U3-AOS 3

• burden of proof in the civil justice system refers to which side must prove the case
• standard of proof in the justice system refers to the level of certainty the person deciding the case (i.e. the judge) must have in deciding the dispute
• types of damages: compensatory, exemplary, nominal, contemptuous
• types of compensatory damages: specific damages, general damages, aggravated damages.
• compensatory damages: damages awarded to the plaintiff to restore them to the position they were in before their rights were infringed.
• specific damages: compensation awarded when losses are easily quantifiable. e.g. loss of wages, medical expenses (future/past) and property damage.
• general damages: compensation awarded when losses are not easily quantifiable. e.g. pain and suffering and loss of amenity.
• aggravated damages: amount of money awarded when plaintiff has suffered humiliation, embarrassment, or insult because of conduct. e.g. distress
• exemplary damages: punitive damages that aim to punish the offender for an extreme infringement of rights and to deter others from undertaking similar actions. e.g. malicious, violent, cruel conduct.
• nominal damages: small amount of money awarded to confirm that the plaintiff's rights were infringed, but no suffering, injury or damage occurred or were not substantial. e.g. Pokemon v Redbubble - $1 in damages.
• contemptuous damages: very small amount of money awarded when a court/tribunal believes that a plaintiff does not deserve to be paid damages; while recognising that they have the right to make a claim.
• In defamation cases, damages for non-economic losses, for example pain and suffering, are limited to $250,000.
• Personal injury claims under the Wrongs Act 1958 (VIC) and non-economic losses (aggravated and general damages) are limited to a fixed amount by parliament on a year by year basis.
• The purpose of an injunction is to rectify a situation caused by a person found to be in the wrong. An injunction can be interlocutory (temporary) or perpetual (ongoing).
• A restrictive injunction requires a person to refrain from doing something in order to prevent harm or further harm from being caused to the plaintiff. E.g. stop someone from pulling down a building
• A mandatory injunction orders a person to do a particular act, requiring the defendant to take action to prevent further harm from being suffered by the plaintiff. E.g. performing a part of a contract
• Factors to consider before initiating a claim:

  • costs
  • limitation of actions
  • enforcement issues
• A party involved in a civil dispute may incur costs in resolving that dispute, including costs for legal representation, disbursements and possible costs to be paid to the other party for unsuccess.
• Costs of engaging a solicitor (s) and barrister (b) depend on the size and complexity of the case. High costs can be restrictive for many people and may limit access.
• Disbursements are 'out of pocket' expenses incurred through the legal case, such as court fees (filing/hearing/jury fees), mediation fees, fees for expert witnesses.
• An adverse costs order requires a plaintiff to pay their own legal fees and some of the defendants if they are unsuccessful in their claim.
• Limitation of actions refers to a restriction placed on the time within which a civil action can commence, this preserves the credibility of evidence, maintains fairness for defendant and ensures quick resolution.
• The Limitation of Actions Act 1958 (VIC) imposes limitation of actions for 1) defamation claims with a one year limitation 2) breach of contract claims with a six year limitation.
• Enforcement issues relates to the ability of a defendant to comply with and respect a remedy imposed onto them. Plaintiff must consider if a defendant can and will pay, or they may need to issue enforcement proceedings to force a defendant to pay.

  E.g. seeking to obtain a warrant from court to get police/court sheriff to seize & sell defendants goods.
• Vicarious liability may make a defendants employer liable for harm, if defendant was acting in the course of employment.
• Fairness: impartial processes, open processes and participation.
• Equality: same treatment (formal equality), different treatment (substantive equality)
• Access: engagement and informed basis.
• Mediation is a cooperative problem solving process where parties discuss issues and try to reach an agreement through negotiation and compromise.
• A mediator facilitates communication between the parties and encourages them to reach their own agreement.
• Conciliation is another co-operative method of dispute resolution where parties negotiate and compromise to reach a mutually acceptable agreement.
• A conciliator, with more influence over the outcome, listens to parties and suggests possible solutions to help them reach a decision. They usually possess specialist knowledge of the area of dispute.
• mediation/conciliation strengths & weaknesses:

  • informal system
  • independent third party
  • confidential environment
  • non-binding decision
  • power imbalance
• Arbitration uses dispute resolution without formal court processes. Parties have more control over the process and are free to agree on the procedure that is used. It is held in private and may be less formal and more cost-effective than attending court hearing or trial.
• An arbitrator will listen to both parties and make a decision that is binding onto them. The final order is known as an arbitral award and is enforceable.
• arbitration strengths & weaknesses:

  • binding decision
  • held in private
  • specialised knowledge
  • no control over outcome
  • can be formal
• reasons for a court hierarchy: administrative convenience & appeals.
• Administrative convenience relates to cases being distributed according to seriousness and complexity; where less serious cases are heard in lower courts and more serious in higher courts.
• Administrative convenience: a claim seeking $100,000 or less is heard in the MC. Allowing for less expensive and quick resolution and ensuring to allocate resources and create processes that help maximise efficiency.
• Administrative convenience: more serious/complex cases are heard in CC & SC, which both have unlimited jurisdiction. People may opt for higher courts when matters are long and complex or when a case is better suited to the highest court. Higher courts have more experience and are able to resolve complex matters faster.