Unit 2 AOS2- Remedies

Question 1

Principles of Justice in Civil Cases

Answer 1

Key Principles: Fairness, Equality, Access
Purpose: To assess if justice has been achieved in civil cases.

Question 2

Fairness in Civil Justice

Answer 2

Definition: All people can participate in the justice system, and its processes should be impartial and open.
Key Aspects:
People should be treated impartially.
There should be open justice.
People should have the opportunity to participate in the system.

Question 3

Impartial Processes

Answer 3

Definition: All participants in the civil justice system must be independent and impartial.
Key Terms:
Bias: Prejudice or lack of objectivity.
Apprehended Bias: A situation where a fair-minded observer might believe impartiality is compromised.
Court Judgment: A statement outlining the court’s decision and reasoning.

Question 4

Open Processes

Answer 4

Definition: The civil justice system must be open to public scrutiny.
Key Points:
Civil trials and hearings are generally open to the public and media.
Court judgments are made public.
Most civil claims are resolved privately before trial.

Question 5

Participation in Civil Justice

Answer 5

Definition: Parties in a civil dispute must be able to participate in the system.
Key Points:
Parties should know and understand the case against them.
Both sides should present their case fully.
Trials should occur without unreasonable delays.

Question 6

Equality in Civil Justice

Answer 6

Definition: All people engaging with the justice system should be treated the same, or differently if necessary to avoid disparity.
Key Concepts:
Formal Equality: Same treatment for all.
Substantive Equality: Different treatment to avoid disadvantage.

Question 7

Disparity and Adjustments

Answer 7

Definition: Disparity occurs when equal treatment causes unfairness.
Examples of Adjustments:
Simplifying language for non-English speakers.
Allowing flexibility for young people or those without legal representation.

Question 8

Access to Civil Justice

Answer 8

Definition: All people should engage with the justice system on an informed basis.
Key Points:
Engagement: People should have access to dispute resolution bodies, physical venues, and technology.
Informed Basis: People should have the knowledge, education, and legal representation needed to pursue their case.

Question 9

Features of Access

Answer 9

Key Aspects:
Access to a range of dispute resolution bodies.
Physical and technological access.
Financial access, though limited by the availability of legal aid.

Question 10

Mediation

Answer 10

Process:
A joint problem-solving process where parties discuss issues and try to reach an agreement with the help of a neutral mediator. Mediator’s Role:
Neutral, impartial, and helps the parties feel empowered.
Does not make decisions or provide legal advice.
Outcome:
If resolved, parties enter into a legally binding “terms of settlement.”

Question 11

Dispute Resolution Methods

Answer 11

Definition:
Methods used to resolve a civil dispute without a court or tribunal making a binding decision.
Types:
Mediation
Conciliation
Arbitration

Question 12

Mediation - Advantages

Answer 12

Advantages:
Decision is more likely to be accepted by both parties.
Less formal and less stressful than court.
Confidential discussions.
Saves time and money.

Question 13

Mediation - Disadvantages

Answer 13

Disadvantages:
Not binding unless “terms of settlement” are signed.
One party may dominate the process.
Mediator cannot force a decision.
Not suitable for disputes with power imbalances.

Question 14

Conciliation

Answer 14

Process:
Similar to mediation but the conciliator actively suggests solutions.
Final decision made by parties, not binding unless terms are agreed upon. Conciliator’s Role:
Offers advice and suggestions.
Usually has specialist knowledge in the dispute’s subject matter.

Question 15

Conciliation - Advantages

Answer 15

Advantages:
Encourages mutual agreement.
Less formal and less confrontational than court.
Confidential discussions.
Saves time and money.

Question 16

Conciliation - Disadvantages

Answer 16

Disadvantages:
Decision not binding without an agreement.
One party may dominate.
Conciliator cannot force a decision.
Requires both parties’ willingness to participate.

Question 17

Arbitration

Answer 17

Process:
An arbitrator listens to both sides and makes a legally binding decision (arbitral award).
Often used in commercial disputes and situations with pre-agreed arbitration clauses. Arbitrator’s Role:
Specializes in the subject matter of the dispute.
Conducts the process based on agreed rules.

Question 18

Arbitration - Advantages

Answer 18

Advantages:
Flexible and can be conducted privately.
Less formal and often less expensive than court.
The arbitral award is binding.
The arbitrator has expertise in the subject matter.

Question 19

Arbitration - Disadvantages

Answer 19

Disadvantages:
Less flexible than mediation/conciliation.
Can be as formal as court and potentially expensive.
No control over the outcome.
Lengthy decision-making process.
Not always available unless pre-agreed or for small claims.

Question 20

Key Dispute Resolution Bodies in Victoria

Answer 20

Types of Bodies:
Tribunals
Ombudsmen
Complaints Bodies
Role:
Help parties resolve disputes outside of court.
Provide alternatives that are often less formal, costly, and time-consuming.

Question 21

Tribunals Overview

Answer 21

Definition: Dispute resolution bodies that derive power from statutes passed by Parliament.
Purpose: Provide low-cost, efficient, and speedy methods of dispute resolution.
Characteristics:
Independent third-party decision-makers.
Binding decisions.
Often involves less formality and technicality compared to courts.

Question 22

Differences Between Tribunals and Courts

Answer 22

Cost: Generally lower in tribunals.
Formality: Tribunals are less formal.
Dispute Resolution: Both can involve independent third parties and binding decisions, but tribunals focus on being more accessible and less expensive.
Example: VCAT (Victorian Civil and Administrative Tribunal) focuses on civil disputes like residential tenancy issues.

Question 23

Definition of Ombudsman

Answer 23

An ombudsman is an official appointed by the government to investigate complaints made by individuals against certain bodies or institutions.
Ombudsmen obtain their powers through statutes passed by parliament.
Example: The Victorian Ombudsman was established by the Ombudsman Act 1973 (Vic).

Question 24

Role of an Ombudsman

Answer 24

Provides an independent, timely, and accessible dispute resolution service.
Offers a fair, free, and independent way of handling complaints.
Tries to resolve complaints by working with both parties; if unresolved, may have the power to make binding decisions.

Question 25

Ombudsman’s Services

Answer 25

Ombudsman services are free of charge.
They handle complaints from individuals against government agencies or businesses, not vice versa.
Ombudsmen ensure procedural fairness by allowing responses to complaints and giving reasons for decisions.

Question 26

What are complaints bodies?

Answer 26

Complaints bodies are institutions that help resolve civil disputes, particularly related to goods, services, or specific industries. They provide a free or low-cost service and obtain their power through parliament. Unlike courts, they do not conduct formal hearings or make binding decisions.

Question 27

What is the role of complaints bodies?

Answer 27

The role of complaints bodies is to address complaints about the provision of goods and services or decisions made by certain bodies or authorities. They are intended to offer free dispute resolution services, making justice accessible to ordinary people. They typically focus on specific industries or services and aim to resolve disputes informally.

Question 28

How do complaints bodies ensure accessibility?

Answer 28

Complaints bodies are designed to be accessible by allowing complaints to be made online or over the phone. They offer informal and flexible services, which are intended to be approachable for everyone, including individuals and small businesses.

Question 28

What powers do complaints bodies have?

Answer 28

Complaints bodies can offer flexible dispute resolution services, investigate complaints, and sometimes take enforcement action against non-compliant individuals or companies. However, they usually lack the power to conduct hearings or make binding decisions.

Question 28

What are some strengths of complaints bodies?

Answer 28

Low cost or free services increase accessibility.
Relatively quick resolution of disputes (1-6 months).
Informal processes make parties feel more at ease.
Independence and impartiality in dispute resolution.
Specialization in particular industries or areas of law.

Question 29

What are some weaknesses of complaints bodies?

Answer 29

Limited power to make binding decisions.
Not suitable for large, complex claims.
Some services may not be free.
Specialized focus may limit applicability to certain disputes.
Public may have difficulty finding the right complaints body.

Question 29

Victorian Court Hierarchy

Answer 29

Hierarchy Structure:
High Court of Australia
Supreme Court of Victoria (Court of Appeal, Trial Division)
County Court of Victoria
Magistrates’ Court of Victoria
Purpose: Organized to handle different civil disputes based on complexity and monetary value.

Question 29

Role of Victorian Courts in Civil Disputes

Answer 29

Primary Roles:
Determine Liability: Deciding if the defendant is liable based on evidence.
Decide on Remedy: Awarding appropriate remedies if the defendant is found liable.
Standard of Proof: Balance of Probabilities – More likely than not.

Question 30

Strengths of Courts in Dispute Resolution

Answer 30

Impartiality: Judges make decisions based on facts and law.
Specialization: Courts like the Supreme Court handle complex cases with expertise.

Question 30

Civil Jurisdiction of Victorian Courts

Answer 30

Magistrates’ Court:
Original Jurisdiction: Claims up to $100,000.
Appellate Jurisdiction: None.
County Court:
Original Jurisdiction: Unlimited.
Appellate Jurisdiction: Limited (specific Acts).
Supreme Court (Trial Division):
Original Jurisdiction: Unlimited.
Appellate Jurisdiction: Appeals from Magistrates’ Court and VCAT.
Supreme Court (Court of Appeal):
Original Jurisdiction: None.
Appellate Jurisdiction: Appeals from County Court, Supreme Court, VCAT.

Question 30

Weaknesses of Courts in Dispute Resolution

Answer 30

Costly: Legal proceedings can be expensive.
Time-Consuming: Cases can take a long time to resolve due to formal procedures.

Question 31

Remedial Decisions

Answer 31

Common Remedies:
Damages: Monetary compensation.
Costs: Awarded to the winning party, but not all costs are recoverable.
Assessment: Judge/magistrate/jury calculates based on presented evidence.

Question 31

Appeals in Civil Cases

Answer 31

Process:
Appeals based on errors in the application of law or facts.
Court of Appeal requires permission to hear most appeals.

Question 32

The Role of the Jury in Civil Trials

Answer 32

Definition: An independent group chosen at random to determine facts and reach a verdict.
Function: The jury considers evidence and the law explained by the judge to decide who is in the wrong.

Question 32

When Is a Jury Used in Civil Trials?

Answer 32

No Automatic Right:
No jury in the Magistrates’ Court and appeal cases.
Optional in the County and Supreme Courts.
Requesting a Jury:
A party must request and pay for a jury trial.
A judge can order a jury trial, with the state covering costs.
Usage: Civil jury trials are rare due to costs and complexity, more common in defamation cases.

Question 33

Composition of a Civil Jury

Answer 33

Number: Six jurors in the County and Supreme Courts.
Selection: Randomly selected from the Victorian electoral roll, must pass an eligibility check.
Exclusions:
Disqualified: E.g., people with criminal records, on bail/remand, or bankrupt.
Ineligible: E.g., legal professionals, police, MPs, non-English speakers, people with disabilities.
Excused: E.g., poor health, distance from Melbourne, age, hardship, or carers.
Challenges: Parties can challenge jurors for cause (unlimited) or peremptorily (two per party).

Question 34

Role of a Civil Jury

Answer 34

Decision Making: Considers case facts and decides on the balance of probabilities.
Verdict:
Unanimous or majority (5 out of 6) required.
May decide on damages, except in defamation cases (judge decides).
Secrecy: No obligation to provide reasons for the verdict, which raises transparency concerns.

Question 35

Strengths of the Jury System

Answer 35

Independence: Jurors are impartial and independent of the legal and political systems.
Community Involvement: Enhances public confidence in the legal system.
Shared Responsibility: Spreads decision-making responsibility among jurors.
Reflects Community Values: Ensures that decisions are in line with community standards.

Question 36

Weaknesses of the Jury System

Answer 36

Lack of Transparency: Jurors do not provide reasons for their decisions, raising concerns about bias.
Not a True Cross-Section: Disqualification and ineligibility rules limit diversity.
Potential Biases: Jurors may have unconscious biases that influence their decisions.
Influence & Complexity: Jurors may be swayed by lawyers or struggle with complex evidence.
Delays: Jury trials can result in delays due to explanations and directions needed.

Question 37

Why might the civil justice system be difficult for some groups?

Answer 37

Confusing and overwhelming for the public.
Expensive, leading to accessibility issues.
Some groups face more difficulties, including First Nations people, low SES individuals, young people, and those in regional/rural areas.

Question 38

What is one major difficulty faced by First Nations people in the civil justice system?

Answer 38

Distrust in the justice system due to historical injustices, cultural violations, and intergenerational trauma.
Results in reluctance to engage with the system, leading to unresolved legal issues.

Question 39

How do language differences affect First Nations people’s access to the civil justice system?

Answer 39

Some First Nations people speak Aboriginal English or traditional languages, causing communication barriers.
Misunderstandings in court can arise if judges or lawyers are not culturally trained.
Limited access to trained interpreters exacerbates the issue.

Question 40

What cultural differences can create challenges for First Nations people in the civil justice system?

Answer 40

Aboriginal customary law differs from the civil justice system.
Strong family ties, respect for Elders, and connection to the land may not be recognized or respected by the system.
Courts may seem rigid and inflexible, leading to discomfort or resentment.

Question 41

How is the civil justice system addressing difficulties faced by First Nations people?

Answer 41

Dedicated funding for Aboriginal legal aid.
Cultural competence training for court personnel.
VCAT’s initiatives like Koori Hearing Rooms and increased Koori staff to make the system more inclusive.

Question 42

What is the primary difficulty faced by people of low SES in the civil justice system?

Answer 42

Inability to afford legal representation or court fees.
Limited access to legal aid as resources are stretched, especially in civil cases.
Many must represent themselves or not pursue their claim at all.

Question 43

How does a lack of understanding affect people of low SES in the civil justice system?

Answer 43

Legal system complexities can be particularly challenging if literacy or English skills are limited.
Can lead to distrust in the system and a very stressful court experience, especially for self-represented individuals.

Question 44

What measures are in place to help people of low SES in the civil justice system?

Answer 44

Free legal services like pro bono work and Justice Connect.
Assistance for self-represented parties through court websites and coordinators.
Fee waivers for those experiencing financial hardship.

Question 45

What challenges do young people face in the civil justice system?

Answer 45

Young people under 25, including children, may struggle to navigate the system.
Children under 18 must sue or be sued through a litigation guardian, which can complicate their involvement in civil cases.