USAOS2 - Remedies

what are the principles of justice?

fairness, equality and access

what does fairness mean?

“All people can participate in the justice system, and its processes should be impartial and open”

what does impartial processes mean?

No bias should be shown towards or against any party

Cases must be judged based on facts and law, with no opinion or bias

what does open processes mean?

Open processes - allow transparency in processes and allow processes to be reported in the media or scrutinised by the community

In a way, it holds processes accountable

However, less than 5% of civil claims go to trial so they are not always publicised

what does participation mean?

All people should be able to participate in a case - plaintiff and defendant should be able to attend hearings, give evidence

what does equality mean?

“All people engaging with the justice system and its processes 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”

what is formal equality?

No one should suffer any disadvantage of discrimination and should be given equal opportunities and treatment

what is substantive equality?

Special measures need to be put in place to decrease disadvantage simply because of who people are

eg interpreters, different forms of oath for witnesses

what is access?

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

what does informed basis mean?

A level of information or understanding about the system, the processes and their rights to be able to engage and make decisions

what are the three main dispute resolution methods?

mediation, conciliation and arbitration

what is mediation?

A process of dispute resolution where both parties to a dispute sit down and try to reach a mutually acceptable agreement with the help of an impartial mediator.

what does a mediator do?

does not interfere but facilitates discussion between the parties, ensuring they are being heard.

what happens if mediation is successful?

If the parties resolve the case, they normally enter into a legally binding contract known as terms of settlement (a document that sets out the terms on which the parties agree to resolve their dispute) - this means that the parties are bound by the promises they make at mediation, which is enforceable through the courts. The terms are confidential to the parties and cannot be disclosed to the public

what are the positives and negatives of mediation?

pros

discussions are without prejudice meaning what is said can’t be used against parties at a later date, meaning parties can speak freely

decisions are more acceptable to both parties as they negotiated themselves

less formal than a court room

has someone to facilitate discussion but not interfere

save time and money

cons

decisions are not binding unless there is a terms of settlement

one party may dominate

both parties must be willing to participate, and if not, it is a waste of time and money

not appropriate for all disputes

what is conciliation?

A process of dispute resolution which involves the assistance of a third party, the conciliator, who is usually an expert in the area of the dispute and has specialised knowledge

what does a conciliator do?

• Listens to both sides of the dispute

• Makes suggestions about ways to solve the matter

• Explores solutions with the parties

• Has specialist knowledge on the subject matter

what happens if conciliation is successful?

If the parties resolve the case, they normally enter into a legally binding contract known as terms of settlement (a document that sets out the terms on which the parties agree to resolve their dispute) - this means that the parties are bound by the promises they make at mediation, which is enforceable through the courts. The terms are confidential to the parties and cannot be disclosed to the public

what are the pros and cons of conciliation?

pros

discussions are without prejudice meaning what is said can’t be used against parties at a later date, meaning parties can speak freely

decisions are more acceptable to both parties as they negotiated themselves

less formal than a court room

has someone to facilitate discussion and make suggestions

save time and money

cons

decisions are not binding unless there is a terms of settlement

one party may dominate

both parties must be willing to participate, and if not, it is a waste of time and money

not appropriate for all disputes

what is arbitration?

A process of dispute resolution that is more formal than mediation and conciliation, but is less formal than a court process. An independent arbitrator will listen to both sides and render a binding decision.

what is an arbitrator?

A person in arbitration who will listen to both sides of a case and make a decision that is binding on both parties.

what is the binding decision by an arbitrator called?

arbitral award

what are the pros and cons of arbitration?

pros

flexibility in the way it is conducted to fit the parties

less formal than courts

cheaper than going to court

binding decision/arbitral award

arbitrator has expertise and will likely make a fair decision

cons

not as flexible as mediation and conciliation

more formal than mediation and conciliation

more expensive than mediation and conciliation due to legal representation and evidence to be put forth for the arbitrator

takes longer

not always available (only when parties have agreed or for claims lower than 10k in Mag court)

what is a tribunal?

A dispute resolution body that aims to provide individuals with a low-cost, efficient and speedy method of dispute resolution

what are tribunals typically used for?

Increase the community’s access to justice by providing an alternative court that is more accessible and convenient

More appropriate for settling smaller, less complex civil disputes

how do tribunals gain their power?

from parliament, with parliament passing a statute to give the tribunal authority to hear and determine certain types of matters and applications

can tribunals make binding decisions?

yes

what is an example of a tribunal?

VCAT - Victorian Civil and Administrative Tribunal

what matters does VCAT hear?

range of disputes:

• Administrative Division

• Civil Division

• Human Rights Division

• Planning and Environment Division

• Residential Tennancies Division

what must VCAT’s president and vice president be?

supreme and county court judge

what are some pros and cons of VCAT?

Low fees - application fees are only $74.10, no need for legal representation

Locations across Victoria

Hears cases quickly - don’t have to wait as long as the courts (although some lists are quite popular)

Has a less formal atmosphere than courts - more comfortable and approachable for the public

Uses methods such as mediation and compulsory conferences

Specialised divisions - more accessible for a wide range of cases

informal

limited appeal opportunities

challenges for self-represented parties

no precedent, meaning inconsistencies

limited power and jurisdiction

delays on lists

not good for complex disputes

many people are unaware

what is an ombudsman?

an official who investigates complaints and helps resolve disputes between individuals and organisations, ensuring fairness and accountability

how does an ombudsman obtain its power?

Appointed by the government, obtaining power through parliament by passing a statute

can an ombudsman make a binding decision?

yes

what is an example of an ombudsman?

The Public Transport Ombudsman - Investigates complaints about Victoria’s public transport operators.

what is the role of ombudsman?

Provide individuals and small businesses with an independent, timely and accessible dispute resolution service to resolve disputes in relation to certain agencies and industries

Helps address the imbalance of power between individuals and government agencies, as they only hear complaints from individuals or small businesses towards the government agencies and not vice versa

what are the pros and cons of ombudsman?

pros

free

informal

solves through mediation

addresses power imbalance - accountability

specialises in different areas

independent from the government and impartial

cons

limited power

limited resources

danger of inadequate use due to informality

variable quality

not appropriate for complex disputes

what are complaints bodies?

independent organisations that manage public complaints about goods and services or conduct

what is the role of complaints bodies?

Ensure fair dispute resolution, investigate issues, mediate, and recommend solutions, all while promoting accountability and protecting consumer rights

can complaints bodies make binding decisions?

no

what is an example of a complaints body?

Consumer Affairs Victoria (CAV) - Disputes between consumers and suppliers of goods and services

what are the pros and cons of complaints bodies?

pros

address power imbalance - accountability

low-cost

speedy, many different areas

independant from the government, reducing bias

offers expertise in different areas

cons

limited resources

not appropriate for complex cases

limited authority

jurisdictional constraints

what is original jurisdiction?

the power of a court to hear a matter for the first time

what is appellate jurisdiction?

the power of a court to hear a matter on appeal

outline the jurisdiction of the victorian courts

	MAGISTRATES’ COURT	COUNTY COURT	SUPREME TRIAL DIV	COURT OF APPEAL	HIGH COURT
OG	Claims below $100,000 are heard before a Magistrate, meaning damages of above $100,000 cannot be awarded and will have to go to a higher court (Claims below $10,000 are taken to arbitration)	Claims for unlimited amounts are heard before a County Court judge and an optional jury of 6 Many cases are normally taken to the County Court, as the Supreme Court is more expensive	Claims for unlimited amounts are heard before a Supreme Court judge and an optional jury of 6 Claims that are class actions (more complex)	~	Matters regarding the Constitution
AJ	~	~	Appeals from the Magistrates’ Court on a point of law (unless the chief Magistrate made the order) Appeals from VCAT (unless the President or vice-president made the order)	Appeals from the County on the grounds of the amount of damages, question of fact and point of law Appeals from the Supreme Court Trial Division on the grounds of the amount of damages, question of fact and point of law Appeals from VCAT (when the case was decided by the President or vice-president) Appeals from the Magistrates’ Court (when the Chief Magistrate made the order)	Appeals from the Court of Appeal

what is the appeal of point of law?

a misinterpretation or wrongful application of the law

what is the appeal of the amount of damages?

a wrongful amount of damages was awarded

what is a question of fact?

a misinterpretation of what actually happened

what is the role of the vic courts?

determine liability and to what extent on the balance of probabilities using evidence and fact

decide on an appropriate remedy to right the wrong and Restore the person whose rights have been infringed back to their original position back as far as possible

when is a jury used in civil law?

Mag court and in appeal cases, there is no jury

Jury is optional in the County and Supreme Courts

rare due to the fees involved and because of the complexity of cases, but sometimes used in defamation cases

how can a jury be implemented?

If either party wants a jury, they will have to request a jury trial and will have to pay the fees associated with it

The judge can still order that the trial be judge-alone, overpowering the parties

The judge may require a jury (very uncommon). If this is the case, the state will pay for it

what is the composition of a civil jury?

Six optional jurors, who are randomly selected from the Victorian electoral roll, must fill out an eligibility form

what are the reasons that a person cannot sit on the jury panel?

ineligible - legal background, disability, not confident in english

disqualified - sentenced to imprisonment for 3+ years, on bail or remand, undischarged bankrupts

challenged - rejected by parties

excused for a good reason

what is the role of the civil jury?

Listen to facts and evidence

Be impartial and unbias

Decide the verdict (liable or not liable) - unanimous verdict, and then if not, majority

Decide the amount of damages, except for defamation (the judge decides)

what are the strengths and weaknesses or the civil jury?

strengths

Multiple opinions

Impartial jurors

“Trial by peers” - members of the community decide, reflecting community values

Spreads responsibility and participation

weaknesses

Adds to the cost

Not allowed to provide reasoning for decisions

Potential bias

Complex task, especially for people who do not know the law

May result in delays

what are the purposes of remedies?

Right the wrong that has occurred to the plaintiff

Restore the plaintiff, as far as possible, to the position that they were before their rights were infringed (usually in the form of money or damages)

To make the point that the defendant’s conduct is not acceptable

To stop any harm from occurring further

To force someone to do something they are refusing to do

what are the two broad types of remedies?

damages and injunctions

what are damages?

a payment of money from the defendant to the plaintiff for the damage caused by the actions of the defendant

what are the types of damages?

Compensatory damages - to compensate the plaintiff for losses suffered

• Special/specific damages - can be accurately measured in monetary terms, such as loss of wages or medical costs

• General damages - cannot be accurately measured, such as loss of enjoyment of life, pain and suffering

• Aggravated damages - awarded if the defendant shows reckless disregard for the plaintiff’s feelings to compensate for the plaintiff’s distress, damages awarded for the insult or humiliation of the plaintiff

Exemplary (punitive/vindictive) damages - awarded to punish the defendant for outrageous actions and make an example of them to the community - cannot be awarded in defamation cases

Nominal damages - a small amount of money paid when the plaintiff did not suffer any significant harm, but are awarded on principle (claim a moral victory and uphold rights without awarding any substantial amount of damages)

Contemptuous damages - damages that acknowledge the plaintiff’s rights but also hold the plaintiff in contempt for their action, showing the plaintiff did not have a moral right to sue in the situation

how do damages achieve and not achieve the purpose of remedies?

Damages are effective for economic loss, especially specific damages

Damages cannot compensate for the time and stress of court action

Difficult to determine an appropriate level of general damages

Cannot restore the plaintiff to their original position, eg loss of life, loss of limb

Acts of Parliament place restrictions on damages

what are injunctions?

orders requiring the defendant to do or not do something to control or modify bad behaviour - can be short-term (interlocutory/interim injunctions) or permanent (perpetual injunctions)

what are the types of injunctions?

Mandatory injunctions - Compel behaviour, force someone to do something, eg make a public apology, remove an illegal fence

Restrictive injunctions - Prohibit behaviour, stop someone from doing something, eg stop posting on social media any further

how do damages achieve and not achieve the purpose of remedies?

Can restore the plaintiff to their original position, if the defendant has to fulfil an obligation

Where the actions of the defendant have already caused damage, it can stop further damage, but cannot restore the plaintiff to their original position