Remedies

Question 1

Principles of Justice

Answer 1

There is no universal definition of justice. Whether justice has been achieved depends on the perspective and views of the person making the assessment. However, there are fundamental principles in which the justice system should always strive to achieve.

Question 2

Fairness
Principles of Justice

Answer 2

All people can participate in the justice system and its processes should be open and impartial.
Synonyms
Independent/unbiased
Public
Aware/present version of case

Question 3

Equality
Principles of Justice

Answer 3

All people engaging in the justice system should be treated in the same way. If the treatment creates disparity or disadvantage, adequate measures should be implemented to allow all to engage with the justice system without disparity or disadvantage.
Formal equality = same treatment
Substantive equality = different treatment for same outcome

Question 4

Access
Principles of Justice

Answer 4

All people should be able to engage with the justice system and its processes on an informed basis.
Synonyms
Physical, technological and financial access/engagement
Understanding and comprehension

Question 5

What is Mediation?

Answer 5

> One of the least formal methods for resolving disputes
It is a joint problem-solving process where parties willingly cooperate to reach a solution through negotiation
Mediators (impartial third parties trained in dispute resolution) facilitate mediation by empowering both parties to negotiate and even out power imbalances
Mediators do not make determinations - support parties to reach a decision for themselves

Question 6

When is Mediation Used?

Answer 6

> Before parties engage with the courts, especially if it is important to maintain an ongoing relationship
Parties can organize private mediation
Courts (and VCAT) can order (refer) parties to attend mediation before setting a further date for trial
Lawyers generally not used to promote a sense of informality however they can be used
Discussions are normally “without prejudice” meaning that they cannot be used against parties as a later date
Not legally binding unless deed of settlement signed by both parties, thus making a decision enforceable through courts
Terms of a deed of settlement are usually confidential

Question 7

What is Conciliation?

Answer 7

> The same as mediation except a conciliator can make suggestions regarding options to resolve the dispute and a conciliator has specialist knowledge in the field pertaining to the legal dispute
Used mainly before VCAT

Question 8

What is Arbitration?

Answer 8

> One of the most formal ‘alternate’ methods of dispute resolution outside of courts
Facilitated by an arbitrator, an independent third party who generally has knowledge in the subject matter being disputed and expertise in the relevant area of law
Arbitrator listens to both parties and makes a legally binding and enforceable decision (arbitral award)
Not bound by strict rules of evidence - up to parties to agree how evidence is to be presented, the level of formality and what procedure rules apply
Parties can self-represent however most will have legal representation
Used privately or by the courts to resolve claims of less than $10,000
Can be used to resolve claims of more than $10,000 by the courts if both parties consent
VCAT can refer parties to arbitration before the final hearing (h/w not conduct the arbitration process itself)

Question 9

What is a Tribunal?

Answer 9

> Tribunals are ADR bodies that obtain their power to resolve certain types of disputes from parliament via statute law
Tribunals develop experience in particular types of disputes and can make binding decisions. H/w tribunals cannot hear every type of dispute (e.g. class actions cannot be heard in tribunals)
There are commonwealth tribunals and state tribunals
Tribunals have similar characteristics to courts h/w there are significant differences (e.g. much lower costs)
Purpose of tribunals is to delivers a low-cost, efficient and accessible alternative to courts

Question 10

Victorian Civil and Administrative Tribunal (VCAT)

Answer 10

> VCAT is given its powers through the Victorian Civil and Administrative Tribunal Act 1998 (Vic)
The VCAT president is a current Supreme Court judge and the VCAT vice presidents are County Court judges
VCAT is the largest tribunal in Victoria with the power to hear a wide range of civil and administrative disputes
VCAT has exclusive jurisdiction over some types of disputes (e.g. domestic building disputes)
H/w VCAT is not suitable for complex claims such as class actions, defamation cases, personal injury claims or disputes involving large monetary damages
The person who is applying to have their dispute resolved (generally the aggrieved party) is called the applicant. The person who is responding to a claim made against them is called the respondent.
VCAT is divided into 5 divisions and within each division, cases are grouped together in what VCAT calls a list

Question 11

What is an Ombudsman?

Answer 11

> is an official (independent person) appointed by the government (obtain their power to hear and determine complaints via statute law - Ombudsman Act 1973 (Vic)) to investigate complaints made by individuals and small businesses against a company or organization, particularly public authorities
two types;
+ government (Victorian) ombudsman, which handle complaints about government institutions
+ industry based ombudsman, which handle complaints regarding specific categories of the private sector

Question 12

Ombudsman Key Features

Answer 12

> services are free
only hear complaints from individuals against organizations
most cases not accepted unless individual has tried to resolve issue directly themselves first
will first try to resolve the complaint by working with the parties
if agreement not reached ombudsman may have the power to make a binding decision (depends on specific powers of ombudsman
fairness achieved by giving organizations a chance to respond with reasoning for a decision

Question 13

Complaints Bodies

Answer 13

> Deal with complaints about the provisions of goods and services, or the decisions made by certain bodies or authorities.
Key Features
Free complaints and dispute resolution services
Individuals against organizations
More informal than tribunals and ombudsmen - limited to dispute resolution services
Some can investigate and take enforcement action against individuals or companies that do not comply with certain laws

Question 14

Complaints Bodies
Consumer Affairs Victoria (CAV)

Answer 14

Statutory body established by parliament passing Australian Consumer and Fair-Trading Act 2012 (Vic).
CAV provides information and helps resolve disputes to create a fair and competitive marketplace for consumers and businesses.
Purposes;
To provide info to educate people about consumer laws about the rights and responsibilities of businesses and consumers.
Provide consumers, traders and landlords with a dispute resolution process
Advise the Vic government on consumer legislation.
Initiate legal action against businesses who breach consumer protection laws in Victoria.
Investigate claims about unsafe products being sold in Vic and if needed removing such items from sale.

Question 15

Obtaining CAV

Answer 15

To obtain assistance from CAV parties must first attempt to settle the dispute themselves. If unsuccessful then CAV will provide free and voluntary conciliation services - CAV empowers ppl to resolve dispute. Not legally binding unless parties agree to a deed of settlement.

Question 16

Role of the Courts

Answer 16

The courts are the traditional dispute resolution bodies in Victoria.
H/w, given the vast range of dispute resolution bodies and dispute resolution methods available, as well as the costs involved in using the court system, taking a matter to court is considered a last resort for parties.
In civil law, the role if the court is to;
> Determine the liability of a party
> Decide on the remedy (if required)

Question 17

Determining Liability (Court)

Answer 17

The court will determine whether the defendant is liable and if so, to what extent. The Magistrate, judge (or jury if present in the County or Supreme Court TD) will consider the evidence and whether the plaintiff, on the balance of probabilities, has established that the defendant had caused loss or harm.
The decider of facts might also have to determine whether the defendant was fully liable for the plaintiff’s loss (contributory, other party).
Will need to decide counterclaim also.
Strict rules of evidence and procedure apply.
Courts specialized in the type of dispute it is hearing.
Courts have power to mandate ADR before trial and to compel the discovery of documents by certain dates.

Question 18

Deciding a Remedy (Court)

Answer 18

A way for the court to right a wrong that has occurred to the party who has suffered a loss.
Most common remedy is damages, a monetary award, or injunctions.
The decider of facts will need to assess damages based on evidence presented by both parties.
H/w in a defamation case only mag or judge can assess damages. If the parties have settled their dispute, either obtain a court order to discontinue the case or they may ask the judge to make an order in their agreed terms (judge may refuse). In a class action, the judge must approve any terms of settlement.

Question 19

Jurisdiction
Magistrates Court

Answer 19

Original - minor civil claims up to $100,000. e.g. negligence, contracts, injury compensation.
If claim is less than $10,000, it’s referred to arbitration.
Appellate - no jurisdiction

Question 20

Jurisdiction
County Court

Answer 20

Original - unlimited (usually claims over $100,000). e.g. defamation, property purchasing
Appellate - no jurisdiction (unless granted under specific Act of Parliament)

Question 21

Jurisdiction
Supreme Court (TD)

Answer 21

Original - unlimited (usually large and complex commercial disputes and class actions).
Appellate - appeals from Mag. Court on questions of law (unless decided by Chief Magistrate) and appeals from VCAT on questions of law (unless decided by President or Vice-President)

Question 22

Jurisdiction
Supreme Court (CoA)

Answer 22

Original - no jurisdiction
Appellate - appeals from Chief Magistrate or VCAT President or Vice-President and appeals from County and Supreme Court (TD) on questions of fact, law or amount of damages.

Question 23

Juries

Answer 23

Jury = a group of randomly selected people who are required to deliver a verdict in a trial based on the evidence presented to them in court.
There is no automatic right to a trial by jury in a civil trial.
No jury is used in the Mag. Court or in appeal cases.
A jury is optional in the CC and SCTD. The party who has requested a jury trial must pay the associated fees (judge can deny a request). A judge may order that a jury is required in a civil trial. in this case, the state pays for the jury.
Due to the complexity of legal issues and high fees, it is rare for a party to request a jury in a civil trial.

Question 24

Jury Composition

Answer 24

Governed by the Juries Act 2000 (Vic).
Potential jurors are randomly selected from the Vic electoral roll. Those selected must fill out an eligibility form.
If eligible, potential jurors attend court on a particular day and form part of the jury pool.
6 ppl are chosen (with potentially 2 on reserve) to sit on a jury.
Parties can challenge prospective juror - 2 peremptory challenges (no reason) and unlimited number of challenges for a cause.

Question 25

Juries Role

Answer 25

Objectively listen to evidence and consider the facts of the case.
Follow the directions of the judges regarding the relevant law.
Decide who is more likely in the wrong on the balance of probabilities (deliver the verdict).
Possibly assess the amount of damages (except defamation).
Not allowed to research case.
Not required to provide reasoning for decision.

Question 26

RRR Areas

Answer 26

Approximately 7 million people (29% of population) live outside of major cities in Australia.
Regional = towns, small cities or areas that are outside of Melbourne but still have a sizeable population (e.g. Ballarat, Geelong, Bendigo and Shepparton).
Rural = places outside of Melbourne and regional areas which generally have small towns or hubs but are in the countryside (e.g. Maryborough, Nagambie and Myrtleford).
Remote = places far away from the closest town (e.g. Dargo and Edenhope)

Question 27

Addressing RRR Difficulties

Answer 27

Various organizations encourage lawyers and students to work in RRR area - e.g. secondment programs by big firms.
There has been an increase in the availability of online information, legal advice and dispute resolution methods to limit the need for people to physically attend tribunals or courts - e.g. VCAT video conferencing.
Some court facilities and offices have been upgraded or improved - e.g. the new Bendigo Law Courts precinct.
The Magistrates Court has 51 court locations across Victoria, 41 of which are in regional areas.

Question 28

Low Socioeconomic Status

Answer 28

> Refers to the social and economic position of a given individual, or group of individuals, within the larger society. Common measures include income, consumption, wealth, educations and employment.
May include homeless people, long-term prisoners, unemployed people, young people and people with long-term health conditions or disabilities preventing them from working,
Justice system daunting for low SES because of lack of funds and education
Fee waivers, pro bono legal services, assistance for self-represented parties and class actions aim to address the difficulties suffered by low SES people.

Question 29

Remedies

Answer 29

Remedies are a court order to enforce a right by;
> correcting loss by restoring the plaintiff to their original position
> preventing loss from occurring or worsening
> deterring other civil breaches
There are two types of remedies, damages and injunctions.

Question 30

Damages

Answer 30

Are monetary compensation awarded to the plaintiff in a civil dispute to compensate their loss caused by a civil breach. Damages can be divided into different categories and, more than one type of damage can be awarded to a plaintiff in a civil dispute should the defendant be found liable by a judge/jury.

Question 31

Compensatory Damages

Answer 31

The purpose of compensatory damages is to restore the plaintiff, as nearly as possible, to the position that they would have been in had the civil wrong not been committed.
Special/specific damages compensate for a loss that can be accurately measured in monetary terms.
General damages compensate for a loss that cannot be accurately measured in monetary terms.
Aggravated damages are awarded if the defendant shows reckless disregard for the plaintiff’s feelings and causes them unnecessary humiliation, shame and distress.

Question 32

Exemplary Damages

Answer 32

If the defendant’s conduct is particularly reprehensible, the court can impose exemplary damages with the purpose of punishing the defendant and discouraging others from that type of behaviour. These will be awarded if the defendant has acted consciously and in extreme disregard for the rights of others.

Question 33

Injunctions

Answer 33

A court order that compels a party to do something or prevents a party from doing something. If the defendant does not comply with the terms of the injunction, they may be held in contempt of court, be ordered to pay damages or be charged in criminal proceedings.

Question 34

Mandatory Injunction

Answer 34

Forces a party to do something.

Question 35

Restrictive Injunction

Answer 35

Prevents a party from doing something.

Question 36

Interlocutory Injunction

Answer 36

Lasts for a short time and is often awarded in urgent circumstances.

Question 37

Final Injunction

Answer 37

Permanent injunction that is ongoing.