Legal Studies Unit 2 - Remedies

Purpose of remedies

restore (as much as possible) the wronged party to the position that they were in before the loss or injury occurred

2 main types of remedies

damages

injunctions

tyopes of damages

compensatory

nominal

exemplary

contemptuous

compensatory damages

to restore

special: precisely calculated (wage, medical expenses)

general: cannot be calculated (loss iof enjoyment)

aggrivated: defendant's reckless disregard of plaintiffs feelings, humuliation/insult

Nominal damages

to acknowledge

small sum of $$$ awarded as damages to someone who suffered a legal wrong but not an actual loss

Exemplary damages

to punish

seeks to punish defendant

court deters others from similar action, shows dissaproval

NOT AWARDED IN DEFAMATION CASES!

Contemptuous damages

to make a point

when plaintiff has legal rights to damages, but not MORAL rights

Injunctions

an order for the defendant to undertake an action or to do/stop doing something

Mandatory injunction

Court orders someone to DO something

Restrictive injunctions

Court orders someone to STOP doing something

Non judicial methods to resolve disputes

Mediation

Conciliation

Arbitration

Mediation

Confidential process

parties resolve disputes in a neutral, non-confrontational setting with the help of a mediator

decisions = made by parties to reach mutually acceptable outcome to both parties

decisions made are NOT legally binding, can enter Deed of Settlement

Conciliation

Confidential process

both parties resolve dispute with a trained, impartial conciliator

conciliator is an expert in the subject matter of the dispute

role = facilitate discussion b/t parties, suggest solutions and help the parties reach a mutually accessible outcome

decisions made are NOT legally binding, can enter Deed of Settlement

Arbitration

Non-judicial method of resolving civil disputes

resolved with independent third party = arbitrator

arbitrator listens to the dispute, make final determination

their decision is LEGALLY BINDNG

can make their own inquiries and research

much more efficient/cost effective/less formal than the courts.

Tribunals

Institutions that have been given power to resolve certain types of disputes by parliament

Tribunals examples

Victims Of Crime Assistance Tribunal - VOCAT

National Native Title Tribunal

Victorian Civil and Administrative Tribunal

Role of Tribunals

provide individuals with low cost efficiaent alternitive to courts

Where is a tribunal appropriate

- individual has civil dispute that is within power of a particular trib

- individual is concerned with the cost (trib = low cost)

- individual concerned about speed of rsolution (trib = generally faster)

- individual would like less formal setting with a final binding outcome

VCAT - Vic Civil and Administrative Tribunal

- hears disputes such as small civil claims, tenancy, discrimination, guardian issues, planning

CANNOT hear employment/class action/ criminal matters

CANNOT hear complaints already heard and determined by court

Dispute resolution methods at VCAT

- Parties first attend mediation - aim = reach mutually agreeable decision

- If mediation is unsuccessful, VCAT member makes binding decision

- for small civil claims - parties can choose Fast Track mediation

VCAT features

low cost

accessible

informal

fair/impartial

binding decision

Ombudsmen

official appointed by gov to investigate complaints made by individuals against certain bodies/institutions

Two types of ombudmen

Government ombudsmen:

deals with disputes/complaints regarding gov agencies

Industry ombudsmen: Deals w disputes between consumers and businesses in particular industries

Ombudsman: dispute resolution process

they wil first try to work with the two parties 2 come to an agreement and resolve the disputes

if not successful, SOME ombudsmen have the power to make a binding decision for the parties

Public Transport Ombudsman

investigates and resolves complaints and disputes surrounding public transport

PTO can investigate/facilitate resolutions relating to

- supply/failure of public transport

- sale of tickets, ticketing machines, ticket refunds

- infrastructure, vandalism, cleanliness

- behaviour/conduct of staff members

Powers of the PTO

- pto can require complaintant and the public transport operator to attend conciliation

- if matter not solved, PTO can make legally bunding decision

Complaints bodies

institutions given power to resolve certain types of disputes by parliament

role = provide individuals w a free complaints and dispute resolution service.

(eSafety comissioner, CAV, disabiloity sercices commisioner, etc)

Consumer Affairs Victoria (CAV)

Victorian government body that regulates consumer affairs

Free, accessible. resolution services for consumer disputes

uses conciliation

appropriate disputes for CAV

- resolves consumer disputes

- conciliates where consumer makes complaint against supplier/business, not other way around

- complaintant has already attempted to resolve dispute

Role of vic courts in resolving civil disputes:

determine liabiloty

decide remedy