U3 AOS2 The Australian Civil Justice System (4)

Question 1

Cross-examination

Answer 1

The process of questioning witnesses called by the prosecution to test the accuracy and reliability of the evidence they present in court.

Question 2

Describe the responsibilities of the plaintiff’s attorney or legal representation

Answer 2

To build a case against the defendant, to investigate, locate and collate all evidence against the defendant, to source and prepare witnesses (i.e., expert witnesses, eyewitnesses etc), to question and present arguments, and to negotiate with the defence.

Question 3

Describe the responsibilities of the defence attorney or legal representation

Answer 3

To respond to the plaintiff’s claim, to investigate, locate and collate all evidence against the defendant, to source and prepare witnesses (i.e., expert witnesses, eyewitnesses etc), to question and present arguments, and to negotiate with the plaintiff.

Question 4

Alternative or appropriate dispute resolution

Answer 4

Ways of resolving or settling civil disputes that do not involve court or tribunal hearing (e.g., mediation, conciliation, and or arbitration).

Question 5

Terms or deed of settlement

Answer 5

A document that is binding and enforceable that sets out the terms on which the parties agree to resolve their dispute. The terms are confidential and cannot be disclosed to the public.

Question 6

Mediation

Answer 6

A cooperative, non-judicial dispute resolution process involving an independent third party called a mediator. The mediator encourages the two parties to communicate, which should ensure the parties voluntarily come to a resolution through negotiation.

Question 7

Mediator

Answer 7

A mediator does not need to be an expert on the issue of mediation but rather is an independent third party who does not interfere, persuade, nor have a vested interest in any one party but helps the parties in a mediation as they try to reach a settlement of a matter.

Question 8

Aim of mediation

Answer 8

To allow a mediator to ensure the negotiation is conducted in a less formal, supportive environment with emphasis on reaching a resolution, not presenting evidence of who may be right or wrong.

Question 9

The resolution reached in mediation

Answer 9

The resolution reached in mediation is non-binding however it can become enforceable if the parties sign a deed of settlement. It is common for parties who have reached a resolution to a dispute by agreement at mediation to present this resolution to the court, which issues orders made by consent of the parties, rendering the outcome binding.

Question 10

Mediation is appropriate when..

Answer 10

There is a continuing, close, or longstanding relationship, parties are willing to discuss issues, how willing both parties are to cooperate and reach a mutually beneficial solution or compromise to the dispute, there is admission of responsibility, parties wish to reduce associated costs, parties wish to resolve the matter quickly, and parties prefer privacy and confidentiality.

Question 11

Mediation is inappropriate when..

Answer 11

Parties are highly emotional (i.e., negation becomes more difficult), parties are unwilling to discuss issues (i.e., an agreed settlement is unlikely), there is a history of violence or threats, there is a power imbalance (i.e., creates a risk that one party will ‘give up too much’ in a mediation settlement).

Question 12

Conciliation

Answer 12

A non-judicial resolution process involving an independent third party called a conciliator. The conciliator encourages the two parties to communicate, and can offer suggestions and solutions, which should ensure the parties voluntarily come to a non-binding resolution.

Question 13

Conciliator

Answer 13

An independent third party who helps parties reach an agreement that ends the dispute. The conciliator can offer suggestions and advice to assist in finding a mutually acceptable resolution and a person with specialist knowledge on an issue.

Question 14

Aim of conciliation

Answer 14

The conciliator ensures the negotiation is conducted in a less formal, supportive environment. The emphasis in conciliation is on reaching a resolution, not presenting evidence of who may be right or wrong.

Question 15

The resolution reached in conciliation

Answer 15

The resolution reached in conciliation is non-binding however it can become enforceable if the parties sign a deed of settlement.

Question 16

Conciliation is appropriate when..

Answer 16

There is a continuing, close, or longstanding relationship, parties are willing to discuss issues, there is admission of responsibility, when parties are unlikely to reach an agreement without some form of legal advice, when parties seek an agreement that requires an action outside of the party themselves (e.g., drafting a public apology), and parties prefer privacy and confidentiality.

Question 17

Conciliation is inappropriate when..

Answer 17

Parties are highly emotional (i.e., negation becomes more difficult), parties are unwilling to discuss issues (i.e., an agreed settlement is unlikely), there is a history of violence or threats, there is a power imbalance (i.e., creates a risk that one party will ‘give up too much’ in a mediation settlement).

Question 18

Civil remedy

Answer 18

Orders from the court or VCAT upholding the plaintiff’s civil right by providing relief for the injury they have suffered. Designed to address a civil wrong or a breach. A remedy should provide a legal solution for the plaintiff for a breach of the civil law by the defendant and restore the plaintiff to the position they were in before they were wronged, or their rights were breached.

Question 19

Describe the purposes of civil remedies

Answer 19

To restore the plaintiff to the position they were in before the harm occurred.

Question 20

List the three purposes of damages

Answer 20

Compensatory, exemplary, and nominal.

Question 21

List the types of compensatory damages

Answer 21

Specific, general, and aggravated.

Question 22

Specific compensatory damages

Answer 22

Have a precise value and are easily quantifiable. For example, medical bills, damage to property, lost items.

Question 23

General compensatory damages

Answer 23

Do not have a precise value and are not easily quantifiable. For example, pain and suffering, loss of quality of life, shortened life expectancy.

Question 24

Aggravated compensatory damages

Answer 24

These damages are awarded in cases where the actions of the defendant are serious enough to justify the awarding of extra money to the claimant. Circumstances which may give rise to these damages include seriously improper conduct by the defendant, such as, where a tort was committed in a particularly insulting and humiliating manner, and where significant injury to the claimant resulted, including suffering of an emotional or personal nature.

Question 25

Exemplary damages

Answer 25

Damages aim to punish defendant. Large monetary values to punish defendant. Not commonly awarded in Victoria. For example, cruelty, revenge, disregarding the plaintiff’s rights.

Question 26

Contemptuous damages

Answer 26

Awarded to a plaintiff where they have a legal right to damages however there is an understanding that this claim should never have been sought.

Question 27

Nominal damages

Answer 27

Damages aim to reflect that the plaintiff was legally right. The small amount awarded to show the plaintiff was legally right, usually valued at $1. For example, tainted reputation but no substantial damage, touching a person without causing harm.

Question 28

Compensatory damages

Answer 28

Damages aim to reimburse and compensate the plaintiff for the loss suffered.

Question 29

Damages

Answer 29

An award of monetary compensation the plaintiff, against the defendant and can be classified into the three categories of compensatory, exemplary, and nominal damages.

Question 30

Injunctions

Answer 30

Court orders compelling a party to do something or preventing a party from doing something.

Question 31

Describe the purposes of injucntions

Answer 31

To change a situation for the benefit of the plaintiff which may include restoring the plaintiff to the position they were in before the defendant infringed their rights. For example, a mandatory injunction requiring an apology for a defamatory publication. Secondly preventing harm to the plaintiff. For example, a restrictive injunction preventing the construction of a building that, if built, would block out all-natural light in an existing home.

Question 32

Mandatory injunctions

Answer 32

Mandatory injunctions force parties to do something. For example, demand a written apology.

Question 33

Restrictive injuction

Answer 33

Restrictive injunctions prevent parties from doing something. For example, prevent a property from being sold.

Question 34

Interlocutory injunction

Answer 34

Interlocutory injunctions are temporary. For example, a short-term injunction to prevent the demolition of a house, until a court can resolve a dispute regarding whether the owner is or is not entitled to demolish it.

Question 35

Perpetual injunctions

Answer 35

Perpetual injunctions are permanent. For example, an injunction instructing a publisher not to print a defamatory book.