Unit 2 AOS 2

Question 1

Strengths of mediation

Answer 1

A decision made by the parties is more likely to be accepted by the parties as they have reached a decision themselves

is held in a less formal setting (Are less confrontational than a courtroom)

Matters can be discussed confidentially without publicity

There is more flexibility for the parties in resolving the dispute as the parties are free to explore options to resolve that are not available to a court or tribunal.

The methods can more effectively reach a win-win solution opposed to a court making a decision.

Question 2

weaknesses of mediation

Answer 2

Both parties must be willing to participate in mediation for it to be successful

Unless the parties enter into terms of settlement, decisions reached during mediation are not binding or enforceable.

Mediators have no power to order parties to come to a decision or even attend.

not appropriate for some disputes.

One party may dominate the other party and may influence either the third party or the other party particularly if they don’t have legal representation.

Mediation is not useful for civil disputes where an urgent injunction is required or a courts involvement.

Mediator cannot give advice or offer suggestions.

Question 3

what is fairness?

Answer 3

people should be treated fairly and impartially. regarding civil disputes, that means there should be a fair hearing and the processes involved should be fair and just.

Question 4

what is equality?

Answer 4

everyone should be treated equally before the law. No person or group should have advantage or disadvantage because of personal characteristics.

Question 5

what is access?

Answer 5

everyone should be able to understand their legal rights, access to information, court processes, and institutions, and use the procedures, methods and institutions that resolve civil disputes.

Question 6

What is mediation?

Answer 6

two parties sit down with a mediator, discuss their issues and try to come to an agreement without the mediators opinion

Question 7

Mediators role

Answer 7

A neutral third party who ensures the discussion is balanced
Not necessarily experts in the field of dispute
Doesn’t make the decision or suggestions

Question 8

What is the Terms of settlement?

Answer 8

Terms of settlement acts as a contract binding the parties to the agreement that they reached.

Question 9

what is conciliation?

Answer 9

Two parties sit down with a conciliator, discuss their issues and try to come to an agreement with the help of the conciliator

Question 10

conciliators role

Answer 10

An active thrid party who makes suggestions for resolutions and helps find solutions
Usually experts on the matter
makes recommendation doesnt make the decision

Question 11

arbitration

Answer 11

involves an independent third party who listens to the parties and tries to help them reach an agreement.

Question 12

arbitrators role

Answer 12

A third party who helps parties who cannot reach an agreement even with conciliation
Can make a final binding decision known as arbitral award.

Question 13

what does adr mean

Answer 13

alternative dispute resolutions are a less formal way than courts of resolving disputes and trying to come to an agreement.

Question 14

Strengths of conciliation

Answer 14

A decision made by the parties is more likely to be accepted by the parties as they have reached a decision themselves

is held in a less formal setting (Are less confrontational than a courtroom)

Matters can be discussed confidentially without publicity

There is more flexibility for the parties in resolving the dispute as the parties are free to explore options to resolve that are not available to a court or tribunal.

The methods can more effectively reach a win-win solution opposed to a court making a decision.

The conciliator has specialised knowledge in the subject matter of the dispute and can guide the parties in reaching a solution

Question 15

weaknesses of conciliation

Answer 15

Both parties must be willing to participate for it to be successful

Unless the parties enter into terms of settlement, decisions reached are not binding or enforceable.

have no power to order parties to come to a decision or even attend.

not appropriate for some disputes.

One party may dominate the other party and may influence either the third party or the other party particularly if they don’t have legal representation.

Conciliation is not useful for civil disputes where an urgent injunction is required or a courts involvement.

Question 16

Strengths of arbitration

Answer 16

Often conducted privately so their is flexibility in how it is conducted

less formal than court processes

cheaper than court processes

makes legally binding decisions

third party has expertise in the subject matter

is private and confidential

Question 17

weaknesses of arbitration

Answer 17

not as flexible as mediation and conciliation

can be as formal as court depending on the case

more expensive than mediation and conciliation

not always available to parties in a dispute

can take a long time to reach a decision

the parties have no control over the outcome imposed by the third party

Question 18

What are dispute resolution bodies?

Answer 18

when parties cannot come to an agreement between themselves they can go to court or tribunals, ombudsmen and complaint bodies.

Question 19

What are tribunals?

Answer 19

are dispute resolution bodies that obtain their power to resolve certain types of disputes from parliament.

Question 20

Tribunals purpose

Answer 20

to provide individuals with a low-cost, efficient and speedy method of dispute resolution.

Increase the community’s access to justice

Question 21

Types of tribunals in AUS

Answer 21

Administrative Appeals Tribunal, Fair Work Commission

Question 22

Types of tribunals in VIC

Answer 22

Victorian Civil and Administrative Tribunal

Question 23

What is an ombudsman?

Answer 23

An official appointed by the government to investigate complaints made by individuals against certain bodies or institutions.

Question 24

Purpose of ombudsman

Answer 24

to provide individuals and small businesses with an independent, timely, and accessible dispute resolution service to resolve disputes in relation to certain agencies and industries.

Question 25

Types of Ombudsman in AUS

Answer 25

Fair Work Ombudsman

Question 26

Types of Ombudsman in VIC

Answer 26

Public Transport Ombudsman

Question 27

What are complaint bodies?

Answer 27

help individuals who have a complaint about goods, services or a particular industry body.

Question 28

Purpose of complaint bodies?

Answer 28

Deals with complaints about the provision of goods and services or decisions made by certain bodies or authorities. Intended to provide a free complaints and dispute resolution service.

Question 29

complaint bodies in AUS

Answer 29

Office of the eSafety Commisioner

Question 30

Complaint bodies in VIC

Answer 30

Consumer Affairs Victoria

Question 31

Strengths of tribunals

Answer 31

increase access to justice by providing alternative methods of making complaints or resolving disputes.

Lower costs compared to court

services are freely available

The informality of the processes enable parties to feel more at ease.

third parties hearing the case and independent and impartial.

Specialised in particular industry

giving parties the opportunity to present their case.

Question 32

Strengths of ombudsmen

Answer 32

increase access to justice by providing alternative methods of making complaints or resolving disputes.

Lower costs compared to court (generally free which increases access)

services are freely available

The informality of the processes enable parties to feel more at ease.

third parties hearing the case and independent and impartial.

Specialised in particular industry

giving parties the opportunity to present their case.

Question 33

strengths of complaint bodies

Answer 33

increase access to justice by providing alternative methods of making complaints or resolving disputes.

Lower costs compared to court (generally free which increases access)

resolve complaints quickly between 1-6 months

services are freely available

The informality of the processes enable parties to feel more at ease.

third parties hearing the case and independent and impartial.

Specialised in particular industry

giving parties the opportunity to present their case.

Question 34

Weaknesses of tribunals

Answer 34

people find it difficult to find the right service to help them

not free of charge

not appropriate for large, complex cases

cannot create binding precedents

Question 35

Weaknesses of ombudsman

Answer 35

people are not aware they are available

people find it difficult to find the right service to help them

not free of charge

limited power to make binding decisions

not appropriate for large, complex cases

cannot create binding precedents

Question 36

weaknesses of complaint bodies

Answer 36

people are not aware they are available

people find it difficult to find the right service to help them

not free of charge

limited power to make binding decisions

not appropriate for large, complex cases

cannot create binding precedents

Question 37

the role of victorian courts in civil disputes

Answer 37

determining liability and deciding on a remedy

Question 38

Supreme Court of Appeal original jurisdiction

Answer 38

They do not have an original jurisdiction as they only hear appeals.

Question 39

Supreme Court of Appeal appellate jurisdiction

Answer 39

Their appellate jurisdiction is to hear appeals from the Supreme Court Trial Division.

Question 40

Supreme Court – Trial Division original jurisdiction

Answer 40

They have unlimited jurisdiction meaning that they have no limit to how much they can award a plaintiff in damages.

Question 41

Supreme Court – Trial Division appellate jurisdiction

Answer 41

They can hear appeals from the Magistrates’ Court based on the point of law.

Question 42

County Court’s original jurisdiction

Answer 42

Like the Supreme Court Trial Division their original jurisdiction is unlimited meaning there is no limit on how much they can award a plaintiff in damages.

Question 43

County Court’s appellate jurisdiction

Answer 43

They do not have jurisdiction to hear appeals unless an Act of Parliament specifically provides appeals to be heard there.

Question 44

Magistrates Court original jurisdiction

Answer 44

They can hear minor civil disputes up to $100,000 meaning that they cannot award damages greater than that amount to a plaintiff.

Question 45

Magistrates Court appellate jurisdiction

Answer 45

They do not have any as they are the lowest court on the Victorian Court Hierarchy.

Question 46

Describe when civil juries are used?

Answer 46

In civil trials there is no automatic right to a jury but rather if a jury is wanted then a party must request for one and must pay for it too. When a jury is utilised, it is never to be used in a case in the Magistrates’ Court or during appeal cases and is optional in the County Court and Supreme Court.

Question 47

What is the composition of a civil jury?

Answer 47

A civil jury consists of 6 jurors chosen at random form the Victorian electoral roll. An extra 2 jurors can be selected if the trial is expected to be lengthy although if that is the case then 2 jurors will be discharged during deliberation. This is to ensure that there are only 6 jurors determining the verdict.

Question 48

What is the role of the civil jury?

Answer 48

To consider the facts of the case
To decide who is most likely in the wrong

Question 49

To consider the facts of the case

Answer 49

the jury is to consider to facts of the case and use them to agree upon a verdict to make the most accurate decision possible.

The jury cannot do their own research or visit places relevant to the case as they must make their decision based on what is told in the courtroom rather than outside information and opinions that could potentially lead them to form a bias against a certain party.

Question 50

To decide who is most likely in the wrong

Answer 50

A civil jury’s main role in a trial, is to determine who is most likely in the wrong on the balance of probabilities.

They do this by listening to the facts of the case and deliberating in a closed room with the other 5 jurors to reach a unanimous verdict. If one cannot be reached, then a majority verdict is accepted which is when all, but one member of the jury agrees upon a verdict.

Question 51

Strengths of a civil jury

Answer 51

Jurors are independent and impartial of the legal system and political system as they are members of the community.

The jury has to deliberate based on the evidence and facts presented to the court and not on their own independent research.

Question 52

Weaknesses of a civil jury

Answer 52

Juries do not give reasons for their decisions and deliberate behind closed doors

A jury is expensive and must be paid by the party that requested the jury.

Question 53

what are remedies?

Answer 53

A remedy is a way in which a court can right the wrong and restore the plaintiff to the position they were in prior to the defendants’ actions.

Question 54

what is the purpose of remedies?

Answer 54

The purpose of remedies is to restore as much as possible to the party who has suffered loss or injury to the position they were in before the loss or injury occurred. This is usually in the form of payment through money, known as images.

Question 55

Types of remedies

Answer 55

Compensatory Damages, Nominal Damages, Exemplary Damages, Contemptuous Damages, Injunctions.

Question 56

Types of compensatory damages

Answer 56

special/specific, general, aggravated

Question 57

what are specific damages?

Answer 57

these are awarded to compensate the injured party for items that can be calculated objectively and exactly. Eg. Loss of wages

Question 58

what are general damages

Answer 58

these are awarded to compensate the plaintiff for pain and suffering. These cannot be calculated objectively because they include consideration of the extent of the plaintiffs emotional suffering and loss of enjoyment of life.

Question 59

what are aggravated damages?

Answer 59

are awarded to compensate the plaintiff further if the court believes that the defendants conduct injured the plaintiff’s feelings by causing humiliation and insult.

Question 60

Nominal damages

Answer 60

Are awarded by a court if the court believes that the defendant has infringed the rights of the plaintiff, but the plaintiff did not suffer any actual loss.

Question 61

exemplary damages

Answer 61

May be awarded if a defendant’s action was so outrageous that the court wishes to deter others from similar action and to show disapproval of the defendant’s action.

Question 62

Contempuous damages

Answer 62

A court might think that a plaintiff has a legal right to damages but does not have a moral right that is the plaintiff does not deserve to be paid charges. Instead, a small sum of damages might be awarded to show contempt for the claim that is made, while admitting the plaintiffs legal right to make the claim.

Question 63

Injunctions

Answer 63

A type of civil remedy where the court makes an order for the defendant to undertake an action or do something in an attempt to restore the plaintiff to the position they were in prior to the loss or harm they suffered.

Question 64

Background of recent civil case

Answer 64

The case of “Owners Corporation No 1 of PS613436T v LU Simon Builders Pty Ltd (Flammable cladding case)” is a negligence claim that was heard by the Victorian Civil and Administrative Tribunal (VCAT). The flammable cladding case involved a fire at the Lacrosse tower in Docklands, Melbourne on Monday the 24th of November 2014. The fire was ignited from a cigarette left in a plastic container but was then fuelled by the buildings flammable cladding which resulted in significant damages.

Question 65

central facts of the case

Answer 65

There were a total of 211 applicants (plaintiffs) 3 of which were corporation owners that managed common parts of the Lacrosse tower and 209 who were owners of individual apartments.

The 8 responders (defenders) in this case were:
- the builder: LU Simon Pty Ltd
- The building surveyor and its employee: Gardner Group Pty Ltd
- The architect: Elenberg Fraser Pty Ltd
- The fire engineer: Taner Merah Pty Ltd, trading as Thomas Nicolas
- The owner of the apartment 805 (Gyeyoung Kim) and the resident of the apartment (Jean- Francois Gubitta)
- The superintendent

The applicants issued a claim with VCAT seeking current as well as future losses exceeding $12 million. This case revolved

Question 66

dispute resolution bodies used

Answer 66

The applicants issued their claim with VCAT as their case was regarding building and property matters. Bodies such as Consumer Affairs Victoria and the Victorian Ombudsman do not have said jurisdiction and therefore, cannot hear and determine this class action.

This hearing was heard by Judge Woodward, who is a County Court Judge and is also one of the vice-presidents of VCAT.

Question 67

methods of dispute resolution bodies

Answer 67

It is unknown as to whether the party’s attempted to resolve their dispute through mediation, or any other form of dispute resolution before the VCAT hearing.

Question 68

appropriateness of dispute resolution body used

Answer 68

+ of tribunals
They are often specialised in particular industries, increasing fairness in the process.
Whoever is assisting the parties is independent and impartial.
Lower cost than taking a dispute to court

• of tribunals
  Do not usually deal with large, complex disputes.
  Cannot create binding precedents so there may be inconsistency with the resolutions.
  Some of the services are not free of charge.

Question 69

Remedies that could be or were awarded

Answer 69

Judge Woodward could only assess and quantify a total of $5,748,233.28 as the parties could not agree upon the total amount of compliance costs. The applicants were compensated through the remedy of specific damages,

Question 70

appropriateness of remedies that could be or were awarded

Answer 70

+
Is able to compensate and return the plaintiff to the same financial position as before as much as possible.
-
Does not take into account the emotional damage suffered by the plaintiff into the total

Question 71

Possible avenues for appeal

Answer 71

Since one of the vice-presidents of VCAT heard and determined this dispute any appeal made by the parties must be made to the Supreme Court of Appeal.

Question 72

the extent of fairness was achieved case study

Answer 72

+
Third party (Judge Woodward) acted as an impartial and without bias
-
Took around 3 years to reach a decision (time to form a bias)

Question 73

the extent of equality was achieved case study

Answer 73

+
Had adequate legal representation- ensuring fair hearings.
-
The right to appeal- can’t if it it’s about questions of the law.

Question 74

the extent to access was achieved case study

Answer 74

+
Mediation was available for the parties if they wanted to use this.
increases their access to justice as it provides the parties with an alternative method of resolving the dispute other than a hearing.

-
Not all parties from the apartment complex went to tribunal- if they couldn’t afford legal representation, they can’t pursue their case.

Question 75

Determining liability- courts role

Answer 75

If a plaintiff sues a defendant its the courts responsibility to determine whether the defendant is liable and to what extent.

They determine whether the defendant is liable on the balance of probabilities (standard of proof )

They do this by
- Providing expertise
- Managing the case
- Hearing appeals

Question 76

court role- deciding on a remedy

Answer 76

If the plaintiff establishes that the defendant is liable the court has to determine the remedy.
They do this by assessing the damages and calculating the amount that needs to be paid to the successful party.

Question 77

types of injunctions

Answer 77

Restrictive injunction
Mandatory injunction

Question 78

Restrictive injunction

Answer 78

This stops someone from doing something.

Question 79

Mandatory injunction

Answer 79

is sought when a person wishes to compel someone to do a particular act.