13 remedies

Question 1

Define civil law

Answer 1

an area of law that defines the rights and responsibilities of members of society and regulates private disputes

Question 2

Parties in civil disputes

Answer 2

Plaintiff: the person who commences a civil action and has the burden of proof

Defendant: the person who is being sued

Question 3

Fairness in civil disputes

Answer 3

Fairness: fair hearing and fair processes

• Law should be properly applied
• Parties should know what the claims and defences are, and what evidence will be used to support the other side’s case
• Parties should have the opportunity to present their case and rebut the other side’s case
• The person who determines a dispute should be impartial and unbiased

Question 4

Equality in civil disputes

Answer 4

Equality: people should be treated equally before the law and have an equal opportunity to present their case

• No person or group should be treated better or worse because of a personal attribute or characteristic

Question 5

Access in civil disputes

Answer 5

Access: people should be able to understand their legal rights and pursue their case

• Ability to use the procedures, methods and institutions that resolve a civil dispute
• Access to information about their rights, when those rights may have been infringed, and what remedies are available to them

Question 6

Define and explain mediation

Answer 6

Mediation: a method of dispute resolution that uses a mediator who does not interfere or persuade but helps the parties reach a settlement
- If the dispute is resolved, parties enter into terms of settlement (a document that sets out the terms on which the parties agree to resolve their disputes)

Question 7

Define and explain conciliation

Answer 7

Conciliation: a method of dispute resolution that uses a conciliator who can suggest and offer advice but the parties must reach the decision themselves
- If the dispute is resolved, parties enter into terms of settlement

Question 8

Define and explain arbitration

Answer 8

Arbitration: a method of dispute resolution that uses an arbitrator appointed to listen to both sides and make a decision that is legally binding on the parties

• An arbitrator’s decision is known as an arbitral award
• Arbitrators have specialised expertise in particular disputes
• Arbitration is more formal and expensive than mediation and conciliation

Question 9

Define and role of a tribunal

Answer 9

a dispute resolution body that has obtained its power from parliament to resolve certain types of disputes
- Parliament can pass statutes to give a specific tribunal the authority to hear particular cases

provide individuals with a low-cost, efficient and speedy method of dispute resolution
- Increase a community’s access to justice

Question 10

Define and role of an ombudsman

Answer 10

a person who is appointed by the government to investigate complaints made about certain bodies
- These powers are given by the relevant parliament (Commonwealth or State)

provide a fair, free and independent way of handling complaints and resolving disputes in relation to certain agencies and industries

• Government ombudsman: deals with disputes or complaints about government agencies
• Industry ombudsman: deals with concerns and complaints from consumers and businesses in particular industries

Question 11

Define complaint bodies

Answer 11

hears concerns about goods and services or about a certain industry body

provide a low-cost (free) dispute resolution concerned with the supply of goods and services

• DON’T have the power to conduct a hearing or make
  binding decisions on parties
• limited to advising both parties
• HAVE the power to take action against persons or companies that do not comply with certain laws

Question 12

Role of Victorian courts in civil disputes

Answer 12

• Determining the liability of a party
• Deciding on the remedy (if required)

Question 13

Determining liability

Answer 13

• If a plaintiff sues a defendant, the court aims to prove the defendant’s liability and the extent of it.
• Judge, magistrate, or jury will determine if the plaintiff has proven, on the balance of probabilities, that the defendant caused harm or loss

Question 14

Court’s role in determining liability

Answer 14

• Provide specialisation and expertise in the type of dispute it is hearing
• Manage the case
• Hear appeals

Question 15

Define remedy

Answer 15

any order made by a court that is designed to address a civil wrong or a breach which provides a legal solution for the plaintiff for a breach of civil law by the defendant and restore the plaintiff to the position they were in before their rights were breached

Question 16

Deciding on a remedy

Answer 16

• Most common remedy is damages
• In most civil disputes, the judge or jury assess the damages, but in defamation cases, only the judge is required to assess.

Question 17

The civil jurisdiction of Victorian courts

Answer 17

Magistrates’ Court: claims up to $100,000 & no appellate jurisdiction
County Court: unlimited & no appellate jurisdiction, unless given under a specific Act of Parliament
Supreme Court (Trial Division): unlimited & 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

Question 18

when a jury is used in civil trials

Answer 18

• Juries are only summoned in certain situations and by request
• NO jury in Magistrates’ Court and appeal cases
• Judge may request a jury trial, though this is rare

Question 19

composition of a jury

Answer 19

• Six jurors are used in the County Court and the Supreme Court
• Randomly selected from the Victorian electoral roll
• Two extra jurors if the trial is expected to be long, but will be discharged once deliberation begins

Question 20

role of a civil jury

Answer 20

• Consider all facts in the case and decide, on the balance of probabilities, who out of the two parties is most in the wrong
• If a unanimous verdict cannot be reached, then a majority verdict (5/6) will be accepted
• Plays a role as the decider of facts, and may be required to decide on the amount of damages awarded EXCEPT defamation cases

Question 21

strengths & weaknesses of a jury

Answer 21

Strengths:
- independent and impartial of the legal system
- community involvement
- fair by deliberating on evidence and facts
- spreads the responsibility
- reflects community values

Weaknesses:
- DON’T give reasons for their decision and deliberations occur behind closed doors
- the task is difficult
- influenced by skilled lawyers and emotional elements of a trial
- may have biases
- expensive

Question 22

general purpose of remedies

Answer 22

to restore the plaintiff, as far as possible, to the position they were in before the wrong occurred

Question 23

define and purpose of damages

Answer 23

Damages: an amount of money awarded to the plaintiff to be paid by the defendant

Purpose: compensate for the losses or injury that the plaintiff has suffered
- types of losses include financial, physical, mental and reputational

Question 24

types of damages

Answer 24

• compensatory; specific, general and aggravated
• exemplary
• nominal
• contemptuous

Question 25

purpose of compensatory damages

Answer 25

Purpose: restore the party whose rights have been infringed by compensating them for the loss suffered
- Provide an amount of money to either pay for expenses or make up for objects lost

Question 26

three types of compensatory damages

Answer 26

Specific: to compensate for damage, injury or loss that can be easily calculated or has an exact amount

General: to compensate for damage, injury or loss that can not be easily calculated

Aggravated: an amount of money awarded to the plaintiff for added insult or humiliation that the defendant exhibited

Question 27

purpose of nominal damages

Answer 27

Purpose: uphold the plaintiff’s rights without awarding any substantial amount of damages
- plaintiff may NOT be seeking a large amount of money but want their infringed rights to be acknowledged to show who is legally right

Question 28

purpose of contemptuous damages

Answer 28

Purpose: awarded when a court or tribunal believes that although the plaintiff has the legal right, they DON’T have the moral right

Question 29

purpose of exemplary damages

Answer 29

Purpose: punish for an extreme infringement of rights, and to deter others from undertaking the same actions
- only consequence of a civil action that seeks to punish the defendant
- CANNOT be awarded to the plaintiff in defamation cases

Question 30

restrictions on damages

Answer 30

• restrictions imposed on the amount of damages on certain types of cases and losses
• defamation cases (non-economic loss) are limited to $250,000
• may INCREASE depending on the type of case and economic losses are NOT restricted to the same amounts

Question 31

define and purpose of injunctions

Answer 31

Injunctions: a court order to do something or NOT do something

Purpose: prevent a person from doing harm (or further harm), or to rectify a wrong

Question 32

types of injunctions

Answer 32

Restrictive injunctions: order a person to refrain from undertaking an action

Mandatory injunctions: order a person to do a particular act

• Either injunction can be interlocutory (temporary and awarded ASAP) or final (must be followed forever)