semester 2 part 2

Question 1

mediation (civil) and features

Answer 1

cooperative, not judicial with mediator. two parties come to voluntary resolution.
features: mediator cannot provide advice, non- binding unless both parties sign a deed of settlement, legal rep not used, evidence generally not presented, solution, not whos right or wrong.

Question 2

(mediation) consent order documents and examples of disputes

Answer 2

consent order documents: terms parties have agreed to, written conclusion of mediation, issued by vcat or court, makes agreement legally binding, ends civil dispute.
examples of disputes: injured worker vs employer, neighbours, divorce / custody issues, property settlements between separating couples.

Question 3

when mediation is or isnt appropriate

Answer 3

appropriate: genuinely want to resolve, willing to negotiate, participation and understanding, relationship needs / wants to be maintained, parties want privacy, concerned with time and costs.
not appropriate: one party is vulnerable, unwilling to discuss, highly emotional, animosity, previous broken promises or failed mediation attempts, power imbalance, one side gives up too much.

Question 4

fairness mediation strengths and weaknesses

Answer 4

strengths:
control: parties control outcome, mutually agreeable.
independence: mediator is impartial.

weaknesses:
intimidation: one party may be intimidated, feel forced.
not automatically binding: party could go back on promise.

Question 5

access mediation strengths and weaknesses

Answer 5

strengths:
cheaper: those with limited finances access + dont need to hire legal rep.
private: confidential for parties conscious of media attention, less intimidating.

weaknesses:
time and cost: waste of time and money if no solution.
not suitable for some matters: long running disputes / significant animosity cannot access mediation.

Question 6

equality mediation strengths and weaknesses

Answer 6

strengths
informal: all parties can discuss as they wish, show their perspective without evidence.
representation: legal rep not required, unrepresented parties not disadvantaged.

weaknesses:
intimidation: one party intimidated, forced into outcome they don’t like, especially without legal rep.

Question 7

conciliation and its features

Answer 7

non-judicial with conciliator, with specialist knowledge, can provide advice. may be done if mediation fails.
conciliator offers suggestions and possible solutions, can be enforceable if parties sign deed of settlement and / or ask vcat
legal rep often not used, less formal, supportive.
emphasis on reaching solution, not whos right / wrong.
examples of disputes: discrimination

Question 8

when conciliation is and isnt appropriate

Answer 8

is:
- want to resolve, privacy, understand, participate, relationship needs to be maintained, admission of responsibility, parties require suggestions / solutions from expert.
isnt:
- one party vulnerable, unwilling to discuss, highly emotional, animosity

Question 9

fairness conciliation strengths and weaknesses

Answer 9

strengths
control: parties control outcome
independence: conciliator is impartial
weaknesses
Intimidation
not binding

Question 10

access conciliation strengths and weaknesses

Answer 10

strengths
cheaper
private
weaknesses
not suitable for some matters

Question 11

equality conciliation strengths and weaknesses

Answer 11

strengths
cost effective
informal
weaknesses
intimidation

Question 12

arbitration and features

Answer 12

arbitrator listens to parties, present evidence and makes a binding decision. less formal, without strict rules, outcome is enforcable, often private, commonly used in large commercial contracts. often conducted in vic supreme court.

Question 13

arbitration when it is or isnt appropriate

Answer 13

is
- parties agree / contract tells them to arbitrate, amount claimed less than $10,000, initiated in magistrates court, case requires binding / enforceable decision.
isnt
- complex legal issues need clarification by judge, parties comfy navigating complex court rules/ prefer jury, parties dont agree to arbitrate.

Question 14

fairness arbitration strengths and weaknesses

Answer 14

strengths
certainty: always lead to a decision
binding: always binding decision
weaknesses:
limited appeal rights
rules of evidence: may consider usually inadmissible evidence.

Question 15

access arbitration strengths and weaknesses

Answer 15

strengths
informal
private
weaknesses
costly: more than conciliation and mediation + cost of legal rep if used

Question 16

equality arbitration strengths and weaknesses

Answer 16

strengths
informal
weaknesses
legal rep: one party has legal rep and other doesn’t leads to power imbalance. unrepresented parties disadvantaged as they may not understand rules of procedure followed.

Question 17

tribunal and different ones

Answer 17

authority to judge or determine civil claims / disputes. less formal, more timely than courts.

Vcat: wide range civil + administrative
vocat: financial assistance for those impacted by crime
rrt: appeals on protection visas for asylum seekers / refugees

Question 18

vcat purposes: low cost

Answer 18

low costs:
- no legal rep
- low fees
- in some case no fees
- benefits for those in financial difficulty
- list= name of tribunal e.g civil claims, goods + services
- compulsory conference = conciliation
- 3 tier model. standard fees, corporate= more expensive (for buisnesses), discount for those in financial difficulty ie health card holders.

Question 19

vcat purposes: efficient and expert

Answer 19

-hearings short
- many cases resolved quickly at compulsory conference / mediation
- few pre hearing steps compared to court
- vcat members often have expertise / experience

Question 20

vcat purposes: accessible

Answer 20

• low costs so anyone can access resolution
• Melbourne, suburbs, rural vic all have offices
• informal procedures, supportive environment, may discourage individual from pursuing a claim
• vcat assists parties to prepare for case, instructions on how to lodge application, prepare evidence and what to bring to hearing.

Question 21

4 divisions of VCAT

Answer 21

-administrative: taxation, business regulation and legal services
-civil division: consumer matters
- human rights division: racial, sexual and religious discrimination, info privacy.
- residential tenancies division: disputes between residential tenants and landlords, rooming house owners, residents and director of housing and public housing tenants.

Question 22

vcat resolutions

Answer 22

mediation or conciliation
binding decisions in vcat hearings
in many cases, no legal rep
may include order to pay sum of money or perform particular act, legally binding

Question 23

when is vcat appropriate vs not appropriate

Answer 23

appropriate:
-dispute falls within jurisdiction
-not complex, parties happy to only have appeal on question of law
-parties willing + able to prepare + present their own case
-parties prefer informal / less expensive
not appropriate:
-outside jurisdiction
-parties want greater avenue of appeal, complex issues
-parties prefer legal rep
-claim is for very large amount
-case is complex, better for legal experts to decide

Question 24

vcat fairness, access, equality

Answer 24

fairness strengths:
-binding outcome
-resolution by agreement (mediation)
fairness weaknesses:
-lack of jury trials: no trial by peers
-self rep: hard for non english speakers, people with little education
access strengths:
-informal
-cost effective
access weaknesses:
-limited jurisdiction: not everyone eligible
- increasing costs: some list costs are increasing.
equality strengths:
-informal
equality weaknesses:
-self rep

Question 25

ombudsman and different ones

Answer 25

independent authorities, investigate complaints against organisations / businesses, public authorities. ombudsman makes binding decision if parties cannot resolve themselves.

fair work: workplace issues
energy and water: energy + water companies
vic ombudsman: disputes about vic government departments, authorities

Question 26

fair work ombudsman

Answer 26

info for employees + employers about rights + responsibilities, means to resolve workplace issues. provides info / investigates complaints about:
- pay and entitlements
- awards and workplace agreements
- leave entitlements
- ending employment
-finding employment
after receiving complaint, fair work may:
- investigate
- commence legal action
- give advice
-provide mediation

Question 27

fair work ombudsman: fairness, access, equality

Answer 27

fairness strengths:
- free service
- public info
fairness weaknesses:
- outcome: not auto binding
access strengths:
- free service
- public info
access weaknesses:
- limited jurisdiction
- complex matters
equality strengths:
- impartiality
equality weaknesses:
-selective: doesn’t investigate / take legal action with every complaint

Question 28

complaints bodies and different ones

Answer 28

investigate / resolve complaints through conciliation. formal, cannot make binding decision if unable to resolve through conciliation.

consumer affairs vic: provision of goods and services
health complaints commissioner
legal services commissioner

Question 29

consumer affairs vic (CAV)

Answer 29

complaints body, gives advice about civil disputes regarding provision of goods and services, can assist parties to resolve disputes through conciliation.
cav will conciliate disputes started by consumer on business or tenant on landlord.
parties must attempt to conciliate first.
cav will not conciliate disputes between businesses, initiated by landlords on tenants or business on customer.

Question 30

cav purpose and jurisdiction

Answer 30

provide info about consumer laws to public, conciliate disputes that arise under consumer laws, advise government, sometimes conduct legal action, investigate complaints about unsafe products, remove items from shelves.

jurisdiction: complaint by consumer / tenant against landlord / business, can act on businesses on compliance with consumer protection laws. can punish by: warning letters, infringement notices, starting court access.

Question 31

when cav is and isnt appropriate

Answer 31

is:
-dispute within jurisdiction
-parties already tried to negotiate a settlement
-parties willing to attend + participate in conciliation

isnt:
-court has already ruled on the matter
-better way to resolve
-one party unwilling to participate in conciliation
-business / landlord approaches cav

Question 32

cav: fairness, access, equality

Answer 32

fairness strengths:
-party control: parties have more control about outcomes. solutions>who’s right / wrong
-timely resolution
fairness weaknesses:
-lack of enforceability: cannot legally enforce decisions
access strengths:
-free service
-informality
-timely resolution
access weaknesses:
-limited jurisdiction
-party engagement: cant force parties to participate
equality strengths:
-all tenants and consumers: free info in lots of languages
equality weaknesses:
-imbalance of power: informal can lead to power imbalance
-consumers and tenants only: no landlords or businesses

Question 33

civil jurisdiction
supreme court appellate, supreme court trial, county court, magistrates court

Answer 33

supreme court appellate:
oj-none
aj-appeals from county / supreme (trial) on questions of law, fact, amount of damages awarded. appeals from president / vice of vcat (leave is required) heard by 3 justices.

supreme court trial:
oj-usually complex, well above $100,000. judge / jury of 6 if required
aj-magistrates on point of law, vcat on point of law (single justice)

county court:
oj-usually over $100,000, judge / jury of 6 if required
aj-none

magistrates court:
oj-minor civil disputes up to $100,000. under $10,000 solved through arbitration
aj-none

Question 34

reasons for court hierarchy

Answer 34

administrative convenience: separate minor cases from complex, lower courts resolve large number of cases quickly, high courts aren’t clogged up, more time for complex cases.

appeals process: decisions made in lower courts can be appealed to superior court if parties dissatisfied, decisions reviewed, mistakes fixed.

specialisation: expertise of each court for specific types of cases, ensures cases heard by experts in the area.

Question 35

court hierarchy
fairness, access, equality

Answer 35

fairness strengths:
-specialisation
-appeals: fix mistakes
fairness weaknesses:
-cost of specialisation
access strengths:
-administrative convenience: backlog
- published online
-pre-trial procedures: resolve before trial
access weaknesses:
-appeals not auto right
-costs
-intimidating
equality strengths:
-specialisation
-appeals: entitled to apply
equality weaknesses:
-cost of appeals: poor cant pay

Question 36

role of jury in civil (when its used, not used +costs)

Answer 36

used:
-county and supreme
-if partie/s request
-when judge requires (rare)
not used:
-magistrates
-cases on appeal
-matters determined by vcat
-parties prefer just judge
-judge orders just judge
costs:
-parties pay any fee accociated with jury
-usually paid by party which requested jury

Question 37

composition of jury, empanelment process and challenges

Answer 37

composition:
-6-8 members, verdict decided by 6
qualified and liable: 18+, enrolled to vote
not able to be on jury:
disqualified: criminal record
ineligible: works in legal system, not able to perform tasks E.g disability
excused: unable to consider impartially, any other legitimate reason.

empanelment process:
-jury roll, questionnaire, summons 10 days before duty, date, time, location.
-jury ballot from jury pool, basic info about case, opportunity for excused, randomly selecting jurors.

challenges:
peremptory: no reason, two per person
for cause: made with reason, judge accepts or declines, unlimited

Question 38

responsibilities of the jury in a civil case

Answer 38

be objective: independent, unbiased

listen to evidence, judges, legal rep:
listen to legal reps presentations, evidence wanted for jury to accept, laws to consider in decision.

decide liability and damages: whether defendant is responsible (to what extent) for plaintiffs harm, balance of probabilities. calculate damages to award to the plaintiff (in some matters)

Question 39

juries in civil: fairness, access, equality

Answer 39

fairness strengths:
-trial by peers
-democratic: decision based on facts.
-independent: impartial.
fairness weaknesses:
-influence and prejudice: easily influenced.
-complexity: no legal training, could apply law incorrectly.
-delay
access strengths:
-plain english: easily understood.
access weaknesses:
-very few cases: poor people cant pay.
-limited use: many cases resolved elsewhere.
equality strengths:
-applies to all parties: all parties have capacity to request a jury.
equality weaknesses:
-cost: not all parties have financial capacity to pay, so cannot get jury.

Question 40

remedies purpose + definition

Answer 40

order from court (or other dispute resolution body) which upholds plaintiffs civil rights by providing relief for loss / injury suffered.
two types: damages and injunctions

Question 41

damages: definition

Answer 41

damages: monetary compensation to the plaintiff, paid by defendant.

Question 42

compensatory damages + subcategories

how is purpose achieved or not

Answer 42

most common, separated into 3 sub categories

-specific: precise value, easily quantifiable.
-achieves: return plaintiff to og financial position
-not achieved: cannot take away harm suffered, may be too much for defendant, therefore plaintiff not restored to og position

-general: no precise value, hard to quantify (e.g pain)
-achieved: monetary for harm.
-not achieved: impossible to quantify objectively, may be too much for defendant to pay.

-aggravated: further compensation for humiliation + insult.
-achieved: more for humiliation
-not achieved: doesn’t reverse humiliation.

Question 43

nominal damages
purpose achieved / not

Answer 43

small amount of money (usually valued at $1) awarded to acknowledge plaintiff’s rights were infringed by defendant, but no harm or loss was involved.
-achieved: recognition of infringed rights.
-not achieved: very little monetary compensation for infringed rights.

Question 44

exemplary damages

Answer 44

additional sum of money awarded to plaintiff as well as other damages, to punish defendant for extreme infringement of rights, deter others from doing similar things. not commonly awarded.
-achieved: punishes defendant, deters others in community.
-not achieved: cannot reverse harm, defendant may not be able to pay, not commonly awarded.

Question 45

injunctions: definition, purpose, lengths

Answer 45

court orders compelling a party to do something or preventing a party from doing something.
* lengths:
-interlocutory: temporary
-perpetual: permanent
* purpose: changes situations for benefit of plaintiffs
e.g restoring plaintiff to og position or preventing harm to plaintiff.

Question 46

injunction types
purpose achieved / not

Answer 46

-mandatory: force parties to do something.
-achieved: defendant forced to start / complete action to benefit plaintiff.
-not achieved: may be too late to stop harm / undo existing harm.

-restrictive: prevents parties from doing something.
-achieved: defendant must stop doing an action, preventing harm to plaintiff.
-not achieved: harm may have already occurred to plaintiff, providing limited benefit.

Question 47

vcat 3 tier structure

Answer 47

1. concession fee payers
   -must hold a current government issued health care card
2. standard fee payers
   -individuals, small business sole traders, partnerships, non for profit organisations.
   -incorporated businesses with less than $20,000 turnover in the previous financial year.
3. corporate fee payers:
   -businesses with a turnover of more than $20,000 in the previous financial year.
   -corporate entities and government agencies.