U2 - AoS2 (LS)

• Mediation:
• - where a third party helps the parties to a dispute to come to an agreement.
• - Informal atmosphere. Less confrontational.
• - The mediator usually does not have legal authority.
• - The mediator helps the parties to maintain open communication.
• - Mediators do not take sides.
• - Mediators do not tell the parties how to resolve the dispute. -- No advice is given. 
• - Any decisions made are not binding.
• - Can discuss matters openly because matters brought up during discussion cannot be tendered as evidence in court.

• Conciliation:
• - where a third party helps the parties to a dispute to come to an agreement. 
• - Informal atmosphere. Less confrontational.
• - Unlike a mediation, the conciliator may give suggestions about how to resolve the dispute.
• - Any agreement is not binding. (Although parties can sign a settlement agreement (contract) afterwards which can make the agreement binding).
• - Can discuss matters openly because matters brought up during discussion cannot be tendered as evidence in court.

• Arbitration:
• - Arbitration is when a third party (an arbitrator) decides a case. Sometimes it is called a "hearing" but it not in a court.
• - Proceedings are less formal than court proceedings
• - Legal representatives are usually used ($$$).
• - The parties usually agree to be bound by the decision of the arbitrator. As such, decisions are binding.
• - Can discuss matters openly because matters brought up during discussion cannot be tendered as evidence in court.

• Ombudsmen:
• - There are institutions broadly referred to as  "ombudsmen" and that are also used to help resolve civil disputes.
• - an official appointed by the State or Commonwealth government (with office staff) to investigate complaints made by individuals against businesses or government bodies.
• - given powers under statute (laws made by parliament) and provide a free, and independent way of handling disputes.
• - Their role is often seen as "looking after the little guy" so that businesses or government agencies are held to account for their actions.
• Tribunals:
• - "Bodies" that individuals and groups can go to for dispute resolution.
• - Created by Commonwealth and State parliaments by passing legislation. That legislation gives the tribunal the responsibility and power to resolve disputes using various methods.

• -  Each tribunal is responsible for certain types of disputes. For example:
• --- The Fair Work Commission deals with workplace disputes; and
• --- The Victims of Crime Assistance Tribunal (VOCAT) deals with victims of crime who seek compensation for their loss and injuries.

• - Key Advantage of having tribunals is they are most efficient (lower cost and faster) at resolving disputes, as they are highly specialised and expert in their area.
• --- Provides more accessible way for people to enforce their rights.
• --- Also takes the pressure off the court system by reducing the volume of cases that would otherwise go to court.

• VCAT:
• - Victorian Civil and Administrative Tribunal is arguably the most important tribunal in Victoria; deals with a wide range of civil disputes and is one of the busiest tribunals in Australia.

• Role: 
• VCAT handles a variety of civil disputes through five divisions: - Administrative
• - Civil
• - Human Rights
• - Planning and Environment
• - and Residential Tenancies.
• Each division has lists for specific dispute types, such as the Residential Tenancies List, which deals with tenant-landlord conflicts, including unpaid rent or repair issues.

• VCAT offers low-cost, accessible, and informal dispute resolution, often without the need for legal representation.
• - For example, disputes about rental properties are typically resolved within weeks.
• - Decisions can be appealed to the Supreme Court if a party is dissatisfied.

• Other Tribunals:
• - Administrative Appeals Tribunal (Commonwealth)
• - Australian Competition Tribunal (Commonwealth 
• - Copyright Tribunal of Australia (Commonwealth)
• - Fair Work Commission (Commonwealth)
• - National Native Title Tribunal (Commonwealth)
• - Victims of Crime Assistance Tribunal (VOCAT) (Victoria)
• - Mental Health Tribunal (Victoria)

• Complaint Bodies:
• - Created and given power by parliament (through legislation).
• - Deal with complaints about the provision of goods and services, or decisions made by certain government authorities. - Allows ordinary Australians to access dispute resolution when they would otherwise not be able to access the legal knowledge or representation required.

• Consumer Affairs Victoria (CAV):
• - Victorian complaints body that has the power to assist with the following types of disputes:
• --- between a consumer and a business,
• --- between a tenant and a landlord, and
• --- in relation to retirement villages.

• - does not have any power to make a legal determination (eg. like an arbitration), but can assist parties using a conciliation process
• - also provides advice and education services to consumers about their rights.
• - also has the power under legislation to take legal action on behalf of a consumer or tenant (for example, take a business to court on behalf of a consumer).

• Role of Courts in Civil Disputes:
• - Assuming self-help and "alternative dispute resolution" methods are not suitable, a party may wish to proceed to formal litigation through the courts (judicial determination)

• 1. determine the liability of a party (did the defendant actually commit a civil wrong against the plaintiff?), and;
• 2. If the defendant is liable, then to decide on the remedy.

• Court of Appeal:
• - No original jurisdiction

• - Appeals from County and Supreme Court
• - President and VP of VCAT.
• - On a point of law or on the amount of damages awarded.

- Could appeal to High Court of Australia. Must "seek leave to appeal".

• Supreme Court (Trial Division):
• - Unlimited amounts for cases. $$$$.
• - Jury is optional (6) to be paid for the party who requests the jury.
• - Large civil disputes including class actions.

• - A single judge can hear appeals from the Magistrates’ Court on a point of law.
• - From VCAT.

- Could appeal to Court of Appeal on a point of law or the amount of damages awarded.

• County Court:
• - Unlimited $ amounts for cases.
• - Personal injury claims heard here.

- No appellate jurisdiction

- Could appeal to Court of Appeal on either a point of law or on the amount of damages awarded.

• Magistrates' Court:
• - Hear all cases up to $100,000
• - Below $10,000 cases are sent to arbitration.

- None because they are the lowest in the hierarchy.

• - Could appeal to Supreme Court on a point of law.
• - Could appeal to Court of Appeal on $$$

• - No jury in the Magistrates' or in Appeals Court
• - Optional in County and Supreme Courts; Party asking for the jury must pay the costs and the judge can refuse.

• - In Vic, jury trials available as of right on application by the plaintiff or defendant
• - If other party does not want, they must persuade court to dispense with the jury trial

Roles/Responsibilities of a Civil Jury:

• To deliver a verdict:
• - the jury decides on the balance of probabilities which party’s version of the facts is the most accurate.
• - The verdict can be unanimous (six out of six) or a majority (five out of six).
• - Juries do not need to give reasons for their decision.

• To remain impartial:
• - Juries must act impartially and make their decision based solely on the facts as presented in court.

• To determine the level of damages:
• - civil juries also determine the amount of damages payable to the plaintiff, except in defamation cases.

• To be influenced only by evidence presented in court:
• - Jurors cannot gather their own evidence or complete independent research.

• Advantages + Disadvantages:
• - independent and impartial, and independent of legal and political system, thus ensuring equality and fairness in decisions.
• - do not give reasons for their decision, and deliberations occur behind closed doors, so some may question whether there has been procedural fairness in the decision that has been made.

• - allows for community to be involved in process. increases confidence that community has in system, and ensures the verdict reflects values of community.
• - The task is difficult, particularly where there is complicated evidence or a significant amount of evidence. questionable whether ordinary members of public are able to understand evidence to be able to come to the right decision.

- It ensures fairness by requiring the jury to deliberate based on the evidence and facts and not on their own independent research or investigations.

• Purposes of Civil Remedies:
• 1. Original Position: The primary purpose of civil remedies is to restore the party or parties to their original position (financial and emotional).
• 2. Financial Loss: Compensate them for financial loss
• 3. Punish: to punish the defendant for their actions

• Two main types of remedies:
• - Damages: (a sum of money to be paid to the defendant by the plaintiff)
• - Injunctions: (a court order for the defendant to do something or to refrain from doing something)

• Damages:
• - The most common remedy sought is monetary compensation ($$$) – this is a payment of money from the defendant to the plaintiff.

Compensatory Damages, including;

• Specific (special) Damages:
• - damages awarded to the plaintiff that can be accurately assessed or calculated.
• - Typically, you would need evidence of the actual value of the loss suffered by, e.g., receipt - pharmaceutical costs

• General Damages:
• - damages awarded to the plaintiff that cannot be accurately
• assessed.
• - judge and jury are required to estimate the monetary value of the suffering
• --- e.g., loss of enjoyment of life, pain and suffering, loss of future earnings/income.

• Aggravated Damages:
• - damages that are awarded to the plaintiff for injuring the plaintiff's feelings caused by humiliation and insult.
• - The amount awarded is also based on an estimation by the court.

Nominal & Contemptuous Damages:

• Nominal:
• - a small amount of money awarded where a plaintiff’s rights have been infringed but they may not have suffered significant injury or loss.

• Contemptuous:
• - where the court is not sympathetic even if the plaintiff technically wins – the court may award such a small amount it makes a mockery (makes fun) of the case.

• Exemplary Damages:
• - awarded when the court may intend to make an example of the defendant to the rest of the community by ordering them to pay a large sum of money.
• - Acts to either PUNISH the defendant or to DETER others from acting in the same way.

• Non-Monetary Remedies:
• - Sometimes, the plaintiff is not (only) asking for money.
• - They may want the defendant to do or not do something. 

• Injunction:
• - a court order for the defendant to undertake(do) OR not undertake (not do) a particular behaviour.
• --- e.g., An order that the defendant: stops publishing damaging statements in the newspaper (eg. Defamation).

• Specific Performance (Contract Law):
• - order for specific performance requires the defendant to perform its obligations under a contract
• - Specific performance will not be awarded where the performance requires supervision by the court

• Recission (Contract Law):
• - An order for rescission also relates to contract law.
• - Rescission puts an end to a contract and restores the parties to their original position (as if the contract never happened).