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Student book questions6.1 Introduction to the civil justice systemPages 174–177

6.1 Check your learning

Define and explain

1 Identify two purposes of the civil justice system.

Student answers will vary but may include:

• enable a person to enforce their legal rights

• enable a person to take action over legal wrongs

• determine if a defendant is liable to that person

• award a remedy if the defendant is found to be liable.

2 Identify two institutions that resolve disputes, and briefly describe what they do.

Student responses will vary. Sample answers are included in the table below:

Dispute resolution body What they do

Complaint bodies (such as CAV) • resolve grievances made by an individual regarding the conduct of another party

Ombudsman • investigate and report on actions of government departments and other authorities

Tribunals • focus on developing expertise in specific areas of law

• provide for a less formal, more cost effective and efficient method of dispute resolution as an alternative to court

Courts • formal method of resolving disputes using strict rules of evidence and procedure

• utilises a third, independent and impartial adjudicator to make a determination of a case, based on the evidence and relevant principles of law

3 Explain the purpose of bringing a civil action in a court.

© Oxford University Press 2018 1Justice & Outcomes VCE Legal Studies for Units 3 & 4 Teacher obook assess ISBN 9780190310394Permission has been granted for this page to be photocopied within the purchasing institution only.Version 2.0

The purpose of bringing a civil action in a court is to return the person who has been harmed back to the position they were in before the harm occurred. This is normally achieved by seeking a remedy, such as damages, to try and compensate the person for the harm suffered.

4 Who are the parties to a civil dispute?

A civil dispute has two parties: the plaintiff, who is the person bringing the action, and the defendant, the other party who is accused of wrongdoing.

Synthesise and apply

5 Look at the different types of civil disputes in Source 4. Search for newspaper articles and find three recent disputes that have occurred between individuals or groups relating to three of those types of disputes. Provide a brief summary of each.

Student answers will vary.

6 Read the article ‘$1.3 million for harassment victim subjected to repeated assaults, rape threats at building firm’.

a Who was the plaintiff in this case and who was the defendant?

The plaintiff was Kate Mathews. The defendant was her former employer, Winslow Constructors.

b What did the plaintiff allege happened?

The plaintiff alleged that she was subjected to daily sexual harassment and abuse from co-workers.

c Explain why the plaintiff was suing the building firm and not the co-workers and sub-contractors who abused her.

The plaintiff sued her employer due to vicarious liability. The employer is responsible for the actions of employees in the course of their employment, and so the plaintiff sued for the actions of the employees.

d Describe the injuries the plaintiff suffered.

The plaintiff suffered economic loss, pain and suffering. This included several psychiatric conditions, including depression and post-traumatic stress disorder.

e Describe the remedy that was awarded in this case.

The plaintiff was awarded damages of $1.36 million.

f Do you think that the remedy will achieve its purpose in this case? Give reasons for your answer.

Student answers will vary. Sample answers are included in the table below:

Agree Disagree

• Yes, as it provides compensation for the • No, as it can never undo the


plaintiffs pain and suffering.• Yes, it provides substantial financial

compensation to account for the loss of income.

psychological trauma the plaintiff has suffered at the hands of the company.

• No, the plaintiff cannot be returned to their original position through a sum of money.

Analyse and evaluate

7 What issues might arise in a civil dispute if a minor was not allowed a litigation guardian or next friend, but had to sue without any assistance?

Student answers will vary. Sample answers are included below:

• inadequate knowledge of the legal procedures that need to take place, and how long they have to complete various stages

• inadequate knowledge regarding the principles of law relevant to the civil dispute

• potential intimidation of the minor in resolving the dispute.


6.2 The principles of justicePages 178–181


Define and explain

1 What are the three principles of justice? Describe each one briefly.

The three principles to justice are fairness, equality and access.

• Fairness in a civil dispute means that there are fair processes and a fair hearing. This means that people should have the opportunity to present their case and rebut the other side’s case, and be treated impartially.

• Equality means that all persons should be treated equally before the law and have an equal opportunity to present their case.

• Access means that each person should be able to understand their rights and pursue their claims, whether this is as a plaintiff or defendant.

2 Is ‘access to justice’ limited to access to courts? Explain.

Access to justice is not limited to access to the courts. Access to justice includes everything involved in trying to resolve a dispute, such as accessing information and support in resolving disputes, as well as accessing information about rights.

3 Why is there an increase in self-represented parties?

There is an increase in self-represented parties as many people cannot afford to pay the legal fees associated with being represented.

4 Explain one way a person who is being sued for breach of contract might be able to know about the case that is put against them.

One way is by the person having the opportunity to know what documents and evidence are being used to support the claims made against them. For example, if the plaintiff claims that the defendant signed a contract and breached that contract, the plaintiff will have to disclose documents and evidence about that contract.


5 Identify two individuals or groups in Australia that may have more difficulty accessing the courts to resolve a civil dispute than others. Explain why this might be so.

Student responses may vary; however, any of the following responses are acceptable:

• A person from a low socioeconomic background: This is because resolving cases through courts can be very expensive as a result of the processes associated with those cases, and so a person who has little money may have difficulty.


• A person with a physical or mental disability: This is because they may have difficulty understanding legal terminology, legal processes or even documents and forms. They may also find it difficult to understand the court system without some help, and/or find it difficult to meet with lawyers or travel to court.

• A person from a different cultural or language background: This is because they may have difficulty understanding English, as well as legal terminology, legal processes or even documents and forms.

6 Two different plaintiffs have sued two different defendants in two different proceedings. Explain why a different remedy may be awarded in each of the proceedings, but the outcome may still be considered fair.

The purpose of civil disputes is to remedy a person for wrongdoing committed against them. The wrongdoing will have a different effect on different people and therefore the same remedy cannot be given for all outcomes. For example, a violinist who has lost a finger will suffer more and will need a different remedy to, say, a retired postal worker.

7 Look at the picture in Source 2. Consider the following:

a Does either picture achieve both fairness and equality? Give reasons.

Student answers will vary. Some points to consider are:

• On the left of the picture, although everyone is treated ‘the same’ (i.e. by being given the same number of boxes), this creates a potentially unfair situation as the tallest person gets to see the game but the shortest doesn’t. In this example, although the boxes are being distributed equally, the result is arguably unfair.

• On the right of the picture, although everyone is treated ‘differently’ (i.e. by being given different numbers of boxes), this creates a situation in which all people are able to see the game. In this example, although the boxes are not being distributed equally, the result is arguably fair.

b Create another visual diagram or picture, or write a scenario, where a person may be treated differently to create fairness.


c Come together as a class and share your views and your diagrams, pictures or scenarios.



8 Choose one rural and remote town in Victoria, and imagine that a person in that town has a civil dispute that needs resolving.

a Go to the Magistrates’ Court, County Court, Supreme Court websites. Links are provided on your obook assess. Find out the closest location of those courts to the town you have chosen.



b Using a map of Victoria, plot your chosen town, and the closest location of the above courts to that town.


c Use the website to find out whether there are any local lawyers in that town who specialise in resolving civil disputes. Write their names down next to the map.


d Conduct some research to find out whether there are any community legal centres, legal education centres or any other centres nearby that offer free legal assistance, education or information.


e Prepare a short report on your findings about the accessibility of the civil justice system to a person living in your chosen town.


9 If you were a plaintiff, write down three expectations you would have about the civil justice system when resolving your dispute (for example, the ability to resolve your dispute cheaply). For each expectation, which principle of justice does it most relate to, and do you think it likely that those expectations will be met? Discuss your answer with a member of your class.


Possible expectation Relevant principle of justice

• timely resolution • access• impartiality • equality / fairness• provision of legal service support • fairness

10 Conduct some research and find out the top three reasons why sometimes the Victorian civil justice system is criticised as being inaccessible. Provide a summary of your findings.

Student answers will vary. Sample answers are provided below:

• costs

• delays

• accessibility (in relation to understanding the complex procedures and processes)

• availability of legal services


6.3 Key concepts in the Victorian civil justice systemPages 182–185


Define and explain

1 Explain when the plaintiff will have the burden of proof in a civil dispute, and when the defendant may have the burden of proof.

The plaintiff will always have the burden of proof as they are the party that is bringing the case and alleging the breach. The defendant will have the burden of proof if they lodge a counterclaim against the plaintiff, or if they use particular defences that allege wrongdoing by the plaintiff.

2 What is the difference between beyond reasonable doubt, and on the balance of probabilities?

Beyond reasonable doubt is a stricter standard of proof as it requires the prosecution to prove there is no reasonable doubt. On the other hand, balance of probabilities requires that the plaintiff’s allegations are more likely than not to be right – and so there may be reasonable doubt.

3 Describe what a class action is, and give two other names for a class action.

A class action is when a group of people that have claims against the same party join together to commence a civil action. Two other names for a class action is representative proceeding or group proceeding.

4 What does it mean to say the lead plaintiff has to ‘describe the group’? Provide an example.

Describing a group is identifying the types of people who will be group members. This can include people who suffered the same loss, or worked at the same place or were affected by the same event. For example, the Jack River bushfire class action described group members as those who had suffered personal injury as a result of the fire, those who had suffered damage to property as a result of the fire, those who lived in the area and suffered economic loss from the fire, and the estates of any deceased persons who would have fallen within the other categories.

5 Explain the difference between a lead plaintiff and a group member in a representative proceeding.

The lead plaintiff represents the group and is listed as the plaintiff in the proceedings. Group members are not identified in the proceedings and do not need to bring an action themselves. Anyone who fits the description of the group members is assumed to be part of the class action.



6 Read the case study ‘Fire at recycling plant results in class action’.

a What type of class action is this?

The recycling plant fire class action is a negligence class action.

b Who will be the group of people that make up the class, and who is the defendant?

The group members will be those who suffered injuries as a result of the fire (and toxic smoke and ash) and those who lived in the area who suffered loss by having to sleep elsewhere to avoid injury. The defendant will be the operators of the plant.

c What type of claim is this?

The claim is a negligence claim.

d Conduct some more research on this case. What is the current status of the class action?

Student answers may vary depending on the year in which they answer this question. The sample answer provided below is correct as of January 2018:

At the time of publication (i.e. January 2018), the status of the class action was that it had been filed with the Supreme Court (in July 2017).It was expected that SKM Services Pty Ltd would file a defence in September 2017. The case has yet to reach a first directions hearing.

7 Conduct some research and find a class action that has been commenced in the Supreme Court of Victoria in the past two years. Prepare a summary showing:

a The names of the lead plaintiff and defendants.


b The nature of the claim.


c The remedy sought.


d Whether there is any information about a litigation funder of third-party funder in this case.


e The current status of the class action.


8 Read the legal case Downie v Spiral Foods (the Bonsoy class action).

a What type of representative proceeding was this?

This was a product liability class action.


b What was the issue in this case?

The action commenced following a product recall of soy milk that caused those who consumed it to develop thyroid and other medical conditions.

c Did this matter go to trial? Justify your answer.

The matter did not go to trial because it was resolved before it could go to trial. The parties agreed to a settlement.

d Will all of the settlement amount go to the group members? You might need to do some additional research to find out.

Student answers will vary but may include: legal fees and litigation funders fees are generally taken out of any settlement amount. A distribution scheme will assess the amount to be awarded to each group member after fees and disbursements are paid.

e What role did Erin Downie play in this case?

Erin Downie was the lead plaintiff in the class action.


9 Do you think that the standard of proof in a civil dispute should be beyond reasonable doubt? Give reasons for your answer.


• Yes, the standard of proof is just as important in a civil action, as it is in a criminal one, to make sure there are no reasonable questions or doubts regarding the accuracy of the outcome.

• Yes, the consequences of being found liable can be significant. Therefore, it is important to ensure there exist no reasonable doubts regarding the decision, rather than relying on which is the most probable explanation.

• No, legitimate civil actions may not have enough factual evidence to remove all reasonable doubt, but they may have enough to make clear which is the most probable outcome. Therefore, the standard of balance of probabilities is a fair benchmark to assess the defendant’s liability against

• No, the remedies available in civil cases are not as severe as the sanctions issued in criminal cases. This means the standard to prove a claim should not be as strict as what’s required by the State in criminal matters.

10 ‘Representative proceedings are not good for our civil justice system. All they do is clog up the courts, and cost money for businesses’. Do you agree with this statement? In justifying your answer, provide two advantages and two disadvantages of representative proceedings.


Advantages Disadvantages


• costs can be shared among members of the class action

• saves court’s time and costs associated with claims if they were each issued individually

• allows individuals who could not afford to pursue the claim independently an avenue to seek resolution to their dispute

• the costs payable for legal fees and expenses may consume most, if not all, of the damages awarded/settlement amount

• can be a risk for businesses• can take up considerable amount of

court’s time

6.4 Relevant factors when initiating a civil claim – negotiation and costsPages 186–190


Define and explain

1 Outline two reasons why a plaintiff may wish to initiate a civil claim.


• The plaintiff wishes to be compensated for the wrong they have suffered.

• The plaintiff wishes to stop the defendant from doing something.

• The plaintiff wants to force the defendant to perform an obligation.

• The plaintiff wants to send a message to the defendant, or society, about the protection of individuals’ rights.

2 Describe the dispute resolution method of negotiation, and provide two types of cases in which negotiation may not be appropriate.

Negotiation is informal discussions between the parties with the aim of reaching an agreement to resolve the dispute.

Regarding two types of cases where it may be inappropriate, student answers will vary but may include:

• when one or both of the parties do not want to resolve the dispute

• when there have already been failed attempts to resolve the dispute

• when one party has been harmed or threatened and there is distrust or fear of the other party

• when there are no issues or disputes to be negotiated

• when negotiations are unlikely to resolve the dispute


• when the matter needs to be brought to the court urgently

• when there is a significant power imbalance between the parties.

3 Explain three types of costs or fees that a plaintiff may have to pay as part of resolving a civil dispute.

Three types of costs are legal fees, disbursements and adverse costs orders.

Legal fees are the fees set by the parties’ legal representation. This can include separate fees for the law firm and for engaging a barrister to advocate at the trial.

Disbursements are the out-of-pocket expenses for bringing a case. These can include court filing fees, hearing fees and jury costs.

Adverse costs orders are when a party loses the case and are ordered to pay the legal costs of the successful party.

4 What are the cost risks if a plaintiff loses?

A plaintiff risks having to pay the other parties’ legal fees, as well as their own, if they are unsuccessful in bringing a civil action.


5 For each of the following scenarios, identify at least one cost issue that the plaintiff will need to consider before initiating a claim:

a Bernard wants to sue his former friend for $6000 because his friend sold him a dud car. His lawyer has given him an estimate of $50 000 to recover the money, and has indicated that Bernard has a 45 per cent chance of winning.

Bernard will need to consider whether bringing the action is worth the legal fees as the fees are much higher than the worth of the car.

b Gladys wants to recover $500 000 from her son, being money she lent to him some years ago. She doesn’t have any cash but owns her own home. She’s prepared to borrow against her home to pay for legal fees

Gladys will need to consider the risk of having an adverse costs order charged against her if she loses, and therefore her potential to lose her home should she have to borrow even more against her home.

6 Your friend has a $3 million claim against a former business partner. He has been given a total estimate of $1.5 million in legal fees alone to run the case to trial. Devise a way in which you will convince your friend that he should try and resolve the case through negotiation first.


• The costs of pursuing the claim in court are substantial and there is no guarantee of a favourable outcome.


• Negotiation can be done informally, and legal representation is not necessarily needed, which may save costs and help reduce the stress of going through the courts.

• Negotiation can open up a wider range of options for resolution than the courts can offer.

• A mediator or a dispute resolution service (such as the Dispute Settlement Centre of Victoria) can be utilised to provide an impartial person to assist in the negotiation.

7 Read the example ‘Persistent abusive messages’. In your view, is negotiation appropriate for this claim? Give reasons for your answer.

Given that the neighbour has threatened harm towards Mary, negotiation may not be the most appropriate form of dispute resolution.

8 Do you think the Victorian courts should follow the Federal Court and require parties to show they have taken genuine steps to resolve the dispute before initiating the claim? Give reasons for your answer.


• Yes, this minimise cases which could be settled out of court from proceeding to trial, which allows other cases to be heard in a timelier manner.

• Yes, it demonstrates the desire of the parties to reach a resolution.

• Yes, this can alleviate the stress parties undergo when making a claim, while also providing an opportunity for one or both parties to discuss acceptable resolution options.

• No, if one party has been harmed or threatened in some way (such as issues of violence), it would not be reasonable to expect them to approach the other party with the view of resolving the issue out of court.

• No, if the matter requires urgent attention, genuine attempts to resolve the issue before going to court can be detrimental.


9 ‘Civil disputes have just as big an impact on society as criminal and family matters, and so 50 per cent of VLA funding should be for civil disputes’. Discuss the extent to which you agree with this statement.


Agree Disagree

• Legal representation is essential for individuals who are bringing a civil action against a larger party (such as a corporation) who will likely have access to highly skilled legal services.

• Individuals are more likely to be involved in a civil claim than a criminal case and

• Civil disputes vary in regard to their impact on society more so than criminal offences and are therefore not entitled to 50% of the VLA funding.

• Having 50% of the funding for VLA assigned to civil claims does not overcome the issue that the tests used to


should, as taxpayers, have access to the VLA services if pursuing a civil claim.

• The strict tests will still ensure that those in need the most will be prioritised for assistance but having 50% of funds set aside for civil cases allows for individuals pursuing a wider range of civil claims to have access to legal assistance.

determine eligibility for VLA support suggests that most individuals would not meet the criteria to access these services.

• It is important to make sure that services go to those who need it most, rather than making it a blanket rule that 50% of funding should be put aside for civil claims.


6.5 Relevant factors when initiating a civil claim – limitations, liability and enforcementPages 191–197


Define and explain

1 What is meant by a limitation of actions? Why is it relevant to a civil dispute?

A limitation of actions is the time restriction on bringing a civil claim. Certain types of claims have different limitations. This is relevant to civil disputes as plaintiffs who bring claims after the relevant time period has expired may be barred from obtaining any remedy.

2 Is the wrongdoer the only possible defendant in a civil dispute? Give reasons for your answer.

There are multiple possible defendants in a civil dispute, depending on the nature of the dispute. An employer or another person who contributed to the wrongdoing could be liable under the principles of vicarious liability and accessorial liability.

3 What is meant by enforcement? Why is it an issue that the plaintiff will need to consider before initiating a civil claim?

Enforcement relates to the remedy awarded to a party, and whether the remedy is carried out or enforced. If the plaintiff is seeking an amount of money from the defendant, they will need to consider whether the defendant has capacity to pay that amount. Even if they win the case, they may not receive the remedy ordered if the defendant cannot afford to pay; therefore, the time and money spent on the claim are wasted.


4 Your neighbour was involved in a motor vehicle accident caused by the negligence of a driver who was transporting goods for the company he works for.

a Your neighbour is suing the company. Explain why she would sue the company and not the driver.

Employers can be liable for the actions of their employees completed during the course of their employment. This is known as vicarious liability. As the accident was while the driver was completing his job, the employer is likely to be liable.

b Your neighbour later finds out the driver was not actually transporting goods for the company but was actually delivering flowers to his girlfriend. Does this change any advice you would give to your neighbour about who should be sued?

This may change whether the actions were considered within the course of the employment. If delivering flowers to his girlfriend is considered unauthorised activity by the employer, the employer may not be liable.


5 For each of the following scenarios, describe two possible factors that the plaintiff may need to consider before suing:

a James was defamed by Han in a university article in 1979. He wants to sue Han for the reputational damage he was suffered. The article was published by the university.

James will need to consider limitation of actions before pursuing his claim. This refers to the restrictions placed on how long James has to initiate his civil action. As James’ action is a defamation claim, the time frame is one year. If this is exceeded, he would then be barred from receiving any remedy (if the defendant raised this in their defence).

James will also need to consider the scope of liability for his claim which refers to the party or parties responsible for the harm done. As Han was presumably acting as an employee of the university when he wrote the article, it is possible that the university, as an employer, holds vicarious liability for the actions of their employees. For James to include the university in his claim, he would need to demonstrate that Han was acting with authorisation from the university when writing the article.

b Nhan gets along well with his neighbour, but they have an ongoing dispute about the neighbour’s barking dog. The neighbour doesn’t seem to see the issue, and has already told Nhan that he has no money to afford a lawyer to defend himself.

Nhan may consider negotiation to resolve the dispute out of court. Negotiation refers to the disputing parties coming together to have informal discussions about the issue and possible resolution options with the aim of coming to an agreement. Legal representation is not required, which encourages Nhan’s neighbour to partake in discussions.

Nhan will need to consider the costs involved in pursuing civil action against his neighbour. Costs include the legal representation as well as court costs and any other disbursements (out-of-pocket expenses) that are required. Nhan needs to consider these costs in light of what remedy he is seeking for the barking dog.

c Marion has gone to see Victoria Legal Aid to get funding for her claim against her employer. She wants to sue the employer after she ate free food given to her by the employer at a work function, which the employer had obtained from a local catering business, and suffered gastroenteritis for 48 hours.

Marion will need to consider cost factors, specifically if Victorian Legal Aid funding will be available to her. VLA provides assistance for some civil disputes regarding legal advice and representation, but their role is limited, and they do not assist with employment disputes – so Marion will need to consider legal costs. These costs include not only legal representation fees, but also court costs and any disbursements (out-of-pocket expenses) she may incur.

Marion will also need to consider the extent of her employer’s liability. Extent of liability means that a defendant (Marion’s employer) may argue they are only liable for part of the plaintiff’s loss/harm (Marion’s gastroenteritis). It would be likely in Marion’s case, if she sues her employer, that they would argue that the catering company was liable. Marion needs to consider the likely success of this defence when deciding whether or not to pursue her claim.


d Melissa was a minor in 1980 when she was physically abused by her cousin. Her cousin is wealthy and has engaged an army of lawyers, but has most of his assets overseas.

Melissa will need to consider limitation of actions before pursuing her claim. This refers to the restrictions placed on how long Melissa has to initiate her civil action. As Melissa’s action is in relation to physical abuse suffered when a minor, the time limitations for such cases have been removed.

Enforcement, and whether she can access the assets that are overseas, will be another issue for Melissa. Enforcement refers to the options available for a successful plaintiff to enforce the remedy awarded. In Melissa’s case, she will need to assess whether she will be able to access the assets her cousin has overseas, as well as consider the costs associated with having the desired remedy achieved.


6 Read the example ‘Harriet and the hole in the footpath’.

a What is the nature of Harriet’s claim?

Harriet is bringing a claim of negligence.

b Describe the loss that Harriet has suffered as a result of her accident.

Harriet suffered a physical injury in her leg from the accident, as well as anxiety from the resulting publication of the video.

c Who are the possible defendants in Harriet’s claim? Why do you think they might be liable?


• John: John may be liable as he was the person who dug the hole and left it open.

• The council: As John’s employer, they may be vicariously liable for his actions during the course of his employment.

• The local boys who removed the barriers: They may be liable due to accessorial liable for indirectly causing the accident by removing the barriers.

• Barriers R Us: They may be liable due to accessorial liability for failing to put the barriers back up the next morning.

• The local boy who posted the video: This boy may be liable indirectly by posting the video that caused the anxiety.

d Identify and describe all of the factors that are relevant to Harriet before she initiates her civil claim. After considering each of these factors, do you think that


Harriet should issue the claim? Who should she issue against? Give reasons for your answer.


What factors are relevant to Harriet before she initiates her civil claim?

• costs• scope of liability• limitation of actions• negotiation options• enforcement options

Should Harriet issue the claim? • Yes, she is within the limitation of actions (3 years)

• Yes, she has clearly suffered harm due to the incident and subsequent humiliation felt

Who should Harriet issue the claim against? Why?

• the local boys that removed the barriers (if they have been identified) as they created the hazard

• Barriers R Us for not making the site safe once it was known the barriers were missing (especially because the barriers were at the site)

• the local boy who filmed the incident – but this would be a different claim


Student book questionsChapter 6 ReviewPages 198‒199

Revision questions1 Provide one circumstance in which the burden of proof may be reversed in a civil

dispute.

[2 marks]

The burden of proof will be reversed in a civil dispute when the defendant makes a counterclaim against the plaintiff.

2 Distinguish between the standard of proof in a criminal case and the standard of proof in a civil dispute.

[3 marks]

The standard of proof in a criminal case is beyond reasonable doubt, whereas in a civil dispute it is on the balance of probabilities. Beyond reasonable doubt is a stricter standard as on the balance of probabilities is whether the party is probability or most likely in the right.

3 Explain what is meant by the term ‘representative proceeding’.

[3 marks]

A representative proceeding is a legal proceeding in which a group of people have similar claims against the same party. They can join together and bring their claims under the name of one person.

4 Justine issued a claim in the County Court against her employer, claiming it was liable for the actions of its employee. She did not seek to negotiate the dispute before she issued the claim, and has spent all her money on legal fees. She lost the case, and has been ordered to pay her employer’s legal costs.

a What is meant by the term ‘vicarious liability’? Refer to Justine’s case in your answer.

[2 marks]

Vicarious liability means that Justine’s employer may become liable for the actions of its employees. It must be proved that the employee was in fact an employee and acting in the course of employment when the events leading to the claim occurred.

b Describe two factors that Justine should have considered before initiating a civil claim.

[4 marks]

Justine should have considered negotiation options prior to initiating the claim as negotiation could have resulted in a resolution of the dispute without needing to go to court.


Justine should have considered the costs of initiating a claim. There are legal fees, disbursements and adverse costs orders to consider before initiating a claim.

c Do you think it should be compulsory for all parties to negotiate a civil dispute before taking a civil claim to court? Justify your answer.

[6 marks]


5 ‘There should be no limitation of actions. Parties should be free to issue claims whenever they want to’. To what extent do you agree with this statement? Give reasons.

[8 marks]



Practice assessment task questions1 What is meant by the phrase ‘limitation of actions’? Is it an issue in this case? Justify

your answer.

[2 marks]

One mark is awarded for providing a definition of the term 'limitations of actions' and one mark for proving a brief description of its applicability to this case.

Student responses will vary. A sample answer is provided below.

The limitation of actions refers to the restrictions placed by law on the time within which a civil action can commence. Given Penny contracted gastroenteritis from the consumption of the chocolate mousse, and the claim involves negligence, she would have three years from the date on which the food was consumed to initiate the claim.

2 Identify the person who has the burden of proof in this claim, and describe the extent to which that person needs to prove the facts.

[3 marks]

One mark is awarded for identifying that Penny would carry the burden of proof in this case and two marks are awarded for the description of and reference to the standard of proof.


Penny holds the burden of proof in this claim. That is, she is the party who is initiating the action and is therefore required to produce evidence to establish that the defendant had breached their duty of care, and that this breach directly caused her loss, damage and/or injury.

Given this is a civil action, the extent or degree to which Penny must prove the facts and claims, referred to as the standard of proof, is ‘on the balance of probabilities’. This means Penny must prove the defendants most likely caused the harm she and her guests suffered. If the matter were to proceed to court, Penny would need to establish that she is most probably right in her claim.

3 Other than fees for her barrister and solicitor, describe two other types of expenses that Penny may have to pay.

[4 marks]

Two marks are awarded for each of the expenses explained in this response. Student responses will vary.


Aside from fees for her barrister and solicitor, Penny would also face other costs if she were to proceed with this case. For example, Penny would need to pay court filing fees to take her action to court. The extent of the filing fees depends on which court would hear the case.


The fees would be less than $1000 if the matter were to proceed to the Magistrates’ Court, and could be as high as $4000 if the matter proceeds to the Supreme Court.

Also, if Penny requests a jury in this case, she will be required to incur the cost. If the case is heard in the Supreme Court, the jury costs range depending on the length of the trial. For example, if the trial lasts 10 days or more, the jury will cost approximately $1850 per day.

Note: other expenses that Penny may incur could include court hearing or trial fees, mediation fees and fees paid for expertise witnesses. If Penny loses the case, the court may also order Penny to pay for some of the defendant’s costs. This is known as an adverse costs order.

4 What is meant by the term ‘representative proceeding’? Is it possible for a representative proceeding to be issued for this claim? Justify your answer.

[5 marks]

Two marks are awarded for defining the term 'representative proceeding' and three marks are awarded for explaining that representative proceedings may be issued for this claim.

Student responses will vary. A sample answer is provided below:

A representative proceeding (also referred to as a class action or group proceeding) is an action brought by one person on behalf of a group of people who claim to have suffered loss, damage or injury as a result of the actions involving the defendant. The matter is heard as one case.

It may be possible for Penny to pursue an action for negligence using representative proceedings against the defendants in this case. In this case, Penny would be known as the lead plaintiff, and the other persons who were also affected and joined the proceedings would be called group members.

In order for a representative proceeding to take place, seven or more people need to have claims against the defendant. Similarly, the claims being made must relate to the same or similar circumstances, and the same issues must be being decided (e.g. in a negligence case, such as this, whether the defendant owed and breached their duty of care).

In this case, Penny is aware that 'at least 5 other guests' also suffered complications after eating the mousse, so she would need at least one other person to join the group in order to make the claim. Also, if the other guests did suffer health issues after the wedding, they would need to establish a direct link with the consumption of the chocolate mousse, which is the basis of the claim being made by Penny.

5 Identify three possible defendants in this proceeding. In your view, who should Penny initiate a claim against? Justify your answer.

[5 marks]

One mark is awarded for naming each of the three possible defendants in this and two marks are awarded for explaining who Penny should initiate the claim against. A sample answer is provided below.


Three possible defendants in this case are:


• the owner of the restaurant, Insightful Nights

• the local catering company, Snailed Bottles Pty Ltd

• the local dessert chef, Andrea McChock.

Of the three possible defendants, Penny should initiate her claim against Snailed Bottles Pty Ltd. There are two reasons for this:

• Snailed Bottles Pty Ltd were the catering company that was engaged to provide the food at the event, which means that they would be required to ensure, under the laws of negligence, that the food was fit for human consumption. We can also assume that Andrea had been engaged by Snailed Bottles Pty Ltd, so they would be responsible for the food she provided for the wedding.

• Penny has been advised that both Snailed Bottles Pty Ltd and Andrea McChock have 'thriving' businesses, so if Penny were to be successful in the action, the defendants would most likely be in a position to pay any damages that would be awarded to the plaintiff parties.

6 ‘This is not a claim that is appropriate for negotiation. The best way to resolve this dispute is for Penny to spend all of her money to have this go to court. These types of things should be aired in public’. Do you agree with this statement? Give reasons for your answer, referring to at least one of the principles of justice.

[6 marks]

This question should be marked globally. To earn six marks, students would be required to address each element of the provided quote including:

• Addressing whether or not the claim is 'appropriate for negotiation'. This may include students exploring the benefits of Penny having a direct informal discussion with the defendant in an attempt to resolve the dispute without initiating a claim. Benefits of negotiation may include the possibility that the dispute will be resolved in a quicker and more cost effective manner compared with going to court, which can improve access to the legal system. In this case, given that the claims involve food poisoning, the defendant may also be willing to negotiate in an attempt to resolve the dispute privately(with a confidentiality clause) to protect their reputation. The fact that the incident occurred in a regional centre such as Bendigo might also encourage the defendant to consider negotiating a settlement, as a long and public court hearing could damage their reputation in the community.

• Students could also explore some reasons why negotiation may not be appropriate for this claim. This might include the defendant being uninterested in negotiations (perhaps because they believe Penny’s claims are totally unreasonable) or they might be deterred because previous negotiation attempts have already failed. Penny might also feel she would not be able to successfully negotiate with the defendant due to her lack of confidence and a perceived imbalance between the parties in their bargaining power.

• Students might also suggest that, if negotiation is not an option, Penny might still aim to resolve the dispute through alternative means, like mediation rather than court action. Benefits of mediation include it being a more cost effective and timely way to resolve a dispute compared to court action. Mediation is also less adversarial than court action, as each party has the opportunity to discuss their dispute before an independent third party to help reach a mutually acceptable agreement. Resolving the dispute via


mediation offers greater access to the legal system, as the dispute can be resolved in a faster, more cost effective manner (e.g. without the use of expensive legal representatives and court fees).

• Commenting on whether it would be prudent for Penny to 'spend all of her money to go to court'. For example, the option Penny decides to pursue might depend upon the likelihood of her winning the case (which will be dependent on the quality of her evidence and ability to prove the defendant was negligent). If Penny is confident of success, she may be willing to spend all her money pursuing court action, given the likely defendants, Snailed Bottles Pty Ltd and Andrea McChock, both have thriving businesses and would be able to cover the costs of any damages awarded at trial. Similarly, if Penny were to be successful, the judge might award costs against the defendants, meaning they would be required to pay a substantial component of Penny's legal costs.

• The other benefit of going to trial is that it would be conducted according to the rules of the court. This would involve a fair hearing, where both parties would be able to examine the evidence and have an equal opportunity to cross-examine witnesses. There would also be the opportunity for a jury trial, which would see the evidence assessed by members of the community. By contrast, resolving the dispute through negotiation or mediation could be unfair if a more confident party is in a stronger position to dominate the discussions or the less confident party compromises too easily.

• Discussing whether these types of matters should 'go to court' to be 'aired in public'. Students could argue that the public should be made aware of similar cases (involving food poisoning) so they can avoid a catering company and/or chef whom have been proven guilty of negligence according to the law. The alternative argument is that, if this case were to be settled out of court through a process such as mediation, this would be beneficial to the civil justice system because it would free up the court to hear and determine other matters, rather than spending time on a dispute that is easily resolvable between the parties.

• Students must also make reference to at least one of the principles of justice: fairness, equality and access. Examples of the application of the principles of justice have been included in the above discussion. This would be an important component comprising a student’s response.

Total: 25 marks


Documents

Bairnsdale secondary college - Homevcelegal.weebly.com/uploads/1/4/8/5/14852474/j_o_chapter... · Web view8 Choose one rural and remote town in Victoria, and imagine that a person