remedies (lesson 1-13) Flashcards
1
Q
lesson one
what is the aim of civil law?
A
- to protect the rights of individuals in society
2
Q
lesson one
when is fairness achieved?
A
- when legal processes are in place & all parties recieve an unbiased hearing
3
Q
lesson one
how is fairness maintained in the civil justice system?
A
- the d will be given full details of the claim
- the p & the d have the right to be advised & represented
- alternative methods of dispute resolution, such as med. & concil. allow the parties to resolve the dispute themselves as opposed to a decision being made for them
- tribunals are specialized forums of dispute resolution w/o the high costs of courts
- strict rules of evidence & procedure apply to both parties of the civil trial
4
Q
lesson one
what does equality involve?
A
- one party being treated the same as the other w/o discrimination
5
Q
lesson one
how does the legal system provide for both parties to be equal before the law?
A
- provide for all ppl to be heard & for all ppl to be able to access the legal system w/o barriers that are too difficult to overcome
- any outcome w/n the legal system is based on the law, not on a person’s characteristics, culture, beliefs, social status or gender
6
Q
lesson one
what is access?
A
- access to information, support & assistance in order to have civil rights protected
- person’s ability to obtain information & advice in a lang. the party understands
- person’s ability to recieve legal advice
- to be rep. even when the party is financially disadvantaged
- party’s ability to obtain legal advice
- ability to attend court w/n a geographically accessible region
7
Q
lesson one
what enhances access
A
- the existence of diff. methods of dispute resolution
- the existence of complaints bodies & websites which provide guidance on rights
- specialised, efficient & effective tribunals
- a court system which involves individual courts, each w/ specific jurisdictions, being arranged into a hierarchy.
8
Q
lesson two
what is mediation?
A
- impartial third party (mediator/s)
- do not offer suggestions or give advice
- lawyers can be present
- decision is not legally binding
9
Q
lesson two
what does the mediator do?
A
- assisting the parties to discuss their dispute & determine a mutually acceptable resolution b/w themselves
- encourages parties to cooperate & decide on their own solution
10
Q
lesson two
what are examples of mediation?
A
- family mediation centre
- dispute settlement
- family court
- sc
11
Q
lesson two
what is the mediation process?
A
- introduction
- both sides tell their sides of the dispute & indentify the issues
- med. list the main points
- parties discuss the issues, listen to each other & ask questions
- med. meet w/ each side privately & discuss possible solutions
- all parties & med. meet to negotiate & discuss options of resolution
- agreement is written by mediators
- closing statements
12
Q
lesson two
what is conciliation?
A
- impartial 3rd party (conciliator)
- offering suggestions & advice
- lawyers can be present to assist
- decision is not legally binding
13
Q
lesson two
what does the conciliator do?
A
- assists the parties to discuss their dispute & offering suggestions & advice to help the parties determine a mutually acceptable resolution b/w themselves
14
Q
lesson two
what are examples of conciliation?
A
- consumer affairs vict
- mag c in the pre-hearing stage
- equal opportunity commission
15
Q
lesson two
are conciliation and mediation always not legally binding?
A
- not legally binding unless a ‘deed of settlement’ is signed
16
Q
lesson two
what is arbitration?
A
- impartial 3rd person (arbitrator)
- 3rd party will make the decision for them = legally bounding
- lawyers often present to assist
17
Q
lesson two
what are examples of arbitration?
A
- tribuals = VCAT
- mag c will arbitrate disputes involving disputes for less than $10,00
18
Q
lesson two
what does the arbitrator do?
A
- listening to parties & trying to help them reach an agreement
- make decision for parties
19
Q
lesson two
what is judicial determination?
A
- resolving disputes traditionally through the courts
- decision handed down = legally binding
- last resort of civil resolution b/c it is expensive & time-consuming nature
20
Q
lesson two
what do parties present during judicial determination?
A
- parties present their cases before an indep, impartial 3rd party (judge; mag)
21
Q
lesson two
what are the strengths of mediation & conciliation?
A
- informal - strict rules of evidence & procedure are X used
- leg rep = X necessary –> lowers costs
- parties = more satisfied w/ the outcome b/c X imposed by 3rd party
- confidentiality = open & safe environ for discussing issue
- more likely be able to maintain ongoing relationships
22
Q
lesson two
what are the weaknesses of mediation & conciliation?
A
- X strict rules of evid & proc.
- if X lawyers chosen t/f parties may not prep. their case in the best way possible
- parties might not come to an agreement
- processes usually voluntary t/f disputes may end up going to court anyway if one party doesn’t want to use the method of dispute reolution
23
Q
lesson two
why is it that weakness that mediation & conciliation don’t involve strict rules of evidence & procedure?
A
- it might cause a more knowledgeable or dominating party to intimidate the other party into compromising too much
24
Q
lesson two
what are the strengths of arbitration?
A
- dec. = legally binding on all parties
- more informal than lit.
- arb = expertise in resolving these types of matters
- conducted privately & is more flexible than jud det in the way it is conducted
- cheaper than jud det
25
# lesson two
what are the weaknesses of arbitration?
- X always available - used where agreed upon by parties or for use w/ small claims in the mag c or VCAT
- take long time for a dec to be reached if evidence is produced by both parties
- X party control over outcome
- potential to be formal as lit
26
# lesson two
what are the strengths of judicidal determination?
- binding dec that is enforceable in courts
- equal treatment as both sides are subject to laws of evidence & procedure
- dissatisfied parties have opportunity to appeal
27
# lesson two
what are the weaknesses of judicial determination
- expensive
- time consuming - delays mean that a case may take mths or yrs to be heard & then to resolve
- win / lose scenario -- leading to animosity b/w parties
- formal & t/f can be intimidating
28
# lesson three
what are tribunals
- are dispute reolution institutions which operate in an informal & generally inexpensive way
- usually quicker than courts & can specialise in particular fields
29
# lesson three
what problems was VCAT created to overcome?
- the high costs of admin
- confusion over which tribunal was the most appropriate to utilise
- the impact of minor civil disputes going before the mc
30
# lesson three
what are the five divisions of VCAT
- civil div
- administrative div
- human rights div
- residential tenancies div
- planning & environ div
31
# lesson three
what are the VCAT fees?
- vary according to the status of the party initiating the matter & the type of matter
.e.g. anti-discrim list = free / civil claim list = $65.30
32
# lesson three
do formal rules of evidence & procedure apply in VCAT?
- no formal rules of evid & procedure do X apply h/w party can give evidence & examine witnesses
33
# lesson three
what behaviour is expected in VCAT?
- respectful
34
# lesson three
is legal rep needed in VCAT?
- leg rep X needed but might be allowed
- it is discouraged b/c leg rep e.g. lawyer = decr accessibility & incr costs
35
# lesson three
what can be used to conduct proceedings in VCAT?
- telephone & video links
- some proceedings can be conducted entirely on the basis of documents --> incr access
36
# lesson three
what happen in VCAT pre-hearing conferences?
- identify & clarify issues
- promote settlement
- identify questions of fact & law
- directions given regarding conduct of hearing
- parties can be referred to mediation
37
# lesson three
where are appeals from VCAT heard?
- heard by the sc (td) or the sc (coa)
38
# lesson four
define ombudsman?
- an official, appointed by the govt to investigate complaints made by individuals against certain bodies or institutions
39
# lesson four
what relevant parliament grants the ombudsman powers by passing a statute?
- the 'Ombudsman Act 1973 (Vic) was an Act of Parliament, passed by vic parliament, it allows the ombudsman to obtain power to hear & determine complaints
40
# lesson four
broadly what are the two types of ombudsmen?
- government ombudsmen
- industry ombudsmen
41
# lesson four
what does govt. ombudsmen deal with?
- deal w/ disputes / complaints about govt agencies
42
# lesson four
what does the industry ombudsmen deal with?
- deal w/ disputes b/w consumers & businesses in particular industries e.g. telecommunications or public transport
43
# lesson four
what is the role of the ombudsmen?
- to provide indep, timely & accessible dispute resolution services
44
# lesson four
how does an ombudsman address the power imbalance that exists b/w individuals & large companies or govt agencies?
- the ombudsman will only hear complaints from individuals about govt departments / agencies & prescribed private sector organisations (X vice versa) --> helps to overcome power imbal individuals might feel when dealing w/ large companies or govt agencies
45
# lesson four
how does an ombudsman ensure procedural fariness?
- while ombudsman = appointed by the relevant govt they act impartially & indep ensuring procedural fairness
- procedural fairness = ensured by giving parties an opportunity to respond to a complaint & by giving reasons for an decision made
46
# lesson four
what will an ombudsman do firstly?
- the omb will try to resolve the dispute by working w/ the disputing parties
- h/w if agreement = X reached by the disputing parties the omb may have power to make a binding decision on the parties
47
# lesson four
what are examples of government ombudsmans?
- commonwealth omb
- victorian omb
48
# lesson four
what are examples of industry ombudsmen?
- telecommunications industry omb
- fair work omb
- energy & water omb
- public transport omb
49
# lesson four
what complaints does commonwealth ombudsman deal with?
- complaints about govt departments
50
# lesson four
what complaints do telecommunications industry ombudsman deal with?
- complaints about telephone or internet service in aus
51
# lesson four
what complaints does the fair work ombudsman deal with?
- complaints from workers & employers
52
# lesson four
what complaints does the vic ombudsman deal with?
- complaints about vic departments or administrative offices
- does X have power for cases against police or judges
53
# lesson four
what complaints does the energy & water ombudsman deal with?
- complaints about energy & water companies e.g. bills
54
# lesson four
what complaints does the public transport ombudsman deal with?
- complaints about public transport vic, v/line & yarra trams
e.g. tecketing & penalties or conduct of staff
55
# lesson six
in civil law what is the role of the court?
- determine the liability of a party
- decide on the remedy (if required)
56
# lesson six
what are courts?
- are the traditional dispute resolution bodies
57
# lesson six
how do courts determine the defendants liability and if so to what exent?
- mag / judge consider evidence & whether the p. on the balance of prob has est that the def. had caused loss or harm
- might also have to determine whether the def. was fully liable for the p's loss or harm (p = might habe contributed to the loss or harm / another party involved) --> dam awarded
58
# lesson six
what powers do the judges have?
- sig case managment powers = powers to require partis to attend med. before trial & powers to compel the discovery of documents
59
# lesson six
what is a civil remedy?
- a way in which the court can restore the party which has suffered a loss or harm back to its original position before the loss was suffered.
60
# lesson six
what are the common civil remedies?
- damages (monetary award)
- injuction
61
# lesson six
who are how are damages assessed?
- J & J asses damages based on evidence presented by both parties (h/w in def = only judge can asses damages)
62
# lesson six
what happens if the defendant is not held liable in a dispute?
- X remedy = required
63
# lesson six
what is the original jurisdiction of the HC of Aus?
- consitutional matters
64
# lesson six
what is the appellate jurisdiction of the HC of Aus?
- highest court of appeal from state courts
- can hear appeals involving any area of law
65
# lesson six
does the SC (coa) have original jurisdiction?
no
66
# lesson six
what is the appellate jurisdiction of the SC (coa)?
- appeals from CC , SC (td) or VCAT if decision by president / vice-president
67
# lesson six
what is original jurisdiction of SC (td)?
- unlimited jurisdiction
- complex & large civil disputes e.g. representative proceedings
68
# lesson six
what is the appellate jurisdiction of the SC (td)?
- appeals on a point of law from the mc & VCAT
69
# lesson six
what is the original jurisdiction of the CC?
- unlimited jurisdiction
- typically hears personal injury claims
70
# lesson six
do the mc and cc have appellate jurisdiction?
- no
71
# lesson six
what is the original mc?
- claims up to $100,000
- claims of less than $10,000 referred to arbitration
72
# lesson seven
is there a jury in the magistrates court?
- no civil jury present in the mc, nor will will a civil jury be present in any appeal.
73
# lesson seven
is there a civil jury in the cc and sc?
- a civil jury is optional in cc & sc
74
# lesson seven
when might a jurt be present in a civil case?
- a party must request a jury trial --> that party will pay the fees associated w/ the jury trial
75
# lesson seven
what can a judge do in relation to the presence of a jury during civil trials?
- a judge is able to order that trial be judge alone
- the judge might request a jury to be present for a civil trial (X common) --> state will pay jury fees
76
# lesson seven
why are juries rare in civil trials?
- b/c fees involved
- b/c area of law = complex
77
# lesson seven
how many jurors are in a civil trial?
- composed on 6 jurors = each randomly selected from electoral roll & have gone through empanlement process
- up to 2 extra jurors
78
# lesson seven
why are 2 extra jurors selected?
- if the trial is expected to be lengthy
- discharged once case arrives at point of deliberation
79
# lesson seven
how are parties allowed to challenge potential jurors?
- each party will cross the names of three prospective jurors off a list = peremptorty challenges
- parties = unlim. no. of challenges for causes
80
# lesson seven
what is the role of a civil jury?
- consider the facts of the case
- consider a verdict
- decide whether plaintiff has proven the wrongdoing of the def. on the balance of probabilites
- might be able to decide on the amount of damages awarded (X in defamation)
81
# lesson seven
what does it mean for the decision to be made on the balance of prob?
- it was likely that the defendant infringed the rights of the plaintiff
82
# lesson seven
what type of decision can a civil jury reach?
- unanimous decision
- if X unanimous dec --> majority verdict (5/6) accepted
83
# lesson seven
what are the benefits of a civil jury?
- ensures justice is administered in line with community standards & X simply in line w/ the views of a small no. of ppl (judges)
- enables the commun. to participate in the administration of justice --> enhances the commun. confidence that justice is being achieved
- contributes to the fulfilment of the principles of justice
84
# lesson seven
how do civil juries contribute to the fulfilment of the principles of justice?
- equality & fairness = upheld b/c jury mem = X knowledge of a party or witness
- X bias or preconceived notions
- able to make decision based on facts
85
# lesson eight
what is the general pirpose of remedies?
- to restore the infringed party, who has suffered loss or injury, to the position that party was in before the loss or injury ocurred
86
# lesson eight
what are the two main types of civil remedy?
- damages
- injunctions
87
# lesson eight
what are damages?
- an amount of money to be paid to the infringed party to compensate for losses suffered
88
# lesson eight
what are injunctions?
- a court order to force a party to complete, or stop, an actions in an attempt to rectify the situation which has arisen
- can be short term or ongoing in nature
89
# lesson eight
what are the three types of compensatory damages?
- specific damages
- general damages
- aggravated damages
90
# lesson eight
why are specific damages awarded?
- awarded to compensate the plaintiff for items that can be calculated exactly
e.g. loss of wages, medical expenses
91
# lesson eight
why are general damages awarded?
- awarded to compensate the plaintiff for pain & suffering
- these damages X be calculated exactly. plantiffs counsel will make submissions as to what they estimate to be an approp amount
e.g. emotional stress or loss of ability to walk
92
# lesson eight
why are aggravated damages awarded?
- awarded to compensate for humiliation & insult
93
# lesson eight
what are nominal damages?
- involve a small amount of damages being awarded by the court to the plaintiff
- awarded in cases where the defendant has infringed the plaintiff's rights but the plaintiff hasn't suffered actual loss
e.g. in def. case, when what was said was untrue & did somewhat damage the person's reputation, but the damage was minimal
94
# lesson eight
what are exemplary damages?
- might be awarded if the defendant's actions were so negligent or abhorrent that the court wishes to deter others from similar action & to show disapproval of the defendant's actions
- court seeks to punish the defendants & deter other members of the commun from violating these same laws
95
# lesson eight
why are contemptuos damages awarded?
- awarded if there has been an infringement of rights but the court expresses its disappoval of the plaintiff's legal action
- the contempt possesed by the court might stem from the fact that the infringement was minor & while there maight be a legal right to damages there is no moral right
96
# lesson eight
what are the two types of injunction?
- mandatory injunctions
- restrictive injunctions
97
# lesson eight
what are mandatory injunctions?
- compel an action
e.g. an order to remove something from one's land
98
# lesson eight
what are restrictive injunctions?
- prevent an action
e.g. an order stopping building from being destroyed
99
# lesson nine
who were the parties in the W v BM case?
- plaintiff = Rebel Wilson
- Defendant = Bauer media group
100
# lesson nine
to be successful what did wilson need to prove?
- the statements made about her in the articcles were defamatory
- the articles contained false statements which injured her reputation
- the statements referred directly to her
- the statements had been published by the defendants
101
# lesson nine
what did wilson claim?
- that the articles portrayed her as liar who had invented stories about herself to become successful
- that her reputation was ruined b/c of the articles & that she had been publicly humiliated & embarrassed by them
- b/c of articles she lost the opportunity to earn income by acting in feature films in the usa
102
# lesson nine
what remedies did wilson seek?
- $5.893 mill in specific & $1.2 mill in general
- interests & costs were sought
- permanent injunction
103
# lesson nine
why did wilson seek a permanent injunction?
- to stop bauer media from publishing that articles again was sought
104
# lesson nine
what wilson issue?
- issued a writ
- a statement of claim accompanied the writ w/n this document wilson claimed that she had been defamed
105
# lesson nine
what court heard the Wilson V Bauer Media PTY LTD (2017) case?
- supreme court of victoria
106
# lesson ten
how was the principle of justice, fairness achieved during the wilson v bauer case?
- each party allowed an opportunity to present their case & rebut the other side's case.
- the rules of procedure allowed the partie to present their case.
- each party was entitled to & did call evidence, make submissions to the court & address the judge & jury
- the jury was the decider of facts, meaning they would be required to consider the evidence & the law to come to a verdict.
- the laws of defamation were properly applied
107
# lesson ten
how was each party in the wilson v bauer case allowed to present evidence & rebut?
- a no. of emails were used as evidence about bauer media's concerns at the time they decided to publish
- those emails would have been seen by wilson & her legal team before the trial during the process of discovery, this process thus ensured that relevant documents were not withheld from the plaintiff
- there was a timely resolution of the case (having regard to the complexity & size of the dispute)
- both parties has adequate leg rep. to assist the trial
108
# lesson ten
how did the jury in the wilson v bauer case not achieve fairness?
- the jury did not have to give reasons for their decision, therefore it is unclear whether the jury has properly considered the evidence, or understood the law, when arriving at a verdict.
- this may be seen by some as unfair
109
# lesson ten
what laws of defamation were properly applied during the wilson v bauer case?
- the fact that the judge decided on the amount of damages. --> most legally experienced person in the courtroom, the judge decided on the remedy
110
# lesson ten
how was the principle of justice, equality achieved during the wilson v bauer case?
- the judge was required to act impartially & w/o bais = X connections to the parties
- both p & d had experienced leg rep = ensure ability to present their case --> remove any inequality
- jury members = X connection or relationship w/ the parties & would be required to decide on the facts
- both parties had the right to appeal
111
# lesson ten
how would the jury not have ensured equality during the wilson v bauer case?
- b/c the high profile of the case & high profile of the plaintiff it is possible that one or more of the jury members would have known of wilson or of the publications in question before the trial.
- this prior knowledge would have influenced jury members, but given that they do not have to give reasons for their decision, there is no way of knowing whether any prior knowledge influenced their decision
112
# lesson ten
how was the principle of justice, access achieved in the wilson v bauer case?
- the use of mediation --> incr. access to justice as it provides parties w/ alternative method of resolving dispute outside trial. (X clear it was held)
- afford the costs of the trial (legal funds)
- wilson gave evidence & witnesses attended = ensured as enabled video links if X attend personally
- trial conducted by way of an open hearing
- rulings handed down by justice dixon available to the parties & public, this ensuring access to the reasons
- parties have right to appeal, ensuring access to a higher court to review the lower court's decision if neccessary
113
# lesson ten
how did a open hearing allow access to be achieved during the wilson v bauer case?
- ensures parties & members of the community have access to information about the way the dispute was resolved, thus ensuring transparency in the process
114
# lesson ten
what were wilsons damages reduced to?
- $4.5 million damages win for def by bauer media reduced to $600,000
115
# lesson ten
what did the vic (coa) rule?
- ruled that wilson had X proved that she lost work & suffered eco. damages in hollywood as a result of the def articles which painted her as a serial liar
- rejected claim for lost opportunity to be offered & then cast in lead or co-lead roles = X basis in the evidence for making any award of damages for eco. loss
116
# lesson ten
what did the vic (coa) reassess?
- said def caused "hurt & distress" & assessed her damages for non-eco loss, including aggravated compensatory damages, down from $650,000 to $600,000
117
# lesson ten
what did wilson do and what happened after the decision of the sc (coa)
- wilson took matter to the hc h/w knocked back permission for wilson to fight her defamation case against bauer media --> end of case
118
# lesson eleven
who was the plaintiff in the kamasaee v commonwealth (2017) case?
- the lead plaintiff was Majid Karami Kamasaee brought the proceedings on his own behalf & on the behalf of all persons who ar any time between 2012 & 2014 faced negligence or were falsely imprisoned b/c of the defendants
119
# lesson eleven
who was the defendant in the kamasaee v commonwealth (2017) case?
- the commonwealth of Aust.
- G4S Aust. Pty Ltd
- Broadspectrum Pty Ltd
120
# lesson eleven
what were the alledged civil wrongs which had been carried out by the defendants?
- negligence
- false imprisonment
121
# lessen eleven
what were the issues that needed to be considered by the court during the kamasaee v commenwealth case?
- did the cth govt & other defendants owe the plaintiffs a duty of care?
- was the duty of care breached?
- did the plaintiffs suffer loss / harm caused by the defendants?
- was there a reasonable means of escape by the plaintiffs?
122
# lesson eleven
what did Kamasaee allege?
- the futy of care owed by each of the defendants was breached
- the injuries were suffered by the plaintiff & the group members as a result of the failure of the defendants
- alleged that the group members were falsely imprisoned by the defendants during 21st nov 2012 until 12th may 2016
123
# lesson eleven
what was the loss / harm suffered by the plaintiffs?
- X adequate food, water, shelter / accomodation, medical, health care, secruity services
= physical & psychological injuries
124
# lesson eleven
what did the plaintiff seek?
- sought damages against cth & G4S
- sought aggravated & exemplary damages
125
# lesson five
what is the role of a complaints body?
- provide a free complaints & dispute resolution service: this enables ordinary aust. to have access to dispute resolution mechanisms
- designed to hear complaints from individuals & small businesses about goods or services provided to them
- do not have the power to conduct a hearing or make binding decisions on the parties
126
# lesson five
what is the process of complaints bodies?
- do X use formal procedures to resolve disputes
- will offer flexible services so accessible to everyone
- able to take enforcement action against parties that do not comply w/ certain laws
127
# lesson five
how are complaint bodies accessible to everyone?
- complaints can be made online or over the phone
128
# lesson five
what power does consumer affairs vic have?
- power to conciliate disputes b/w consumers & traders about the provision of goods & services
- power to conciliate disputes b/w tenants & landlords
- to hear disputes in relation to retirement villages
129
# lesson five
what are the key functions of consumer affairs victoria
- edu consumers & bus about relevant consumer protection leg
- invest complaints on behalf of consumers
- conciliating disputes b/w consumers & traders & tenants & landlords
- taking enforcement action in the courts against traders & landlords for breaches of consumer protection leg
130
# lesson five
what are some examples of complaints bodies?
- consumer affairs vict
- inspector-general of taxation
131
# lesson twelve
what were the purposes of damages in the k v c case?
- to return the lead plaintiff & the group members to position prior to loss
- d
132
# lesson twelve
what is the outcome of the kamasaee v commonwealth case?
- june 2017
- cth agreed to pay $70 ill in compensation plus costs
- approved sc of vict in sep 2017
133
# lesson twelve
did the damages achieve their purpose in the kamasaee v cth case?
- given that detainees had suffered mental harm & long-term injuries damages might never be able to return them to the position they were in prior the harm having occurred
134
# lesson twelve
how was fairness achieved during the kamasaee v cth case?
- opp to present their case
- know the parties the case that was put against them
- mediation = opp. to settle w/o the need for a trial
- timely resolution for the cases complexity & size
135
# lesson twelve
how did the kamasaee v cth case achieve equality?
- trial by judge & jury
- jury = impartial, unbiased & objective = X pre-concieved views
- judge = impartial & X bias
- p had leg rep t/f equal ability to present their case
136
# lesson twelve
how was access achieved in the kamasaee v cth case?
- med. = incr. access to justice = alt method to resolve dispute
- class action = get access to court & remedy when otherwise X
- p = vul / X english / X understand court process = lawyers & funds
- settlement = acheive remedy that might not have gotten by themselves
- broadcast the trial = allow public & X able to attend access to progress
