REMIDIES Flashcards
(24 cards)
Access
means that all people should be able to understand their legal rights and pursue their case
Fairness
means having fair processes and a fair hearing. This means that the parties in a legal case should have an opportunity to know the facts of the case and have the opportunity to present their side of events, and the pre-hearing and hearing processes should be fair and impartial.
Equality
means people should be equal before the law and have an equal opportunity to present their case as anyone else, without advantage or disadvantage.
Mediation
a method of dispute resolution that uses an independent third party (i.e the mediator) to help the disputing parties reach a resolution
Conciliation
a method of dispute resolution that uses an independent third party (i.e a conciliator) to help disputing parties reach a resolution.
Arbitration
a method of dispute resolution in which an independent person (an arbitrator) is appointed to listen to both sides of a dispute and to make a decision that is legally binding on the parties. An arbitrator’s decision is known as an arbitral award.
Tribunal
a dispute resolution body that resolves civil disputes and is intended to be a less costly, more informal and faster way to resolve disputes than courts.
Ombudsman
an officeholder with power to investigate and report on complaints relating to administrative action taken by government departments and other authorities.
Complaint body
an organisation established by parliament to resolve formal grievances (i.e complaints) made by an individual about the conduct of another party. Deal with complaints about the provision of goods and services, or decisions made by certain bodies or authorities. Do not hear disputes about individuals Not formal procedures to resolve disputes
Jurisdiction
the lawful authority (i.e power) of a court, tribunal or other dispute resolution body to decide legal cases.
the role played by victorian courts is to:
Determining the liability of a party: to determine if the defendant is liable and to what extent the defendant is liable, decide off the evidence presented to the court during the trial.
Deciding on the remedy (if required)
two types of jurisdiction of vic court : original jurisdiction
the power of a court to hear a case for the first time (i.e not on appeal from a lower court)
two types of jurisdiction of vic court: appellate jurisdiction
the power of a court to hear a case on appeal
Role of a civil jury
- Consider facts of the case and to decide who is most likely to be in the wrong
- Jury’s decision is made on the balance of probabilities
- If a unanimous verdict cannot be reached, then a majority verdict of five out of six jurors will be accepted
- Can required to decide on the amount of damages to be awarded
- Are not required to give reason for their decision, parties will be unaware of the basis upon which the jurors made their decision.
- Make decisions based on facts only = fairness and impartiality
- Justice inline with community standards, rather than in line with views of small number of people
Remedy
any order made by a court that is designed to address a civil wrong or breach. A remedy should provide a legal solution for the plaintiff for a breach of the civil law by the defendant and (as much possible) restore the plaintiff to the position they were in before they were wronged or their rights were breached.
Two types of remedies: damages and injunctions
Damages
an amount of money that the court (or tribunal) orders one party to pay to another party. It is the most common remedy in a civil claim
Compensatory damages: main type of damages usually sought
Special or specific
- Special or specific damages: awarded to compensate the injured party (usually the plaintiff) for items that can be calculated objectively and exactly: loss of wages, medical expenses and hospital expenses.
- General damages: are awarded to compensate the plaintiff for pain and suffering, cannot be calculated objectively because they include consideration of the extent of the plaintiff’s emotional suffering and loss of enjoyment of life.
- Aggravated damages: are 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
Nominal damages
if the courts believe that the defendant has infringed the rights of the plaintiff, but the plaintiff did not suffer any actual loss. Awards a small amount of damages as compensation
Exemplary damages
Seeking to punish the defendant. Awarded if the defendant’s actions were so outrageous that the court wishes to deter others from similar action and to show disapproval of the defendant’s action.
Contemptuous damages
might think that a plaintiff has a legal right to damages but does not have a moral right; that is, the plaintiff does not deserve to be paid damages. Small sum of damages might be awarded to show contempt of the claim that is made, while admitting the plaintiff’s legal right to make the claim.
Injunction
a remedy in the form of a court order to do something or not to do something. An injunction is designed to prevent a person doing harm (or further harm), or to rectify some wrong.
two types of injunction
- Restrictive injunction: stop someone from doing something
- Mandatory injunction: to make someone do a particular act
Effectiveness of damages:
- The type of loss that has been suffered
- Whether there has been loss of life
- Whether there is another remedy that is better for the plaintiff
- Whether the damages can adequately compensate for time, stress and inconvenience of court proceedings
Whether the defendant has the capacity to pay
Effectiveness of injunctions:
Whether the defendant has already caused too must damage
Another remedy that is better for the plaintiff
Whether the plaintiff will be returned to their original position.
