AOS2 - Remedies

Question 1

Equality

Answer 1

Equality is the principle that all people engaging with the justice system and its processes should be treated in the same way. If the same treatment creates disparity or disadvantages then adequate measures should be implemented to allow all people to engage with the justice system without disparity or disadvantage.

Question 1

Fairness

Answer 1

Fairness is the principle that all people can participate in the justice system and its processes should be open and impartial.

Question 2

Access

Answer 2

Access is the principle that all people should be able to engage with the justice system and its processes on an informed basis.

Question 3

examples of fairness

Answer 3

Burdon of proof
Standard of proof
Defendant has the opportunity to present their case
Independent judge or jury
Reducing delays

Question 4

examples of equality

Answer 4

Court procedures are applied equally to both parties.
The rule of law
An independent judge or jury
Organisation support
Alternative methods of civil dispute resolutions

Question 5

examples of access

Answer 5

Reducing delays
Alternative methods of civil dispute resolution
Remedies
The availability of translators
Class actions

Question 6

Methods of civil dispute resolution

Answer 6

Mediation
conciliation
Arbitration

Question 7

Mediation

Answer 7

A non judicial dispute resolution method involving an independent third party known as the mediator who facilitates conversations between parties.
- facilitates, doesn’t provide legal advice
- Not legally binding unless a deed of settlement is signed
- Less formal, more supportive
- Less time and momentary expenses

Question 8

Conciliation

Answer 8

A non judicial dispute resolution method involving an independent third party known as a conciliator who possesses specialist knowledge about the type of dispute in question and assists parties in a dispute to reach a resolution.
- Not legally binding unless a deed of settlement is signed.
- Can offer suggestions and solutions
- Less Formal, more supportive

Question 9

Arbitration

Answer 9

A non judicial dispute resolution method involving an independent third party known as the arbitrator who listens to parties present their evidence and makes a binding decision.
- Legally binding
- Less formal than a civil trial
- Parties are able to self represent of have legal representation
- Magistrates’ Court can refer
disputes involving claims of less than $10,000 to arbitration

Question 10

how fairness, equality and access relate to Mediation

Answer 10

F:
-Parties control outcomes
- Impartial mediator
- Faster than trial
- power imbalance
- may be a Breach of agreement
- Not open to public
E:
- Formal rules of evidence do not apply
- Legal rep not required
- Power imbalance
- May not present case equally as there is no rule of evidence.
A:
- Less costly
- no formal rules of evidence’
- Mediation can be a waste of time and money

Question 11

how fairness, equality, and access relate to arbitration

Answer 11

F:
- Parties decide on arbitrator, meaning they can participate in the selection process.
- Legally binding
- Independent third party, the final decision in based purely of law and fact.
- Limited rights to appeal
- Power imbalance
- Not open to general public
E:
- More flexible process as it is not bound by court procedures.
- Independent third party, no discrimination
- Power imbalance
- The lack of publicity can limit consistency with the outcome for similar cases.
A:
- Not bound by formal court procedures, therefore less intimidating.
- More expensive than other methods as there is an increased need for legal rep.

Question 12

The institutions that resolve civil disputes

Answer 12

Tribunals
Ombudsman
Complaint bodies

Question 13

Tribunals

Answer 13

Tribunals are an institution that resolves civil disputes within their jurisdiction, this is, with a more cost and more time efficient manner compared to a court trial. Tribunals first encourage the parties to take part in mediation before being given a binding decision.

Created by the Victorian Civil and Administrative Tribunal Act 1998, VCAT is the larges used tribunal that is suitable for hearing a range of administrative cases, although is not suitable for complex cases such as class actions.

Question 14

how fairness, equality, and access relate to tribunals (VCAT)

Answer 14

F:
- Parties are first encouraged to take part in mediation, allowing parties to be more satisfied with the outcome.
- Reduces delays
- Does not provide juries
- Often requires parties to self represent
- Limited right to appeal VCAT, if they were going to appeal it must be brought to the supreme court which can be costly.
E:
- Less formal and provides support
- All parties have the right to appeal.
- VCAT often requires parties to self represent
- IF they were to appeal it can be costly
A:
- Less formal, more supportive
- Resolutions through VCAT are usually very cheap as they do not require legal rep
- VCAT requires parties to self represent
- VCAT can only here matters within their jurisdiction.

Question 15

Ombudsman

Answer 15

Ombudsman is an institution that resolves civil disputes. Ombudsman is designed to investigate complaints involving companies or organisations particularly in parliament authority. Access to this institution is free, and if the ombudsman has the specific power they can provide a binding decision.

Question 16

Complaint Boddies

Answer 16

organisations that
can deal with complaints and assist
with dispute resolution in relation to
the provision of goods and services, or
decisions made by authorities

Question 17

The civil jurisdiction of the magistrates court

Answer 17

The magistrates court is the lowest court in the Victorian court hierarchy. It has the power to hear minor disputes with claims up to $100,000 where there is no option for a trial by jury so the verdict is given by the magistrate alone.

The magistrates court has no Appellate Jurisdiction meaning the court cannot hear cases on appeal.

Question 18

The civil jurisdiction of the county court

Answer 18

Unlike the Magistrates court, the County Court has the power to hear claims exceeding $100,000 and has the option for a trial by jury.

The County Court has no Appellate Jurisdiction meaning the court cannot hear cases on appeal.

Question 19

The civil jurisdiction of the supreme court - trial division

Answer 19

Has the power to hear civil claims of any amount but often those of serious nature and exceeding $100,000. The supreme court - Trial division has the power to hear civil appeals from the magistrates court and VCAT on question of law.

Question 20

The civil jurisdiction of the supreme court - Court of appeal

Answer 20

This court only hears cases on appeal, therefore does not have an original jurisdiction.

The court of appeal has the power to hear appeals from the county court of question of fact or cases heard by the presidents of VCAT.

Question 20

The composition of a jury

Answer 20

Outlined in the juries Act 2000 (Vic)

Disqualified:
A person who has committed crimes and may be unable to be impartial and unbiased when deciding on a verdict.

Ineligible:
They posses personal characteristics such as being a lawyer, and MP and police

Excused:
The potential juror was initially selected but were excused by one of the parties, this could be because they have a personal connection to the party, were a victim of a similar case.
The juror may request to be excused as they might live more than 50km from the court, financial hardship, illness, a carer, too old.

Question 21

Jury

Answer 21

A group of 6 randomly selected people chosen from an electoral role to attend and hear a civil dispute and to represent the broader community.
The party who orders the jury must bear the costs, unless ordered by the judge.

Question 22

The role of a jury

Answer 22

Be objective
Listen to evidence and submissions
Listen to directions from the judge
Determine liability
Decide on a remedy

Question 23

The juries ability to achieve the principles of justice

Answer 23

F:
Have there case heard by their peers
Impartial
Jurors have the right to be excused if it suits
Jurors must undertake complex tasks

Equality:
Both plaintiff and defendants have the right to request a jury
impartial
Juries have a high cost to them

A:
The trial is more understandable and accessible to jurors

Question 24

Difficulties faced by first nations people - Cultural practices.

Answer 24

• Can make it inappropriate to discuss certain topics.
• Disrespectful to talk about a recently deceased person
• Direct questioning may be considered rude
• ‘Gracious concurrence’ is when the person will agree with the question out of respect
• May avoid eye contact

Question 25

Difficulties faced by first nation people - Legal services helping with criminal matters more than civil

Answer 25

-

Question 26

Difficulties faced by fist nations people - intergenerational trauma