledge of procedures can help avoid delays caused by misunderstandings or inexperience, especially compared to self-represented parties. Weaknesses: Varied quality: Not all lawyers have the same level of experience or skill, which can affect the outcome. Cost barriers: Legal representation can be expensive, making it inaccessible for some, especially if the party loses and must also pay the other side’s costs. Disadvantage for self-represented parties: Those without lawyers often lack the skills, experience, and objectivity needed to make informed decisions.

Question 56

What is a Class Action?

Answer 56

A class action is a type of proceeding where a group of people, who all have claims against the same party join together in a proceeding. This can happen when: seven or more people have claims against the same person those claims relate to the same or similar circumstances the same issues need to be decided

Question 57

How Class Actions Work

Answer 57

Class actions normally start when a single person (the lead plaintiff) represents the group/‘class’. The other plaintiffs are referred to as group members. Group members do not have to be actively involved in the proceedings, or even know the lead plaintiff and are not named in court documents. Group members may not even know they are involved! Group members may need to decide to ‘opt in’ to the class action or ‘opt out’, however then they will not be eligible for any settlements.

Question 58

Costs involved in Class Actions

Answer 58

The court can approve settlement between parties as well as approve legal costs and fees for litigation funders.( third party who pays for some/all costs) This ensures fairness and that members of the group are being treated fairly and reasonably. If a class action fails, the lead plaintiff will be responsible for the costs and any adverse costs order. This may prevent people from being willing to be a lead plaintiff, although many firms will have a “no win, no fee” basis. The Litigation funder may also take on some of this responsibility. A litigation funder will receive around 20-40 % of the damages awarded, as they are baring the risks and will also pay the costs if the proceedings fail. It is also possible for the law firm of the plaintiff to fund the class action and can also charge a fee of the amount from the settlement. This may increase access to justice if the litigation funder is unwilling to fund the amount needed.

Question 59

Appropriateness of Class Actions

Answer 59

whether or not there are 7 or more people whether a plaintiff, litigation funder or law firm is willing to fund the claim whether someone is willing to be a lead plaintiff the size and nature of the claim (a small claim may not be worth it) if one person has suffered a significant amount more than the other group members

Question 60

f the strengths and weaknesses of the use of class actions.

Answer 60

Strengths The group members are not responsible for the payment of any costs if the claim fails (unless they are the lead plaintiff), which increases access to justice. Class actions enable people with small individual claims to combine them, making the cost of legal action more affordable and worthwhile. The use of litigation funders or ‘no win, no fee’ law firms makes it easier for people to take part without the financial risk. Class actions are more efficient as they allow the court to deal with one representative proceeding instead of multiple individual claims, saving time and resources. Group members can benefit from experienced legal practitioners handling the case on their behalf. Court approval of settlements and legal costs helps ensure fairness and protects group members from exploitation. It is a more convenient way for individuals to pursue legal action without needing to be actively involved in proceedings. Class actions reduce costs for defendants by avoiding the need to respond to many separate cases. Weaknesses The lead plaintiff may be responsible for costs if the case fails and there is no litigation funder or ‘no win, no fee’ arrangement. Litigation funders may take a large portion (20–40%) of any awarded damages, reducing the amount group members receive. Class actions can still take up significant court resources, especially during settlement approval. Some group members may not be properly informed or even aware that they are part of the class action. There is a concern that plaintiff law firms and funders may benefit more than the group members themselves. Multiple law firms may initiate class actions over the same issue, which can complicate matters and increase costs for defendants. Group members have little say in how the case is run or how much they personally receive. If no litigation funder or supportive law firm is available, people may still struggle to access class action opportunities.

Question 61

what is CAV

Answer 61

Consumer Affairs Victoria (CAV) regulates consumer law. Their role includes the following; inform Victorians about consumer law ensure businesses are complying with consumer law advises the Victorian Government on consumer legislation provides information and guidance to consumers to educate them what their rights and responsibilities are enforces compliance with with consumer laws provides consumers and traders, landlords and tenants with a dispute resolution process

Question 62

Purposes of CAV in Resolving Disputes

Answer 62

CAV aims to; help people come to a resolution with their dispute effectively without any costs to them. This helps people with minor disputes about goods and services or tenancies obtain a solution that is cheap and timely. helps parties reach a resolution that is consistent with the law. CAV has the ability to enforce compliance with any party not following the law.

Question 63

CAV’s Jurisdiction

Answer 63

CAV (Consumer Affairs Victoria) can only assist with disputes within its jurisdiction, as granted by Victorian statutes. CAV mainly deals with consumer-related disputes and tenancy disputes. 1. Consumer Disputes Disputes between purchasers and suppliers, or consumers and suppliers, relating to the supply or possible supply of goods or services, such as: Products that are faulty, damaged, not fit for purpose, or cannot be repaired. Services that were not completed with care and skill, took too long, caused damage, or were not fit for purpose. Disputes involving car purchases, including issues with warranties, incorrect pricing, or the condition of the car. 2. Tenancy Disputes Disputes between a tenant and landlord, including: Issues about rental agreements, rent payments, signing or ending a lease, or rental applications. Disputes over repairs, maintenance responsibilities, or property condition.

Question 64

CAV and Conciliation

Answer 64

CAV offers over the phone dispute resolution services. However, if more tailored services are needed, conciliation will be offered. The conciliator has specialist knowledge on the type of dispute.

Question 65

CAV is appropriate when..

Answer 65

It is within CAV’s jurisdiction If the tennant or consumer have tried to resolve the issues themselves. If not, CAV will not intervene. It is not a trivial complaint If the issue has not already been heard in CAV or VCAT If the issue is likely to be resolved If there has been a breach in legislation

Question 66

CAV is not appropriate when..

Answer 66

when a binding decision is needed and court may be more appropriate if one party is not taking the process seriously, is unwilling to participate if the matter is too big or complex for CAV if the matter is urgent - time sensitive and court would be faster

Question 67

Strengths and Weaknesses of CAV

Answer 67

Strengths of CAV CAV’s conciliation service is free, making it accessible to all Victorians, regardless of financial situation. The process is informal and can be conducted over the phone, reducing the stress and anxiety linked to formal legal settings. CAV ensures procedural fairness by allowing both sides to present their case and challenge the other’s claims. Each dispute is assessed individually, which avoids wasting time on cases that are unlikely to be resolved. The conciliation process encourages voluntary resolution, meaning parties are more likely to accept and follow through with the outcome. Weaknesses of CAV CAV’s jurisdiction is limited mainly to consumer and tenancy disputes — it cannot assist with many other civil matters. CAV cannot compel parties to participate in conciliation — if one party refuses, the process cannot proceed. CAV has no power to enforce outcomes reached in conciliation, unless the parties have signed a binding agreement. CAV does not accept all cases, as it has specific criteria and gives priority to certain disputes. CAV is not suitable for complex or large-scale disputes, especially those involving multiple parties or complex legal issues, which are better handled in courts or tribunals

Question 68

what is VCAT

Answer 68

Purpose: To offer a less formal, more accessible, and quicker way to resolve civil disputes than courts VCAT is Australia’s busiest tribunal that hears over 85,000 claims per year. Members preside over VCAT and are responsible for administration and management. VCAT has 5 divisions.

Question 69

VCAT Divisions – Types and Examples

Answer 69

Residential Tenancies Division – Deals with tenancy disputes between residential tenants and landlords, rooming house owners and residents, caravan park owners and residents, and site tenants and owners. – Examples:  * Unpaid rent  * Repairs, maintenance, damages or changes to property  * Excessive rent increases Administrative Division – Handles professional conduct inquiries and reviews of decisions made by government and other authorities. – Examples:  * Costs disputes between lawyers and clients  * Disputes about government decisions (e.g. declaration of a dangerous dog) Civil Division – Deals with civil disputes involving consumer matters, building works, owners’ corporations, retail tenancies, and property sales or ownership. – Examples:  * Issues with products or services bought or sold  * Quality concerns in domestic or commercial building work  * Loss or damage from water flowing onto property Human Rights Division – Covers cases about guardianship, administration, equal opportunity, vilification, privacy, disability, and decisions from the Mental Health Tribunal. – Examples:  * Discrimination or harassment complaints (e.g. race, gender, religion)  * Guardianship and administration orders Planning and Environment Division – Reviews decisions made by local councils and other planning authorities. – Examples:  * Appeals of council decisions to grant or refuse a planning permit  * Disputes about land valuation for rates and taxes

Question 70

VCAT's Purpose

Answer 70

VCAT's Purpose The Victorian Civil and Administrative Tribunal (VCAT) provides a low-cost, accessible, efficient, and independent forum for resolving civil disputes. It aims to resolve disputes fairly and efficiently, without the formalities and high costs of the court system. 💲 Low Cost → Promotes Access and Equality Filing fees are relatively low (just over $70 as of July 2023 for small claims), helping people from all socioeconomic backgrounds bring disputes forward. Three-tier fee structure: * Corporate applicants pay higher fees * Standard applicants pay moderate fees * Healthcare card holders often pay very low or no fees, ensuring equality before the law. No hearing fees in many cases (e.g. civil claims under $100,000), making justice more accessible. No compulsory pre-trial procedures in many lists, reducing the need for expensive legal representation. Most parties represent themselves (>80%), saving on legal costs → improves access to justice. 🌍 Accessibility → Promotes Access and Fairness Multiple locations across Victoria, not just Melbourne. Online application and remote hearings via phone or video make it easier for rural or mobility-limited people to participate. Less formal procedures mean people are more comfortable and confident, especially if self-representing. Simplified processes ensure people understand and can present their case, supporting fairness in hearings. ⏱️ Efficiency → Promotes Fairness Constant efforts to reduce wait times help parties get justice promptly, which is a part of procedural fairness. Faster resolution than traditional courts due to: * Lack of formal pleadings and pre-trial procedures * Flexible processes Different "lists" (divisions) handle specific types of disputes, improving efficiency and expertise. ⚖️ Independence → Promotes Fairness and Equality VCAT members are independent adjudicators, ensuring neutral and unbiased decisions. All parties are treated equally before the law, and the outcome is based on evidence and merits, not status or wealth.

Question 71

VCAT’s Jurisdiction and what do they not hear

Answer 71

VCAT has authority to hear cases due to statutes made in Parliament. Often, parties will have no choice but to go to VCAT because VCAT has exclusive jurisdiction, meaning only VCAT can hear this case. If VCAT does not have exclusive jurisdiction, parties are welcome to use other methods such as courts. here are some disputes that VCAT cannot hear! Examples include: class actions disputes between employees and employers disputes between neighbours (unless it’s about owners corporation) disputes between drivers in car accidents federal or interstate cases where they have no power where parties are residents of other states

Question 72

Dispute Resolution Methods VCAT

Answer 72

VCAT uses mediation to help resolve disputes. Parties can bring support people or legal representatives with them. It can be legally binding if a terms of settlement is signed. >> Fast Track Mediation and Hearing Disputes valued up to $10,000 may be listed for a fast track mediation and hearing. This is when, if the dispute is not settled in mediation, it will be solved in a hearing on the same day! >> Compulsory Conferences Compulsory Conferences are confidential meetings that occur between the parties in front of a VCAT member. Compulsory Conferences use conciliation. The VCAT member may make suggest forms of settlement and give a view of the possible result should the matter go to trial. The VCAT member will not hear the final hearing if it is heard by VCAT and they will not share the details of the meeting. >> Final Hearing If the matter has not been settled it will go to a final hearing before a VCAT member. Parties will be given an opportunity to present their case (this includes giving and hearing evidence, questioning witnesses and providing documents). A VCAT member will oversee the hearing and provide a binding decision. The hearing should be as less formal and technical as possible. >> Orders The types of orders that VCAT can make in a hearing vary from list to list. In general, VCAT can: * require a party to pay money (e.g. where a person has purchased goods or services and has not paid for them) * require a party to do something, such as perform work, carry out repairs or vacate premises (e.g. where a landlord refuses to repair a kitchen of the house they rent to tenants) * require a party to refrain from doing something (e.g. to stop a demolition) * declare that a debt is or is not owing (e.g. where there is a dispute about money owing under a contract) * review, vary or cancel a contract * dismiss a claim (where the applicant has been unsuccessful in providing their claim). Decisions of VCAT are binding on the parties and can be enforced if a party does not comply with the decision.

Question 73

Appeals VCAT

Answer 73

Appeals from a decision made in VCAT can only be made on question (point) of law. A party may argue that the law has not properly been interpreted. Permission/Leave is required to apply to appeal. If the tribunal was presided over by the President or Vice-President the appeal will be heard in the court of appeal, otherwise it will go to the Trial Division of the Supreme Court.

Question 74

Appropriateness of VCAT

Answer 74

VCAT may not be appropriate when: if the parties can resolve the dispute themselves through mediation if the fees are too high if parties wish to have avenues of appeals if the case is too complex for VCAT VCAT is appropriate when: it is within VCAT’s jurisdiction if parties want the proceedings to be less formal parties want a cheaper option parties want their case heard in a timely manner

Question 75

Strengths and Weaknesses of VCAT

Answer 75

✅ Strengths of VCAT Cheaper than courts: * Low application and hearing fees * No need for legal representation * Fewer pre-trial procedures → Promotes Access and Equality, as people from all backgrounds can resolve disputes without financial barriers. Speedy resolution (in many cases): * E.g. Residential Tenancies List often resolved in 2–3 weeks → Promotes Fairness, as justice is delivered without unreasonable delay. Informal atmosphere: * Less intimidating for unrepresented or vulnerable parties → Promotes Access and Fairness, as people are more comfortable presenting their case. Flexible processes for unrepresented parties: * Tribunal members help ensure both sides understand and can present arguments equally → Promotes Equality and Fairness. Specialised expertise: * Each list has deep knowledge in its specific area (e.g. tenancy, planning, civil) → Promotes Fairness, as decisions are informed by expertise in the relevant law. Binding decisions: * Decisions made at a final hearing are enforceable → Promotes Fairness, as parties must comply with the outcome. ❌ Weaknesses of VCAT Legal costs can still be high: * Some parties still hire lawyers, and recent fee increases (especially in planning/environment) can reduce affordability → Reduces Access and Equality for financially disadvantaged individuals. Delays in some lists: * Especially post-COVID, some areas (e.g. planning) face long wait times → Undermines Fairness, especially when delays affect people’s livelihoods or housing. Too informal for some parties: * Lack of formal procedures may make some feel uncertain or uncomfortable → May limit Fairness, especially for those who prefer structured legal processes. No precedent created: * VCAT decisions are not binding on future cases → Can lead to inconsistency, affecting Fairness and Equality in how similar cases are resolved. Limited appeal rights: * Appeals only allowed on questions of law, and only to the Supreme Court (expensive and complex) → Restricts Access and Fairness, especially for people with limited legal knowledge or funds. Enforcement through courts: * VCAT can't enforce its own orders directly; parties must go to court → Slows resolution and can reduce Access to timely justice.

Question 76

Appropriateness of Courts

Answer 76

In determining whether or not a case is appropriate for court you need to consider; whether the dispute falls within the court jurisdiction whether there are better ways to settle the dispute

Question 77

Jurisdiction County Court and Supreme Court+ Magistrates Court+VCAT

Answer 77

County Court and Supreme Court Both of these courts have unlimited civil jurisdiction. Magistrates Court The limit is $100k. If the plaintiff is seeking more than this, they need to file their claim in the county or Supreme Court (or reduce the claim). VCAT Courts cannot hear cases where VCAT has exclusive jurisdiction. These include; domestic building disputes retail tenancies disputes residential tenancies disputes planning disputes

Question 78

strengths and weaknesses of the courts as dispute resolution bodies

Answer 78

✅ Strengths of Courts Encouragement of out-of-court settlement * Judges can refer parties to mediation or negotiation before trial → Promotes Access (faster, cheaper resolution) and Fairness (less stress, more control). Pre-trial procedures help clarify issues * Parties discover each other’s strengths and weaknesses, which may help resolve or narrow the dispute → Enhances Fairness and Efficiency. Procedural fairness through formal processes * Judges give directions, enforce rules of evidence, and ensure parties know the case against them → Ensures Fairness and Equality. Interactive processes * Directions hearings and pleadings allow parties to communicate with the court and clarify legal issues → Promotes Fairness by improving understanding and process transparency. Binding and enforceable outcomes * Court decisions are final, certain, and legally enforceable → Supports Fairness (clear resolution) and Access (right to seek legal redress). ❌ Weaknesses of Courts Delays in resolution * Pre-trial procedures like discovery take time; jury trials and judgment delays also slow down the process → Undermines Fairness and Access due to stress and extended waiting times. High costs * Legal representation and court fees make accessing justice difficult for many people → Reduces Access and Equality, especially for low-income individuals. Complex procedures * Legal rules and terminology can be difficult to understand without a lawyer → Hinders Equality and Access for self-represented parties. Formal courtroom environment * Can be intimidating and emotionally taxing for some parties → Reduces Access and Fairness due to discomfort or lack of confidence. No compromise-based outcomes * Decisions are binary (one party wins), not collaborative → While this promotes Fairness through justice being served, it may not suit parties seeking a mutually agreeable resolution (e.g. in family or neighbourhood disputes).

Question 79

cost civil + POJS

Answer 79

There are aspects of the legal system that aim to reduce costs such as mediation and conciliation. Despite this, there are still high costs that may impact people's ability to engage with the civil justice system or receive fair processes. Other than costs with initiating a claim, the major cost in the civil justice system is legal representation. Whilst everyone has the right to legal representation, not everyone can afford this. The nature of the system requires both parties to have good legal representation to ensure a fair trial. Issuing a complaint in CAV is free, issuing a claim in VCAT is inexpensive, however issuing a claim through the courts can be very costly. Other than legal representation, parties may also have to pay for; expert witnesses mediation/conciliation filing and hearing fees using a jury IF requested adverse cost orders POJS Due to high costs, there has been an increase in self represented parties. Not everyone has the ability to accurately represent themselves and may need assistance navigating the system. Civil parties ARE NOT entitled to legal aid because this funding is allocated to criminal cases and family law cases. Due to lack of representation, some people may be forced to settle, withdraw claims or not initiate a claim at all.

Question 80

Measures to address costs

Answer 80

There have been measures put in place to help address costs in the civil justice system; The use of alternative dispute resolution methods (mediation, conciliation, arbitration) The use of alternative dispute resolution bodies (CAV and VCAT) Having a dispute resolved faster- e.g. settlement The use of case management- a judge may narrow the issue and limit discovery which saves time and resources A number or organisations and bodies can provide pro bono assistance to individuals

Question 81

Time in civil

Answer 81

If trials take too long to be heard, this greatly diminishes the likelihood of parties receiving a fair trial. There are a number of issues that impact the time of a trial; Backlogs- there are delays as people wait to receive a trial or hearing date. pre-trial proceedings- these stages can be lengthy, the discovery process can take months and is often the process ordered to be streamlined by the judge evidence gathering and preparation- it takes time for parties to gather evidence and prepare their case

Question 82

Measures to reduce time delays

Answer 82

There are a number of ways that time delays can be reduced through the use of Case management including; ordering the parties to attend dispute resolution limit the scope of discovery order that no pleadings are required restrict the time for final hearings, for example, limiting the amount of witnesses Other methods of reducing time delays include; VCAT has established programs to reduce time delays such as the pilot program or backlog recovery program. Some matters are now dealt with “on the papers” solely based on written documents avoiding the need for a trial, resulting in faster decisions. Using online methods such as having hearings and mediation online.

Question 83

Types of Remedies

Answer 83

DAMAGES An amount of money awarded by the courts to compensate the plaintiff for loss or injury caused by the wrongful acts of the defendant. There are different types of damages, some of which are more easily quantifiable (calculated) than others. INJUNCTION A court order directing a person to undertake a specific action, or to stop (cease) a specific action. It is normally ordered to prevent harm, or further harm, to the plaintiff.

Question 84

TYPES OF DAMAGES

Answer 84

Damages are the most common type of remedy sought by a plaintiff. They are amounts of money awarded to the plaintiff. The purpose of damages is to “return the plaintiff to the original position they were in before the wrong occurred as much as possible”. The possible types of damages are listed below - compensatory ( special general aggravated ) - exemplary - nominal - contemptuous

Question 85

TYPES OF DAMAGES-compensatory

Answer 85

Compensatory damages are the most common type of damages sought. The aim of compensatory damages is to “return the plaintiff to the original position they were in before the wrong occurred as much as possible”. There are three types of compensatory damages; special, general and aggravated. SPECIAL DAMAGES (Specific Damages) Compensate for losses that can be precisely calculated. Awarded for things like: - Medical expenses (past and future) - Loss of wages - Property damage - Loss of profits - Loss of assets or goods GENERAL DAMAGES: Compensate for non-quantifiable losses. Determined by the court based on evidence. Examples include: - Pain and suffering - Long-term impact on job opportunities - Loss of enjoyment of life - Permanent physical or psychological damage AGGRAVATED DAMAGES: Awarded when the defendant’s behaviour causes further harm beyond the original loss. Recognise humiliation, distress, or insult caused by cruel or insensitive conduct.

Question 86

TYPES OF DAMAGES- Exemplary Damages

Answer 86

Exemplary Damages Exemplary damages are the only consequence in civil action that aim to ‘punish’ the defendant for an extreme infringement of rights. Exemplary damages may also been known as punitive damages. The purpose of exemplary damages are to punish and deter the defendant from malicious behaviour towards the plaintiff. Exemplary damages cannot be used in defamation cases.

Question 87

TYPES OF DAMAGES- Nominal Damages

Answer 87

Nominal Damages Nominal damages are a small amount of money that has been awarded. This occurs when the plaintiff has proved that they have been wronged but there is no injury, loss, harm or damage. The purpose of nominal damages are to uphold the plaintiff’s rights without awarding substantial damages.

Question 88

TYPES OF DAMAGES- Contemptuous Damages

Answer 88

Contemptuous Damages A court/tribunal may feel that the plaintiff has a legal right to damages but does not have a moral right- they don’t deserve to receive damages! That’s why a small amount of damages is given, to show contempt for the claim that has been made.

Question 89

Ability of damages to achieve their purposes- COMPENSATORY

Answer 89

COMPENSATORY: Financial loss (e.g. wages, profits, medical costs) is easily quantifiable and can be fully compensated with special damages. Non-economic loss (e.g. pain, suffering, disfigurement) is harder to quantify, so damages may not fully restore the plaintiff. Future losses: Losses such as future earnings or long-term impacts (e.g. reputation damage) are difficult to predict and may result in under- or over-compensation. Availability of evidence: Courts need strong evidence (e.g. medical reports, expert opinions) to accurately calculate unquantifiable losses. Without proper evidence, damages may not reflect the true extent of the loss. Actual payment of damages: If the defendant cannot or does not pay (e.g. bankrupt, disappeared), then damages don’t help restore the plaintiff at all.

Question 90

Ability of damages to achieve their purposes- exemplary damages

Answer 90

The amount of exemplary damages. If the amount of exemplary damages is small, it may not be sufficient to punish the defendant or act as a deterrent. If the amount is high, it is more likely to punish and deter. The ability of the defendant to pay. Regardless of whether the amount is small or large, the ability of the defendant to pay is important. If the defendant has little money, they may not pay at all and so they may not be punished. Alternatively, if they have significant amounts of money, it may act less as a punishment.

Question 91

Ability of damages to achieve their purposes-nominal damages

Answer 91

Whether the plaintiff suffered loss. If the plaintiff did in fact suffer loss, but there was no evidence of that loss, or the court was not convinced there was loss, the plaintiff’s rights may not be fully upheld. If the plaintiff incurred high legal costs, nominal damages may not truly compensate them, meaning they suffer further financial loss despite their rights being acknowledged.

Question 92

Injunctions

Answer 92

An injunction is a court order requiring the defendant to do something or not to do something. The purpose of an injunction is to prevent someone from doing something harmful or to rectify wrong doing.

Question 93

Restrictive Injunctions

Answer 93

A restrictive injunction is also known as a prohibitory injunction. It orders someone to refrain from doing something. This is the most common form of injunction.

Question 94

Mandatory Injunctions

Answer 94

A mandatory injunction is a type of injunction that orders someone to do a particular act. The purpose is to require the defendant to take action to prevent further harm or remedy the situation A mandatory injunction will only be awarded if a court is satisfied that the defendant knows what they have to do to fill the order and if the court believes that the plaintiff will suffer without one

Question 95

Restrictive injunction achieving its purpose

Answer 95

* Whether the defendant will comply. If the defendant does not comply with the injunction, it may not prevent further harm. * Whether harm has already been suffered. If the plaintiff has already suffered loss or damage, an injunction alone may not be able to address that harm. In this case, damages may also be required. * Whether a restrictive injunction alone is sufficient. In some situations, a mandatory injunction may also be required. For instance, the defendant may have posted information online. A restrictive injunction may stop the defendant from posting any further, but a mandatory injunction may also be required to force the defendant to take the posts down. * Whether there are other orders that may be required. Injunctions do not address the costs, stress and inconvenience involved in taking the action, so they do not fully address all the harm that may have been suffered.

Question 96

Mandatory injunction achieving its purpose

Answer 96

If the defendant ignores the court’s mandatory order or only partially follows it, the issue may not be fully resolved, and the plaintiff may still suffer harm. If the plaintiff has already experienced damage (e.g. emotional or financial loss), a mandatory injunction alone won’t fix that—additional remedies like damages may be needed. A mandatory injunction might not be enough on its own. In some cases, a restrictive injunction (to stop future harm) may also be necessary to fully resolve the issue. Injunctions don’t compensate for the stress, cost, or inconvenience of going to court, so even if granted, they may not completely fix the harm the plaintiff has faced.