Unit 2 Area 2 Flashcards
When is mediation appropriate
-parties are willing to negotiate, participate, and resolve the dispute
-the mediation process is understood by disputing parties
-disputing parties want to maintain their relationship in future
-privacy and confidentiality need to be maintained
-parties are aiming to save time and money
when is mediation NOT appropriate
-vulnerable party is involved in the dispute, such as an individual who has experienced abuse
-parties unwilling to discuss issues
-disputing parties are highly emotional or hostile
-mediation previously failed/history of betrayal between parties
-there is a power imbalance between disputing parties that creates a risk of reaching an unjust resolution
-legally binding agreement needs to be established
what are tribunals
Tribunals are institutions authorized by parliament to hear and adjudicate claims or disputes. They offer a low-cost, timely avenue for dispute resolution, making it more accessible. While not courts, tribunals can hear civil disputes and make binding decisions. Before a hearing, they encourage alternative dispute resolution methods. If unresolved, a hearing is conducted.
example of tribunal
VCAT which provides a low-cost, accessible, efficient and independent tribunal delivering high-quality dispute resolution processes.
what are an ombudsmen
an independent authority that operates on state and federal levels and is created to investigate complaints against a company or organisation.
Government ombudsmen handle complaints about institutions like local councils and government departments.
Industry-based ombudsmen address complaints in specific private sector categories.
They help balance the power dynamic between individuals and large service providers. Ombudsmen derive their authority from statutes made by parliament.
example of ombudsmen
Fair Work Ombudsmen
Provides free information and investigates complaints in relation to
-pay entitlements, including for employees who claim they were unpaid.
Complaints bodies
Complaints bodies help resolve disputes related to goods, services, or decisions by authorities. They offer free, accessible services to all community members, regardless of socio-economic status. These bodies provide flexible resolution options and assist in civil disputes through investigation and conciliation. Their procedures are less formal, and they cannot make binding decisions unless a deed of settlement is signed. In some cases, they may take legal action against individuals or organizations.
example of complaints bodies
Consumer Affairs Victoria (CAV) is the Victorian consumer regulator, a government body created to protect consumer rights and assist with settling disputes.
explain the role of the vic courts
The courts are the main dispute resolution body in Victoria, however, given the costs and other methods of dispute resolution methods available, this is usually a last resort. When a plaintiff sues a defendant, the court must determine on the balance of probabilities where the defendant is liable for the plaintiff’s injury. Where liability is established, the judge, magistrate, or jury must decide on an appropriate remedy, including damages or compensation. The Victorian courts uphold fairness when resolving civil disputes as the Magistrate or judge is impartial, ensuring the verdict is based solely on the law and the facts. Furthermore, both parties have the right to apply for leave to appeal their case, ensuring any mistakes made by lower courts can be reviewed and corrected by superior courts.
magistrates court jurisdiction
The Magistrate’s court is the lowest court in the vic court hierarchy and has no appellate jurisdiction to hear civil appeals. The Magistrates’ Court hears civil cases up to $100,000 and will use arbitration to resolve disputes up to $10,000.
The Magistrates’ Court hears civil cases including personal injury cases, or matters relating to family law.
country court jurisdiction
The County Court can hear civil cases for unlimited amounts, however it will usually only hear claims exceeding $100,000.
Parties can choose to have their case heard in either the County Court or the Supreme Court.
Parties also have a choice of trial by a judge alone or by a judge and jury (of six).
The civil cases heard by The County Court include personal injury claims, defamation claims and commercial disputes.
The County Court does not have the jurisdiction to hear appeals in civil matters.
supreme court (trial division)
The Trial Division has unlimited jurisdiction in civil claims, similar to the County Court, and typically handles larger, more complex disputes over $100,000. Cases can be heard by a judge alone or by a judge and a jury of six. The Supreme Court deals with complex civil disputes, such as class actions and corporate disputes. A single judge in the Trial Division hears appeals from the Magistrates’ Court and VCAT on questions of law.
supreme court of appeal
The Supreme Court (Court of Appeal) hears appeals from the County Court and from the Supreme Court’s Trial Division on questions of law, questions of fact or the amount of damages awarded. It also hears appeals from cases heard by the President, or Vice President of VCAT.
Appeals heard in the Supreme Court (Court of Appeal) are usually determined by three justices.
In almost all civil cases, leave (permission) is required before an appeal is allowed to be heard in the Court of Appeal.
The Court of Appeal has no original jurisdiction to hear civil cases.
explain the role of a jury
A jury is a group of randomly selected individuals who deliver a verdict based on the evidence presented during a trial. They assess the information provided by the judge and decide whether the defendant is liable for the plaintiff’s injury on the balance of probabilities. Jurors must remain independent, unbiased, and attentive while taking notes throughout the proceedings.
The jury determines the civil liability of the defendant and, in most cases, the amount of damages awarded to the plaintiff. However, in defamation cases, the judge decides on the damages. If a unanimous decision (all six jurors agreeing) cannot be reached, a majority verdict of five out of six jurors is accepted. Jurors must be impartial and treat all parties equally, upholding the principle of equality.
Two factors determine use of a jury in a civil case
Both parties have the right to request a jury, although if only one party makes this request and the other party does not want a jury trial it is up to them to convince the court why a jury should not be used.
The trial must be being heard in a court eligible to hear civil trials by jury (the County or Supreme Court trial divisions). A jury cannot be requested in appeal cases, or in matters heard in the Magistrates’ Court.
purpose of a remedy- restore plaintiff to original position
The general purpose of a remedy is to restore the plaintiff to their original position prior to the civil wrong occurring, i.e to restore (as much as possible) the party who has suffered loss or injury to the position they were in before the loss or injury occurred.
purpose of remedy- uphold plaintiff’s rights
By awarding a remedy the court acknowledges the plaintiff has been wronged and their rights violated. Recognising the plaintiff’s rights through the remedy provides a sense of justice and closure to them, demonstrating the effectiveness of the civil justice system in restoring injured parties.
purpose of remedy- deter others from civil breaches
Civil remedies serve as a warning to others in society that certain behaviour will not be tolerated, and will result in consequences. This helps to deter potential wrongdoers, promote social cohesion, and may encourage parties to take preventative measures to avoid civil breaches.
