Unit 2 Flashcards
Court Hierachy
High Court Court of Appeals Supreme Court County Court Magistrates Court
Dispute Resolution Methods
Mediation
Conciliation
Arbitration
Judicial determination
Factors that apply to Dispute resolution
Role of the 3rd party
Decision binding or not
How the resolution happens?
Formality
Mediation
Parties try to resolve disputes themselves, with the help of an Impartial third party (a mediator).
Mediators do not give advice or make suggestions.
Their role is to facilitate discussion, and encourages parties to cooperate.
They help to identify the issues in dispute and to generate options to help parties reach a mutually agreeable outcome.
Decision is made by the parties themselves, not by an outside person or body and both parties must agree.
Decision is not legally binding or enforceable ( but you can usually sign terms of agreement which makes it binding)
No formal rules of evidence or procedure are followed.
The process is confidential and private ( i.e not open to public like courts are)
Usually faster and cheaper than a court hearing.
More flexible in terms of possible outcomes therefore parties are more likely to be satisfied.
Work together rather than work against each other.
More likely to preserve relationships between parties.
When mediation is not appropriate
Needs both parties to be willing to engage in the process.
May not be appropriate where there is a power imbalance (e.g between an employer and an employee or where there is a history of violence in a relationship.
Not appropriate for criminal disputes.
Conciliation
Very similar to mediation, except that the impartial third party (the conciliator)
Decision is made by the parties themselves (although potentially taking into account
Decision is not legally binding or enforceable
Used in the Magistrates’ court for pre hearing conference (where parties are ordered to try and resolve their dispute before resorting to the formal court process)
VCAT: Victorian Civil and Administrative Tribunal
3 divisions
Human rights division
Admin division
Civil division
Residential tenancy
Planning
Civil
Building
Usually Cheaper
Usually Quicker
No need for legal representation
Don’t have to follow precedent
Not a court
deals with a range of disputes involving areas such as discrimination, the purchase and supply of goods, consumer credit, domestic building works, and residential and retail tenancies.
Civil Pre -Trial Procedures:
- Letter of demand - First step to settle a dispute, the solicitor will send a letter of demand.
Demand: Informs the defendant of the plaintiff’s problem and what action the plaintiff expects of the defendant. Informs the defendant that legal action is being taken. - Issue of Writ
The start of the legal action. Statement of claim.
Lodged to the relevant court. - Statement of claim
Outline of the plaintiff’s claim and the remedy they wish to receive. Outline of action Plaintiff will take - Statement of defence
- Counterclaim - suing each other
- Further and better particulars- At this point in the case, both parties have established the details for their dispute. However, there is still an opportunity for both parties to seek further information if details are too vague.
- Interrogatories - we write questions, we send it to them and they need to respond in a certain amount of time
- Discovery - sharing of the documents e.g tape recording, documents
- Pre trial conference -
- Directions Hearing - The judge gives directions. Facts are agreed upon.
- Readiness for trial - last step before trial. Certificate signed by both parties, saying ready to go to trial
Adversary System: Winners and losers vs combatants
Is the system by which all trials - civil and criminal - operate in Victoria
The 5 Features of the Adversary System
- Need for legal representation
- The role of the judges
- Rules of evidence and procedure
- Standard of proof and burden of proof
- Role of the parties
How the procedure happens:
Examination in chief
Cross examination
Re examination
Civil Remedies
Aim to resolve parties to their original position. To restore back to the original position.
How civil cases get resolved
- Damages
Money given as compensation. 3 main types of damages.
- Compensation Damages
Special/ specific - eg. loss of wages, hospital / medical expenses
General - Pain and suffering
Aggravated - Injured feelings - cause humiliation/ insult - Nominal Damages
Not a great deal of loss therefore small amount. - Exemplary / Punitive Damages
Punish/ Judge shows disapproval by adding more money
- Interest and costs
Pay court costs and pay the other parties cost. - Injunction
To stop a behaviour or actions - Order of specific performance
Difficulties faced by parties when resolving disputes
- Costs
- Lack of awareness of civil right
- Access to Legal representation
- Delays
Court Hierachy:
Allows for appeals - By having courts arranged in a hierachy, parties who are unhappy with the outcome of their dispute may appeal to a higher court.
Administrative Convenience - By providing each court with its own specific jurisdiction, people are able to identify the appropriate court to which to take their dispute.
Allows specialisation of courts and personnel - A jurisdiction limits the types of cases heard by a court. This allows courts to develop expertise in the type of cases it deals with.
Original; Jurisdiction - The authority of a court to hear case for the first time as opposed to appeal cases which are held in another court.
Appellate Jurisdiction - The authority of a court to hear appeals
