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

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

decision of remedy

• establishes liability —> court must provide remedy

  • most common = 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