Recent civil cases

Question 1

Defamation

Answer 1

• A type of tort which involves the action of damaging a person’s personal or professional reputation in the community through the communication of false and untrue statements or information.

Question 2

jury

Answer 2

• An independent group of people chosen at random to decide on the evidence in a legal case and reach a decision (i.e. verdict)

Question 3

damages

Answer 3

• the usual remedy in a civil claim, being an amount of money the court (or tribunal) orders one party to pay to another

Question 4

appeal

Answer 4

• an application to have a higher court review a ruling (i.e. decision) made by a lower court

Question 5

Writ

Answer 5

usually the first document filed by the plaintiff to start a civil proceeding in court, which explains the action being taken against the defendant and the place and mode of trial

Question 6

statement of claim

Answer 6

• A court document, filed by the plaintiff, which sets out the nature of the claim and the remedy or relief sought

Question 7

injunction

Answer 7

• A remedy in the form of a court order to do something or not to do something. An injunction is designed to prevent a person doing harm (or further harm), or to rectify some wrong

Question 8

cross-examination

Answer 8

• The questioning of a witness called by the other side in a legal case

Question 9

mediation

Answer 9

• A method of dispute resolution, using an independent third party (the mediator) to help the disputing parties reach a resolution

Question 10

conciliation

Answer 10

• A method of dispute resolution which

uses an independent third party (i.e. the conciliator) to help the disputing parties reach a resolution

Question 11

arbitration

Answer 11

• A method of dispute resolution in which an independent person (known as an arbitrator) is appointed to listen to both sides of a dispute and make a decision that is legally binding on the parties. The decision is known as an arbitral award

Question 12

directions

Answer 12

• instructions given by the court to the parties about time limits and the way a proceeding is to be conducted

Question 13

orders

Answer 13

• a way in which a court or tribunal controls
  the progress of a case by making formal, written requirements and giving directions so that cases are resolved efficiently

Question 14

discovery

Answer 14

• a pre-trial procedure which requires the parties to list all the documents they have that are relevant to the case. Copies of the documents are normally provided to the other party

Question 15

How can equality be achived?

Answer 15

• The judge was required to act impartially and without bias,
• The plaintiff and the defendants both had experienced legal representation.
• The jury members would have been required to have had no connection or relationship with the
• parties, and would have been required to decide on the facts and not on any other matter.
• Both parties had the right to appeal.

Question 16

How can Access be achived?

Answer 16

• It is likely that the use of mediation will increase access to justice, as it provides the parties with an
alternative method of resolving the dispute outside trial.
• Costs may be a factor in determining whether access to justice can be achieved.
• Wilson gave evidence in Melbourne during trial. Although the Court is actively using technology including video links in cases, witnesses still have to attend trial in person to give evidence if required to do so.
• The trial was conducted by way of an open hearing.
• The rulings that were handed down during the trial by Justice Dixon have been made available to the parties and to the public, thus ensuring access to the reasons that the Court made its decision along the way.
• The parties have a right to appeal, ensuring access to a higher court to review the lower court’s decision if necessary.

Question 17

How can Fairness be achived?

Answer 17

• The directions and orders given by the Supreme Court would have allowed each party an opportunity to present their case and rebut the other side’s case. Those emails would have been seen by Wilson and her legal team before trial during the process of discovery. The discovery process thus ensured that relevant documents such as these were not withheld from the plaintiff.
• The rules of procedure allowed the parties to present their case. There are general rules of procedure about which party presents their case first at trial, though the Court does have the power to decide on the rules in each particular case.
• The jury was the decider of facts. The jury would have been required to consider the evidence and the law to come to a verdict
• The laws relating to defamation were properly applied. This includes the fact that the judge decided on the amount of damages.
• There was a timely resolution of the case. The claim was issued in May 2016, and a final judgment was handed down in September 2017. This may be seen as timely, having regard to the complexity and size of the dispute.
• Both parties had adequate legal representation. This assisted in ensuring a fair trial.
• Justice Dixon handed down a number of rulings during trial.

Question 18

To establish a claim for defamation, the plaintiff needed to prove that:

Answer 18

the statements made in the articles published about her were defamatory (i.e. defamed her) • the articles contained false statements about her which injured her reputation
• the statements referred directly to her
• the statements had been published (communicated to other people) by the defendants.

Question 19

Defermqation defences

Answer 19

• The justification defence

- The triviality defence

Question 20

The justification defence

Answer 20

The justification defence can be used where the defendants claim that a statement that is made is
substantially true.

Question 21

The triviality defence

Answer 21

The triviality defence can be used where the defendants believe that the circumstances of the
publication were such that the plaintiff was unlikely to sustain any harm.

Question 22

duty of care

Answer 22

duty of care in relation to negligence, the legal obligation to be cautious and careful, keeping other people in mind when doing anything that could harm them

Question 23

negligence

Answer 23

a type of tort which involves a breach of a duty of care, causing loss or harm

Question 24

nuisance

Answer 24

a type of tort which involves interference with a person’s right to use and enjoy property

Question 25

orders

Answer 25

a way in which a court or tribunal controls the progress of a case by making formal, written requirements and giving directions so that cases are resolved efficiently

Question 26

representative

Answer 26

proceeding a legal proceeding in which a group of people who have a claim based on similar or related facts, bring that claim to court in the name of one person; also called a class action or a group proceeding

Question 27

standard of care

Answer 27

the degree of caution required by a person who owes a duty of care to another

Question 28

What to look for when scrutinizing a case.

Answer 28

• An overview of the claim and the central facts of the case
• Dispute resolution bodies who were involved in the case
• Methods of dispute resolution and their appropriateness
• Remedies that could be or were awarded and their appropriateness
• Possible avenues of appeal
• The extent to which the principles of justice were achieved.

Question 29

Planning and Environment Act 1987 (Vic)

Answer 29

section 82 of

(1) An objector may apply to the Tribunal for review of a decision of the responsible authority to grant a permit.

Question 30

alternative dispute resolution and their appropriateness

Answer 30

Given the large number of issues to be decided, it was not a case appropriate for mediation or a compulsory conference. That is, the case needed to be heard and determined by VCAT for it to make a binding decision on whether to affirm, vary or set aside the decision by the Council to approve the permit. Arbitration is also not an appropriate dispute resolution method where a decision of a council is reviewed.

Question 31

• Section 97 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic)

Answer 31

states that VCAT must act

fairly and according to the merits of the case