Unit 2 AOS 2 - remedies

Question 1

What are the three principles of justice?

Answer 1

• fairness
• equality
• access

Question 2

Explain the principle of fairness?

Answer 2

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

Question 3

Explain the principle of equality?

Answer 3

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

Question 4

Explain the principle of access?

Answer 4

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.

Question 5

What are alternative methods of civil dispute resolution?

Answer 5

• mediation
• conciliation
• arbitration

Question 6

Explain mediation

Answer 6

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

Question 7

Explain conciliation

Answer 7

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

Question 8

Explain arbitration

Answer 8

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.

Question 9

What are two strengths to mediation and conciliation?

Answer 9

• 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

Question 10

What are two weaknesses to mediation and conciliation?

Answer 10

• 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

Question 11

What are two strengths of arbitration?

Answer 11

• decisions are binding on all parties ensuring certainty that the parties are required to follow it
• more informal than court which alleviates stress

Question 12

What are two weaknesses of arbitration?

Answer 12

• 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

Question 13

What are other institutions that resolve civil disputes?

Answer 13

• tribunals
• ombudsmen
• complaint bodies

Question 14

What are tribunals?

Answer 14

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.

Question 15

What is a tribunal in Australia?

Answer 15

• Victorian Civil and Administrative Tribunal (VCAT)

Question 16

What is the ombudsmen

Answer 16

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.

Question 17

What is the jurisdiction of magistrates court?

Answer 17

ORIGINAL
- to hear civil disputes up to $100000. With amounts less being heard by arbitration in the magistrate’s court.
APPELLATE
- No appellate jurisdiction

Question 18

What is the jurisdiction of the county court?

Answer 18

ORIGINAL
- to hear cases of unlimited amounts.
APPELLATE
- no appellate jurisdiction

Question 19

What is the jurisdiction of the supreme court trial division?

Answer 19

ORIGINAL
- unlimited original jurisdiction.
APPELLATE
- appeals from magistrate court and questions of law

Question 20

What is the jurisdiction of the supreme court of appeal

Answer 20

ORIGINAL
- no original jurisdiction
APPELLATE
- hears appeals from county court and supreme court trial division

Question 21

What is the role of the courts in civil disputes?

Answer 21

The role of courts in civil disputes is to determine the liability of a party, and decide the remedy if required

Question 22

When is a jury used in a civil case?

Answer 22

• 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.

Question 23

What is the role of the jury in a civil trial?

Answer 23

• 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.

Question 24

What are two strengths of the civil jury?

Answer 24

• 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

Question 25

What are two weaknesses of the civil jury?

Answer 25

• jurors do not give reasons for their decision, and deliberations occur behind closed doors. Some may question the fairness of the decision that has been made
• the task is difficult, particularly where there is complicated evidence or a significant amount of evidence

Question 26

Explain the purpose of remedies

Answer 26

The main purpose of a civil remedy is to return the plaintiff to their original position prior to the civil wrong.

Question 27

What are the two main types of remedies?

Answer 27

• damages

- injunctions

Question 28

What are the four types of damages?

Answer 28

• compensatory (specific, general and aggravated)
• nomial
• exemplary
• contemptuous

Question 29

What are compensatory damages?

Answer 29

are the most common type of damages awards and include

Question 30

What are special/ specific damages?

Answer 30

A type of compensatory damages which can be easily calculated, for example, medical bills or loss of income

Question 31

What are general damages?

Answer 31

A type of compensatory damages which are difficult to calculate and include loss of enjoyment of life, and pain and suffering. These type of damages will be calculated by the impact the loss has had on the plaintiff’s lifestyle

Question 32

What are aggravated damages?

Answer 32

A type of compensatory damages awarded where the plaintiff has suffered humiliation as a result of the defendant’s actions

Question 33

What are nomial damages?

Answer 33

Are awarded where the plaintiff has suffered no real loss or injury and are usually small in amounts

Question 34

What are exemplary damages?

Answer 34

Are awarded where the court wants to punish the actions of the defendant and are usually large amounts

Question 35

What are contemptuous damages?

Answer 35

Are awarded where the plaintiff may have had a valid claim but the court is not sympathetic

Question 36

What are injunctions?

Answer 36

Are a court order which either compels a party to do something (mandatory injuntion) or prevents a party from doing something (restrictive injuction)