Legal:U2:AO2

What are the principals of justice?

Fairness

All people can participate in the justice system and its processes should be impartial and open.

Equality

People engaging with the justice system should be treated in a way that allows them to participate without disparity or disadvantage.

Access

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

Fairness

Impartial Processes​

• Courts and personnel, including judges, magistrates, jury members, mediators and arbitrators, 

• No favouring either side
  
  

must be independent and impartial. They must not be biased towards or against either party, and the case must be decided based on facts and law, not on prejudices.​

• There should be no apprehended bias a person believe that the person hearing or deciding a case might not be impartial)​

Open Processes​

• Civil trials and hearing are generally open to the

• public and the court judgements are made

• available to the public.​

• Builds trust in the system and build public confidence

• Keeps courts accountable and keeps integrity
  
  

• However, there are many instances where civil

• disputes may be resolved in private (e.g.

mediation).​

Participation

• People must be able to participate in the civil justice system, including:​

• Both parties should have the opportunity to know and understand the case that is put against them​

• Both parties should have the opportunity to present their version of the case​

• There should be no delays​

• Knowing the case against them

• Preparing a defence

• Questioning witnesses

• Having a lawyer/interpreter

• Trial without unreasonable delay

Also for victims:

• Attending court

• Giving evidence differently

• Victim Impact Statements

EQUALITY

Formal = Equal Treatment​

• All parties in a civil dispute should be treated in

the same way.​

Substantive = Different Treatment​

• IIf treating everyone the same would create disparity or disadvantage, measures can be implemented to allow everyone to participate equally.

• Removes disadvantage

Access​

Informed Basis​ (UNDERSTANDING)

-Understand their legal rights

-Understanding The processes involved in their case

-Enough information to make reasoned decisions

• This can be achieved by:​

• Education​

• Information​

• Legal representation​

Without understanding, individuals cannot effectively engage with the justice system.”

Engagement (ABILITY TO USE SYSTEM)

Engagement (ABILITY TO USE SYSTEM)

People must be able to participate in practice, not just in theory.

Types of access:

• Physical → can they get to court?

• Technological → can they use online systems?

• Financial → can they afford legal help?

High costs can limit access to justice.”

Methods to resolve a civil dispute​

1. Mediation

2. Conciliation

3. Arbitration

Mediation

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

-The mediator helps parties communicate through facilitaing discussion

-Any decision reached is voluntarily made by the parties. 

-They may sign a terms of settlement

How mediation works

1. Parties discuss the issues in dispute.

2. Each party presents their side.

3. The mediator facilitates communication.

4. Parties negotiate and compromise.

5. The parties make the final decision themselves.

Mediation involves:​

• Informal agreements can be made which are not legally binding​

• If parties are able to make an agreement, they can make a contract (known as

• terms of settlement) which, once signed by both parties, becomes legally

• binding.​

• If the mediation process is unsuccessful, it can proceed further through other

• dispute resolution methods, or to the court.​

Weaknesses of mediation

1. Agreement is not legally binding unless terms of settlement are entered into

If the parties reach an agreement during mediation, it is generally not legally binding or enforceable on its own. The parties need to enter into terms of settlement to make the agreement legally binding. This means there is a risk that a party may not follow the agreement if it has not been formally recorded.

2. One party may dominate the other

Mediation relies on both parties being able to communicate and negotiate effectively. If one party has greater bargaining power, more legal knowledge or legal representation while the other does not, they may pressure or influence the weaker party into accepting an outcome that is not in their best interests.

3. Mediators cannot force parties to attend or reach an agreement

A mediator is independent and impartial and cannot force the parties to participate or accept a particular solution. If one party is unwilling to cooperate or compromise, the mediation may fail to resolve the dispute, meaning the parties may have to use another method, such as a tribunal or court.

Strengths of mediation/concilliation

1. Parties make the decision themselves

The parties control the outcome of the dispute because the mediator does not make the decision for them. Instead, the mediator helps them communicate and facilitate discussions until they reach an agreement they are both willing to accept.

2. Less formal and less confrontational than court

Mediation uses a more informal process than a court trial, with the mediator helping the parties communicate rather than arguing their cases in a formal courtroom. This can make the process less stressful and intimidating for the parties.

3. Saves time and money

Mediation can resolve a dispute more quickly and cheaply than a court trial because it avoids many of the formal procedures and expenses involved in going to court, such as lengthy hearings and extensive legal preparation.

Discussions can remain confidential and private.

Conciliation:

A method of dispute resolution that uses an independent third party (i.e. a

conciliator) to help the disputing parties reach a resolution.​

Conciliator can independant and impartial

• Helps parties reach an agreement

• Can suggest options

• Can offer advice

• Can suggest possible solutions

• Usually has specialist knowledge

The conciliator makes suggestions and offer

advice to assist in finding a mutually acceptable resolution, but the parties reach the decision

themselves. ​

The difference between mediation and concilliation

• T\, a conciliator has more influence over the outcome as they are usually someone with specialist knowledge and can suggest options and possible solutions to resolve the dispute.​

Conciliator can suggest solutions and provide advice. and more influence on outcome

When is Conciliation used?​

• Consumer Affairs Victoria (CAV) uses forms of conciliation.

• VCAT may refer parties to a compulsory conference using conciliation.

• Some specialised courts use conciliation, including the Federal Circuit and Family Court of Australia.

When is mediation used?​

-organised through the Victorian Bar website, the Dispute Resolution Centre of Victoria, or the Family Relationship Centre, -These organisations offer free or low-cost mediation services.​

• Parties in a court case can be referred to a mediator by a court before a trial or hearing in an attempt to

reach a resolution.​

-Before a court trial or hearing

-When parties are referred to mediation by a court

-Through private mediation

-Through organisations providing free or low-cost mediation

Arbitration

A method of dispute resolution in which an independent person (an arbitrator) listenz to both sides of a dispute and makes a legally binding decision.

AN arbitrator is a third party independant and impartial person

-Is appointed to settle the dispute

-Usually has specialised expertise

-Considers the evidence and arguments

-Makes a legally binding decision

Arbitral award

The legally binding decision/document made by the arbitrator.

Unlike mediation and conciliation:

-The arbitrator makes the decision and both. The parties have to agree to abide by the arbitrator's decision.

When parties take their dispute to arbitration, they agree to abide by the arbitrator’s decision.

How arbitration works

• Parties present their cases to the arbitrator.

• Evidence is considered.

• The arbitrator makes a decision.

• The decision is an arbitral award.

• The award is legally binding.

When is arbitration used?

-The arbitrator will generally have knowledge of the subject matter of the dispute and will also have expertise

in the applicable law.​

Arbitration is often used in commercial situations and in international disputes. Legal representation is usually allowed during the arbitration process. Therefore, arbitration can be an expensive process.​

-Arbitration is more formal than mediation and conciliation but can still be less formal than a court process.

Two ways for arbitration 

1. Agreement between parties
Parties may have previously agreed, usually in a contract, that disputes will be resolved through arbitration. parties normally arrange the arbitration between themselves and

• decide how it is to be conducted. This includes choosing an arbitrator and

• agreeing on the rules of the arbitration.

They can generally agree on:

• The arbitrator

• How arbitration will be conducted

• Procedural rules

2. Magistrates' Court

For certain civil claims less than $10,000, the Magistrates' Court may refer the matter to arbitration.

The court initially attempts to facilitate an agreement. If unsuccessful, a magistrate or registrar can make a binding decision.

Strengths of arbritation

1. Arbitral award is legally binding

The arbitral award, which is the decision made by the arbitrator, is legally binding on the parties. This means the parties are required to follow the decision and cannot simply choose to ignore the outcome. This provides certainty and ensures the dispute is actually resolved.

2. Arbitration is private and confidential

Arbitration is generally conducted privately and confidentially, unlike court proceedings, which are generally open to the public. This means the details of the dispute are less likely to become public. This can be particularly attractive to businesses or individuals who want to protect sensitive or personal information and avoid unwanted publicity.

3. Arbitrator has expertise

The arbitrator will usually have specialist knowledge or expertise relevant to the dispute. They can use this knowledge when considering the evidence and arguments presented by both parties before making the binding decision. This can help the arbitrator understand complex issues and reach an informed decision.

Weaknesses of arbritation

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1. Less flexible than mediation and conciliation

Arbitration is less flexible because the arbitrator makes a binding decision rather than the parties creating their own solution. This means the parties are generally limited to the remedies or outcomes that the arbitrator can award. As a result, arbitration may not provide an outcome that suits both parties as well as mediation or conciliation.

2. Can be expensive

Arbitration can be more expensive than mediation and conciliation because evidence may need to be gathered and presented to the arbitrator, and parties will often use legal representation. Depending on how the arbitration is conducted, the costs can be similar to going to court, reducing its advantage as a cheaper alternative.

3. Can be as formal as court

Arbitration can be as formal as a court process, depending on the procedures agreed to by the parties. This means it may involve formal procedures, evidence and legal representation, making the process more complex, time-consuming and stressful than mediation or conciliation.

Description and Tags

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 than courts​

Tribunals develop expertise in particular types of disputes and can make decision that are binding.​

Victorian Civil and administrative tribunal

mediation, conciliation

What is the purpose of tribunals?

provide individuals with a low-cost, efficient and speedy method of dispute resolution.

• Therefore, tribunals increase the community’s access to justice by providing Australians with an alternative to court, which can be a more formal, costly, stressful and length way of resolving disputes.​

Tribunals cannot hear every type of dispute (i.e. cannot hear class actions)​

What is VCAT

Victorian Civil and Administrative Tribunal

a

tribunal that deals with disputes relating to a range of civil

issues heard by different lists 

Division	Examples
Consumer Division	Goods and services; residential tenancies
Land and Environment Division	Building and construction; land valuation; retail and commercial leases; traditional owners and Aboriginal heritage
People's Rights and Responsibilities Division	Disability Act; Equal Opportunity; guardians and administrators; mental health; powers of attorney

Purpose of VCAT

VCAT aims to provide Victorians with a:

• Low-cost

• Accessible

• Efficient

• Independent

tribunal that provides high-quality dispute resolution.

How VCAT promotes access to justice

• Generally charges low fees.

• Legal representation is generally not allowed, except in certain circumstances.

• Has locations throughout Victoria, including regional areas.

• Aims to hear matters relatively quickly.

• Cases are heard by an independent VCAT member.

• Less formal than courts.

• Uses dispute resolution methods such as mediation and compulsory conferences.

Accessibility concerns

Although VCAT is generally quicker and cheaper than courts:

• Fees have increased in some areas.

• Some matters can take six months or more.

• This has led to concerns about whether VCAT remains accessible in all areas

Person who makes an application

is called the applicant and the other party is called the respondent

How does VCAT promote equality ?

Staff cannot provide legal advice they are neutral and treat everyone fairly based on the facts and the law

no laywers can have signifcant delays though depending on amount of cases and the application and hearing fee

Ombudsmen

n office holder with power to investigate and report on complaints relating to administrative action taken by government departments and other authorities and bodies.​

What is the role of an obudsman

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

Ombudsmen provide a fair, free and independent way of handling complaints and resolving disputes.

An ombudsman is not a court or a tribunal. Therefore, the power of the office is often limited to the government agencies or businesses jurisdiction.

two types on ombudsmen:​

• Government ombudsman, 

who deals with disputes or complaints about government agencies​

• An industry ombudsman, 

who deals with disputes between consumers and businesses in particular

industries, such as telecommunications, financial series, public transport, and energy and water.

Ombudsman will not hear a complaint unless

the individual has first tried to resolve the complaint directly withthe government agency or business.​

weaknesses of Obudmen

Limited jurisdiction

An ombudsman can only deal with complaints that fall within their specific jurisdiction.

For example, a government ombudsman deals with certain government agencies, while an industry ombudsman deals with particular industries. Therefore, an ombudsman cannot resolve every type of civil dispute.

2. Must usually complain to the organisation first

An ombudsman will generally not investigate a complaint until the person has first attempted to resolve the issue directly with the government agency or business.

This means the person may have to go through an additional process before the ombudsman can assist, which can delay resolution.

3. Some cannot make binding decisions

Not all ombudsmen have the power to make binding decisions.

This means an organisation may not always be legally required to follow the ombudsman's recommendation or decision. As a result, the dispute may remain unresolved, requiring the person to pursue another method of dispute resolution.

4. Limited remedies

An ombudsman's powers and available remedies can be limited compared with courts.

For example, some ombudsmen may have limits on the amount of compensation they can provide or may not be able to award compensation at all. Therefore, they may not be suitable for large or complex civil claims.

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Strengths complaints bodies

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Strengths of Ombudsmen

1. Free service

Ombudsmen provide their services free of charge.

This means individuals and small businesses do not have to pay legal fees to have their complaint investigated. This reduces financial barriers and improves access to justice.

2. Independent and impartial

Although ombudsmen are appointed by government, they act independently and impartially when handling complaints.

This means complaints can be investigated without unfairly favouring the government agency or business involved. This promotes fairness in the dispute resolution process.

3. Helps address power imbalances

Ombudsmen can help individuals who are in a weaker position when dealing with large businesses or government agencies.

The ombudsman can investigate the complaint and provide an independent assessment, helping prevent the larger organisation from using its greater resources or power to disadvantage the individual.

4. Accessible and timely

Ombudsmen aim to provide a timely and accessible method of resolving complaints.

The process is generally less formal than going to court, which can allow disputes to be resolved without lengthy court proceedings.

key features of ombudsmen

-Helps address power imbalances between individuals and large organisations.

-Promotes procedural fairness by allowing parties to respond to complaints and providing reasons for decisions.

-Although every ombudsman is appointed by government, they act impartially and independently of government when handling claims. 

-One of the key features of ombudsmen is that they ensure procedural

fairness by giving parties an opportunity to respond to a complaint, and by giving reasons for any decision that is made.​

Complaints body

 an organisation established by parliament to resolve formal grievances (i.e. complaints)made by an individual about the conduct of another party.​

What is the role of complaints bodies?

• Deal with complaints about goods and services or decisions of certain bodies.

• Provide free or low-cost dispute resolution services

• Usually specialise in a particular industry or service.

• Are designed to improve access to justice for ordinary victorians

Strengths complaints bodies

1. Lower cost

State: Complaints bodies are generally cheaper than going to court.

Explain: Many complaints bodies provide their services for free or at a low cost, meaning people do not have to pay expensive court fees or legal costs.

Consequence: This reduces financial barriers and makes the civil justice system more accessible, particularly for people who cannot afford court proceedings.

2. Resolve disputes relatively quickly

State: Complaints bodies generally resolve disputes more quickly than courts.

Explain: Complaints are often resolved within one to six months, whereas court proceedings can take much longer.

Consequence: Parties can resolve their dispute sooner, reducing stress, delays and the time spent dealing with the dispute.

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3. Easily accessible

State: Complaints bodies are generally accessible to the public.

Explain: Many provide websites, online information, telephone services and online services, allowing people to make complaints without necessarily needing to attend in person.

Consequence: This reduces barriers to accessing the civil justice system and allows more people to participate in dispute resolution.

4. Informal process

State: Complaints bodies use informal processes.

Explain: Their procedures are generally less formal and intimidating than court proceedings, allowing individuals to raise complaints against large businesses or government agencies without having to navigate complex court procedures.

Consequence: This can reduce stress and intimidation and help individuals participate more confidently in the dispute resolution process.

5. Independent and impartial

State: Complaints bodies are independent and impartial.

Explain: The person or organisation handling the complaint should not unfairly favour either party when investigating or resolving the dispute.

Consequence: This promotes fairness, as both parties have their interests considered without bias.

Weaknesses of complaints bodies

Some services are not free

State: A weakness is that some complaints bodies charge fees.

Explain: Although many services are free, some require people to pay to access their dispute resolution services.

Consequence: This can create a financial barrier, making the civil justice system less accessible to people who cannot afford the fee.

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2. Difficult to find the correct body

State: A weakness is that there are many different complaints bodies, tribunals and ombudsmen.

Explain: It can be difficult for members of the public to know which organisation deals with their particular dispute.

Consequence: People may waste time contacting the wrong organisation or may not seek assistance at all, reducing access to justice.

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3. Limited power to make binding decisions

State: A weakness is that complaints bodies often have limited power to make binding decisions.

Explain: In some cases, the person or organisation involved may not be legally required to follow the outcome.

Consequence: There is less certainty that the dispute will be finally resolved, and the person may need to use another dispute resolution method.

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4. Not suitable for large or complex claims

State: Complaints bodies are generally not suitable for large or complex civil claims.

Explain: Some bodies have limits on the amount of compensation they can award, while others cannot award compensation at all.

Consequence: People with large or complex claims may have no option but to take their dispute to court, which can be more expensive and time-consuming.

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5. Limited to particular areas

State: A weakness is that complaints bodies are specialised in particular industries or areas.

Explain: They can only deal with disputes that fall within their specific jurisdiction.

Consequence: Some disputes cannot be dealt with by a complaints body, meaning the parties may have to use a court, limiting access to a simpler dispute resolution process.

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6. Not available to everyone

State: A weakness is that some complaints bodies are only available to particular groups.

Explain: For example, Consumer Affairs Victoria (CAV) can deal with complaints from consumers but not vendors.

Consequence: A person who does not meet the eligibility requirements cannot use that complaints body and may need to find another method of resolving the dispute.

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Strengths of Courts

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What are the courts

Courts are the main dispute resolution body in Victoria, but civil disputes going to court are often a last resort because of:

• Alternative dispute resolution methods

• High costs

• Formal procedures

• Potential delays

Two main roles of courts in civil disputes

1. Determine liability

2. Decide on the remedy

Strengths of Courts

1. Judges are impartial

State: Judges are impartial and make decisions based on facts and law.

Explain: Judges must remain independent and cannot allow personal opinions or biases to influence their decisions.

Consequence: This promotes fairness, as cases are decided according to the evidence and law rather than personal views.

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2. Case management reduces delays and costs

State: Courts use case management to help reduce delays and costs.

Explain: Judges and magistrates can give directions and orders to control how a case progresses, such as setting deadlines for documents.

Consequence: This can make the civil justice system more efficient and reduce unnecessary delays and costs.

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3. Specialisation and expertise

State: The court hierarchy provides specialisation and expertise.

Explain: Different courts deal with different types and levels of civil disputes. This means judges and court personnel can develop expertise in particular areas of law.

Consequence: This can improve the quality and fairness of decisions because cases are handled by people with relevant legal knowledge and experience.

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4. Practices can reduce delays

State: Courts have introduced practices to reduce delays.

Explain: For example, some appeals can be heard 'on the papers', meaning they can be decided using written submissions rather than requiring a full hearing.

Consequence: This can allow cases to be resolved more quickly, improving efficiency and access to justice.

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5. Formal procedures promote procedural fairness

State: Formal court procedures and rules of evidence help promote procedural fairness.

Explain: These rules allow each party to present their case and respond to the other party's case.

Consequence: This ensures both parties have an opportunity to participate, promoting fairness and equality.

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6. Court hierarchy allows appeals

State: The court hierarchy provides opportunities for appeals.

Explain: A party who believes an error has occurred may be able to have the decision reviewed by a higher court.

Consequence: This provides a safeguard against incorrect decisions and can improve fairness.

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Weaknesses of Courts

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Weaknesses of Courts

1. Difficult to understand

State: Court processes can be difficult to understand.

Explain: Legal terminology and formal procedures can be particularly challenging for people from culturally and linguistically diverse backgrounds, people with cognitive impairment or people with limited education.

Consequence: This can make it harder for some people to participate effectively, reducing access to justice.

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2. Expensive

State: Courts can be expensive.

Explain: Parties may need legal representation, and procedures such as discovery can add significant costs.

Consequence: People who cannot afford these costs may be unable to pursue their claim or may be disadvantaged, reducing access to justice.

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3. Lack of legal representation can create disadvantage

State: A party without legal representation may be disadvantaged.

Explain: A represented party may have greater legal knowledge and experience than someone representing themselves.

Consequence: This can create disparity between the parties, reducing equality and fairness.

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4. Delays can still occur

State: Civil court proceedings can still experience delays.

Explain: Although reforms and case management aim to make proceedings faster, some cases can still take a long time to resolve.

Consequence: Delays can increase costs, stress and inconvenience for the parties and reduce the efficiency of the civil justice system.

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5. Formality can cause stress

State: The formal nature of court proceedings can be a weakness.

Explain: Courtrooms, legal terminology, procedures and having to present evidence can make parties feel stressed, nervous or intimidated.

Consequence: This may make it more difficult for some parties to participate effectively, potentially reducing access and fairness.

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6. Appeals are not always automatic

State: A weakness is that the right to appeal is not automatic in many cases.

Explain: In some circumstances, a party must obtain leave (permission) to appeal from the higher court.

Consequence: A person may be unable to have their case reviewed if leave is not granted, which can limit the ability to correct an incorrect decision.

etermine Liability

The court determines whether the defendant is responsible (liable) for the loss or harm suffered by the plaintiff.

The court considers the evidence presented by both sides and apply statue law to the information provided

and decides whether the plaintiff has proven their case on the balance of probabilities. This means deciding what most likely happened based on the evidence.

If there is a counterclaim, the court must also determine whether the plaintiff is liable for the defendant's claim.

2. Decide on the remedy

If the court finds that a party is liable, it then decides on an appropriate remedy to correct the wrong suffered.

The most common remedy is damages, which is money paid by one party to another. Courts may also award costs or interest.

The amount of damages is generally determined by considering the evidence about the loss suffered.

The second role of Victorian courts is to decide on an appropriate remedy once liability has been established. The purpose of a remedy is to right the wrong and provide a form of compensation or correction for the loss suffered by the party.

• Assessing damages

• The judge, magistrate or jury may need to calculate the appropriate amount based on evidence.

What is the civil jurisdiction of the magistrates court?

Original jurisdiction

• Minor civil disputes of up to $100 000​

• Cannot award damages greater than $100 000​

• Plaintiffs will have to go to a higher court or reduce their claim​

• If claim seeks less than $10 000, court may refer the matter to arbitration​

Appellate​ jurisdiction

None ​

County Court​

Original jurisdiction

• Unlimited – no upper or lower limit​

• Parties can go to County or Supreme – Supreme is more expensive​

• Parties have a choice of a trial by judge along, or trial by a judge and jury (six jurors)​

Appellate​ jurisdiction

None

Supreme Court – Trial Division​

Original jurisdiction

• Unlimited​

• Jury of six is optional​

• Used for complex and large civil disputes such as class actions, mater involving complex areas of law, and disputes between large corporations

Appellate​ jurisdiction

A single judge can hear disputes from the Magistrate's Court on a point of law (expect if decision was made by the Chief Magistrate) or decisions from VCAT (expect decisions made by the President or vice-president)​

Supreme Court – Court of Appeal​

Original jurisdiction

None ​

Appellate​ jurisdiction

• County Court and Supreme Court – Trial Division on questions of law, questions of fact, or the amount of damages awarded.​

• Appeals from president and vice-presidents of VCAT and appeals from decisions in the Magistrate’s Court when the Chief Magistrate made he decision.​

• Leave (permission) is required to appeal​

What are the role of juries?

1. Determine the verdict based on the facts

The jury listens to the evidence presented by both parties and considers what most likely happened. Based on the facts and the judge's directions about the law, the jury reaches a verdict about the case.

2. Determine the amount of damages

A civil jury may be required to determine the amount of damages to be awarded to the plaintiff. They consider the evidence about the loss or harm suffered when deciding the appropriate amount.

3. Remain impartial and independent

Jury members must remain impartial and independent throughout the trial. They must not allow personal opinions, bias or outside influences to affect their decision. This helps ensure the case is decided fairly and based on the evidence.

A civil jury may also be

required to decide on the amount of damages to be awarded.  unless

However, in defamation cases, only a judge can

decide on the amount of damages to be awarded

Damages​

an amount of money to be paid by the defendant to the plaintiff, in satisfaction of a claim made

by the plaintiff (damages can also be sought by a defendant who makes a counterclaim)

Strengths of juries

1. Independent and impartial

State: Jurors are independent and impartial.

Explain: Jurors are independent from the legal and political systems and are selected randomly. They must make their decision based on the evidence rather than personal interests.

Consequence: This can promote fairness and equality because the decision is not controlled by a person with a personal or political interest in the case.

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2. Community participation

State: Juries allow community members to participate in the legal system.

Explain: Ordinary members of the community are selected to help determine the outcome of a trial.

Consequence: This increases community involvement and confidence in the justice system because decisions reflect community participation rather than only the views of legal professionals.

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3. Responsibility is shared

State: A jury shares responsibility for making a decision among several people.

Explain: Instead of one person making the decision, multiple jurors discuss and consider the evidence together.

Consequence: This can reduce the influence of one individual's opinion or mistake and may lead to a more balanced decision.

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4. Can effectively assess witnesses

State: Jurors can effectively determine whether a witness is telling the truth.

Explain: Jurors listen to witnesses and consider their evidence, behaviour and consistency during the trial.

Consequence: This allows ordinary members of the community to contribute to determining the facts of a case, rather than relying entirely on the judge's assessment.

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5. Random selection promotes impartiality

State: Jurors are selected randomly, and people with connections to the parties cannot participate.

Explain: Random selection helps prevent the parties from choosing jurors who may favour them.

Consequence: This reduces the risk of bias and helps ensure the trial is conducted fairly.

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6. Reflect community values

State: Jury verdicts can reflect community values.

Explain: Jurors come from the wider community rather than being a single legal professional.

Consequence: This can increase public confidence because the outcome involves community participation and is not based solely on the views of one judge.

weaknesses of juries

1. No reasons are given

State: Juries generally do not provide reasons for their verdicts.

Explain: Their deliberations take place privately, so the public and parties cannot know exactly how the jurors reached their decision.

Consequence: This can raise concerns about whether jurors properly understood the evidence or were influenced by bias or prejudice.

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3. Juror bias

State: Jurors may have unconscious or personal biases.

Explain: Even though jurors are required to be impartial, their personal experiences, beliefs or attitudes may influence how they interpret evidence.

Consequence: This could result in a less fair decision if a juror's bias affects their consideration of the case.

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4. Influence of lawyers and emotions

State: Jurors may be influenced by skilled lawyers or emotional aspects of a trial.

Explain: A lawyer may present evidence in a persuasive way, while emotional evidence may affect how jurors perceive the parties or witnesses.

Consequence: Jurors may make decisions based partly on emotion or persuasion rather than the evidence, potentially reducing fairness.

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5. Can cause delays

State: Jury trials can increase delays.

Explain: Legal terms and procedures may need to be explained to jurors, and judges must provide directions to help them understand their role.

Consequence: This can make the trial longer and less efficient, increasing the time and costs involved in resolving the dispute.

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6. Complex evidence can be difficult

State: Jurors may find complex or large amounts of evidence difficult to understand.

Explain: Jurors are ordinary members of the public and may not have specialist legal or technical knowledge.

Consequence: They may misunderstand important evidence or have difficulty reaching the correct verdict, potentially affecting the fairness of the outcome.

Card Sorting

The main purpose of damages

is to restore the plaintiff to the position they were in as high as possible before the wrong

occurred. 

However, if there is any permanent damage

Therefore, damages try to make up for that loss by compensating the plaintiff with an amount of money that represents

the actual loss suffered.​

Compensatory Damages​ (3 types)

• Financial compensation An amount of​ money awarded to a plaintiff for harm, injury, or other losses suffered. 

• general damages, special damages and aggravated damages.​

Special damages (

Compensation for quantifiable financial losses, such as medical expenses or lost income.

Quantifiable.​

General Damages

Compensation for non-financial losses, such as pain and suffering. Not quantifiable

1. Cannot be calculated objectively because they include consideration of the plaintiff’s emotional suffering and loss of enjoyment of life.​

Aggravated Damages

Additional compensation where  defendant has no regard for  plaintiff's feelings, which increases their suffering

1. defendant’s conduct injured the plaintiff’s feelings by causing humiliation and insult.​

Nominal Damages​

 small amount of money awarded to confirm that a plaintiff’s rights have been infringed even though the losses were not that substantial

• The court can award a very small amount of damages as compensation. The purpose of such damages is to recognise that there has been a breach, and that the plaintiff has been wronged.​

Exemplary Damages​

-Damages awarded to punish particularly serious or outrageous conduct. 

-where the defendant can be

shown to have acted consciously and in extreme disregard for the rights of the plaintiff.​

Kind of like general deterrence

disrespect for the plaintiff’s wishes.​

Contemptuous Damages

A very small amount of damages awarded when the plaintiff technically wins the case but the court disapproves of bringing the claim because the loss is of little importance

Purpose: Show that the plaintiff's claim had little merit, even though a legal right was infringed.

Contemptuous damages are generally used to indicate the court's disapproval of the plaintiff bringing the action over a not important matter.

How can the purposes of damages not be acheived?

• If the defendant cannot pay an award of damages, then the purposes of damages will not be achieved as the plaintiff will not receive the money.​

Non-economic loss

• t may require the parties and the court to assess the loss and determine a figure that reflects the plaintiff’s loss.​

• Significant physical injuries such as disfigurement, loss of limbs or movement, or irreparable damage, can be more difficult to compensate for, and the plaintiff may not ever be able to be restored to their original position.​

• Where the plaintiff is seeking recovery for the loss of someone else’s life, restoration can never be achieved.​

Injunctions

civil remedy where the court makes an order for the defendant to undertake an action or do something (or refrain from undertaking an action or from doing something) in an attempt torestore the plaintiff to the position they were in prior to the loss or harm they suffered. ​

I

Restrictive injunction

• his injunction stops someone from doing something; for example, a person

• could apply for a restrictive injunction to stop a building from being destroyed if it was in the interests of

• the nation to preserve it.​

Mandatory injunction

• this injunction is sought when a person wishes to compel someone to do a

• particular act; for example, to remove something from their land.​

1. Whether the damage has already been caused

If the damage has already happened, an injunction may not be enough to help the plaintiff, particularly if the damage is significant and cannot be repaired. The court may therefore award damages as well.

If the damage has not happened yet, a restrictive injunction may be enough to prevent the harm from occurring.

2. Whether the defendant will comply

The court needs to consider whether the defendant is likely to follow the injunction. If the defendant does not comply, the damage could still occur.

A mandatory injunction may also require the defendant to take a specific action, and the court may need to supervise compliance.

3. Time, cost, stress and inconvenience

The court may consider the time, cost, stress and inconvenience experienced by the plaintiff during the dispute.

Damages may compensate for some losses, but they cannot fully compensate for the time, stress and inconvenience of going through a civil dispute. Other remedies, such as costs, may help address some of these impacts.

4. Nature of the claim

The type of civil dispute can affect whether an injunction is appropriate.

For example, in an online defamation case, the court may need to:

• Use a mandatory injunction to require the defendant to remove harmful posts.

• Use a restrictive injunction to prevent the defendant from posting similar material again.

• Award damages to compensate for harm that has already occurred.