Remedies Flashcards
fairness
All ppl can participate in the justice system and its processes should be impartial and open
-impartial processes, open processes, participation:
-all personnel w/in the legal system must act in a way that is impartial and independent-no bias or discrimination
-court processes must be transparent
-individuals can effectively participate in legal system: aware of charges, time to prepare case, aware of evidence
equality
everyone engaging in the justice system should e treated in the same way, if this creates disparity or disadvantage, adequate measures should be implemented to allow all to engage w/o disparity or disadvantage
-same treatment-formal equality
-different treatment-substantive equality
access
all people should be able to engages with the justice system and its processes on an informed basis
Engagement-physical/financial access
Informed Basis-education, access to legal support services, legal rep
What is mediation
One of the least formal methods- joint problem solving process where parties willingly cooperate to reach a solution through negotiation
Who facilitates mediation
Impartial third parties trained in conflict resolution
Facilitate the discussion by empowering both parties helping them feel confident to negotiate and evening out any power imbalances
Support parties to reach a decision for themselves
Do not make determinations abt whether there has been a breach of civil law or offer the parties legal advice
When is mediation used
If it’s important to maintain an ongoing relationship and costs may be an issue
Parties can organise a private mediation
Mag, county, supreme courts can order parties to attend mediation before setting a further date for trial
VCAT often refers claims to mediations prior to the final hearing
How does mediation work
With the help of the mediator, parties discuss the issues involved, consider options and endeavour to reach an agreement through negotiation and compromise
Legal rep is not usually used-> informality
No strict rules of ev/ procedure
‘Without prejudice’- candidly discuss strengths and weaknesses and cannot be used against them at a later date
Not legally binding unless a deed of settlement is signed by both parties
Terms of settlement: legally binding doc outlining the agreement - enforceable thru courts. The terms are usually confidential to parties and cannot be disclosed to the public
Conciliation
Same elements as mediation except
Conciliator listens to facts and ev presented by both sides and make suggestions regarding ways and options to resolve the dispute
Generally an indiv w specialist knowledge in that field
When is conciliation used
Many dispute resolution bodies use conc
Parties at VCAT often sent to a compulsory conference which uses conc
Some of specialised courts order conc conferences to reach agreements about financial or parenting issues
What is arbitration
One of the most formal alternate methods to dispute resolution outside of courts
Who facilitates arbitration
Arbitrators are impartial third parties who generally have knowledge about the subject matter of dispute and expertise in the relevant law
How does arbitration work
Arbitrator listens to both parties and makes legally binding and enforceable decision- arbitral award
Arbitration is not bound by strict rules of evidence- parties can agree on how ev is presented, level of formality and what procedural rules will apply
Parties can self represent but most parties will have rep considering binding nature of award
When is arbitration used
Privately- partied previously agree that disputes will be settled by arbitration. Parties hire arbitrator and agree on advance to abide by the award. Occusrs in dispute resolution centres/ melb commercial mediation and arbitration centre
Courts- mag courts to use arbitration to resolve claims of less that $10k. Court initially attempts to facilitate an agreement b/w parties but a magistrate or registrar can step in to make a binding decision if unsuccessful
Mag , county and supreme can also request parties attend arbitration for claims above $10k if they consent
Tribunals- VIC civil and Administrative Tribunal can refer parties to arbitration before the final hearing however does not conduct the process itself
What is a tribunal
Dispute resolution bodies that obtain their power to resolve certain types of dispute from parliament via statute law.
They develop experience in particular types of disputes and can make binding decisions. Tribunals cannot hear every type of dispute
There are commonwealth and state tribunals
VIC civil, and administrative tribunal
vcat is given its power through the Victorian civil and administrative tribunal act 1998 (vic)
Is the largest tribunal in Victoria with the power to hear a wide range of civil and administrative disputes:
It has exclusive jurisdiction over some types of disputes including domestic building disputes
is not suitable for complex cases, such as class actions, defamation or Large monetary damages
VCAT divisions
Residential tenancies division: residential tenancies list
Administrative division: legal practice list, review and regulation list
Planning and environment division: planning and environment list
Civil division:
Civil claims list, building and property list, owners, corporations list,
Human rights division: guardianship list, human rights list
Fees
No fees:
Represented by Victoria legal aid or community legal centre
Under 18 years of age
In prison or other public institution
A protected person or affected family member in a residential tendencies case
Standard fee rate:
Individuals, sole trader businesses, businesses set up as a partnership, businesses with a turnover of less than $200,000 in the last financial year, not for profit organisations
Corporate rate:
Businesses with a turnover of more than $200,000 in the last financial year
VCAT purposes
Provide low-cost dispute resolution services: parties do not require legal representation, Fees are low compared to courts, some less application fee and fees can also be waived or postponed for those in financial hardship,
Provide efficient dispute resolution services: hearings are less time-consuming, as it is not bound by the same rules of evidence and procedure as the courts, many cases are referred to mediation or compulsory conferences, hearings involve fewer prehearing procedures, so is that there is less time between application and receiving resolution
Provide accessible dispute resolution services: low-cost, insure people have access to dispute resolution bodies and remedies, uses phones and conferences for some hearings mediation and compulsory conferences, so the parties don’t have to travel long distances, uses informal procedures compared to court, which is easier to understand by the parties
ombudsman
an ombudsman is an official (indep person) appointed by the govt to investigate complaints made by individuals and small businesses against a company or organization, particularly public authority
- obtains power to hear and determine complaints through parliament via statute law ( Ombudsman Act 1973 (Vic))
TYPES
govt omb- complaints abt govt institutions. Vic Omb
industry based omb- complaints re specific categories of the private sector e.g Telecommunications Industry Omb
KEY FEATURES:
services are free
only hear complaints from indiv against organisations
usually will not accept a complaint unless indiv has tried to resolve it directly themselves
Omb will try resolve the complaints by working w the parties. if agreement cannot be reached Omb may have power to make a binding decision
Omb ensures procedural fairness by giving organizations an opportunity to respond to a complaint by providing reasons for any decision made
EG OF OMB:
Vic Omb: inquire/ investigate administrative decisions made by Vic Govt Dpt, public statutory authorities and officers of municipal parties
Energy and water Omb Vic: complaints from Vic about energy or water companies
Pub Trans Omb: investigate and resolve complaints abt pub trans operators
Complaint bodies
deal w complaints about tje provisions of goods and services, or the decisions made by certain bodies or authorities
KEY FEATURES:
they are intended to provide a free complaints and dispute resolution services
similar to omb., complaints bodies accept complaints from individuals or small businesses against organisations (not vice versa)
complaints bodies are more informal than tribunals and omb- they are limited to offering dispute resolution services as opposed to conducting hearings or making binding decisions
some complaints bodies can investigate complaints and take enforcement action against individuals or companies that do not comply w certain laws
E.G:
Health complaints Commissioner (HCC)- hears disputes about health services or concerns about health info privacy
Vic Legal Services Commissioner (VLSC)- hears and investigates complaints about lawyers
Vic Equal Opportunity and Human Rights Commission (VEOHRC)- hears disputes in relation to discrimination and infringements of human rights
Consumer Affairs Vic
statutory body established via plmt passing Australian Consumer and Fair- Trading Act (Vic) 2012
vic civil complaints body that provides info and helps resolve disputes to create a fair and competitive marketplace for consumers and businesses
PURPOSES:
provide info to educate ppl abt consumer laws abt the rights and responsibilities of businesses and consumers
in limited circumstances, provide consumers, traders adn landlords w a dispute resolution process
advise the vic govt on consumer legislation (e.g sales of goods and services)
initiate legal action against businesses who breach consumer protection laws in vic
investigate complaints abt unsafe products being sold in vic and if needed remove such items from sale
CAV and Conc:
must first attempt to settle dispute themselves
voluntary and fee conc services
CAV empowers the parties to resolve the dispute constructively adn efficiently, either in person or over the phone
final resolution is not legally binding unless deed of settlement
Civil juries
jury- a group of randomly selected people who are required to deliver a in a trial based on the evidence presented to them in court
unlike criminal, there is no automatic right to a trial by jury in civil cases
-no jury in Mag or on appeals
-jury is optional in county and SC (TD)
-party who requests jury must pay associated fee (judge can deny request)
-judge may order that a jury is required- state pays
due to complexity of legal issues and high fees, it is rare for a jury to be requested
jury composition
Juries Act 2000 (Vic)
randomly selected from Vic electoral role
those selected must fill out eligibility form
if eligible, potential jurors attend court on a particular day and form part of the jury pool
6 people
on day of selection, jurors names and occupations are announced, as juror approaches jury box, each party can challenge a prospective juror
both parties have 2 peremptory challenges and unlimited no of challenges for a cause
role of the jury
objectively listen to evidence and consider the facts of the case
follow directions of judge regarding relevant law
decide who is more likely in the wrong on the balance of probabilities (deliver verdict)
possibly assess amount of damages (not defamation)
NOT:
obtaining external info about the trial (e.g internet research)
not required to provide reasons for their decisions (unlike judges and Mag. )
