Unit 2 AOS 2 Flashcards
Parties in a civil case
- plaintiff: the person who commences a civil action
- defendant: the person who is being sued
types of civil law
- defamation
- contract law
- negligence
- trespass
- family law
- nuisance laws
- wills and inheritance laws
mediation
a method of dispute resolution, using an independent third party (mediator) to help the disputing parties reach a resolution
- is trained
- no legal knowledge
- does not offer legal advice
- does not make the decision
- parties may reach terms of settlement
available to parties in the following ways:
- parties can organise a private mediation
- parties in a court case or tribunal can be referred to mediation by a court before a final trial or hearing
strengths of mediation & conciliation
- a decision made by the parties is more likely to be acceptable to the parties, as they have reached the decision themselves
- more informal than a courtroom
- less confrontational
- more flexibility
- conciliator has specialised knowledge
- more affordable than a court case
weaknesses of mediation
- participation and willingness of the parties is required to be successful
- decisions are not binding
- mediator has no power to order the parties to come to a decision
- not appropriate for some disputes
- mediator is not able to give advice or offer suggestions
VCAT (purposes)
- provide victorians with a low cost, accessible, efficient & independent tribunal delivering high quality dispute resolution processes.
- made up of four divisions (administrative, civil, human rights, residential tenancies)
role of victorian courts in civil cases (determine liability)
- judge or magistrate considers the evidence and determines whether the defendant has caused loss or harm to the plaintiff, on the balance of probabilities
- court will provide specialisation & expertise, manage the case and hear appeals
jurisdiction of victorian courts
original: the power of a court to hear a case for the first time
appellate: the power of a court to hear a case on appeal
- magistrates:
original - claims up to $100000
appellate - N/A
- county:
original - unlimited
appellate - NA, unless given under a specific act
- supreme court (trial division):
original - unlimited
appellate - appeals on a question of law from magistrates and VCAT
- supreme court (court of appeal)
appellate - appeals from county, supreme or VCAT when constituted by president
role of victorian courts in civil cases (deciding on the remedy)
- if the defendant is liable, or the plaintiff is liable for the counterclaim, the court decides on the remedy.
- a way for a court to right a wrong
- most common remedy is damages
- judge or jury may be required to assess the damages (only judge in defamation)
juries in civil trials
- no jury in magistrate’s court and in appeal cases
- in county and supreme court, a jury is optional
- civil jury trials are rare, because of the fees involved (sometimes used in defamation cases)
- 6 jurors
role of civil jury
to consider the facts of the case and decide who is most likely in the wrong
- decision made on the balance of probabilities
- majority verdict
strengths of the jury system
- jurors are independent and impartial
- allows community to be involved in the process
- ensures fairness by requiring the jury to deliberate based on evidence and facts
- spreads the responsibility, making the decision more likely to be fair
- reflects community values
weaknesses of the jury system
- jurors dont give reasons for their decisions
- task is difficult
- jurors may be unduly influenced by lawyers or emotional elements
- may have biases
- expensive
- inconsistent
purposes of civil remedies
- to restore the party who has suffered loss or injury to the position they were in before it occurred
- usually damages (money)
- two types of remedies: damages and injunctions
types of damages
- compensatory damages –> general, specific or aggravated
- nominal damages
- exemplary damages
- contemptuous damages
