Chap 13: Remedies Flashcards
Principles of Justice: fairness
- impartial and just treatment or behaviour without bias
- fair legal processes in place, all parties receive a fair hearing
- keyword: bias
Principles of Justice: equality
- the state of being equal, especially in status, rights or opportunities
- all people are treated the same before the law, no matter characteristics, status, religion, marital status or culture
- laws should not be discriminatory
Principles of Justice: access
- the approach to make use of something
- all of society has access to education, health, food and shelter
- laws and the legal system should give people the ability to use procedures, methods and institutions that come with a case.
Mediation
a method of dispute resolution, using an independent third party (the mediator) to help the disputing parties reach a resolution
strengths: A decision made by the parties is more likely to be acceptable to the parties
Due to the confidential nature, parties can avoid the publicity that comes with an open court or tribunal hearing
weaknesses: Both the mediator and the conciliator have no power to order the parties to come to a decision
Mediation only: The mediator is generally not able to give advice or offer suggestions
Conciliation
a method of dispute resolution which
uses an independent third party (i.e. the conciliator) to help the disputing parties reach a resolution
strengths: A decision made by the parties is more likely to be acceptable to the parties
Due to the confidential nature, parties can avoid the publicity that comes with an open court or tribunal hearing
weaknesses: Both the mediator and the conciliator have no power to order the parties to come to a decision
Mediation only: The mediator is generally not able to give advice or offer suggestions
Arbitration
a method of dispute resolution in which an independent person (known as an arbitrator) is appointed to listen to both sides of a dispute and make a decision that is legally binding on the parties.
strengths: Arbitration decisions are binding on all of the parties
It can be cheaper than resolving the dispute through court
weaknesses: It can take a long time for a decision to be reached if the parties go through several stages such as producing evidence
The parties have no control over the outcome
tribunals
The purpose of tribunals is to provide individuals with a low-cost, efficient and speedy method of dispute resolution process. Victorian Civil and Administrative Tribunal (VCAT) is a tribunal that deals with disputes relating to a range of civil issues heard by various lists, such as the Human Rights List, the Civil Claims List and the Residential Tenancies List
complaints bodies
They are intended to provide a free complaints and dispute resolution service so that ordinary Australians have access to dispute resolution services. The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) receives its powers from various Victorian statutes to help people resolve complaints about discrimination, sexual harassment, victimisation and vilification. The complaint process that is used by the VEOHRC is conciliation.
the role of the jury in a civil trial
There is no automatic right to a jury in a civil trial. There are six jurors in a civil jury. The role of a civil jury is to consider the facts of the case and decide who is most likely in the wrong. Their decision is made on the balance of probabilities the standard of proof in civil disputes.
Strengths
It reflects community values and brings a common-sense approach to decision making to the court
It ensures fairness by requiring the jury to deliberate based on the evidence and facts and not on their own independent research or investigations
An overview of the role and civil jurisdictions of the
Victorian courts
Magistrates’ Court: claims up to $100 000 - no appellate jurisdiction
County Court: unlimited claims - no appellate jurisdiction, unless given under a specific Act of Parliament
Supreme Court (Trial Division): unlimited claims - appeals on a question of law from the Magistrates’ Court and VCAT - complex cases
Supreme Court (Court of Appeal): nil - appeals from the County Court, Supreme Court (Trial Division) or VCAT when constituted by the President or a vice-president
purposes and types of remedies: compensatory damages
Compensatory damages:
special or specific damages - to compensate the injured party for items that can be calculated exactly, general damages - are awarded to compensate the plaintiff for pain and suffering,
purposes and types of remedies: aggravated damages
are awarded to compensate the plaintiff if the court believes the defendant caused humiliation and insult to the plaintiff.
purposes and types of remedies: 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.
