unit 2 aos2 Flashcards
remedy
any order made by a court (or a tribunal) designed to address a civil wrong or a breach. A remedy should provide a legal solution for the plaintiff for a breach of the civil law by the defendant
magistrates court jurisdictions
original jurisdiction - claims up to $100,000. appellate jurisdiction - none
county court jurisdictions
original jurisdiction - unlimited, paries can choose to have a jury or not. appellate jurisdiction - none unless given a specific act of parliament
supreme court (trial division) jurisdictions
original jurisdiction - unlimited, apellate jurisdiction - can hear cases from magistrate’s court
supreme court (court of appeal) jurisdictions
original jurisdiction - none, appellate jurisdiction - appeals from supreme trial and country court
when is a jury used in a civil trial?
when it is requested by one of the parties except in a magistrate’s court. it is rare because of the high fees involved
composition of a civil jury
there are six jurors and selection is random. parties can have some control of the jury as they can challeneg them
role of a civil jury
is to consider the facts of a case and to decide who is most likely in the wrong. a civil jury can decide on the damages except in defamation cases
3 strengths of the jury
independent, democratic, both parties could request a jury
3 disadvantages of a jury
potential for unknown bias, expensive, takes a long time
what are the 3 dispute resolution methods?
mediation, concilliation, arbitration
alternative dispute resolution methods
ways of resolving or settling civil disputes without having a court or tribunal hearing
mediation
A joint problem-solving process in which the parties sit down and discuss the issues they disagree on, present their side of the case, and try to reach an agreement through negotiation. The parties do this with the help of a mediator, who is neutral and impartial.
mediator
an independent third party who does not interfere or persuade but helps the parties in a mediation as they try to reach a settlement of the matter
3 advantages to mediation
discussions during mediation are normally ‘without prejudice’, if they resolve the case, they normally enter into a legally binding contract known as terms of settlement, it is private
terms of settlement
a document that sets out the terms on which the parties agree to resolve their dispute
Concilliation
a method of dispute resolution that uses an independent third party to help the disputing parties reach a resolution. Same as mediation but the role of the third party is different.
conciliator
the independent third party who helps the parties reach an agreement that ends the dispute. The conciliator can make suggestions and offer advice to assist in finding a mutually acceptable resolution, but the parties reach the decision themselves which is not binding but they can enter a terms of settlement
3 advantages to conciliation
both parties are more likely to agree, held in a less formal setting which can help alleviate stress, saves time and money
arbitration
a method of dispute resolution in which an independent person (an arbitrator) is appointed to listen to both sides of a dispute and to make a decision that is legally binding on the parties. The decision is known as an arbitral award
arbitrator
the independent third party appointed to settle a dispute during arbitration. Arbitrators have specialised expertise in particular kinds of disputes and make decisions that are legally binding. The decision is known as an arbitral award
arbitral award
a legally binding decision made in arbitration by an arbitrator
3 advantages to arbitration
the arbitrator will have expertise in the subject, it is private, it is cheaper than going to court
tribunal
a dispute resolution body that resolves civil disputes and is intended to be a less costly, more informal and faster way to resolve disputes than courts. they can make binding decisions
ombudsman
an office holder with power to investigate and report on complaints relating to administrative action taken by government departments and other authorities and bodies
complaints body
an organisation established by parliament to resolve formal grievances (i.e. complaints) made by an individual about the conduct of another party
where do tribunals get their power from
Tribunals are dispute resolution bodies that obtain their power to resolve certain types of disputes from parliament. That is, parliament will pass a statute giving a tribunal the authority to hear and determine certain types of matters.
Victorian Civil Administrative Tribunal (VCAT)
a tribunal that deals with disputes relating to a range of civil issues heard by various lists, such as the Human Rights List, the Civil Claims List and the Residential Tenancies List
5 divisions of VCAT
residential tenancies, civil, administrative, planning and environment, human rights
3 purposes of VCAT
generally charging low fees for a person to file their claim and have their matter heard, aiming to have cases heard within weeks of the application being filed, having cases heard and determined by an independent third party who has no affiliation with either party to the dispute
the role of an ombudsman
The role of an ombudsman is to investigate complaints against a company or organisation, particularly public authorities.
what are 4 difficulties faced in the civil justice system?
first nations people, young people, low socioeconomic status, people in regional areas.
the role of a complaints body
deal with complaints about the provision of goods and services, or decisions made by certain bodies or authorities. they are intended to provide a free complaints and dispute resolution service.
3 difficulties faced by first nations people
distrust in the justice system, language differences, cultural differences.
3 solutions to first nations difficulties
access to specialised legal services, cultural comptence training, incorporation of cultural traditions at legal spaces
2 difficulties faced by low socioeconomic status people
the inability to access legal services because of cost and lack of funding, a lack of understanding about the law and the legal system.
3 solutions to low socioecomic status difficulties
the provision of free legal services, assistance for self represented parties, waiver of fees
3 difficulties faced by young people
age-related communication barriers, lack of knowledge about the legal system, lack of resources.
3 solutions to young people difficulties
specialised youth legal services (youthlaw), courts using less formal language, dedicated and targeted online resources.
3 difficulties faced by people in regional areas
lack of access to legal services, lack of access to technology, lack of access to courts.
3 solutions to people in regional areas difficulties
initiatives to encourage lawyers to work rurally, increase the availability of online legal info & services, improvement of regional court facilities.
purpose of remedies (3)
to make the point that the defendant’s conduct is not acceptable, to stop the harm from happening any further, to force someone to do something that they are refusing to do.
damages (+4 types)
an amount of money that one party is ordered to pay to another party for loss or harm suffered. compensatory, nominal, exemplary, contemptuous
compensatory damages
an amount of money awarded to a plaintiff for harm, injury, or other losses suffered. It includes general damages, special damages, and aggravated damages
special damages
awarded to the plaintiff for loss that can be quantifiable (loss of wages or medical expenses)
general damages
are awarded to the plaintiff for pain and suffering (not quantifiable)
aggravated damages
awarded to the plaintiff if the court believes that the defendant’s conduct injured the plaintiff’s feelings through humiliation or insult
nominal damages
a small amount of money awarded to confirm that a plaintiff’s rights have been infringed even though the losses were not substantial
exemplary damages
An award of exemplary damages, sometimes known as punitive damages, is the only example in civil law of a court seeking to punish a defendant. If a defendant’s action was so outrageous that the court wishes to deter others from similar action
contemptuous damages
a very small amount of money awarded to show that even though the plaintiff’s claim succeeded legally, the court disapproves of it in moral terms
injunctions (+2 types)
a remedy in the form of a court order requiring the defendant to do something or not to do something. restrictive & mandatory
restrictive injunction
this injunction stops someone from doing something
mandatory injunction
this injunction is sought when a person wishes to compel someone to do a particular act
