unit 3 aos2b Flashcards
define case management
a method used by courts/tribunals to control the progress of a case more effectively and efficiently. involves the judge making orders and directions in the proceeding
state the judicial powers of case management (2)
power to order mediation and power to give directions
define power to order mediation (judicial powers of case management)
court can order that a court officer acts as mediator or that parties arrange it privately. can be referred at any time of the proceeding. can assist prompt and economical resolution of a dispute.
define power to give directions (judicial powers of case management)
a direction is an instruction given by the court to one or more of the parties which imposes an obligation to do something/not do something. court may give any direction considered appropriate at any stage of proceeding. can include order evidence will be given in, number of witnesses, length of submissions
jurisdiction of courts as dispute resolution bodies
the county & supreme court have unlimited jurisdiction to hear civil disputes. magistrates court jurisdictional limit is $100,000
things to consider when taking a matter to court
costs of court, size/complexity of matter, possible delays, access to legal representation, formalities of courtroom
strengths of court as a dispute resolution body
laws apply equally to all, decision makers are independant and impartial, allows parties to determine strengths/weaknesses of each others case, jury allows community values to be upheld
weaknesses of court as a dispute resolution body
subconscious biases, processes are difficult to understand without a lawyer, long delays, costs may restrict access
define mediation
2 disputing parties, mediator facilitates conversation between parties, resolution made by parties. courts and vcat may order mediation or parties can request.
define conciliation
2 disputing parties, conciliator offers suggestions & solutions, resolution made by parties. conciliator usually has specialist knowledge
disputes suitable for mediation/conciliation
a relationship between parties will continue, parties are prepared to compromise, defendant admits liability, parties want privacy
disputes unsuitable for mediation/conciliation
history of violence, matter is urgent, imbalance of power between parties, parties arent willing to reach an agreement
strengths of mediation/conciliation
less formal/intimidating, voluntary process, private, flexibility in processes
weaknesses of mediation, conciliation
decision may not be enforceable, one party may feel intimidated, one party may refuse to attend
define arbitration
2 disputing parties, independant arbitrator listens and makes a legally binding decision. available when parties agree, court orders it or claim has been filed in magistrates court and plaintiff is seeking less than $100,000
disputes suitable for arbitration
parties have agreed, parties want decision made by third party, want to avoid publicity of courtroom, parties want evidence presented to a third party
disputes unsuitable for arbitration
parties want control over outcome, parties want formalities of courtroom
strengths of arbitration
binding decision, private, arbitrator is expert, costs can be less than courts
weaknesses of arbitration
parties have no control over outcome, can be formal(adds time and stress), right to appeal is limited, not available if claim isnt in magistrates court
define remedy
an order made by the court designed to address a civil wrong. general purpose is to restore plaintiff as far as possible to their position before wrong occurred
state the 2 types of remedies
injunctions and damages
state the types of damages (4)
compensatory, nominal, exemplary, contemptuous
state the types of compensatory damages (3)
general, specific, aggravated
define damages
amount of money awarded to plaintiff to be paid by defendant. purpose is to compensate for losses suffered
define compensatory damages
most common. aim is to restore party whos rights have been infringed to previous position. 3 types are general, specific, aggravated
define specific damages (compensatory)
can be given a precise monetary value, easily quantifiable.
define general damages (compensatory)
a general estimate, not readily quantifiable
define aggravated damages (compensatory)
compensate plaintiff further if court believes defendant caused plaintiff humiliation
define nominal damages
small amount. plaintiff may wish to make a point about being legally in the right but may not be seeking a large sum of money in compensation. purpose is to uphold plaintiffs rights without awarding substantial damages
define contemptuous damages
plaintiff has a legal right to damages but not a moral right. small amount is awarded to show contempt
define exemplary damages
seeks to punish defendant for extreme infringement of rights and deter others from undertaking similar actions
define injunctions
court order directing someone to stop doing something or compelling someone to do something. purpose is to rectify situation caused by person thought to be in the wrong.
state the 2 types of injunctions
restrictive/prohibitive: stopping an action. mandatory: completing a particular act
define interlocutory injunction
temporary and is awarded quickly in situations where an injunction is needed asap. can be final or dismissed
