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legal studies year 11 > UNIT 2 AOS 3 remedies > Flashcards

UNIT 2 AOS 3 remedies Flashcards

1
Q

civil law

A

Area of law that defines the rights and responsibilities of individuals, groups, and organisations in society and regulates private disputes.

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2
Q

damages

A

an amount of money that on party is order to pay another party for loss or harm suffered - most common remedy

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3
Q

jurisdiction

A

the lawful authority (or power) of a court, tribunal or other dispute resolution body to decide legal case.

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4
Q

court hierarchy

A

the ranking of courts from lowest to highest according to seriousness or the complexity of the matter they are dealing with.

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5
Q

balance of probabilities

A

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.

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6
Q

standard of proof

A

the degree or extent to which a case must be proved in court.

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7
Q

counterclaim

A

a seperate claim made by the defendant in response to the plaintiffs claim. (heard at the same time)

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8
Q

case management

A

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.

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9
Q

order

A

Court orders are the way the decisions or judgments of judicial officers are described.

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10
Q

directions

A

instructions given by the court or tribunal to the parties about time limits and the way the civil proceeding is to be conducted.

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11
Q

appeal

A

an application to have a higher court review a ruling.

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12
Q

original jurisdiction

A

the power of a court to hear a case for the first time.

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13
Q

appellate jurisdiction

A

the power of a court to hear a case for the second time.

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14
Q

fairness

A

all people can participate in the justice system and its processes should be impartial and open.

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15
Q

equality

A

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.

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16
Q

access

A

all people should be able to engage with the justice system and its processes on an informed basis

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17
Q

remedy

A

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.

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18
Q

mediation

A

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.

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19
Q

terms of settlement

A

a document that sets out the terms on which the parties agree to resolve their dispute

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20
Q

conciliation

A

a method of dispute resolution that uses an independent third party (i.e. a conciliator) to help the disputing parties reach a resolution

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21
Q

compulsory conference

A

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

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22
Q

arbitration

A

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.

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23
Q

jurisdiction

A

the lawful authority (or power) of a court, tribunal or other dispute resolution body to decide legal cases

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24
Q

balance of probabilities

A

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

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25
Q

the role of victorian courts

A

-determining liability
-deciding on the remedy

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26
Q

unanimous verdict

A

all jurors agree

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27
Q

majority verdict

A

agreed by all jurors but one.

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28
Q

role of the jury

A

to consider the facts of the case and decide who is most likely in the wrong (liable.)

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29
Q

advantages/strengths of mediation and conciliation

A

-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.

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30
Q

weaknesses/disadvantages of mediation or conciliation

A

-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.

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31
Q

strengths/advantages of arbitration

A

-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.

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32
Q

weaknesses/disadvantages of arbitration

A

-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.

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33
Q

what is the role of the tribunal VCAT

A

to provide Victorians with a low-cost, accessible, efficient and independent tribunal delivering high quality dispute resolution processes

34
Q

how does VCAT achieve its purpose

A

-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

35
Q

what is an ombudsman

A

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

36
Q

what is the role of ombudsman

A

Provide individuals with independent, timely and accessible dispute resolution services in particular industries

37
Q

explain how ombudsman resolve disputes

A

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

38
Q

how does ombudsman uphold fairness

A

procedural fairness by giving parties an opportunity to respond to a complaint, and by giving reasons for any decision that is made
-impartial

39
Q

what is an example of an ombudsman

A

Investigates and resolves complaints about Victorian public transport operators (PTO)

40
Q

how does public transport ombudsman operate in a fair, reasonable, just, informal and expeditious manner

A

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

41
Q

what’s the role of complaint bodies

A

Deal with complaints about the provision of goods and services, or decisions made by certain bodies or authorities

42
Q

how do complaint bodies uphold the poj access

A

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

43
Q

what are the two roles of the victorian court

A

Determining the liability of a party
Deciding on a remedy (if required)

44
Q

fairness

A

all people can participate in the justice system and its processes should be impartial and open

45
Q

equality

A

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

46
Q

access

A

all people should be able to engage with the justice system and its processes on an informed basis.

47
Q

examples of how courts achieve equality

A

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

48
Q

define tribunals

A

Tribunals are dispute resolution bodies which obtain their power from parliament to resolve certain types of disputes

49
Q

purpose of tribunals

A

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

50
Q

what is an example of a complaint body

A

The Victorian Equal Opportunity and Human Rights Commission (VEOHRC)

51
Q

what doesThe Victorian Equal Opportunity and Human Rights Commission (VEOHRC) do

A

Helps people resolve complaints about discrimination, sexual harassment, victimisation and vilification
-form of conciliation

52
Q

2 strengths of tribunals, ombudsman, complaints bodies

A

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

53
Q

2 weaknesses of tribunals, ombudsman, complaints bodies

A

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

54
Q

The role of the Victorian courts in resolving disputes can generally be described as having two separate features:

A

Determining the liability of a party
Deciding on a remedy (if required)

55
Q

explain the role of the court Determine Liability

A

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,

56
Q

As part of the court’s role in determining liability, it will:

A

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

57
Q

explain the role of the court Decide on the remedy

A

If a defendant is found liable (or the plaintiff in a counterclaim), it is the role of the court to decide on a remedy

58
Q

what are the two types of civil jurisdictions of the Victorian courts

A

Original jurisdiction (when a court is hearing a dispute for the first time)
Appellate jurisdiction (when a court is hearing an appeal)

59
Q

in appeals of a civil case are there jury ?

A

no

60
Q

how many juries are in a civil jury in the county and supreme courts

A

6

61
Q

what are the rules about who can and can not sit on a jury panel in Victoria:

A

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

62
Q

what is the role of the civil jury

A

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

63
Q

juries relation to poj

A

The jury system seeks to uphold equality and impartiality
Ensuring jury members have no knowledge of a party or witness and no bias
(fairness)

64
Q

2 strengths of civil jury

A

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

65
Q

2 weaknesses of civil jury

A

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.

66
Q

The difficulties faced by some First Nations people in the civil justice system can include:

A

Distrust in the justice system
Language differences
Cultural differences

67
Q

indigenous distrust in the justice system relation to poj

A

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&raquo_space; resulting in problems remaining unsolved, without a remedy
thereby limiting access and fairness (participation)

68
Q

First Nations peoples language difference affect poj

A

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)

69
Q

First Nations peoples cultural differences affect poj

A

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

70
Q

purpose of remedies

A

To restore the injured party to the position they were in before the wrong occurred, as much as possible

71
Q

purpose of damages and injunctions

A

To make the point that the defendant’s conduct is not acceptable

72
Q

purpose of restrictive injunctions

A

To stop/prevent the harm from happening any further

73
Q

purpose of mandatory injunctions

A

To force someone to do something that they are refusing to do

74
Q

purpose of damages

A

To restore the injured party to the financial position they were in before the wrong occurred, as much as possible

75
Q

what are examples of compensatory damages

A
  • specific damages
    -general damages
    -aggravated damages
76
Q

define specific damages

A

– awarded to compensate the injured party for items that can be calculated objectively and exactly

77
Q

define general damages

A

-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.

78
Q

define aggravated damages

A

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

79
Q

define nominal damages

A

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

80
Q

what are exemplary damages

A

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

81
Q

define contemptuous damages

A

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

legal studies year 11 (7 decks)

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