legal unit2aos2

Fairness

all people can participate in justice system, and processes should be impartial and open. people should be treated impartially, there should be open justice, people should be able to participate in civil justice system

Impartial processes - fairness

All people involved in civil justice system, including judges, magistrates, jury members must be independent and impartial. decide case based on facts and legal principles, not on own views or prejudices

Open processes - fairness

civil justice system is open to public, so decisions and processes can be scrutinised, and court judgements are made available to public

Equality

all people engaging with justice system and processes should be treated same.  If same treatment creates disparity or disadvantage, adequate measures should be implemented to allow all people to engage with justice system without disparity or disadvantage

Access

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

Tribunals

dispute resolution bodies, develop expertise in particular types of disputes and are able to make binding decisions on parties. purpose of tribunals is to provide individuals with low-cost, efficient and speedy dispute resolution process.

ombudsman

officials investigate complaints made by individuals against certain bodies or institutions. Each Ombudsman has responsibility for specific industry, organisation or company.

complaints bodies

complaints bodies deal with complaints about goods, services or decisions made by certain bodies

Parties in a civil court case

Parties in civil court action are called litigants. Plaintiff  v Defendant

role of Victorian courts in civil case

determine liability of a party, decide on remedy (if required)

role of an ombudsman

investigate complaints made by individuals against certain bodies or institutions. Each Ombudsman has responsibility for specific industry, organisation or company.

Role of complaints bodies  

• provide complaints and dispute resolution service for ordinary Australians.

• hear complaints from individuals and small businesses.

• aim to assist parties to reach decision themselves.

• provide flexible and informal assistance and services.

determining liability - role of courts

court must determine whether plaintiff, on balance of probabilities (being the standard of proof in civil disputes), has established/proven defendant caused loss or harm suffered by plaintiff. this is called deciding the facts

civil jurisdiction of magistratres court

original jurisdiction: minor civil disputes seeking claims up to $100K, claims below $10K referred to arbitration

no appellate jurisdiction

civil jurisdiction of county court

original jurisdiction: unlimited, hearing claims up to any amount - often defamation, personal injury, or property purchasing disputes due to lower costs.

no appellate jurisdiction

civil jurisidiciton of supreme court - trial division

original jurisdiction: unlimited, but usually complex cases like class actions or commercial disputes

appellate jurisdiction: cases from magistrate’s court and VCAT on qs of law

civil jurisidiciton of supreme court - court of appeal

no original jurisdiction

appellate jurisdiction: cases form county court and supreme court-trial division, on qs of law/fact or issues regarding unjust remedies

jury in civil trial 

6 jurors who considers evidence, listens to judge when law is explained and decide who is in the wrong. in county/supreme jury is optional, in magistrate’s theres no jury

role of jury in civil trial

-listen to evidence

-consider facts of case and apply law

-be impartial and independent

-reach verdict,made on balance of probabilities. If unanimous verdict cannot be reached, then majority verdict of 5/6 jurors accepted

-may decide on amount of damages awarded. defamation cases, only judge can decide damages amount.

-ensure justice is administered in line with community standards.

-enable community to participate in justice system, enhancing confidence that justice is being achieved.

purposes of remedies

restore (as much as possible) party who has suffered loss or injury to position they were before loss or injury occurred. Also compensate plaintiff for losses suffered. usually in form of payment of money, known as damages.

damages

remedy where amount of money to be paid by defendant to plaintiff, to satisfy/remedy claim made by plaintiff about breach of rights.

Injunction

remedy in form of court order requiring party to do something/not to do something to settle a claim.

Compensatory damages

main type of damages usually sought. Money is awarded to plaintiff to make up for harm/loss suffered. includes special/general/aggravated damages

Special damages - compensatory damages

damages awarded to plaintiff for losses that can be calculated accurately in monetary terms and easily calculated. e.g. loss of wages, medical expenses, hospital bills

general damages - compensatory damages

damages awarded to plaintiff for losses that cannot be calculated accurately in monetary terms. an estimate of losses suffered. e.g. pain/suffering, loss of enjoyment of life, loss of a limb/sight

aggravated damages - compensatory damages

damages awarded to plaintiff if court believes defendant’s conduct/behaviour caused humiliation, embarrassment or insulted plaintiff. e.g. cruel behaviour leading to emotional distress

Nominal damages

damages are awarded by court if court believes that defendant has infringed plaintiff’s right, but plaintiff did not suffer any actual significant loss

Contemptuous damages

small sum of damages awarded when claimant is technically entitled to succeed, court thinks action should not have been brought. e.g. defamation case where court considers person already has poor reputation, and false statement wont cause further damage

Exemplary damages

damages awarded if court believes that defendant’s action was so outrageous/violent/cruel, that they wish to deter others from similar action and show disapproval of defendant’s actions.

restrictive injunction

stops someone from doing something, e.g. person could apply for restrictive injunction to stop building demolishment if in interests of nation to preserve it

mandatory injunction

sought when person wishes to compel someone to do a particular act. e.g. to remove something from their land

first nations people difficulties

• Due to historical injustices like Stolen Generations, dispossession of land, and racism, many experience intergenerational trauma. justice system is often seen as unsafe.

• Many use Aboriginal English or other languages. Traditional communication differs from court expectations

• civil system clashes with Aboriginal customary law, misunderstood by courts.

ways the legal system attempts to provide justice - first nations

• The Victorian Aboriginal Legal Service (VALS) provides free, culturally appropriate legal advice

• Courts and tribunals provide cultural training to staff.

• VCAT has introduced Koori Support Teams and special Koori Hearing Rooms

people of Low Socioeconomic Status (SES)

people experiencing economic disadvantage (e.g., homelessness, unemployment, disability).

people of low SES difficulties

Inability to access legal services: financial or economic situation may mean they cannot afford to pursue or defend their claim, due to cost associated with engaging legal representation

Lack of understanding: lack of sufficient understanding about the legal system and law, if they lack English or literacy skills, or have long-term intellectual disabilities

people of low SES - addressing issues

provision of free legal services, through pro bono organisations seek to help ‘bridge the justice gap’ and assist people who cannot pay for a lawyer, also not eligible for legal aid.

provision of assistance to self-represented parties: courts and tribunals aim to offer self-represented parties as much assistance with processes and procedures as possible

strengths of mediation and conciliation

-decision made by parties is more likely to be acceptable, as they have reached decision themselves rather than being imposed by third party

-held in a less formal setting than a courtroom, and are far less confrontational, alleviating stress

weaknesses of mediation and conciliation

-Unless parties enter into terms of settlement, decisions reached are not binding on parties or enforceable

-no power to order parties to come to decision, or even attend

mediation

method of resolving disputes that is widely used by courts, tribunals and other dispute resolution bodies. joint problem-solving process where parties discuss issues they disagree on, present their side of case, and try to reach agreement through negotiation. mediator, neutral and impartial third party helps the parties come to a decision, not make the decision for them.

conciliation

process of dispute resolution involving assistance of independent third party. conciliator listens to both sides, makes suggestions about appropriate ways of resolving matter and assists parties by exploring solutions to dispute

arbitration

independent third party (arbitrator) who listens to parties and makes binding decision. decision is known as an arbitral award and is fully enforceable if parties do not comply with it.

Victorian Civil and Administrative Tribunal (VCAT)

tribunal that deals with disputes relating to a range of civil issues. purpose is to provide Victorians with low-cost, accessible, efficient and independent tribunal that delivers high-quality dispute resolution