Further, why did Mrs K commence these proceedings at VCAT & how did the case get to the Supreme Court? Q 5 b, a significant iss

Task Number

2 of 2

Task Name

Assessment Task 2 – Case Study

National unit(s) code

BSBLEG413

National unit(s) title

Identify and apply the legal framework

National qualification code

BSB61115

National qualification title

Advanced Diploma of Conveyancing

RMIT Program code

C6164

RMIT Course code

LAW5745C

Duration and/or due date:

Submit electronically via Canvas by 5.30 pm on Friday 29 March 2019.

Task Instructions

Summary and Purpose of Assessment

This assessment is the first of two assessments students need to complete satisfactorily in order to be deemed competent in the course LAW 5745C Identify and apply the legal framework. Please note the task instructions below for completing this task. This assessment task allows students to demonstrate their knowledge of the Australian legal system and processes in particular:

· Researching sources of Australian Law

· The adversary trial system

· The elements of precedent

· The principles for reading and interpreting legislation

Assessment Instructions to students:

What:

This is an individual Task. For this assessment students are required to answer six questions which relate to the Australian legal system and processes. Please answer all questions using full sentences (not dot points). Please download the assessment task and type your answers to the questions in the space provided.

Where

An explanation of this task will be provided by your teacher to the class in class however students will need to complete this assessment outside of class time. Students should refer to the course materials on Canvas to assist them with this assessment.

How

You will be assessed against the criteria listed in the marking guide in Section B of this task. To achieve a satisfactory result, you will need to address all criteria satisfactorily. If assessed as satisfactory, this assessment will form part of your overall grading for this course.

To be deemed satisfactory, you must demonstrate knowledge of the main features of the Adversary Trial system, the features of and application of the principles of precedent and the principles of reading and interpreting legislation.

Assessment questions below, please answer all questions

Question One

Please comment upon the following statements in relation to the adversary system:

a) When hearing civil cases, all courts and tribunals in Victoria use the adversarial system.

Adversary system in Australian is used in administering justice for both criminal and civil cases. The system has basis in the common law kind of system (English). Civil cases entail the disputes that occur between individuals whereby one sues another for the claim of violation of their rights. Victorian courts use the adversary system since it allows the person hearing about the dispute (member) to ask any questions they feel relevant to the case. It also allows the parties involved to give their own versions over an independent or impartial judge. Evidences and procedures provide useful insights during the passing of judgement. At the end of the case, the jury or judge delivers a ruling. In Victoria, VCAT uses the inquisitorial system inorder to resolve issues between parties with the use of mediation. When these cases are being heard VCAT can exclude the legal representatives, ensuring the parties can have a discussion themselves.

b) Explain the expression Alternative Dispute Resolution (ADR) and briefly compare any two (2) different methods of ADR.

Alternative Dispute Resolution (ADR) is a conflict resolution mechanism that doesn’t involve litigation processes in courts. It offers an alternative process of resolving conflicts. This method empowers the parties involved to resolve disputes. The involved individuals come to a compromise with the involvement of a third neutral person. Some of the ADR mechanisms include: mediation, conciliation, use of collaborative law, and arbitration. Mediation for instance involves a structured kind of negotiation process conducted by a mediator who is a third party. Mediator helps in defining issues and providing options to be used in the resolution process. Arbitration on the other hand entails the use of an arbitrator who is the third party to conduct a formal kind of arbitration of listening to the parties involved and assisting them to come to an agreement. If an agreement can’t be reached, the arbitrator makes a ruling to determine the dispute. Identify the distinction between Alternative Dispute Resolution and Collaborative Law

Question Two: In relation to precedent:

a) Identify, with reference to an example, the difference between a binding precedent and a persuasive precedent.

Binding Precedent

This occurs when the court decision is made in the similar hierarchy of the courts. The decision must come from courts of higher ranking or same ranking provided that they follow their decisions made previously. For instance a high court ruling must not be in line with their previous rulings unless for cases of good law or in a bid to promote consistency. A case can only be binding if the facts are identical or similar in the case being heard. Ratio decidendi outlines the legal principle and reason for the court’s decision, and this is the part of the decision which is binding on lower courts.

Persuasive Precedent

This kind of precedent happens when judge is not coerced or obliged to follow, however is crucial for passing of judgment compared to the binding precedent. The judge is assisted in making decisions for the case. Foreign and lower courts can be part of the persuasive precedents.

b) When a court lower in a court hierarchy is able to avoid an otherwise binding precedent by finding some difference between the facts of the case it is hearing from the facts of that earlier precedent, so that it can then make a different decision, what is the lower court doing in respect of that earlier judgement?

The lower court is adapting a persuasive kind of precedent and the judge is not obliged to follow the decisions from the earlier judgement.

Question Three

Please answer the following questions in relation to the Acts Interpretation Acts which have been enacted by both Federal and State Parliaments as follows:

· Acts Interpretation Act 1901 (Cth)

· Interpretation of Legislation Act 1984 (Vic).

a) Both statutes are stated to have several purposes. Identify what you believe is the most important of these purposes.

The above acts serves the following main purposes:

· They help in shortening the contents of different Acts through the prescription of meaning for terms that are frequently used.

· They provide clear directions that the courts follow in solving particular ambiguities.

· They provide a mandate to the courts to read the Act thus creating a purpose and policy effective in the legislation process.

b) In no more than 50 words, explain the meaning of S 2CA of the Commonwealth Act

S 2CA of the Commonwealth Act means a guideline that assists courts to determine the policy and purpose on the laws that the courts are able to link to the extrinsic materials which include the headings and marginal notes, agreement and treaties, memorandum and parliamentary documentation process

c) What is the Long Title of State legislation?

INTERPRETATION OF LEGISLATION ACT 1984 – LONG TITLE

An Act to make fresh provision with respect to the construction and operation of, and the shortening of the language used in, Acts of Parliament and subordinate instruments, to repeal the Acts Interpretation Act 1958 , to amend the Property Law Act 1958 , the Supreme Court Act 1958 , the Subordinate Legislation Act 1962 , the Constitution Act 1975 , the Penalties and Sentences Act 1981 and certain other Acts and for other purposes.

BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):

Question Four

(a.) What was the ratio decidendi of Case A?

The ratio decidendi of Case A is that is wrong to cross the roads in undesignated areas. People ought to be of sound judgement and make informed decisions when dealing with matters of life.

b.) In regard to both Case B and Case C, explain whether the decision in Case A is a binding or persuasive precedent?

The decision in Case A is persuasive precedent that is the unlikely influenced by the outcome in Case C. The judge thus can make decision without consideration of past judgements.

c). What is the likely outcome in Case C if the judge decides to follow the obiter dictum in case A?

If the judge decides to follow obiter dictum, his or her opinions, observations and remarks will play a role in the determination of the case. The laws and crucial facts about the case may thus be insignificant in this regards. It is however crucial that the judge explores relevant contexts and areas of law before making a decision in line with the obiter dictum. The likely outcome for Case C thus would be a compensation plan for the victim since the train areas of movement were unsafe and pose risks to him. The train ought to be safe in areas of operations and areas with high risks such as the one in this case should be well guarded.

Question Five

(a). Identify who initiated the original proceedings and in doing so, briefly explain facts which led to the proceedings being commenced.

The proceedings of the case were initiated by the appellant who was injured while alighting from a Ventura bus. The Tribunal was formed to look into the appellant case with the Transport Accident Commission under the Transport Accident Act of 1986. The appellant suffered an injury as a result of the accident. The Driver confirmed the incident and claimed that his actions were unintentional.

b).Briefly outline the legal arguments advanced by each of the appellant and the respondent to the appeal

The legal aspects have basis on the Transport Accident Act of 1986. The Tribunal affirmed that the appellant was injured due to the transport accident and was liable to lay claim against the Bus owners under the common laws of damages. In section 93 (1) of the act, an individual who suffers injury as a result of transport accident may bring up the proceedings for the common law damages with regards to the injury sustained. The argument in the case was the classification of the incident as a transport accident.

c. What was the decision made in this case?

The Deputy President presiding the case categorized the circumstances leading to the injury of the appellant as a transport accident as set out in the Transport Accident Act of 1986, s 3(1). The decision was that the appellant had a case to put across and against the respondents who included the Transport Tribunal and the Bus ownership.

d) Explain whether the decision of the case above be binding or persuasive on the Victorian Court of Appeal in a similar case? Explain your answer in detail.

The decision is persuasive with regards to the Victorian court of Appeal. The accident is explained to include the actions of the driver which lead to the accident however were part of the process of driving. This is against the binding precedent of the judiciary that outline the statute words and the legislative intention.

Conditions for assessment

This is an individual assessment task. You must not copy the work of others. (For more information regarding Academic Integrity please refer to RMIT Academic Integrity Guidelines). Please answer all questions.

This is intended as a written assessment. Please make arrangements with your assessor as soon as possible if you are eligible for special allowance or allowable adjustment to this assessment (eg, verbal assessment or additional time).

You are allowed to seek clarification or guidance from your Assessor about this assessment task.

You must submit your work online via the Learning Management System.

Your Assignment should be written clearly and logically with appropriate use of legal terminology. There is no word limit although you should be mindful in keeping your responses concisely written.

You should proof read your Assignment carefully prior to submission to avoid grammatical and spelling errors.

Your Assignment must be typed with a 3 cm left margin and 1.5 spacing.

Please ensure that your name, student ID, course name and code and assignment name are included in a header on your assignment, and that each question in the body of your assignment is numbered

You will have the opportunity to resubmit (one resubmission only) and any satisfactory resubmission will result in a CAG for this assessment.

Please refer to the Course Guide for information regarding re – submissions.

You can appeal the assessment decision according to the RMIT Assessment Policy and Procedures.

Instructions on submitting your project/portfolio/report

To be submitted electronically via Canvas by 5.30 pm on Friday 29 March 2019.

Equipment/resources students must supply:

Equipment/resources to be provided by RMIT or the workplace:

Nil

Nil

Key Criteria that must be demonstrated

Criteria for Assessment

Satisfactory

Comment

Y

N

1

Able to access and research sources of Australian law

2

Ability to explain Australia’s adversary trial system

3

Explain application and outcomes of precedent in the context of legal framework

4

Analyse and interpret legislation in context of legal framework

5

Demonstrate knowledge of legal terminology

52

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4. No correspondence will be entered into in relation to this publication by the distributors, publisher, editor(s) or author(s) or any other person on their behalf or otherwise.

All details were accurate at the time of printing.

February 2019

Victorian Parliament:

www.parliament.vic.gov.au

Victorian Legislation:

www.legislation.vic.gov.au

Victorian Law Institute:

www.liv.asn.au

Australian Law Foundation:

www.alf .

Commonwealth Legislation:

www.austlii.gov.au

Victoria Legal Aid:

www.vla.vic.gov.au

Victorian Courts

www.courts.vic.gov.au

ELEMENT

PERFORMANCE CRITERIA

1. Identify sources of law

1. Identify the main institutions of government in Australia.

2. Research sources of Australian law.

3. Assess rules for resolving conflicts of laws.

2. Identify and analyse relationships between the Australian federal government and the states and territories

1.1 Identify legislative powers of the Australian federal government and limits on that power.

1.2 Analyse the legislative powers of the states and territories.

1.3 Evaluate the relationship between the legislative powers of the Australian federal government and the states and territories.

3. Differentiate between civil and criminal proceedings

2.1 Identify and examine the differences in law and procedures between civil and criminal proceedings.

2.2 Analyse the findings and determine which court hear particular cases.

4. Examine elements of the adversary system of trial

3.1 Identify main features of the adversary system of trial.

3.2 Evaluate these features and determine how they apply in the context of the legal environment.

5. Examine elements of precedent

4.1 Identify the main features of the principles of precedent

4.2 Analyse how precedent is applied in the context of a legal environment.

4.3 Examine and document the outcomes of precedent

6. Examine legislation

5.1 Examine principles for reading and interpreting legislation

5.2 Apply principles for reading and interpreting legislation in the context of a legal environment.