U2 AOS2 - Remedies Flashcards
what are the methods used to resolve a civil dispute called?
dispute resolution methods
what are dispute resolution methods?
ways of resolving a civil dispute that do not involve a hearing at a court or a tribunal
what are the 3 dispute resolution methods?
mediation, conciliation, and arbitration
why does the legal system encourage dispute resolution methods?
because they are less expensive and less stressful than court/tribunal action
what is mediation?
a dispute resolution method that uses an independent third party to held disputing parties reach a resolution
what is the role of the mediator in mediation?
- evens out imbalance between parties
- does not need to be an expert in areas of law
- does not make decisions about whether there has been a breach of law
- does not offer legal advice
what does a mediator not do?
make binding decisions on the parties/interfere or persuade
what does ‘without prejudice basis’ mean and where does it apply?
it means that discussions that occur during dispute resolution methods cannot be used against either party if the matter must go to court/a tribunal
it applies during mediation and conciliation
what happens if a case is settled at mediation?
parties enter into the terms of settlement/a deed of agreement
what is the terms of settlement?
a legally binding contract that sets out the terms on which the parties agree to resolve their dispute
are the terms of settlement public or private?
private, however it may be enforceable through the courts
how is mediation accessed?
- private mediation orgnaised by parties
- parties can be referred to mediation by a court before a final trial/hearing
- parties are often referred to mediation by a tribunal before a hearing
what is conciliation?
a dispute resolution method and uses an independent third party to help the disputing parties reach a resolution
what are the similarities and differences between mediation and conciliation?
they have the same processes/operate the same way, however the role of the third party is different
what is the role of a conciliator?
- listens to both sides of the dispute
- makes suggestions about appropriate ways to resolve the dispute
- has specialist knowledge about the area relating to the dispute
what can a conciliator not do?
make binding decisions on the parties
how is conciliation accessed?
- used by dispute resolution bodies (e.g. parties in a VCAT dispute are often sent to a compulsory conference)
- some specialised courts, like family court, use conciliation
what is a compulsory conference?
a confidential meeting between parties in a dispute with a third party present during which they use conciliation to try and resolve their dispute
what are the strengths of mediation and conciliation?
- decisions made are more likely to be accepted by parties as they reach the agreement themselves
- less formal + less stressful
- less confrontational (improves relationships between parties)
- more flexible
- higher chance of achieving a ‘win-win’ situation
- conciliator can guide parties as they have specialist knowledge (conciliation ONLY)
what are the weaknesses of mediation and conciliation?
- both parties must be willing to participate
- terms are not binding + not enforceable unless parties enter terms of settlement
- mediators + conciliators have no power to make decisions
- not appropriate for some disputes if there is a power imbalance between parties
- no legal represetation is present therefore parties may use unethical tactics
- not useful if an urgent injunction or court involvement is necessary
- mediator cannot give advice or offer suggestions (mediator ONLY)
what is arbitration?
a dispute resolution method that uses an appointed third party to listen to both sides of a dispute and make a legally binding decision on the parties (known as an arbitral award)
what are the differences between arbitration and the other 2 dispute resolution methods?
- more formal
- arbitrator makes binding decisions that are fully enforceable on parties
- charges parties a fee for their services
- has specialist knowledge in specific kinda of disputes
in what situations is arbitration used?
- if parties have previously agreed (usually through a contract) that they’ll use arbitration if a dispute arises between them
- if a civil claim arises in the magistrate’s court that involves less than $10,000, arbitration is used
what are the strengths of arbitation?
- flexibility (because parties arrange it themselves and decide how it is to be conducted)
- less formal (depending on what parties have decided)
- cheaper than court (depending on what parties have decided)
- third party has specialist expertise
- private + confidential and avoids publicity
what are the weaknesses of arbitration?
- not as flexible as mediation and conciliation
- can be as formal as court
- more expensive than mediation and conciliation
- only available in certain circumstances
- can take a long time for a decision to be reached
- parties have no control over outcome imposed by third party
when are dispute resolution bodies used?
if dispute resolution methods are unable to allow parties to recah an agreement in a civil case
what are the 4 types of dispute resolution bodies?
complaints bodies, ombudsmen, tribunals, courts
how do tribunals obtain their power?
from an act of parliament that gives them power
what are the strengths of a tribunal?
- low cost
- efficient
- speedy
- increases community access to justice
- less formal than court
- good for small disputes
what are the 2 types of tribunals in australia?
commonwealth tribunals and state tribunals
what are examples of commonwealth tribunals?
- administrative appeals tribunal (aat) (when a party seeks an independent review of a commonwealth gov. decision)
- fair work commission (fwc) (workplace relations/workplace disputes)
- national native title tribunal (native title claims/indigenous land title claims)
what are examples of state (victorian) tribunals?
- victims of crime assistance tribunal (vocat) (financial assistance for victims, their families, and witnesses of violent crime)
- victorian civil and adminstrative tribunal (vcat) (broad range of civil disputes like smallcivil claims, residential tenancy disputes, discrimination, guardianship, etc.)
- mental health tribunal (protects people with mental illnesses)
what are the 5 divisions of vcat?
- administrative division
- civil division
- human rights division
- planning and environment division
- residential tenancies division
what are divisions of vcat divided into?
one or more lists
what are some strengths of vcat?
- low fees
- variety of locations across victoria
- speed in determining cases
- cases determined by a vcat member with no affiliation with either party
- less formal
- offers mediation + conciliation before making a binding decision (arbitration)
what is the person making an application to vcat called?
the applicant
what is the defendant party called in a vcat hearing?
the responden
what are ombudsmen?
an official appointed by the government that investigates complaints made by individuals against certain bodies/institutions
who gives ombudsmen their power?
an act of parliament (although they are appointed by the government, they act independently of the gov.)
what 2 areas do ombudsmen deal with?
government and industry
what does a government ombudsmen do?
deal with complaints about gov agencies
what does an industry ombudsmen do?
deal with complaints between consumers and businesses in certain industries
do ombudsmen have the power to make binding decisions?
some do
what are the 2 types of ombudsmen?
federal and state
what are examples of federal ombudsmen?
- commonwealth ombudsmen (complaints about the actions of federal gov departments)
- telecommunications industry ombudsmen (complaints about teleophone or internet services)
- fair work ombudsmen (complaints about workplace laws)
- australian small business and family enterprise ombudsmen (asbfeo) (complaints from small businesses/family enterprises)
what are examples of state (victorian) ombudsmen?
- victorian ombudsmen (complaints about actions taken by vic. gov.)
- energy and water ombudsmen victoria (complaints about energy and water companies in vic.)
- public transport ombudsmen (complaints about public transport operators)
what are complaints bodies?
bodies that deal with complaints about the provision of goods and services and decisions made by certain bodies or authorities
how do complaints bodies gain their power?
through acts of parliament
what are the strengths of complaints bodies?
- free of charge
- flexible services (can hear complaints over the phone, etc.)
- no formal procedures
what are the weaknesses of complaints bodies?
- do not have the power to conduct a hearing or make binding decisions
- do not hear disputes about individuals, usually companies
what are the 2 types of complaints bodies?
commonwealth and state
what is jurisdiction?
the lawful authority/power of a court, tribunal, or other dispute resolution body to decide legal cases
what is the order of the victorian court hierarchy?
- high court of australia (federal)
- supreme court - court of appeal
- supreme court - trial division
- county court of victoria
- magistrates court of victoria
federal courts:
1. federal court of australia
2. family court of australia
3. federal circuit court of australia
specialist courts:
1. coroners court
2. childrens court
what are the 2 roles of victorian courts in civil disputes?
- determining the liability of a party
- deciding on the remedy (if required)
what is the standard of proof in a civil case?
on the balance of probabilities
who is the decider of facts/who determines liability in a civil case?
either the magistrate (magistrates court) or the judge, or a jury in the case that there is one
what must be considered when determining liability?
- is the defendent 100% liable?
- is the plaintiff partially responsible?
- (in cases with multiple defendants) are all defndants liable? for what portion are which defendants liable?
- is the plaintiff liable if a counteclaim is made by the defendant?
what is a counterclaim?
a separate claim made by the defendant in response to the plaintiff’s claim (heard in court at the same time)
what does the court do when determining liability?
- provide secialisation + expertise on the type of dispute
- manage the case (when the person presiding over the case makes orders and gives instructions)
- hears appeals/applications to have a higher court review a ruling made by alower court
when does the court have to decide on a remedy?
if the plaintiff establishes that the defendant is liable (or vice versa in the case of a counterclaim made by the defendant)
what is assessing damages?
calculating the amount of damages to be paid based on evidence from both parties about a suitable amount
what are the 2 types of jurisdiction?
original and appellate jurisdiction
what is original jurisdiction?
the power of a court to hear a case for the first time
what is appellate jurisdiction?
the power of a court to hear a case on appeal
what is the magistrates courts jurisdiction?
original: claims up to $100,000
appellate: none
what is the county courts jurisdiction?
original: unlimited (claims have no limit)
appellate: none unless given under a specific act of parliament
what is the supreme court - trial divisions jurisdiction?
original: unlimited
appellate: appeals on questions of law from magistrates court or vcat
what is the supreme court - court of appeals jurisdiction?
original: none
appellate: appeals from the county court, supreme court - trial division, and vcat (when constituted by vcat’s president or vice president)
when is there never a jury in a civil trial?
in the magistrates court and on appeal cases
how many people make up the jury in a civil case?
6
how can a party obtain a jury for a civil trial?
they must request a jury trial (and the judge has the power to refuse)
why are juries rarely used in civil cases?
- high fees
- complex nature of civil cases
what does the jury decide?
who is in the wrong (determine liability) and sometimes decide damages
what are the 2 types of verdicts a jury can give?
unanimous verdict (all jurors agree) and majority verdict (all but one juror agrees)
whar are the purposes of a jury?
- ensure justice is adminstered according to community values
- involves the community (community participation)
- inceases community confidence that justice has been achieved because they are involved
- upholds equality and impartiality because jury has no bias or preconceived notions
what is the purpose of civil remedies?
to restore (as much as possible) the party who has suffered loss or injury to the position they were in before the loss or injury occurred
what are the 2 types of remedies?
damages and injunctions
what is damages?
an amount of money that the court/tribunal orders one party to pay to another party
what are the types of damages?
compensatory damages, nomial damages, exemplary damages, and contemptuous damages
what are the 3 types of compensatory damages?
- special/specific (compensation for items that can be objectively calculated)
- general damages (compensation for pain and suffering)
- aggravated damages (compensation is the defendant’s conduct injured the plaintiff’s feelings an caused insult and humiliation
what are nominal damages?
damages awarded if the court believes the defendant infringed the plaintiff’s rights, however, the plaintiff didn’t suffer any actual injury (small sum awarded)
what are exemplary damages/punitive damages?
damages awarded if the defendant’s actions were so outrageous that the sourt wishes to deter others from similar actions and show dissaproval for their actions
what are contemptuous damages?
damages awarded if the plaintiff had a legal right to compensation but not a moral right, they don’t deserve damages (small sum awarded)
what factors determine the effectiveness of damages?
- the type of loss suffered (economic or non-economic)
- did the plaintiff suffer significant physical injury or irreparable damage
- was there loss of life
- accuracy of the estimate of future loss (e.g. future earning capacity)
- injuries suffered following the award of damages (e.g. pain and suffering)
- is there another remedy better for the plaintiff
- can damages adequately compensate time, stress, and inconvenience of court proceedings
- does the defendant have the capacity to pay?
what is an injunction?
a remedy in the form of a court order to do something or not to do something
how long does an injunction last?
can be on a temporary or long term basis
what are the 2 types of injunctions?
restrictive (stops someone from doing something) and mandatory (compels someone to do something)
what are the strengths of dispute resolution bodies?
- alternative to courts
- losw cost/free
- speed + efficiency
- easily accessible (e.g. online info)
- informal
- can file claims against gov + large companies without intimidation
- independent + impartial third parties
- parties have the opportunity to present their cases
what are the weaknesses of dispute resolution bodies?
- individuals are unaware of their exietnce
- too many options (difficult to find the right service to help them)
- some services cost money
- limited power (e.g. mediators + conciliators + complaints bodies cant make binding decisions)
- not appropriate for large + complex claims
- cannot create binding precedents
- not available to everyone
what are the strengths of courts?
- judges are impartial
- reduce delays through case management
- specialisation
- parties encouraged to attend mediation
- court processes = procedural fairness
- practises in place to reduce delays
- binding decisions
- doctrine of precedent
- appeals
what are the weaknesses of courts?
- too expensive
- delays
- too formal
- onus on parties = inconvenience
- if no legal representation = inequality
- less developed technology
- difficult to understand processes
- doctrine of precedent = difficult to understand
- right to appeal is not automatic
what are the strengths of the jury system?
- independent + impartial jurors
- community involvement
- deliberations based on only evidence from court (no independent research)
- decision making responsibility on multiple jurors
- effectively determine if a witness is telling the truth
- selected at random = impartial
- verdicts refelct community values
what are the weaknesses of the jury system?
- jurors dont give reasons for their decisions
- difficult task of deliberating + determining liability
- influence of skilled lawyers + emotional elements of case can sway decisions
- personal biases
- expensive (parties must pay)
- delays (legal terms must be explained to jury)
- inconsistencies in damages assessments
