remedies Flashcards
chapter 12
Define access
One of the principles of justice. Access means that all people should be able to engage with the justice system and its processes on an informed basis.
Define arbitration
A method of dispute resolution in which an independent person is appointed to listen to both sides of a dispute and to make a decision that is legally binding on the parties. The decision is known as a arbitral award
Conciliation
A methods of dispute resolution that uses an independent third party to help the disputing parties reach a resolution. A conciliator has more influence over the outcome as they are someone with specialist knowledge and can suggest options and possible solutions to resolve the dispute.
Define damages
An amount of money that one party is ordered to pay to another party for loss or harm suffered. It is the most common remedy in a civil claim.
Define equality
One of the principles of justice. Equality means all people should be treated in the same way, but if the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow all to engage with the justice system without disparity or disadvantage.
Define fairness
One of the principles of justice. Fairness means all people can participate in the justice system and its processes should be impartial and open.
Define injunction
A remedy in the form of a court order requiring the defendant to do or not do something. An injunction is designed to prevent a person doing harm (or further harm), or to rectify a wrong
Define jury
An independent group of people chosen at random to determine questions of fact in a trial and reach a decision
Mediation
A method of dispute resolution that uses an independent third party to help the disputing parties reach a resolution. It is a joint problem-solving process in which the parties in conflict try to reach an agreement through negotiation and compromise with the help of a mediator
Remedy
Any order made by a court or tribunal designed to address a civil wrong or a breach. A remedy should provide a legal solution for the plaintiff for a breach of the civil law by the defendant
Define plaintiff
A party who makes a legal claim against another person (i.e. the defendant) in court
Define defendant
A party who is alleged to have breached civil law and who is being sued by a plaintiff
Ways mediation can be used…
- Parities can arrange a private mediation
- Parties in a court case can be referred to mediation by a court before a final trial/hearing
- Parties in a tribunal case are referred to mediation to try and resolve the dispute before the hearing
Ways conciliation can be used…
Federal Circuit Court, Family Court of Australia, Consumer Affairs Victoria
Strengths of mediation and conciliation
- The decision made is more likely to be acceptable to the parties as they have reached the decision themselves
- Less formal and less confrontation, which may alleviate stress
- Confidentiality
- Save time and money
Weaknesses of mediation and conciliation
- Decision are not binding
- One party may dominate or influence the other party and the independent party
- Both parties must be willing to participate
- Not appropriate for some disputes
Weaknesses of arbitration
- Not always available
- May take a long time for the decision to be reached
- The parties have no control over the outcome
- Arbitration is more expensive than mediation and conciliation
- Can be as formal as the court process
- Not as flexible as mediation and conciliation
Arbitration can be used when…
- Parties have previously agreed that any dispute between them will be resolved through arbitration
- The Magistrates’ Court uses arbitration to resolve civil claims less that $10,000
Strength of arbitration
- Privacy allows for flexibility
- Less formal than court processes
- Cheaper than courts
- The arbitral award is legally binding
- Private and confidential
Define tribunal
A tribunal is a dispute resolution body that resolves civil disputes and is intended to be a less costly more informal and faster way to resolve disputes
Tribunals can be used when…
- Tribunals develop expertise in particular types of disputes
- Tribunals can make decisions that are binding
- Tribunals cannot hear every type of dispute (e.g. cannot hear class actions)
Examples of tribunals
National Sports Tribunal, Fair Work Commission, National Native Title Tribunal, Mental Health Tribunal, Victorian Civil and Administrative Tribunal
Victorian Civil and Administrative Tribunal
VCAT deals with a large variety of civil disputes
It is made of 5 divisions which hear different kind of disputes
- Administrative Division
- Civil division
- Human Rights Division
- Planning and Environment Division
- Residential Tenancies division
Features of VCAT
- Low fees
- More informal than courts
- Accessible (many VCAT locations, teleconferencing, online portal)
- Cases heard quickly
- Offers dispute resolution methods before making a binding decision on the parties
Define ombudsman
An ombudsman is an official appointed by the government to investigate complaints made by individuals against certain bodies/institutions
Types of ombudmen
Government ombudsman, industry ombudsman
Government ombudsman
Deals with disputes about government agencies
Industry ombudsman
Deals with disputes between consumers and businesses in particular industries
E.g. telecommunications, financial services, public transport, energy and water
Features of an ombudsman
- Free
- Only hears complaints from individuals against government agencies or business
- Ombudsman may or may not have the power to make binding decisions on the parties
- Acts independently of the government
- Generally, the ombudsman will only hear complaints that the individual has already tried to resolve directly
Types of ombudsman at a federal level
Commonwealth Ombudsman, Telecommunication Industry Ombudsman, Fair Work Ombudsman, ASBFEO
Types of ombudsman in Victoria
Victorian Ombudsman, Energy and Water Ombudsman, Public Transport Ombudsman
Public Transport Ombudsman
Investigates and resolves complaints about public transport operators (e.g. Metro, V-line)
Complaints investigated by the Public Transport Ombudsman…
- the supply (or failure to supply) public transport
- the sale of tickets
- infrastructure, vandalism, cleanliness
- conduct of staff members
- impact on the land
Resolutions that the Public Transport Ombudsman can offer…
- Conciliation
- If the matter cannot be resolved through conciliation, the PTO can make a determination
–> the public transport operator pay compensation (up to $10 000) or provide a service to thecomplainant
–> corrective or other work be undertaken to resolve thecomplaint
–> the operator does not do a certainact.
Complaint bodies
Deal with complaints about the provision of goods and services, or decisions made by certain bodies or authorities.
Commonwealth complaint bodies
- Office of the eSafety Commissioner
- Inspector-General of Taxation
- Inspector-General of Intelligence and Security
Victoria complaint bodies
- Consumer Affairs Victoria
- Disability Services Commissioner
- Health Complaints Commissioner
- Victorian Equal Opportunity and Human Rights Commission
Victorian Equal Opportunity and Human Rights Commission
- Free, fair and timely dispute resolution service
- Concerns complaints about discrimination, sexual harrassment, victimisation, and vilification
- Uses conciliation to help resolve disputes
- Does not have power to make orders, award compensation or make binding decisions
Weaknesses of complaint bodies, ombudsmen and tribunals
- Not always free
- Difficulty finding the appropriate service due to oversaturation of options
- Limited power to make binding decisions
- Not appropriate for larger claims
- Not available to everyone (Only for individuals)
Strengths of complaint bodies, ombudsmen and tribunals
- Lower cost
- Complaints are resolved quickly (1-6 months)
- Accessibility (Websites, online services, telephone)
- Informal
- The person assisting the parties are independent and impartial
- Specialised in relevant industry
Roles of the Victorian Courts in resolving disputes
- determine liability
- decide on the remedy
Jurisdiction of the Magistrate’s Court
Original Jurisdiction
- disputes up to $100,000
- cannot award damages over $100,000
Appellate Jurisdiction
- N/A
Jurisdiction of the County Court
Original Jurisdiction
- Unlimited
Appellate Jurisdiction
- N/A unless given under a specific Act of Parliament
Jurisdiction of the Supreme Court (Trial Division)
Original Jurisdiction
- Unlimited
Appellate Jurisdiction
- On a question of law from Magistrate’s or from VCAT
Jurisdiction of the Supreme Court (Court of Appeal)
Original Jurisdiction
- N/A
Appellate Jurisdiction
- Appeals
Strengths of the courts
- Judges are impartial and make decisions based on fact and law
- Aims to reduce delays and costs
- Specialised
- Formal
- Allows for appeals
Weaknesses of the courts
- Difficult to understand (Therefore, inaccessible to some)
- Too expensive
- Delays
- Formal (Therefore, parties may be intimidated)
- The right to appeal is not automatic
When in a civil case, can a jury be used?
- There is no automatic right to a jury in a civil trial
- In Magistrates’ court and appeal cases, there is no jury
- In County and Supreme court, a jury is optional
How many jurors are there in a civil case?
6 jurors.
What is the role of the jury in a civil case?
- consider the facts of the case
- decision if the defendant is liable
- may decide the amount of damages (not in defamation cases)
Strengths of the jury
- independent and impartial
- community involved in legal system (therefore increases confidence in legal system)
- responsibility for decision is spread across the jurors
- jurors are selected at random (ensures impartiality)
- reflects community values
Weaknesses of the jury
- reasons for decisions not given
- not a true representation of community
- jurors may be biased
- jurors easily influenced by lawyers (e.g. emotional appeal)
- delays from explaining legal processes to jurors
- jurors may have difficulty understanding evidence
Difficulties faced by First Nations people in the civil justice system
- distrust in the justice system
- language barriers
- cultural differences
How are difficulties faced by First Nations people in the civil justice system addressed?
- The Victorian Aboriginal Legal Service
(however service cannot keep up with demand) - ongoing cultural competence training
- VCAT becoming more accessible
(Koori staff, Koori support team, Koori hearing room)
Describe a case study where a First Nations person faced difficulties in the civil justice system
Western Australian man Gene Gibson was wrongly accused of killing Joshua Warneke.
He made an appeal and received $1.3 million in compensation from the state
Difficulties faced by young people in the civil justice system
- age related communication barriers
- lack of knowledge about the legal system
- lack of resources
How are difficulties faced by young people in the civil justice system addressed?
- YouthLaw (dedicated community legal centre for young people under 25)
- The courts use less formal and complex language when dealing with young people
- Various organisations provided young people with information and education about their legal rights and obligations
Describe a case study where a young person faced difficulties in the civil justice system
8 teenage Australians sued the federal government for exacerbating climate change by approving coal mining projects.
They ultimately lost their bid.
Purposes of remedies
- to restore (as much as possible) the party who has suffered loss or injury to the position they were in before the loss occured
- to make the point that the defendant’s conduct is not acceptable
- to stop further harm
- to force someone to do something that they are refusing to do
Types of damages
- compensatory damages
- nominal damages
- exemplary damages
- contemptuous damages
Compensatory damages
- special damages
loss that can be calculated exactly and objectively - general damages
for pain and suffering that cannot be calculated objectively - aggravated damages
when the defendant’s conduct injured the plaintiff’s feelings by causing humiliation and insult
Nominal damages
Awarded when the defendant has infringed the rights of the plaintiff, but the plaintiff’s loss was not substantial. Usually a very small amount of money
Exemplary damages (or punitive)
Awarded when the defendant’s actions are so outrageous that the court wishes to deter others from similar action and to show disapproval of the defendant’s action.
Cannot be awarded in defamation cases.
Contemptuous damages
A very small amount of money awarded to show that even though the plaintiff’s claim succeeded legally, the court disapproves of it in moral terms
If no loss, what damages are applicable?
Nominal or contemptuous damages
If minor loss, what damages are applicable?
Nominal or compensatory damages
If significant loss, what damages are applicable?
Compensatory or exemplary damages
If there is a potential for ongoing harm, what damages are applicable?
Injunction
Restrictive injunction
Stops someone from doing something
Mandatory injunction
Makes someone do something
