Unit 2 AOS 2 - remedies Flashcards
What are the three principles of justice?
- fairness
- equality
- access
Explain the principle of fairness?
Means having fair legal processes and hearing. That is, laws should be reasonable and processes should ensure that people have the opportunity to present their case and challenge or question the other party’s case
Explain the principle of equality?
Means that people should be equal before the law and have the same opportunity to present their case as anyone else, without advantage or disadvantage
Explain the principle of access?
Access means that all people should be able to understand their legal right and have the opportunity to use institutions, processes and systems that are used for criminal cases.
What are alternative methods of civil dispute resolution?
- mediation
- conciliation
- arbitration
Explain mediation
A means of dispute resolution in civil matters that involves the two parties coming before an independent third party known as the mediator. The role of the mediator is to facilitate discussion between the parties. The mediator does not enter into the discussion. Mediation is not legally binding unless the parties sign a settlement
Explain conciliation
Is where two disputing parties come before an independent third party known as the conciliator. The conciliator listens to both parties and can make suggestions as a resolution to the dispute. Conciliation is not legally binding unless the parties sign an agreement
Explain arbitration
Is where the disputing parties come before an independent third party known as an arbitrator. The arbitrator listens to both sides and makes a decision that is legally binding on the parties.
What are two strengths to mediation and conciliation?
- the decision is more likely to be acceptable to both parties as they reached the decision themselves
- held in a more informal atmosphere which alleviates stress
What are two weaknesses to mediation and conciliation?
- if one or both parties are unwilling to cooperate it will be a waste of time and money
- unless the parties enter into terms of settlement decisions reached are not binding on the parties
What are two strengths of arbitration?
- decisions are binding on all parties ensuring certainty that the parties are required to follow it
- more informal than court which alleviates stress
What are two weaknesses of arbitration?
- it is more expensive than mediation and conciliation because evidence is often gathered and put before the arbitrator, and legal representation is normally used
- it can take a long time for a decision to be reached if the parties go through several stages such as presenting evidence
What are other institutions that resolve civil disputes?
- tribunals
- ombudsmen
- complaint bodies
What are tribunals?
Tribunals are bodies given power by parliament to resolve certain types of disputes. Parliament will pass a statute giving a particular tribunal the authority to hear and determine certain types of matters and applications. The purpose of tribunals are the provide individuals with a low cost, efficient and speedy method of dispute resolution.
What is a tribunal in Australia?
- Victorian Civil and Administrative Tribunal (VCAT)
What is the ombudsmen
An ombudsman is an official appointed by the government to investigate complaints made by individuals against certain bodies and institutions. The ombudsmen obtain power to hear and determine complaints through parliament.
What is the jurisdiction of magistrates court?
ORIGINAL
- to hear civil disputes up to $100000. With amounts less being heard by arbitration in the magistrate’s court.
APPELLATE
- No appellate jurisdiction
What is the jurisdiction of the county court?
ORIGINAL
- to hear cases of unlimited amounts.
APPELLATE
- no appellate jurisdiction
What is the jurisdiction of the supreme court trial division?
ORIGINAL
- unlimited original jurisdiction.
APPELLATE
- appeals from magistrate court and questions of law
What is the jurisdiction of the supreme court of appeal
ORIGINAL
- no original jurisdiction
APPELLATE
- hears appeals from county court and supreme court trial division
What is the role of the courts in civil disputes?
The role of courts in civil disputes is to determine the liability of a party, and decide the remedy if required
When is a jury used in a civil case?
- A jury is only used at the request of either the plaintiff or defendant.
- No jury is used in the magistrate’s court or when a case is being heard on appeal.
- A jury of 6 may be used on request in the county and supreme court.
What is the role of the jury in a civil trial?
- listen to the evidence presented
- weigh up the evidence
- apply the law as explained by the judge
- take part in deliberation and come to a decision based on the balance of probabilities
- decide on the remedy in all cases other than defamation cases.
What are two strengths of the civil jury?
- jurors are independent and impartial and independent of the legal system thus ensuring equality and fairness in their decision
- allows for the community to be involved, increasing the `confidence of the community about the system, and ensures that the verdict reflect societies values
