Legal Studies | Unit 2 AOS 2

Remedies - Civil Law

fairness

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

examples of fairness in the civil justice system

• defendent being able to present their case

• independent judge and jury

• reducing delays through mediation —> reduce stress and anxiety —> enables participation and cases to move through

equality

all people engaging with the justice system should be treated in the same way, and if same treatment causes disparity, then adequate measures should be implemented to ensure equity.

access

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

legal principle, procedure or institution that contributes to fairness

• burden of proof on plaintiff

• standard of proof - on the balance of probabilities

• defendant can present their case

legal principle, procedure or institution that contributes to equality

• court procedures are applied equallity to both parties

• rule of law prevents community members from being exempt from the law

• independent judge/jury

legal principle, procedure or institution that contributes to access

• dispute resolution methods

• remedies awarded

• class actions

methods of dispute resolution

• conciliation

• mediation

• arbitration

deed of settlement

document that sets out the terms on which the parties agree to resolve their dispute

mediation

a non-judicial dispute resolution process which involves an independent third party (mediator) in an informal environment

• non-binding unless a deed of settlement is signed//court order with consent

• does not require legal representation

role of mediator

• encourage and faciliate communication between parties in a less formal environmment

• remain neutral and impartial

• assist individuals to come to a decision (NOT make decision for them/interfere in the process)

conciliation

non-judicial resolution process which involves an independent third party (conciliator) who has specialist knowledge in regards to the dispute in question

• non-binding unless deed of settlement is signed/court order with consent

• does not require legal representation

role of conciliator

• encourage communication between parties

• listen to both sides offer suggestions and solutions

• have specialist knowledge of subject of matter

appropriateness of mediation/conciliation

• (+) parties are willing to negotiate, participate and resolve

• (+) parties are aiming to save time and money

• (+) process is understood by disputing parties

• (-) parties are unwilling to discuss issues associated with the dispute

• (-) disputing parties are highly emotional or hostile

• (-) involvement of a vulnerable party

arbitration

non-judicial resolution process which involved an arbitrator who listens to parties present evidence and makes a binding decision.

• more formal than mediation and conciliation, less that court trial

• allows leal representation

role of arbitrator

• listen to parties and attempt to help them reach an agreement

• generally have specliast expertise/knowledge in aprticular disputes

• make a binding decision (arbitral award) which can be enforceable if the party does not comply

appropriateness of arbitration

• (+) requirement of a binding and enforceable decision

• (+) want a quicker and cheaper resolution

• (+) parties agree to arbitrate (incl. in contract)

• (-) parties prefer to resolve without a legally binding outcome

• (-) want matters to be resolved by a jury

• (-) clarification is required by a judge due to complexity of issues

institutions that resolve civil disputes

• tribunals (VCAT)

• ombudsmen

• complaints bodies (CAV)

tribunal

an institution with the authority to judge, adjudicate or determine civil claims or disputes

Victorian Civil and Administrative Tribunal (VCAT)

• tribunal with the power to hear a wide range of civil and administrative disputes:

  • residential tenancies division

  • administrative division

  • planning and environment division

  • civil division

  • human rights divisions

roles of VCAT

• provide low-cost dispute resolution service

• provide efficient dispute resolution services

• provide accessible dispute resolition services

Complaints bodies (Consumer Affairs Victoria [CAV])

an organisation that deals with complaints and assist with dispute resolution in relation to the provision of goods and services.

• investigate or attempt to resolve dispute using conciliation

• informal and unbinding

purpose of complaints bodies

• provide info about consumer laws

• conciliate disputes under consumer laws

• conduct legal action against businesses who breach consumer protection laws

• investigate complains about unsafe products being sold in vic and possibility to remove such items from sale

ombudsmen

independent authority that operates on state and federal levels and investigates complaints against a company or organisation

• free services

• complaints against govt institutions

• industry based

• make legally binding decisions

  • e.g. fair work, energy and water

role of vic courts

• determine liability

• decision of a remedy

role of vic courts: determine liability

• determine the extent to which the defendant is liable

  • determination of liability falls on judge/magistrate and jury

• standard of proof

how do the courts determine liability?

• provide specialisation and experise

• manage the case

  • assist in timely resolution - equitable outcome

  • e.g. requiring parties to disclose documents and attent mediation

• hear appeals

  • requires appropriate grounds

remedy

an outcome that the court comes to as a result of determining a case between two or more parties - often in the form of monetary compensation or action/inaction

role of vic courts: decision of remedy

• establishes liability —> court must provide remedy

  • most commonremedy is damages

• judge and jury must assess damage based on evidence -> calculate appropriate amount of damages

• defamation cases - only judge can calculate damages due to complex nature

Original and appellate jurisidction of the Magistrates’ Court

• Original: minor disputes w/ claims up to $100,000 (e.g. negligence claims)

• Appellate: none

Original and appellate jurisidction of the County Court

• Original: disputes w/ claims exceeding $100,000 (e.g. defamation claims)

• Appellate: none

Original and appellate jurisidction of the Supreme Court - Trial Division

• Original: large complex claims exceeding $100,000 (e.g. class action)

• Appellate: Magistrates’ and VCAT on questions of law

Original and appellate jurisidction of the Supreme Court - Court of Appeal

• Original: none

• Appellate: Country and Trial Division on questions of law, questions of fact or an allegedly unjust remedy awarded

Evaluating civil courts to achieve fairness

• (+) same tight to apply for appeal (if grounds are present) which alows errors to be corrected by a higher court

• (+) specialization enables delivery of consistent and impartial outcomes

• (-) expenses associated w/ appeals is unrealistic for some parties and therfore cannot participate in an appeal

• (-) unfair precedents established in a higher court requires a lower court to follow same principles, delivery unjust outcomes

Evaluating civil courts to achieve equality

• (+) rules and procedures are enforced by judges and magistrates who ensure they are applied equallly

• (+) rights to appeal (w/ appropriate grounds) regardless of personal characvteristics, ensuring everyone can engage in appeals process in the same way

• (-) appeals are depenfant on a parties basis of their wealth, as individuas with lower socioeconomic status may not be able to access appeals due to their high costs

• (-) court procedures can result in parties involved to become stess, interefering with their ability to present evidence in a confident manner, providing unequal footing

Evaluating civil courts to achieve access

• (+) appeals allow for parties to have access to a just outcome

• (+) Vic courts have websites that provide information to parties, such as about judicidal processes, court procedures etc.

• (-) some cases may be inedgible for a review if grounds are not met for an appeal - limiting access to appeals

• (-) expenses associated w/ appeals can restrict parties from accessing appeals depending on their financial position

when are civil juries used?

• one or both parties request for a jury to be present during trial

  • party that requests must cover associated costs

  • determine final verdict based on evidence

• The court must be eligible to hear civil trials by a jury (county and trial division)

when can a party not have access to a trial by jury?

• dispute is heard in the magistrates’ court (they only listen to minor disputes)

• dispute is heard on appeal

• the judge orders the dispute to be heard by the judge alone

composition of civil jury

• 6 jurors selected from electoral roll

• empanelment process:

  • 18 years+

  • enrolled to vote

reasons for being unable to serve on a jury:

• disqualified

  • potential juror has committed crimes and therfore may be unable to be impartial

• ineligible

  • possesses personal characters that makes it difficult to participate in the jury (e.g. occupation w/ power, disability)

• excused

  • can be excused on request under specific criteria

role of a civil jury

• determine liability

• decide upon a remedy

• listen to evidence

role of a civil jury: determine liability

• on the balance of probabilities

• majority (5/6) or unanimous verdict

  • majority verdict can only be accepted if trial has been deliberating for 3+ hours

role of a civil jury: decide upon a remedy

• may need to decide appropriate remedy (incl. damages, compensation or other relief)

• in some cases may only be responsivle for the decision in relation to the fault and not the remedy

role of a civil jury: listen to evidence

• be aware of facts and laws relevant to the case and apply them to determine what they accept as accurate and reliable

evaluating juries ability to achieve fairness

• (+) random cross-section of community allows parties to have their case determined by peersd who are also members of the general public

• (+) jurors must disregard pruior knowledge and cannot seek additional info regarding a dispute, enabling impartiality

• (-) undertaking complex task of determine the verdict w/no legal training can risk an unfair verdict

• (-) it is uncertain wherer the law has been correctly applied in accordance to the facts presented as jurors do not provide rational for their verdict

evaluating juries ability to achieve equality

• (+) both parties have the right to request a jury despite personal characteristics

• (+) impartiality of jurors requires them to treat all parties equally regardless of personal characteristics

• (-) costs of juries limits equality for parties of low socioeconomic status as they may not utilise them

• (-) may potentially hold subconscious bias which can limit their ability to treat both parties equally

evaluating juries ability to achieve access

• (+) juries presence decreases the use of sophisticated legal jargon, enabling participants to understand court processes and rules of evidence which promotes access to justice

• (-) juries may not be viable for some parties due to additional fees, therfore a trial by jury as a form of justice may be inaccessible for some parties.

remedies

an order made by the court to provide a legal solution for the plaintiff when the defendant has breached their rights

purposes of remedies

• return the plaintiff to their original position

• uphold the plaintiffs right

• deter others from civil breaches

purposes of remedies: return plaintiff to their original position

rectifying the wrong, enforced through damages and injunctions

purposes of remedies: uphold plaintiffs right

when remedies are awarded, the court acknowledges that the plaintiffs rights have been impacted and will provide a sense of justice and closure

purposes of remedies: deter from other civil breaches

remedies act as a warning to others who consider breaking civil law

types of remedies

• compensatory damages (specific, general, aggravated)

• nominal damages

• exemplary damages

• injunctions

compensatory damages

aim to restore the plaintiff to their original position

types of compensatory damages

• specific - awarded for loss that can be calculated objectively

• general - awareded for pain and suffering, less quantifiable

• aggravated - awarded if the court believes that the actions of the defendant caused humiliation or embarassment

nominal damages

small monetary amount awarded in situations where the plaintiff wants to prove they are legally right rather than seeking compensation

exemplary damages

aim to punish the defendant by making them pay large sums of money in order to deter behaviour - often awarded where civil breach is driven cruelty or revenge

injunction

court requires party to either perform a specific action / prohibit an action to restore the plaintiff to their original position

types of injunctions

• mandatory - forces action

• restrictive - prohibits action

• interlocutory - lasts for a short time and is often awarded in urgent circumstances.

evaluating damages in achieving the purpose of returining plaintiff to original position

• (+) compensates for actual losses

• (+) can compensate for non-quantifiable losses

• (-) may not efficiently restore non-quantifiable losses

• (-) defendant may not have sufficient assets to pay damages

evaluating damages in achieving the purpose of upholding the plaintiffs rights

• (+) choosing to provide compensation demonstrates the courts ackowledgment of the plaintiffs right to a remedy

• (-) in some cases the harm suffered is so significant that is cannot restore their rights

• (-) jurors do not have legal expertise to uphold plaintiffs rights thru damages

evaluating damages in achieving the purpose of deterring others from civil breaches

• (+) damages are rewarded deter people from intentionally breaching civil law reoccurringly

• (-) no guarantee that it is effective

• (-) not effective if the defendant does not have sufficient funds

evaluating injunctions in achieving the purpose of returining plaintiff to original position

• (+) forces defendant to take action to prevent further harm, especially thru restrictive conjunctions

• (-) interlocutory are temporary, so defendant may continue wrong behaviour

evaluating injunctions in achieving the purpose of upholding the plaintiffs rights

• (+) injunction shows justice systems commitment to upholding plaintiffs right

• (-) high costs of intiating a claim can prevent some from exterting their right to a civil remedy

evaluating injunctions in achieving the purpose of deterring others from civil breaches

• (+) prevent further harm by restricting actions, deterring others who consider breaching civil law

• (-) court has limited ability to monitor defendants actions, leading to ineffective enforcement of an injunction