LEGAL U2AOS2

remedies

mechanisms for returning a wronged party to their original position as far as is practicable prior to the wrong occurring

fairness

• all decision makers must be impartial and have no connection to any party. if any connection they must recuse (disqualify) themselves

• all processes must be open and transparent to the public

  • exception can be the alternative dispute resolution process of mediation

    • bc of the private nature of some disputes this process is carried out by an impartial mediator and the parties resolve themselves

      • preserving relationship

      • reducing strain on court resources and money

      • parties coming to a resolution themselves are more likely to follow it, even if it is not legally binding

• participation: dispute resolution must be framed so that the party can understand the proceeding, held in everyday terms

equality

all people engaging in the legal system must be treated equally except where when being treated the same causes disparity

fairness definition

all people should be able to understand their legal rights and pursue their case

• impartial, open

equality definition

people should be equal before the law and have the opportunity to present case without advantage or disadvantage

access definition

all people should be able to engage with the justice system and processes on an informed basis

• access rights to understand why they have been infringed

mediation

a form of dispute resolution where the parties come together and an impartial third person known as a mediator facilitates discussion between the parties in order to reach a mutually acceptable agreement.

what does a mediator do

• helps parties communicate, identify interests, explore solutions

• listens to both sides, may listen to each side separately

• does not make suggestions, does not impose a solution, parties come to own resolution, not legally binding

what is mediation most likely to do

preserve relationships (family disputes, custody of children, neighbors)

Where is mediation used

• all courts refers cases to mediation when they believe it can help the parties reach a mutually acceptable resolution

• VCAT: tenancy disputes, building disputes, planning and environmental matters

conciliation

a form of dispute resolution where an independent third party known as a conciliator facilitates discussion between parties and suggests solutions to them

• not legally binding

• can preserve relationships to a point

what does the conciliator do

conciliator takes a more active role in proposing solutions or making suggestions to the parties.

does not have authority to impose a decision on the parties but helps to facilitate a negotiated agreement

what does conciliation emphasize

emphasises parties voluntary cooperation and aims to preserve relationships, promote understanding and reach a mutually acceptable resolution

(only legally binding if terms of settlement are signed)

where is conciliation used

all courts have power to refer parties to conciliation

VCAT: uses conciliation in compulsory conferences

CAV: uses conciliation to resolve a dispute

when is mediation and conciliation appropriate

• appropriate for disputes where there is a possibility of ongoing relationships between the parties involved, allows communication and collaboration

• effective when parties are willing to participate voluntarily and actively engage in the negotiation process

• appropriate when privacy and confidentiality are important as process conducted in confidential setting

• helpful when need quicker, cost effective resolution

when is mediation and conciliation not appropriate

• cases involving a power imbalance between parties

• one or more parties unwilling to actively participate/negotiate in good faith

• in situation where parties have a history of unsuccessful mediation/conciliation attempts or a strong adversial nature

strengths of mediation/conciliation

• preserves relationship

• strategic questioning allows parties to understand the cause of their anger/upset1.

1. less formal than the court process

• don’t required strict rules or evidence and procedure making process more relaxed and accessible

• helps parties feel less intimidates, encourages open communication, allows more people to resolve disputes without stress of a courtroom

• increases ability to engage (access)

2. less expensive + timelier

• lower fees, generally no need for legal rep

• no strict rules of evidence/procedure

• resolves disputes more quickly and affordably, encouraging parties to stay committed to finding a resolution and reducing stress, financial burden

• allows fairness as it increases a parties ability to participate

• more context to the dispute

• confidential bc not in public

• parties likely to abide by resolution

• 
  

weaknesses of mediation/conciliation

some relationships aren’t worth preserving (commercial relationships)

1. if there is a power imbalance between parties

• one party may exert too much influence over the other which may limit equality

• one party may compromise too much to reach a resolution, leading to unsatisfactory outcome

2. mediators/conciliator cant compel parties to show up

• if one party unwilling to genuinely cooperate, compromise, participate, honesty, processes can become ineffective

• wastes time, creates frustration and fails to resolve the dispute especially compared to courts where a binding decision would be imposed regardless of the parties attitudes

arbitration

a dispute resolution body where an independent third party listens to both parties and imposes a decision upon them which is legally binding (more of a win-lose scenario)

more formal setting than others of rules and procedures agreed upon by both parties

generally legal rep - more expensive

about arbitrator

• has authority to make a binding decision, enforceable by law

• arbitrator likely a specialist in the area of the dispute

where arbitration is used

courts: magistrates court under 10k, supreme court has arbitration list

when is arbitration suitable

• where there is an ongoing relationship

• claim less than 10K in magistrate court

• parties want certainty of binding decision

• parties want some rules of evidence to apply

• parties want the matter resolved confidentially and in private

when is arbitration unsuitable

• parties want a greater control over the process of the outcome

• parties wish to have their ‘day in court’ rather than private

• parties prefer formality of court

• parties prefer increases avenues for appeal from court

strengths of arbitration

• binding decision

  • fully enforceable through courts

  • provides certainty, closure, enforceability for both parties

  • fairness

• private

  • normally held in private and will be confidential

  • beneficial for parties wishing to avoid the publicity of a trial

  • allows parties to resolve disputes without added pressure of public exposure, helping maintain personal or business reputations

  • flexibility about how the dispute may be resolved - can be fitted to the context

  • access as it provides more of a discrete forum for parties to fully engage

• timelier and cost efficient

  • costs generally less than courts

  • can resolve disputes faster than courts

  • fewer costs as not all rules of evidence and procedure have to be followed as they would in court

• less formal than courts

weaknesses of arbitration

• lack of control

  • less flexible as m + c b/c decision is imposed upon parties

  • may lead to dissatisfaction if a party feels decision was unfair

  • compromises access bc parties feel as if they dont have a genuine opportunity to influence and engage in the process

• more expensive than m+c

• arbitration not always available to the parties or availability may be limited

why arbitration over courts

cost

• although legal rep generally necessary the rules of evidence + procedure are not as strict as they are in court therefore legal rep does not need to be engaged as long as it would be in courts

specialization of the arbitrator

• bc arbitrator is an expert in the field of the dispute, the deliberation and outcome is going to be more appropriate and relevant to the dispute

privacy

• court hearings are open to the public whereas arbitration may be considered privately with the arbitrator and the parties only. means that dispute and outcome may not be widely reported, protecting parties, also protect delicate or confidential business information.

mediation vs conciliation

BOTH:

• cooperative methods where individual third party facilitates discussion (future relationship)

• neither imposes binding decision

• less formal than courts - increasing access

DIFFERENCE:

• conciliator has specialist knowledge and is able to make suggestions on how to resolve the case, whereas mediator only facilitates discussion

• 
  

mediation vs arbitration

BOTH:

• cooperative methods: focus on win-win outcome

DIFFERENCE:

• arbitration provides specialist knowledge, mediation doesn’t

• arbitration offers suggestions and solutions on how dispute can be resolved

• arbitrator provides binding outcome, mediator does not

• arbitration more formal

conciliation vs arbitration

BOTH:

• cooperative methods

• both have specialist knowledge of area of law and can offer suggestions and solutions on how disputes can be resolved

DIFFERENCE:

• arbitration provides binding outcome

• arbitration more formal

VCAT

Victorian civil and administrative tribunal

• provides dispute resolution for small civil cases

four main roles of vcat

• low cost dispute resolution

• accessible and informal

• timely resolution

• expert bodies

low cost dispute resolution: VCAT

• no need for legal rep and pre-trial procedures

• nominal fee $202 to register small claim

• low cost compared to court

• increases access

accessible and informal: VCAT

no strict rules of evidence and procedure (bc no legal rep)

• parties can represent themselves

less intimidating, focuses on resolving disputes

allows online application and can hear matters online over the phone

operates in a number of vic locations - rural areas

timely resolution: VCAT

• resolves disputes faster than courts

• reduces stress/cost of delays

• attempts to reduce waiting times for matters to be heard

• b/c does not use pre-trial procedures matters heard more quickly as go straight to hearing

expert bodies: VCAT

has specialized lists

disputes VCAT cant hear

• class actions

• disputes between employers and employees (goes to fair work commission)

• disputes between neighbors

• disputes between drivers in car accidents

Dispute resolution methods at VCAT

mediation

compulsory conference - conciliation

final hearing - arbitration

mediation at vcat

• whilst not legally binding parties can choose to draw up a deed of settlement which will make it legally binding

• does not have fast rack mediation/hearing.

compulsory conference at vcat

confidential meeting to try and resolve the dispute without going to a hearing or having a decision imposed on the parties

A VCAT member may inform the parties of the likely outcome should it go to a hearing which may motivate parties to settle beforehand

final hearing and vcat

• conducted with as little formality as possible and VCAT members will impose a decision on the parties

• (requiring parties to complete work, pay for goods/services, alter/vary a contract)

when vcat is not appropriate

• class action

• dispute not in vcats jurisdiction

• aminosity between parties

• rules of evidence and procedure required for formal adjudication

• party seeking predictability - does not follow doctrine of precedent

• complex cases

strengths of vcat

much less formal

• no strict rules of evidence and procedure

• no need for legal rep

• less intimidating for parties

• parties encourages to reach decision themselves

• informal settings allow individuals to feel more comfortable and participate actively in resolving their dispute

• ensures fairness bc ordinary people can present their case

timely resolution

less expensive than courts

• vcat has low application fees, doesn’t require legal rep, avoids pre-trial procedural costs

weaknesses of vcat

Increasing costs

• some of VCATs lists are becoming more complex and as a result legal representation is becoming more common

• limits fairness

Too informal

• too much informality can make some parties feel it is not appropriate to settle disputes, or they feel greater formality (rules of evidence and procedure) are required for ‘the truth to come out’

Decreased Predictability

• whilst ordinary people can present their case decisions made by vcat do not establish precedent and people do not know how their case is likely to be settled as they would in court

CAV

consumer affairs victoria

advices government on consumer legislation, educates people on consumer laws, enforces compliance with these laws, provides traders/landlords and tentants with a dispute resolution process

help people come to agreements where they have a dispute with regards to:

• a fault product bought

• disputes about buying vehicles

• disputes about rental agreements

• disputes about repairs

• disputes related to goods and services provided under a contract

what to do before going to cav

a person must have first brought the dispute to the attention of the other party and attempted to resolve it.

what does cav not accept

complaints from businesses or landlords. only from tenants and consumers

• links to fairness and equality bc addresses power imbalance

CAV dispute resolution methods

main method is conciliation

• facilitates discussion, makes suggestions, helps parties come to own decision, specialist in area of law

offers conciliation over the phone promoting accessibility bc it can be done anywhere (access), increasing efficiency (access) and confidentiality (fairness)

not legally binding so parties dont have to follow through with it

• can make it legally binding through signing deed of settlement

when is cav appropriate

• if complainant has attempted to resolve their dispute independently

• willing to cooperate, ongoing relationship

• consumer and tenants

• free

when is cav not appropriate

• want binding decision

• landlord or supplier

• unequal power imbalance

• not willing to cooperate

• not in CAV’s jurisdiction

• if matter is urgent

• large and complex disputes

strenths of cav

Free

• conciliation is free so individuals do not have to pay application or representation fees

Informal

• not subject to rules of evidence and procedure, legal rep

• can be conducted over phone, less intimidating formal court procedures

Procedural fairness

• allowing each party to present their sides of events and to challenge the other parties version of events

weaknesses of cav

Role is limiting

• criteria to resolve disputes is quite narrow which means not all disputes can be resolved this way

• limits fairness

No power to enforce decisions

• no power to impose or enforce a decision/resolution on the parties unless they agree to make it legally binding

• if one party ignores, other left without a remedy - might take to court

similarities of cav and vcat

• both use conciliation

• both low cost

• both informal

• both take pressure off court

• both promote collaboration/relationships

• both can hear tenant/landlord and consumer disputes

differences of cav and vcat

• vcat more extensive jurisdiction than cav

• cav only uses conciliation vcat uses all three

• vcat has more resources (more timely, while cav is limited)

• vcat has a fee, cav is free

• cav private, vcat final hearing can be open to public

• vcat has avenue of appeal on point of law, cav doesnt

• vcat can offer legally binding, cav cant

can appeal on following grounds

• point of law: judge/magistrate made error in law

• damages: disputing damages awarded

• question of fact: facts presented wrong

magistrates court

arbitration for less than 10k

claims up to 100k

no appelate jurisdiction

can go to: CAV, VCAT

county court

unlimited jurisdicion

no appelate jurisdiction

defamation, property purchasing disputes, personal injury

supreme court

unlimited jurisdiction

judge can hear appeal on point of law

can hear appeals from vcat on point of law

more complex cases, like class actions/commercial disputes

court of appeal

no original jurisdiction

hears appeals from county/supreme on point of law/damages rewarded

HCA

appeals from all state equivalents of court of appeal

courts not appropriate

ongoing relationship

less than 10k

dont want publicity

courts appropriate

legally binding

want a jury

publicity

strengths of court

legally binding

procedural fairness - strict rules of evidence and procedure

expertise

weaknesses of court

formality + complexity of procedures

adversial nature of proceedings

when the jury is used

in civil trial in vic jury is hardly ever used

no automatic right to a jury in a civil trial like criminal

jury in county/supreme in optional. a party must request a jury and pay the associated fees to have one

no jury in magistrates/appeals

jury not only decides the verdict but also the damages

problem with this: jury not only decides the verdict but also the damages

jury has no experiences in deciding damages

composition

six community members who hear evidence, decide the verdict, and decide level of damages awarded, whereas experience judge (like criminal) able to decide damages relative to other cases they see. higher level of predictability

required to give unanimous verdict although judge may allow majority verdict (5/6) after extensive deliberation

role of jury

• objective decision making

• understand legal directions

• decide liability and damages

• deliver verdict

strengths of jury

impartiality and community participation

collective decision making

weaknesses of jury

potential bias

delays

first nations people difficulties

distrust in justice system due to historical/contemporary issues

• no familiarity w British system

• dispossessed

language differences - complicates interactions

• respect conveyed in different ways

• silence is valid

cultural differences - may not align with mainstream legal processes/norms

• elders highly respected

• resolve disputes through their leadership

• strong connection to land/spirituality

makes access more difficult

addressing issues

the vitorian and aboriginal legal service (VALS)

• funded by court

• assists with criminal and civil and family law matters

Courts and tribuals train staff to understand ATSI culture by running cultural competence training run by aboriginal groups

VCAT has deliberately employed more Koori staff and made changes to ensure hearing rooms are cleansed by smoking

assistance to self represented parties

purpose of civil remedies

to restore the wronged party back to their original position as far as is practicable prior to the wrong occurring

to stop the harm from continuing

to force a party to do something that otherwise they wouldn’t do

damages

a sum of money granted to the plaintiff to be paid by the defendant in satisfaction of claim by the defendant

four types of damages

compensatory damages

• specific

• general

• aggravated

nominal damages

contemptuous damages

exemplary damages

specific damages

can be given a precise monetary value. these can be listed such as medical expenses, loss of wages

• easily quantifiable

general damages

will be assessed by court according to the magnitude of the wrong done and the long term consequences of the wrong, taking into consideration matters such as future loss of wages, long term job prospects, pain and suffering

• not easily quantifiable

aggravated damages

can be awarded to compensate the plaintiff further if the court believes that the defendants conduct injured the plaintiffs feelings by causing humiliation and insult

nominal damages

a small amount of money, where a legal principal is proven but no loss incurred

• plaintiff may be seeking to prove a point about being legally in the right and to show their rights have been infringed

• common in defamation

contemptuous damages

small damages may be awarded to show contempt for the claim

court may feel plaintiff has a legal right to damages, but does not have a moral right, that is, the plaintiff did not deserve to be paid damages

matter shouldn’t have gone to court

• a way of the court showing their disapproval of wasted time/resources

• and that plaintiff should’ve resolved it earlier.

exemplary damages

purpose is to punish and deter the defendant who’s conduct is malicious, violent, cruel or in insolent disregard of the plaintiffs rights

• often associated with class actions

injunctions

a court order directing someone to stop doing a certain act or compelling someone to do a certain act

• purpose: rectify a situation caused by the person who was found to be in the wrong

prohibitive/restrictive injunction

ordering a person to refrain from undertaking an action

• pulling down a building, stop publication of book

mandatory injunction

ordering a person to do a particular act

• performing their part of a contract they have breached

injunctions can be either:

interlocutory: temporary

perpetual: ongoing