VCE Legal Studies - Unit 3 Area of Study 2B

Strengths of directions power (3)

• saves court time and resources

• parties are aware of case against them

• very broad and adaptable to each case

Weaknesses of directions power (2)

• unrepresented parties may find them difficult to understand

• may not know to ask for further orders if the other party does not comply

Case management

power of judges to actively intervene in how parties and their representatives conduct civil disputes

The role of mediation

The primary dispute resolution method used by courts in Victoria, significantly reducing the amount of matters going to trial

Strengths of mediation power (3)

• available to all parties

• saves time and money

• avoids stress and delay of trial

Weaknesses of mediation power (2)

• may not be suitable due to a power imbalance

• no binding decision unless an agreement is signed

Examples of directions (3)

• timetables for pre-trial steps

• limiting number or time limit for witnesses

• providing for matter to be live-streamed

Power to order mediation

Pursuant to Section 66(1) of the Civil Procedure Act 2010 (Vic), judges may make an order referring parties

Mediation is appropriate (3)

• a continuing relationship is needed

• parties are willing and prefer privacy and confidentiality

• may be court ordered

Mediation is not appropriate (3)

• parties are highly emotional or unwilling to discuss issues,

• history of violence/threats

• power imbalance

Mediation is used by...

Used by courts as a primary method and VCAT

Strengths of mediation (4)

• low cost

• informal

• private & confidential

• the parties are in control

Weaknesses of mediation (3)

• not suitable for all disputes

• if not legally represented it might be intimidating

• third party not able to make a decision or suggestions

Conciliation is appropriate (3)

• a continuing relationship is needed

• parties are willing

• open to suggestions

Conciliation is not appropriate (3)

• parties are highly emotional or unwilling

• history of violence/threats

• not open to suggestions

Conciliation is used by... (3)

• mainly CAV

• VCAT in compulsury confrences

• rarely courts

Strengths of conciliation

Low cost, informal, private & confidential, the parties are in control, legal representation (rarely present) are equal

Weaknesses of conciliation

Not suitable for all disputes, language barriers, third party not able to make binding decisions

Arbitration is appropriate

Is appropriate when parties agree to it (usually in a commercial contract) or for claims <$10K in the Magistrates' Court, requires a binding decision

Arbitration is not appropriate

Is not appropriate if parties do not agree to the process or the parties are not comfortable navigating the court processes

Strengths of arbitration (4)

• save time and costs

• private

• less formal than court

• parties can present evidence

Weaknesses of arbitration (2)

• more formal than other methods of dispute resolution

• parties may be disadvantaged if not legally represented

Arbitration used by...

Compulsory for claims <$10K in the Magistrates' Court, County/Supreme Court have the power to refer if parties consent, VCAT does not use it but can refer parties

Remedies

Orders from the court (or VCAT) upholding the plaintiff's civil rights by providing relief for the injury/loss suffered

Examples of remedies (2)

damages, injunctions

Purpose of remedies

To restore the plaintiff to the position they were in before the harm occurred

Damages

A type of remedy, a court order awarding monetary compensation to be paid by the defendant to the plaintiff

Compensatory damages

A category of damages including specific, general and aggravated damages

Specific/special damages

compensation for items that have a monetary value that can be calculated

General damages

damages for items that do not have a precise value

Aggravated damages

relief to the plaintiff for humiliation and insult

Exemplary damages

punish the defendant

Nominal damages

A type of damages awarding a small amount of monetary compensation to show the plaintiff was legally right, usually where there is no substantial loss/damage

Contemptuous damages

A type of damages awarding a small amount of money to show disapproval of the plaintiff bringing the action

Injunctions

A type of remedy, a court order compelling a party to do something or preventing a party from doing something

Mandatory injunction

injunction forcing a party to do something

Restrictive injunction

injunction preventing a party from doing something

Interlocutory injunction

temporary injunction made before or during a case

Perpetual injunction

a permanent injunction made at the end of a trial

Purpose of injunctions

To change a situation for the benefit of a party by restoring them or preventing further harm

Purpose of damages

Generally to restore a plaintiff, but different types have specific purposes

Factors that affect the POJ (civil)

Costs, time and accessibility factors may prevent the achievement of fairness, access and equality in the Victorian Civil Justice System

Costs

having to pay fees to legal representatives and the court

Accessibility factors (2)

• complexity of the legal system

• language and other cultural barriers

Time

One of the factors that affect the POJ in civil law, including court delays/backlogs and trial procedures being time consuming

types of injunctions (4)

mandatory, restrictive, perpetual, interlocutory,

types of damages (7)

general, specific, nominal, aggravated, compensatory, contemptuous, exemplary