Legal Studies - Unit Two, Area of Study Two: Remedies - Overview and Summary

This area of study is quite similar to the previous one. However, rather than focusing on criminal law, we learnt about civil law. The topic requires us to learn about how civil disputes get resolved -- including where and how. I've heard people in my class saying that the previous area of study, sanctions, was a lot easier. However, my opinion differs. I feel as if there is less to remember in this area of study. What do you think? 

Dispute Resolution Methods

For a summary of mediation, conciliation and arbitration, click here! I wrote a summary differentiating the three previously.

Dispute Resolution Bodies

Tribunals

Tribunals are one type of dispute resolution body. They obtain their power from parliament to resolve specific types of civil disputes. Tribunals aim to provide low cost, efficient and quick dispute resolution. While they are similar to courts in the sense that an independent third party will make binding decisions, tribunals are less costly than courts and don’t have the power to hear representative proceedings.

An example of a tribunal is the Victorian Civil and Administrative Tribunal (VCAT), which aims to provide the population of Victoria with a lower cost, accessible, efficient and independent form of dispute resolution. There are four divisions of VCAT, including the Administrative division, Civil division, Human Rights division and the Residential Tenancies division.

Ombudsman

An ombudsman is an individual appointed by the government to investigate complaints made by individuals against institutions and authorities. Ombudsman aim to provide individuals with a dispute resolution service which are quick and more accessible, as they are free.

An example of a Victorian ombudsman in the Public Transport Ombudsman, which investigates complaints regarding the supply of public transport, sale of tickets, staff members and public transport infrastructure.

Complaints Bodies

Complaints bodies are a dispute resolution body which deals with complaints regarding the provision of goods and services or decisions made by institutions. Like ombudsman, each complaints body focuses on a particular industry.

The Victorian Equal Opportunity and Human Rights Commission is an example of a complaints body. It upholds the Equal Opportunity Act and the Racial and Religious Tolerance Act, which prohibits unjust discrimination and harassment.

Evaluating the Dispute Resolution Bodies

The following are the benefits and limitations of the dispute resolution bodies (excluding the courts).

                       Strengths                                                                     Weaknesses

They’re independent.	People aren’t aware of services
Costs are minimal or free.	Difficult to find right service.
Quicker	Costs money (sometimes).
Informal	Limited power
Specialised in particular industry	No binding precedent.
Procedural fairness

The Role and Civil Jurisdiction of the Victorian Courts

In relation to civil law, courts must determine the liability of a party and decide on an appropriate remedy in attempt to resolve the dispute.

The different courts in Victoria are able to hear specific types of cases. All courts have an original jurisdiction and appellate jurisdiction. Original jurisdiction refers to a court’s power to hear a case for the first time while appellate jurisdiction refers to a court’s ability to hear cases which have been appealed and are returning to court.

The following is a table which outlines each jurisdiction for all the court in Victoria.

COURT	ORIGINAL JURISDICTION	APPELLATE JURISDICTION
Magistrate’s Court	Cases up to $100,000	None
County Court	Unlimited	None, unless a specific act of parliament.
Supreme Court (Trial Division)	Unlimited	Appeals on the question of law from the Magistrate’s Court or VCAT.
Supreme Court (Court of Appeal)	None	Appeals from the County Court, Supreme Court and VCAT president.

Strengths of courts as dispute resolution bodies include ensuring procedural fairness, they're specialised, encourage mediation, can make binding decision, allow for appeals and have the doctrine of precedent (which allows for consistency). 

On the other hand, disadvantages include courts being expensive to utilise, are formal and a party can be disadvantaged due to a lack of funds (thus, reducing access to justice).

Civil Juries

Civil Juries are used in cases trialled in the County or Supreme Court if a party or judge elects it. Meanwhile, they are never used in appeal cases or in the Magistrate’s Court.

Civil juries are made up of six jurors, with two additional often being included for long cases. The jury’s role is to consider the facts of the case and decide who is most likely in the wrong. This is known as the balance of probabilities, which the standard of proof.

Types of Remedies and their Purposes

Remedies are imposed in an attempt to return the plaintiff to the position they were in prior to the wrongdoing being inflicted or conducted.

There are two main types of civil remedies: damages and injunctions. Each have their own varieties.

An injunction is an order which tells to defendant that they must do something or refrain from doing something. An injunction which orders the defendant from doing something is known as a mandatory injunction. Meanwhile, an injunction which tells a defendant to refrain from a certain action is referred to as a restrictive injunction.

Damages is money which is ordered by the court to be paid by the defendant to the plaintiff. In regards to this remedy, there are four types: Nominal, exemplary, contemptuous and compensatory.

Nominal damages are given to plaintiffs who have had their rights infringed, yet didn’t suffer actual loss.  Therefore, the damages given are minimal.

Meanwhile, contemptuous damages are given to plaintiffs who have the legal right to damages, yet don’t necessarily deserve them morally. Similarly to with nominal damages, the damages given are minimal.

Exemplary damages are the most similar to criminal sanctions. They intend to punish the defendant for their action, show the court’s disapproval and deter others from completing the wrongdoing.

Compensatory damages are probably the most complex to remember, as there are three types. The types of compensatory damages include specific, general and aggravated.

Specific compensatory damages are awarded to compensate for things that can be calculated exactly and objectively, such as bills and loss of wages. General compensatory damages are awarded to compensate for pain and suffering while aggravated compensatory damages are given to make up for humiliation the plaintiff suffered.

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Good luck with your SACs, everyone!