remedies Flashcards
(57 cards)
fairness defenition
all people can participate in the legal system and its processes should be impartial and open
impartial
+ the parties have a independent and unbiased adjudicator
+ no party is shown discrimination or favouritism
+ decided on facts and law rather than opinion and predjudice
open
+ disputes that utilise the courts are open to the public and the courts judgement
+ promotes transperancy
participation
+ parties can prepare a case through knowing the facts
+ there are several avenues of dispute resolution
+ parties have the opportunity to present their version of the case
+ a trial occurs w/o unreasonable delay
equality
all people engaging in the justice system should be treated in the same way. If the same treatment causes disparity or disadvantage, adequate measures should be implemented, to allow all to engage with the same justice system without disparity or disadvantage.
formal equality examples
+ all parties can initiate claim if rights infringed
+ all parties are encouraged to negociate prior to and during trial
+ all parties having case heard in superior court can ask for a jury
substantive equality examples
+ if cant afford legal rep and must self represent, judge or mag has obligation to take steps to explain rights and processes
+ org such as VLA and CLC’s provide extra support
+ interpreters
access
all people should be able to engage with the legal system and its processes on an informed basis
engagment examples
+ range of dispute resoloution methods available
+ legal rep often not needed
informed basis examples
+ being rep by lawyer allows to be informed
+ specialist community legal centres
+ online legal websites eg VCAT, VLA
Mediation
+ least formal methods
+ mediators are impartial third parties trained in conflict resoloution
+ mediators do not make determinations if there has been a breach
+ they dont give advice
+ not legally binding unless deed of settlement signed by both
when is mediation used
+ before parties engage with the courts especially if important to maintain a relationship ir costs are an issue
+ during court proceedings as mag, count and supreme can order to attend mediation
+ as an alternative to court as VCAT
conciliation
shares elements of mediation except
+ conciliators can make suggestions regarding ways to resolve the dispute
+ conciliator will generally have specialist knowledge in a certain field eg consumer law, family law
when is conciliation used
many dispute resoloution bodies eg Vic equal oppurtunity and human rights commision use it
parties at VTAC often sent to compulsory conciliation
specialised courts eg family courts order it
arbitration
+ most formal method outside of the courts
+ arbitrators = impartial third parties that have knowledge on subject matter and expertise in the relevant law
+ the arbitrator makes a legally binding an enforcable decision = arbital award
+ not bound by strict rules of evidence - parties can agree on how evidence is presented etc
when is arbitration used
+ privately - previously agree [in contract] that disputes will be settled using arbitration
courts - mag court use arbitration to resolve claims of less than 20,000
mag, county and supreme request parties to attend arbitration over 10,000 if both consent
tribunals - VCAT can refer parties to arbitration before final hearing, but doesnt conduct it themselves
what is a tribunal
+ dispute resolution bodies that obtain there power to resolve certain types of disputes from parliament via statute law
eg mental health act 2014 established the Mental health tribunal
+ tribunals develop experience in particular types of disputes and can make binding decisions
+ there are commonwealth and state tribunals
purpose of tribunals
to offer a low-cost, efficient, and accessible alternative to the courts
facts on Vcat
+ opened in july 1998
+ hears approx 83,500 cases each year
Victorian Civil and administrative tribunal [vcat]
+ given powers through Victorian Civil and Administrative Act 1998 [vic]
+ VCAT president = supreme court judge
+ VCAT vice presidents = county judges
+ largest tribunal in Vic
+ has exclusive jurisdiction over some disputes eg domestic building disputes
+ not sutible for complex claims eg defamation, class actions, personal injury etc
+ parties are called applicant and respondant
5 divisions of VCAT
+ resedential tenancies division
+ administrative division
+ planning and environment division
+ civil division
+ human rights division
VCAT processes
Prior to hearing Vcat encourages parties to settle disagreement through dispute resoloution eg mediation, conciliation
if not settled hearing conducted where binding decision handed down after parties present evidence and arguments [in many cases no legal rep and parties prepare own claim]
Then the defendant may be ordered to pay a sum of money or perform a particular act
appeals from VCAT can be appealed on question of law, not on fact or amount of damages
Ombudsman [what it is]
+ an official [independent person] appointed by the government to investigate complaints made by individuals and small businesses against a company or organisation, particularly public authorities
+ obtains power to hear and determine complaints through parliament via statute law Ombudsman Act 1973 [vic]
Ombudsman key features
+ services are free
+ only hear complaints from individuals against organisations
+ wont accept complaints unless indv has tried to resolve it directly themselves
+ will try resolve by working with parties, if agreement not reached may have power to make binding decision
+ give org opp to respond and provide reasons [ upholds fairness]
