UNIT 2 AOS 3 remedies Flashcards
civil law
Area of law that defines the rights and responsibilities of individuals, groups, and organisations in society and regulates private disputes.
damages
an amount of money that on party is order to pay another party for loss or harm suffered - most common remedy
jurisdiction
the lawful authority (or power) of a court, tribunal or other dispute resolution body to decide legal case.
court hierarchy
the ranking of courts from lowest to highest according to seriousness or the complexity of the matter they are dealing with.
balance of probabilities
the standard of proof in civil disputes. this requires the plaintiff to establish that it is more probable (likely) than not that their claim is true.
standard of proof
the degree or extent to which a case must be proved in court.
counterclaim
a seperate claim made by the defendant in response to the plaintiffs claim. (heard at the same time)
case management
a method used by courts and tribunals to control the progress of legal cases more efficiently and effectively. case management generally involves the person presiding over the case making orders and directions in the proceedings.
order
Court orders are the way the decisions or judgments of judicial officers are described.
directions
instructions given by the court or tribunal to the parties about time limits and the way the civil proceeding is to be conducted.
appeal
an application to have a higher court review a ruling.
original jurisdiction
the power of a court to hear a case for the first time.
appellate jurisdiction
the power of a court to hear a case for the second time.
fairness
all people can participate in the justice system and its processes should be impartial and open.
equality
all people should be treated in the same way, but if the seem treatment creates disparity or disadvantage, adequate measures should be implemented to ensure that all people can engage with the justice system without disparity and disadvantage.
access
all people should be able to engage with the justice system and its processes on an informed basis
remedy
any order made by a court designed to address a civil wrong or breach. a remedy should provide a legal solution for the plaintiff for the breach of civil law by the defendant.
mediation
a method of dispute resolution that uses an independent third party (the mediator) to help the disputing parties reach a resolution.
- final decision in mediation is legally enforceable if a terms of settlement is signed.
terms of settlement
a document that sets out the terms on which the parties agree to resolve their dispute
conciliation
a method of dispute resolution that uses an independent third party (i.e. a conciliator) to help the disputing parties reach a resolution
compulsory conference
a confidential meeting between the parties involved in a dispute in the presence of an independent third party to discuss ways to resolve their differences and explore possible resolutions
arbitration
a method of dispute resolution in which an independent person (an arbitrator) is appointed to listen to both sides of a dispute and make a decision that is legally binding on the parties. The decision is known as an arbitral award.
jurisdiction
the lawful authority (or power) of a court, tribunal or other dispute resolution body to decide legal cases
balance of probabilities
the standard of proof in civil disputes. This requires the plaintiff to establish that it is more probable i.e. likely than not that their claim is true
the role of victorian courts
-determining liability
-deciding on the remedy
unanimous verdict
all jurors agree
majority verdict
agreed by all jurors but one.
role of the jury
to consider the facts of the case and decide who is most likely in the wrong (liable.)
advantages/strengths of mediation and conciliation
-a decision made by both parties during mediation or conciliation is more likely to be acceptable to the parties, as they have to reach the decision themselves rather than It being imposed on them by a third party.
-mediation and conciliation save time and money. This is because they avoid the need for the dispute to be determined at a final hearing or trial, which can cost a lot of money.
weaknesses/disadvantages of mediation or conciliation
-unless parties enter a terms of settlement, decisions reached during mediation or conciliation are not legally binding on the parrots or enforceable
-both parties must be willing to corporate in mediation or conciliation for it to be successful; if one or both parties are unwilling to participate, it will be a waste of time and money.
strengths/advantages of arbitration
-the arbital award is legally binding, ensuring that parties are likely to follow it
-arbitrators have expertise in the subject matter of the dispute and will use expertise when making a binding decision.
weaknesses/disadvantages of arbitration
-it can take longer for a decision to be reached, if parties go through several stages such as producing evidence.
-arbitration is not always available to parties in dispute; it is generally only available where the parties have both agreed on arbitration, or the claim is under $10,000 in the magistrates court.
what is the role of the tribunal VCAT
to provide Victorians with a low-cost, accessible, efficient and independent tribunal delivering high quality dispute resolution processes
how does VCAT achieve its purpose
-Charging low fees for a person to file their claim and have the case heard, and by disallowing legal representation except in certain circumstances
-Having a variety of locations in Victoria (including rural areas)
-Aiming to have cases heard within weeks of the application being filed
what is an ombudsman
An ombudsman is an official appointed by the government to investigate complaints made by individuals against certain bodies or institutions
what is the role of ombudsman
Provide individuals with independent, timely and accessible dispute resolution services in particular industries
explain how ombudsman resolve disputes
An ombudsman will first try and resolve the dispute by working with the parties
Where an agreement cannot be reached, the ombudsman may have the power to make a binding decision on the parties
how does ombudsman uphold fairness
procedural fairness by giving parties an opportunity to respond to a complaint, and by giving reasons for any decision that is made
-impartial
what is an example of an ombudsman
Investigates and resolves complaints about Victorian public transport operators (PTO)
how does public transport ombudsman operate in a fair, reasonable, just, informal and expeditious manner
Independent and unbiased
Has the power to gather documents from the parties so it can make a fair decision
Aims to conduct itself in an informal way
Can require the complainant (person making the complaint) and the public transport operator to attend conciliation
If the parties cannot reach an agreement through conciliation, the PTO has the power to make a determination
what’s the role of complaint bodies
Deal with complaints about the provision of goods and services, or decisions made by certain bodies or authorities
how do complaint bodies uphold the poj access
Intended to provide a free complaints and dispute resolution service so that ordinary Australians have access to dispute resolution services without any cost to them
what are the two roles of the victorian court
Determining the liability of a party
Deciding on a remedy (if required)
fairness
all people can participate in the justice system and its processes should be impartial and open
equality
all people engaging with the justice system and its processes should be treated in the same way; if the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow all to engage with the justice system without disparity or disadvantage
access
all people should be able to engage with the justice system and its processes on an informed basis.
examples of how courts achieve equality
People who do not understand English: interpreter or the judge/Magistrate may simplify their language
Young people: simplifying the court’s language and providing flexibility
People with religious or cultural differences: changing the religious text for how they swear on ‘oath’
People who do not have a lawyer: the court may need to speak more slowly or in an ordinary tone, the judge/Magistrate may need
define tribunals
Tribunals are dispute resolution bodies which obtain their power from parliament to resolve certain types of disputes
purpose of tribunals
to provide individuals with a low-cost, efficient and speedy method of dispute
what is an example of a complaint body
The Victorian Equal Opportunity and Human Rights Commission (VEOHRC)
what doesThe Victorian Equal Opportunity and Human Rights Commission (VEOHRC) do
Helps people resolve complaints about discrimination, sexual harassment, victimisation and vilification
-form of conciliation
2 strengths of tribunals, ombudsman, complaints bodies
The services are freely available, which increases the accessibility of the services.
This accessibility is enhanced by most of the bodies having websites, information online about the application process, and telephone and online services
All of the dispute resolution bodies ensure that whoever Is assisting the parties Is independent and impartial
2 weaknesses of tribunals, ombudsman, complaints bodies
An ombudsman or a complaints body has limited power to make binding decisions. In some instances the individual may choose not to follow the decision, thus meaning there is no certainty as to whether the dispute has been finally resolved
Ombudsmen and complaints bodies, in particular, are specialised in particular areas or industries. This means that for certain types of complaints, there is no option but to issue a claim in a court
The role of the Victorian courts in resolving disputes can generally be described as having two separate features:
Determining the liability of a party
Deciding on a remedy (if required)
explain the role of the court Determine Liability
If a plaintiff sues a defendant in court, then it is the role of the courts to determine whether the defendant is liable, and to what extent. will determine whether the plaintiff, on the balance of probabilities,
As part of the court’s role in determining liability, it will:
Provide specialisation and expertise in the type of dispute it is hearing (e.g. the Supreme Court deals with large commercial disputes)
-manage the case
explain the role of the court Decide on the remedy
If a defendant is found liable (or the plaintiff in a counterclaim), it is the role of the court to decide on a remedy
what are the two types of civil jurisdictions of the Victorian courts
Original jurisdiction (when a court is hearing a dispute for the first time)
Appellate jurisdiction (when a court is hearing an appeal)
in appeals of a civil case are there jury ?
no
how many juries are in a civil jury in the county and supreme courts
6
what are the rules about who can and can not sit on a jury panel in Victoria:
Disqualified: can not serve on a jury because of something they have done. e.g. sentenced to a term of imprisonment of 3 or more years
Ineligible: can not serve because of a particular characteristic or occupation. E.g. lawyers, judges, police officers, MPs, people who can not speak English, physical/intellectual disability preventing them from jury service
Excused: can not serve because of circumstances that make it difficult for them. e.g. poor health, live more than 50km from court
what is the role of the civil jury
To consider the facts of the case and decide who is most likely in the wrong (LIABLE)
Their decision is made on the balance of probabilities
juries relation to poj
The jury system seeks to uphold equality and impartiality
Ensuring jury members have no knowledge of a party or witness and no bias
(fairness)
2 strengths of civil jury
Jurors are independent and impartial; in particular they are independent of the legal and political
systems, thus helping to ensure equality and
fairness in their decision
The jury system allows the community to be involved
in the legal system and in the administration of justice.
This increases the community’s confidence in the
legal system
2 weaknesses of civil jury
jurors may have biases that may play a role in their deliberations, even if they are not aware of those biases.
juries do not give reasons for their deliberations occur behind closed doors, which can raise questions about whether they have understood the evidence, or have made their decision based on bias or prejudice.
The difficulties faced by some First Nations people in the civil justice system can include:
Distrust in the justice system
Language differences
Cultural differences
indigenous distrust in the justice system relation to poj
Some First Nations’ experiences are due to racism and discrimination caused by British colonisation, being subjected to policies for the compulsory removal of First Nations children from their families (the Stolen Generations), and dispossession of land and culture
Thus, some First Nations people do not view the courts or tribunals as a safe place to resolve their problems and do not want contact with the justice system»_space; resulting in problems remaining unsolved, without a remedy
thereby limiting access and fairness (participation)
First Nations peoples language difference affect poj
Some First Nations people do not speak English as their first language. They may use either Aboriginal English or an Aboriginal language.
(referring to their Elders or older people they respect as ‘Aunty’ or ‘Uncle’ )
There is sometimes limited access to adequately trained interpreters. ->access (informed basis)
First Nations peoples cultural differences affect poj
If cultural differences are not understood in the civil justice system, First Nations people may feel misunderstood, uncomfortable, resentful, scared or intimidated. This may discourage First Nations people from accessing the civil justice system, or may result in a difficult and negative experience for them if they do.
The courts and tribunals provide their personnel with ongoing cultural competence training, informed and led by First Nations people, to ensure that First Nations people can engage with the system. Courts and VCAT are demonstrating a commitment to inclusivity.
increasing equality
purpose of remedies
To restore the injured party to the position they were in before the wrong occurred, as much as possible
purpose of damages and injunctions
To make the point that the defendant’s conduct is not acceptable
purpose of restrictive injunctions
To stop/prevent the harm from happening any further
purpose of mandatory injunctions
To force someone to do something that they are refusing to do
purpose of damages
To restore the injured party to the financial position they were in before the wrong occurred, as much as possible
what are examples of compensatory damages
- specific damages
-general damages
-aggravated damages
define specific damages
– awarded to compensate the injured party for items that can be calculated objectively and exactly
define general damages
-awarded to compensate the plaintiff for pain and suffering. Cannot be calculated objectively because they include consideration of the extent of the plaintiff’s emotional suffering and loss of enjoyment of life.
define aggravated damages
awarded to compensate the plaintiff further if the court believes that the defendant’s conduct injured the plaintiff’s feelings by causing humiliation and insult
define nominal damages
Awarded by a court if it believes that the defendant has infringed the rights of the plaintiff, but the plaintiff did not suffer any actual loss
what are exemplary damages
seeking to punish the defendant
May be awarded if the defendant’s action was so negligent that the court wishes to deter others from similar action and to show disapproval of the defendant’s action
define contemptuous damages
A court might feel that the plaintiff has a legal right to damages, but does not have a moral right as they did not really deserve to be paid damages
-a small sum of damages might be awarded to show contempt for the claim that is made, while admitting the plaintiff’s right to make the claim
