LEGAL STUDIES Unit 2 Written Examination 2015 Trial Examination SOLUTIONS SECTION A: (25 marks) Question 1 a. Precedent Also known as stare decisis which is to stand by what has been previously decided. The same legal principle is used to resolve similar types of disputes. b. Injunction A type of civil remedy that the plaintiff may seek. It is an order from the court either stopping the defendant from doing something (restrictive injunction) or compelling the defendant to do something (mandatory injunction). c. General damages A type of compensatory damages where the court will estimate the pain and suffering the plaintiff went through as a result of the defendant s actions. This is compensated in a monetary form and it will include emotional stress or some form of permanent loss e.g. loss of eyesight. d. Tort It is a civil wrong where one individual infringes the right(s) of another. Negligence is an example of a tort. e. Test case A test case is usually mounted in order to establish a common law precedent in an area of law in which no current precedent exist. 5 x 1 = 5 marks TSSM 2015 Page 1 of 11
Question 2 1. The standard of proof in a civil case is based on the balance of probabilities, whereas in a criminal case it is based on beyond reasonable doubt. 2. The aim of civil law is to restore the individual back to their original position, whereas the aim of criminal law is to punish the offender for a breach of criminal law. 3. In civil law, it is up to the plaintiff to bring an action against the defendant as his/her rights have been infringed. Whereas in criminal law, it is up to the State through the prosecution to bring about charges against the accused. are allocated for each point of difference that is explained. (x3) 6 marks Question 3 The Donoghue v Stevenson case involved May Donoghue purchasing a bottle of ginger beer which was opaque. Donoghue drank the contents of the bottle which contained the remains of a decomposed snail and suffered gastroenteritis. She sued the manufacturer as she was not the actual person who purchased the drink (otherwise she would have sued under contract law). The House of Lords in England (the highest court of appeal) decided that Stevenson who was the manufacturer, would be liable under negligence for lack of duty of care which was the legal principle or ratio decidendi in this decision. This case was a persuasive precedent for the decision in Grant v Australian Knitting Mills as the case occurred in Australia and involved similar legal principles and similar material facts. Binding precedent is the legal reasoning or ratio decidendi that must be followed by all lower courts within the same court hierarchy, whereas persuasive precedent is one that is not binding on the courts as the decision may be based on a different court hierarchy or obiter dictum (matters spoken by the way). are allocated for facts of the Donoghue v s Stevenson case. are allocated for the explanation of why it was a persuasive precedent on Grant v s Australian Knitting Mills case. 1 mark is allocated for distinguishing between a binding and a persuasive precedent. 5 marks TSSM 2015 Page 2 of 11
Question 4 Other reasons for having a court hierarchy which students can use to to answer this question include: administrative convenience, the doctrine of precedent and specialisation. Students will need to briefly describe one of these reasons. Example: A court hierarchy enables courts to develop their own areas of expertise in terms of the type of cases heard and determined. The Magistrates Court for example hears and determines all summary offences like drink driving. 1 mark for identifying another reason. 1 mark for the description. Question 5 VCAT was established as an avenue of dispute resolution that is easily accessible to people in the community using informal processes that are easy to understand. It also aims to provide low cost proceedings and timely resolution of disputes as well as experts in particular fields of law such as anti-discrimination. The decisions of the tribunal are binding and can be enforced through the courts. Question 6 Judicial determination is where people who wish to have their case resolved via a hearing may elect to have their dispute settled in the first instance by an independent third party. This could be a judge or magistrate who make a binding decision and adheres to the strict rules of evidence and procedure. This is a dispute resolution method employed by VCAT and the Courts. One advantage is the binding nature of the decision and one disadvantage is the need for legal representation which can be costly. 2 mark are allocated for the definition of judicial determination. 1 mark is allocated for one advantage of judicial determination. 1 mark is allocated for one disadvantage of judicial determination. 4 marks TSSM 2015 Page 3 of 11
SECTION B: (25 marks) Case Study 1: Question 1 Negligence is the tort that Tom would allege in this case. The elements that need to be present in a negligence case include: 1. Duty of care was owed. The plaintiff was a neighbour of the defendant and was owed a duty of care. The defendant needed to take reasonable care to avoid any acts or omissions that they could reasonably foresee would more than likely cause injury to their neighbour. The floors were clean during trading hours to avoid any injury to customers. 2. Breach of the duty of care: The supermarket failed to see that the risk was foreseeable and it did not exercise a reasonable standard of care in these circumstances by having signs that indicated to customers to avoid the use of a particular area, or by having the floors regularly cleaned and checked. 3. Loss suffered. It must also be established the plaintiff suffered injury or loss that was directly caused by the defendant s failure to exercise adequate care. In this case, the plaintiff suffered spinal injuries and was unable to work for 6 months. 1 mark is allocated for correctly identifying the tort of negligence. 1 mark is allocated for the explanation and link to the case for each of the three elements.(3 marks) 4 marks Question 2 Contributory negligence could be argued in this case, as this is a partial defence. It enables the defendant to argue that the plaintiff contributed to his or her own injuries and thus should be held partly responsible. In this situation, Tom (the plaintiff) was having fun with the trolley going around the corner, at the end of each aisles at great speeds. It could be argued that such conduct contributed to his injuries and that the plaintiff should have taken greater care to avoid such injuries. Therefore, contributory negligence would be successful in this case. for the description of a suitable defence in this case. for the justification of the defence in relation to this case. 4 marks TSSM 2015 Page 4 of 11
Question 3 Both the County and Supreme Court Trial Division has unlimited original civil jurisdiction. It is most likely that the County Court will hear and determine this case as the Supreme Court Trial Division normally hears and determines the more complex civil cases. Question 4 Mediation is one of the alternative dispute resolution methods available for solving civil disputes. It is where a third person called the mediator, facilitates discussion between the two parties in an attempt for them to come to a mutual agreement. The mediator will not suggest any possible solutions and the decision reached is not binding. Strengths include: the lower cost of proceedings as there is no need for legal representation, instead allowing the parties to reach an amicable solution. Weaknesses include: One party may wish to take the case further, if they are not satisfied with the outcome and this would escalate costs as there would be a need for legal representation. One party may also be in a stronger bargaining position or more intimidating than the other party. Due to the nature of this case where contributory negligence is likely to be present, mediation would be more suitable to enable the parties to come to a mutual agreement about the amount of damages payout. 1 mark for a key feature of mediation. 1 mark for a strength of using mediation. 1 mark for a weakness of using mediation. 1 mark for the justification of using mediation. Question 5 Students could mention any one of the following civil pre-trial procedures: Letter of Demand, Pleadings, Discovery, Directions Hearings. Students will need to explain one of these and include its purpose. 4 marks Example: The discovery procedure enables the parties to gain further information on matters that remain unclear. This is in the form of the disclosure of all facts and relevant documents which then form the basis of both the claim and defences. Total 15 marks TSSM 2015 Page 5 of 11
Case Study 2: Question 1 Defamation is when a person makes comments about another that damages the reputation of that person. The first element is publication which requires that the defamatory statement is communicated to at least one other person. In this case, the host Mick Stanley made the comment on air. Secondly, the defamatory statement identifies the plaintiff i.e. a reasonable person could conclude that the statement was made about the plaintiff. In this case the actual name of the plaintiff (Tamsin) was clearly mentioned. Thirdly, the reputation of the plaintiff is damaged in some way. It is irrelevant whether the person who made the defamatory statement intended to do so. The comment that was made on air by Mick Stanley was that Tamsin 'bribed the producer to get her part in the TV drama and this is why she is a bit lame in her role'. This comment would have had an impact on her future prospects as an actor. 1 mark for each element of defamation explained. (x3) 3 marks Question 2 The standard of proof required in this case is on the balance of probabilities as this is a civil matter. Question 3 Any of the following defences can be used: justification, contextual truth, honest opinion. Students will need to select and briefly explain one of these. 1 mark Example: Justification applies when the material published is justified because it is true. If this defence is accepted, there can be no defamation as the plaintiff s reputation has not been damaged. The published statement is stating what is already known. 1 mark for identifying the appropriate defence. 1 mark for the explanation of the defence. TSSM 2015 Page 6 of 11
Question 4 The role of the jury in a civil trial is to reach a verdict based on the balance of probabilities, after they have heard all the evidence from the disputing parties. They need to analyse this evidence presented in court and apply the relevant law as explained by the judge to the facts of the case before them. If monetary compensation is sought, then the jury will decide on the amount of damages to be awarded. Question 5 Students may wish to identify and describe any one of the following difficulties other than legal costs: Ignorance of the law and language barriers Delays can deter individuals from exercising their legal rights The intimidating nature of our adversarial process in attaining justice Example: Aboriginal and Torres Strait Islander people who are not familiar with contemporary Australian society are likely to experience difficulties in giving evidence in court. These difficulties are compounded by language barriers, in that there are subtle differences in the way language is used by indigenous people that can cause misunderstandings. These could have adverse effects, e.g.: kill may mean to hit someone, probably causing injury but not necessarily killing them. Total 10 marks TSSM 2015 Page 7 of 11
SECTION C: (10 marks) Please note that the answer to this question is dependent on the Area of Study that students have studied in class. Areas of Study as per the current Study Design include: Contract Law, Family Law, Consumer Protection Laws, Workplace Laws, Wills and Inheritance, Sport and the Law, Tenancy Law, Environmental Law or any other relevant area of Civil Law Question 1 Students can refer to any of the following points and the contemporary issue if for example they have studied Family Law. a. Marriage and Divorce could include the following points: What is a valid marriage under the Marriage Act 2004 The law in relation to divorce which since 1975 is based on irreconcilable differences or an irretrievable breakdown The role of the Family Court of Australia, Family Counsellors, Family Dispute Resolution Maintenance and property settlements Contemporary issue could relate to same-sex marriages, changes in the family dynamics b. Protecting children under the Family Law Act 1975 could include the follow points: parenting plans parenting orders child support the role of the Family Court of Australia in resolving disputes between parents/ legal guardians involving children Contemporary issue could relate to: The Family Law (Shared Parental Responsibility) Act 2006 which made the most significant changes to Australian family law since the original Act in 1975, featuring provisions for shared, co-operative parenting after the separation of parents of the child. c. Domestic Relationships (De Facto): What does the court consider when deciding whether the couple is in a genuine domestic relationship How does the Family Law Act define a domestic relationship The 2008 Amendment to the Family Law Act which covers financial agreements between the de facto couple The role of the Family Court in resolving disputes involving the division of property in domestic relationships the significance of the Relationship Act 2008 (Vic) Contemporary issue could relate to same sex domestic relationships TSSM 2015 Page 8 of 11
d. Family Violence: A description of what Family Violence and the forms it can take e.g. physical, sexual, emotional, psychological, economic and social abuse The significance of the Family Violence Protection Act 2008 (Vic) The role of the Family Violence Division of the Magistrates Court Contemporary issue could relate to the effectiveness of Family Violence Intervention Orders Suggested marking scheme: 4 marks could be allocated to the explanation of the legal principles that apply to the chosen area of law. 4 marks could be allocated to the explanation of the methods of resolving disputes in the chosen area of law. could be allocated to reference to the contemporary issue. Question 2 OR If students choose Question 2 the same issues can be applied but the focus will need to be on how the legal system has responded to challenges in the contemporary issue selected. They will also need to evaluate whether the legal system has responded to these challenges. In the case of Marriage and Divorce for example there is a growing demand for marriage in Australia to be changed to recognise same sex marriage. In the case of Domestic Violence there is a growing concern for changes in family violence laws as the current system of violence intervention orders is not working effectively as seen by the recent death of Luke Batty. Demands for change are needed as pressured by individuals like Luke s mother Rose Batty. Suggested marking scheme: 4 marks could be allocated to an explanation of a specific contemporary issue in relation to the chosen area of law studied including reference to some of the challenges. 6 marks could be allocated to the evaluation of the extent to which the legal system has responded to the demands for change in the chosen area of law. TSSM 2015 Page 9 of 11
SECTION D: (10 marks) OPTION 1: The Mabo Case Student could consider the following points in relation to the facts of the case, relevant legislation and the outcome: This case had a significant impact on the rights of Torres Strait Islanders to claim ownership of land and/or continue to occupy the land alongside Crown land for pastoral leases. The High Court found that the Queensland Act was invalid, because it specifically denied rights to one racial group that were enjoyed by other groups in society. It was effectively in conflict with federal legislation and so it was invalid under s109 of the Constitution. This decision allowed Eddie Mabo and his supporters to proceed with their main argument before the High Court that of establishing whether or not they held native title rights over Murray island. This was a test case before the High Court as it was the first time a group of Murray Islanders had brought before the Courts a case on whether the Queensland Government s legislation was constitutionally valid. The outcome and its impact on the rights of individuals and the legal system could include the following: The principle of terra nullius was incorrectly applied. Native title can now be recognised and included in the Australian system of property law and common law. The nature of native title in any specific case could be determined by the nature of the occupation of the land and traditions and customs of the group claiming the title The people of Murray island could also claim native title because they were able to demonstrate continuing occupation of their use of their land. This case therefore had a significant impact on the rights of the Torres Strait Islanders to claim ownership of land and or continuing to occupy the land alongside Crown land for pastoral leases. It was clear however, a high level of traditional occupation and land usage would be necessary to support such a claim and individual claims would be decided on a case by case basis. As far as the impact on the legal system students could bring in the Native Title Act 1983 by the then Keating Government which codified the High Court decision and the significance of the Wik case where native title can coexist with the granting of pastoral leases. Suggested Marking Scheme: 5 marks could be allocated to the description of the facts of the Mabo case, with reference to the relevant legislation and the outcome of this test case. 5 marks could be allocate to the discussion of the impact of the case on the rights of individuals and the legal system. TSSM 2015 Page 10 of 11
OPTION 2: Test Case on Babies born to Asylum Seekers Sample answer: A test case that is brought before the courts where no previous precedent has been established. It can involve either an individual or group, who feel their rights have been infringed. They must have standing or be able to show that they were personally affected by the actions of another person or group and have suffered as a result. Legal action is then sought through the court system. A test case will try to clarify, or establish the legal rights of a group, or an individual under common or statute law. In the test case on babies born to asylum seekers, a situation arose where a baby was born in Queensland to a couple who had originally been held in a detention centre in Nauru. The parents applied for a protection visa for the baby which was subsequently rejected by the Federal Government. This was on the grounds that children born to illegal arrivals take the same status as their parents. The matter was taken to the High Court. The rights in question here related to whether it was legal to remove an Australian born child for offshore processing. The outcome of this case would have had a significant impact on future babies that were born in similar circumstances to asylum seekers in Australia. Some would argue that babies born in Australia regardless of their circumstances, should be recognised as Australian citizens and gain all the associated entitlements, rather than be left stateless. Others including the Federal government argue that children born to illegal maritime/boat arrivals are still unauthorised immigrants and as such do not qualify for Australian citizenship. Suggested marking scheme: for an explanation of what a test case is. for an explanation of the role of an individual or group in launching a test case 3 marks for a description of the facts of this case. 3 marks for a description of the impact of this case on future cases with similar facts. TSSM 2015 Page 11 of 11