legal studies unit 2 AOS 2 Flashcards
remedy
any order made by a court that is designed to address a civil wrong or 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.
three principles of justice are…
fairness, equality and access
access
means that all people should be able to engage with the justice system
fairness
Fairness means all people can participate in the justice system and its processes should be open and impartial
equality
means all people engaging with the justice system and its processes should be treated in the same way
dispute resolution methods
arbitration, mediation and conciliation
mediation
is a method of dispute resolution that uses an independent third party (i.e. a mediator) to help the disputing parties reach a resolution.
joint problem solving where both parties sit down and discuss the issue and present there side, then they discuss to negotiate a resolution
arbitration
is a method of dispute resolution in which an independent person (an arbitrator) is appointed to listen to both sides of a dispute and make a decision that is legally binding on the parties.
more formal then conciliation and mediation, more expensive
conciliation
Conciliation is a method of dispute resolution that uses an independent third party (i.e. a conciliator) to help the disputing parties reach a resolution.
similar to mediation, however the conciliator is usually someone with specialised knowledge therefor they have more influence over the outcome
tribunals
Tribunals are dispute resolution bodies that obtain their power to resolve certain types of disputes from parliament.
Tribunals provide individuals with a low-cost, efficient and speedy method of dispute resolution. Therefore, tribunals increase the community’s access to justice.
tribunals VCAT (Victorian Civil and Administrative Tribunal)
VCAT deals with a large number, and a large variety, of civil disputes.
5 elements - administrative division, civil division, human rights division, planning and environment division and residential division
VCAT is one of Australia’s busiest tribunals, receiving over 85 000 claims per year
VCAT’s purpose is to provide Victorians with a low-cost, accessible, efficient and independent tribunal that delivers high-quality dispute resolution.
Complaints bodies
Complaints bodies assist parties to a civil dispute by investigating and or attempting to resolve their dispute through conciliation
they cannot make a banding decision on the parties
complaints bodies examples
inspector general of taxation and health complaints commissioner
Determining liability
The judge or magistrate (or jury) will consider the evidence presented and decide whether the plaintiff, on the balance of probabilities, has established that the defendant caused the loss suffered by the plaintiff.
Deciding on a remedy
If liability is established, the role of the court is to decide on the remedy (a way in which a court can right the wrong that has occurred to the party who has suffered loss).
The jury
When is a jury used in civiltrials?
There is no automatic right to a jury in a civil trial.
In the Magistrates’ Court, and in appeal cases, there is nojury.
In the County Court and the Supreme Court, a jury is optional.
There are six jurors in a civil jury in the County Court and the Supreme Court.
Each juror is randomly selected from the Victorian electoral roll.
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.
the jury
A civil jury may be required to decide on the amount of damages
to be awarded (except in defamation cases).
Jurors are not required to give reasons for their decision.
The jury system aims to uphold equality and impartiality.
+ and -
of the jury
+
jurors are independent and impartial therefor ensuring equality and fairness
-
jurors do not give reasons for their decisions and deliberation occur only behind closed doors
Difficulties faced in the civil justice system
The civil justice system can be confusing, overwhelming and, for many, expensive.
Some groups face additional challenges when interacting with the civil justice system; for example:
people with mental health issues
people with disability
recent arrivals to Australia
First Nations people
Difficulties faced by some First
Nations people in the civil justice
system include:
cultural differences
language differences
distrust in the civil
justice system.
difficulties faced in the civil justice system
rural, remote or regional areas
lack of access to legal services
lack of access to technology
lack of access to courts due to the location
purpose of remedies
The general purpose of civil remedies is to restore the party who has suffered loss or injury to the position they were in before the loss or injury occurred.
Other purposes are:
to make the point that the defendant’s conduct is not acceptable
to stop the harm from happening any further
to force someone to do something that they are refusing to do.
There are TWO MAIN types of remedies:damages and injunctions.
Compensatory damages
Special or specific damages
these are awarded to compensate the injured party for items that can be calculated objectively and exactly (e.g. loss of wages, medical expenses).
Compensatory damages
GENERAL DAMAGES
General damages – these are 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.
compensatory damages
aggravated damages
Aggravated damages – these are 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.
remedies
nominal damages
These 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.
The court awards a very small amount of damages ascompensation.
remedies
exemplary damages
The only example in civil law of a court seeking to punish
a defendant
Awarded to show strong disapproval of the defendant’s conduct; also called punitive (punishing) damages
The purpose is to punish and deter the defendant where conduct
is malicious, violent, cruel, insolent or in scornful disregard of the plaintiff’s rights
Exemplary damages cannot be awarded in
defamationcases.
remedies
Contemptuous damages
These are a very small amount of money awarded by a court to show that even though the plaintiff’s claim succeeded legally, the court disapproves of it in moral terms.
Damages
The effectiveness of damages largely depends on the facts of the case and the loss that has been suffered by the plaintiff.
When assessing the effectiveness of damages, some of the factors to considerare:
the type of loss that has been suffered
whether the defendant will pay
time, cost, stress, and inconvenience
whether there is potential for more harm
Injunctions
Injunctions are a type of civil remedy where the court makes an order
for the defendant to undertake an action (do something) or to refrain
from doing something.
Injunctions can be granted on a temporary or long-term basis.
There are two types ofinjunction:
Restrictive injunction – an order that stops someone from
doing something
Mandatory injunction – an order that compels someone to do
a particular act.
injections effectiveness
The effectiveness of injunctions largely depends on the facts of the case and the loss that has been suffered by the plaintiff.
When assessing the effectiveness of an injunction, some of the factors
to consider are:
the nature of the claim
whether the damage has already been caused
time, cost, stress and inconvience
CAV (civil and administrative tribunal)
monitory and regulate consumer affairs in Victoria
conciliate disputes between consumers and traders or tenants and landlords
enforce and ensue compliance with consumer laws
