Remedies Flashcards
(45 cards)
1
Q
Principles of justice
A
- Fairness
- Equality
- Access
2
Q
Fairness
A
- Fair legal processes, hearings or trials
- People deciding the dispute should be impartial and unbiased
Parties: - Know the claims, defences and evidence that will be used
- Opportunity to present their case and rebut the other person’s case
3
Q
Equality
A
- All people should be treated equally before the law and have an equal opportunity to present their case.
- No person or group should be treated better or worse because of a personal characteristic.
- Processes should be free from bias.
4
Q
Access
A
People should be able to:
- Understand their legal rights
- Pursue their case
- Use the procedures, methods and institutions that resolve a civil dispute.
5
Q
Methods used to resolve a civil dispute
A
- Mediation
- Conciliation
- Arbitration
6
Q
Mediation
A
- Mediator, an impartial 3rd party helps the disputing parties reach a resolution
- Mediator tries to empower the parties, even out imbalances and help people make a decision
- Mediator does not need to be an expert in the relevant area of law
- Parties can arrange a private mediation, court can refer parties in a court case to mediation before the final trial or hearing, parties in a tribunal case are referred to mediation to resolve the dispute before the hearing
7
Q
Conciliation
A
- Conciliator, the third party, makes suggestions about appropriate ways of resolving the matter
- Parties make the final decision but it is not binding
- Conciliator has specialist knowledge about the subject matter of the dispute
- Parties in a dispute at VCAT are often sent to a compulsory conference which uses conciliation
- The Family court of Australia often organises conciliation conferences between parties
8
Q
Arbitration
A
- Arbitrator, the third party, listens to the parties and tries to help them reach an agreement
- Arbitrator makes a binding decision on the parties if they cannot reach an agreement themselves
- Arbitrator has knowledge of the subject matter of the dispute and the applicable law
- Magistrates’ Court can use arbitration to resolve civil claims less that $10,000
9
Q
Mediation and conciliation: Strengths
A
- Less formal setting and confrontational than a courtroom which alleviates stress
- Matters are discussed confidentially and without publicity
- Can achieve a ‘win-win’ solution where both parties feel satisfied, as opposed to a court making a decision where one party is successful and the other is not
- Conciliator has specialised knowledge in the subject matter of the dispute
10
Q
Mediation and conciliation: Weaknesses
A
- Both parties must be willing to participate in mediation or conciliation for it to be successful
- Unless parties enter into terms of settlement, decisions reached are not binding on the parties
- Mediators and conciliators have no power to order parties to come to a decision or attend
- Mediation only: Mediator cannot give advice or offer suggestions
11
Q
Arbitration: Strengths
A
- Decisions are binding on all of the parties, ensuring the parties are required to follow it
- More informal than court processes which alleviates stress
- Arbitrator has expertise in resolving these types of matters and making a binding decision
- Often conducted privately so parties have flexibility in the way it is conducted
- Cheaper than resolving the dispute through court
12
Q
Arbitration: Weaknesses
A
- Available only where parties have agreed on arbitration or for small claims in the Magistrates’ Court
- Parties have no control over the outcome, which will be imposed on them by a third party
- Can be as formal and expensive as a court process as evidence is often gathered and legal representation is used
13
Q
Institutions that resolve civil disputes
A
- Tribunals
- Ombudsman
- Complaints bodies
14
Q
Tribunals
A
- Provide low-cost and efficient methods of dispute resolution
- Obtain their power from parliament
- Can make binding decisions on parties
- Develop expertise in particular types of disputes
- Cannot hear every type of dispute
15
Q
Example of a tribunal: VCAT
Victorian Civil and Administrative Tribunal
A
- Provides low-cost, accessible, efficient and independent dispute resolution services
- Enables cases to be heard and determined by an independent third party (mediator or conciliator)
- Variety of locations in Victoria and online access
16
Q
Ombudsman
A
- Independent, timely and accessible dispute resolution services to individuals in particular industries.
- Limited ability to hear complaints.
- Free
- Resolves complaints by working with the two parties.
- Every ombudsman is appointed by the government, though they act independently of the government
17
Q
Complaints bodies
A
- Free complaint and dispute resolution service so ordinary Australians have access
- Obtained power through parliament
- Focus on disputes about products or services sold by companies, not on individuals
- No power to make a binding decision or conduct a hearing
- Can take legal action against an entity that broke the law
18
Q
Institutions that resolve civil disputes: Strengths
A
Access:
- Provides alternative methods of making complaints or resolving disputes other than through courts.
- Ombudsman and complaints bodies are free and tribunals costs are lower than courts
Equality
- Provides an avenue for individuals to resolve disputes with larger service providers and government agencies without fear of intimidation
- Ensures procedural fairness by giving parties the opportunity to present their case
Fairness
- Person assisting parties is independent and impartial
- Often specialised in a particular industry or area of law
19
Q
Institutions that resolve civil disputes: Weaknesses
A
- Many individuals are not aware of the ombudsman and complaints bodies that are available
- An ombudsman or a complaints body has limited power to make binding decisions which may cause inconsistencies in the way matters are decided
- No ability to award compensation or limited
- Ombudsman and complaints bodies are specialised and can only hear certain types of complaints, giving no choice but to issue some claims in a court or tribunal
20
Q
Example of a complaints body: Consumer Affairs Victoria
A
- Enforces compliance with consumer laws
- Provides consumers and traders, and landlords and tenants, with a dispute resolution process.
- People can use CAV to exercise their consumer rights when they may have been infringed.
- Helps any party that has been wronged seek compensation for loss they have suffered
21
Q
Example of an office of ombudsman: Public Transport Ombudsman (PTO)
A
- Investigates and resolves complaints about Victorian public transport related matters
- Can require parties to attend conciliation
- Cannot order compensation beyond $10,000
- The complainant can choose whether to accept the decision of the PTO and they are bound by it.
22
Q
Civil jurisdiction Magistrates’ Court,
A
- Original jurisdiction - claims up to $100 000
- No appellate jurisdiction
23
Q
Civil jurisdiction County Court
A
- Original jurisdiction - unlimited
- No appellate jurisdiction, unless given under a specific Act of Parliament
24
Q
Civil jurisdiction Supreme Court (Trial Division)
A
- Original jurisdiction - unlimited
- Appellate jurisdiction - appeals on a question of law from the Magistrates’ Court and VCAT
25
Civil jurisdiction Supreme Court (Court of Appeal)
- No original jurisdiction
- Appeals from the County Court, Supreme Court (Trial Division) or VCAT when constituted by the President or a vice-president
26
Strengths of courts as dispute resolution bodies
- Judges are impartial, make decisions based on fact and law, not on bias
- Judges and court personnel are specialised
- Allows for a party to appeal a case.
- Courts are able to make binding decisions
27
Weaknesses of courts as dispute resolution bodies
- Expensive, due to the need for legal representation and the costs involved in undertaking procedures such as discovery.
- Formalities of the process can result in parties feeling stressed, intimidated or nervous.
- Without legal representation (expensive), a party may be disadvantaged in presenting their case (unequal)
28
Remedies
- The purpose of remedies is to restore (as much as possible) the party who has suffered loss or injury to the position they were in before the loss or injury occurred.
29
Types of remedies
- Damages
| - Injunction
30
Damages
- Compensatory damages
- Exemplary damages
- Nominal damages
- Consumptuous damages
31
Compensatory damages
- Most common form of damages
- Attempts to restore the party to the position they are in before the injury occured.
- Specific/special damages: amounts that can be accurately or specifically measured (medical bills/loss of income)
- General damages: amounts not identifiable/quantifiable. (loss of enjoyment of life or pain and suffering)
- Aggravated damages: 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.
32
Exemplary damages
- Court intends to make the defendant an example to the rest of the community.
- Deter others from acting in the same way by the defendant paying a large amount of money
- Known as punitive or vindictive damages
33
Nominal damages
- Awarded when the plaintiff only seeks a small amount of money because very little harm has been suffered
- Plaintiff is suing for legal principles rather than monetary compensation.
34
Consumptuous damages
- A court or tribunal may feel that the plaintiff does not deserve to be paid damages, but legally has a right to damages
- Court awards a small amount of money
35
Effectiveness of damages
- Depends on the facts of the case and the loss that has been suffered by the plaintiff.
Some factors include:
- What type of loss has been suffered?
- Has the plaintiff suffered physical injury or irreparable damage?
- Has there been loss of life?
- How accurate is the estimate for future loss?
- Are alternative remedies suitable?
- Does the defendant have the capacity to pay?
36
Injunctions
- A court order that forces the defendant to do something or compels them to stop doing something.
- An interim order sets specific time frames within which they take effect
- A permanent order is ongoing
- Restrictive injunction - stopping someone from doing something
- Mandatory injunction - compel someone to do a particular act
37
Effectiveness of injunctions
- Depends on the facts of the case and the loss that has been suffered by the plaintiff.
Some factors include:
- Has the defendant already caused too much damage?
- Will the defendant stop the actions or may they do other things to cause the plaintiff loss?
- Will the defendant comply with the injunction?
- Will the plaintiff be returned to his or her position?
38
When is a jury used in civil trials?
- There is no jury in the magistrates’ court & appeal cases.
- A jury is optional for civil cases in the county & supreme court.
39
Composition of a civil jury
- 6 jurors are randomly selected from the Victorian electoral roll.
40
Role of the civil jury
- Consider the facts of the case
- Decides who is most likely in the wrong based on the balance of probabilities without providing reason.
- May be required to decide on the amount of damages awarded.
- Unanimous verdict (6/6)
- Majority verdict (5/6) is also accepted.
41
Strengths of the jury system
- Independent of the legal & political system, ensuring equality & fairness in their decision.
- Verdict reflects their values of the community
- Required to deliberate based on the evidence & facts
- Spreads the responsibility rather than one judge deciding
42
Weaknesses of the jury system
- Don’t give reason for their decision
- Deliberations occur behind closed doors
- May not be able to understand complicated evidence
- Influenced by skilled lawyers & or emotional elements of a trial.
- May conduct their own online investigation
- Biases that may play a role in their deliberation even if they aren’t aware of them.
43
Role of the Victorian courts
- Determine liability
| - Decide on the remedy
44
Role of the Victorian courts: Determine liability
The court will determine liability by....
- Providing specialisation and expertise
- Manage the case
- Hear appeals
- The judge or magistrate (or jury if there is one) will consider all the evidence and decide whether the plaintiff, on the balance of probabilities, has established the case.
45
Role of the Victorian courts: Decide on the remedy
- If liability is established, the court is to decide on the remedy.
- Either the judge or the jury may be required to assess damages (in defamation cases only the judge can do this).
- The Court may hand down a written judgment.
