LEGAL STUDIES AOS2 UNIT 2

THE 3 PRINCIPLES OF JUSTICE

fairness, access, equality

fairness poj

ensuring legal processes are in place, and all parties receive a fair hearing.

• plaintiffs have an opportunity to present evidence and to persuade a remedy for harm caused by the defendant.

• All defendants can know the plaintiff’s evidence, present their own case, and challenge the plaintiff’s claims.

• Outcomes are based on law and facts, not bias.

• Both parties can have legal representation.

• Resolutions and remedies should be delivered with minimal delay.

access poj

ensuring individuals in society have an understanding of legal rights and an ability to pursue their case.

• Access to justice is promoted by:

  -plaintiffs know of their legal rights and ability to seek remedy

  - most appropriate body used for remedy

  -It is clear to lay-people how to initiate a civil action.

  -access to the legal system is affordable

  -Enabling a defendant to present evidence that disproves the allegations being made against them.

  -Being able to access the appeals process when appropriate. 

equality poj

ensuring all people are treated equally before the law, with an equal opportunity to present their case.

• all treated in same manner regardless of age, gender, religion or disability.

• Similar cases should have a similar outcome. awards for similar injuries too.

• Court procedures are applied equally to all who seek a remedy or are defending a claim e.g. presenting evidence

3 alternative dispute resolution processes

mediation, arbitration, conciliation.

mediation

Joint problem solving process where both parties sit down to discuss their issues.

• overseen by a neutral and impartial mediator, generally not experts in the cases dispute

• they don’t decide on the solution, or give legal advice

• discussions are without prejudice and cannot be used as evidence in court proceedings

• parties can enter into a terms of settlement

• mediators assist parties in coming to a decision by:

- Empowering both parties

- Evening out any power imbalances

- Discussing issues with the parties

conciliation

Joint problem solving process where both parties sit down to discuss their issues, overseen by a conciliator (independent third party )

• after listening to both parties they make suggestions about how to resolve the dispute.

• often have expertise in the subject matter of the dispute

• any decisions made are not legally binding, unless parties decide to enter into a terms of settlement

• discussions are without prejudice and cannot be used as evidence in court

arbitration

where arbitrators, after listening to both parties, will make a legally binding decision  on the parties called an arbitral award.

• Witnesses can be called to answer questions and evidence can be tabled

• Arbitrators are usually experts on the subject of dispute and applicable laws, and therefore charge a fee for their services

usually used in:

• Commercial/corporate disputes

• Civil claims for up to $10,000 filed in the Magistrates’ Court where previous attempts failed

3 institutions that solve disputes

tribunals, ombudsmen, and complaints bodies

tribunals

Obtain their power from parliament: Parliament passes a statute granting them authority to hear certain types of matters.

Victorian Civil and Administrative Tribunal (VCAAT)

independent tribunal that delivers high quality dispute resolution by charging low fees, disallowing legal representation except in certain circumstances, having multiple locations, hears cases quickly.

is made up of five divisions, which each have one or more ‘lists’:

Administrative Division, Civil Division, Human Rights Division, Planning and Environment Division, and Residential Tenancies division, which hears disputes like:

• Where the tenant has failed to pay rent

• Where the landlord has refused/failed to repair the property

Parties: Applicant and respondent

ombudsmen

An official appointed by the government to investigate complaints made by individuals against certain bodies/institutions.

• Obtain their power from parliament: Parliament passes a statute granting them authority to hear certain types of matters

• they act independently and impartially.

• In many instances, an ombudsman will not hear a complaint unless the individual has first tried to resolve the matter themselves.

role of ombudsmen

Provides a free service for individuals or small businesses to resolve complaints against large providers or government agencies, reducing power imbalances.

first try to facilitate resolution between parties, and if unsuccessful, may make a legally binding decision with reasons.
Types:

• Government Ombudsman – handles complaints about government agencies.

• Industry Ombudsman – handles disputes between consumers and businesses in specific industries (e.g. energy, finance, transport).

complaints bodies

independent organisations established by parliament to help resolve disputes about goods, services, or decisions by certain authorities.

They focus on specific industries, offer free or low-cost, informal services, and allow complaints online or by phone.

Unlike ombudsmen, they usually cannot hold hearings or make binding decisions, though some (e.g. eSafety Commissioner) can investigate and enforce laws.

role of civil jurisdictions of the victorian court

Used as a last resort due to high costs and other resolution options. Their main roles are to determine liability and decide remedies.

• Supreme Court hears complex cases (e.g. class actions), County Court handles serious civil matters, and Magistrates’ Court deals with minor disputes.

• Judges can order mediation or document disclosure to streamline cases.

• Higher courts (County, Supreme, Court of Appeal) review decisions if grounds exist.

• Usually damages, plus possible costs or interest. Judges or juries assess damages (judges only in defamation). Courts provide written, publicly available reasons for their decisions.

role of the jury in a civil trial

There is no automatic right to a jury in civil trials.

• No jury: Magistrates’ Court or appeals.

• Optional jury: County and Supreme Courts, if a party applies and pays fees (judge can refuse). Rarely, a judge may order one at the state’s expense.

Composition: Six jurors (up to 2 extras for long trials, discharged before deliberation). Jurors are randomly selected from the electoral roll, with some disqualified, ineligible, or excused. Each party gets two peremptory challenges and unlimited challenges for cause.

Role: Decide facts and liability on the balance of probabilities, and sometimes assess damages.

• Verdicts can be unanimous or 5/6 majority. Jurors don’t give reasons, and penalties apply for seeking outside information.

different groups in the civil justice system

first nations people, people of low socioeconomic status, young people, people in regional, rural and remote areas

difficulties faced by first nations people

are Australia’s original inhabitants for over 65,000 years, may face barriers to accessing justice due to distrust, language, and cultural differences.

• Common issues include tenancy disputes, racism, and discrimination.

• Support is provided through the Victorian Aboriginal Legal Service (VALS), and courts like VCAT promote cultural safety through staff cultural competence training and increased Indigenous employment.

difficulties faced by people of low socioeconomic status

People with limited income or wealth—such as the unemployed, homeless, or those with disabilities may struggle to access justice due to limited understanding of the system or financial barriers.

• Common issues include housing, debt, and mental health.

• Support includes free legal services, assistance for self-represented parties, limited lawyer use at VCAT, and fee waivers or reductions.

difficulties faced by young people

Refers to those under 25, including children (under 18 can sue or be sued).

• Young people may face limited communication skills, lack of legal knowledge, and resources.

• Common issues include contracts, debt, rights breaches, transport accidents, and housing problems.

• Support includes YouthLaw, simplified language in courts and tribunals, and information from organisations like VEOHRC.

difficulties faced by people in regional, rural, remote areas.

all areas outside Australia's Major cities

• People in RRR areas face barriers such as limited legal services, technology, and court access.

• They encounter similar legal issues to metropolitan residents, with water rights and agricultural laws more common.

• Support includes encouraging lawyers/students to work in RRR areas, online resources and dispute resolution, and improved regional court facilities.

purpose of remedies 

aim to restore as much as possible the party who has suffered a loss or injury, to the position they were prior to the loss or injury occurring

• usually achieved through damages (money)

• A person owed money may make a claim

• A person who is injured, make a claim to compensate them for their pain/suffering

two main types: damages, injunctions

2 types of remedies

damages, injunctions

what are damages?

amount of money paid from one party to another

• Generally defendant to plaintiff, or plaintiff to defendant in a counterclaim

• they seek to compensate a party for the loss they have suffered

compensatory damages

The main type of damages sought.

Special or Specific Damages:

• compensate for items which can be calculated objectively and exactly eg. medical expenses

General Damages

• compensate for pain and suffering and cannot be calculated objectively e.g. emotional suffering

Aggravated Damages

• compensate for humiliation and insult

nominal damages

Awarded if courts acknowledges that rights have been infringed but there is no actual loss. Courts will only award a small amount

exemplary damages

• aka punitive damages

• aim is to punish a defendant (the only example in civil law).

• Awarded to deter others from similar action and to express disapproval

• Eg. If the defendant has shown total disrespect for plaintiff’s wishes

contemptuous damages

Awarded when the court acknowledges a legal right to damages but that the plaintiff does not deserve to be paid damages (because of moral reasons).

effectiveness of damages

factors to consider:

• The type of loss that has been suffered (eg. economic or non-economic)

• Significance of injury or damage (eg. loss of limb)

• Whether there has been loss of life

• The accuracy of the estimate for future loss

• The injuries suffered following the award of damages

• Whether there is another remedy that is better

• Whether damages can adequately compensate for the time, stress and inconvenience of court proceedings

• Whether the defendant has the capacity to pay

what are injunctions?

Court order to do something or refrain from doing something in an attempt to restore the plaintiff to the position they were prior to the harm/loss they suffered.

• They can be granted on a temporary or long-term basis

the two types of injunctions:

Restrictive: stops someone from doing something

Mandatory: compels someone to do something

effectiveness of injunctions

factors to consider:

• Whether the defendant has already caused too much damage

• Whether the defendant will stop their actions or do other things to cause the plaintiff loss

• Whether the defendant will comply with the injunction

• Whether the plaintiff will be returned to their original position

• Whether there is another remedy that is better for the plaintiff

• Whether the injunction can adequately compensate for the time, stress and inconvenience of court proceeding