Legal Studies Chapter 12.2 - 12.7

Define fairness (in civil)

A principle of justice, means all people can participate in the justice system and its processes should be impartial and open

Define access

A principle of justice, means all people should be able to engage with the justice system and its processes on an informed basis

Define equality

The last principle of justice, means all people engaging with the justice systems and its processes should be treated in the same way, unless that treatment causes disparity, in which adequate measures should be implemented.

Define bias

a prejudice or lack of objectivity in relation to one person or group

Define apprehended bias

A situation in which a 'fair-minded lay observer' (average person) might reasonably believe that the person hearing or deciding a case might not bring an impartial mind to the case.

E.g. a judge hearing a case involving a family member

Define mediation

A method of dispute resolution that uses an independent third party (mediator) to help the disputing parties reach a resolution.

What is a mediator?

An independent third party who does not interfere or persuade but helps the parties in mediation as they try to reach a settlement of the matter.

Define 'without prejudice', and state in what methods it applies

Any discussions during dispute resolution are unable to be used against them if the matter continued to court (or elsewhere) at a later date. It is applicable in mediation and conciliation

Define terms of settlement

A binding legal document that sets out the terms on which the parties agree to resolve their dispute. The decisions made in mediation/conciliation are only binding if the parties enter into this.

Define conciliation

a method of dispute resolution that uses an independent third party (conciliator) to help the disputers to reach a resolution.

What is a conciliator?

An independent third party in conciliation who helps the parties reach an agreement that ends the dispute.

What role does a conciliator play in the dispute resolution process?

The conciliator makes suggestions and offers advice to assist in finding a mutually acceptable resolution.

Who ultimately reaches the decision in conciliation?

The parties involved in the dispute reach the decision themselves.

What is the level of expertise required for mediation?

Mediation does not require expertise, only needs good people skills and excellent conflict resolution.

What is the level of expertise required for conciliation?

A conciliator will usually have specialist knowledge on the subject matter of the dispute.

What is the level of expertise required for arbitration?

The arbitrator will generally have expertise on the subject matter of the dispute and also the applicable law.

Define arbitration

A method of dispute resolution in which an independent person (arbitrator) is appointed to listen to both sides of a dispute and to make a legally binding decision on the parties.

Define arbitral award

A legally binding decision made by an arbitrator during arbitration.

Define arbitrator

The independent third party appointed to settle a dispute during arbitration.

Define compulsory conference

a confidential meeting between the parties involved in a dispute (with the involvement of an independent third party) to discuss ways to resolve the dispute.

Define tribunal

a dispute resolution body that resolves civil disputes and is intended to be a less costly, more informal and faster way to resolve disputes

How are tribunals established?

By an Act of Parliament

What is VCAT?

The Victorian Civil and Administrative Tribunal, a tribunal that deals with disputes relating to a range of civil issues, e.g. human rights, residential tenancies list

Define ombudsmen

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

What is the purpose of ombudsmen?

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

How do ombudsmen gain their powers?

From an Act of Parliament

What are the two types of ombudsmen?

A government ombudsmen, hearing complaints/disputes against government agencies

An industry ombudsmen, deals with disputes between consumers and businesses in certain industries, i.e public transport

What is an example of an ombudsman?

The Public Transport Ombudsman. Investigates and resolves complaints about certain public transport operators, inc. PTV, Metro trains Melbourne, etc.

What type of disputes do complaints bodies deal with?

Those regarding the provision of goods and services, or decisions made by certain bodies or authorities.

What type of dispute resolution do ombudsmen use?

Mediation/conciliation and possibly arbitration.

What type of dispute resolution do complaints bodies use?

Mediation, no power to make binding decisions or conduct hearings

What is the role of complaints bodies?

To provide individuals and small businesses with a free or low-cost institution designed to hear complaints on goods/services provided to them.

What is an example of a complaints body?

The VEORHC, or Victorian Equal Opp. and Human Rights Commission

What is the Hierarchy of courts in the civil justice system?

High Court of Australia - Supreme Court of Victoria (Court of Appeal) - Supreme Court of Vic (Trial Division) - County Court of Vic - Magistrates Court of Vic - Other dispute resolution bodies, e.g. tribunals

Define jurisdiction

the lawful authority (or power) of a court, tribunal or other dispute resolution body to decide legal cases

Define appeal

an application to have a higher court review a ruling (decision)

Define original jurisdiction

the power of a court to hear a case for the first time (not on appeal from a lower court)

Define appellate jurisdiction

the power of a court to hear a case on appeal

What is the civil jurisdiction of the magistrates court?

Can hear minor civil disputes of up to $100,000.

What is the appellate jurisdiction of the magistrates court?

It has no appellate jurisdiction

What is the original jurisdiction of the County Court?

The original jurisdiction of the County Court for civil claims is unlimited. A party may choose to have their case in either the County or Supreme Court, but is cheaper in County Court

What is the appellate jurisdiction of the County Court?

The County Court does not have appellate jurisdiction in civil matters unless an Act explicitly states that it must.

Who can hear a case in the County Court?

Trial is by either judge or a jury of six. The jury is paid for by the party that requests one.

What is the original jurisdiction of the Supreme Court (Trial Division)?

The original jurisdiction for civil claims is unlimited. Therefore, claims can be of any amount.

For what cases is the Supreme Court used?

For complex and large civil disputes, e.g. class actions

What is the appellate jurisdiction of the Supreme Court (Trial Division)?

The appellate jurisdiction of the SCTD are appeals from the Magistrates' Court on a point of law (unless heard by the Chief Magistrate), and appeals from VCAT (not by presidents or vice-presidents). All cases are heard with one judge.

What is the original jurisdiction of the Supreme Court (Court of Appeal)?

It has no original jurisdiction.

What is the appellate jurisdiction of the Supreme Court (Court of Appeal)?

It hears appeals on questions of fact, questions of law or the amount of damages awarded from the Supreme Court (TD), the County Court, from the Chief Magistrate and the vice-presidents or presidents of VCAT.

What is required to appeal a decision?

In almost all civil disputes. permission or leave to appeal of the Supreme Court (Court of Appeal)