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legal studies > sac 2b > Flashcards

sac 2b Flashcards

1
Q

what is mediation

A

an independent third party who doesn’t interfere/persuade but helps the parties reach a resolution on their own

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2
Q

what is conciliation

A

an indépendant third party who helps parties reach a resolution by making suggestions and offer advice to assist in finding a mutually acceptable resolution

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3
Q

what is arbitration

A

an indépendant third party appointed too settle a dispute, arbitrators have specialised expertise in particular kinds of disputes between the parties and make decisions that are legally binding on them

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4
Q

key features of arbitration

A
  • two disputing parties, with possible representatives
  • third party= arbitrator whose role is to listen to the evidence and arguments of the disputing parties, then make a decision
  • resolution is decided by the arbitrator
  • arbitral award is legally binding
  • used in magistrates court for claims of less that $10000
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5
Q

key features of mediation

A
  • two disputing parties, with possible representatives
  • third party=mediator whose role is to facilitate communication between the parties
  • resolution is made by the parties, voluntarily
  • resolution may be enforceable if terms off settlement entered into
  • used extensively in victorian courts and vCAT
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6
Q

key features of conciliation

A
  • two disputing parties, with possible representatives
  • third party= conciliator whose role is to facilitate communication between parties and odder suggestions and solutions
  • resolution is made by the parties, voluntarily but it may be on the advice of the conciliator
  • resolution may be enforceable if terms of settlement entered into
  • used by CAV and VCAT but courts have power to refer to conciliation
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7
Q

what are remedies

A

any order made by a court designed to address a civil wrong or breach. remedies should provide a legal solution for the plaintiff for a breach of the civil law by the defendant and restore the plaintiff as much as possible to their original position prior to the breach

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8
Q

what are damages

A

a monetary award that is paid by the defendant to the plaintiff with the aim of compensating the plaintiff for losses suffered and restoring the plaintiff to the position they were in before the loss occurred. losses can be financial, mental or repetitional

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9
Q

what are compensatory damages

A

aim to restore the plaintiff for the losses suffered. they can be specific (special), general or aggravated.

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10
Q

what are specific damages

A

can be calculated according to the monetary loss suffered, can include medical expenses or loss of wages

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11
Q

what are general damages

A

assessed by the court taking into account future losses and paid and suffering of the plaintiff, these losses cannot be easily calculated

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12
Q

what are aggravated damages

A

awarded by the court if it believes the defendant caused there plaintiff humiliation and insult

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13
Q

what are nominal damages

A

aim o uphold the rights of the plaintiff. only a small amount of money awarded to make the point that the plaintiffs rights have been infringed and the plaintiff is legally in the right

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14
Q

what are contemptuous damages

A

aim to make a point that the plaintiff, although legally in the right is not morally in the right. small amount of monetary damages

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15
Q

what are exemplary damages

A

aim to punish the defendant and deter others from undertaking the same type of conduct. an extreme infringement of rights through malicious, violent, cruel or scornful disregard of the plaintiffs rights.

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16
Q

appropriateness of mediation & conciliation

disputes suitable

A

disputes where:

  • relationship between parties will continue
  • parties are willing to compromise
  • the defendant admits liability, only issue os amount to pay
  • parties want privacy
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17
Q

when is mediation and conciliation not suitable

A

disputes where:

  • overwhelming emotions might interfere with process
  • history of broken promises
  • history of violent/threatening behaviour
  • urgent matter
  • unwilling to try reach a mutual agreement
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18
Q

strengths of mediation and conciliation

A
  • less formal than VCAT and courts
  • addresses the parties needs
  • private and confidential
  • save time of trial
  • voluntary
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19
Q

weaknesses of mediation and conciliation

A
  • decision may not be enforceable
  • one party may compromise too much
  • one party may be stronger
  • decision won’t form a precedent
  • one party may refuse to attend
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20
Q

appropriateness of arbitration (when is in suitable)

A

disputes where:

  • claims less than $10,000 and has been issued in magistrates court
  • parties agreed to arbitrate dispute
  • parties want binding and enforceable award made by independent third party
  • avoid publicity of court
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21
Q

when is arbitration not suitable

A

disputes where:

  • parties don’t agree to arbitrate dispute
  • parties want their day in court and not be in private
  • parties are more comfortable with formal rules of evidence and procedure
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22
Q

strengths of arbitration

A
  • decision is binding
  • private and confidential
  • parties have control over how arbitration is to be conducted
  • costs can be less than court costs
  • arbitrator is an expertise in subject
23
Q

weakness of arbitration

A
  • parties have no control over outcome
  • arbitration’s can be formal increasing stress, time and costs
  • right to appeal is limited
  • not available off not agreed by parties of if claim is larger than in Magistrates court
24
Q

purpose of remedies

A

restore the plaintiff, as far as possible, to the position they were in before the wrong occurred

25
Q

what are injunctions

A

a court order directing someone to stop doing a certain act, or compelling someone to do a certain act.

26
Q

purpose of injunctions

A

rectify a situation by the person who was found to be in the wrong

27
Q

restrictive/prohibitive injunctions purpose

A

to stop a person from undertaking an action that is or will cause a wrongdoing

28
Q

mandatory injunction purpose

A

to order someone to undertake a particular act to stop the breach of potential breach of right

29
Q

interlocutory injunction

A

temporary injunction that is awarded quickly and in circumstances where there is an urgent situation.
purpose= preserve the position of the parties until the final determination of the matter

30
Q

power to order mediation

A

courts can order that parties arrange private mediation or that a court officer acts as the mediator. parties can be referred to mediation at any time of the proceeding, or multiple sessions. this can make parties realise the benefit of settling dispute

31
Q

what are directions

A

an instruction given by the curt to one or more of the parties, which imposes an obligation on a party to do something by a certain time or specifies how a civil proceeding is to be conducted

32
Q

power to give directions

A

judges have the power to give directions before or after a trial, parties who don’t comply can have a sanction imposed

33
Q

possible directions before trial

A
  • conduct of proceedings
  • timelines for steps to be undertaken
  • limiting expert evidence
  • allowance for a party to amend a pleading
  • discovery
34
Q

possible directions during trial

A
  • limiting time taken by trial
  • order evidence is given
  • limiting the number of witnesses
  • how evidence should be given
  • limiting the number of documents a party may tender into evidence
35
Q

appropriateness of courts as a DRB

A
  • whether the dispute falls within the jurisdiction of court and whether there are better ways to resolve dispute
  • County and supreme hear cases from $100,000
  • Magistrates hear cases up to $100,000
  • VCAT has unlimited relating to domestic building, retail tenancies, residential tenancies and planning dispute
36
Q

strengths of courts

A
  • procedures and laws apply to all
  • outcome is certain
  • court hierarchy allows for administrative convenience
  • allows for parties to determine strengths and weaknesses of their cases
37
Q

weaknesses of courts

A
  • often suffers delays which risks possibility of unfairness
  • unconscious biased
  • judges cannot overly interfere which can be unfair on some parties
  • costs may restrict access to resolve dispute (can risk ppl being treated equally bc of they socio economic status)
38
Q

cost factors

A
  • legal costs
  • VCAT costs
  • increased use of alternative dispute resolution methods
39
Q

how costs affect fairness, access and equality

A

FAIRNESS - may have to withdraw their claim, there are cheaper options such as VCAT available
ACCESS- prohibit persons access to legal system, VCAT enables greater access as it is low cost
EQUALITY - self represented parties can impact equality, VCAT 3 tier system tries to create equality by higher costs to large businesses, 3rd party doesn’t have biased

40
Q

time factors

A
  • court delays
  • VCAT waiting times
  • appeal processes
  • case management powers
41
Q

how time affects fairness access and equality

A

FAIRNESS - impact reliability of evidence, VCAT has short waiting times so more fair, appeal gives both parties chance to present their case
ACCESS- delays can force parties to withdraw claim, VCAT has short waiting times improving access and those with long waiting times are deterred, people have greater access to appeal processes, case management increases access as theres flexibility
EQUALITY - delays can have a serious impact on parties especially vulnerable ones, VCAT has short waiting times reducing risk of someone waiting long time, appeal has a reduction in delays

42
Q

accessibility factors

A
  • barriers to communicate
  • lack of services in rural and remote areas
  • use of representative proc3edings
43
Q

how accessibility factors affect Fairness access equality

A 
FAIRNESS - people who can't communicate may not understand their legal rights, lack in rural areas impacts peoples ability to seek legal advice
ACCESS- little understanding of case may lead to withdrawing claim, inability to access legal services will impact someone to pursue legal rights/seek compensation, people who can't afford their own claim can join RP
EQUALITY - barriers can struggle to tell their side of the story, rural ppl may not be equal before law if they can't have equal access fo legal resources, class actions are conducted by legal practitioners who present case in equal manner
44
Q

Recent reforms for costs

A
  • introduction of three tier fee system in VCAT: fees are divided into; corporate, social and health care card holders. this ensures that VCAT remains accessible to the most vulnerable ppl in society
  • use of Technology assisted review in Supreme Court: TAR is used in discovery process, more efficient and cost effective and timely than a lawyer doing the same task at the same quality of work
45
Q

recent reforms for time

A
  • introduction of the Judicial Commission of Victoria: a person can make a complaint to JCV about conduct of judicial officer or member of VCAT eg excessive delays.
  • changes to High court appeal processes: special leave applications are now determined by high court if they require an oral hearing
46
Q

recent reforms for accessibility

A
  • VLA online tool: ppl with legal problems can use to determine whether they are elegible for legal aid and advise ppl where they can go for help
  • use of techn0logy: emails are the preferred communication within court and documents can be filed electronically, reducing time and. costs
  • removal of wigs: judges won’t wear wigs any more so the courtroom is more accessible to ppl who found wigs intimidating
47
Q

recommended reforms for costs

A
  • increased use of alternative dispute resolution methods:expanding and increasing use of mediation nd other dispute resolution bodies out of the courtroom
  • greater legal aid funding: transparent and formal funding models, that funding be increased and that the funding take into account the demands of legal aid
  • online system for resolution of small claims: victorian government establish a panel to oversee the introduction of an online dispute resolution system. more accessible and cost effective
  • assistance to self represented parties: all court and tribunal forms be drafted in plain language, and guidelines be prepared for court and tribunal staff about how to assist self represented litigants with more support
48
Q

recommended reforms for time

A
  • improvements and increase in case management: replacing formal pleadings with less formal alternatives, requiring strict observance for time limits and limiting traditional discovery
  • making enforcement of VCAT orders easier: non monetary orders should be made enforceable without having to go to the Supreme Court, and monetary awards should be considered an order of an appropriate court
49
Q

recommended reforms for accessibility

A
  • expansion of information from VLA: VLA expand its website to include a chat service and in other languages
  • greater coordination between legal service providers: coordination should occur between legal aid bodies and the courts, information and materials would be shared
  • publication of plain language guides and information: government agencies should publish plain language guides summarising legislation and information should be provided in other languages
  • improving access to interpreters: a national indigenous interpreter should be provided to ensure there is an interpreter across the country
50
Q

responsibilities of the judge

A
  • manage the trial
  • decide on the admissibility of evidence
  • attend to the jury if there is one
  • determine liability and remedy
  • make a decision on costs]
  • be impartial umpire
51
Q

responsibility of jury

A
  • be objective
  • listen to and remember the evidence
  • understand directions and summing up
  • decide on liability and damages
  • no connection with parties
52
Q

responsibility to the parties

A
  • make opening and closing addresses
  • present the case tot he judge or jury
  • comply with overarching obligations
53
Q

responsibilities of legal practitioners

A
  • make opening and closing addresses
  • present the case to the judge or jury
  • comply with overarching obligations

legal studies (8 decks)

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