SAC 5 Flashcards
Fairness:
all can participate in the justice system, process is fair and impartial.
Access:
to understand legal rights.
Equality:
equal before the law, with equal opportunity to present their case.
Alternative dispute resolution:
Mediation, conciliation, arbitration.
Mediation:
Parties collaborate, mediator guiding negotiations. Decisions made by parties.
Conciliation:
Offers suggestions to resolve matter. Participants make final decision.
Arbitration:
Formal dispute resolution process: listens to both parties, imposing legally enforceable solutions, decision is made on their behalf.
Institutions which resolve civil disputes:
Ombudsman, tribunals, complaints bodies, and the courts.
Ombudsman:
Official body appointed by government to investigate complaints made against certain bodies.
Role of ombudsman:
Provide individuals with independent, timely, accessible dispute resolution to specific industries.
Types of ombudsman:
- Government
- Industry
Tribunals:
Power from parliament to resolve disputes.
- Develop expertise in particular areas of dispute.
- Make decisions binding on parties.
(Low-cost alternative)
Purpose of VCAT:
Provide low-cost, accessible, efficient, independent tribunal.
Complaints bodies:
Service to deal with complaints about the provision of services.
Complaints bodies also:
- Power through parliament.
- Only handle business/services.
- Cannot make binding decisions or conduct hearings.
- Use of conciliation.
Rights and responsibilities of complaints bodies:
- Housing
- Consumer and businesses
- Licensing and registration
- Clubs and fundraising.
Court Hierarchy:
High Court
Supreme Court + (Court of appeal)
Supreme Court + (Trial division)
County Court
Magistrate’s Court of Victoria
(Children’s court, Koori court, Coroner’s court, VCAT, Drug court.)
Role of courts:
Determine liability and decide remedies.
Court processes:
- Formal with rules of professional conduct.
- Follows ‘Evidence Act’ 2008.
What does the court do:
Provide expertise, manage cases, hear appeals.
Role of Victorian courts in a civil dispute:
- Determine liability.
- Decide remedy.
- Provide appropriate avenue to resolve disputes.
Remedy:
Court can ‘right the wrong’ that has occurred to the plaintiff.
Purpose of remedy:
Restore the party who has suffered loss of injury to the position they were in before loss occurred.
Types of remedies:
Damages and injunctions.
Types of Damages:
Compensatory, nominal, exemplary, contemptuous.
Types of Injunctions:
Restrictive, mandatory.
Damages:
Monetary payment made to plaintiff.
Purpose of damages:
Compensate the plaintiff for losses they have suffered.
Difficulties faced by different groups in the civil justice system:
First Nations: injustices and rights breached = intergenerational trauma for children.
Young people: Lack of understanding, negative effects of custody.
Culturally & linguistically diverse people: Limited awareness of and familiarity with the criminal justice system, language differences.
Disability: Physical barriers, lack of understanding by others about disability, lack of services.
Compensatory damages:
- Specific: easily calculated (with receipts, etc.)
- General: for pain/suffering (emotional) + loss of sentimental items.
- Aggravated: awarded to plaintiff when judge feels the defendant has caused further hurt.
Nominal damages:
- When judge agrees the defendant has infringed rights of plaintiff, but plaintiff did not suffer any loss.
Exemplary damages:
- May be awarded if defendants were outrageous that the court wishes to deter others from similar actions + to show disapproval.
Contemptuous damages:
- When plaintiffs rights have been infringed upon, but plaintiff is NOT in the right.
Injunctions:
Court makes an order to undertake an action
Aim for injunctions:
Restore plaintiff to the position they were in prior to harm they suffered.
Restrictive injunction:
Stops party from doing something. (E.G stopping a journalist from publishing, etc.)
Mandatory injunction:
Legal process used to compel someone to do something.
Ability of remedies to achieve their purposes:
Restore plaintiff to the position they were in prior to harm they suffered.
Strengths of mediation and conciliation:
- Less confrontational.
- Unbiased third party.
- Saves time and money.
Weaknesses of mediation and conciliation:
- One party may have unfair advantage.
- Waste of resources if uncooperative.
- Not binding on parties.
Strengths of arbitration:
- Conducted privately (flexible).
- Less formal than court process.
- Confidential (away from public)
Weaknesses of arbitration:
- expensive
- several stages
- no control over outcome
Dispute resolution bodies strengths:
- alternative methods of making complaints.
- low-cost.
- quick process.
Dispute resolution bodies weaknesses:
- not aware of services available.
- not free of charge.
- limited powers.
Determining liability:
- burden of proof.
- if defendant is liable.
- determined on balance of probabilities.
Civil jurisdiction of Victorian courts:
Supreme (court of appeal)
Supreme (trial division)
Magistrate’s court - (up to $100,000)
Strengths of court as a dispute resolution:
- judges are impartial.
- aim to reduce delay.
- specialization depending on court hierarchy.
Weaknesses of court as a dispute resolution:
- expensive.
- difficulty of party to understand.
- formalities are intimidating.
Role of jury in civil trial:
- listen to facts presented
- hear each side of the case and decide the verdict
- unanimous verdicts v majority verdict
Jury system strengths:
- independent, impartial
- allows community involvement
- juries reach community values
Jury system weaknesses:
- no reason for decision
- not all members can be on the jury
- jurors have biases
