U2AOS2: Remedies Flashcards
Fairness
All people can participate in the justice system and its processes should be impartial and open
Fairness - impartial
-independent unbiased adjudicator
-no party shown discrimination / favouritism
- case decided on facts/ law
Fairness - Open
- open to public -> transparency over judicial decisions + accountability
h/w less that 5% civil cases go to trial
Fairness - Participation
-prepare case knowing the facts
-several avenues for dispute resolution
-opportunity to present their version of the case
- trial w/o unreasonable delay
Equality
all people engaging in the justice system should be treated in the same way. If the same treatment causes disparity or disadvantage, adequate measures should be implemented to allow all to engage with the justice system without disparity or disadvantage
Formal equality
-all parties initiate claim if demonstrate infringement of rights
-all parties negotiate prior + revolve disputes w/o trial
-all parties appeal to superior court / request a jury
Substantive equality
-cannot afford. legal rep, judge/ mag has obligation to explain certain rights +processes
-orgs eg VLA and CLCs extra support to individuals
-interpreters
Access
All people should be able to engage with the justice system and its processes on an informed basis
Access- enagagement
-legal representation not often need unless parties are engaging in courts
-range of dispute resolution —> most less complex than courts
Access- informed basis
-being rep by lawyer
-CLCs can offer assistance to certain groups eg Ballarat and Grampians Community Legal Services
- online website eg VCAT, VLA and Vic Obudsman
h/w these too require a certain level of education
Mediation: what
-joint problem solving process, parties willing to cooperate reach solution through negotiation
Mediation: who
mediators are impartial 3rd parties trained in conflict resolution
-do not make determinations/ offer legal advice
Mediation: when
-b4 parties engage w/ courts
-ongoing r’ship to maintain eg neighbours
-during court proceedings courts can order parties to go to mediation
Mediation: how
-x strict rules of evidence / procedure
-disussions w/o prejudice -> cannot be used against them @ later date
-negotiation + compromise
-only legally binding = Terms of Settlement signed
Conciliation: what
-joint problem solving process, parties willing to cooperate reach solution through negotiation
Conciliation: who
coniliator listen to facts + evidence + make suggestions based on that
-conciliator has specialist knowledge in field of legal dispute–> more expensive than mediation
Conciliation: when
-many dispute resolution bodies (eg Consumers Affairs Victoria) use form off conciliation
-parties @ VTAC often sent to compulsory conference / conciliation
-specialized courts (eg family court) may use conciliation conferences to reach agreements re financial (wills) or parenting issues.
Conciliation: how
-x strict rules of evidence / procedure
-disussions w/o prejudice -> cannot be used against them @ later date
-negotiation + compromise
-only legally binding = Terms of Settlement signed
Arbitration: what
-quasi-judicial
-most formal alternate methods of dispute resolution
Arbitration: who
arbitrators are impartial 3rd parties wo are specialised in the subject matter of dispute + expertise in law
Arbitration: how
-arbitrator listen to both parties -> legally binding + enforceable decision = arbitral award
-X bound by strict rules of evidence –> parties can agree on evidence allowed, procedural rules + level of formality
Arbitration: when
Privately - parties previously in contractt can settle via arb + agree in advance to agree to abide to award
Courts - mag = use arb for claims <$10,000, mag/ registar can make binding decision if x reached/ county + supreme >$10,000 if parties consent
Tribunals - VCAT can refer b4 final hearing
Tribunal: what
-dispute resolution bodies obtain power from parliament via statute law
-make binding decisions + specialised to area of law
Tribunal: purposes
-low cost -> x require legal representation, fees can be waived
-efficient -> x bound by same rules of evidence + procedure, many cases referred to conciliation/ ADR
-accessible-> low cost, phone + video conferences, informal = more easy to understand
VCAT
-Victorian Civil and Administrative Tribunal Act 1998 (vic)
-has exclusive jurisdiction eg domestic building disputes MUST be heard by VCAT
-x suitable for complex claims eg class action+ defamation
Ombudsman: what
-official independent person appointed by govt investigate complaints from indivs re organisations
-Obudsman Act 1973
Ombudsman: key features
- free
-only hear indiv re organ
-x accept complaint unless indic has tried to resolve it
-works w/ parties to reach a binding decision (sometimes x power) - procedural fairness -> organ op to respond to complaint + provide reasons for decision
Complaints bodies
deal w/ complaints about the provision of goods and services or decisions made by certain bodies + authorities
Complaints bodies: key features
-free
-indiv/ small business v organisation
-informal- limited to ADR (med + conc)
-can investigate complaints
Consumer Affairs Victoria: purposes
-Australian Consumer and Fair trading Act 2012
-educate ppl re rights + responsibilities
-use DR to settle complaints
-advise vic gov on legislation
-enforce consumer law
Consumer Affairs Victoria: purposes
-Australian Consumer and Fair trading Act 2012
-educate ppl re rights + responsibilities
-use DR to settle complaints
-advise vic gov on legislation
-enforce consumer law
CAV and coniciliation
-1st try to settle themselves
-CAV will then provide voluntary + free conciliation services
-empowers parties work constructively + efficiently in person / over phone
-x legally binding unless sign deed today settlement
Role of Courts
-determine the liability of a party
-deciding on the remedy (if needed)
How courts determine liability
-Done by decider of facts (judge or jury)
-Strict rules of evidence + procedure (Evidence Act 2008 –> witnesses x provide evidence of opinion to prove fact)
-Specialisation in area of dispute
-Judges = sig case management powers eg compel discovery
How courts decide a remedy
-Magistrate, judge/ jury = assess damages based on evidence (x jury for defam)
-if settled, will obtain court order to dicontinue case / ask judge to make an order in agreed terms/ class action, judge must approve terms of settlement
Original jurisdiction: Magistrates court
-minor claims up to $100,000
-if less than $10K, referred to arbitration
Original jurisdiction: County Court
Damages claims for unlimited amounts, typically over $100 K
Original jurisdiction: Supreme Court Trial Division
Damages claims for unlimited amounts, typically large + complex eg class actions
Original jurisdiction: Supreme Court- Court of Appeal
None
Appellate jurisdiction:
Magistrates court
None
Appellate jurisdiction:
County Court
None (unless granted under a specific Act of Parliament)
Appellate jurisdiction:
Supreme Court Trial Division
-Appeals from Mag on Point of Law (X CM)
-Appeals from VCAT on point of law (X Pres/ VP)
Appellate jurisdiction:
Supreme Court- Court of Appeal
-Appeals county +SCTD on Q of fact, law, damages
Appeals from CM, VCAT Pres + VP
Jury
Randomly selected group of people who deliver a verdict in a trial based on evidence presented in court
-x automatic right -> cost $1653.20 1st day, county
Jury composition
-Juries Act 2000
-randomly selected –> eligibility form
-6 chosen officially sit
Jury challenges
-2 peremptory
-unlimited number of challenges for a cause
Reasons for exclusion from jury
Disqualified- background
Ineligible - occupation/ characteristics
Excused - Dif circumstances
Disqualified
-convicted ind offence + sentence to 3+ yrs imprisonment
-sentenced 3+ months jail w/i last 10 yrs
-on bail/remand
-undischarged bankrupts
Ineligible
-Judges, magistrates, lawyers, MPs, Police ect
-x communicate, phys disability, insufficient English
Excused
-Poor health, live more than 50km away, advanced age, financial hardship, X be impartial
Jury’s role
-Objectively listen to evidence + consider facts of case
-Follow directions of judge re relavant law
-decide on balance of probabilities
RRR difficulties (courts+ legal services)
-lack of access of legal services, may only be 1 lawyer in town, laws created urban areas disproportionate impact eg loss of license
-lack of access to courts, limited phys access, some courts in disrepair, unfit for purpose due to no funding –> judges x willing to adjudicate.
-
RRR difficulties (technology, finance)
-Lack of access to technology, bad internet / reception-> less access to virtual ARD/ VCAT
-X access online info / advice / hearings
-may have to intend in person -> more cost+ delays
-financial issues, ‘asset rich, money poor’ = very common–> unable pay legal fees dep on season, 18/20 lowest SES electorates in RRR areas
Addressing RRR difficulties
-Big law firms encourage lawyers + students work in RRR areas eg secondment (eg Ashurst, NAAJA program)
- more info online, +legal advice, ADR+ VCAT can run virtual
-Mag court = 51 locations, 41 in regional areas
Difficulties- low SES - cost
-each court hearing day (after 1st) = $681
-restricts ability obtain strategic legal advice -> rep themselves
-VLA + CLCs = free legal info + rep, h/w resources stretched + most funding used for crim/ family law as opposed to other areas of civil
Difficulties low SES- lack of understanding
-X literacy skills, long term intellectual disabilities, X native Eng speaker, unemp, low edu levels -> less likely initiate legal action
-Inadequate legal literacy -> self represent-> less access justice
-interpreters = self funded-> may be sig cost
Addressing low SES difficulties
-pro bono legal services eg justice connect -> connect low SES ppl w/ firms + barristers offer pro bono
-assistance self rep parties- eg County + SC have ‘self represented litigant’ sec on website + videos (audio/visual)
-fee waivers- tribunals+ Courts for financial hardship
-class action-> cost shared among many plaintiffs, many law firms eg Slater + Gordon offer ‘no win, no fee’
Types of damages
-Contemptuous
-Nominal
-Exemplary
-Compensatory (Specific, general, aggravated)
Compensatory damages
Specific - compensate for loss that can be accurately calculated in monetary terms
general - compensate for loss that cannot be accurately calculated in monetary terms
aggravated- awarded if D shows reckless disregards for P’s feelings + causes them unnecessary emotional distress
Exemplary damages
to punish D + show court’s condemnation of behav + deter others from type of behav, eg, DV, child abuse
Nominal damages
-Typically P wants to prove legally right X seeking compensation, moral reasons
-Usually $1 to uphold P’s right is upheld
Contemptuous damages
-P had legal right but not moral right
-condemn immorality, minimal comp is awarded
-technical victory, not moral victory
Types of injuctions
-mandatory
-restrictive
-interlocutory
-final
Mandatory injunctions
compelled to do something
Restrictive injunctions
prevents party from doing something
Interlocutory injunctions
last for a short period of time +often awarded in urgent circumstances eg, prevent demolition of house
Final injunctions
Permanent injunction that is ongoing
