Unit 2 Area 2

Question 1

When is mediation appropriate

Answer 1

-parties are willing to negotiate, participate, and resolve the dispute
-the mediation process is understood by disputing parties
-disputing parties want to maintain their relationship in future
-privacy and confidentiality need to be maintained
-parties are aiming to save time and money

Question 2

when is mediation NOT appropriate

Answer 2

-vulnerable party is involved in the dispute, such as an individual who has experienced abuse
-parties unwilling to discuss issues
-disputing parties are highly emotional or hostile
-mediation previously failed/history of betrayal between parties
-there is a power imbalance between disputing parties that creates a risk of reaching an unjust resolution
-legally binding agreement needs to be established

Question 3

what are tribunals

Answer 3

Tribunals are institutions authorized by parliament to hear and adjudicate claims or disputes. They offer a low-cost, timely avenue for dispute resolution, making it more accessible. While not courts, tribunals can hear civil disputes and make binding decisions. Before a hearing, they encourage alternative dispute resolution methods. If unresolved, a hearing is conducted.

Question 4

example of tribunal

Answer 4

VCAT which provides a low-cost, accessible, efficient and independent tribunal delivering high-quality dispute resolution processes.

Question 5

what are an ombudsmen

Answer 5

an independent authority that operates on state and federal levels and is created to investigate complaints against a company or organisation.

Government ombudsmen handle complaints about institutions like local councils and government departments.
Industry-based ombudsmen address complaints in specific private sector categories.
They help balance the power dynamic between individuals and large service providers. Ombudsmen derive their authority from statutes made by parliament.

Question 6

example of ombudsmen

Answer 6

Fair Work Ombudsmen
Provides free information and investigates complaints in relation to
-pay entitlements, including for employees who claim they were unpaid.

Question 7

Complaints bodies

Answer 7

Complaints bodies help resolve disputes related to goods, services, or decisions by authorities. They offer free, accessible services to all community members, regardless of socio-economic status. These bodies provide flexible resolution options and assist in civil disputes through investigation and conciliation. Their procedures are less formal, and they cannot make binding decisions unless a deed of settlement is signed. In some cases, they may take legal action against individuals or organizations.

Question 8

example of complaints bodies

Answer 8

Consumer Affairs Victoria (CAV) is the Victorian consumer regulator, a government body created to protect consumer rights and assist with settling disputes.

Question 9

explain the role of the vic courts

Answer 9

The courts are the main dispute resolution body in Victoria, however, given the costs and other methods of dispute resolution methods available, this is usually a last resort. When a plaintiff sues a defendant, the court must determine on the balance of probabilities where the defendant is liable for the plaintiff’s injury. Where liability is established, the judge, magistrate, or jury must decide on an appropriate remedy, including damages or compensation. The Victorian courts uphold fairness when resolving civil disputes as the Magistrate or judge is impartial, ensuring the verdict is based solely on the law and the facts. Furthermore, both parties have the right to apply for leave to appeal their case, ensuring any mistakes made by lower courts can be reviewed and corrected by superior courts.

Question 10

magistrates court jurisdiction

Answer 10

The Magistrate’s court is the lowest court in the vic court hierarchy and has no appellate jurisdiction to hear civil appeals. The Magistrates’ Court hears civil cases up to $100,000 and will use arbitration to resolve disputes up to $10,000.
The Magistrates’ Court hears civil cases including personal injury cases, or matters relating to family law.

Question 11

country court jurisdiction

Answer 11

The County Court can hear civil cases for unlimited amounts, however it will usually only hear claims exceeding $100,000.
Parties can choose to have their case heard in either the County Court or the Supreme Court.
Parties also have a choice of trial by a judge alone or by a judge and jury (of six).
The civil cases heard by The County Court include personal injury claims, defamation claims and commercial disputes.
The County Court does not have the jurisdiction to hear appeals in civil matters.

Question 12

supreme court (trial division)

Answer 12

The Trial Division has unlimited jurisdiction in civil claims, similar to the County Court, and typically handles larger, more complex disputes over $100,000. Cases can be heard by a judge alone or by a judge and a jury of six. The Supreme Court deals with complex civil disputes, such as class actions and corporate disputes. A single judge in the Trial Division hears appeals from the Magistrates’ Court and VCAT on questions of law.

Question 13

supreme court of appeal

Answer 13

The Supreme Court (Court of Appeal) hears appeals from the County Court and from the Supreme Court’s Trial Division on questions of law, questions of fact or the amount of damages awarded. It also hears appeals from cases heard by the President, or Vice President of VCAT.
Appeals heard in the Supreme Court (Court of Appeal) are usually determined by three justices.
In almost all civil cases, leave (permission) is required before an appeal is allowed to be heard in the Court of Appeal.
The Court of Appeal has no original jurisdiction to hear civil cases.

Question 14

explain the role of a jury

Answer 14

A jury is a group of randomly selected individuals who deliver a verdict based on the evidence presented during a trial. They assess the information provided by the judge and decide whether the defendant is liable for the plaintiff’s injury on the balance of probabilities. Jurors must remain independent, unbiased, and attentive while taking notes throughout the proceedings.

The jury determines the civil liability of the defendant and, in most cases, the amount of damages awarded to the plaintiff. However, in defamation cases, the judge decides on the damages. If a unanimous decision (all six jurors agreeing) cannot be reached, a majority verdict of five out of six jurors is accepted. Jurors must be impartial and treat all parties equally, upholding the principle of equality.

Question 15

Two factors determine use of a jury in a civil case

Answer 15

Both parties have the right to request a jury, although if only one party makes this request and the other party does not want a jury trial it is up to them to convince the court why a jury should not be used.
The trial must be being heard in a court eligible to hear civil trials by jury (the County or Supreme Court trial divisions). A jury cannot be requested in appeal cases, or in matters heard in the Magistrates’ Court.

Question 16

purpose of a remedy- restore plaintiff to original position

Answer 16

The general purpose of a remedy is to restore the plaintiff to their original position prior to the civil wrong occurring, i.e to restore (as much as possible) the party who has suffered loss or injury to the position they were in before the loss or injury occurred.

Question 17

purpose of remedy- uphold plaintiff’s rights

Answer 17

By awarding a remedy the court acknowledges the plaintiff has been wronged and their rights violated. Recognising the plaintiff’s rights through the remedy provides a sense of justice and closure to them, demonstrating the effectiveness of the civil justice system in restoring injured parties.

Question 18

purpose of remedy- deter others from civil breaches

Answer 18

Civil remedies serve as a warning to others in society that certain behaviour will not be tolerated, and will result in consequences. This helps to deter potential wrongdoers, promote social cohesion, and may encourage parties to take preventative measures to avoid civil breaches.

Question 19

compensatory damages - type of remedy

Answer 19

Compensatory damages are the most common type of damages sought. Three types:
Specific damages – compensation for losses that can be accurately assessed (eg doctors’ bills, pharmaceutical costs, hospital charges and loss of wages)
General damages – amounts of compensation that cannot be accurately assessed. Therefore, the judge or jury are required to estimate the monetary value of the suffering (i.e. emotional suffering and loss of enjoyment of life).
Aggravated damages – where the plaintiff’s feelings are injured through humiliation and insult (e.g. a publication continues to publish defamatory material, despite an injunction to stop them from doing so being in place).

Question 20

nominal damages- type of remedy

Answer 20

This is a small sum of money awarded in situations where a plaintiff’s rights have been infringed but they may not have suffered significant or any injury or loss.
The purpose of nominal damages is to reflect that the plaintiff is legally right.

Question 21

exemplary damages- type of remedy

Answer 21

These are awarded when the court may intend to make an example of the defendant to the rest of the community by ordering them to pay a large amount of money. These damages may be awarded in circumstances where a civil breach is driven by cruelty, revenge, or disregard for the plaintiff’s rights.
Purpose of exemplary damages is to punish the defendant and deter others in the community from undertaking similar actions.

Question 22

damages- restoring the plaintiff

Answer 22

Compensatory damages cover the plaintiff’s actual losses, like medical bills, lost income, and property damage, to make them “whole” again. Specific damages are effective for this.
General and aggravated damages compensate for non-quantifiable losses, such as pain, reduced life expectancy, and humiliation.

Damages provide monetary compensation but may not fully address non-monetary losses like pain, suffering, or emotional distress. Key points include:
It’s hard to quantify pain and suffering, so compensation may not fully reflect the harm.
Some harm, like permanent disability, is irreversible, and damages can’t fully restore the plaintiff’s original position.
If the defendant lacks enough assets, the plaintiff may not be fully compensated.

Question 23

damages- upholding plaintiff’s rights STRENGTHS AND LIMITS

Answer 23

• even in cases where the damages awarded are minimal, or where the plaintiff is seeking nominal damages, the court’s decision to award such compensation acknowledges the plaintiff’s right to a legal remedy and upholds their rights to seek justice for a violation of their civil rights

In some cases, the harm suffered by the plaintiff is so significant that damages cannot fully restore their rights. For example, in cases of wrongful death, no amount of compensation can restore the plaintiff’s right to life. Additionally, jurors may lack the legal expertise to award damages that uphold the plaintiff’s rights, potentially misunderstanding the value of those rights.

Question 24

damages- deterring others

Answer 24

• defendant’s actions may have been intentional or reckless, and damages can be awarded to deter similar behaviour in the future. Upholds the plaintiff’s right to be protected from future harm by holding the defendant accountable for their actions

-while damages can be awarded to deter future harmful conduct, no guarantee that this will be effective, especially if others perceive the potential risk of wrongful actions to be outweighed by the benefits, or unaware of the risk of being sued for damages. If defendant is unlikely to be deterred by the damages awarded, the plaintiff’s rights may not be fully upheld
- if the defendant cannot pay the damages due to limited financial means, damages cannot deter them effectively

Question 25

types of injunctions

Answer 25

Mandatory injunction- forces a party to do something restrictive injunction- prevents a party from doing something interlocutory injunction- lasts for a short time and is often awarded in urgent circumstances final injunction- permanent injunction that is ongoing

Question 26

injunction- restoring the plaintiff STRENGTHS

Answer 26

Injunctions aim to restore the plaintiff to their original position by requiring the defendant to take action to prevent harm. They can also prevent future breaches by restricting the defendant’s actions.

Question 27

injunction- restoring the plaintiff LIMITS

Answer 27

interlocutory injunctions are temporary and when the time period has been completed, the defendant is able to continue their disruptive behaviour

Question 28

injunctions- upholding plaintiff's rights STRENGHTS

Answer 28

- by granting an injunction, the legal system demonstrates its commitment to protecting and upholding the rights of individuals in civil matters, providing a powerful tool for plaintiff's to seek justice and remedy breaches of their rights

Question 29

injunctions- upholding plaintiff's rights LIMITS

Answer 29

Starting a civil claim is expensive, so people with high socioeconomic status can easily protect their civil rights. In contrast, those with medium or low socioeconomic status may not have the resources to seek a civil remedy.

Question 30

injunction- deter others STRENGTHS

Answer 30

Injunctions provide immediate relief to the plaintiff by quickly stopping or restricting the defendant’s actions, preventing further harm. This swift action can also serve as a powerful deterrent other from similar breaches.

Question 31

injunctions- deter others LIMITS

Answer 31

The court has limited ability to monitor if defendants follow injunctions. If a defendant ignores an injunction, the plaintiff may need to start more legal proceedings to enforce it, which can be time-consuming and costly. This limitation can weaken the deterrent effect of injunctions if they are not enforced.

Question 32

vic courts STRENGTHS

Answer 32

* Judges and magistrates have specialized skills that allow them to deliver consistent and impartial outcomes in civil cases. * All parties can apply for leave to appeal their case's outcome if they have legal grounds, ensuring that errors made by lower courts are corrected. * The court hierarchy and judges' case management powers help minimize delays, preserving evidence and protecting impartiality. * Establishing precedent fosters consistency and fairness in future cases, enhancing transparency in court decisions. * Anyone with appropriate grounds can apply to appeal a decision, regardless of personal characteristics, allowing equal participation in the appeals process. * The Victorian court hierarchy ensures civil disputes are addressed by the right court, promoting consistent outcomes. * The appeal process enables review by higher courts, correcting mistakes and ensuring just outcomes for all. * Victorian courts publish dispute outcomes on their websites, allowing parties to better understand their rights and legal processes. This helps potential plaintiffs decide whether to pursue their cases in court. * Court websites also provide essential information about judicial processes and procedures for those involved in civil trials.

Question 33

Vic courts LIMITS

Answer 33

- Court backlogs may disproportionately affect vulnerable parties, as physical evidence may deteriorate and details may be forgotten, impacting case strength. - If an unjust precedent is set in a higher court, lower courts must follow it in similar future cases, potentially leading to unfair outcomes. - Appeals are often not equally accessible due to high costs. Wealthier individuals are more likely to pursue appeals than those from lower socioeconomic backgrounds, hindering equality. - The formality of court procedures may overwhelm parties in civil disputes, affecting their ability to present evidence confidently and putting them at a disadvantage. - Some cases cannot be reviewed by higher courts if there are no valid grounds for appeal, further limiting access. - The costs associated with appeals can restrict a party’s ability to seek civil remedies due to financial limitations. - Decisions from the Magistrates' Court are not publicly available, which may leave parties less informed about their rights in future cases.

Question 34

mediation STRENGTHS

Answer 34

* Parties control the outcome, leading to fair, mutually agreed resolutions. * The impartial mediator eliminates favoritism. * Mediation is quicker than a trial, reducing court workload and delays, and promoting fairness. * Without formal rules of evidence, each party can speak freely and present their views. * Legal representation is usually not needed, disadvantage for unrepresented parties is minimized. * The mediator treats all parties equally, promoting equality regardless of personal characteristics. * Mediation avoids court proceedings, saving costs and aiding those with limited financial means. * It is confidential, reducing media attention and intimidation during dispute resolution. * The lack of formal procedures supports open communication, lowering the intimidation of defending a dispute.

Question 35

mediation LIMITS

Answer 35

* A power imbalance may force a resolution that isn't mutually agreed upon. * Mediation outcomes are not legally binding, increasing the risk of breach and limiting fairness. * Parties must compromise without mediator input, which can hinder fairness if one party is uncooperative. * Mediation is private, potentially undermining fairness as processes aren't public. * Vulnerable parties may face 'forced' outcomes without equal benefit. * Lack of formal rules may limit opportunities for both parties to present their case. * If one party won't negotiate reasonably, mediation could waste time and money, especially for those with fewer resources. * In long-running disputes, hostility may inhibit constructive communication, prolonging resolution despite ordered mediation.

Question 36

conciliation STRENGTHS

Answer 36

* Parties retain control over the outcome, ensuring a fair negotiation and beneficial resolution. * The conciliator acts as an impartial third party, providing advice that can lead to a mutually beneficial solution. * Conciliation is quicker than a trial, easing court workloads and minimizing delays. * Legal representation is not needed, lowering costs and assisting unrepresented parties. * There are no formal rules of evidence or procedure, allowing each party to present their view equally. * The conciliator treats all parties equally, promoting fairness across different personal characteristics. * Conciliation avoids court proceedings and legal costs, making dispute resolution accessible for those with limited financial means. * It is confidential and attracts less media attention, reducing intimidation and improving access. * With no strict rules, parties can speak freely, lessening the pressure in defending disputes. * The conciliator’s flexibility encourages open communication, creating a supportive environment.

Question 37

Conciliation LIMITS

Answer 37

- A power imbalance can lead to one party imposing a resolution that is not mutually agreed upon. - Conciliation decisions are not legally binding, which risks one party breaching the agreement and jeopardizing fairness. - Since conciliation is conducted privately, it may undermine transparency and fairness. - Vulnerable parties without legal representation may face 'forced' outcomes that don’t benefit both sides equally. - In long-standing and hostile disputes, conciliation may be ineffective due to poor communication, limiting access to justice. - There’s no requirement to reach a resolution through conciliation, which can result in wasted time and resources if the case goes to trial. - The lack of binding decisions in conciliation increases the risk of breaches, further reducing access to justice.

Question 38

arbitration STRENGTHS

Answer 38

* Parties can select an arbitrator panel or request an individual to appoint an arbitrator, allowing for their involvement in the process. * Arbitration produces a legally binding decision that both parties must adhere to. * An arbitrator is an independent third party with no ties to the disputing parties, ensuring that the decision is based solely on law and facts. * Unlike formal court procedures, arbitration allows parties to agree on a more flexible process that facilitates self-representation. * The arbitrator must treat all parties equally, regardless of race, ethnicity, or gender, promoting fairness. * Arbitration is typically private, preventing disclosure of sensitive information and making it suitable for confidential cases.

Question 39

arbitration LIMITS

Answer 39

- If parties are unhappy with a legally binding decision, their rights to appeal are limited. - Legal representation can create a power imbalance, potentially leading to unfair outcomes for unrepresented parties. - Arbitration is usually private, which may undermine fairness since the proceedings aren't open to public scrutiny. - The lack of representation can leave one party at a disadvantage in understanding the process, creating inequality. - Limited public access to arbitration outcomes can reduce consistency across similar cases. - Arbitration tends to be more expensive than mediation and conciliation, making it less accessible for those with limited financial means. - The private nature of arbitration means it is not open for public viewing.

Question 40

civil juries STRENGTHS

Answer 40

* A jury is a random selection from the community, ensuring fairness as cases are decided by peers. * Jurors must set aside prior knowledge and cannot seek outside information, promoting impartiality. * Jurors can be excused for biases or connections to either party, maintaining fairness. * Both plaintiff and defendant have the right to a jury trial, supporting equality regardless of personal characteristics. * Jurors must remain impartial and treat all parties equally, regardless of race, religion, or gender. * The use of plain English is encouraged with a jury, enhancing understanding of the trial process and promoting access to justice.

Question 41

Civil juries LIMITS

Answer 41

* Jurors, often lacking legal training, face the challenge of determining a civil trial's verdict, increasing the risk of unfair outcomes. * Without a rationale for their decisions, there's no assurance that the law is correctly applied to the facts. * The cost of a jury may deter individuals of low socioeconomic status from utilizing this option, compromising equality. * Juror ineligibility can skew representation, undermining the principle of a trial by peers. * Despite instructions to remain impartial, subconscious biases may affect jurors' treatment of the parties. * Financial constraints can make jury trials inaccessible for some, limiting justice options. * A hung jury or mistrial due to misconduct can delay resolutions, hindering timely access to justice.

Question 42

when is conciliation appropriate?

Answer 42

-parties are willing to negotiate, participate, and resolve the dispute -the conciliation process is understood by disputing parties -the disputing parties want to maintain their relationship in future -there is an admission by one party that they are responsible for the situation, potentially increasing the willingness of parties to negotiate -disputing parties require third-party knowledge and expertise resolving the dispute and negotiating a resolution -save time and money

Question 43

when is conciliation NOT appropriate?

Answer 43

-vulnerable party is involved in dispute (eg. abuse) -parties are unwilling to discuss the issues associated with the dispute -the disputing parties are highly emotional or hostile -legally binding agreement needs to be established

Question 43

when is arbitration appropriate?

Answer 43

-parties agree to arbitrate, including if arbitration has been included in a contractual agreement -the civil dispute requires a binding and enforceable decision to be made -parties are wanting a cheaper and quicker resolution than the courts -parties want the matter to be heard in private rather than in the courtroom

Question 44

when is arbitration NOT appropriate?

Answer 44

-clarification is needed by a judge due to the complexity of the issues -parties are comfortable navigating complex court rules of evidence and procedures associated with a trial -parties would prefer matters to be resolved by a jury -parties do not agree to arbitrate -parties prefer to resolve the dispute themselves without a legally binding outcome -parties want to have their case heard in court