REMEDIES

AND
DISPUTE RESOLUTION
IN
C I VI L AC TI ONS
DAMAGES

The remedy most often sought in civil actions

is monetary compensation for the loss
suffered.
The law distinguishes between the particular
types of damages that may be sought
TYPES OF DAMAGES
Special Damages that can be accurately assessed. In the case of an action for negligence when a
person has suffered physical injury, certain expenses can be calculated directly.
For example, doctors bills.

General These are amounts of compensation that cannot be accurately assessed. The judge and
jury are required to estimate the monetary value of the suffering.

Nominal This is a small sum of money awarded in situations where a plaintiffs rights have been
infringed but they may not have suffered significant injury or loss.

Exemplary These are 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 amount of money.
This acts to punish the defendant or to deter others from acting in the same way.

Contemptuous This is awarded in cases when the plaintiff may have a valid claim and could even be
successful in exercising their rights, but the court is not particularly sympathetic.
Therefore, the plaintiff may win technically but be awarded an amount that almost
makes a mockery of the case at the same time.
OTHER REMEDIES

Specific Performance - concerned with breach of contract where a judge orders that the
terms of contract must be met
Rescission - concerned with breach of contract. The result will be that both parties will be
returned to the position they were in before the contract
Injunction - a court order for the defendant to undertake, or to refrain from undertaking,
particular behaviour. An injunction may be an appropriate remedy in a defamation case. The
court could order that a newspaper cease publishing damaging statements until there has been
an opportunity to test the accuracy of those defamatory statements. Such injunctions may be
temporary or permanent.
DISPUTE RESOLUTION

There are many options available to a person whose rights have been infringed.
They do not have to pursue a matter through the courts.
In fact, even if they do decide to take their action to court, they may still be
required by the courts to use alternative dispute methods during the pre-trial
stage.
Many agencies have been established to enable legal problems to be resolved.
The great bulk of disputes that take place in our community do not ever reach
a court of law.
MEDIATION

Mediation aims to assist parties to a dispute to reach a mutually acceptable resolution.

The mediation is conducted by an impartial third party, called a mediator.
The mediator assists the parties to exchange information, ideas and possible
alternatives to resolve the dispute.
Importantly, the parties to the dispute make the final decision as to how the dispute
will be resolved. The mediator has no input into the decision.
Many courts require parties to attend mediation before the case proceeds to a trial.
Mediation is used by the courts to attempt to ensure a speedy and cheap resolution
of cases and to encourage the continued relationship of the parties.
CONCILIATION

Conciliation involves an independent third party who attempts to resolve a

dispute by talking about the issues with the parties and suggesting ways to
resolve the dispute.
The conciliator is usually an expert in the area related to the dispute and is
thus actively involved in the discussion but the parties make the final decision
about how the dispute is resolved
Conciliation is often used in consumer claims and cases involving
discrimination at the Victorian Equal Opportunity and Human Rights
Commission.
ARBITRATION

Arbitration involves an independent third person, known as an arbitrator,

hearing the issues and making a decision about how the dispute can be
resolved
Arbitration is compulsory for civil claims under $10 000 in the Magistrates
Court, and these claims are usually heard before a magistrate.
Dispute resolution using arbitration is more formal than using mediation or
conciliation, with hearings conducted in the style of a court hearing. But the
rules of evidence and procedure are much more relaxed than for a trial.
JUDICIAL DETERMINATION
COURT CASE
Judicial determination is a formal method of resolving disputes using a magistrate or judge and
a possible jury.
It is used to resolve all criminal disputes, but can also be used as a last resort to resolve civil
disputes.
A judge or magistrate will listen to the evidence and analyse and apply the law. This decision is
binding and enforceable by the court.