C13 Remedies AOS2 Flashcards
Alternative dispute resolution methods
Ways of resolving or settling civil disputes that do not involve a court or tribunal hearing (e.g. mediation, conciliation, and arbitration).
Mediation
A cooperative method of dispute resolution in which parties in a dispute try to reach an agreement through negotiation with the help of a mediator.
Terms of the settlement
A document that is binding, and enforceable that sets out the terms on which the parties agree to resolve their dispute. The terms are confidential and can not be disclosed to the public.
Mediator
An independent third party who does not interfere or persuade but helps the parties in a mediation as they try to reach a settlement of a matter.
List the three dispute resolution methods
Mediation, conciliation, and arbitration;
Conciliation
A dispute resolution that involve the assistance of an independent third party that aims to enable parties to reach a decision. The conciliator is someone with specialist knowledge, but the final decision made by parties is not binding.
Conciliator
An independent third party who helps parties reach an agreement that ends the dispute. The conciliator can offer suggestions and advice to assist in finding a mutually acceptable resolution and a person with specialist knowledge on an issue.
Arbitration
Involves an independent third party who listens to the parties and tries to help them reach an agreement and if this is not possible the arbitrator makes a binding decision on the parties. When arbitration is used a dispute resolution methods, parties agree to abide by the arbitrator’s decisions.
Arbitrator
The independent third party appointed to settle a dispute during arbitration. They have specialised expertise in particular kinds of disputes and make decisions that are legally binding on the parties (arbitral award).
Arbitral award
A legally binding decision made in arbitration by an arbitrator on behalf of the parties that is fully enforceable if the parties do not comply with it.
Tribunals
Dispute resolution bodies that obtain their power to resolve certain types of disputes from parliament. Tribunals develop expertise in particular types of disputes and can make decisions that are binding on the parties.
List a commonwealth and Victorian tribunal
Fair work commission (FWC), and Victorian Civil and Administrative Tribunal (VCAT);
Fair Work commission (FWC)
The FWC is the national workplace relations tribunal. It has the power to carry out various functions, including resolving workplace disputes through mediation, conciliation and in some cases through public hearings.
Victorian Civil and Administrative Tribunal (VCAT)
VCAT is for parties and deals with a broad range of civil disputes, including small civil claims, residential tenancy disputes, discrimination claims, and guardianship issues.
Ombudsmen
An official appointed by the government to investigate complaints made by individuals against certain bodies or institutions. Ombudsmen obtain their power to investigate complaints from parliament (Ombudsmen Act 1973 (Vic)).
Name a Victorian ombudsmen
Public transport ombudsmen (PTO)
Public transport ombudsmen
Investigates and resolves complaints about certain public transport operators, including Public Transport Victoria, Metro Trains Melbourne, V/Line and Yarra Trams. This ombudsman considers issues such as ticketing, penalties, customer service and the conduct of public transport staff.
Complaints bodies
Settle disputes about the provision of goods and services or decisions made by certain bodies or authorities. Complaint bodies get their power through parliament and most dispute resolution services focus on a particular industry (e.g. Disability Service Commissioner can hear complaints about disability services providers alone).
Name a Victorian complaints body
Victorian Equal Opportunity and Human Rights Commission (VEOHRC);
Victorian Equal Opportunity and Human Rights Commission (VEOHRC)
Hears disputes in relation to equal opportunity, discrimination and infringement of human rights. The Equal Opportunity Act 2010 (Vic) and the Racial and Religious Tolerance Act 2001 (Vic) give the VEOHRC the power to help individuals resolve their complaints. The complaints process used by the VEOHRC is conciliation and the resolution can involve financial compensation, an apology, job reinstatement or an agreement their behaviour will stop.
Determining liability
It is the role of the court to determine whether a defendant is liable and to what extent, the court act as the decider of the facts, they determining whether the plaintiff is liable for a counterclaim raised, and finally a part of determining liability is the court provided specialisation, management of the case, and avenue for parties to appeal.
Deciding on a remedy
It is the role of the court to decide on a remedy.
Decider of the facts
The process of determining whether the defendant caused the loss or harm suffered by the plaintiff and this is done by the judge, magistrate, or jury.
Counterclaim
A separate claim made by the defendant in response to the plaintiff’s claim and heart at the same time by the court.
Representative proceeding/ class action
A proceeding in which seven or more people have claims against the same party and those claims arise out of the same circumstances. The lead plaintiff (one of the members of the class), represents the group in the proceeding and the group members are the people who are part of the action.
What are the two roles of Victorian courts in civil disputes?
Determining the liability of a party and deciding on the remedy are the two roles of Victorian courts in civil disputes;
Composition of a civil jury
There are 6 jurors in a civil jury, and each juror is randomly selected from the Victorian electoral roll. There are up to two extra jurors if the trial is expected to be lengthy. Two jurors will be discharged once it comes out of deliberation meaning only six jurors are involved in the verdict.
Role of a civil jury
The role of a civil jury is to consider the facts of the case and to decide who is most likely to be in the wrong as the decision is made on the balance of probabilities. Jurors may be required to decide on the amount of damages awarded (except in defamation cases).
List the two main types of remedies
Damages and injunctions;
Civil law
An area of law that defines the rights and responsibilities of individuals, groups and organisations in society and regulates private disputes.
Civil liability
An area of law that defines the rights and responsibilities of individuals, groups and organisations in society and regulates private disputes.
Remedy
Any order made by a court that is designed to address a civil wrong or a breach. A remedy should provide a legal solution for the plaintiff for a breach of the civil law by the defendant and restore the plaintiff to the position they were in before they were wronged or their rights were breached.
Damages
An amount of money that the court or tribunals order one party to pay another party as compensation.
What is the purpose of civil remedies?
The purpose of civil remedies is to restore the party who has suffered loss or injury to the position they were in before the loss of injury occurred usually in the form of payment known as damages.
What is the purpose of damages?
The purpose of damages is to compensate the plaintiff for the losses they have suffered. If there is permanent damage it is impossible to restore the injured to how they were before therefore damages try to make up for this with an amount of money that represents the actual loss suffered.
Nominal damages
Awarded to the plaintiff if the court believes that the defendant has infringed the rights of the plaintiff but the plaintiff did not suffer any actual loss.
Exemplary/ punitive damages
Awarded to punish the defendant because the defendant action was so outrageous that the court wishes to deter others from similar action and to show disapproval of the defendants actions (e.g. awarded in defamation cases).
Contemptuous damages
Awarded to the plaintiff in such a small amount because the court believes that the plaintiff has a legal right to damages but not a moral right therefore does not deserve to be paid. A small amount of money is awarded to show contempt for the claim made.
Explain compensatory damages and its categories
The main type of damages sought which includes specific, general, and aggravated damages;
Specific damages
Awarded to compensate the injured party for items that can be calculated objectively and exactly (e.g. loss of wages).
General damages
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.
Aggravated damages
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.
Restrictive injunction
Stops someone from doing something (e.g. a person could use this injunction to stop a building being destroyed if it was in the interest of the nation to preserve it).
Mandatory injunction
When a person wishes to compel someone to do a particular act (e.g. to remove something from their land).
Injunction
A civil remedy where the courts 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.
What is the purpose of VCAT
To provide Victorians with low cost, affordable, efficient, and independent tribunal dispute resolution.
List 2 examples of VCAT’s jurisdiction
Claims by residential tenants and landlords, and or claims of unlawful discrimination and breaches of the Equal Opportunity Act (2010).
What is imprisonment like in Norway?
Imprisonment reflects real life in Norway as Halden Prison a maximum-security prison aims to replicate life. For example prisoners have running tracks.
