remedies

Question 1

fairness defenition

Answer 1

all people can participate in the legal system and its processes should be impartial and open

Question 2

impartial

Answer 2

+ the parties have a independent and unbiased adjudicator
+ no party is shown discrimination or favouritism
+ decided on facts and law rather than opinion and predjudice

Question 3

open

Answer 3

+ disputes that utilise the courts are open to the public and the courts judgement
+ promotes transperancy

Question 4

participation

Answer 4

+ parties can prepare a case through knowing the facts
+ there are several avenues of dispute resolution
+ parties have the opportunity to present their version of the case
+ a trial occurs w/o unreasonable delay

Question 5

equality

Answer 5

all people engaging in the justice system should be treated in the same way. If the same treatment causes disparity or disadvantage, adequate measures should be implemented, to allow all to engage with the same justice system without disparity or disadvantage.

Question 6

formal equality examples

Answer 6

+ all parties can initiate claim if rights infringed
+ all parties are encouraged to negociate prior to and during trial
+ all parties having case heard in superior court can ask for a jury

Question 7

substantive equality examples

Answer 7

+ if cant afford legal rep and must self represent, judge or mag has obligation to take steps to explain rights and processes
+ org such as VLA and CLC’s provide extra support
+ interpreters

Question 8

access

Answer 8

all people should be able to engage with the legal system and its processes on an informed basis

Question 9

engagment examples

Answer 9

+ range of dispute resoloution methods available
+ legal rep often not needed

Question 10

informed basis examples

Answer 10

+ being rep by lawyer allows to be informed
+ specialist community legal centres
+ online legal websites eg VCAT, VLA

Question 11

Mediation

Answer 11

+ least formal methods
+ mediators are impartial third parties trained in conflict resoloution
+ mediators do not make determinations if there has been a breach
+ they dont give advice
+ not legally binding unless deed of settlement signed by both

Question 12

when is mediation used

Answer 12

+ before parties engage with the courts especially if important to maintain a relationship ir costs are an issue
+ during court proceedings as mag, count and supreme can order to attend mediation
+ as an alternative to court as VCAT

Question 13

conciliation

Answer 13

shares elements of mediation except
+ conciliators can make suggestions regarding ways to resolve the dispute
+ conciliator will generally have specialist knowledge in a certain field eg consumer law, family law

Question 14

when is conciliation used

Answer 14

many dispute resoloution bodies eg Vic equal oppurtunity and human rights commision use it
parties at VTAC often sent to compulsory conciliation
specialised courts eg family courts order it

Question 15

arbitration

Answer 15

+ most formal method outside of the courts
+ arbitrators = impartial third parties that have knowledge on subject matter and expertise in the relevant law
+ the arbitrator makes a legally binding an enforcable decision = arbital award
+ not bound by strict rules of evidence - parties can agree on how evidence is presented etc

Question 16

when is arbitration used

Answer 16

+ privately - previously agree [in contract] that disputes will be settled using arbitration
courts - mag court use arbitration to resolve claims of less than 20,000
mag, county and supreme request parties to attend arbitration over 10,000 if both consent
tribunals - VCAT can refer parties to arbitration before final hearing, but doesnt conduct it themselves

Question 17

what is a tribunal

Answer 17

+ dispute resolution bodies that obtain there power to resolve certain types of disputes from parliament via statute law
eg mental health act 2014 established the Mental health tribunal
+ tribunals develop experience in particular types of disputes and can make binding decisions
+ there are commonwealth and state tribunals

Question 18

purpose of tribunals

Answer 18

to offer a low-cost, efficient, and accessible alternative to the courts

Question 19

facts on Vcat

Answer 19

+ opened in july 1998
+ hears approx 83,500 cases each year

Question 20

Victorian Civil and administrative tribunal [vcat]

Answer 20

+ given powers through Victorian Civil and Administrative Act 1998 [vic]
+ VCAT president = supreme court judge
+ VCAT vice presidents = county judges
+ largest tribunal in Vic
+ has exclusive jurisdiction over some disputes eg domestic building disputes
+ not sutible for complex claims eg defamation, class actions, personal injury etc
+ parties are called applicant and respondant

Question 21

5 divisions of VCAT

Answer 21

+ resedential tenancies division
+ administrative division
+ planning and environment division
+ civil division
+ human rights division

Question 22

VCAT processes

Answer 22

Prior to hearing Vcat encourages parties to settle disagreement through dispute resoloution eg mediation, conciliation

if not settled hearing conducted where binding decision handed down after parties present evidence and arguments [in many cases no legal rep and parties prepare own claim]

Then the defendant may be ordered to pay a sum of money or perform a particular act

appeals from VCAT can be appealed on question of law, not on fact or amount of damages

Question 23

Ombudsman [what it is]

Answer 23

+ an official [independent person] appointed by the government to investigate complaints made by individuals and small businesses against a company or organisation, particularly public authorities
+ obtains power to hear and determine complaints through parliament via statute law Ombudsman Act 1973 [vic]

Question 24

Ombudsman key features

Answer 24

+ services are free
+ only hear complaints from individuals against organisations
+ wont accept complaints unless indv has tried to resolve it directly themselves
+ will try resolve by working with parties, if agreement not reached may have power to make binding decision
+ give org opp to respond and provide reasons [ upholds fairness]

Question 25

examples of ombudsman in Vic

Answer 25

Vic Ombudsman - power to inquire or investigate administrative decisions by Victorian Government departments etc

Energy and Water Ombudsman Vic - hears complaints from energy or water companies [eg excessive bills or energy disconnections]

Question 26

two types of ombudsman

Answer 26

Government- handle complaints about government institutions, In vic this is the Victorian Ombudsman
Industry based - handle complaints regarding specific categories of the private sector , eg Telecommunications Industry Ombudsman

Question 27

complaints bodies def + examples

Answer 27

complaints bodies deal with complaints about the provision of goods and services, or the decisions made by certain bodies or authorities

eg = Health complaints commissioner - disputes about health services or health privacy
Vic legal services commisioner - hears and investigates complaints about lawyers

Question 28

Complaints bodies key feautures

Answer 28

+ intended to provide free complaints and dispute resolution services
+ accept complaints from individuals or small businesses against organisations
+ more informal than tribunals and ombudsman
+ limited to offerring mediation and conciliation
+ some bodies can take enforcement action against indv or comp that dont comply with laws

Question 29

Consumer affairs Victoria [CAV]

Answer 29

+ CAV is a statutory body esthablished via parliament passing Aus consumer and fair trading act 2012 [vic]
+ CAV is the Victorian civil complaints body that provides information and helps resolve disputes to create a fair and competitive marketplace for consumers and business’s

to obtain CAV parties must attempt to first settle the dispute themselves
if unsuccessful CAV will provide voluntary and free conciliation
CAV empowers parties to resolve dispute constructivly and efficiently

Question 30

CAV can assist against

Answer 30

Consumers against businesses
tenant against a landlord

Question 31

purposes of CAV

Answer 31

+ provide info to educate people on consumer laws and rights and responsibilitues of bus + consumers
+ provide consumers, landlords and traders with dispute resoloution processes
+ initiate legal action against bus who breach consumer protection law
+ investigate complaints about unsafe products

Question 32

role of courts
1. determine the liability of a party

Answer 32

+ the court will determine whether D is liable and to what extent
+ mag or judge will consider the evidence and whether the plaintiff on the balance of probabilities has ethab. the D has caused loss or harm
+ decider might have to determine if FULLY liable eg contributory or another party involved
+ any counterclaims will need to be decided
+ strict rules of evidence and procedure applied
+ courts provide specialisation in the type of dispute its hearing
+ judges have significant case managment powers

Question 33

role of courts
2. Deciding a remedy

Answer 33

a remedy is a way for the court to right the wrong that has occurred to the party who has suffered loss
include damages + injunction
+ mag, judge or jury will assess damages based on evidence presented [in def jury cant]
+ if parties have settled dispute either obtain court order to discontinue the case or ask judge to make order in agreed terms

Question 34

magistrates court civil jurisdiction

Answer 34

original - minor civil claims up to 100,000 eg neg, contracts
if less than 10,000 defferred to arbitration

appellate - none

Question 35

county court civil jurisdiction

Answer 35

original - unlimited [usually claims over 100k eg def, property purchasing

appellate - none [unless granted under specific act of parliament

Question 36

supreme court Trial division civil jurisdiction

Answer 36

original - unlimited [usually large and complex commercial disputes+class actions]

appellate - from mag court of question of law [unless chief mag]
appeals from VCAT on q of law [unless president or vice]

Question 37

supreme court court of appeal civil jurisdiction

Answer 37

original - none

appellate - from county and supreme [td] on q of fact, law or amount of damages
appeals from chief mag of VCAT president or vice president

Question 38

juries in a civil trial [ jury def and characteristics]

Answer 38

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

+ no automatic right to a jury
+ no jury used in mag or appeals
+ jury is optional for county and supreme TD
+ the party that requests it must pay the fees
+ judge may order jury required in this case state pays

[due to complexity and fees rare for party to request a jury]

Question 39

jury composition

Answer 39

governed by Juries act 2000[vic]
randomly selected from Vic electoral roll
must fill out eligibility form
attend court on particular day and form part of jury pool
6 people chose
On day jurors name and occupation announced, each party can challenge a juror [ two peremptory [no reason] challenges and unlimited challenges for cause]

Question 40

disqualified

Answer 40

unable to serve due to background
convicted of indictable offence and sentenced to 3+ yrs prison
sentenced to 3+months of prison in last 10yrs
on bail or remand
undischarged bankrupts

Question 41

ineligible

Answer 41

unable to serve due to occupation or characteristics
eg judges, mag, lawyers, police, members of parliament
unable to communicate, bad english, physical disability that renders them incapable

Question 42

excused

Answer 42

unable to serve due to difficult circumstances
poor health, live more than 50km away, advanced age, financial hardship, carers w dependants, unable to be impartial

Question 43

role of the jury

Answer 43

listen to evidence and consider the facts
follow directions of judge regarding relevant law
decide who is more likely wrong on the balance of probabilities
possibly assess the amount of damages [except def]

not part
not allowed to obtain external info
not required to provide reasons for their decisions

Question 44

regional, rural and remote areas

Answer 44

approx 7 million [29% of pop.] live outside of major cities in Australia
regional - towns, small cities or areas that are outside of melbourne but still have sizeable pop eg ballarat
rural - outside of mel and normally have small towns or hubs in country side eg
remote - places far away from the closest town eg edenhope

Question 45

RRR difficulties

Answer 45

lack of access to courts - eg no public transport, lack of courts, courts happen less frequently

lack of access to legal services - scarcity of lawyers, limited access to critcal support eg interpreters

lack of access to tech - eg internet and telephone coverage

financial issues - 18/20 electorates with lowest household income are outside cities
farming can effect if good or bad season

Question 46

adressing RRR difficulties

Answer 46

• various orgs encourage lawyers and students to work in RRR areas including big law firms
• increase in availability of online info, advice and dispute resoloution services
• some facilities being upgraded or improved
• 41/51 mag courts are in regional areas

Question 47

people of low SES

Answer 47

+ Socio-economic status refers to the social and economic position of a given indv or group of indv, within the larger society.
+ Common measures can include income, consumption, wealth, education and employment
may be SES if
- low income or wealth
- unstable living arrangments
- minimal education

Question 48

Low SES issues = cost barriers

Answer 48

+ may be unable to pursue or defend civil claim due to high costs
+ primary cost is legal rep which can lead to self representing
+ Victorian legal aid and Community legal centres provide free legal advice but resources are stretched and most of funding used for people in criminal and family law matters not civil

Question 49

low SES issues = lack of understanding

Answer 49

+ justice system =daunting +complex = exacerbated by low SES especially if denied oppurtunity to develop literacy skills or have long term intellectual dissabilities
+ Aus institute of Judicial administration [2018] found that ppl with lower education, unemployed or dont speak english are primary lang are less likely to seek legal advice
+ inadequate legal literacy = difficult to understand legal proceedings or legal principles

Question 50

purpose of civil remedies

Answer 50

a court order that aims to enforce a right by correcting a loss by restoring the plaintiff to

their original position
preventing a loss from occurring or worsening
deterring other civil breaches

Question 51

damages

Answer 51

monetary compensation awarded to the plaintiff in a civil dispute to compensate their loss causes by a civil breach

divided into, compensatory [specific, general, aggravated] exemplary, nominal, contemtuous

Question 52

types of compensatory damages

Answer 52

specific = compensate for loss that cant be accuratly calculated in monetary terms eg medical bills
general = cant be accurately measured in monetary terms such as pain and suffering
aggravated = if D shows reckless disregard for the plaintiffs feelings and causes them unneccessary stress, humiliation or harm.

Question 53

exemplary damages

Answer 53

if the defendants conduct is particularly reprehensible, the court can impose exemplary damages with a purpose of punishing the defendant and deterring others from that type of behaviour

If D acred consiously in extreme disregard for the rights of others eg violence, abuse of power

Question 54

nominal damages

Answer 54

require very small amount of money to be paid to the plaintiff usually $1
ensure that P’s rights are upheld without providing compensation
when P isnt seeking compensation but to prove morally right

Question 55

contemptuous damages

Answer 55

acknowledges that the P had the legal right but not the moral right to take civil action against the D
condemn immorality of claim, minimal compensation is awarded
judge believes that the case shouldnt of been brought to court

Question 56

injunction

Answer 56

a court order that compels a party to do something or prevents a party from doing something
if doesnt comply may be held in contempt of court or charged in criminal proceedings

Question 57

types of injuctions

Answer 57

mandatory = forces party do do something

restrictive = prevents a party from doing something

interlocutory = lasts for a short time and is often awarded in urgent circumstances

final injunction = permanent injuction that is ongoing