AOS 2 Flashcards
Remedies
Civil Law
An area of law that defines the rights and responsibilities of individuals, groups and organisations in society and regulates private disputes.
Damages
- An amount of money that the court (or tribunal) orders one party to pay another party.
- It is the most common remedy in a civil claim.
Fairness
Remedies
- Laws should be properly applied
- The parties should know what the claims and defences are, and what evidence will be used to support the other side’s case,
- The 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.
Equality
Remedies
- Having access to equal representation in a case.
- Whether the civil justice system is accessible to everyone
- The rights of parties to be heard impartially by a judge
- All persons are equal before the law. No one is above the law.
Access
Remedies
This means that all people should be able to understand their legal rights and pursue their cases.
People should be able to get information about about:
- Their rights
- When those rights have been infringed
- What remedies may be available to them.
Tribunal
A dispute resolution body that resolves civil disputes and is intended to be less costly, more informal and faster way to resolve disputes than courts.
Remedy
- Any order made by a court that is designed to address a civil wrong or breach.
- Should provide a legal solution for the plaintiff for a breach of civil law by the defendant and (as much as possible) restore the plaintiff to the position they were in before they were wronged or their rights were breached.
Alternative Dispute Resolution Methods
Ways of resolving or settling civil disputes that don’t involve a court or tribunal hearing.
Mediation
A method of dispute resolution that uses an independent third party (ie. a mediator) to help the disputing parties to reach a resolution.
Mediator
An independent third party who doesn’t interfere or pursue but helps the parties in mediation as they try to reach a settlement of the matter.
Terms of Settlement
A document that sets out the terms on which the parties agree to resolve their dispute.
Conciliation
A method of dispute resolution that uses an independent third party (ie. a conciliator) to help the disputing parties to reach a resolution.
Conciliator
- The independent third party in conciliation who helps the parties reach an agreement that ends the dispute between them.
- They can make suggestions and offer advice to assist in finding a mutually acceptable resolution but the parties reach a decision themselves.
Compulsory Conference
A confidential meeting between the parties involved in a dispute (in the presence of an independent third party) to discuss ways to resolve their dispute.
Arbitration
- An independent third party (an arbitrator) is appointed to listen to both sides of a dispute to make a decision that is legally binding on the parties.
- An arbitrator’s decision is known as an arbitral award.
Arbitrator
- The independent third party appointed to settle a dispute during arbitration.
- Arbitrators have specialised expertise in particular kinds of disputes between parties and make decisions that are legally binding on the parties.
- An arbitrator’s decision is known as an arbitral award.
Arbitral Award
A legally binding decision made in arbitration by an arbitrator.
Ombudsman
An officeholder with the power to investigate and report on complaints relating to administrative action taken by government departments and other authorities.
Complaints Body
An organisation established by parliament to resolve complaints made by an individual about the conduct of another party.
Representative Proceeding (Class Action)
A legal proceeding in which a group of people who have a claim based on similar or related facts bring that claim to court in the name of one person.
Victorian Civil and Administrative Tribunal (VCAT)
A tribunal that deals with disputes relating to a range of civil issues that are heard by various ‘lists’ of the tribunal
Member (VCAT)
The person who presides over final hearings and compulsory conferences at VCAT
Jurisdiction
The lawful authority of a court, tribunal or other dispute resolution body to decide legal cases.
Court Hierarchy
The ranking of courts from lowest to highest according to the seriousness and complexity of the matters they deal with.
Balance of Probabilities
The standard of proof in civil disputes. This requires the plaintiff to establish that it is more probable than not that their version of the facts is correct.
Standard of Proof
The degree or extent to which a case must be proved in court.
Counterclaim
A separate claim made by the defendant in response to the plaintiff’s claim (and heard at the same time by the court)
Case Management
A method used by courts and tribunals to control the progress of legal cases more effectively and efficiently.
Generally involves the person presiding over the case making orders and directions in the proceeding.
Orders
The way in which the instruments, decisions or directions of a court or tribunal are described. They can be given during the course of a proceeding or at the end of a proceeding.
Directions
Instructions given by the court to the parties about time limits and the way a civil proceeding is to be conducted.
Discovery of Documents
A pre-trial procedure that requires the parties to list all the documents they have that are relevant to the case. Copies of the documents are normally provided to the other party.
Appeal
An application to have a higher court review a ruling made by a lower court.
Defamation
A type of tort that involves the action of damaging a person’s personal or professional reputation in the community through the communication of false and untrue statements or information.
Original Jurisdiction
The power of a court to hear a case for the first time.
Appellate Jurisdiction
The power of a court to hear a case on appeal.
Unanimous Verdict
All the jury members are in agreement and decide the same way.
Majority Verdict
All but one of the members of the jury agreed with the decision.
Counsel
A lawyer appearing in court to represent a party.
Injunction
A remedy in the form of a court order to do something or not to do something. Designed to prevent a person from doing harm, or to rectify something wrong.
Mediation - Strengths
- Cost-Effective
- Kept Private
- Informal
Mediation - Weaknesses
- Possible waste of time
- May not come to an agreement
- Not legally binding without a contract
Conciliation - Strengths
- Cost-Effective
- Kept Private
- Informal
- The conciliator can provide advice
Conciliation - Weaknesses
- Possible waste of time
- May not come to an agreement
- Not legally binding without a contract
Arbitration - Strengths
- Confidencial
- The arbitrator will usually be an expert in the field they preside over
Arbitration - Weaknesses
- Limited options of appeal
- More expensive
- Legal aid is usually required
Role of Tribunals
- Provide individuals with a low-cost, efficient and speedy method of dispute resolution
- Obtain power from parliament and are governed by a statute, dictating the type of cases that can be heard.
VCATs Purpose
Provide Victorians with alow-cost, accessible, efficient and independent tribunal that delivers high-quality dispute resolution.
VCAT Divisions
- Administrative Division
- Civil Division
- Human Rights Division
- Planning and Environment Division
- Residential Tenancies Division
VCAT Can’t Hear Cases Including:
- Representative proceedings
- Cases involving the Constitution or its interpretation
- Cases relying on laws made by the Commonwealth Parliament
- Cases between states, or between a state and a resident of another state
- Cases where the Commonwealth of Australia is a party.
VCAT Advantages
- Disability Support
- Family Violence Support
- Koori Support
- Security
- Offers dispute resolution methods such as mediation and compulsory conferences (which use a conciliation process) before making a binding decision on both parties.
- Fast process with the wait times for hearings averaging 2 weeks
Role of Ombudsman
- Provide individuals and small businesses with independent, timely and accessible dispute resolution service to resolve disputes.
- Services are free.
Types of Ombudsman
- Governement Ombudsman
- Industry Ombudsman
Government Ombudsman
Who deals with disputes or complaints about certain agencies.
Industry Ombudsman
Who deals with disputes between consumers and businesses in particular industries such as telecommunications, financial services, public transport, and energy and water.
Public Transport Ombudsman (PTO)
Investigates and resolves complaints about Victorian public transport operators.
PTO Can Hear
- Supply of (or the failure to supply) public transport.
- Sale of tickets including ticketing machines and ticket refunds.
- Infrastructure, vandalism (including graffiti) and the cleanliness of the transport.
- Conduct or behaviour of staff members.
- Use by the public transport operator of land or premises, or its impact on that land or premises.
PTO Can’t Hear
- Setting of prices
- Routes of operation
- Frequency of services
- Complaints that have already been heard and determined.
PTO Enforcment of Remedies
- PTO may pay compensation (cannot order above $10,000) or provide a service to the complainant.
- Corrective or other work be undertaken to resolve the complaint.
- Operator does not do a certain act.
Role of Complaints Bodies
- Complaints about the provision of goods and services, or decisions made by certain bodies or authorities.
- Intended to provide a free complaints and dispute resolution service
- Most dispute resolution services focus on a particular industry or service
- Designed to hear complaints from individuals and small businesses about services or goods provided to them (not complaints about individuals).
Victorian Equal Opportunity and Human Rights Commission (VEOHRC)
- Includes a free, fair and timely dispute resolution service for people who believe that they have been harassed, vilified, victimised or discriminated against.
- Complaint process used is conciliation.
- Has no powers to make orders, award compensation or make binding decisions on the parties.
Strengths of Dispute Resolution Bodies
- Provides alternative methods of dispute resolution
- Low-cost / Free
- Resolve applications quickly
- Informal
- Can be run without fear of intimidation
- Specialised
Weaknesses of Dispute Resolution Bodies
- Low awareness
- Can be confusing
- Not always free
- Limited power
- Not appropriate for large / complex claims
- Cannot compensate large amounts of money
- Cannot create binding precedents
- Not available for all people
Role of Victorian Courts
In Civil Disputes
- Determining the liability of the party
- Deciding on the remedy (if required)
As a part of the court’s role in determining liability, it will:
- Provide specialisation and expertise in the type of dispute it is hearing
- Manage the case, judges have significant powers of case management, which means they can give orders and directions to parties.
- Hear appeals
Magistrate’s Court Appealite Jurisdiction
Civil Jurisdiction
None
County Court Appealite Jurisdiction
Civil Jurisdiction
None
Supreme Court (Trial Division) Appealite Jurisdiction
Civil Juridiction
Appeals on a question of law from the Magistrate’s Court or VCAT
Supreme Court (Court of Appeal) Appealite Jurisdiction
Civil Jurisdiction
Appeals from the County Court, Supreme Court (Trial Division) and VCAT (when presided over by President or Vice-President)
Magistrate’s Court Original Jurisdiction
Civil Jurisdiction
- Claims up to $100,000
- Claims under $10,000 will often be referred to Arbitration
County Court Original Jurisdiction
Civil Jurisdiction
Unlimited
Supreme Court (Trial Division) Original Jurisdiction
Civil Jurisdiction
Unlimited
Supreme Court (Court of Appeals) Original Jurisdiction
Civil Jurisdiction
None
Strengths of Courts as Dispute Resolution Bodies
- Courts are impartial
- Specialised
- Can force mediation
- Allows for heirachy of appeals
- Ensures procedural fairness
- Can make binding decisions
- Promotes the doctrine of precedent
Weaknesses of Courts as Dispute Resolution Bodies
- Expensive
- Takes a lot of time
- Formal
- Inconvienient
- Right to appeal isn’t automatic
- Requires legal representation
- Low access in rural areas
- Complicated, difficult to understand
When is a Jury Used?
In Civil Trials
- No jury in Magistrates’ Court
- In the County and Supreme Court, a jury is optional, whichever party requests a jury must pay the fees.
- Judges can order jury trials, although it is rare (the state would pay for the jury)
- Civil juries are rare because of the high fees involved.
Composition of Civil Jury
6 jury members make a decision and in long cases, 8 jury members are empanelled.
Role of a Civil Jury
- Listen to all the evidence
- Concentrate during the trial
- Piece the evidence together and decide whether the defendant is liable or not liable.
Strengths of the Civil Jury System
- Jurors are independent and impartial
- Allows the community to be involved
- Ensures fairness
- Spreads the responsibility of making a decision across several jurors.
- Selected at random
- Reflects community values
Weaknesses of the Civil Jury System
- Deliberation is behind closed doors, possibly hindering fairness
- Jury may have biases
- A jury is expensive
- May cause delays
- Inconsistent in the assessment of damages
Compensation Damages
- Specific Damages - Can be calculated objectively
- Genial Damages - Pain and suffering (emotional / loss of enjoyment of life)
- Aggravated Damages - Humiliation and insult
Nominal Damages
- A very small amount of money
- No / little loss incurred
Exemplary Damages (Punitive Damages)
- Punishment for an outrageous or nasty intent and harm
- To deter others
- Showing disrespect to the plaintiff
Contemptuous Damages
- Legal right but not moral right
- Contempt to bring the case before court
Factors in Considering the Effectiveness of Damages
- Type of loss (economic vs non-economic)
- Whether the plaintiff suffered significant physical injury or irreparable damage
- Whether there has been loss of life
- Accuracy of the estimate for future loss (eg. loss of future earning capacity)
- Injuries suffered following the award of damages (eg. pain or suffering)
- Whether there is another remedy that is better for the plaintiff
- Whether damages can adequately compensate for the time, stress and inconvenience of court proceedings
- Whether the defendant has the capacity to pay
Restrictive Injunctions
Stop doing something
Mandatory Infunctions
Compel the defendant to do something
Factors in Considering the Effectiveness of Injunctions
- Whether the defendant has already caused too much damage
- Whether the defendant will stop their actions or whether they may do other things to cause the plaintiff loss
- Whether the defendant will comply with the injunction
- Whether the plaintiff will be returned to their original position
- Whether there is another remedy that is better for the plaintiff
- Whether an injunction can adequately compensate for the time, stress and inconvenience of court proceedings.
