Unit 3 AOS 2 Flashcards

Question

appropriatnes of conciliation

Answer 1

Is appropriate (+) - A relationship needs to be maintained. - Parties are willing to discuss their issues. - Parties prefer privacy and confidentiality. - There is an admission of responsibility. - Is not appropriate (-) Parties are unwilling to discuss their issues. - There is a power imbalance. - History of violence or threats. - Wants a binding decision.

Answer 2

Conciliation does achieve the principle of fairness (+) - The conciliator acts as an unbiased, impartial opinion that favours neither party. - Conciliation is faster than a trial, it reduces the courts’ workload and minimises delays. - Conciliation does not achieve the principle of fairness (-) There may be a power imbalance between parties that can cause a forced resolution to be reached, limiting fairness. - The decision reached through conciliation is not always legally binding, meaning there is a risk that a party may fall back on the agreement.

Answer 3

Conciliation does achieve the principle of access (+) - Paying a conciliator is much cheaper than the cost of paying a court to conduct a trial. - Conciliation is conducted in a more supportive, manner than a trial. The intimidating nature of a trial may discourage some individuals from pursuing a case. Conciliation does not achieve the principle of access (-) There may be a power imbalance between parties that can cause a forced resolution to be reached, The decision reached through conciliation is not always legally binding, meaning there is a risk that a party may fall back on the agreement. - In long-running, disputes, parties are unlikely to constructively communicate and reach a resolution, thus limiting access.

Answer 4

Conciliation does achieve the principle of equality (+) - As formal rules of evidence and procedure do not apply, each party in the dispute can feel equally supported. - In many cases, a conciliator will only permit legal representation if both parties have a lawyer. If one person does not have a lawyer, both parties will usually self-represent. - Conciliation does not achieve the principle of equality (-) If one party is more vulnerable or there is a power imbalance between parties, especially if no legal representation is present, a ‘forced’ outcome may be reached that does not equally benefit both parties.

Answer 5

Arbitration is a method of resolving disputes without a formal court process. An independent arbitrator will listen to both sides and make a decision that is binding on the parties. This is often conducted in private, and it can be less formal and more cost effective than attending a court hearing or trial.

Answer 6

Is appropriate (+) - Parties agree to participate in arbitrations. This may include parties having a contractual agreement. - The disputes involve civil damages of less than $10,000- issued by a Magistrate. - The case requires a binding and enforceable decision. - Is not appropriate (-) Parties do not agree to arbitrate. - Parties are comfortable navigating complex court rules of evidence and procedure. - Parties would like greater control over the outcome of the case.

Answer 7

Arbitration does achieve the principle of fairness (+) - There are fewer delays involved compared to courts. - The arbitrator is an independent third party. - Arbitration does not achieve the principle of fairness (-) They have limited rights to appeal the decision. - Power imbalance because of one party having legal rep.

Answer 8

Arbitration does achieve the principle of equality (+) - Arbitration is a relatively flexible process that supports each party to freely represent themselves. - If one party is self-representing, the arbitrator will assist this party to ensure they understand the arbitration process. - Arbitration does not achieve the principle of equality (-) Power imbalance the party without legal rep may not fully understand the proceedings. - The lack of publicity from arbitration meaning there is less consistency and equality as the arbitrator is not basing their precedent decision.

Answer 9

Arbitration does achieve the principle of access (+) - Arbitration is not bound by formal court procedures making it more accessible to parties. - The arbitration process cannot be viewed publicly encouraging the use of arbitration. Arbitration does not achieve the principle of access (-) Arbitration is often more expensive than mediation and conciliation which may prevent parties from pursuing arbitration.

Answer 10

an independent authority who presides over a trial, ensuring procedural fairness by overseeing all personnel and evidence.

Answer 11

case management manage the trial or hearing apply the rules of evidence and procedures direct the jury- judge remain unbiased determine the liability of a defendant - magistrate award remedies

Answer 12

the ability of a judge or magistrate to make orders and provide directions to the parties about the proceedings, with the aim of ensuring justice is delivered efficiently

Answer 13

Positive Independent judges and magistrates ensure trials are conducted without bias and according to rules of evidence, thus contributing to fairness as the decisions are based on law and facts alone. Negative Judges and magistrates rely on the parties to present all of the evidence and facts of the dispute during a trial. If parties have no legal representation, this may prevent all of the relevant facts from being presented to the court, or in their best light, thus leading to an unfair trial.

Answer 14

in criminal they do jot ahve a pre-trial case managment such as ordering mediation a magistrate will determine the guilt whereas in civil its liability in criminal the judge will impose a sanction if found guilty whereas in civil they award damages or order an injunction

Answer 15

Positive Judges and magistrates’ case management powers, such as setting time limits for evidence and ordering mediation, minimise the cost of civil disputes. Negative Accessing a hearing or trial presided by a magistrate or judge can be challenging due to the associated high costs and time-consuming nature of the proceedings. As a result, the courts and the expertise of judicial officers may be inaccessible for many members of the community

Answer 16

+ Judges and magistrates ensure rules of evidence and procedure apply equally to all parties during a civil dispute. Negative Whilst judges and magistrates are impartial, judicial officers, they are still subject to personal bias and may unconsciously discriminate against certain parties and personal characteristics, limiting equality.

Answer 17

act impairtial ensure correct procedure is followed if there is a jury they must give them directions

Answer 18

remain objective listen to evidence, judges directions, and submissions made by legal rep determine liability and damages

Answer 19

Positive Both parties have the capacity to request a jury trial in a civil dispute regardless of personal characteristics, therefore upholding equality. Negative A party may wish to have a jury trial, but may be unable to bear the cost. This limits equality as those of a low socioeconomic status are less likely to utilise a civil jury trial. Some individuals are ineligible for or disqualified from jury service, and as a consequence, parties may not feel the jury is a true cross-section of the community. This may undermine equality to a trial by one’s peers.

Answer 20

Positive A randomised cross-section of the community is used to determine the verdict, so the parties to a civil dispute should feel their case has been decided by their peers and according to a diverse range of views, promoting fairness. Juries cannot seek additional information about the case beyond the courtroom and are instructed to disregard any prior knowledge of the dispute. This promotes fairness as it encourages jurors to remain impartial. Negative Making decisions in legal cases is a complex task, and when undertaken by people with no legal training, there is a greater risk of an unfair verdict. Jurors are not required to provide the rationale for their verdict, meaning there is no guarantee the law has been correctly applied based on the facts presented.

Answer 21

Positive The presence of juries decreases the use of legal jargon, and ensures the jury understands the court’s procedures and the evidence. This allows both parties to understand the processes being used to determine their case, promoting access to justice. Negative Additional fees are required for jury trials, so it may not be financially viable for some parties to request them. This financial constraint makes trial by jury inaccessible for some parties. Access to efficient dispute resolution may be delayed by the use of a jury as extra time is required to empanel a jury. Hung juries and mistrials due to juror misconduct, can require a retrial and further delay the achievement of justice. This hinders efficient and timely access to justice.

Answer 22

remain imparitial- make decision on facts are obliged to listen during the trial differences determine guilt or innocenece inc riminal beyond reasonable doubt, civil is determine liability on the balance of probabilities. jury never impose sanctin but in some civil cases they play a role in determining hte amount of damages .

Answer 23

contorl their case disclosure present evidence

Answer 24

contorl their case disclosure present defences

Answer 25

party control contributes to fairness as parties can participate in, and have control over, the civil court processes. weaknesses Self-represented parties may not understand which documents are relevant and therefore, may fail to disclose all relevant evidence to the court. * Self-represented parties may struggle to understand how to present legal arguments and evidence in the best possible light, which may lead to an unjust outcome.

Answer 26

+given equal opportunity to present their case must abide by court processes adn procedures - mot all parties are equally equpped to presnt ethier case to a judge case of low income.

Answer 27

courts provide general guidance to parties who are representing themselves regarding ocurt procedures weaknesses vic legal aid are oftne unable to support parties in civil leaving defendant without legal rep parties without legal rep may struggle to understand their rights.

Answer 28

Advise clients on their legal rights, Present evidence and cross-examine witnesses Provide objectivity Ensure documents are properly drafted and handled Provide support

Answer 29

Positive Legal practitioners can help parties navigate a civil dispute by advising them about the law and legal proceedings Legal practitioners have greater objectivity when making decisions in a civil dispute as they do not have a personal or emotional connection to the issues of the dispute. As a result, the evidence they collate and their questions to witnesses can allow an impartial account of events to emerge. Negative When only one party has legal representation it may lead to an unfair outcome, as each party cannot prepare and present a case of the same quality. Quality lawyers are often expensive, therefore a party may only be able to seek a lower-quality lawyer. The quality of the presentation of the case may influence the outcome, therefore the outcome is not solely based on the judge and/or jury’s impartial assessment of the facts. This is unfair to the poorly represented party.

Answer 30

Positive All parties in a civil proceeding have the same ability to choose their own legal representation. Judges or magistrates in a civil dispute have a duty to assist all self-represented litigants by informing them about legal practices and proceedings involved in the dispute. This can ensure a self-representing party is not at such a significant disadvantage to a party that has legal representation, promoting equality. Negative Some financially-disadvantaged parties may be unable to afford good quality legal representation, or any at all. If both parties choose to self-represent during an in-court civil dispute or out-of-court settlement, one party’s legal knowledge may be better than the other party’s

Answer 31

Positive Legal practitioners help parties to prepare and present their case, increasing access to justice as a party’s understanding of the law and legal proceedings is increased. Some law firms use a ‘no win, no fee’ arrangement which may encourage a plaintiff to seek justice as, where they lose the dispute, no financial burden is incurred. Negative The costs of legal practitioners make it less accessible for many individuals. Access to justice includes understanding one’s legal rights. Therefore, parties without representation may not understand the procedures used in court and other dispute resolution processes, limiting their access to justice

Answer 32

A class action occurs when a group of people with the same legal grievance come together to initiate a single, civil action

Answer 33

Seven or more people are claiming against the same defendant (s). The claim must be in respect of, or arise from, the same, similar, or related circumstances. The claim must give rise to a common issue of law or fact, meaning the same issues are determined by the court for all claims.

Answer 34

workplace accidents medical malpractice financial malpractice preventable natural disaster faulty or dangerous goods or services

Answer 35

positive - Class actions are managed by experienced and impartial judges, therefore ensuring the case is conducted efficiently and impartially -Class actions are usually supported by experienced lawyers, therefore ensuring the case is presented in the best possible light for all group members negative If the amount of compensation received is less than anticipated, the group members may not be compensated sufficiently Juries are not available if a class action is commenced in the Federal Court, meaning the case will not be determined by an impartial cross-section of society, limiting fairness.

Answer 36

+ If litigation funding is obtained, this may allow a class action to commence as the costs are covered, ensuring group members are not disadvantaged on the basis of their socioeconomic status. - * If litigation funding is not obtained, a lead plaintiff may be unwilling or unable to bear the costs associated with bringing a class action, disadvantaging them on the basis of their socioeconomic status. * The lead plaintiff must assume the risk and cost of the litigation on behalf of the entire group, whilst the other group members are not required to do so. This may be seen as unequal as the plaintiffs are not treated in the same way.

Answer 37

+ Individuals who cannot afford to initiate a civil claim by themselves can still access the justice system by joining a class action. * Class actions save the courts’ time and resources by grouping together numerous claims - Class actions can be extremely costly and, consequently, third-party funders are often required. Without these funders, some class actions may not commence, reducing access to the justice system. * Class actions can take time to be heard, sometimes several years, thus delaying access to a potential remedy.

Answer 38

A complaint against a business by a consumer- These disputes often involve a dispute about the supply of goods and services. a complaint against a landlord by a tenant

Answer 39

Providing information and advice. Providing accessible dispute resolution services. Providing an avenue to resolve minor disputes efficiently and with minimal costs.

Answer 40

CAV primarily offers dispute resolution services over the phone to try to resolve the dispute. In some cases, more tailored services can be provided such as an in-person conciliation

Answer 41

CAV is appropriate when -The dispute falls within CAV’s jurisdiction. -Both parties are willing to attend and participate in conciliation. -Parties wish to avoid costs and delays associated with resolving disputes through the courts or VCAT. CAV is not appropriate when The dispute does not fall under CAV’s jurisdiction. The dispute is a class action. One or more parties want a legally binding decision.

Answer 42

STRENGTHS * CAV provides a quick method of dispute resolution that allows parties to reach a just outcome without experiencing the stress and delay associated with a trial, ensuring impartial processes, thereby achieving fairness. * CAV is free, which ensures parties that who cannot afford to bring their claim through the courts or VCAT are still able to participate in the justice system and receive a just outcome to their dispute. * CAV’s conciliation process enables parties to attempt to resolve their dispute themselves with the assistance of a conciliator, potentially leading to a fair outcome where both parties reach a beneficial resolution. LIMITATIONS * CAV cannot force parties to attend and participate in conciliation, which can be unfair if one party is willing to reach a resolution through conciliation but the other is not. * CAV cannot impose a legally binding resolution, meaning there is a risk of non-compliance with agreements reached during conciliation, limiting fairness.

Answer 43

STRENGTHS * CAV uses a conciliator to facilitate discussions between parties, which can ensure both parties have the same opportunity to present their perspective and reach a mutually acceptable resolution, achieving equality. * LIMITATIONS CAV has limited jurisdiction and is only available as a means of dispute resolution for a small proportion of civil matters. Thus, not all parties to a civil dispute have the same ability to obtain CAV’s services.

Answer 44

STRENGTHS * CAV provides free services to all members of the Victorian public and is therefore an accessible method of dispute resolution. * CAV uses the informal process of conciliation, which is conducted in a less intimidating manner than a trial, potentially encouraging individuals to willingly pursue their civil claims and engage with the justice system. LIMITATIONS * CAV has limited jurisdiction, meaning many disputes cannot be resolved using CAV’s conciliation, limiting access to justice. * CAV’s conciliation process may not result in an agreement to resolve the dispute, limiting access to justice.

Answer 45

Victorian Civil and Administrative Tribunal (VCAT) a dispute resolution body that has the power to hear and determine certain types of civil and administrative disputes

Answer 46

class actions * cases where parties are residents from different states * cases involving the exercise of federal jurisdiction * cases where the Commonwealth of Australia is a party * cases involving the Australian Constitution.

Answer 47

To provide low-cost dispute resolution services To provide efficient dispute resolution service To provide accessible dispute resolution services

Answer 48

fast tracked mediation and hearing- under $10,000 mediation compulsory conferences

Answer 49

VCAT is appropriate when The dispute falls within VCAT’s jurisdiction. Parties prefer an informal dispute resolution process. Parties are willing to appeal only on questions of law. Parties want a low-cost and time efficient resolution to their dispute. VCAT is not appropriate when The case does not fall within VCAT’s jurisdiction. The case is a class action. Parties want greater ability to appeal.

Answer 50

STRENGTHS * Outcomes at VCAT hearings are legally binding, promoting fairness as it ensures the parties abide by VCAT’s decisions. * VCAT encourages parties to resolve matters through methods such as mediation which allows parties to have control over the outcome. * VCAT members are impartial and independent, ensuring procedures are conducted in an unbiased manner, promoting a just outcome to the dispute. LIMITATIONS * VCAT does not utilise juries and, therefore, does not allow parties to have a trial by their peers. * VCAT does not require legal representation, although some parties may choose to be legally represented. This may result in an unfair outcome where one party is unable to represent their case in the best possible light. * There is a limited right to appeal VCAT decisions, which may be seen as unfair to parties dissatisfied with the outcome of their case.

Answer 51

STRENGTHS * During a hearing, a VCAT member may take special measures to allow those with significant social, cultural, or physical disadvantages to participate fully, ensuring equitable processes and therefore, promoting equality. * Both sides have equal opportunity to present their case during mediation, a compulsory conference, and a final hearing. LIMITATIONS * VCAT has limited jurisdiction and cannot resolve large and complex disputes, such as class actions or defamation. Thus, it is not equally available for all civil disputes. * If a party is self-represented, they may be at a disadvantage as a result of being unable to present all relevant evidence to prove their case. This creates an inequality between the parties.

Answer 52

STRENGTHS VCAT provides low-cost dispute resolution services, and the processes are less formal VCAT aims to be accessible to all Victorians by using phone and video conferences for some hearings, mediations, and compulsory conferences. LIMITATIONS VCAT can only resolve matters within its jurisdiction, meaning some civil matters must proceed to the courts, reducing access to justice for some, such as if they cannot afford to take the matter to court * Access to appeals is limited as appeals can only be made on a question of law.

Answer 53

Provide access to an independent, experienced, and knowledgeable judicial officer Enforce procedural fairness Provide access to a trial by jury Provide a dispute resolution avenue for class actions Provide a legally binding outcome Order a remedy

Answer 54

Circumstances where the courts are appropriate The claim falls within the courts’ jurisdiction and does not fall under VCAT’s exclusive jurisdiction. If the parties prefer to have an independent and experienced judge or magistrate impose a legally binding decision. It is a large and complex civil claim, such as a class action Circumstances where the courts are not appropriate If the parties want to negotiate and resolve the dispute themselves. If the parties do not want to deal with the formalities and complexities of a court proceeding. * If the parties prefer less costly and time-consuming dispute resolution methods, like mediation or conciliation.

Answer 55

STRENGTHS Judges are independent, impartial, and knowledgeable decision-makers, meaning they can objectively listen to the evidence presented and produce a just outcome. Jurors, if used, can encourage a fair outcome that reflects the views and values of a cross-section of society LIMITATIONS Court trials are often time consuming and can face delays due to their complex processes. If a party is self-represented, the possibility of an unfair trial is increased as legal processes and proceedings are difficult to navigate without legal experts.

Answer 56

STRENGTHS The court procedures and laws apply equally to both parties. The plaintiff and defendant must follow the same rules, laws, and procedures. \ Parties have an equal opportunity to present their case before the court. LIMITATIONS If only one party has legal representation, the self-represented party may not be on equal footing The cost of using the courts to resolve a civil dispute can disproportionately impact individuals of lower socioeconomic status, placing them in a disadvantaged

Answer 57

STRENGTHS * Court hearings and trials enable parties to access a binding resolution that is legally enforceable. * The courts’ jurisdiction covers a range of civil matters, making it easier for parties to access a dispute resolution body that can resolve their dispute and provide a remedy. * LIMITATIONS The high cost of court proceedings and legal representation can make the courts inaccessible to parties. * A jury is paid for by the parties in civil law. This may limit the ability of parties to have their case determined by a cross-section of the community, due to the associated costs. * Without legal representation, the court system can be difficult and complex to understand, imiting a party’s ability to access justice via the courts.

Answer 58

barrister fees, expert witness fees, court fees, jury fees, appealing

Answer 59

STRENGTHS The court can order adverse cost orders that encourage a fair outcome, as the successful party may have some or all of their legal costs compensated. LIMITATIONS The high costs associated with defending or pursuing a civil claim may encourage some defendants to settle rather than challenge a claim, leading to an unfair outcome

Answer 60

strengths Less costly dispute resolution bodies, such as VCAT, may not require legal representation, enabling both parties to equally present their version of events and mutually reach a resolution. LIMITATIONS Self-represented parties may be on unequal footing with skilled lawyers in the courtroom and may not possess the same ability to argue their case. Parties do not equally have the opportunity to have their civil disputes resolved, due to the costs associated with pursuing a civil claim.

Answer 61

STRENGTHS * Judicial powers of case management that allow judges to order parties to attend mediation can reduce legal costs as the matter can be promptly resolved, * The use of alternative dispute resolution methods, if successful, as they are low cost and relatively informal. LIMITATIONS the high costs associated with civil proceedings, high costs of defendning or pursuing a civil claim -access to a jury -filing for appeal- high costs

Answer 62

court backlogs, vcat delays, gathering evidence and preparation for a trial, trial procedures

Answer 63

STRENGTHS -VCAT have lower waiting times than the courts can enable disputes to be heard and determined in a timely manner encouraging a fair and just outcome. -Case management powers can reduce the time taken to resolve a dispute, and encourage procedural fairness LIMITATIONS -delays compromise the application of procedural fairness and increase stress for all parties. -delays can negatively impact the credibility of evidence

Answer 64

STRENGTHS orders and directions given by a dispute resolution body to reduce delays applies equally to both parties. LIMITATIONS -The use of case management powers can differ between judges, creating the potential for unequal treatment of parties in the courts. -Delays are likely to disproportionately affect parties that are unfamiliar with court proceedings and those in vulnerable circumstances

Answer 65

STRENGTHS -The range of dispute resolution bodies available to parties can ensure justice is accessible and delivered in an efficient manner. - Judicial powers of case management - The use of alternative dispute resolution methods, such as mediation, can promote access as they may result in the prompt resolution of a case. LIMITATIONS -The delays in the justice system may discourage a prospective plaintiff from initiating legal action in the first place, limiting access to a remedy. -Parties may be forced to withdraw or settle their case due to limited financial resources, reducing access to justice.

Answer 66

Damages compensate a plaintiff in a civil case for the loss caused by the civil breach, including replacing the value of property and covering expenses, loss, pain, and suffering relating to a victim’s injury or death

Answer 67

A court order that aims to enforce a right by preventing a civil breach, or correct a civil breach and return the plaintiff to the position they were in prior to the breach by the defendant.

Answer 68

compensatory damages. * exemplary damages. * nominal damages. * contemptuous damages.

Answer 69

Compensatory damages aim to restore the plaintiff to their original position. There are three types of compensatory damages, which all aim to compensate the plaintiff and account for different types of loss: * specific * general * aggravated

Answer 70

Have a precise value and are easily quantifiable. The amount can be calculated. example -Compensation for medical expenses or loss of earnings resulting from an inability to work.

Answer 71

Do not have a precise value and are not easily quantifiable. They are awarded where the plaintiff has endured general pain and suffering, loss of quality of life, or a shortened life expectancy. example - Compensation for a defendant’s actions that resulted in the plaintiff’s inability to walk and live independently, leading to a diminished quality of life

Answer 72

Aim to further compensate the plaintiff for humiliation suffered or where they have been insulted. example - In cases where a patient receives substandard medical care and is subject to ridicule or disgrace by the medical staff, they may be entitled to compensation for the humiliation and emotional distress caused.

Answer 73

aims to punish the defendant. They usually require a defendant to pay a plaintiff large amounts of money, whilst they serve to deter others from behaving in the same way. These damages may be awarded in circumstances where a civil breach is driven by cruelty, revenge, or a disregard for the plaintiff’s rights

Answer 74

Nominal damages require an extremely small amount of money to be paid to a plaintiff, usually valued at $1. These damages are used to ensure the plaintiff’s rights are upheld without providing compensation

Answer 75

Contemptuous damages acknowledge that the plaintiff had a legal right but not a moral right to make a civil claim against the defendant. To condemn the immorality of the claim, minimal compensation is awarded.

Answer 76

To return the plaintiff to their original position To deter others from committing civil breaches To uphold the plaintiffs rights.

Answer 77

A court order directing a person to undertake a specific action, or to stop (cease) a specific action. Normally, ordered to prevent harm or further harm, to the plaintiff

Answer 78

Forces parties to do something. example- Ordering a party to demolish a wall that they built on someone else’s land.

Answer 79

Prevents parties from doing something. example- Preventing a property from being sold.

Answer 80

Only lasts for a short time and is often awarded in urgent circumstances example

Answer 81

Permanent injunction that is ongoing. Preventing a publisher from printing a defamatory book.

Answer 82

- Whether the defendant will comply. If the defendant does not comply with the it will not prevent further harm to the plaintiff. - Whether harm has already been suffered If the plaintiff has already suffered loss or damage, an injunction alone may not be able to address that harm. - Interlocutory injunctions are merely temporary and when the time period has been completed, the defendant is able to continue their disruptive behaviour

Answer 83

Whether the loss suffered was financial loss only. Whether the loss suffered was pain and suffering- mental anguish as sometimes there are not quantifitable. whether future loss has been suffered may be harder to quantify. Whether the damages are actually paid- if they are bankrupt then the postion cannot be returned for the plaintiff

Answer 84

the amount of exemplary damages is small it may not be sufficient to punish the defedant or act as a detterent. the ability of the defendant to pay the extent to which the award of damages is known to deter others

Answer 85

whether the plaintiff has suffer loss- if they didnt then the plaitiff rights maynot be uopheld the amount of damages- too samll people may not view it as upholding their rights the costs incurred. they may have incurred significant costs to intiate and ocnduct the civil claim.