Unit 2 AOS 2 Flashcards
Parties in a civil case
- plaintiff: the person who commences a civil action
- defendant: the person who is being sued
types of civil law
- defamation
- contract law
- negligence
- trespass
- nuisance laws
- wills and inheritance laws
- equal opportunity and discrimination
mediation
a method of dispute resolution, using an independent third party (mediator) to help the disputing parties reach a resolution
- is trained
- no legal knowledge
- does not offer legal advice
- does not make the decision
- parties may reach terms of settlement
available to parties in the following ways:
- parties can organise a private mediation
- parties in a court case or tribunal can be referred to mediation by a court before a final trial or hearing
strengths of mediation & conciliation
- a decision made by the parties is more likely to be acceptable to the parties, as they have reached the decision themselves
- more informal than a courtroom
- less intimidating
- more flexibility
- conciliator has specialised knowledge
- more affordable than a court case
weaknesses of mediation
- participation and willingness of the parties is required to be successful
- decisions are not binding
- mediator has no power to order the parties to come to a decision
- not appropriate for some disputes
- mediator is not able to give advice or offer suggestions
role of victorian courts in civil cases
- judge or magistrate will hear the facts and evidence of the case and determine liability on the balance of probabilities
- decide on a remedy
jurisdiction of victorian courts
original: the power of a court to hear a case for the first time
appellate: the power of a court to hear a case on appeal
- magistrates:
original - claims up to $100000
appellate - N/A
- county:
original - unlimited
appellate - NA, unless given under a specific act
- supreme court (trial division):
original - unlimited
appellate - appeals on a question of law from magistrates and VCAT
- supreme court (court of appeal)
Original - N/A
appellate - appeals from county, supreme or VCAT when constituted by president
juries in civil trials
- no jury in magistrate’s court and in appeal cases
- in county and supreme court, a jury is optional- must request
- civil jury trials are rare, because of the fees involved (sometimes used in defamation cases)
- 6 jurors
role of civil jury
to consider the facts of the case and decide who is most likely in the wrong
- decision made on the balance of probabilities
- majority verdict if unanimous decision is not achieved
strengths of the jury system
- jurors are independent and impartial
- allows community to be involved in the process
- ensures fairness by requiring the jury to deliberate based on evidence and facts
- spreads the responsibility, making the decision more likely to be fair
- reflects community values
weaknesses of the jury system
- jurors dont give reasons for their decisions
- task is difficult
- jurors may be unduly influenced by lawyers or emotional elements
- may have biases
- expensive
- inconsistent
purposes of civil remedies
- to restore the party who has suffered loss or injury to the position they were in before it occurred
- usually damages (money)
- two types of remedies: damages and injunctions
types of damages
- compensatory damages –> general, specific or aggravated
- nominal damages
- exemplary damages
- contemptuous damages
compensatory damages
Aims to restore the plaintiff to the position they were in before the wrong occurred
- special or specific: for things that can be calculated objectively
- general: compensate the plaintiff for pain and suffering
- aggravated: compensate the plaintiff further if the court believes the defendant caused humiliation & suffering
nominal damages
awarded if the court believes the defendant has infringed the rights of the plaintiff, but plaintiff did not suffer loss
exemplary damages
punish the defendant, the court wishes to deter other people from similar actions.
contemptuous damages
the plaintiff has a legal right to damages, but not a moral right. does not deserve to be paid the damages
effectiveness of damages
effectiveness of damages in achieving their purposes depends on factors such as:
- the type of loss that has been suffered
- has the plaintiff suffered significant injury or irreparable damage
- has there been loss of life
- injuries suffered following the award of damages
- is there another remedy that is better for plaintiff
extent to which civil law achieves principles of justice
fairness -
- both parties are given the opportunity to present their case/ rebuttal
- laws are properly applied
- timely resolution, delays in the case can result in unfairness
equality -
- judge/ jury required to act impartially and without bias
- plaintiff and defendant both have legal representation
- right to appeal
access -
- civil cases can be costly, some people may not be able to afford the costs and cannot pursue their case or be out of pocket –> reduces access
- right to appeal, access to higher courts
- use of mediation can increase access to justice by providing parties with an alternative method or resolution
ombudsmen
An ombudsman is an offical appointed by the government to investigate complaints made by individuals against certain bodies or institutions
- obtains the power to hear and determine complaints through parliament (parliament grants the ombudsman powers by passing a statute
- role is to provide individuals and small businesses with an independent, timely , and accessible dispute resolution service to resolve disputes relating to certain agencies and industries
Difficulties faced by people in RRR areas
Lack of access to:
- legal services
- technology
- courts
Addressing difficulties of people in RRR areas
- RRR law website
- VCAT offers hearings and mediation online
- some courts have been upgraded to ensure greater access to justice
Grounds for appeal
Under what circumstances can a party appeal a decision
- questions of law
- questions of fact
- amount of damages awarded
Strengths and weaknesses of ombudsman
Strengths
- saves money
- less formal
- whoever is assisting the parties is independent and impartial
Weaknesses
- limited power to make binding decisions
- not appropriate for some cases ( when there is a large sum of money involved )
- specialised in certain areas of industries, meaning that some industries dont have the option to got to the ombudsman
Negligence
Negligence occurs when a person owes a duty of care to another person, and breaches that duty of care to the person, causing injury loss or harm
