unit 2 dispute resolutions Flashcards
1
Q
Fairness
A
All people can participate in the justice system and its processes should be impartial and open
2
Q
(Fairness) Impartial processes
A
*The parties have an independent and unbiased adjudicator preside over the dispute - e.g. judge,
magistrate, mediator
- No party is shown discrimination or favouritism
- The case is decided on facts and law rather than opinion and prejudice
3
Q
(Fairness) Open processes
A
- Disputes that utilise the courts are open to the public including the court’s judgement. This promotes transparency over judicial decisions and accountability of legal professionals
- However, less than 5% of civil claims go to trial. Parties have some level of control over how civil
claims are resolved and this can be achieved in private (e.g. mediation, conciliation)
4
Q
(Fairness) Participation-Parties can prepare a case through knowing the facts
A
- before trial, both the plaintiff and defendant must disclose their claims and defences, the basis for them and any relevant documents or evidence. There should be no ‘surprises’ at trial
5
Q
(Fairness) Participation-There are several avenues of dispute resolution -
A
including courts, mediation, conciliation, arbitration, tribunals and complaints body depending on the nature of the dispute.
Some of these do not require legal representation which promotes the plaintiff ability to participate in the legal system more easily
6
Q
(Fairness) Participation-Parties have the opportunity to present their version of the case
A
- both parties should have the opportunity make submissions to the adjudicator, present evidence and examine/cross-examine witnesses
7
Q
(Fairness) Participation- A trial occurs without unreasonable delay
A
This is achieved through the Victorian Court hierarchy, methods of alternative dispute resolution and the existence of civil bodies such as VCAT and Consumer Affairs Victoria
to ensure evidence remains credible, plaintiffs can enjoy their remedy in a timely manner and defendants can move on from the threat of civil action.
8
Q
Equality
A
All people engaging in the justice system 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
9
Q
same treatment (formal equality ) examples
4 points
A
- All parties can initiate a claim if they can demonstrate an infringement of their rights and loss
- All parties can and are encouraged to, negotiate prior and during trial and resolve their disputes without proceeding to a trial
- All parties having their matter heard in superior courts can request to have a jury if they can pay for a jury
- All parties can engage in legal representation to provide them with legal assistance
10
Q
different treatment (substantive equality ) example
A
- If a party cannot afford legal representation and must self-represent, a judge or magistrate has an obligation to take steps to explain certain rights and processes e.g., what it means to cross examine witnesses
- Organisations such as VLA and CLCs provide extra support to individuals who do not have the resources to uphold their civil rights, leading to more equitable outcomes.
- Interpreters may be required for people with limited English to assist with translations
11
Q
Access
A
All people should be able to enegage with the JS and its processes on an infromed basis.
12
Q
Access- Engagement
A
- range of dispute resolution methods are available to the parties - e.g. ADRs, tribunals, CAV and courts - most of which are less complex than courts
- Legal representation is often not needed unless parties are engaging in the courts
- A range of dispute resolution avenues also means that courts are less likely to be clogged and experience delays
- Technological development has led to some disputes being resolved via online video-link or conferencing.
- Class actions allow for group members to share the costs when taking legal action against a large corporations
13
Q
Access- Informed basis
A
- Being represented by a lawyer allows a person to be informed, as lawyers will explain the process involved, their rights, steps to take in a proceeding and chances of success.
- Specialist community legal centers can assist certain vulnerable groups.
- Online websites such as VCAT, Victorian Legal Aid and the Victorian Ombudsman provide information and guidance for parties on their rights in some civil matters and where to take their dispute to be resolved - most will recommend/require parties to engage in self-help first
- However, self-help requires that parties have a certain level of education and can articulate and communicate with the other party which may not always occur
14
Q
what is mediation
A
Mediation is one of the least formal methods for resolving disputes.
It is a joint problem-solving process where parties willing cooperate to reach a solution through negotiation
15
Q
access informed basis example of Specialist community legal centers
Informed basis ( Association for Employees with Disabilities)
A
assists individuals with disabilities regarding civil matters arising from unlawful termination, bullying, wages and working conditions
16
Q
who facilitates the mediation process
A
Mediators are impartial third parties who are trained in conflict resolution.
Mediators facilitate the discussion by empowering both parties, helping them feel confident to negotiate and evening out any power imbalances.
Mediators support parties to reach a decision for themselves.
Mediators do not make determinations about whether there has been a breach of civil law or offer the parties legal advice.
17
Q
when is mediation used
A
Before parties engage with the courts, especially if it’s important to maintain an ongoing relationship and costs may be an issue (e.g. disputes between neighbours, family members or landlords and tenants).
During court proceedings as the Mag, CC and SC can order parties to attend mediation before setting a further date for trial
As an alternative to court as VCAT often refers claims to mediations prior to the final hearing
18
Q
how does mediation work
A
With the help of the mediator parties discuss the issues involved, consider options and endeavor to reach an agreement through negotiation and compromise.
Legal representation is generally not used to promote a sense of informality; however, it can be used.
There are no strict rules of evidence or procedure.
19
Q
what is conciliation
A
Conciliation shares all the same elements as mediation except that:
• The conciliator will listen to the facts and evidence presented by both sides and make suggestions regarding ways and options to resolve the dispute.
*The conciliator will generally be an individual with specialist knowledge in that field pertaining to the legal dispute - e.g., consumer law, family law, workplace relations
20
Q
when is conciliation used
A
Many dispute resolution bodies (e.g. Consumer Affairs Victoria) use a form of conciliation
Parties at VCAT are often sent to a compulsory conterence which uses conciliation
Some of the more specialised courts (e.g. Family Court) order conciliation conferences to reach agreements about financial or parenting issues.
conciliation tends to be the main method used in tribunals (VCAT) and complaints bodies (CAV)
21
Q
mediation+ conciliation- fairness strengths
A
impartial= independent 3rd party tf no favoritism
participate=both parties actively communicate and encourage to work through problem in civil matter
participate=several avenues of dispute resolution—> x require lawyer —> increase participation
22
Q
mediation+ conciliation-fairness weakness
A
x open because M/C can be held privately—>harder to hold mediator to account and some may be more impartial than others
if there is history of violence/malice btwn parties. the more vulnerable party may be unable to participate completely + express their side
23
Q
mediation+ conciliation- equality strength
A
formal equality: issue discussed confidentially—>no matter what decision is+ what has been said in M/C cant be used against them in the future
24
Q
mediation+ conciliation-equality weakness
A
mediator cannot actively involve themselves in solution,
—->power imbalance between parties+ not having same right to negotiate—> disparity
25
mediation+ conciliation- access strength
low cost compared to court- enhance financial engagement
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
26
mediation+ conciliation-access weakness
one party could have lawyer--->other party unable to engage on informed basis
unable to engage if party unwilling to co operate
27
what is arbitration
Arbitration is one of the most formal 'alternate' methods of dispute resolution outside of courts
28
how does arbitration work
* The arbitrator listens to both parties and makes a legally binding and enforceable decision = arbitral award
* Arbitration is not bound by strict rules of evidence - parties can agree on how evidence is presented, the level of formality and what procedural rules will apply.
*Parties can self-represent however most parties will have legal representation considering the binding nature of the award
29
who facilitates arbitration
* Arbitrators are impartial third parties who generally have knowledge about the subject matter of the dispute and expertise in the relevant law.
30
when is arbitration used - Privately
parties previously agree (in contract) that disputes will be settled via arbitration.
Parties hire an arbitrator and agree in advance to abide by the award.
Occurs at Dispute Resolution Centre / Melbourne Commercial Mediation and Arbitration Centre
31
when is arbitration used -Courts.
The Mag Court to use arbitration to resolve claims of less than $10,000. The court initially attempts to facilitate an agreement between the parties but a Magistrate or registrar can step in to make a binding decision if this is unsuccessful.
* The Magistrates, County and Supreme Court can also request parties attend arbitration for claims above $10,000 if they consent
32
when is arbitration used -Tribunals
(VCAT) can refer parties to arbitration before the final hearing however does not conduct the arbitration process itself
33
strengths of arbitration
Because arbitration is often conducted privately, there is flexibility in the way it can be conducted, allowing parties to decide the best way to resolve the dispute
Arbitration is less formal than court processes, which allows the parties to feel more at ease
The arbitral award is legally binding on the parties, which ensures that the parties will most likely follow it The arbitrator will have expertise in the subject matter of the dispute and will use that expertise when
making a binding decision
Arbitration is private and confidential, so it is attractive for parties who wish to avoid the publicity of a trial
34
*weakness if arbitration
Arbitration is not as flexible as M/C; this means the parties are normally limited to particular remedies or outcomes
Arbitration can be as formal as a court process, depending
on how the parties have agreed to conduct the arbitration
Arbitration is more expensive than mediation and conciliation because evidence is often gathered and put before the arbitrator, and legal representation is normally used; using arbitration can be as expensive as going to court,
depending on how the arbitration is conducted
The parties have no control over the outcome imposed on
them by the arbitrator
35
tribunal
* Tribunals are dispute resolution bodies that obtain their power to resolve certain types of disputes from parliament via statute law.
* Tribunals develop experience in particular types of disputes and can make binding decisions.
However, tribunals cannot hear every type of dispute (e.g. class actions).
* Tribunals have similar characteristics to courts (e.g. impartial third parties who make binding decisions)
however, differences (e.g. much lower costs)
36
purpose of tribunal
Purpose of tribunals is to deliver offer a low-cost, efficient, and accessible alternative to the courts.
37
example of commonwealth tribunals
National Sports Tribunals, Native Title Tribunal
38
Victorian civil and administrative tribunal (VCAT)
* VCAT is the largest tribunal in Victoria, with the power to hear a wide range of civil and administrative disputes.
* VCAT has exclusive jurisdiction over some types of disputes
* However, VCAT is not suitable for complex claims
* The VCAT president is a current Supreme Court judge and the VCAT Vice Presidents are County Court judges
39
Purpose of VCAT- provide low cost dispute resolution service
* Parties do not require legal representation (in some disputes, representation is not permitted)
* VCAT fees are low compared to courts. Some VCAT lists have no application fee and fees can also be waived or postponed for those in financial hardship
40
Purpose of VCAT- Provide efficient
dispute resolution services
* Hearings are less time consuming as VCAT is not bound by same rules of evidence and procedure as the courts
* Many cases are referred to mediation or compulsory conciliation
* VCAT hearings involve fewer pre-hearing procedures so there is less time between application and receiving a resolution
41
Purpose of VCAT- Provide accessible
dispute resolution services
* VCAT's low costs ensure more people have access to dispute resolution bodies and remedies
* VCAT uses phone and video conference's for some hearings, mediations and compulsory conferences so that parties don't have to travel long distances
* VCAT uses informal procedures compared to court which is easier to understand by the parties
42
example of Tribunals obtaining their power from parliament via statute law.
* E.g. Mental Health Act 2014 (Vic) established the Mental Health Tribunal and empowers it to make determinations about whether a person should be compulsorily treated in a mental health service
43
example of state tribunals
Victorian Civil and Administrative Tribunal, Mental Health Tribunal
44
VCAT divisions
VCAT is divided into five divisions and within each division, cases are grouped together in what VCAT refers to as a list.
residential tenancies
administrative
planning and environment
civil
human rights
45
how is VCAT is given its powers
VCAT is given its powers through the Victorian Civil and Administrative Tribunal Act 1998 (Vic)
46
VCAT exclusive jurisdiction example
* domestic building disputes must be determined by VCAT rather than the courts
47
What is VCAT not suitable for example ?
*VCAT is not suitable for complex claims such as class actions, defamation cases, personal injury claims or disputes involve large monetary damages
48
party names in VCAT-applicant.
The person who is applying to have their dispute resolved (generally the aggrieved party)
49
party names in VCAT-respondent.
The person who is responding to a claim made against them
50
what is an ombudsman
An ombudsman is an official (independent person) appointed by the government to investigate complaints made by individuals and small businesses against a company or organisation, particularly public authorities.
51
power of The Victorian Ombudsman
* The Victorian Ombudsman, which has the power to inquire into or investigate administrative decisions made by Victorian Government Departments, public statutory authorities, and officers of municipal councils.
52
Key features of ombudsman
* The services of ombudsman are free
* Ombudsman only hear complaints from individuals against organisations (not visa versa)
* In many instances, ombudsmen will not accept a complaint unless the individual has tried to resolve it directly themselves
* An ombudsman will first try to resolve the complaint by working with the parties. If agreement cannot be reached the ombudsman may (not always) have the power to make a binding decision
(this depends on the nature of the complaint and the specified powers of the ombudsman
* Ombudsmen ensure procedural fairness by giving organisations an opportunity to respond to a complaint and by providing reasons for any decision that is made
53
how does an ombudsman obtain its power
* An ombudsman obtains the power to hear and determine complaints through parliament via statute law - e.g. Ombudsman Act 1973 (Vic)
54
types of ombudsmen-government ombudsmen
which handle complaints about government institutions. In Victoria, this is the Victorian Ombudsman.
55
types of ombudsmen- industry-based ombudsmen
which handle complaints regarding specific categories of the private sector, such as the Telecommunications Industry Ombudsman.
56
Some examples of ombudsmen in Victoria include: The Energy and Water Ombudsman Victoria
* hears complaints from Victorians about energy or water companies (e.g. excessive or erroneous bills, energy disconnections)
57
Some examples of ombudsmen in Victoria include: The Public Transport Ombudsmen
* The Public Transport Ombudsmen, which investigates and resolves complaints about public transport operators such as Public Transport Victoria, Metro Trains Melbourne, V/Line and Yarra Trams (e.g. ticketing, penalties, customer service, conduct of staff)
58
complaint bodies
Complaints bodies deal with complaints about the provision of goods and services, or the decisions made by certain bodies or authorities
59
complain bodies key features
* They are intended to provide a free complaints and dispute resolution services.
* Similar to ombudsmen, complaints bodies accept complaints from individuals or small businesses against organisations (not visa versa)
* Complaints bodies are more informal than tribunals and ombudsmen - they are limited to offering dispute resolution services as opposed to conducting hearings or making binding decisions
* Some complaints bodies can investigate complaints and take enforcement action against individuals or companies that do not comply with certain laws
60
examples of complaint bodies in vic-Health Complaints Commissioner (HCC) -
- hears disputes about health services or concerns about health information privacy.
61
examples of complaint bodies in vic-* Victorian Legal Services Commissioner (VLSC)
- hears and investigates complaints about lawyers.
62
examples of complaint bodies in vic-
Victorian Equal Opportunity and Human Rights Commission (VEOHRC)
- hears disputes in relation to discrimination and infringements of human rights
63
consumer affairs Victoria (CAV)
CAV is the Victorian civil complaints body that provides information and helps resolve disputes to create a fair and competitive marketplace for consumers and businesses.
64
purpose of (CAV)
* Provide information to educate people about consumer laws about the rights and responsibilities of businesses and consumers
* In limited circumstances, provide consumers, traders and landlords with a dispute resolution
process
* Advise the Victorian government on consumer legislation (e.g., sales of goods and services)
* Initiate legal action against businesses who breach consumer protection laws in Victoria
* Investigate complaints about unsafe products being sold in Victoria and, if needed, remove such items from sale.
65
CAV and conciliation
* To obtain the assistance of CAV, parties must first attempt to settle the dispute themselves.
* If this is unsuccessful, CAV will provide voluntary and free conciliation services.
* Through conciliation, CAV empowers the parties to resolve the dispute constructively and efficiently, either in person or over the phone.
* The final resolution is not legally binding unless parties sign a deed of settlement.
66
Types of disputes CAV can assist in revolving through conciliation- Consumer Law and Fair Trading Act 2012 (Vic)
* A complaint by a consumer against a business who believes the Australian Consumer Law and Fair Trading Act 2012 (Vic) has been breached.
67
Types of disputes CAV can assist in through conciliation- Residential Tenancies Act 1997 (Vic)
* A complaint by a tenant against a landlord who believes the Residential Tenancies Act 1997 (Vic) has been breached.
68
how is CAV established
CAV is a statutory body established via parliament passing Australian Consumer and Fair-Trading Act (Vic) 2012
69
Consumer Law and Fair Trading Act 2012 (Vic) breach example
- a consumer who claims they were misled about the quality of the product they purchased, or paid for a product that was faulty, and is seeking a refund.
- a motorist who has paid for their car to be repaired, but thinks the repairs have not been carried out correctly.
70
Residential Tenancies Act 1997 (Vic) breach example
- a tenant who requested a repair to their property, but the repair work is not completed.
- a landlord who has given notice to a tenant to vacate a property so they can move into the property themselves, but the tenant believes this is not a genuine reason.
71
deciding remedy
A remedy is a way for the court to right the wrong that has occurred to the party who has suffered loss.
* The magistrate, judge or jury will need to assess damages based on evidence presented by both parties. However, in a defamation case, only a magistrate or judge can assess damages.
* If the parties have settled the dispute, they either obtain a court order to discontinue the case or they may ask the judge to make an order in their agreed terms (however, the judge may refuse this request). In a class action, the judge must approve any terms of settlement.
72
role of the courts
The courts are the traditional dispute resolution bodies in Victoria.
taking a matter to court is considered a last resort for parties due to cost and available alt bodies.
In civil law, the role of the court is two-fold:
* Determining the liability of a party
*Deciding on the remedy (if required)
73
how courts determining liability
* The court will determine whether the defendant is liable and if so, to what extent.
* The magistrate or judge (or a jury if present in the County Court or Supreme Court) will consider the evidence and whether the plaintiff, on the balance of probabilities, has established that the defendant had caused loss or harm.
* The decider of the facts might have to determine whether the defendant was fully liable for the plaintiff's loss or harm (the plaintiff may have contributed; there may be another party involved).
* If the defendant has made a counterclaim, that matter will need to be decided as well.
74
magistrate court- original jurisdiction
Minor civil claims up to $100,000 (e.g. negligence, contracts, injury compensation)
If claim is less than $10,000, it's referred to arbitration
75
county court- original jurisdiction
Unlimited (usually claims over $100,00 - e.g. defamation, property purchasing)
76
supreme court (trial division)- original jurisdiction
Unlimited (usually large and complex commercial disputes and class actions)
77
supreme court (court of appeal )- original jurisdiction
No original jurisdiction
78
magistrate court- appellate jurisdiction
No appellate jurisdiction
79
county court-appellate jurisdiction
No appellate jurisdiction (unless granted under specific Act of Parliament)
80
supreme court (trial division)-appellate jurisdiction
Appeals from Magistrates Court on questions of law (unless decided by Chief Magistrate)
Appeals from VCAT on questions of law (unless decided by President or Vice-President)
81
supreme court (court of appeal )-appellate jurisdiction
Appeals from County and Supreme Court (Trial Division) on questions of fact, law or amount of damages
Appeals from Chief Magistrate or VCAT President/Vice-President
82
strengths of court
83
weakness of courts
84
jury in civil trial
* Jury = a group of randomly selected people who are required to deliver a verdict in a trial based on the evidence presented to them in court.
85
when is a jury used
* Unlike criminal law, there is no automatic right to a trial by jury in a civil trial.
* No jury is used in the Magistrates Court or in appeal cases
*A jury is optional in the County and Supreme Court (Trial Division). The party who has requested a jury trial must pay the associated fees (note - the judge can deny a request).
*A judge may order that a jury is required in a civil trial. In this case, the state pays for the jury.
*Due to the complexity of legal issues and high fees, it is rare for a party to request a jury in a civil trial.
86
jury composition
* Potential jurors are randomly selected from Victorian electoral roll.
* Those selected must first fill out an eligibility form.
* If eligible, potential jurors attend court on a particular day and form part of the jury pool.
*In the County and Supreme Court (Trial Division), six people are chosen to officially sit on a jury.
.
87
what can parties do in jury composition
• On the day of selection, jurors' names and occupations are announced. As a juror approaches the jury box, each party can 'challenge' the prospective juror.
• Both parties have two peremptory challenges - no reason provided.
• Both parties have an unlimited number of challenges for a cause - reason must be provided
88
jury (disqualified)
Unable to serve due to background
89
jury(ineligible)
Unable to serve due to occupation or characteristic
90
jury (excused )
Unable to serve due to difficult circumstances
91
role of jury
* Objectively listen to evidence and consider the facts of the case
* Follow the directions of the judge regarding the relevant law
* Decide who is more likely in the wrong on the balance of probabilities (deliver verdict) Possibly assess the amount of damages (except defamation)
92
not part of jury's role
* Jury members are disallowed from obtaining external information about the trial (e.g. internet research)
* Jury members are not required to provide reasons for their decision (unlike judges and magistrates)
93
what act is the juries governed by
Governed by the Juries Act 2000 (Vic).
94
jury (disqualified) example
* Convicted of indictable offence and sentenced to 3+ years imprisonment
* Sentenced to 3+ months imprisonment within the last 10 years.
* Currently on bail or remand
* Undischarged bankrupts
95
jury (excused) example
Poor health, live more than 50km away, advanced age, financial hardship, carers with dependents, unable to be impartial
96
jury (ineligible) example
* Judges, magistrates, lawyers, police officers, members of parliament
* Unable to communicate, insufficient English, physical disability that renders them incapable of performing jury service
97
numbe of people in regional rural and remote areas
Approximately 7 million people (29% of population) live outside major cities in Australia.
98
regional
towns, small cities or areas that are outside of Melbourne but still have a sizeable population
* e.g. Ballarat, Geelong, Bendigo and Shepparton
99
rural
* Rural: places outside of Melbourne and regional areas which generally have small towns or hubs but are in the countryside - e.g. Maryborough, Nagambie and Myrtleford
100
remote
* Remote: places far away from the closest town - e.g. Dargo and Edenhope
101
RRR barriers- financial issues
Higher levels of socio-economic disadvantage in RRR areas
Ability to pay legal fees may be dependent on state of agricultural season - e.g. drought
102
RRR barriers- lack of access to legal services
* 10.5% of lawyers in RRR areas despite 29% of Aus population living outside cities
* Some areas have no lawyers at all
* Limited expertise amongst the few lawyers available
* Conflict of interest issues > people turned away
* Heavy caseloads + delays in courts > financial + emotional toll on people + distrust in legal system
103
RRR barriers-lack of access to courts
Limited physical access to courts, tribunals, dispute resolution centres, community legal centres etc.
Long distance travel required to attend legal institutions - however difficult if limited public transport or no car
+costs if must spend money on accommodation or petrol
Some regional courts are in disrepair or unfit for purpose due to lack of funding--> judges unwilling to adjudicate
104
RRR barriers-lack of access to technology
* Many people in RRR communities have limited or no access to technology - e.g. poor internet connection + phone service
* >Unable to access information or advice online + attend virtual hearings or dispute resolution
* May have to rely on paper mail or attend in person > ^costs + ^delays
105
Socio economic status
Socio-economic status ('SES') refers to the social and economic position of a given individual, or group of individuals, within the larger society.
Common measures of socio-economic status are associated with material markers such as income, consumption, wealth, education and employment.
106
when may a person be considered of low SES
if they experience conditions such as:
* low income or wealth
* unstable living arrangements
* minimal education
* They may include homeless people, long-term prisoners, unemployed people, young people and people with long-term health conditions or disabilities who are unable to work.
107
primary cost barrier
People of low SES may be unable to pursue or defend a civil claim due to the high associated costs
* The primary cost barrier is related to obtaining legal representation. This restricts an individual's ability to obtain strategic legal advice and individuals may ultimately need to represent themselves.
108
cost barriers- VLA and CLCs
* Victoria Legal Aid (VLA) and community legal centres (CLCs) provide free legal advice, information and representation to people of low SES.
* However, their resources are stretched and most of their funding is used for people involved in criminal and family law matters as opposed to civil law.
109
Addressing difficulties of SES-assistance to self represented parties
courts and tribunals offer self-represented parties assistance with understanding processes and procedures
* E.g. Self-represented litigant coordinator in the Supreme Court to guide people
* E.g. County and Supreme Court have 'self-represented litigant section on their websites with videos
110
Addressing difficulties of SES- pro bono legal services
numerous organisations offer free legal services to help 'bridge the gap' and assist people who cannot afford a lawyer but are also ineligible for legal aid.
E.g. Justice Connect - connects people of low SES with firms and barristers who offer pro bono services
111
Addressing difficulties of SES-free waivers
in all courts and tribunals, parties can apply for a fee waiver for hearings or filing if they are experiencing financial hardship
112
Addressing difficulties of SES-class actions
assist plaintiffs of low SES to group together to seek compensation from the defendant.
Often, the lead plaintiff, which may be a law firm, will incur costs if class actions fails.
If the class actions succeeds, the money is shared between the plaintiffs.
113
lack of understanding for low ses
complexity of JS is exacerbated for people of low SES, esp if they have low literacy skills /have long-term intellectual disabilities.
* Having inadequate legal literacy may make it difficult for a party to a civil dispute to understand proceedings/ legal principles, t/f making it challenging for these individuals to self-represent and access justice.
* In civil matters, Vic courts do not arrange for an interpreter to attend proceedings and are not responsible for paying for a translator. Further, Court interpreters must be accredited, therefore hiring a professional interpreter may incur a significant cost for a civil party.
114
lack of understanding- The Australian Institute of Judicial Administration (2018) findings
found that people with lower education levels, who are unemployed and do not speak English as their primary language, are less likely to seek advice when initiating legal action.
115
purpose of remedies
Remedies = a court order that aims to enforce a right by
* correcting loss by restoring the plaintiff to their original position
* preventing loss from occurring or worsening; or
* deterring other civil breaches
116
types of remedies
damages and injunctions
117
damages
* Damages = Monetary compensation is awarded to the plaintiff in a civil dispute to compensate their loss caused by a civil breach.
* Damages can be divided into different categories and, more than one type of damage can be awarded to a plaintiff in a civil dispute should the defendant be found to be liable.
118
types of compensatory damages
specific/special
general
aggravated
119
special/ specific damages
compensate for loss that can be accurately measured in monetary terms such as Medical bills and loss of past wages
120
general damages
compensate for loss that cannot be accurately measured in monetary terms such as loss of future earning capacity and loss of amenity
121
aggravated damages
awarded if defendant shows reckless disregards for
the plaintiff's feelings and causes them unnecessary stress embarrassment or harm
122
exemplary (punitive) damages
* If the defendant's conduct is particularly reprehensible, the court can impose exemplary damages with the purpose of punish the defendant and deter others from that type of behaviour.
These will be awarded if the defendant has acted consciously and in extreme disregard for the rights of others (e.g.
violence, cruelty, abuse of power
123
types of damages
compensatory
exemplary
nominal
contemptuous
124
Nominal damage
* Nominal damages = require an extremely small amount of money to be paid to a plaintiff usually valued at $1. These damages are used to ensure the plaintiff's rights are upheld without providing compensation.
Nominal damages are awarded where the plaintiff is not necessarily seeking compensation but wants to prove that they are legally right. The plaintiff often wants to make a point for moral reasons.
125
Contemptuous damages
acknowledge that the plaintiff had a legal right but not a moral right to take civil action against the defendant. To condemn the immorality of the claim, minimal compensation is awarded. When these damages are awarded, the judge must believe that the claim should not have been brought to court. An award of these damages indicate a technical victory, not a moral victory.
126
purpose of compensatory damages
* The purpose of compensatory damages is to restore the plaintiff, as nearly as possible, to the position that they would have been in had the civil wrong not been committed
127
injunctions
A court order that compels a party to do something or prevents a party from doing something.
If the defendant does not comply with the terms of the injunction, they may be held in contempt of court, be ordered to pay damages or be charged in criminal proceedings.
128
mandatory injunctions example
.Ordering a party to demolish a wall that they built on someone else's land.
129
mandatory injunctions
Forces a party to do something
130
restrictive injunction
Prevents a party from doing something.
131
restrictive injunction example
Preventing a property from being sold.
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interlocutory injunction
Lasts for a short time and is often awarded in urgent circumstances.
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interlocutory injunction example
A short-term injunction to prevent the demolition of a house, until a court can resolve a dispute regarding whether the owner is or is not entitled to demolish it.
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final injunction
Permanent injunction that is ongoing.
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final injunction example
Preventing a publisher from printing a defamatory book
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correct harm strengths injunction
injunction requires defendant to redress harm they have caused for example move object from property
Legal Backing: Benefits from the authority of the court, enhancing the likelihood of compliance and resolution.
Clarity and Precision: Offers clear directives on how to rectify the harm, reducing ambiguity in the corrective process.
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correct harm weakness injunction
only works for some types of civil law e.g. not defamation because grapevine effect can cause permanent tarnishing to reputation
significant damages cannot be repaired
injunctions alone may not be sufficient
p may have to wait for terms of injunction to fulfilled by D
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prevent harm strengths injunction
Immediate Relief: Provides prompt legal relief to prevent further harm or damage before it occurs.
Legal Authority: Offers a court-backed mandate, compelling parties to adhere to specific actions or prohibitions.
Preventative Measure: Stops harmful activities before they can cause significant damage or injury.
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prevent harm **weakness** injunction
harm has already occurred
Enforcement Challenges: Difficulties in ensuring compliance can arise, especially if the restrained party is unwilling or able to circumvent the injunction.
Immediate Harm: Injunctions may not provide timely relief in urgent situations where immediate harm needs to be addressed.
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deterrence harm **weakness** injunction
defendant may choose to disregard the injunction t/f the plaintiff has to initiate additional legal proceedings to enforce it
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deter harm **strengths** injunction
injunctions can be immediate
prompt and decisive action can serve as powerful deterrent
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same treatment (formal equality )
All individuals are treated the same and given the same level of support regardless of their personal difference or characteristics
eg.) race, religion,gender,identity or age
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different treatment (substantive equality )
If the legal system did treat people in the same way but in doing so causes disadvantage/ disparity then adjustments should be put in place to allow people to participate in the JS
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how does meditation work -without prejudice
Discussions are normally 'without prejudice. This means parties can candidly discuss the strengths and weaknesses of their case without fear as these discussions cannot be used against them at a later dater.
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jury composition- day of trial
* On the day of selection, jurors' names and occupations are announced. As a juror approaches the jury box, each party can 'challenge' the prospective juror.
Both parties have two peremptory challenges - no reason provided.
Both parties have an unlimited number of challenges for a cause - reason must be provided.
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role of judge
The judge is an impartial referee who ensures the law and correct procedures are followed in civil cases.
The judge will make rulings on legal issues which arise during civil proceedings.
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VCAT-Dispute resolution by agreement
Prior to a hearing, VCAT will encourage the disputing parties to settle the disagreement through alternative dispute resolution methods, such as mediation or conciliation.
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VCAT-hearing
if the matter is not settled, a hearing will be conducted, whereby a binding decision is handed down by members of the tribunal after parties present evidence and legal arguments.
The outcome of the hearing is legally binding and can be enforced by the courts.
in many cases, no legal representation is used and parties prepare and present their own claim or defence.
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VCAT-outcome
The defendant may be ordered to pay a sum of money to the plaintiff or perform a particular act. Such decisions made by a VCAT member are legally binding on the parties.
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VCAT-appeals
*Decisions from VCAT can only be appealed on a question of law, that is, how the relevant legal principles are applied, not on questions of fact or the amount of damages awarded.
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addressing difficulties of RRR
Various organisations encourage lawyers and students to work in RRR areas - e.g. secondment programs by big firms
There has been an increase in the availability of online information, legal advice and dispute resolution methods to limit the need for people to physically attend tribunals or courts - e.g. VCAT video conferencing
Some court facilities and offices have been upgraded or improved - e.g. the new Bendigo Law Courts precinct was opened in 2023 containing a Magistrates Court (with 11 courtroom and 2 mediation rooms), VAT and Central Victoria's first Koori Court
The Magistrates Court has 51 court locations across Victoria, 41 of which are in regional areas.
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strict rules of evidence and procedure in courts
Strict rules of evidence and procedure will be applied (e.g. both parties have an opportunity to present their case with the plaintiff going first; the Evidence Act 2008 (Vic) states that witnesses cannot give evidence of opinion to prove a fact)
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courts and judges powers and benefits
Courts provide specialisation in the type of dispute it is hearing (e.g. Supreme Court has expertise in complex commercial disputes and class actions).
Judges also have significant case management powers, including powers to order parties to attend mediation before trial and to compel the discovery of documents by certain dates.
