Unit 2 Civil Law – Remedies and Access to Justice (Video Notes)

Vocabulary flashcards covering remedies, damages, injunctions, access to justice, and ADR concepts from the lecture notes.

Remedy

A court-provided legal solution to address a wrong or loss, aiming to restore the plaintiff to the position they were in before the harm or to address the wrongdoing.

Damages

Sums of money awarded by the court to compensate for loss or harm, with the main goal of restoring the plaintiff as much as possible.

Compensatory damages

Damages intended to restore the plaintiff to the position they were in before the wrong occurred.

Special (specific) damages

Calculable losses such as medical costs or lost wages.

General damages

Non-quantifiable losses such as pain, suffering, or reduced quality of life.

Aggravated damages

Damages awarded when the defendant’s actions caused humiliation, insult, or additional harm.

Nominal damages

Small sums awarded when legal rights were infringed but there was no significant monetary loss; example: Clive Palmer v McGowan.

Exemplary (punitive) damages

Damages awarded to punish outrageous conduct and deter similar behaviour; example: Jordan Brown class action regarding capsicum spray.

Contemptuous damages

Damages awarded when the plaintiff has a legal right but the court disapproves of the moral basis of the claim; rare and symbolic.

Effectiveness of damages

Depends on factors like type of loss, whether the loss is minor or significant, potential ongoing harm, the defendant’s ability to pay, and the time/cost/stress not fully compensable.

Damages limitations

Damages may not fully compensate for time, stress, or inconvenience; additional remedies (e.g., injunctions) may be needed.

Injunction

A court order requiring a party to do something or refrain from doing something to prevent or stop harm.

Restrictive injunctions

Injunctions that stop the defendant from doing something (e.g., preventing logging of habitats).

Mandatory injunctions

Injunctions that compel the defendant to take a specific action (e.g., removing structures or protecting wildlife).

Effectiveness of Injunctions

More effective if harm has not already occurred; effectiveness depends on compliance and may require court supervision; may be combined with damages.

Mediation

A voluntary process where a neutral third party helps the parties discuss and reach their own agreement; non-binding.

Conciliation

A process where a third party offers suggestions or solutions to help parties reach an agreement; more directive than mediation.

Arbitration

A process where a third party hears the dispute and imposes a binding decision; usually quicker, less formal, and private.

ADR (Alternative Dispute Resolution)

Methods of resolving disputes outside formal court proceedings, such as mediation, conciliation, and arbitration.

Online dispute resolution (ODR)

Use of online platforms to resolve disputes and provide guidance; examples include services linked with VCAT, VLA, and CLCs.

Binding vs non-binding

Arbitration is binding (decision enforceable); mediation and conciliation are generally non-binding unless a later agreement is reached or formalised.

Access to Justice

Efforts to help people engage with the civil justice system, addressing barriers faced by various groups.

Pro bono services

Free or reduced-cost legal assistance provided by lawyers or organizations (e.g., Justice Connect).

Court assistance for self-represented litigants

Support provided by courts to people who represent themselves in court.

Fee waivers

Waivers of court or tribunal fees (e.g., in courts and tribunals like VCAT) to improve access.

People of Low SES (socioeconomic status)

Groups facing difficulties affording legal representation, understanding procedures, or literacy; assisted by pro bono services, court assistance, and fee waivers.

Soula’s story

An example illustrating access to pro bono legal support to challenge a notice to vacate.

Young People (under 25)

Challenges include age-related communication barriers and limited knowledge of rights; assisted by YouthLaw and simplified court language.

YouthLaw

Organization providing legal advice and representation for young people.

Victorian Equal Opportunity and Human Rights Commission (VEOHRC)

Body that provides information and education on rights and procedures to support equal opportunity and human rights.

Regional, Rural and Remote (RRR) Areas

Difficulties include limited access to lawyers and courts, connectivity issues, travel burdens, and weaker local legal infrastructure.

Law Council initiatives

Efforts to encourage lawyers to work in RRR areas and improve access to justice, including online dispute resolution resources.

Bendigo Law Courts

Example of upgraded court facilities intended to improve access to justice in regional areas.

First Nations People

Group facing cultural and language barriers, historical distrust, and discrimination in the legal system; requires culturally sensitive services.

Culturally sensitive legal services

Specialist outreach and services designed to respect cultural contexts and improve access for diverse communities.

McDonald’s underpayment claim

Example illustrating employment disputes and the challenges faced by young workers in obtaining remedies.

Remedy

A court-provided legal solution to address a wrong or loss, aiming to restore the plaintiff to the position they were in before the harm or to address the wrongdoing.

Damages

Sums of money awarded by the court to compensate for loss or harm, with the main goal of restoring the plaintiff as much as possible.

Compensatory damages

Damages intended to restore the plaintiff to the position they were in before the wrong occurred.

Special (specific) damages

Calculable losses such as medical costs or lost wages.

General damages

Non-quantifiable losses such as pain, suffering, or reduced quality of life.

Aggravated damages

Damages awarded when the defendant's actions caused humiliation, insult, or additional harm.

Nominal damages

Small sums awarded when legal rights were infringed but there was no significant monetary loss; example: Clive Palmer v McGowan.

Exemplary (punitive) damages

Damages awarded to punish outrageous conduct and deter similar behaviour; example: Jordan Brown class action regarding capsicum spray.

Contemptuous damages

Damages awarded when the plaintiff has a legal right but the court disapproves of the moral basis of the claim; rare and symbolic.

Effectiveness of damages

Depends on factors like type of loss, whether the loss is minor or significant, potential ongoing harm, the defendant's ability to pay, and the time/cost/stress not fully compensable.

Damages limitations

Damages may not fully compensate for time, stress, or inconvenience; additional remedies (e.g., injunctions) may be needed.

Injunction

A court order requiring a party to do something or refrain from doing something to prevent or stop harm.

Restrictive injunctions

Injunctions that stop the defendant from doing something (e.g., preventing logging of habitats).

Mandatory injunctions

Injunctions that compel the defendant to take a specific action (e.g., removing structures or protecting wildlife).

Effectiveness of Injunctions

More effective if harm has not already occurred; effectiveness depends on compliance and may require court supervision; may be combined with damages.

Mediation

A voluntary process where a neutral third party helps the parties discuss and reach their own agreement; non-binding.

Conciliation

A process where a third party offers suggestions or solutions to help parties reach an agreement; more directive than mediation.

Arbitration

A process where a third party hears the dispute and imposes a binding decision; usually quicker, less formal, and private.

ADR (Alternative Dispute Resolution)

Methods of resolving disputes outside formal court proceedings, such as mediation, conciliation, and arbitration.

Online dispute resolution (ODR)

Use of online platforms to resolve disputes and provide guidance; examples include services linked with VCAT, VLA, and CLCs.

Binding vs non-binding

Arbitration is binding (decision enforceable); mediation and conciliation are generally non-binding unless a later agreement is reached or formalised.

Access to Justice

Efforts to help people engage with the civil justice system, addressing barriers faced by various groups.

Pro bono services

Free or reduced-cost legal assistance provided by lawyers or organizations (e.g., Justice Connect).

Court assistance for self-represented litigants

Support provided by courts to people who represent themselves in court.

Fee waivers

Waivers of court or tribunal fees (e.g., in courts and tribunals like VCAT) to improve access.

People of Low SES (socioeconomic status)

Groups facing difficulties affording legal representation, understanding procedures, or literacy; assisted by pro bono services, court assistance, and fee waivers.

Soula's story

An example illustrating access to pro bono legal support to challenge a notice to vacate.

Young People (under 25)

Challenges include age-related communication barriers and limited knowledge of rights; assisted by YouthLaw and simplified court language.

YouthLaw

Organization providing legal advice and representation for young people.

Victorian Equal Opportunity and Human Rights Commission (VEOHRC)

Body that provides information and education on rights and procedures to support equal opportunity and human rights.

Regional, Rural and Remote (RRR) Areas

Difficulties include limited access to lawyers and courts, connectivity issues, travel burdens, and weaker local legal infrastructure.

Law Council initiatives

Efforts to encourage lawyers to work in RRR areas and improve access to justice, including online dispute resolution resources.

Bendigo Law Courts

Example of upgraded court facilities intended to improve access to justice in regional areas.

First Nations People

Group facing cultural and language barriers, historical distrust, and discrimination in the legal system; requires culturally sensitive services.

Culturally sensitive legal services

Specialist outreach and services designed to respect cultural contexts and improve access for diverse communities.

McDonald's underpayment claim

Example illustrating employment disputes and the challenges faced by young workers in obtaining remedies.

Purpose of Civil Remedies

To compensate the plaintiff for losses suffered and/or to prevent or constrain future wrongdoing, aiming to restore the wronged party and ensure justice.

Factors Influencing Remedy Choice

The type of loss (financial, non-financial), the nature of the harm (ongoing, past), the desired outcome, and the defendant's ability to comply with an order.

Benefits of Alternative Dispute Resolution (ADR)

Typically offers lower costs, quicker resolution, greater privacy, less formality, and more control for parties over the outcome compared to court litigation.

Common Barriers to Accessing Justice

High legal costs, complex legal procedures, limited legal aid availability, geographical isolation, cultural/language differences, and lack of awareness of legal rights.

Role of Legal Aid Services

To provide legal assistance, representation, and advice to individuals who cannot afford private legal services, ensuring equitable access to the justice system.