Year 11 AOS 2 unit 2 exam

Question 1

When are remedies granted?

Answer 1

• Remedies are granted when a civil law has been broken or rights have been infringed

Question 2

List the ways that the principle of Fairness can be achieved in a civil case.

• The principle of fairness states that disputes must be delt with fairly, and any outcome reached must be fair. Hence, there should be a fair process and a fair hearing or trial.

Answer 2

• Dispute must be dealt with fairly, and any outcome reached must be fair
• There should be fair processes and a fair hearing or trial.
• laws should be properly applied, the parties to a civil dispute should know what the claims and defences are and what evidence will be used to support the other side’s case,
• should have the opportunity to present their case and rebut the other person’s case.
• The people who are deciding the dispute should be impartial and unbiased.
• Any processes used to resolve the dispute before hearing or trial must be fair
• one of the procedures in a civil dispute is that each party discover relevant documents,
• This enables a fair playing field by ensuring the parties have knowledge of the documents

Question 3

List the ways that the principle of Equality can be achieved in a civil case.

• The principle of Equality means that all people should be treated equally before the law. This principle is upheld when no person or group is discriminated before the law because of a personal attribute.

Answer 3

• Equality is often upheld through the use of an impartial and unbiased judge or magistrate, who has no connection with either party when hearing the case and making a determination.
• Treated equally before the law
• no person or group should be treated better or worse because of a personal attribute or characteristic.
• No person or group should be discriminated before the law
• The processes should be free from bias or prejudice, and the persons who help to resolve a civil dispute should be impartial.
• It is also upheld through the use of a civil jury (as required), whose members must also have no connection with either party.
• civil jury must not conduct their own research or investigation into the case.
• Processes in the civil justice system should also ensure that certain groups in society, particularly vulnerable groups such as people with disabilities or mental health issues, or those who do not have significant financial resources, are not disadvantaged.

Question 4

List the ways that the principle of Access can be achieved in a civil case.

• The principle of access is upheld when people are able to use the procedures, methods and institutions that resolve a civil dispute. People should also be able to get information about their rights, about when those rights may have been infringed, and about what remedies may be available to them.

Answer 4

• people should be able to understand their legal rights,
• People should be able to use the procedures, methods and institutions that resolve a civil dispute.
• People should also be able to get information about their rights, about when those rights may have been infringed, and about what remedies may be available to them.
• courts, tribunals, and bodies and institutions that provide legal advice, education, information, assistance and representation.

Question 5

What are dispute resolution methods ?

Answer 5

Dispute resolution methoded are a way to obtain an outcome in a civil dispute that does not involve a court or tribunal making a binding decision on the parties.
These methods include: Mediation, Conciliation, Arbitration

Question 6

How does mediation uphold the principle of justice?

Answer 6

• Mediation upholds the Principle of justice because the dispute is heard by an impartial third party, the meeting location is in a fair place where both parties feel like they are discussing on equal grounds, and the resolution method is accessible to the society.

Question 7

How do conciliation uphold the principle of justice?

Answer 7

• Conciliation upholds the principle of justice by ensure that the parties are aware of their legal rights by a conciliator who is usually specialised in the subject of dispute, the dispute is heard by an impartial third party, and the resolution method is accessible to the society.

Question 8

Compare mediation and arbitration as methods of dispute resolution.

Answer 8

• Mediations is concerned with giving both parties a opportunity to resolve their dispute in a formal environment with the help of a mediator whose job is to be impartial and empower both parties as an acting third party in the case. Although, this method of dispute resolution is not guaranteed that both parties will enter into a legally binding contract known as a statement of settlement. On the contrary, arbitration is most likely going to end with a terms of settlement contract being imposed on the parties, by the parties or arbitrator.

Question 9

Who pays for mediation?

Answer 9

The parties in dispute will initially bear the costs of the mediator in equal proportions. This position may be modified by a prior agreement between the parties, such as a dispute resolution clause contained in a contract.

Question 10

Who can act as a mediator?

Answer 10

Mediators don’t have to be specialized in the subject of the dispute, although they do have to have good people skills and impartial during mediation.

Question 11

Define the term ‘arbitration’

Answer 11

Arbitration is dispute resolution process that involves a third party (the arbtrator) listening to the parties and tries to help them reach an agreement. If its not possible, the third party makes a binding decision on the parties.

Question 12

Features of mediation

Answer 12

• A mediator is an independent third party who does not interfere or persuades but helps the parties in mediation as they try reach a settlement of the matter.
• The mediators do not necessarily need to be experts in the area of law that is the subject of the dispute, but they do need to have good people skills and a high level of conflict resolution skills.
• The mediator helps come to a decision not make a decision
• parties in a court case are often referred to mediation by a court before the final trial or hearing to see if a resolution can be reached.

Question 13

Define ‘terms of settlement’.

Answer 13

• a document that sets out the terms on which the parties agree to resolve their dispute
• This deed of settlement or agreement may be enforceable through the courts.

Question 14

Features of conciliation

Answer 14

• The final decision is made by the parties and is not binding.
• The third party, known as the conciliator, listens to both sides of the dispute and makes suggestions about appropriate ways of resolving the matter.
• The conciliator assists the parties by exploring solutions to the dispute, and is usually someone with specialist knowledge about the subject matter of the dispute

Question 15

How is Conciliation available to the parties in a civil dispute?

Answer 15

• In the Family Court of Australia, which has power to hear family disputes, a conciliation conference is organised between the parties to try and reach an agreement about financial or parenting issues.
• The compulsory conference uses conciliation as a way to help the parties come to a resolution

Question 16

Features of Arbitration

Answer 16

• If this is not possible, the third party makes a binding decision on the parties.
• The arbitration decision is known as an arbitral award, and is fully enforceable if the party does not comply with it.
• The arbitrator will generally have knowledge of the subject matter, and will also have an understanding of the applicable law.

Question 17

How is Arbitration available to the parties in a civil dispute?

Answer 17

• The Magistrates’ Court uses arbitration to resolve civil claims of less than $10 000.
• where the parties have previously agreed (normally in a contract) that any dispute that arises will be resolved by arbitration,

Question 18

What are tribunals?

Answer 18

• Tribunals are dispute resolution bodies which obtain their power from parliament to resolve certain types of disputes.

Question 19

Role of tribunals

Answer 19

• Tribunals develop expertise in particular types of disputes and are able to make binding decisions on the parties.
• The purpose of tribunals is to provide individuals with a low- cost, efficient and speedy method of dispute resolution process.
• Tribunals are not able to hear every type of dispute. For example, tribunals have no power to hear representative proceedings (also known as class actions).

Question 20

Administrative Appeals Tribunal (AAT)

Answer 20

• The AAT allows parties to seek an independent review of

a decision made by the Commonwealth Government

Question 21

Fair Work Commission

Answer 21

• The Fair Work Commission is the national workplace relations tribunal, which has the power to carry out a range of functions, including resolving workplace disputes through mediation, conciliation and in some cases public hearings

Question 22

National Native Title Tribunal

Answer 22

• The National Native Title Tribunal can hear and determine certain native title applications, being applications in relation to the recognition of land title unique to Aboriginal people.

Question 23

Victorian Civil and Administrative Tribunal (VCAT)

Answer 23

• VCAT is a ‘one-stop shop’ for parties and deals with a broad range of civil disputes, including small civil claims, residential tenancy disputes, discrimination claims and guardianship issues.

Question 24

Mental Health Tribunal

Answer 24

• The Mental Health Tribunal seeks to protect people with mental illness. One of its functions is to hear applications made by mental health patients who wish to challenge a treatment order that has been made against them, or wish to be transferred to another designated mental health service.

Question 25

Ombudsman obtains power to hear and determine complaints through….?

Answer 25

The parliament grants the ombudsman powers by passing a statute. For example, the Victorian Ombudsman was established by the Ombudsman Act 1973 (Vic).

Question 26

What are the twi types of ombudsman?

Answer 26

• a government ombudsman, who deals with disputes or complaints about government agencies
• an industry ombudsman, who deals with disputes between consumers and businesses in particular industries such as telecommunications, financial services, public transport, and energy and water.

Question 27

Public Transport Ombudsman

Answer 27

• The Public Transport Ombudsman investigates and resolves complaints about certain public transport operators.
• Issues they look at include ticketing, penalties, customer service and the conduct of public transport staff.

Question 28

The PTO can investigate and facilitate the resolution of complaints that relate to:

Answer 28

• the supply of (or the failure to supply) public transport
• the sale of tickets including ticketing machines and ticket refunds
• infrastructure, including graffiti, vandalism and the cleanliness of the transport
• the conduct or behaviour of staff members
• the use by the public transport operator of land or premises, or its impact on land or premises.

Question 29

What are complaints bodies?

Answer 29

• Complaint bodies deal with complaints about the provision of goods and services, or decisions made by certain bodies or authorities.
• They are intended to provide a free complaints and dispute resolution service so that ordinary Australians have access to dispute resolution services without any cost to them.
• However, unlike an ombudsman, complaints bodies generally do not have the power to conduct a hearing or make binding decisions on the parties.

Question 30

Explain two ways that complaints bodies aim to help ordinary Australians.

Answer 30

• They are intended to provide a free complaints and dispute resolution service so that ordinary Australians have access to dispute resolution services without any cost to them.

Question 31

Consumer Affairs Victoria (CAV)

Answer 31

• CAV has the power to conciliate disputes between consumers and traders, and tenants and landlords, about the provision of goods and services and the provision of tenancy. It also has jurisdiction to hear disputes in relation to retirement villages

Question 32

Health Complaints Commissioner (HCC)

Answer 32

• The HCC hears complaints about health services providers such as doctors, dentists and surgeons if the complaint has not been resolved directly with the health service provider.

Question 33

Victorian Equal Opportunity and Human Rights Commission (VEOHRC)

• Equal Opportunity Act 2010 (Vic) and the Racial and Religious Tolerance Act 2001 (Vic)

Answer 33

• The VEOHRC hears disputes in relation to equal opportunity, discrimination and any infringement of human rights.
• seeks to protect human rights and prevent people from being discriminated against, harassed or vilified.

Question 34

Identify two statutes in Victoria that make it unlawful to discriminate or vilify people.

Answer 34

• Equal Opportunity Act 2010 (Vic) and the Racial and Religious Tolerance Act 2001 (Vic)

Question 35

The Racial and Religious Tolerance Act

Answer 35

• Unlawful for a person to incite hatred or ridicule against a person or a group of people based on race or religion.
• It also makes it unlawful for one person to victimise another person.
• A person will assist the parties to talk through the issues with the aim of reaching agreement on how the dispute will be resolved.

Question 36

How does the dispute resolution bodies uphold the principle of access?

Answer 36

• The dispute resolution bodies upholds the principle of access by providing alternative methods of making complaints or resolving disputes other than through courts
• The costs are generally lower than courts and, in relation to the office of ombudsman and complaints bodies, can be free, thus increasing the availability to people who may not be able to otherwise afford the civil justice system

Question 37

How does the dispute resolution bodies uphold the principle of fairness?

Answer 37

• Generally, the complaints bodies resolve complaints and applications relatively quickly, and generally between one month and six months from a complaint or application being made
• All of the dispute resolution bodies ensure that whomever is assisting the parties is independent and impartial, fairness
• The dispute resolution bodies are often specialised in a particular industry or area of law, thus increasing fairness in the process
• The dispute resolution bodies ensure procedural fairness by giving parties the opportunity to present their case
• The dispute resolution bodies are often specialised in a particular industry or area of law, thus increasing fairness in the process
• The dispute resolution bodies ensure procedural fairness by giving parties the opportunity to present their case

Question 38

How does the dispute resolution bodies uphold the principle of equality?

Answer 38

The informality of the processes enables parties to feel more at ease, thus upholding equality

Question 39

Describe the dispute resolution method that is used by the VEOHRC.

Answer 39

The complaint process that is used by VEOHRC is conciliation. A person will assist the parties to talk through the issues with the aim of reaching agreement on how the dispute will be resolved.

Question 40

The civil jurisdiction of the Victorian courts - Original Jurisdiction

Answer 40

• Magistrates’ Court - claims up to $100 000 unlimited
• County Court - unlimited
• Supreme Court (Trial Division) - unlimited
• Supreme Court (Court of Appeal) – No Original Jurisdiction

Question 41

The civil jurisdiction of the Victorian courts - Appellate jurisdiction

Answer 41

• Magistrates’ Court Magistrates’ Court - no appellate jurisdiction
• County Court - no appellate jurisdiction, unless given under a specific Act of Parliament
• Supreme Court (Trial Division ) - appeals on a question of law from the Magistrates’ Court and VCAT
• Supreme Court (Court of Appeal) - appeals from the County Court, Supreme Court (Trial Division) or VCAT when constituted by the President or a vice-president

Question 42

County Court of Victoria does the county court have an appellate jursidiction?

Answer 42

• The County Court does not have the jurisdiction to hear appeals in civil matters except where an Act of Parliament specifically provides for appeals to be heard in the County Court.

Question 43

Supreme Court of Victoria (Trial Division)

Answer 43

• The Supreme Court is used for many complex and large civil disputes, such as class actions, matters involving complex areas of law, and disputes between large corporations.

Question 44

What is the role of a jury during a civil case?

Answer 44

• The jury must listen to all the evidence and make a decision based on the facts. In a civil case the jury considers the evidence having regard to the law that is explained to them by the judge, and decides who is in the wrong
• If present, a civil jury may also be required to decide on the amount of damages to be awarded. In defamation cases, only a judge can decide the amount of damages.
• Jurors are not required to give reasons for their decision (unlike a judge or magistrate).
• Only six jurors will be involved in deciding the verdict.

Question 45

When is a jury used in civil trials?

Answer 45

• in the Magistrates’ Court, and in appeal cases, there is no jury
• in the County Court and the Supreme Court, a jury is optional. If either party wants a jury, then they must request a jury trial

Question 46

What are peremptory challenges?

Answer 46

• Peremptory challenges are challenges without a reason. There can be an unlimited number of challenges for cause; that is, challenges with a reason.

Question 47

What are the purposes of remedies?

Answer 47

• 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.
• This is usually in the form of a payment of money, known as damages. If a person is owed an amount of money, they can make a claim through the courts.
• An injured person may claim a sum (amount) of money to compensate for any pain or suffering incurred as a result of the civil wrong.

Question 48

special or specific damages

Answer 48

These are awarded to compensate the injured party (usually the plaintiff) for items that can be calculated objectively and exactly; for example, loss of wages, medical expenses and hospital expenses

Question 49

general damages

Answer 49

– These are awarded to compensate the plaintiff for pain and suffering. These cannot be calculated objectively because they include consideration of the extent of the plaintiff’s emotional suffering and loss of enjoyment of life. The plaintiff’s counsel may make submissions about the appropriate amount.

Question 50

aggravated damages

Answer 50

– 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.

Question 51

Nominal damages

Answer 51

• Nominal damages are awarded by a court if the court believes that the defendant has infringed the rights of the plaintiff, but the plaintiff did not suffer any actual loss.
• The contract was broken but there was no loss or damage.

Question 52

Exemplary damages

Answer 52

• Exemplary damages cannot be awarded in defamation case
• Exemplary damages may be awarded if the defendant’s action was so negligent that the court wishes to deter others from similar action and to show disapproval of the defendant’s action.

Question 53

Contemptuous damages

Answer 53

• A court might feel that the plaintiff has a legal right to damages, but does not have a moral right; that is, the plaintiff did not really deserve to be paid damages. In such a situation, a small sum of damages might be awarded to show contempt for the claim that is made, while admitting the plaintiff ’s right to make the claim.

Question 54

Injunctions

Answer 54

• Injunctions are a type of civil remedy when the court makes an order for the defendant to undertake an action or do something (or refrain from undertaking an action, or from doing something) in an attempt to restore the plaintiff to the position they were in prior to the loss or harm suffered.

Question 55

restrictive injunction.

Answer 55

This is an injunction stopping someone from doing something; for example, a person could apply for a restrictive injunction to stop a building being destroyed if it were in the interests of the nation to preserve it.

Question 56

Mandatory injunction.

Answer 56

This is sought when a person wishes to compel someone to do a particular act; for example, to remove something from their land.