Unit 2 Area 2 Flashcards
Define fairness
Centers around the idea that all people can participate in the justice system and its processes should be impartial and open.
define Equality
Equality is the state of being equal, especially in status, rights and/or opportunities, and there is no discrimination based on race, gender or religion. Regarding legal system- idea that all people are treated same before the law, with equal opportunity to present their case.
Define Access
all people should be able to engage with the justice system and its processes on an informed basis.
Fairness in the civil justice system
Fairness in the civil justice system ensures that plaintiffs can protect their rights and defendants can defend against claims. Key principles include:
The burden of proof is on the plaintiff.
The standard of proof is the balance of probabilities.
Defendants can present their case.
An independent judge or jury adjudicates.
Efforts are made to reduce delays.
Equality in the civil justice system
Equality in the civil justice system ensures uniform treatment and protects against discrimination based on attributes like age, gender, wealth, language, ethnicity, and religion. Achieving equality sometimes requires different treatment to ensure equity, helping disadvantaged individuals reach the same outcomes as others.
Key points include:
Equal application of court procedures to both parties.
The rule of law applies to all community members.
An independent judge or jury adjudicates disputes.
Organisational support is available.
Alternative dispute resolution methods are used.
access in the legal system
Access in the civil justice system ensures everyone can participate and understand their legal rights and the elements of their dispute. Key aspects include:
Reducing delays.
Using alternative dispute resolution methods.
Awarding remedies in civil disputes.
Providing translators.
Facilitating class actions.
Methods used to resolve a dispute
There are a range of methods of dispute resolution that people can use to resolve a civil dispute.
Parties are generally encouraged to find their own solution to a dispute, rather than a decision being imposed on them by a court.
Courts use ‘judicial determination’ (a trial) as a last resort.
Define mediation
Mediation is a non-judicial dispute resolution method involving an impartial mediator who facilitates conversations between disputing parties. They help identify issues, develop options, and consider alternatives without offering advice or interfering. Parties determine the final agreement, which isn’t legally binding unless documented and incorporated into a court order. Mediation can be voluntary or court-ordered, and all discussions are confidential.
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
define conciliation
Conciliation is a non-judicial dispute resolution method involving an impartial conciliator with specialist knowledge. The conciliator helps parties reach a resolution but does not force an agreement. Decisions are not binding but can be documented in a signed agreement. The Magistrates’ Court uses conciliation in pre-hearing conferences when referred by a magistrate.
Define Arbitration
Arbitration is a non-judicial dispute resolution method where an impartial arbitrator listens to evidence and makes a binding decision. Parties may agree to arbitration voluntarily or be directed to it. The Magistrates Court refers civil claims under $10,000 to arbitration. If parties can’t agree, the arbitrator makes the decision. Arbitration proceedings are private and court-like.
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 Ombudsman is an independent authority that investigates complaints against companies or organizations.
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.
what are the Vic courts
The courts are the main dispute resolution body in Victoria.
However, given the costs involved in using the court system and the range of dispute resolution institutions and methods available, having a full civil trial or hearing to decide on liability is often considered a last resort for parties.
Vic courts- determining liability
When a plaintiff sues a defendant, the court determines liability. The judge, magistrate, or jury evaluates the evidence to decide if the defendant caused the plaintiff’s harm or loss on the balance of probabilities.
The court’s role includes:
Providing expertise in complex cases, like those handled by the Supreme Court.
Managing the case with orders and directions before trial.
Hearing appeals if a party is dissatisfied with the initial decision.
vic courts- decide on the remedy
Where liability is established, the court must decide on a remedy to right the wrong that has occurred to the party who suffered loss.
As part of the court’s role in deciding a remedy it may assess damages, which means calculating a suitable compensatory amount to be paid.
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.
Jurisdiction definition
Jurisdiction refers to the right or power of a court to apply the law and hear cases.
There are two types of jurisdiction:
Original jurisdiction refers to the power of a court to hear a case at first instance (ie for the first time).
Appellate jurisdiction refers to the power of a court to hear a case on appeal
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.
what is a jury
A jury is a group of randomly selected people who deliver a verdict in a trial based on the evidence presented. They consider evidence explained by the judge and decide on the balance of probabilities (bop) whether the defendant is liable for the plaintiff’s injury. Jurors must remain independent, unbiased, alert, and take notes throughout the proceedings. The judge provides directions on the law, evidence, and the decision-making process. The jury determines the civil liability of the defendant and may also decide on the appropriate remedy, including damages and compensation.
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.
the role of the jury in a civil trial
In a civil case the jury considers the evidence having regard to the law that is explained to them by the judge to decide on the balance of probabilities whether the defendant is liable for the plaintiff’s injury.
If a unanimous decision (ie all six jurors agree) cannot be reached, then a majority verdict of five out of six jurors agreeing will be accepted.
In most cases the jury will also be asked to determine the level of damages awarded to the plaintiff. However, a jury does not decide the damages in a defamation case; this is up to the judge.
define remedy
A remedy is a court order that aims to enforce a right by preventing a civil breach or correct a civil breach and return the plaintiff to the position they were in prior to the breach by the defendant.
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.
define damages as a remedy
Damages is monetary compensation paid for loss suffered as the result of a civil breach, such as the loss of a leg, the cost of a broken contract or damage to a person’s reputation.
There are three main categories of damages.
compensatory
nominal
exemplary
