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Legal Studies SAC #5
12.2, 12.3, 12.4, 12.4, 12.5, 12.6, 12.7, 12.8, 12.9, 12.10
| Question | Answer |
|---|---|
| fairness | one of the principles of justice, fairness means all people can participate in the justice system and its processes should be impartial and open |
| process of fairness | impartial processes, open processes, participation |
| impartial proceses | all people involved in the civil justice system must be independent and impartial(no bias), must decide the case based on facts and legal principles and not on their on preconceived views or prejudices and cannot favor either party |
| bias | a prejudice or lack of objectivity in relation to one person or group |
| apprehended bias | a situation in which a fair-minded lay observer might reasonably believed tat the person hearing or deciding a case might not bring an impartial mind to the case |
| what does apprehended bias include | impartiality extended to ensure there is none, a person involved in deciding the case may need to remove themselves from the case if there is an apprehension that they might not have an impartial and unprejudiced mind |
| open processes | to ensure fairness the civil justice system is open to the public and media so that decisions and processes can be scutinised, court judgements are need to be made available (including online) but sometime disputes are private so parties can control it |
| court judgement | a statemant by the judge that outlines the decision made by the court and the legal reasoning behind the decision |
| particpation | requires parties in a civil dispute to be able to participate so the plaintiff and defendant and at time ordinary members of the community should eb able to be involved in the case |
| participation includes 1 | the opportunity to know and understand the case that is put against them (before the trial the plaintiff is required to disclose their claims the basis of the evidence they rely on so the defendant understands their lability) no surprises at trial |
| participation includes 2 | the opportunity to present their version of the case(both parties should be able to make submissions to the judge, call their witnesses, ask questions , crosse examination nd making opening and closing teh addresses |
| participation includes 3 | no delays so a fair trial or hearing is one where there are no unreasonable delays s they can lead to unfair outcomes such as witnesses forgetting what happened or the plaintiff being so elderly that they cannot enjoy any remedy awarded to them |
| equality | one of the principles of justice, means that people should be treated in the same way but if the same treatment created disparity or disadvantage, adequate measures should be implemented to allow all to engage with the justice system without disparity |
| same treatment | the plaintiff and defendant must be treated the same (formal equality) no changes are made to the court processes or system as the people are afforded teh same level of support and treatment |
| different treatment | substantive equality, adjustments are made to the processes to ensure that this disadvantage is avoided or reduced (includes people who does not speak english, young people, religious and cultural differences, who have no lawyer) |
| accces | one of the principles of justice, means that all people should be able to engage with the justice system and its processes on an informed basis |
| engagment | there should be a range of dispute resolution bodies eg tribunals, complaint bodies and ombudsmen, physical access to courts, technological access, financial access, no delays |
| informed basis | to be able to engage with the justice system, people need to be informed and have the knowledge and information to be able to pursue there case includes education, information and legal representation |
| alternate dispute resolution methods | ways of resolving or settling civil disputes without having a court or tribunal hearing |
| mediation | method of resolving disputes, widely used by courts, tribunals etc, joint problem solving process where parties in the dispute sit sown and discuss the issues they disagree on, present their side for the case and reach an agreement through negotiation |
| mediator | independent third party who does not interfere or persuade, helps the parties in a mediation as they try to reach a settlement of the matter, trained to assist parties to reach a decision, empowers both parties, confidence, not expert in the area of law |
| mediation without prejudice | any discussions are without prejudice as parties are free to openly discuss their dispute and teh weaknesses of their case as it cannot be used againt them on a later date, removes fear and allows the to be mor eopen |
| terms of settlement | a docuemnt that sets out teh terms on which the parties agree to reoslve their dispute, legally binding contract that parties enter in mediation, is enforcebale through teh courts and are confidential to the parties |
| when is mediation available | parties can organise a private mediation between them and mediators can be accesses through Victroian Bar website and othe rorganisations, parties in a court case can eb referred to mediation before teh final hearing aswell as tribunals |
| conciliation | a method of dispute resolution that uses an independent third party to help the disputing parties reach a resolution |
| conciliator | the independent third party in a conciliation who helps the parties reach an agreement that ends the dispuet between them, make suggestions and offer advice to assuts in finding a mutually accpetavle resoluton, but parties reach the decision themsleves |
| final decision in cociliations | not binding, but can enter into a terms of settlemnt that can be legally enforcebale |
| when is concilation used | man dispute resolution bodies use a form of conciliation to resolve disputes, parties in a dispute at the VACT are often sent to a compulsory conferance that uses conciliation to come to a resolution, specialized courts use a form of conciliation |
| strengths of M and C pt 1 | decision mde by the parties is mor eliekly to be acceptable to the partiesas they reached it themsleves rather than being imposed on them, held in less formal setting than courtrooms, less confrontational (alleviates stress and fear) |
| strengths of M and C pt 2 | assisted by unbiased third party who does not take sides but facilitate discussion, can discuss confidentially without publicity, save time and money as avoid the need for dispute to be determined at a final hearing or trial that can cost a lot of money |
| weaknesses of M and C pt 1 | unless terms of settlement, decesions reached are not binding, one part may dominate the otehr part and influence the third party (especially if the othe rparty has no legal rep), third party have no power to order parties to attend or make a decision |
| weaknesses of M and C pt 2 | are not apropriate for soem disputes (eg where one party has an unfar advantge or more bargaining power or when an urgent injunction is required), both parties must be willing to particpate for it to be successful |
| arbitration | a methof of dispute resoltion in which an independnet third party is appointed to listen to both sides to both sides of a dispute and to make a decision that is legally binding on the parties (arbirtal award) |
| arbitrators | an independent third party appointed to settle a dispute during arbitartion, have specialised expertise in particular kinds of disputes and mae decision that are legally bidning, charge a fee |
| abitral award | legally bidining deciison made by an arbitartion by an arbitartor, parties must abide by the arbitartors decision |
| when is arbitration used | when parties have previously agreed (eg in contract) that any dispute that arised between them will be resollved by arbitartion, in mag court abritartion is used to resolve civil claims of less than $10 000 |
| strengths of A | conducted privatly, flexible, less formal that court processes, cheaper to resolve that going to court, the arbitral award is legally bidning on the parties ensuring they follow it, arbitartors have expertise in teh subject matter, priavte and confential |
| weaknesses of A pt 1 | not as flexible as M and C (limited to particular remedies or outcomes), can be as formal as court processes, more expensive then M&C as evidence is gathered and put before an abitartor and legal rep is used, parties have no control of the outcome imposed |
| weaknesses of A pt 2 | can atke a long time for a decision to be reached if the parties go through several stages like producing evidence, not always available to the parties in dispute (only two ways available) |
| arbitration POJ | Fairness: Independent arbitrator hears both sides and makes a decision. Equality: Both parties have an opportunity to present their case. Access: Usually cheaper and quicker than going to court. |
| Mediation POJ | Fairness: Neutral mediator helps both sides reach an agreement. Equality: Both parties can communicate their views. Access: Informal, less expensive and less time-consuming |
| Conciliation POJ | Fairness: Neutral conciliator helps resolve the dispute and may suggest solutions. Equality: Both parties have an opportunity to be heard. Access: Less formal, cheaper and generally quicker than court |
| tribunal | a dispute resolution bidy that resolves civil disputes and its intended to be less costly, more informal and faster way to resolve disputes than courts |
| ombudsmen | an office holder with power to investigate and report on complaints relating to administrative action taken by government departments and other autorties and bodies |
| complaints bodies | an organisation established by parliament to resolve formal grievances made by an individual about the conduct of another party |
| purpose of triunals | to provide individuals with a low cost efficient and speedy method to dispute resolution, increase the communitys acess to justice by providing ausies with an alternatice to court |
| where do tribunals obtain their power | obtain their power to resolve certain types of disputes from parliament, parliament will pass a statute gibing a tribunal the authority to hear and determine certain types of matter and applications eg mental health act 2014, gave power to MHT |
| what can tribunals hear | cannot hear every type of dispute, have no power to hear class action |
| tribunals role | similair to courts, an indepndnet thrid party will heat the dispute and make a binding decision on the parties, they also may be reffered to a form of dipsute resoltion method like mediation before the final hearing but cheaper and less formal than court |
| VCAT | victorian civil and administrative tribunal, a tribunal that deals with disputes relating to a range of civil issues heard by various lists such as the Human rights list, civil claims list and resedentail tenacies list |
| 5 divisions of VCAT | adminsitartice division, civil division, human rights division, planning and environment division, resedentail tenacies division and each si divided into one or more lists that hears particular types of disputes |
| VCAT purpose | to provide Victorians with a low cost, accessible effieicnet and indopdnendt tribunal that delivers high quality dispute resolution |
| how does VCAT do this | chargiing low fees, disallowing legal rep, variety of locations , have cases haerd within weeks of applying, heard by indpendnet VCAT memers, less formal setting than courts, offeres mediatuons and conciliation before making a binding deciison |
| role of ombudsmen | to provide individuals and small busineress witth an independent, timely and accessible dispuet reolsution service to resolve disputes in relation to certain gences and industries (government or industry) |
| role of complaints bodies | deal with complaints about the provision of goods and services, or decisions made by certain bodies or aurthorities, intended to provide a free complaints and dispute resolution service so that many vic can access resolutions sercices |
| what does complaints bodies hear | designed to hear complainst from individuals and small businesses about services or goods provided to them, usually do not hear disputes baout individuals, do nto have the power to conduct a hearing or make a binding decsion on parties |
| how do complains bodies work | do not use formal procedures to resolve disputes, offer flexible services so that they are accessible to everyone like online o rover the the phone |
| VEOHRC | helps with disputes in relation to equal oppurtunity, discrimnationa dn infingemnt of human rights, services are free fair and temily services for people who belive to be harrassed cilifies victimised or discriminated agints, use conciliation |
| strengths of T, O and C pt 1 | cost of taking a dispute is lower than taking a dispute to court (O and CB resolve for free which cinreases availabilitty of justice), CB resolve complainst and applications quickly (1-6 months) freely available services, |
| strengths of T, O and C pt 2 | informaility makes people feel more at ease (O and CB provide avenue to resolve disputes with lae service providers and government agencies without fear o intimindation), ensure that whoever to assisting the parties is independent and impartial |
| weaknesses of T, O and CB pt 1 | some services ar enot free of charge(VCAT applicationa nd hearing fees are high), large number of bodies makes it hard for public to find teh right service to help them, O and Cb have limited power to make binding decisionsd), |
| weaknesses of T, O and CB pt 2 | are not aproprate for lage, complex claims or where there are large sums of money involved, O and Cb are specialised in particular areas or industries (no option but to issue a claim in court for some cases, not available for everyone |
| role of vic courts in civil disputes | main dispute resolution body in vic, determines the liability of a party, decided on the remedy of required |
| determine liability | role to determine whether the defendent is liable and if so to what extent, judge or mag will consider the evidence and will determine whether the plaintiff on the balnce of proababilities has proven that the defendent cuased the loss of harm suffered |
| determine liability cont | provide specilisation and expertise in teh type of dispute it is hearing, manage the case (give orders directions the parties eg to attend things and present documents), hear appeals |
| decide on the remedy | if the plaintiff established that teh defedent is liable, needs to assess damages (calculate amount of damages need to be paid based on evidence) |
| mag court OJ | hears minor civil disputes of up to $100 000, cannot award damages greater than $100 000 to the plaintiff |
| County court OJ | inlimited jurisdiction and hears cases involving claims of any amount, parties choose for their metter to be heard in either the county ot supreme, chose of trial with/out jury |
| county court AJ | does not ahve the jursdiction to heara ppeals in civil matters where an Act of Parliament specifically provides for appeals to be heard in the county court eg certain appesl under youth act can be made to the cc |
| supreme court trial division OJ | unlimited, used for many complex and leage civil diisputes like class actions, matters involving complex areas ot lae and disputes between large corporations |
| supreme court trial division AJ | a single judge in the SC can hear appeals form the mag court on a point of law (except chief mag haerd the case,then teh court of appeals will hear it). also hears appeals from VCAT (except when president or vic epresident made the order in the VCAT case) |
| supreme court court of appeal | no OJ, hears appelas from CC and SC on question of law, question go fact or the amount of damages awarded, hears appelas from decisions of teh president and vice president of VCAT and appeals from the mag court whn cheif mag made it |
| courts strength | judges are impartial referees, decisons based on facta nd law, reduce delays and costs through active judical case managemnst, specialsisation ensured fairness and expertise, procedrual fairness through formality, allows for appeals |
| courts weakenesses | ways they resolve disputes are difficult to understand for parties, too expsnive for many due to teh need for legal rep, without rep might be at a disadvantge (not equal) still are delays despite reforms to civil prosedure, formality creates stress |
| jury | an independent group fo epoepl chosen at random to determine questions of fact in a trial and reach a decision |
| when is jury used | no jury in mag curt and in appeal cases, in county and supreme a jury is optional , if either party wants it they must request a jury trail, party that requested it must pay the fees, judge can also request |
| compossition of civil trial | 6 jurors in CC and SC, each juror is randomly sleected from victorian electoral roll and must fill out an eligibility form to determone wther they can sit on a jury |
| who cannot sit on a jury pannel | disqualified (senetnced to a term of imprisonemnt for 3>or on bail, ineligible due to job or charcteritsic, excused if cirucmstances make it difficulty lke poorhealth, live more than 50 km away or might suffer subatntila hardhsip |
| role of the jury | consider the facts of the case and decide who is most likely to be in teh wrong on balance of probs, if an unaminous verdict cannot be reached then a majorty verdict of 5/6 will be accepted, may also decide amount of damages, dont give reason |
| strengths of jury | independnet and impartial E F, allows community to be involved in teh adminsitartion fo justice which increases confidence, spreads repsonsivility, selected at random and conencted jurors cannot particpate, verdicts relect community values |
| weaknesses of jury | do not gice reasosn for their deciisons and occur behind close doors (raises questiosn if theere is misundertandinsg or bias), not all memebers are leligivle (not proper cross section), may have biases, influced by skilled lawyers or be emotional elements |
| weaknesses of jury cont | may result in delays die to the directiosn need to be given, task is difficult which raises the question of wther ordinary memebr can undertand the evidence and arrive at the right deciison |
| difficulties faced in the civil jsutic esytem | First Nations, People from low socio-economic groups, Young people, People living in regional, rural and remote areas |
| first nations people | distrust in the justice syte (intergernartional truama, injustices), language differnce (aunty, uncle, islence is valued, storyetlleing, refer ti dead) , culrtual differnces (elders are respected, country, family ties) |
| adressing dificulties of FIirst nations | dedictaed funding for aborigina legal aid to snure profesisonal cultuallya propruate leagl sercuce available, VALS, govemrnet funded legal sercuce organistion that provided advice, courts and tribunals prove personnel with slutla training led by FN people |
| people of low socioeconomuc status | inability to access legal service ( cannot pursie or afford to defend their claim), lack of understanding (denied the oppurtuinity to dvelope their englihs of literacy skills or have long term inteelctial disabilities) |
| adressing dificultues of SES | provisiosn fo free legal service (pro bono organisatiosn seek to bridge the justic gap, provisison of assistance of self represnted parties (SC AND CC have self represnetd litigant coordinator to guid eepople ), rstriced use of lwayers at VCAT |
| young people | age related commincation barriers , lack of knwelfe about the legal system (their rights, oblifations, methods availavle), lack of resources |
| adressing difficulties young people | youthlaw is dedictaed communty legal centre for young peopl, assist with common issues such as complaints, debts, courts and tribunals will genrally use less formal and complex language, organisations that price eductaion on righst |
| people is regional, rural and remote areas | lack of access to legal services (no practicng lawyer, if their is one there is confliction or may not have expertise) lack of access to tech (no power or internt) lack fo access to courts (travel log distances) |
| adressing dificultins RRR | organisatiosn encoruage lawyers and students to work in RRR areas to pomote the role of laeyers in these areas, increase in availability of online info and dispute reslotion methods, court pacilties nd offic have been upgraded to enure greater access |
| purpose of remedies | to restore (as much as possible) the party who has suffered loss or inijury to the position they wer ein before teh loss or injury occured, usisally in teh from of payment others inclide to dter someoen fro doing or stop it from happeding further |
| damages | an amount of money that one party is ordered to pay to another party for loss of harm suffered |
| purpose of dmages | restore teh plaintiff to the position tehy were in before teh wrong occured howver if there is permament damgfes or psychiatruc injury, it may not be possible to restore |
| types of damages | compensaoty, nominal, exmeplary, contemptuos |
| compensatory damges | an amount of money awards to a plaintiff for harm, injury or other losses suffered, purpose s to restire the aplintiff to tehir orignal psiiton, include special (calculted), general (pain), aggracated (himilaition) |
| nominal damages | a small amount of money awarded to confirm that a plaintiffs rights have been infringed even though the losses were not substantial, court award a verys mall amount as copenstaion to recofnise that there has been a breach and the paintiff was wringed |
| examplary damages | seeks to punish the defendent, may be awarded if a defendnets action was so outrageous that teh cpirt wished to dter others from similair actiosna nd to shwo disparovial of the defendents actions(not in defamamtion), or shown total direspect for plaintiff |
| contemptuous damages | a very small amount of money awarded to show that even though the aplintiffs claim succeeded legally the court diaproves of it in moral terms, very rare |
| factors that affect its strnegth | hether any loss has een suffered and if it is minor or insiginfcnat, type of loss suffered, whetehr there is potential for ongoing hamr, tome, cost stress and oncoveniance, whetehr teh defendet will pay |
| injucntion | a remedy in the form of a court order requiring the defendent to do something or not to do something, designed to prevent a person from doing har for furthe rharm or to rectify a wrong |
| restriive injucntion | stops someone from oung soemthing |
| mandatory injunction | comple soemoen to do a patuclur act |
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