Remedies

Question 1

fairness

Answer 1

All ppl can participate in the justice system and its processes should be impartial and open
-impartial processes, open processes, participation:
-all personnel w/in the legal system must act in a way that is impartial and independent-no bias or discrimination
-court processes must be transparent
-individuals can effectively participate in legal system: aware of charges, time to prepare case, aware of evidence

Question 2

equality

Answer 2

everyone engaging in the justice system should e treated in the same way, if this creates disparity or disadvantage, adequate measures should be implemented to allow all to engage w/o disparity or disadvantage
-same treatment-formal equality
-different treatment-substantive equality

Question 3

access

Answer 3

all people should be able to engages with the justice system and its processes on an informed basis
Engagement-physical/financial access
Informed Basis-education, access to legal support services, legal rep

Question 4

What is mediation

Answer 4

One of the least formal methods- joint problem solving process where parties willingly cooperate to reach a solution through negotiation

Question 5

Who facilitates mediation

Answer 5

Impartial third parties trained in conflict resolution
Facilitate the discussion by empowering both parties helping them feel confident to negotiate and evening out any power imbalances
Support parties to reach a decision for themselves
Do not make determinations abt whether there has been a breach of civil law or offer the parties legal advice

Question 6

When is mediation used

Answer 6

If it’s important to maintain an ongoing relationship and costs may be an issue
Parties can organise a private mediation
Mag, county, supreme courts can order parties to attend mediation before setting a further date for trial
VCAT often refers claims to mediations prior to the final hearing

Question 7

How does mediation work

Answer 7

With the help of the mediator, parties discuss the issues involved, consider options and endeavour to reach an agreement through negotiation and compromise
Legal rep is not usually used-> informality
No strict rules of ev/ procedure
‘Without prejudice’- candidly discuss strengths and weaknesses and cannot be used against them at a later date
Not legally binding unless a deed of settlement is signed by both parties
Terms of settlement: legally binding doc outlining the agreement - enforceable thru courts. The terms are usually confidential to parties and cannot be disclosed to the public

Question 8

Conciliation

Answer 8

Same elements as mediation except
Conciliator listens to facts and ev presented by both sides and make suggestions regarding ways and options to resolve the dispute
Generally an indiv w specialist knowledge in that field

Question 9

When is conciliation used

Answer 9

Many dispute resolution bodies use conc
Parties at VCAT often sent to a compulsory conference which uses conc
Some of specialised courts order conc conferences to reach agreements about financial or parenting issues

Question 10

What is arbitration

Answer 10

One of the most formal alternate methods to dispute resolution outside of courts

Question 11

Who facilitates arbitration

Answer 11

Arbitrators are impartial third parties who generally have knowledge about the subject matter of dispute and expertise in the relevant law

Question 12

How does arbitration work

Answer 12

Arbitrator listens to both parties and makes legally binding and enforceable decision- arbitral award
Arbitration is not bound by strict rules of evidence- parties can agree on how ev is presented, level of formality and what procedural rules will apply
Parties can self represent but most parties will have rep considering binding nature of award

Question 13

When is arbitration used

Answer 13

Privately- partied previously agree that disputes will be settled by arbitration. Parties hire arbitrator and agree on advance to abide by the award. Occusrs in dispute resolution centres/ melb commercial mediation and arbitration centre
Courts- mag courts to use arbitration to resolve claims of less that $10k. Court initially attempts to facilitate an agreement b/w parties but a magistrate or registrar can step in to make a binding decision if unsuccessful
Mag , county and supreme can also request parties attend arbitration for claims above $10k if they consent
Tribunals- VIC civil and Administrative Tribunal can refer parties to arbitration before the final hearing however does not conduct the process itself

Question 14

What is a tribunal

Answer 14

Dispute resolution bodies that obtain their power to resolve certain types of dispute from parliament via statute law.
They develop experience in particular types of disputes and can make binding decisions. Tribunals cannot hear every type of dispute
There are commonwealth and state tribunals

Question 15

VIC civil, and administrative tribunal

Answer 15

vcat is given its power through the Victorian civil and administrative tribunal act 1998 (vic)
Is the largest tribunal in Victoria with the power to hear a wide range of civil and administrative disputes:
It has exclusive jurisdiction over some types of disputes including domestic building disputes
is not suitable for complex cases, such as class actions, defamation or Large monetary damages

Question 16

VCAT divisions

Answer 16

Residential tenancies division: residential tenancies list
Administrative division: legal practice list, review and regulation list
Planning and environment division: planning and environment list
Civil division:
Civil claims list, building and property list, owners, corporations list,
Human rights division: guardianship list, human rights list

Question 17

Fees

Answer 17

No fees:
Represented by Victoria legal aid or community legal centre
Under 18 years of age
In prison or other public institution
A protected person or affected family member in a residential tendencies case
Standard fee rate:
Individuals, sole trader businesses, businesses set up as a partnership, businesses with a turnover of less than $200,000 in the last financial year, not for profit organisations
Corporate rate:

Businesses with a turnover of more than $200,000 in the last financial year

Question 18

VCAT purposes

Answer 18

Provide low-cost dispute resolution services: parties do not require legal representation, Fees are low compared to courts, some less application fee and fees can also be waived or postponed for those in financial hardship,
Provide efficient dispute resolution services: hearings are less time-consuming, as it is not bound by the same rules of evidence and procedure as the courts, many cases are referred to mediation or compulsory conferences, hearings involve fewer prehearing procedures, so is that there is less time between application and receiving resolution
Provide accessible dispute resolution services: low-cost, insure people have access to dispute resolution bodies and remedies, uses phones and conferences for some hearings mediation and compulsory conferences, so the parties don’t have to travel long distances, uses informal procedures compared to court, which is easier to understand by the parties

Question 19

ombudsman

Answer 19

an ombudsman is an official (indep person) appointed by the govt to investigate complaints made by individuals and small businesses against a company or organization, particularly public authority
- obtains power to hear and determine complaints through parliament via statute law ( Ombudsman Act 1973 (Vic))
TYPES
govt omb- complaints abt govt institutions. Vic Omb
industry based omb- complaints re specific categories of the private sector e.g Telecommunications Industry Omb
KEY FEATURES:
services are free
only hear complaints from indiv against organisations
usually will not accept a complaint unless indiv has tried to resolve it directly themselves
Omb will try resolve the complaints by working w the parties. if agreement cannot be reached Omb may have power to make a binding decision
Omb ensures procedural fairness by giving organizations an opportunity to respond to a complaint by providing reasons for any decision made
EG OF OMB:
Vic Omb: inquire/ investigate administrative decisions made by Vic Govt Dpt, public statutory authorities and officers of municipal parties
Energy and water Omb Vic: complaints from Vic about energy or water companies
Pub Trans Omb: investigate and resolve complaints abt pub trans operators

Question 20

Complaint bodies

Answer 20

deal w complaints about tje provisions of goods and services, or the decisions made by certain bodies or authorities
KEY FEATURES:
they are intended to provide a free complaints and dispute resolution services
similar to omb., complaints bodies accept complaints from individuals or small businesses against organisations (not vice versa)
complaints bodies are more informal than tribunals and omb- they are limited to offering dispute resolution services as opposed to conducting hearings or making binding decisions
some complaints bodies can investigate complaints and take enforcement action against individuals or companies that do not comply w certain laws
E.G:
Health complaints Commissioner (HCC)- hears disputes about health services or concerns about health info privacy
Vic Legal Services Commissioner (VLSC)- hears and investigates complaints about lawyers
Vic Equal Opportunity and Human Rights Commission (VEOHRC)- hears disputes in relation to discrimination and infringements of human rights

Question 21

Consumer Affairs Vic

Answer 21

statutory body established via plmt passing Australian Consumer and Fair- Trading Act (Vic) 2012
vic civil complaints body that provides info and helps resolve disputes to create a fair and competitive marketplace for consumers and businesses
PURPOSES:
provide info to educate ppl abt consumer laws abt the rights and responsibilities of businesses and consumers
in limited circumstances, provide consumers, traders adn landlords w a dispute resolution process
advise the vic govt on consumer legislation (e.g sales of goods and services)
initiate legal action against businesses who breach consumer protection laws in vic
investigate complaints abt unsafe products being sold in vic and if needed remove such items from sale
CAV and Conc:
must first attempt to settle dispute themselves
voluntary and fee conc services
CAV empowers the parties to resolve the dispute constructively adn efficiently, either in person or over the phone
final resolution is not legally binding unless deed of settlement

Question 22

Civil juries

Answer 22

jury- a group of randomly selected people who are required to deliver a in a trial based on the evidence presented to them in court
unlike criminal, there is no automatic right to a trial by jury in civil cases
-no jury in Mag or on appeals
-jury is optional in county and SC (TD)
-party who requests jury must pay associated fee (judge can deny request)
-judge may order that a jury is required- state pays
due to complexity of legal issues and high fees, it is rare for a jury to be requested

Question 23

jury composition

Answer 23

Juries Act 2000 (Vic)
randomly selected from Vic electoral role
those selected must fill out eligibility form
if eligible, potential jurors attend court on a particular day and form part of the jury pool
6 people
on day of selection, jurors names and occupations are announced, as juror approaches jury box, each party can challenge a prospective juror
both parties have 2 peremptory challenges and unlimited no of challenges for a cause

Question 24

role of the jury

Answer 24

objectively listen to evidence and consider the facts of the case
follow directions of judge regarding relevant law
decide who is more likely in the wrong on the balance of probabilities (deliver verdict)
possibly assess amount of damages (not defamation)
NOT:
obtaining external info about the trial (e.g internet research)
not required to provide reasons for their decisions (unlike judges and Mag. )

Question 25

RRR barriers lack of access to legal services

Answer 25

heavy case loads- financial + emotional toll, decreased trust in legal system
limited experience in all areas of law
conflict of interest
decreased resources- interpreters/rehab/specialist courts
1:3- no. of solicitors to residents in NSW
10.5% of lawyers in RRR but 29% of aus in RRR

Question 26

RRR Lack of access to courts

Answer 26

some are unfit for purpose- judges unwilling to adjudicate
decreased public transport
decreased ability to travel compounds safety barriers
less frequent
cost to travel

Question 27

RRR lack of access to tech

Answer 27

poor internet/ phone services
unable to access legal info/ advice/ attend virtual hearings
may have to attend in person
may rely on paper mail

Question 28

RRR financial issues

Answer 28

18/20 electorates w lowest household incomes were outside capital cities in 2013
‘income poor, asset rich’
may rely on environmental factors to fund selves

Question 29

Addressing difficulties

Answer 29

various organizations encourage lawyers and students to work in RRR areas- e.g secondment programs by big firms
increase in availability of online info, legal advice, and dispute resolution methods to limit the need for people to physically attend courts/ tribunals -e.g VCAT video conferences
some courts facilities and offices have been upgraded or improved
Mag court has
51 court locations across Vic, 41 in regional areas

Question 30

RRR

Answer 30

regional- towns, small cities, or areas outside of melb but still have a sizeable pop
rural- places outside of melb and regional areas which generally have small towns or hubs but in countryside
Remote- places far away from closest town

Question 31

low SES

Answer 31

associated with income, consumption, wealth, education, employment
includes: homeless ppl, long-term prisoners, unemployed ppl, young ppl, and ppl w long term health conditions or disabilities who are unable to work
ppl of low SES may be unable to pursue or defend a civil claim due to high associated costs
the primary cost barrier is related to obtaining legal rep- limits individuals ability to obtain strategic legal advice and may lead to self representation
VLA and CLCs provide free legal advice, info and rep to ppl of low SES but resources are stretched and most funding is used for ppl in crim and family law matters
LACK OF UNDERSTANDING:
justice system is daunting and complex to navigate for most aus- exacerbated for ppl of low SES, especially if denied opportunity to develop literacy skills/ have a long term intellectual disability
Aus Institute of Judicial Administration (2018) found ppl w lower education levels who are unemployed and do not speak english as primary lang are less likely to seek advice when initiating legal aciton
in civil matters, vic courts do not arrrange for an interpreter to attend adn are not responsible for paying a translator- court interpreters must be accredited= significant cost

ADDRESSING DIFFICULTIES:
pro bono legal services- numerous organisations offer free legal services to help brindge the gap and assist ppl who cannot afford a lawyer but are also ineligible for legal aid (justice connect)
Assistanc eto self rep parties- court and tribunals offer self rep parties assistaince w understanding procedures and processes
fee waivers- parties can apply for a fee waiver for hearings/ filings if experiencing financail hardship
class actions- assist plaintiffs of low SES to group together adn seek compensation from the defendant. often lead plaintiff will incur costs if class action fails

Question 32

Compensatory damages

Answer 32

The most common form of remedy for negligence claims
Restore the plaintiff as nearly as possible to the position that they would’ve been in, had taught not been committed
Special damages- compensate for loss that can be accurately measured in monetary terms
General damages - compensate for loss that cannot be accurately measured in monetary terms
Aggravated damages awarded if the defendant shows reckless disregard for the plaintiff feelings and causes them unnecessary distress, shame or humiliation

Question 33

other types of damages

Answer 33

Exemplary/punitive damages- defendants conduct is particularly reprehensible, make an example of them and deter others awarded if the defendant has acted, consciously, and an extreme disregarded for the rights of others

Nominal damages- requires an extremely small amount of money to be paid to the plaintiff usually valued at one dollar. These damages are used to ensure the right is upheld with providing compensation. Nominal damages are awarded where the plaintiff is not necessarily seeking compensation, but wants to proof its legally right. The plaintiff often wants to make a point for moral reasons.

Contemptuous damages - acknowledge the plaintiff had a legal right, but not a moral right to take civil action against the defendant to condemn. The immorality of the claim= minimal compensation is awarded when these damages are awarded the judge must believe that the claim should not have been brought to court. Indicate a technical victory, not a moral victory.

Question 34

purposes of civil remedies

Answer 34

correcting loss by restoring PT to their OG position
preventing loss from occurring or worsening
deterring other civil breaches

Question 35

injunctions

Answer 35

a court order that compels a party to do something (mandatory) or prevents a party from doing something (restrictive)
AIM
either remedy a past civil breach or prevent a future civil breach from occurring
if def doesn’t comply w/ terms of injunction, they may be held in contempt of court, be ordered to pay damages or be charged with criminal proceedings
injunctions can be awarded as a single remedy or in conjunction w/ another remedy (e.g damages)
the court will consider if injunction has a lasting effect
Interlocutory- lasts for a short time and is often awarded in urgent circumstances
Final injunctions- permanent injunctions that is ongoing

Question 36

effectiveness of injunctions

Answer 36

Has damage already been caused?-
Will def comply w order?
Time, cost stress, inconvenience?
nature of claim?

Question 38

what is the role of the courts

Answer 38

determining liability:
Mag/ judge/ jury will consider ev and whether PT on balance of prob has established def caused loss/ harm
- full liability, counter claims
strict rules of ev and procedures applied
provide specialisation
judges have significant case management pwrs- e.g attend mediation
Decide remedies:

Question 39

Mag courts

Answer 39

minor civil courts of up to $100,000
(less than $10,000= arb)

Question 40

County court

Answer 40

OG- unlimited
Ap- none unless granted under specific act)

Question 41

Supreme court TD

Answer 41

OG- unlimited
Ap- from Mag and VCAT on Qs of law (not chief Mag/ vice + president of VCAT)

Question 42

Supreme court COA

Answer 42

OG- none
Ap- CC, SC Qs of fact, law, amt of damages, VCAT vice + president and Chief Mag